Litigation at the International Court of Justice : Practice and Procedure [1 ed.] 9789004297517, 9789004297500

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Litigation at the International Court of Justice

International Litigation in Practice General Editors Loretta Malintoppi Eduardo Valencia-Ospina Advisory Board David Anderson John R. Crook Gilbert Guillaume Sean D. Murphy Alain Pellet Brigitte Stern Prosper Weil Rüdiger Wolfrum Sir Michael Wood

Volume 10

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

Litigation at the International Court of Justice Practice and Procedure By

Juan José Quintana

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Quintana Aranguren, Juan José, author.  Litigation at the International Court of Justice : practice and procedure / By Juan Jose Quintana.   pages cm. — (International litigation in practice ; volume 10)  Includes bibliographical references and index.  ISBN 978-90-04-29750-0 (hardback : alk. paper) — ISBN 978-90-04-29751-7 (e-book : alk. paper) 1. International Court of Justice—Rules and practice. 2. Civil procedure (International law) I. Title.  KZ6287.Q559 2015  341.5’52—dc23

2015010602

issn 1874-0502 isbn 978-90-04-29750-0 (hardback) isbn 978-90-04-29751-7 (e-book) Copyright 2015 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi 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.

Estoy convencido de que en las aplicaciones prácticas de [la] ciencia [del derecho internacional] valen mucho menos las deducciones teóricas que las reglas positivas, sancionadas por la conducta de los pueblos cultos y de los gobiernos poderosos, y sobre todo por las decisiones de los tribunales, que juzgan bajo el derecho de gentes.1 andrés bello, Principios de Derecho Internacional, Prólogo a la segunda edición (1844)

…

[s]olutions of matters of procedure are essential in the activities of any court, as they determine its role in the fate of a dispute brought before it. Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Declaration of Judge Lachs, ICJ Rep. 1988, p. 108

⸪

1  “I am convinced that in the practical application of the science of international law theoretical deductions are far less worthy than positive rules sanctioned by the conduct of cultivated nations and powerful governments, and above all by the decisions of tribunals adjudicating under the law of nations.” (translation by the author).

Contents Foreword by Eduardo Valencia-Ospina xi Preface xv Acknowledgments xix List of Abbreviations xx A Note on the Quotation of Decisions by the ICJ xxv

PART 1 Foundations of the Litigation 1 Access 3 2 Jurisdiction 40

PART 2 Preparing for and Starting the Litigation 3 Governing Instruments 139 4 Procedure: General Aspects 183 5 Institution of Proceedings 232

Part 3 Conducting the Litigation (Ordinary Proceedings) 6 Written Proceedings Stage: The Pleadings 297 7 Oral Proceedings Stage: The Hearings 348 8 Evidence 382

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Part 4 Ending the Litigation 9

Modes of Termination 481

10

The Decision 523

Part 5 The Litigation Interrupted (Incidental Proceedings) 11

Provisional Measures 617

12

Challenges to the Court’s Jurisdiction (Preliminary Objections) 724

13 Counter-Claims 808 14

Intervention under Article 62 of the Statute 838

15

Intervention under Article 63 of the Statute 927

Part 6 The Litigation Revisited (Derivative Proceedings) 16

Interpretation of Judgments 963

17

Revision of Judgments 1025

Part 7 Other Aspects of the Litigation 18

Other Litigation Devises: Joinder, Lack of Appearance, Appeals and Remedies 1059

19

Litigation Before Chambers 1182

20 Litigation in Advisory Proceedings 1227

Contents

List of Boxes 1277 Appendixes 1 and 2: List of Decisions 1286 Appendix 1: List of Decisions of the Permanent Court of International Justice (1920–1939) 1287 Appendix 2: List of Decisions of the International Court of Justice (1948–2013) 1299 Index 1327

ix

Foreword Since the establishment of the International Court of Justice in 1946, the last three decades (1984–2014) of its judicial activity show, when compared with the preceding period, a marked increase in the number of contentious cases submitted to its jurisdiction. As the President of the Court, judge Peter Tomka, asserted in his statement at the sixty-sixth session of the International Law Commission in July 2014: The statistics are eloquent: over the last 23–24 years, the Court has delivered more judgments, some 65 of them, than during the first 45 years of its existence, some 52 judgments. These rising figures are no doubt prompted by the fact that the Court always strives to attain well-reasoned and just outcomes. The numbers alone evidence the renewed confidence that States from all corners of the Globe have deposited in the principal judicial organ of the United Nations. A significant contribution to such a development results from the positive attitude towards the Court manifested by the Latin American States, as President Tomka has likewise recognized. In the same statement to the International Law Commission, he expressly acknowledged that the 2014 judgment on the merits in the Maritime Dispute case between Peru and Chile has further bolstered the rich corpus of World Court decisions involving American States, with many cases having raised questions of maritime delimitation. In many ways, therefore, Latin American States remain faithful clients of the Court and have largely given it the opportunity to further clarify and develop the law of the sea and related aspects such as maritime delimitation . . . there is every indication that this trend will continue, as several new cases involving Latin American States have been brought to the Court recently. Indeed, as of today, proceedings involving Latin American States were initiated before the Court in twenty-nine instances, of which twenty-two have been either resolved by a judgment or are currently pending of resolution. Of those, a large proportion concerns cases among Latin American States themselves. In a first period, between 1946 and 1984, seven Applications were filed

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by or against Latin American States up until 1958, and none during the remaining twenty-six years. The balance of twenty-two Applications filed since 1984 reflects the notable change that has taken place in the utilization of the Court by Latin American States. Apart from the Court’s expertise in the area of international law singled out by its President, namely the Law of the Sea and in particular Maritime Delimitation, another factor—the Pact of Bogotá—may help explain the greater use thus being made of the Court by the Latin-American States. In effect, in recognition of the broad and general character of the jurisdictional ground it embodies, Article XXXI of the Pact has been raised as a basis of the Court’s jurisdiction in twelve of the cases listed in which a Latin American State Party to it has been the Applicant. In other words, starting in 1984, Article XXXI has been invoked in every proceeding instituted before the Court by a Latin American State, with the exception of the Applications filed against the United States of America by, respectively, Paraguay and Mexico in the “Breard” and “Avena” cases concerning the right of consular protection and by Uruguay in the Pulp Mills in the river Uruguay case. Most recently, Argentina deposited an Application under Article 38 paragraph 5 of the Rules of Court instituting proceedings against the United Sates of America over an alleged dispute concerning judicial decisions of the United States relating to the restructuring of the Argentinian Sovereign Debt. The foregoing summary account exemplifies not only in quantitative terms but also as regards breadth of coverage, the range of international legal issues of which the International Court of Justice has been progressively seized in the context of disputes affecting the States of Latin America. In this respect it may be recalled that the author of the present treatise, Ambassador Juan José Quintana, had already provided a detailed analysis up until the late eighties of “The Latin American Contribution to International Adjudication: the Case of the International Court of Justice”, in an article so entitled which appeared in 1992 in the Netherlands International Law Review. But the increase in the number, diversity and complexity of the cases brought to the Court is not limited to those affecting Latin American States; is equally notable in those that involve States from other parts of the world. In order to meet the resulting pressing demands of its client States for a timely resolution of their legal claims, the Court has streamlined its procedures, in particular by the enactment of Practice Directions, first adopted in 2001. Litigation before the Court has thus gradually become a heavier professional undertaking, requiring a combined deep knowledge of the substance of the international law areas at play and of the practice that has developed in consequence of the application of the Court’s governing instruments, its Statute, Rules and Practice Directions.

Foreword

xiii

As every practitioner well knows, the success of litigation both in the domestic and international spheres is to a large extent dependent on placing the proper emphasis on practice and procedure in the legal argument advanced. As far as the International Court of Justice is concerned, these aspects have been dealt with in a handful of learned works, though to a much lesser extent than doctrinal commentary on the substantive issues dealt with in the pronouncements of the Court. In this connection, attention may be drawn to the permanent column that on the practice and procedure of the ICJ has been maintained for more than twelve years in the Journal entitled “The Law and Practice of International Courts and Tribunals” which, like the present book, is also published by Brill, Ambassador Quintana having assured with distinction its authorship for several years. It is, therefore, most opportune and highly appropriate for him to have shared his vision and long experience of the subject in a book that, improving in several relevant respects on other available works, fittingly joins the Series “International Litigation in Practice”. To describe and assess its contents, I can do no better than to quote from the peer evaluation of the manuscript made by a well known academic and practitioner before the Court who, according to the rules of publishing, must remain anonymous. In his own words: As indicated by the title, the manuscript is focused on questions of procedure before the International Court of Justice. While the manuscript also addresses issues of the Court’s jurisdiction, it does not seek to explore the substantive law embedded in the Court’s jurisprudence. Further, it does not seek to cover in any depth the organizational and structural aspects of the Court, such as the election of judges, the funding of the Court or its facilities. Moreover, even in the context of discussing the Court’s procedural law, it consciously avoids theoretical discussions, preferring to focus on the practical aspects of litigating cases before the Court. . . . The manuscript is well organized, covering all the topics one would expect for such a volume, and in a progression that is logical and coherent. . . . As for the analysis provided, the manuscript presents a very well crafted series of chapters, which ably recount the relevant provisions of the Court’s Statute and Rules, as well as its jurisprudence from the time of its predecessor the Permanent Court of International Justice and up to 2013. Further, each chapter ends with a very helpful listing of secondary sources for further reading.

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. . . I rather liked the “boxes” that frequently interrupt the text with side bars on particular ancillary issues . . . I ultimately found them quite interesting and engaging. This feature might be noted as well when distinguishing the manuscript from some of its competitors. In the reviewer’s opinion, which I fully subscribe to: For a single volume treatment . . . the author’s decision to limit the scope of the project is reasonable. [The Court’s] jurisdictional and procedural law has become so extensive that a single volume treatment of it requires making some choices, which in this case is to provide a practical guide on questions of procedure before the Court. To that end, the manuscript succeeds in its objective. Ambassador Quintana has shown me great deference in asking that I preface his most useful book. Since we first met as compatriots in the Hague more than two decades ago, being myself Registrar of the International Court of Justice and him a young member of the Colombian Embassy to The Netherlands, I have been a privileged witness of his unfailing devotion to the study of the Court and ensuing progressive command of the Court’s Law and Practice, while rapidly advancing in his diplomatic career. With this book, which fills a gap in the legal literature, Ambassador Quintana adds a meaningful personal update to his early work on the Latin American contribution to International Adjudication, focused on the International Court of Justice. Eduardo Valencia-Ospina

The Hague, November 2014

Preface Article 38 of the Statute of the International Court of Justice states that the Court’s function is “to decide in accordance with international law such disputes as are submitted to it.” Litigation represents the set of actions and proc­ esses that take place when this function is activated and a case is brought before the Court, thus giving origin to contentious proceedings that would normally conclude with a judgment of the Court. This work is intended to provide a detailed and systematic guide to the actual questions of procedure arising when States come before the Court to take part in litigation in contentious proceedings. It consists of an updated and extensively revised version of my seminal handbook “El Procedimiento en Asuntos Contenciosos ante la Corte Internacional de Justicia”, which was published in Colombia in 2001. My approach to the subject of litigation before the ICJ—following in this regard the cue of Don Andrés Bello, surely one of the most influential international lawyers ever to come from Latin America—is primarily empirical, hence the emphasis that is put on examples derived from the actual practice of States and of the Court itself. Since the book is mainly intended to help practitioners and advisors to governments engaged in actual cases, I have deliberately avoided theoretical discussions of the type that are usually entertained in studies of procedural law, favoring a pragmatic stance that is focused not so much on what authors (or, indeed, myself) have to say on any given topic concerning procedure, but rather on presenting, directly “from the Court’s mouth,” as it were, what the judges actually do and say, or rather, have done and said over the last ninety years. As a result, the user of this work will find in it information concerning the manner in which the ICJ has addressed procedural questions that arise in the course of litigation, within the framework provided for by the Statute and the Rules of Court, as interpreted and applied by it. The countless decisions rendered by the World Court between 1922 and December 2013 and touching upon questions of procedure constitute, thus, the true backbone of the present study. Full listings of these decisions are included as appendixes. The work is entirely focused on litigation before the ICJ, which is the principal judicial organ of the United Nations and, indeed, of public international law. Reference is made to the practice of other international tribunals only when required by the text itself. I also have largely ignored the organizational and structural aspects of the Court’s functioning, topics on which there is abundant literature already in the public domain.2 2  A primary source is the Court’s “Bluebook,” a handbook prepared by the Registry that contains valuable information and is updated periodically under the title The International Court

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As for the contents of the work, after devoting some space to explain the concepts of access and jurisdiction, which represent the true foundations of litigation (Part 1, chapters 1 and 2), the process of litigation is examined throughout its successive stages, considering in turn how to prepare for the litigation, how to start it, how to conduct it and how to end it (Parts 2 to 4, chapters 3 to 10). Interruptions and derivations of the litigation are then examined (Parts 5 and 6, chapters 11 to 17), as well as other aspects of procedure not covered in previous sections of the work, including a sketchy presentation of the procedure followed in advisory cases (Part 7, chapters 18 to 20). At the end of each chapter a list as complete as possible of secondary sources and suggestions for further reading is included. One device about which it will be useful to provide an explanation in advance is that of the boxes that frequently interrupt the text and a full listing of which is provided at the end of the book. These self-contained boxes contain different types of materials used to provide an overview of questions that are ancillary to the text or to expand or illustrate a point made in the text. Among these materials, mention should be made of the legislative history of provisions in the Statute or the Rules; reviews of the Court’s practice concerning specific aspects of procedure discussed; dicta by the Court on particular subjects of interest; excerpts from decisions by other international tribunals; documents by political or academic bodies and noteworthy contributions by individual judges. Apart from direct sources and countless articles in legal periodicals, I have made a conscientious effort to consult most of the scientific works available that deal with questions of procedure before the ICJ, including the masterful treatise on the Permanent Court of International Justice by judge Manley O. Hudson3 or the truly indispensable works on the current Court by the likes of Dr Shabtai Rosenne,4 Sir Gerald Fitzmaurice,5 Mme Genevieve Guyomar6 and Professor of Justice (6th edition, 2013). General works on the ICJ frequently used include: M. Dubisson, La Cour internationale de Justice, (1964); L. Garcia Arias, Balance y Perspectivas del Tribunal Internacional de Justicia (1972); Nagendra Singh, The Role and Record of the International Court of Justice (1989); S. Rosenne, The World Court-What It is and how it Works (1995, 5th revised edition); R. Abello, Introduction to the International Court of Justice (2014). 3  M.O. Hudson, The Permanent Court of International Justice 1920–1942 (1943). 4  S. Rosenne, Procedure in the International Court, A Commentary on the 1978 Rules of the International Court of Justice (1983); Intervention in the International Court of Justice (1993); The Law and Practice of the International Court of Justice 1920–1996 (1997); Provisional Measures in International Law, the International Court of Justice and the International Tribunal for the Law of the Sea (2005); Interpretation, Revision and Other Recourse from International Judgments and Awards (2007). 5  Sir G. Fitzmaurice, The Law and Procedure of the International Court of Justice (1986). 6  G. Guyomar, Commentaire du reglement de la Cour internationale de justice, adoptee le 10 Avril 1978, Interpretation et pratique (1983).

Preface

xvii

Hugh Thirlway.7 Special mention should be made of more recent endeavors, such as the Oxford Commentary to the Statute of the Court, now in its second printing,8 and the many contributions published in the practitioner’s journal The Law and Practice of International Courts and Tribunals, now in its twelfth year of publication.9 I have also endeavored to include references to works on the workings of the Court published in languages other than English and French and in particular to the rich literature in this field that has been produced in the Spanish language, which is frequently—and unjustly—neglected. Without in any way pretending to press a claim of originality, I would like to stress that the present work seeks to distinguish itself from other standard works on the ICJ currently available in two respects: (one) Because it is entirely focused on matters of procedure that arise in the day-to-day conduction of litigation before the World Court—and it aims at covering all such aspects at that; and (two), Because it does so with the practitioner in mind, in particular that junior member of the Legal Office of a Government’s Foreign Ministry who is asked to provide advice, very likely at a moment’s notice, on practical questions involved in litigation at The Hague. I feel that I myself was placed in that position at some point and I am convinced that I would have greatly benefited from perusing what could be called a “primer” on the practice and procedure of the ICJ—had there one being available—before venturing to navigate through in-depth treatises and erudite works on the Court as those listed above and, more importantly, prior to starting to interact with the specialized Counsel that are eventually retained by all and any Governments involved in litigation. That is precisely the role that the present works aspires to fulfill. In a classical study of arbitral international practice, an author famously stated in 1934 that procedural law was “the Antarctica of international law.”10 In the case of litigation before the International Court of Justice this may not be quite the case today, at a distance of some eighty years after that view was expressed, but to a large extent it is still a fact that more is known about the substance of the cases dealt with and decided by the Court than about the manner in which it works and arrives at its decisions. 7  H. Thirlway, “The Law and Procedure of the International Court of Justice 1960–1989”, Parts 9–13, BYIL (1998–2003). Published in book form in 2013 under the title The Law and Procedure of the International Court of Justice, Fifty Years of Jurisprudence. 8  A. Zimmermann, Ch. Tomuschat, K. Oellers-Frahm, Ch.J. Tams (eds.), The Statute of the ICJ: A Commentary (2nd. Ed, 2012). 9  When the present book was in printing I learned of the publication of The International Court of Justice, by Professor Robert Kolb (2013), a translation of a book under the same title initially published in the French language. This is an impressive work of scholarship in which questions of procedure in cases before the ICJ are given a detailed treatment. 10  A.H. Feller, The Mexican Claims Commissions 1923–1934-A Study in the Law and Procedure of International Tribunals (1934), p. vii.

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This work is offered as a modest contribution to the survey and charting of this territory, primarily aimed at enhancing the knowledge of those interested in international law on the rules and practices governing inter-State litigation before the World Court. Finally, given that at the time of writing I am an active member of the Colombian Foreign Service, I am bound to include here the traditional caveat that the views expressed in this work are entirely mine and do not reflect in any manner the views of the Government of Colombia or the Ministry of Foreign Affairs. At the same time, I would like to take this opportunity to thank the current Foreign Minister, Ms Maria Angela Holguin, for, among other things, having graciously granted me permission to publish this work. Juan José Quintana Geneva, August 2014

Acknowledgments I wish to express my gratitude to the persons who have contributed to the successful completion of this work. The permanent guidance and encouragement from Mr. Eduardo Valencia-Ospina, member of the International Law Commission and former Registrar of the International Court of Justice, has been highly appreciated. Likewise, the assistance of Ms Kelly Henkin, Ms Serafina Marinacci, Ms María Mercedes González and Ms Laura Ospina proved invaluable throughout the several years that it took me to bring this project to fruition. The staff of the Peace Palace Library, at The Hague; the Pence Law Library, at American University; and the Columbus Library, at the Organization of American States, was also very helpful. In particular, I am indebted to Mrs Adeen Postar (Pence), Mrs Stella Villagran (Columbus) and Mrs María Claudia Gómez (Inter-American Development Bank). Last but not least, I would like to dedicate this work to María del Rosario, my wife, notwithstanding the fact that her feelings for international law are likely to correspond to my feelings for civil engineering. J.J.Q.

List of Abbreviations 2001 ILC Articles  International Law Commission, Draft articles on responsibility of States for internationally wrongful acts, ILC Yearbook (2001), pp. 26–143 African JICL African Journal of International and Comparative Law African YIL  African Yearbook of International Law AFDI Annuaire francais du droit international AJIL American Journal of International Law ASIL American Society of International Law Australian YIL Australian Yearbook of International Law Bordin’s Procedural Developments  F. Lusa Bordin, “Procedural Developments at the International Court of Justice”, column appearing in the periodical The Law and Practice of International Courts and Tribunals (2012–) Brown Scott’s Project J. Brown Scott, The Project of a Permanent Court of International Justice and Resolutions of the Advisory Committee of Jurists (1920) [Reproduced as Pamphlet No. 35 in the Pamphlet Series of the Carnegie Endowment of International Law-Division of International Law, Vol. 7 (2000)] Bustamante’s World A.S. de Bustamante, The World Court (1925) Court BYIL British Yearbook of International Law Cambridge LJ Cambridge Law Journal Canadian YIL Canadian Yearbook of International Law Chinese JIL Chinese Journal of International Law Crawford’s ILC Articles J. Crawford, The International Law Commission’s Articles on State responsibility (2002) Dubisson’s CIJ M. Dubisson, La Cour internationale de Justice (1964) EJIL European Journal of International Law Fachiri’s PCIJ A. Fachiri, The Permanent Court of International Justice: Its Constitution, Procedure and Work, 2nd. ed. (1932) Fitzmaurice’s Law Sir G. Fitzmaurice, The Law and Procedure of the and Procedure  International Court of Justice (1986) Finnish YIL Finnish Yearbook of International Law Guyomar’s Commentaire du reglement de la Cour internationale Commentaire de justice, adoptee le 10 Avril 1978, Interpretation et pratique (1983)

List Of Abbreviations

xxi

Hague YIL The Hague Yearbook of International Law Hudson’s PCIJ M.O. Hudson, The Permanent Court of International Justice 1920–1942 (1943) I/A Court H.R.  Inter-American Court of Human Rights ICJ International Court of Justice ICJ Acts and Documents  I.C.J., Acts and Documents Concerning the Organization of the Court, No. 5, 1989 ICJ Yearbook International Court of Justice Yearbook ICLQ The International and Comparative Law Quarterly IDI Annuaire Annuaire de l’Institut de droit international ILC Draft Convention United Nations, Commentary on the Draft Convention on Arbitral Procedure adopted by the International Law Commission at its Fifth Session, prepared by the Secretariat (1955)—Doc. A/CN.4/76 ILC Model Rules  Model Rules on Arbitral Procedure, ILC Yearbook 1958, vol. 2, pp. 80–88 ILC Yearbook Yearbook of the International Law Commission ILM International Legal Materials Indian JIL Indian Journal of International Law Indian YIL Indian Yearbook of International Law Inter-Allied Committee United Nations, Report of the Informal InterReport Allied Committee on the Future of the Permanent Court of International Justice, AJIL, vol. 39 (1945), Supplement Italian YIL Italian Yearbook of International Law JDI Journal de droit international (Clunet) Japanese YIL Japanese Yearbook of International Law Leiden JIL Leiden Journal of International Law LPICT  Law and Practice of International Courts and Tribunals Mani’s Adjudication V.S. Mani, International Adjudication, Procedural Aspects (1980) Max Planck EPIL The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition, [www.mpepil.com] Muller’s Procedural D. Muller, “Procedural Developments at the Developments International Court of Justice”, column appearing in the periodical The Law and Practice of International Courts and Tribunals (2004–2007) LPICT, vol. 3 (2004), pp. 553–579 LPICT, vol. 4 (2005), pp. 141–163

xxii

list of abbreviations

LPICT, vol. 4 (2005), pp. 329–354 LPICT, vol. 4 (2005), pp. 501–513 LPICT, vol. 5 (2006), pp. 193–212 LPICT, vol. 5 (2006), pp. 305–324 LPICT, vol. 5 (2006), pp. 529–546 LPICT, vol. 5 (2007), pp. 221–232  LPICT, vol. 8 (2009), pp. 459–528 (with A. Ben Mansour) NILR Netherlands International Law Review NYIL  Netherlands Yearbook of International Law Oxford Commentary A. Zimmermann, Ch. Tomuschat, K. Oellers-Frahm, Ch.J. Tams (eds.), The Statute of the ICJ: A Commentary (2nd. Ed, 2012) PCIJ Permanent Court of International Justice PCIJ, Documents  Documents concerning the action taken by the Council of the League of Nations under Article 14 of the Covenant and the adoption by the Assembly of the Statute of the Permanent Court, 1921 PCIJ, Procès-verbaux Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee (16 June-24 July 1920) with Annexes Polish YIL  Polish Yearbook of International Law Prager’s Procedural D.W. Prager, “Procedural Developments at the Developments International Court of Justice”, column appearing in the periodical The Law and Practice of International Courts and Tribunals (2002–2004) LPICT, vol. 1 (2002), pp. 189–216 LPICT, vol. 1 (2002), pp. 401–430 LPICT, vol. 1 (2002), pp. 613–625 LPCIT, vol. 2 (2003), pp. 175–183 LPICT, vol. 2 (2003), pp. 339–345 LPICT, vol. 2 (2003), pp. 551–557 LPICT, vol. 3 (2004), pp. 125–142 Quintana’s Procedural  J.J. Quintana, “Procedural Developments at the Developments International Court of Justice”, column appearing in the periodical The Law and Practice of International Courts and Tribunals (2010–2011) LPICT, vol. 9 (2010), pp. 327–400 LPICT, vol. 10 (2011), pp. 135–203 LPICT, vol. 10 (2011), pp. 507–596

List Of Abbreviations

xxiii

RC  Recueil des Cours de la Academie de Droit International de La Haye—Collected Courses of the Hague Academy of International Law RDI Revue du droit international, de sciences diplomatiques et politiques REDI Revista Española de Derecho Internacional RHDI Revue Hellenique de Droit International Rosenne’s Law and Practice S. Rosenne, The Law and Practice of the International Court of Justice 1920–1996 (2000) Rosenne’s Procedure S. Rosenne, Procedure in the International Court, A Commentary on the 1978 Rules of the International Court of Justice (1983) RGDIP Revue generale de droit international Public Scerni’s La Procédure M. Scerni, “La Procédure de la Cour Permanente de justice Internationale”, RC (1938—III), pp. 565–679 Schwarzenberger’s G. Schwarzenberger, International Law as Judicial Law Applied by International Courts and Tribunals, Vol. IV, International Judicial Law (1986) Study Group Report  The International Court of Justice—Efficiency of Procedures and Working Methods, in D.W. Bowett, et al, The International Court of Justice: Process, Practice and Procedure, (1997), pp. 27–111 The Hague YIL The Hague Yearbook of International Law Thirlway’s H. Thirlway, “The Law and Procedure of the Law and Procedure  International Court of Justice 1960–1989”, Parts 9–13, BYIL, (1998–2003) Part 9, BYIL, vol. 69 (1998), pp. 1–83 Part 10, BYIL, vol. 70 (1999), pp. 1–63 Part 11, BYIL, vol. 71 (2000), pp. 71–180 Part 12, BYIL, vol. 72 (2001), pp. 37–181 Part 13, BYIL, vol. 74 (2003), pp. 7–114 UNCIO  United Nations Conference on International Organization UNITAR Colloquium I C. Peck & R. Lee (Eds.), Increasing the Effectiveness of the International Court of Justice, Proceedings of the ICJ/UNITAR Colloquium to celebrate the 50th Anniversary of the Court (1997) UNITAR Colloquium II UNITAR, A Dialogue at the Court, Proceedings of the ICJ/UNITAR Colloquium held on the occasion of

xxiv

list of abbreviations

the Sixtieth Anniversary of the International Court of Justice, at the Peace Palace on 10 and 11 April 2006 (2006) UNJYB United Nations Juridical Yearbook UNRIAA  United Nations Reports of International Arbitral Awards Verzijl’s Jurisprudence J.H.W. Verzijl, The Jurisprudence of the World Court, A Case by Case Commentary (1965) Va. JIL  Virginia Journal of International Law ZaÖRV  Zeitschrift fur auslandisches offentlivhes Recht und Volkerrecht

A Note on the Quotation of Decisions by the ICJ In a work in which no aspect of the practice and procedure in litigation at the International Court of Justice is discussed without making reference to one or more dicta extracted from decisions by the Court—including its predecessor, the Permanent Court of International Justice—it is essential to use a simplified and uniform system for the quotation of all decisions. The method of quotation used in this work consists in identifying each individual passage in a decision made by the World Court by mentioning, in that order: (i) The abbreviated name of the case; (ii) When applicable, the phase of the case in which the decision was rendered (provisional measures, preliminary objections, jurisdiction and admissibility, counter-claims, intervention, merits, reparations); (iii) The type of decision (judgment, advisory opinion, order); (iv) The date on which it was rendered; (v) The source (the precise reference for the passage to be found in the Court’s publications). An example of a decision quoted following this system is: Kosovo (Serbia and Montenegro v. Canada), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 448, para. 45 A description of the five elements just listed above may run as follows: (i) Abbreviated name of the case: Kosovo (Serbia and Montenegro v. Canada), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 448, para. 45 This is an abbreviation of the official title of the case adopted specially for its use in this work. Among the general criteria that I have tried to follow in the adoption of these abbreviated names are the following: – Whenever possible, I have used the abbreviated title found at the top of each page of the English version in the PCIJ A, B and A/B series and in the I.C.J. Reports series. I have also tried to use names commonly used among scholars or commentators.

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a note on the quotation of decisions by the icj

– In the numerous cases concerning territorial questions, boundary disputes and maritime delimitation disputes I simply use the names of the parties, save for those well known cases in which it would be very artificial to use this system (“Temple of Preah Vihear,” “Gulf of Maine,” “Jan Mayen”, etc.). – Apart from the previous category, the names of the parties are included in the title of the case only when there are several cases with the same name (“Aerial Incident”, “Arbitral Award”, “Kosovo”, etc.).

In the example given, the official name of this case is Legality of Use of Force, but it is normally referred in literature to as the Kosovo litigation (to be distinguished from the Kosovo-Declaration of Independence advisory proceedings, itself the abbreviated name of a different case). Also, since there are no less than ten contentious cases appearing in the General List under the same name, the names of the parties were by necessity included in the shortened name of the case in this instance.11

(ii) Phase of the case in which the decision was rendered: Kosovo (Serbia and Montenegro v. Canada), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 448, para. 45 In the Court’s official system of quotation the phase of the case in which a given decision was rendered is not always mentioned and sometimes this makes it hard for the reader to identify the precise decision that is being quoted. All the same, there are situations in which it is not necessary to specify any phase at all, for instance in cases in which there was only one phase (like the Fisheries case, in which the Court dealt only with the merits of the case or the East Timor case, in which it only dealt with questions of jurisdiction) or in cases in which it is difficult to put a label to a decision (like the judgment putting an end to the Nuclear Tests litigations, which is neither a decision on jurisdiction proper nor a decision on the merits).

11  A full list of the cases of both the PCIJ and the ICJ, including the abbreviated titles used in this work, can be found in Appendixes 1 and 2.

A Note On The Quotation Of Decisions By The Icj

xxvii

(iii) Type of decision (judgment, advisory opinion or order): Kosovo (Serbia and Montenegro v. Canada), Preliminary Objections, ­Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 448, para. 45 This is self-explanatory. (iv) Date on which it was rendered: Kosovo (Serbia and Montenegro v. Canada), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 448, para. 45 The Court included the date of its judgments or advisory opinions in the official quotation of each case only up to 1963. As of that year, the day in which the decision was rendered has been mentioned only in the case of certain orders. This notwithstanding, it is submitted that the date of each decision is useful for purposes of quick reference and this is more pronounced in the case of the PCIJ, given the somehow confusing nomenclature used for the several series of publications of the PCIJ. (v) Source in the Court’s publications: Kosovo (Serbia and Montenegro v. Canada), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 448, para. 45 In the case of the ICJ, the source of each decision is invariably a volume of the I.C.J. Reports series, here abbreviated to “ICJ Rep.” It will be noted that the numbering of paragraphs in each decision was adopted only in 1966 and thus a passage in a decision prior to that date must be quoted indicating only the page of the volume it can be found in.12 Also, in quotations of recent decisions that have not yet been printed or published in the I.C.J. Reports series only the paragraph number will be used. In the case of decisions by the Permanent Court the source will always be a numbered volume in the P.C.I.J. Series A, B or A/B, along with the corresponding page.13 12  In its turn, this is the page of each single volume, which is shown in the upper part of each page. In the lower part a separate pagination is used for each of the fascicles comprising a volume. 13  From 1922 to 1930 the PCIJ published its decisions in two separate series, namely Series A, for judgments and orders in contentious cases and Series B, for advisory opinions, with the particularity that judgments and advisory opinions (but not orders), were numbered consequently. As of 1931 the numbering of the decisions was abandoned and both series were combined in a single A/B Series.

Part 1 Foundations of the Litigation

⸪

Two cumulative requirements have to be met for the Court to be able to deal with a contentious case between two or more States. They are (i) That all the States taking part in the proceedings belong to one of the groups of States to which the Court is open, i.e. that they possess access to the Court; and (ii) That the Court has jurisdiction in the case. Strictly speaking, these concepts do not belong to the realm of procedure but they represent the true foundations for litigation before the Court. Hence, chapters 1 and 2 will be devoted to explore them in a succinct manner.

Chapter 1

Access Under the heading “Competence of the Court” Chapter II of the Statute of the International Court of Justice governs three aspects that are technically different: access to the Court (Articles 34 and 35); the Court’s competence or jurisdiction1 ratione materiae (Articles 36 and 37) and the law the Court is called to apply when properly seised of a case (Article 38). While the first of these elements refers to the type of entities that can become parties to cases, i.e., those subjects of international law that possess access or locus standi before the Court, the second refers to the subject-matter jurisdiction of the Court, i.e. the type of questions to which the jurisdiction of the Court extend. The third aspect is governed by one of the better known provisions of the Statute, the one that contains what is generally considered as the most authorized enumeration of the existing sources of international law.2 To have access to the ICJ means to have the right to appear before the Court or to have capacity under the Statute to be a party to contentious p ­ roceedings.3 The question is governed by Articles 34 and 35 of the Statute, which embody what the Court recently called “the general conditions . . . for capacity to 1  While “jurisdiction” is the preferred term in the English version of the Court’s Statute, in the French version “compétence” and “juridiction” are used with the same frequency (“competence” is used in English only in the title of Chapter II; in French juridiction is used in Articles 36, paragraphs 2 and 5 and in Article 37, while compétence is used in Articles 36, paras. 1 and 53). Although it is of little importance in practice, there have been heated discussions in the past as to whether these terms are interchangeable (For good theoretical analysis see Fitzmaurice’s Law and Procedure, vol. 2, pp. 434–435; V. Heiskanen, “Jurisdiction v. Competence: Revisiting a Frequently Neglected Distinction”, Finnish YIL, vol. 5 (1994), pp. 1–33; Thirlway’s Law and Procedure, Part 9, BYIL vol. 69 (1998), pp. 4–10). 2  See, in general, A. Pellet, “Article 38”, in Oxford Commentary, MN 176–339, pp. 797–870; A-H. Béranger, “La relecture de l’article 38 du Statut par la Cour internationale de Justice”, in C. Apostolidis (Ed.), Les arrets de la Cour internationale de Justice (2005), pp. 109–121. 3  Kosovo (Yugoslavia v. Canada), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 448, para. 45; Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ 2007, p. 85, para. 102. The Court has also referred to the “procedural right to apply to the Court” (Northern Cameroons, Preliminary Objections, Judgment of 2 Dec. 1963, ICJ Rep. 1963, p. 29). This notion corresponds in essence to what scholars on procedural law have called “la qualité pour agir” or the “legtimazione processuale” (Ch. De Visscher, Aspects Récents du Droit Procédural de la Cour international de Justice (1966), p. 75).

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4

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­ articipate in proceedings before the Court.”4 This is an element of litigation p that the Permanent Court of International Justice was right in considering “one of the essential conditions of procedure before the Court.”5 a)

Capacity to be a Party

The general rule on procedural capacity before the Court is formulated in Article 34, para. 1 of the Statute, according to which “[o]nly States may be parties in cases before the Court.” The wording of the French version (“[s]euls les États ont qualité pour se présenter devant la Cour”) is slightly different and gives the reader the idea that the scope of the rule may be actually larger, inasmuch as it is conceivable that a State appears before the Court in a condition other than that of a party to a case. On the other hand, there are two provisions of the Statute that use a different formula, namely “States entitled to appear before the Court” (“[é]tats admis à ester en justice devant la Cour”, in the French version). First, Article 40, para. 3, concerning the institution of proceedings, provides that the “States entitled to appear before the Court” other than the members of the United Nations will be notified by the Registrar whenever a new case is brought before the Court. Secondly, Article 66, concerning advisory proceedings, directs the Registrar to give notice of the request for an advisory opinion to “all States entitled to appear before the Court.” The same expression can be found in a number of provisions of the Rules (Article 42; Article 53, para. 1; Article 83, para. 2 and Article 95, para. 3), always in the context of procedural arrangements for the notification or transmission of certain information and documentation to States that, not being party to a given case, belong to that group. Although these provisions have been present in the Statute and the Rules since the time of the PCIJ, their precise meaning has never been clear.6 There are at least two ways to interpret the expression “States entitled to appear 4  Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 430, para. 57. 5  Serbian Loans, Judgment No. 14, 12 July 1929, PCIJ A 20, p. 17. For a thorough discussion on the question of access before the PCIJ see Hudson’s PCIJ, pp. 383–404. 6  The expression “States entitled to appear before the Court” first made its appearance in the Rules of Court in 1926 (Article 38) and found a place in Articles 40 and 66 of the Statute on the occasion of the 1929 revision. For the relevant background, as well as a critical comment on the precise scope and meaning of the expression see Hudson’s PCIJ, pp. 392–394.

Access

5

before the Court.” The strictest postulates that it refers to States to which the Court is open for the settlement of their disputes, i.e. the States that have access to the Court and are thus authorized to become parties to contentious cases. This finds some support in the fact that the provisions quoted above, both in the Statute and in the Rules, have always contrasted the primary category of the States members of the United Nations with that of the other States entitled to appear before the Court.7 At first sight, then, it would appear that the formula “States entitled to appear before the Court” refers equally to those States that have access to the Court (by being members of the UN or parties to the Statute) and to those that without belonging to any of these categories might yet be granted access, in the conditions to be explained below.8 The other, considerably more flexible construction, contends that the expression “States entitled to appear before the Court,” while certainly covering all those States to which the Court is open, includes also those States that, regardless of whether they have access or not, are authorized by the Statute to “appear” before the Court, i.e. to plead in the course of proceedings, in a condition other than that of parties to a case. The second construction is more in conformity with the practice in application of the Statute and the first case that comes to mind is that of the States mentioned in Article 66 itself, in the context of advisory proceedings. Under paragraph 2 of this provision any such State “entitled to appear before the Court” that is found “likely to be able to furnish information” on the question to which a request for an advisory opinion refers is notified that it will be permitted to take part in the proceedings. States that avail themselves of this right will certainly be pleading and “appearing” before the Court without becoming parties to a case. But this might occur also in the context of contentious proceedings, for instance with regard to third-party intervention under Article 62 of the Statute, because the jurisprudence of the Court has made abundantly clear that although a third State admitted to intervene under that provision does not become automatically a party to the case, it acquires the procedural right

7  Essentially the same reasoning was used at the time of the PCIJ, with regard to membership to the League of Nations (Hudson’s PCIJ, p. 393). A similar contrast is visible in Article 35, paras. 1 and 2 of the Statute, for while the former opens the Court to the States parties to the Statute (members and non-members of the UN), the latter establishes the conditions under which the Court shall be open to “other States.” 8  For the strictest construction see A. Zimmermann, “Article 35”, in Oxford Commentary, MN 37, p. 617; A. Paulus, “Article 66”, ibid., MN 12–13, pp. 1645–1646.

6

Chapter 1

“to be heard” by the Court in the capacity of “intervening State.”9 A State exercising that right would certainly be “appearing” before the Court, albeit within the limited conditions fixed by the Court when admitting the intervention.10 The same situation might occur with regard to third-party intervention under Article 63, because under this provision any State that has the condition of being a party to a convention the construction of which is at issue in a case before the Court “has the right to intervene in the proceedings.” Therefore, those States can also be said to be “entitled to appear before the Court” without becoming parties to the litigation, within the limits and to the extent provided for in Article 63.11 In any case, according to the peremptory rule contained in Article 34, para. 1 of the Statute—which has been called the “entrance door” to the settlement of disputes by the ICJ—12 no subjects of international law other than States may appear before the Court in contentious cases. This rule was copied with minor adjustments from Article 34 of the Statute of the PCIJ, which, in turn, was based on Article 14 of the Covenant.13 The impossibility for international organizations to appear in contentious cases before the Court has given rise to serious criticism, based on the fact that the rule of Article 34 is clearly outdated and does not reflect the realities of contemporary international relations, in which those organizations certainly play a role that it could not be envisaged when the original Statute was drafted or even when it was revised at the San

9  El Salvador/Honduras, Application to Intervene, Judgment of 13 Sep. 1990, ICJ Rep. 1990, pp. 135–136, para. 102. For a full discussion see Chapter 14, d). 10  Writing in 1950, a former Registrar of the Court stated that the provisions on intervention in the Statute had the potential to “[e]nlarge the circle of States which are admitted to plead before the Court” (E. Hambro, “The Jurisdiction of the International Court of Justice”, RC, vol. 76 (1950-I), p. 148). Interestingly enough, in the same work he stated the opinion that a third State admitted to intervene under Article 62 would become a party to the case, a proposition that was later negated by the Court (ibid., p. 149). 11  See Chapter 15, a). In the context of the construction of Article 40 of the Statute, another contributor to the Oxford Commentary argues for the more flexible interpretation, mentioning expressly the case of States intervening under Article 63 of the Statute— but failing to mention States intervening under Article 62 (S. Yee, “Article 40”, in Oxford Commentary, MN 93, pp. 972–973). 12  P.-M. Dupuy, “Article 34”, in Oxford Commentary, MN 18, p. 596. 13  As noted by the PCIJ in the Serbian Loans case ( Judgment No. 14, 12 July 1929, PCIJ A 20, p. 17).

Access

7

Francisco Conference. For this reasons, Article 34 is one of those provisions of the Statute that could certainly be considered to be ripe for amendment.14 Under Article 34, then, only States can become parties to contentious cases before the Court. But this rule is immediately qualified by other provisions which specify that not every State has such a capacity: only those States that belong to one of the following three categories have access to the International Court of Justice: members of the United Nations (Group 1); non-members of the United Nations that become parties to the Statute under Article 93, para. 2 of the Charter (Group 2); and “other States” to which the Court shall be open under Article 35, para. 2 of the Statute (Group 3).15 It has been highlighted that with the growing—and apparently ­irreversible— universality of the United Nations the special procedures allowing non-member States to appear before the Court are of very little interest today. The Court itself has remarked that “inasmuch as almost all States are today parties to the Statute of the Court, it is in general only the [jurisdiction ratione materiae] which requires to be considered.”16 However, no examination of the question of access before the ICJ would be complete if groups 2 and 3 above were ignored. These situations will therefore be discussed presently, after a brief excursion on the contrast between the concepts of access and jurisdiction. 14  Dupuy, “Article 34”, MN 18–25, pp. 554–556. On the implications of granting locus standi to international organizations before the ICJ see Chapter IV. B. i. of the 2005 Report by C. Romano for the International Law Association’s American Branch (ABILA Committee on Intergovernmental Settlement of Disputes, “Reforming the United Nations: What About the International Court of Justice”, Chinese JIL, vol. 5 (2006), pp. 53–59). See also J. Sztucki, “International Organizations as Parties to Contentious Proceedings before the International Court of Justice?”, in A.S. Muller, D. Raic & J. Thuranszky (Eds.), The International Court of Justice. Its Future Role after Fifty Years (1997), pp. 141–167; P.C. Szasz, “Granting International Organizations Ius Standi in the International Court of Justice”, ibid., pp. 169–188; I. Seidl-Hohenveldern, “Access of International Organizations to the International Court of Justice”, ibid., pp. 189–203; T. Treves, “International Organizations as Parties to Contentious Cases: Selected Aspects”, in L. Boisson de Chazournes et al (Eds.), International Organizations and International Dispute Settlement: Trends and Prospects (2002), pp. 37–46. For the conditions under which international organizations take part in contentious proceedings in order to furnish evidence, as an amicus curiae of sorts, see Chapter 8, d). 15  Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 430, para. 58. 16  Genocide Convention (Bosnia), Provisional Measures, Order of 8 April 1993, ICJ Rep. 1993, pp. 11–12, para. 14.

8

Chapter 1

Box # 1-1 Granting the individual access to the ICJ? 17 A recurrent subject in legal literature concerning the ICJ is that of the need to update the Statute in order to grant access to the Court to subjects of international law other than States. In a separate opinion appended to an advisory opinion issued by the Court in February 2012 judge Cançado Trindade presented a powerful defense of this proposition with regard to the individual, who, in his view is beyond any doubt a subject of contemporary international law. An excerpt of this opinion is reproduced below: THE EROSION OF THE INTER-STATE OUTLOOK OF ADJUDICATION BY THE ICJ 76. 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 the States, such as the individuals, did not mean a definitive answer 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. The question of access of individuals to international justice, with procedural equality, continued to occupy the attention of legal doctrine ever since, throughout the decades. Individuals and groups of individuals began to have access to other international judicial instances (. . .), reserving the PCIJ and later the ICJ only for disputes between States. 77. The dogmatic position taken originally in 1920, on the occasion of the preparation and adoption of its Statute, did not hinder the PCIJ to occupy itself promptly of 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 Opinion on the Jurisdiction of the Courts of Danzig, 1928—cf. infra, para. 88). Ever since, the artificiality of such dimension became noticeable and acknowledged, already at an early stage of the case law of the PCIJ.

17  In this and all subsequent boxes in this work all the footnotes appearing in the original have been omitted.

9

Access

78. The exclusively inter-State character of the contentieux before the ICJ has not appeared satisfactory at all. At least in some cases, pertaining to the condition of individuals, the presence of these latter (or of their legal representatives), in order to submit, themselves, their positions, would have enriched the proceedings and facilitated the work of the Court. One may recall, for example, the classical Nottebohm case concerning double nationality (Liechtenstein versus Guatemala, 1955), the case concerning the Application of the Convention of 1902 Governing the Guardianship of Infants, (The Netherlands versus Sweden, 1958), the cases of the Trial of Pakistani Prisoners of War (Pakistan versus India, 1973), of the Hostages (U.S. Diplomatic and Consular Staff ) in Teheran case (United States versus Iran, 1980), of the East-Timor (Portugal versus Australia, 1995), the case of the Application of the Convention against Genocide (Bosnia-Herzegovina versus Yugoslavia, 1996), and the three successive cases concerning consular assistance—namely, the case Breard (Paraguay versus United States, 1998), the case LaGrand (Germany versus United States, 2001), the case Avena and Others (Mexico versus United States, 2004). 79. In 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 of the litigating States in their relations inter se. Moreover, one may further recall that, in the case of Armed Activities in the Territory of Congo (D.R. Congo versus Uganda, 2000) the ICJ was concerned with grave violations of human rights and of International Humanitarian Law; in the Land and Maritime Boundary between Cameroon and Nigeria (1996), it was likewise concerned with the victims of armed clashes. More recent examples wherein the Court’s concerns have gone beyond the inter-State outlook include, e.g., the case on Questions Relating to the Obligation to Prosecute or Extradite (Belgium versus Senegal, 2009) pertaining to the principle of universal jurisdiction under the U.N. Convention against Torture, the Advisory Opinion on the Declaration of Independence of Kosovo (2010), the case of A.S. Diallo (Guinea versus D.R. Congo, 2010) on detention and expulsion of a foreigner, the case of the Jurisdictional Immunities of the State (Germany versus Italy, counter-claim, 2010), the case of the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia versus Russian Federation, 2011), the case of the Temple of Preah Vihear (Cambodia versus Thailand, 2011).

10

Chapter 1

80. The artificiality of the exclusively inter-State outlook of the procedures before the ICJ is thus clearly 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, including by a former President of the Court itself. It was recalled that “nowadays a very considerable part of international law” (e.g., law-making treaties) “directly affects individuals”, and the effect of Article 34(1) of the ICJ Statute has been “to insulate” the Court “from this great body of modern international law”. The ICJ remains “trapped by Article 34(1) in the notions about international law structure of the 1920s. (. . .) [I]t is a matter for concern and for further thought, whether it is healthy for the World Court still to be, like the international law of the 1920s, on an entirely different plane from that of municipal courts and other tribunals” 81. To the same effect, S. Rosenne expressed the view, 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”. The current practice of exclusion of the locus standi in judicio of the individuals concerned from the proceedings before the ICJ,—he added,—in addition to being artificial, could also produce “incongruous results”. It was thus highly desirable that that scheme be reconsidered, in order to grant locus standi to individuals in proceedings before the ICJ, as “it is in the interests of the proper administration of international justice that in appropriate cases the International Court of Justice should take advantage of all the powers which it already possesses, and permit an individual directly concerned to present himself before the Court, (. . .) ( Judgment 2867 of ILOAT, Advisory Opinion of 1 Feb. 2012, Separate Opinion of Judge Cançado Trindade, paras. 76–81)18

18  See further A.A. Cançado Trindade, The Access of Individuals to International Justice (2011).

11

Access

b)

Access and Jurisdiction

It is important to distinguish between the concepts of access to the Court and jurisdiction. In the first place, inasmuch as the jurisdiction of the Court in contentious cases depends always on State consent, the simple fact that a State has the capacity to stand before the Court does not make that State subject to the Court’s jurisdiction. The Court can adjudicate disputes between States only to the extent that those States agree to come before it for the settlement of those disputes. Hence, the fact that a State may have access or locus standi in judicio does not mean that it is legally bound to appear before the Court or that the Court has jurisdiction ratione personae over it, i.e. that it can adjudicate at all with respect to that State.19 The Court has confirmed that, as a direct consequence of the principle of consensual jurisdiction, in order for it to possess jurisdiction ratione personae—so it can be validly seised of a case concerning a given State—it is necessary that both elements concur, namely, access to the Court and accept­ ance of its jurisdiction. It stated that under its Statute, it does not automatically have jurisdiction over legal disputes between States and that therefore it can exercise jurisdiction only between States parties to a dispute “who not only have access to the Court but also have accepted the jurisdiction of the Court, either in general form or for the individual dispute concerned.”20 Furthermore, the Court has pointed out that of these two elements only that of jurisdiction is dependent on consent, because access is governed by legal rules whose operation is quite independent of the will of the parties: [i]t is the view of the Court that a distinction has to be made between a question of jurisdiction that relates to the consent of a party and the question of the right of a party to appear before the Court under the requirements of the Statute, which is not a matter of consent. The question is whether as a matter of law Serbia and Montenegro was entitled to seise the Court as a party to the Statute at the time when it instituted 19  The notions of “locus standi in judicio” and “jurisdiction ratione personae” are often treated as synonymous, but this is not entirely correct. For a fine analysis of the difference between them see the separate opinion of judge ad hoc Kreca in the Kosovo case (Serbia and Montenegro v. Canada), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, pp. 518–520. 20  Kosovo (Serbia and Montenegro v. Canada), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p. 266, para. 19; reaffirmed verbatim in Armed Activities II (DRC v. Rwanda), Provisional Measures, Order of 10 July 2002, ICJ Rep. 2002, p. 241, para. 57.

12

Chapter 1

proceedings in these cases. Since that question is independent of the views or wishes of the Parties, even if they were now to have arrived at a shared view on the point, the Court would not have to accept that view as necessarily the correct one. The function of the Court to enquire into the matter and reach its own conclusion is thus mandatory upon the Court irrespective of the consent of the parties and is in no way incompatible with the principle that the jurisdiction of the Court depends on consent. (Kosovo (Serbia and Montenegro v. Canada), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, pp. 444–445, para. 35)21

It follows that the provisions of the Statute governing access (Articles 34 and 35) and consent to jurisdiction ratione materiae (Articles 36 and 37) must be applied following a certain sequence. The Court would enquire into the applicability of the latter only if it has firstly ascertained that the former are applicable: [o]nly those States which have access to the Court can confer jurisdiction upon it. It is the view of the Court that it is incumbent upon it to examine first of all the question whether the Applicant meets the conditions laid down in Articles 34 and 35 of the Statute and whether the Court is thus open to it. Only if the answer to that question is in the affirmative will the Court have to deal with the issues relating to the conditions laid down in Article 36 of the Statute of the Court. (Kosovo (Serbia and Montenegro v. Canada), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 448, para. 45)22

Conversely, a State that has no access to the Court, because it does not belong to any of the categories discussed below, cannot validly consent to the Court’s jurisdiction and if it does so that action lacks any legal effects as far as the Court is concerned. In practice, as recognized by the Court, this translates in the fact that, whatever title of jurisdiction it might invoke, a State lacking

21  Emphasis in the original. Reaffirmed in Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 85, para. 102. 22  See also the declaration of judge Koroma in the same case (ICJ Rep. 2004, p. 481). For the opposite view see the joint declaration of Vice-president Ranjeva and judges Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal and Elaraby in the same case (ibid., p. 476, para. 2, in fine).

Access

13

access to the Court cannot properly seise the Court of a case “for the simple reason that [it] did not have the right to appear before the Court.”23 In a subsequent decision the Court reiterated that the question of access is by force precedent to that of jurisdiction ratione materiae and made the important point that it is a question that has to be examined by the Court in all cases, even if it is not raised by the parties. Thus, the Court has admitted in explicit terms that it is bound to enter ex officio into the question of access: The Court . . . considers it necessary to emphasize that the question whether a State may properly come before the Court, on the basis of the provisions of the Statute, whether it be classified as a matter of capacity to be a party to the proceedings or as an aspect of jurisdiction ratione personae, is a matter which precedes that of jurisdiction ratione materiae, that is, whether that State has consented to the settlement by the Court of the specific dispute brought before it. The question is in fact one which the Court is bound to raise and examine, if necessary, ex officio, and if appropriate after notification to the parties. Thus if the Court considers that, in a particular case, the conditions concerning the capacity of the parties to appear before it are not satisfied, while the conditions of its jurisdiction ratione materiae are, it should, even if the question has not been raised by the parties, find that the former conditions are not met, and conclude that, for that reason, it could not have jurisdiction to decide the merits. (Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ 2007, p. 94, para. 122)24

In the same case, the Court clarified that this dictum does not mean that it feels bound to refer to the question of access in each and every judgment it renders on preliminary objections. On the other hand, however, if the Court affirms its jurisdiction without discussing the question of access, it has to be presumed 23  Kosovo (Serbia and Montenegro v. Canada), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 448, para. 45. 24  In the subsequent case of the same name, this time between Croatia and Serbia, the Court confronted the issue of precedence between objections related to access and those related to jurisdiction. After contrasting the two cases, it concluded that while in the second case no question arose as to seisin so far as the applicant was concerned, it was also appropriate first to examine the issues relating to application of Article 35 of the Statute (Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep 2008, p. 433, para. 67).

14

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that it perceived that the requirements on access were satisfied: “If . . . the Court in a judgment on preliminary objections to jurisdiction rejects them and upholds jurisdiction, without saying anything on the question of access to the Court, the conclusion may be drawn that the Court has perceived the conditions on access to have been satisfied.”25 A final point in this regard recently made clear by the Court is that to determine whether the conditions of Article 35 are met in a given case constitutes in itself a finding on jurisdiction: Where the conditions of Article 35 are not met, the Court is without jurisdiction to adjudicate the dispute on the merits. (. . .) [t]he question of access . . . is . . . closely related to jurisdiction, inasmuch as the consequence is exactly the same whether it is the conditions of access or the conditions of jurisdiction ratione materiae or ratione temporis which are unmet: the Court lacks jurisdiction to entertain the case. It is always within the context of an objection to jurisdiction . . . that arguments will be raised before the Court regarding the parties’ capacity to participate in the proceedings (Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 432, para. 66 and p. 442, para. 87)

On the basis of these dicta, it can be concluded that a question concerning access is to be treated always as an aspect of the jurisdiction of the Court, so that a State prevailing itself of the rules in Articles 34 or 35 of the Statute will in fact be making an objection directed to the jurisdiction of the Court. c)

The Question of Standing26

As stated above, in order to become a party to a case a State has to fulfill two sine qua non conditions, namely (one) To possess access to the Court; and 25  Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, pp. 433–434, para. 68. The Court had already stated that a finding that it has jurisdiction to adjudicate upon a dispute “must as a matter of construction be understood, by necessary implication, to mean that the Court at that time perceived the respondent as being in a position to participate in cases before the Court” (Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ 2007, p. 99, para. 132). 26  G. Salvioli, “Problèmes de procédure dans la jurisprudence internationale”, RC, vol. 91 (1957-I), pp. 559–561; Scerni’s La Procédure, pp. 609–610; I. Diaite, “L’intéret a agir devant

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(two) To give (or to have given) its consent to the Court’s jurisdiction. But in addition to this it may be asked whether, as it happens in certain municipal legal systems, in order to possess standing to sue the State advancing a claim also has to show that it possesses a specific legal right or interest in the matter at issue. The question appears to arise exclusively in cases submitted by application, since in cases submitted by special agreement the very existence of this instrument evidences that each of the parties possesses such an interest and, further, that this is recognized by the other party. In such cases, it is highly unlikely that the Court would feel inclined to question this common will. The notion of standing is often—and erroneously—identified with that of access. In the sense that it is used in this work, to have access means that a State has a general procedural capacity to take part in litigation before the ICJ and is thus capable of becoming a party to any case, in the event that the jurisdiction of the Court is activated in the future. To have standing, in contrast, means that a given State is entitled to bring before the Court a specific claim or sets of claims, giving rise to judicial proceedings in which it will be facing other State or States. To follow the terminology used in some continental law systems, access would be identified with the capacity to sue in general or legitimatio ad processum, while standing would be the capacity to be a party to a specific litigation or legitimatio ad causam.27 The Statute is silent on the matter and the only occasion in which it makes reference to an “interest of a legal nature” is in Article 62, which provides that a third State that subjectively considers that it possesses such an interest and that it may be affected by the decision in a case to which it is not a party may request permission to intervene. On the basis of that provision it has been suggested that, if a third State has to show the existence of an “interest of a legal nature” in order to be admitted to intervene, a fortiori the States involved in the case in the condition of claimants must also show that they have such an interest in order to be able to act as parties to the litigation.28 However, the evolution of the procedural device of intervention in the Court’s law and practice has deprived this theory of much of its foundation, in particular because it is la CIJ”, Annales africaines (1968), pp. 37–52; K. Mbaye, “L’intéret pour agir devant la Cour international de Justice”, RC, vol. 209 (1988-II), pp. 223–346. 27  A. del Vecchio, “International Courts and Tribunals, Standing”, MN 2–3, in Max Planck EPIL. 28  This view was advocated by judge Winiarski in his dissenting opinion in the South West Africa, case (Preliminary Objections, ICJ Rep. 1962, pp. 455–456). Rosenne is of the opinion that in its decision in this case the majority of the Court rejected this view, at least by implication (Rosenne’s Law and Practice, vol. 3, p. 1212, note 49).

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now settled law that a State admitted to intervene under Article 62 does not, by that mere fact, become a party to the case.29 The first contentious case to come before the PCIJ is highly illustrative in this regard. The proceedings in the Wimbledon case were instituted by an application filed jointly by the United Kingdom, France, Italy and Japan against Germany, on the basis of Article 386, para. 1 of the Treaty of Versailles, which provided that in the event of violations of certain provisions of the Treaty, or of disputes as to the interpretation of them “any interested Power can appeal to the jurisdiction instituted for the purposes by the League of Nations”.30 It was not disputed that this jurisdiction was the PCIJ, but a preliminary question arose as to the admissibility of the application. In particular, the Court felt that it had to begin by determining whether proceedings could be instituted by those governments. The Court had no doubt that it could take cognizance of the application because it would suffice to observe for the purposes of the case “[t]hat each of the four Applicant Powers has a clear interest (“intérêt évident”) in the execution of the provisions relating to the Kiel Canal, since they all possess fleets and merchant vessels flying their respective flags.”31 The Court went on to state that, on that account, even though they could be unable to adduce a prejudice to any pecuniary interest, these four States would be covered by Article 386, para. 1 of the Treaty of Versailles, since they were clearly “interested powers” within the meaning of that provision. As for the current Court, the governing precedent appears to be a dictum included in the maligned decision in the second phase of the South West Africa cases, in which the Court took a firm stance on this question, albeit with a 7/7 vote and the casting vote of the President.32 At the preliminary objections phase of this case the question had arisen with regard to one of the objections made by the respondent. In its judgment upholding its jurisdiction the Court admitted that all the members of the League of Nations did possess a legal right or interest in the execution of the mandate for South Africa: “[t]he manifest scope and purport of the provisions of Article [7 of the Mandate] indicate that the Members of the League were understood to have a legal right or interest in the observance by the Mandatory of its obligations 29  The notion that a legal interest of a third State may have implications on the Court’s ability to exercise its jurisdiction has also featured in the case law concerning the absence of such State from the litigation, i.e. the so-called Monetary Gold doctrine (E. Brown Weiss, “Invoking State Responsibility in the Twenty-First Century”, AJIL, vol. 96 (2002), pp. 806– 808). For a full treatment see Chapter 14, f ). 30  Wimbledon, Merits, Judgment No. 1, 17 August 1923, PCIJ A 1, p. 20. 31  Ibid. 32  South West Africa, Second Phase, Judgment of 18 July 1966, ICJ Rep. 1966, p. 51, paras. 99–100.

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both toward the inhabitants of the Mandated Territory, and toward the League of Nations and its Members.”33 In the same decision the Court clearly recognized that the States members had “the right to take legal action” and “the right of invoking the compulsory jurisdiction against the Mandatory.”34 This question was discussed in more detail in the separate opinion of VicePresident Winiarski, who apparently entertained no doubts as to the existence of a legal right or interest on the part of the applicant being a legal requirement, based on a “general rule of procedure” that sometimes is expressed with the axiom “pas d’intérêt, pas d’action”: Th[is] aspect involves both substantive and procedural law: it is a question of whether the Court has jurisdiction to hear a case in which the Applicants have no individual legal interest which is in issue for them, as appears from the facts placed on record by the Applicants themselves. (. . .) The Applicants rely upon the jurisdictional clause in Article 7 of the Mandate which, according to the Opinion of 1950, “is still in force” and according to which the Union of South Africa is under an obligation to recognize as compulsory the jurisdiction of the Court for “any dispute whatever” relative to the interpretation or the application of the provisions of the Mandate. These words clearly do not mean any dispute whatsoever and still less any divergence of opinion whatsoever which a State might see fit to bring before the Court. It is a principle of international law that every conventional provision must be interpreted on the basis of general international law. The relevant words of Article 7 cannot be interpreted in such a way as to conflict with the general rule of procedure according to which the Applicant State must have the capacity to institute the proceedings, that is to say, a subjective right, a real and existing individual interest which is legally protected. “No interest, no action”: this old tag expresses in a simplified, but, on the whole, correct form the rule of all municipal law, but also of international law. (South West Africa, Preliminary Objections Dissenting Opinion of President Winiarski, ICJ Rep. 1962, pp. 449 and 455)

33  South West Africa, Preliminary Objections, Judgment of 21 Dec. 1962, ICJ Rep. 1962, p. 343 (emphasis added). 34  Ibid., p. 344. Unconnected to this, in a case decided the following year the Court stated in general terms that “[i]t is not the function of a court merely to provide a basis for political action if no question of actual legal rights is involved” (Northern Cameroons, Preliminary Objections, Judgment of 2 Dec. 1963, ICJ Rep. 1963, p. 37).

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However, in its highly polemic decision in the subsequent phase of this case the Court returned to the question of the legal right of the claimants, and began by drawing a distinction between the standing of a party before the Court, in general, and the standing of a claimant in regard to a given set of proceedings. The Court found that, while the former is an aspect of jurisdiction (and as such had been settled by the decision on preliminary objections), the latter belongs to the merits and is entirely dependent of the existence of a substantive “legal right or interest” regarding the subject-matter of the claim, which in turn is what confers a right of action to that State: To hold that the parties in any given case belong to the category of State specified in the clause,—that the dispute has the specified character,— and that the forum is the one specified,—is not the same thing as finding the existence of a legal right or interest relative to the merits of the claim. (. . .) It is a universal and necessary, but yet almost elementary principle of procedural law that a distinction has to be made between, on the one hand, the right to activate a court and the right of the court to examine the merits of the claim,—and, on the other, the plaintiff party’s legal right in respect of the subject-matter of that which it claims, which would have to be established to the satisfaction of the Court. In the present case, that subject-matter includes the question whether the Applicants possess any legal right to require the performance of the “conduct” provisions of the Mandate. This is something which cannot be predetermined by the language of a common-form jurisdictional clause such as Article 7, paragraph 2, of the Mandate for South West Africa. (. . .) In this connection the Court thinks it desirable to draw attention to the fact that a considerable proportion of the acceptances of its compulsory jurisdiction which have been given under paragraph 2 of Article 36 of the Statute of the Court, are couched in language similarly broad and unambiguous and even wider, covering all disputes between the accepting State and any other State (. . .) subject only to the one condition of reciprocity or, in some cases, to certain additional conditions such as that the dispute must have arisen after a specified date. It could never be supposed however that on the basis of this wide language the accepting State, by invoking this clause, was absolved from establishing a legal right or interest in the subject-matter of its claim. Otherwise, the conclusion would have to be that by accepting the compulsory jurisdiction of the Court in the widest terms possible, States could additionally create a legal right or interest for themselves in the subject-matter of any claim they chose to bring, and a corresponding answerability on the part of the

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other accepting State concerned. The underlying proposition that by conferring competence on the Court, a jurisdictional clause can thereby and of itself confer a substantive right, is one which the Court must decline to entertain. (. . .) In the light of these various considerations, the Court finds that the Applicants cannot be considered to have established any legal right or interest appertaining to them in the subject-matter of the present claims, and that, accordingly, the Court must decline to give effect to them. (South West Africa, Second Phase, Judgment of 18 July 1966, ICJ Rep. 1966, pp. 37, 39–41, 42, 51, paras. 60, 64–65, 73, 99)

The main strand of criticism leveled against this decision refers to the fact that with it the Court was reversing de facto one of its findings in the previous decision on preliminary objections in the same case, in which the Court—albeit with a thin majority of 8 votes to 7—had explicitly recognized that the applicants had locus standi in the case. It is hard not to agree with the proponents of that criticism, inasmuch as in that initial judgment the Court had clearly recognized that all States members of the League did have a legal interest in the execution of the Mandate. For present purposes, however, it is submitted that the disputed matter in this case was not the general question whether Liberia and Ethiopia were bound to establish to the Court’s satisfaction a legal right or interest appertaining to them in the subject-matter of the case, but rather the specific question whether they had already done so, as reflected in the Court’s earlier decision on jurisdiction. Quite apart from the storm of criticism that this decision attracted—mainly on political grounds—erudite commentators on the work of the Court appear to be unanimous in considering as established law that in order to have its day at court the applicant State is under an obligation to establish what has been variously termed as “some direct concern in the outcome of the case,”35 “some involvement giving rise to a direct interest in the subject matter of the claim”36 or “a subjective right involved.”37

35  Rosenne’s Law and Practice, vol. 3, p. 1213. 36  Ch.F. Amerasinghe, Jurisdiction of International Tribunals (2003), p. 228. For a more guarded view see F. Matscher, “Standing before International Courts and Tribunals”, in R. Bernhardt (Ed.), Encyclopedia of Public International Law (1992), vol. 4, pp. 595–596. 37   M. Benzing, “Community Interests in the Procedure of International Courts and Tribunals”, LPICT, vol. 5 (2006), p. 376.

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An alternative take on this question that presents interest is that of judge Morelli, who in the Northern Cameroons case advanced the thesis that the concept of “legal interest” has no role to play in international judicial proceedings, given that what is material in international litigation is the existence of a dispute between the parties. Since, according to the classic Mavrommatis definition, a dispute always involves “a conflict of legal views or interests between two persons,”38 once it has been demonstrated that a dispute does exist between two or more States, and provided that there is a valid title of jurisdiction available, any of them can bring the dispute before the Court and is excused to show that it possesses a legal interest in the question forming its subject-matter. It is worth quoting in full the pertinent passages of this opinion: Once it has been established that there is a dispute, there is no point, in my view, in raising the question of whether the Applicant has an interest, by reference to the principle recognized in certain municipal legal systems according to which it is necessary to have an interest in order to have a right of action. It should be observed that the interest on which a right of action depends in municipal law is not a substantive interest in connection with the actual merits of the dispute. It is on the contrary an interest of a purely procedural nature: an interest in obtaining a decision on the merits. In the legal systems to which I have referred this type of interest has a very important role; it is indeed a condition for an action. This is very readily explicable if it is borne in mind that in general such systems make no use of the concept of dispute. It is on the contrary on the concept of dispute that international proceedings and, in particular, proceedings before the Court, are based. This Court cannot exercise its function in contentious proceedings if a dispute does not exist between the parties. Clearly a dispute implies a reference to a (real or at least supposed) conflict of interests and hence to substantive interests possessed by the parties. But it has already been observed that substantive interest is something other than the procedural interest which is required by municipal law in order to have a right of action. This latter interest is an interest in securing a decision on the merits. In the case of an international dispute, if such a dispute exists (and it has already been said that the existence of a dispute constitutes in itself a condition on which the possibility of a decision on the merits depends) it is clear that in any case each party has an interest in the settlement of the dispute. The interest in securing a decision on the merits is in re ipsa, because 38  See Box # 2-5.

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it is a necessary consequence of the very existence of a dispute. It is thus apparent that the concept of interest in bringing an action has no place of its own in the field of international proceedings. (Northern Cameroons, Preliminary Objections, Separate Opinion of Judge Morelli, ICJ Rep. 1963, pp. 132–133)39

This view is certainly cogent and if it is accepted the conclusion is that the concept of legal interest as a condition to have standing will simply have no role to play in litigation before the ICJ, as long as there is a genuine dispute in existence. If, for instance, the dispute before the Court concerns a case of diplomatic protection, the State of nationality of the individual claiming redress must be presumed to possess that interest and if the case revolves around the interpretation or application of a treaty the same may be said of any State that has the condition of being a party to it.40 Concerning the first example, in the celebrated decision in the Barcelona Traction case in which the Court coined the concept of obligations erga omnes—widely interpreted as a revirement de jurisprudence in relation with the decision in South West Africa—41 it stated that the obligations of a State 39  Along the same lines, judge Wellington Koo stated in the same case that: “[a]n international dispute, just as a cause of action in municipal law, must embody or imply the existence of a legal right or interest at issue in order to be justiciable.” (Separate Opinion of Judge Wellington Koo, ICJ Rep. 1963, p. 44, para. 13). For the application of the “elusive” concept of cause of action in international litigation see J. Crawford & A. Pellet, “Anglo Saxon and Continental Approaches to Pleading Before the ICJ”, in I. Buffard et al. (Eds.), International Law between Universalism and Fragmentation, Festschrift in Honour of Gerhard Hafner (2008), pp. 842–851. 40  In a case like this all the States parties to the treaty may be said to possess what the Court called in the Obligation to Prosecute or Extradite case “obligations erga omnes partes” (Merits, Judgment of 20 July 2012, paras. 68–70). Several members of the Court took issue with this notion (Ibid., Separate Opinion of Judge Skotnikov, paras. 10–22; Dissenting Opinion of Judge Xue, paras. 13–23; Dissenting Opinion of Judge ad hoc Sur, paras. 26–46). Judge Donoghue did not disagree with the majority’s analysis but cautioned that this may involve questions of substantive law and not merely aspects of admissibility, which only entail secondary rules (Declaration of Judge Donoghue, paras. 8–17). For a comment see Bordin’s Procedural Developments, LPICT, vol. 12 (2013), pp. 94–100. The concept of “obligations erga omnes parties” had already made an appearance in the work of the International Law Commission on the Law of State Responsibility (ILC Yearbook (2001), vol. II, Part 2, p. 322, Commentary to Article 48, para. (6)). 41  The expression is by H. Thirlway, “Injured and Non-Injured States before the International Court of Justice”, in M. Ragazzi (Ed.), International Responsibility Today-Essays in Memory of Oscar Schachter (2005), p. 315.

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towards the international community as a whole are not only the concern of all States, but “[i]n view of the importance of the rights involved, all States can be held to have a legal interest in their protection.”42 The Court contrasted that situation with classic cases of diplomatic protection, in which “[i]t cannot be held, when one such obligation in particular is in question, in a specific case, that all States have a legal interest in its observance. In order to bring a claim in respect of the breach of such an obligation, a State must first establish its right to do so.”43 In the words of J. Dugard: “[t]his obiter dictum was generally construed as a repudiation of the 1966 judgment and as an indication that a litigant State would no longer be required to prove a “special” or national interest in the subject-matter of its claim where an obligation of concern to all states— an obligation erga omnes—was involved.”44 It follows that, a contrario, when no obligation erga omnes is at stake, a litigant State would be required to prove a legal right or interest in the subject-matter of the claim and if the case concerns diplomatic protection this would be done via the requirement of nationality. Judge Morelli’s stance was later criticized by judge De Castro, in his dissenting opinion in the Nuclear Tests cases, in which the respondent was not appearing.45 This opinion contains a powerful defense of the proposition that the existence of a legal interest by the claimant is a requirement for the success of an application, but in this case, unlike the case of judge Winiarski, as a condition of admissibility rather than one of jurisdiction.46 It is important to recall that in this case the Court itself had already made a brief mention to this question, when in its order on provisional measures—in which it also decided 42  Barcelona Traction, Second Phase, Judgment of 5 Feb. 1970, ICJ Rep. 1970, p. 32, para. 33. Emphasis added. 43  Ibid., p. 32, para. 35. The Court invoked here its advisory opinion in the Reparation for Injuries case, in which it had stated in general terms that “[o]nly the party to whom an international obligation is due can bring a claim in respect of its breach (Advisory Opinion of 11 April 1949, ICJ Rep. 1949, pp. 181–182). 44  J. Dugard, “1966 and All That. The South West Africa Judgment Revisited in the East Timor Case”, African JICL, vol. 8 (1996), p. 554. 45  Nuclear Tests (Australia v. France), Judgment, Dissenting Opinion of Judge De Castro, ICJ Rep. 1974, p. 385, note 1. 46  Similarly, in a joint dissenting opinion in the same case several judges referred to the question of “legal interest” as an aspect of the admissibility of the application. In this opinion the view was expressed that such a question was for the merits and that it could not “be separated from the substantive legal issue of the existence and scope of the alleged rule of customary international law.” (Ibid., Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock, ICJ Rep. 1974, p. 370).

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that the first round of written pleadings should be addressed to the questions of jurisdiction and admissibility—it stated that “it cannot be assumed a priori that [the claims formulated by the applicant] fall completely outside the purview of the Court’s jurisdiction, or that the Government of Australia [New Zealand] may not be able to establish a legal interest in respect of these claims entitling the Court to admit the Application.”47 It is also useful to take into account that judge De Castro’s analysis is primarily based on the premise that the Court’s jurisdiction over the cases was based exclusively on the General Act of Geneva, an instrument that in its Article 17 states that the disputes to be submitted to the Court are those “[d]isputes with regard to which the parties are in conflict as to their respective rights.” The pertinent excerpts of judge De Castro’s opinion are as follows: (. . .) The question is whether the Applicant, in its submissions, has or has not asserted a legal interest as basis of its action. At the preliminary stage contemplated by the Order, the Court has first to consider whether the Applicant is entitled to open the proceedings (legitimatio ad processum, Rechtsschutzanspruch), to set the procedural machinery in motion, before turning to examination of the merits of the case. (. . .) The idea of legal interest is at the very heart of the rules of procedure (cf. the maxim “no interest, no action”). It must therefore be used with the exactitude required by its judicial function. The General Act affords a good guide in this respect: it distinguishes between “disputes of every kind” which may be submitted to the procedure of conciliation (Art. l), the case of “an interest of a legal nature” in a dispute for purposes of intervention (Art. 36), and “all disputes with regard to which the Parties are in conflict as to their respective rights” (Art. 17); only the latter are disputes appropriate to judicial settlement, and capable of being submitted for decision to the Permanent Court of International Justice in accordance with the General Act. (. . .) if, as appears to me to be the case, the Court’s jurisdiction in the present case is based upon Article 17 of the General Act and not on the French declaration of 1966, the Application is not admissible unless the Applicant shows the existence of a right of its own which it asserts to have been violated by the act of the Respondent. (Nuclear Tests, Dissenting Opinion of Judge De Castro, ICJ Rep. 1974, pp. 384–387)

47  Nuclear Tests, Interim Protection, Order of 22 June 1973, ICJ Rep. 1973, p. 103, para. 23 and p. 140, para. 24, emphasis added.

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It is suggested that this view may have its merit but it is limited only to disputes brought before the Court under the General Act of Geneva and falling under the markedly restrictive definition provided for in Article 17 of that treaty. For all the remainder disputes, Judge Morelli’s stance appears to be more in keeping with the nature and the structure of international litigation, in particular inter-State litigation before the ICJ. d)

States Parties to Cases

Every State of the world is in principle entitled to become a party to contentious proceedings before the International Court of Justice.48 But the Court is an organ of the United Nations and therefore it is only natural that the formal link that a State has with this organization plays a role with regard to the actual granting of access to the Court. On the other hand, even States who at a given moment are not members of the UN or parties to the Court’s Statute can in certain circumstances be granted access and become engaged in litigation. There are therefore three circles or groups of States that have primary access, namely, (1) States that are members of the UN and therefore are ipso facto parties to the Statute; (2) States that are parties to the Statute without being members of the Organization; and (3) States who without even being parties to the Statute can still become parties to proceedings before the Court. These will be discussed below.

Group 1: Members of the United Nations and Parties to the Statute (Statute, Article 35, Para. 1) Paragraph 1 of Article 35 neatly provides that “The Court shall be open to the States parties to the present Statute.” Therefore, the States that have full and unfettered access to the Court are the members of the United Nations, for according to Article 93, para. 1 of the Charter all members of the Organization are ipso facto parties to the Statute. At the time of writing a total of 193 States

48  It is normally understood that this refers to fully independent States, but there have always been special cases that defy all attempts at categorization, such as the British Dominions at the time of the PCIJ or Byelorussia, Ukraine and The Philippines at the time of the creation of the UN. Similar situations can still occur today, like in the case of the Cook Islands and Niue, entities that have a special relationship with New Zealand. For a provocative commentary on the limits of Article 34 see S. Rosenne, “Lessons of the Past and Needs of the Future”, in UNITAR Colloquium, pp. 485–487.

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belong to this category, in which virtually every independent State who is a member of the international community can be found. In this context, it is customary to devote some space to discussing the questions of recognition of States and governments, an aspect of general international law that is still somewhat obscure. The recognition of statehood appears to pose no special problems, since it is highly improbable that the Court would be called to consider if a State already granted membership of the United Nations is or is not a sovereign State with a view to determine if the rules on access to it are applicable.49 But in a case in which there were doubts as to the membership of a given State to the United Nations the Court verified that there was no doubt that the State in question was “a State for the purpose of Article 34, para. 1, of the Statute.”50 By the same token, recognition of States may play a role when the legal condition of a given State vis-a-vis the United Nations is called into question, as the case of the former Yugoslavia dramatically illustrated some years ago. Indeed, one of the preliminary objections filed by Serbia and Montenegro in the Genocide Convention (Bosnia) case was partly based on the fact that the applicant and the respondent “did not recognize one another and the conditions necessary to found the consensual basis of the Court’s jurisdiction were therefore lacking.”51 The Court merely took note that at the time it rendered its decision this situation “no longer obtain(ed),” since the signature of the Dayton-Paris Agreement had brought about the mutual recognition of all the States of the former Yugoslavia. On the matter of jurisdiction, the Court relied heavily on the fact that both States appeared to be parties to the Genocide Convention at the time of seisin and found that it did not need to settle the question of the effects of recognition or non-recognition on the contractual ties between the parties to a multilateral treaty.52 49  In its first advisory opinion the Court remarked that statehood is one of the conditions to apply for the admission to the United Nations (Admission to the UN, Advisory Opinion of 28 May 1948, ICJ Rep. 1948, p. 62). 50  Kosovo (Serbia and Montenegro v. Canada), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 448, para. 45. For a commentary see E. Lauterpacht, Aspects of the Administration of International Justice (1991), pp. 59–60, note 1. Along the same lines, in a subsequent decision in a separate case also involving the former Yugoslavia, the Court remarked that it was “[n]either disputed nor disputable” that both, Croatia and Serbia were “States for purposes of Article 34, paragraph 1” (Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 430, para. 59). 51  Genocide Convention (Bosnia), Preliminary Objections, Judgment of 11 July 1996, ICJ Rep. 1996, pp. 612–613, para. 25. 52  Ibid., p. 613, para. 25.

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The recognition of governments may present more problems. It is possible to think of the event of a revolution or a civil war giving rise to a new ­government in a State that is a party or is about to become a party to a case before the Court. In such a case, it may be wondered what would happen if the other party does not recognize the government of the former and on that basis refuses to appear before the Court. In such event, the Court might be forced to consider the legal implications of the recognition—or the lack of it—on the locus standi of the State concerned. In the Genocide Convention (Bosnia) case the Court also touched briefly upon the matter, but this will be discussed in the chapter concerning the institution of proceedings.53 A hypothetical case considerably more complex is that of two governments who dispute the international representation of a single State, as it nearly happened with regard to Spain in the Borchgrave case, before the PCIJ.54 A different aspect which is not devoid of interest is that of the withdrawal, suspension and expulsion of States members of the United Nations. As it is well known, the Charter is silent on the first of these questions and contains only succinct rules on the second and the third (Articles 5 and 6). In general terms it may be though that under the ipso facto rule contained in Article 93, para. 1 of the Charter the institutional connection existing between the Court and the Organization is so strong that when a State ceases to be a member of the latter—either because it withdraws from the Organization or because it is expelled from it—immediately ceases to be a party to the Statute. In such a case, in order for the Court to be able to exercise its jurisdiction with regard to that State it would be necessary that it enters afresh into one of the special arrangements foreseen in Articles 93, para. 2 of the Charter or 35, para. 2 of the Statute. In other words, if a State leaves Group 1, it can come before the Court only if and when it enters Groups 2 or 3. The situation is slightly different as regards to suspension, given that this institution operates in a rather limited manner. According to Article 5 of the Charter, the suspension of a member State only affects the “exercise of the rights and privileges of membership,” an expression that appears to leave intact that State’s obligations and duties under the Charter and the Statute and 53  See Box # 5-2. 54  Borchgrave, Preliminary Objections, Judgment of 6 Nov. 1937, PCJI A/B 72, p. 158. The case was submitted to the Court by means of a special agreement between Spain and Belgium and it was discontinued by common agreement after the Court rendered a decision on jurisdiction (Order of 30 April 1938, PCIJ A/B 73, p. 3). All these procedural actions were taken in the middle of the Spanish Civil War. See on this Hambro, “The Jurisdiction. . .”, pp. 154–157.

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towards both the Organization and its member States. It has been said, therefore, that a suspended State would not be in a position to bring a case before another State but it would be bound to appear if a case is brought against it, but in such an anomalous case the Court could refrain from dealing with the case on the basis of propriety.55 The situation is far from clear and it has not arisen thus far before the Court.

Group 2: States Not Members of the United Nations that Become Parties to the Statute (Charter, Article 93, Para. 2) These are States that would become parties to the Statute of the Court without becoming members of the United Nations, “on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.” (Article 93, para. 2 of the Charter). No State exist today belonging to this category, but in the past these conditions have always been the same, namely: (a) A general acceptance of the Statute; (b) An express commitment of the obligations derived from the condition of member according to Article 94 of the Charter and (c) A commitment to contribute to the expenses of the Court in a scale to be fixed by the General Assembly.56 States that have belonged to this group, before their admission to the United Nations, are Japan, San Marino, Liechtenstein, Nauru and Switzerland. It is noteworthy that before being admitted to the United Nations the last three were parties to cases before the Court.

Group 3: “Other States” to Which the Court Shall Be Open (Statute, Article 35, Para. 2) These are States that are neither members of the United Nations nor parties to the Statute and yet are granted access to Court by virtue of an ad hoc arrangement foreseen in Article 35, para. 2 of the Statute. Under this provision it is for the Security Council and “subject to the special provisions contained in treaties in force,” to establish the conditions for access, with the important limitation that “in no case shall such conditions place the parties in a position of inequality before the Court.”

55  Rosenne, “Law and Practice. . .”, vol. 2, p. 625; Zimmerman, “Article 35”, MN 42, p. 577. On the concept of propriety with regard to contentious cases see Chapter 2, c). 56  These conditions were laid down for the first time by AG Resolution 91 (I) of 11 December 1946, concerning a request by Switzerland (ICJ Yearbook (2009–2010), p. 120). They have been identical in all subsequent cases.

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These conditions are laid down in resolution 9 (1946), adopted by the Security Council on 15 October 1946.57 According to the terms of this r­ esolution, the Court shall be open to States that are not parties to the Statute upon the condition that they deposit a declaration by which they accept the jurisdiction of the Court and undertake to comply in good faith with the decision of the Court and to accept all the obligations of a member of the organization under Article 94 of the Charter. If the declaration is of a general character and is made under Article 36, para. 2 of the Statute—the Optional Clause—it will not be opposable to the States who have already made the same declarations, unless there is an explicit agreement to the contrary. No State exist today belonging to this category but in the past the following States have had such declarations in force at some point (and on that basis some of them have appeared before the Court): Albania (1947); Italy (1953 and 1955); Cambodia (1952); Ceylon (1952); Finland (1953 and 1954); Japan (1951); Laos (1952); Germany (several years) and Vietnam (1952).58 An important feature of this resolution is that on its face it would appear to grant access to the Court to entities the statehood of which has not been previously ascertained by the political organs of the United Nations, i.e. the Security Council and the General Assembly. Theoretically, all that one such entity needs to do in order to acquire procedural capacity before the Court is to deposit with the Registrar of the Court the declaration provided for in operative paragraph 1 and with this it would satisfy the conditions set forth in the resolution and in Article 35, para. 2. However, the resolution clearly presupposes that only States in the true meaning of the sense are authorized to deposit such a declaration and a possible remedy against this provisions being abused lies in its operative paragraph 5, stating that “[a]ll questions as to the validity or the effect of a declaration made under the terms of this resolution shall be decided by the Court.”59 In addition, since Article 35, para. 2 is applicable subject to “the special provisions contained in treaties in force,” it must be concluded that this provi57  ICJ Acts and Documents, pp. 183–185; ICJ Yearbook (2009–2010), pp. 121–122. This resolution follows closely the terms of a resolution by the Council of the League adopted on 17 May 1922. For an analysis of the latter see Hudson’s PCIJ, pp. 386–387. 58  ICJ Yearbook (2009–2010), p. 122. 59  See for instance two curious situations reported in the Court’s Yearbook for the year 1966– 1967, in which the “Federal Government of Nagaland” and the “Mohawk nation of the Grand River” purported to submit declarations in conformity with SC Resolution 9 (1946). Since in both cases the Registrar declared himself to be “uncertain of the status of entities that had submitted documents,” he thought it right to lay the matter before the Court, which instructed him to inform the authors of these communications that they “did not call for any action.” (ICJ Yearbook (1966–1967), p. 88).

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29

sion foresees a special categories of cases, in which the applicant State is not bound to comply with the conditions established by the Security Council. As the Court itself remarked, “proceedings may validly be instituted by a State against a State which is a party to such a special provision in a treaty in force, but is not party to the Statute, and independently of the conditions laid down by the Security Council in its resolution 9 of 1946.”60

Box # 1-2 Yugoslavia and the question of access in the Genocide Convention and Kosovo cases61 The breaking up of the Socialist Federal Republic of Yugoslavia (SFRY) and the emergence of several entities as independent States as of 1992 came to the frontline at the ICJ in several contentious cases involving the Federal Republic of Yugoslavia (Serbia and Montenegro), the State who claimed to be the rightful successor to the SFRY. The first one, the Genocide Convention case, was brought to the Court in March 1993 by an application filed by BosniaHerzegovina. In the second group of cases, the Kosovo litigations, introduced in April 1999, Serbia and Montenegro was itself the applicant in separate proceedings against ten States members of NATO.62 In all these cases the jurisdiction of the Court was challenged on several grounds and the response of the

60  Genocide Convention (Bosnia), Provisional Measures I, Order of 8 April 1993, ICJ Rep. 1993, p. 14, para. 19. See also Muller’s Procedural Developments, LPICT, vol. 4 (2005), pp. 149–150, note 35. 61  For narratives see Muller’s Procedural Developments, LPICT, vol. 4 (2005), pp. 146–151; O. de Frouville, “Une harmonie dissonante de la justice internationale: les arrets de la Cour internationale de Justice sur les exceptions preliminaries dans l’affaire relative de la Liceite de L’emploi de la force”, AFDI vol. 50 (2004), pp. 337–369; S. Yee, “The Interpretation of “Treaties in Force” in Article 35 (2) of the Statute of the International Court of Justice”, in S. Yee, Towards an International Law of Co-Progressiveness (2004), pp. 59–84; Ch. Brown, “Access to International Justice in the Legality of Use of Force Cases”, Cambridge LJ, vol. 64 (2005), pp. 267 ff.; E. Lagrange, “La Cohérence de la chose jugée (L’Affaire du Génocide devant la CIJ)”, AFDI, vol. 53 (2007), pp. 1–42; S. Wittich, “Permissible Derogation from Mandatory Rules? The Problem of Party Status in the Genocide Case”, European JIL, vol. 18 (2007), pp. 591–618; Y.Z. Blum, “Was Yugoslavia a Member of the United Nations in the Years 1992–2000?”, AJIL, vol. 101 (2007), pp. 800–818; Muller’s Procedural Developments, LPICT, vol. 8 (2009), pp. 473–483. 62  Only eight of these cases proceeded to the preliminary objections phase, the cases against Spain and the United States having been summarily dismissed by the Court at the provisional measures phase on the basis of manifest lack of jurisdiction ((Kosovo (Yugoslavia v. Spain) (Yugoslavia v. USA), Orders of 2 June 1999, ICJ Rep. 1999, p. 761 and p. 916).

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Court was radically different, although it involved the construction and application of the same rule of the Statute, namely Article 35, para. 2, concerning States who are not members of the United Nations but can nevertheless be granted access. The question was briefly revisited by the Court in a third case, also referring to the application of the 1948 Genocide Convention, this time between Croatia and Serbia. To begin with, Yugoslavia underwent a substantial change in its position with regard to the basic questions of access to the Court and jurisdiction ratione personae, which was a reflection of the evolution of that country’s situation at the United Nations. When the Court started dealing with the first Genocide Convention case, the respondent, the Federal Republic of Yugoslavia, was claiming to be the right successor of the former SFRY, a claim that was explicitly rejected by the international community, as expressed by the political organs of the United Nations. But the important fact in this context is that Yugoslavia itself (Serbia and Montenegro) asserted that it was at the time both a member of the UN and a State party to the 1948 Genocide Convention. After a change of government occurring in 2000, Yugoslavia radically altered its position and decided to apply anew for membership to the UN, to issue a notification of succession with regard to several treaties, including the Genocide Convention, and to deposit a declaration accepting the Court’s jurisdiction under the Optional Clause. It was in these new circumstances that the Court had to deal with the objections to its jurisdiction formulated by the eight States who were acting as respondents in the Kosovo cases. As for the lack of consistency on the part of the Court mentioned above, it refers primarily to the manner it dealt with the application and interpretation of Article 35, para. 2 of the Statute. In 1993, at the provisional measures phase of the Genocide Convention (Bosnia) case, the Court took as a point of departure the fact that according to Article 35, para. 2 the special arrangement contemplated therein to grant access to the Court to States non-parties to the Statute was “subject to the special provisions contained in treaties in force.” It then examined this legal provision in the light of two questionable propositions, namely: (first) that the 1948 Genocide Convention could be taken to be one such treaty; and, (second) that both parties to the case were parties to that Convention. On the basis of these assumptions, the Court asserted that it had prima facie jurisdiction to indicate provisional measures of protection. At the subsequent

Access

preliminary objections phase, resolved in 1996, the Court ignored the question of access altogether and confined itself to verify that both parties to the case were deemed to be parties to the Genocide Convention at the date of the filing of the application. Some years later (2004), when it was dealing with the questions of jurisdiction in the group of cases where Yugoslavia was acting as applicant, the Court departed dramatically from this stance and completely reversed its reading of Article 35, para. 2. The Court undertook a detailed analysis of that provision (despite the fact that it was not even invoked by the applicant) and after reviewing its legislative story it came to the conclusion that the expression “treaties in force” applied only to treaties concluded at the time the original Statute of the PCIJ was drafted and therefore the 1948 Genocide Convention—­regardless of the status of Yugoslavia with regard to that Convention—could not be considered as falling under that provision. Therefore, the Court found that in these cases Yugoslavia lacked standing on the basis of Article 35, para. 2 of the Statute. The Court added that, as Yugoslavia was in any case not a member of the UN at the time of the filing of the application, it did not have access to the Court on the basis of Article 35, para. 1 either. (Kosovo (Serbia and Montenegro v. Canada), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 464, para. 90). These findings clash with the decisions on jurisdiction and access taken by the Court in the earlier Genocide Convention (Bosnia) case, not only the 1993 order on provisional measures, but also the 2003 decision on the application for revision of the judgment on preliminary objections submitted by Yugoslavia. In the latter the Court concluded with apparent firmness that the General Assembly resolution that refused to recognize the FRY as the successor of the SFRY “did not inter alia affect the FRY’s right to appear before the Court or to be a party to a dispute before the Court under the conditions laid down by the Statute” and that it did not affect either “the position of the FRY in relation to the Genocide Convention.” (Application for Revision, Genocide Convention (Bosnia), Preliminary Objections, Judgment of 3 Feb. 2003, ICJ Rep. 2003, p. 31, para. 70). And yet, just one year later the Court came to the equally firm conclusion that after all Yugoslavia did not possess the right to appear before the Court and lacked access under either paragraphs 1 or 2 of Article 35 of the Statute. The open contradiction of these findings with the previous stance adopted by the Court in the Genocide Convention (Bosnia) case was highlighted in a strongly worded joint declaration by six members of the Court. According to them:

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[t]he interpretation given in the present Judgment of Article 35, paragraph 2, of the Statute . . . appears to us to be at odds with the position previously adopted by the Court in its Order of 8 April 1993 . . . The Judgment thus goes back on decisions previously adopted by the Court, whereas it was free to choose the ground upon which to base them and was under no obligation to rule in the present case on its jurisdiction ratione personae. Moreover, this approach appears to leave some doubt as to whether Yugoslavia was a party, between 1992 and 2000, to the United Nations Genocide Convention. Such an approach could call into question the solutions adopted by the Court with respect to its jurisdiction in the case brought by Bosnia‑Herzegovina against Serbia and Montenegro for the application of the Genocide Convention. We regret that the Court has decided to take such a direction. (Kosovo (Serbia and Montenegro v. Canada), Preliminary Objections, Joint Declaration of Vice-president Ranjeva, Judges Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal and Elaraby, ICJ Rep. 2004, pp. 479–480, paras. 11–13)63

The last chapter in this convoluted tale took place in 2007, when the Court issued its decision on the merits in the Genocide Convention (Bosnia) case. Yugoslavia raised anew a jurisdictional objection based on the fact that, as it was now contending that it was not the continuator of the SFRY, it had not been a party to the Genocide Convention when the proceedings were instituted and it also lacked access to the Court because it was not then a party to the Statute either. The Court specified that when it found in its 1996 judgment that it had jurisdiction of the basis of the Genocide Convention it had also resolved indirectly the question of access, because the former finding must, as a matter of construction, be understood by necessary implication to mean that the Court at that time perceived the respondent as being in a position to participate in cases before the Court. Therefore, the question of access was covered by the force of res judicata as applied to the 1996 judgment and could not be reopened: In the view of the Court, the express finding in the 1996 Judgment that the Court had jurisdiction in the case ratione materiae, on the basis of Article IX of the Genocide Convention, seen in its context, is a finding which is

63  See also the strong criticism contained in the separate opinions of judges Higgins (ICJ Rep. 2004, pp. 487–488, para. 19); Kooijmans (ibid., pp. 491–493, paras. 6–11 and Elaraby (ibid., pp. 504–509).

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Access

only consistent, in law and logic, with the proposition that, in relation to both Parties, it had jurisdiction ratione personae in its comprehensive sense, that is to say, that the status of each of them was such as to comply with the provisions of the Statute concerning the capacity of States to be parties before the Court. (. . .) The determination by the Court that it had jurisdiction under the Genocide Convention is thus to be interpreted as incorporating a determination that all the conditions relating to the capacity of the Parties to appear before it had been met. (Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ 2007, p. 99, para. 133)

In other words, under Article 35, para. 2 of the Statute Yugoslavia (Serbia and Montenegro) had had access to participate as a respondent in the Genocide Convention (Bosnia) case, introduced in March 1993, but six years later, in April 1999, it lacked that access—on the basis of either paragraph 1 or 2 of Article 35—to participate as an applicant in the Kosovo cases. In its subsequent decision on preliminary objections in the Genocide Convention (Croatia) case, the question of the capacity by the respondent to participate in the proceedings arose again. On one hand, the Court reiterated that, on the basis of its own conduct, Serbia/Yugoslavia had been a party to the Convention since 1992 and quoted with approval its findings to the same effect in 1993 (Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 453, para. 114). On the other hand, for the Court, its 1996 decision on preliminary objections in the Bosnia case did not “of itself have any authority as res judicata in the present case” and, for that reason, the question of capacity had to be examined de novo, in the context of this new dispute. On this occasion the Court decided to consider the question of the capacity of Yugoslavia to appear before the Court exclusively under paragraph 1 of Article 35 of the Statute and disregarded entirely the eventual application of paragraph 2 of the same provision (Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 444, para. 92). This only adds to the inconsistent jurisprudence described above, for it means that, according to the Court, in 1999, the same year at which Yugoslavia was found to have lacked access before the Court as an applicant (in the Kosovo litigations), it nevertheless possessed that access when summoned as a respondent.64

64  Y.Z. Blum, “Consistently Inconsistent: The International Court of Justice and the Former Yugoslavia (Croatia v. Serbia)”, AJIL, vol. 103 (2009), pp. 264–271.

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Finally, Article 41 of the Rules of Court, dealing with the institution of proceedings, is pertinent in this context, because it provides that when the State instituting proceedings belongs to this group it has to deposit such declaration “unless the latter has previously been deposited with the Registrar.” The same provision foresees that “if any question of the validity or effect of such declaration arises, the Court shall decide.” There has been some discussion on whether this rule applies when the State belonging to Group 3 is not an applicant but a respondent—or when proceedings are instituted not by application but by notification of a special agreement—but the answer appears to be in the affirmative in both cases for otherwise the scope of application of Article 35, para. 2 would be significantly restricted.65 e)

Parties to Cases: Legal and Practical Implications

When the two conditions of access and jurisdiction are fulfilled the Court can entertain proceedings brought either by mutual agreement or by any of them against the other or the others, and they acquire the legal condition of parties to the case as of the moment of seisin. Hence, in order for the Court to be properly seised, all that is needed is that the act of institution of proceedings—a unilateral application or the notification of a special agreement, as the case may be—disclose that the States concerned possess access and that they have accepted the Court’s jurisdiction in any form. A State becomes a party to a case as soon as a case in which it is involved is instituted in a regularly manner. This is attested by Article 1 of a Resolution adopted in 1991 by the Institut de Droit International on the matter of non-appearance, according to which: Each State entitled under the Statute to appear before the Court and with respect to which the Court is seized of a case is ipso facto, by virtue of the Statute, a party to the proceedings, regardless of whether it appears or not.66 65  Zimmerman, “Article 35”, MN 46–47, p. 578. In a recent decision the Court mentioned in passing the disputed question “[w]hether Article 35, paragraphs 1 and 2, of the Statute apply equally to applicants and to respondents,” but found that it did not have to settle it for the purposes of that case (Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 102, para. 141). For an extensive analysis of the question see the separate opinion of judge Abraham in the Genocide Convention (Croatia) case (Preliminary Objections, ICJ Rep. 2008, pp. 526–538, paras. 8–44). 66  Yearbook of the Institute of International Law, vol. 64-II (1991), pp. 276 ff. See also G. Arangio-Ruiz, “Non-Appearance before the International Court of Justice, Final Report”, ibid., pp. 280 ff. On lack of appearance see Chapter 18, (ii).

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As for the consequences of a State having the status of a party, the first and most immediate is that, in a purely procedural sense, the State in question is entitled—or, indeed, bound—to engage in litigation before the Court within the legal framework applicable in contentious cases. This legal framework includes all those instances in which the Statute or the Rules of Court grant it special powers to deal with aspects of a case other than the merits, which comprise the incidental jurisdiction of the Court. This jurisdiction is statutory and is not based on the immediate consent of the parties, because every State who has access to the Court has accepted being bound by the Statute. Ultimately, the foundation for the Court’s incidental jurisdiction is also State consent, but in this case it is the general consent manifested by each State when accepting the Statute, an act through which it consents to the Court having the power to settle all matters of procedure that may arise in the course of a case. These matters include the Court’s powers to decide on its own jurisdiction and on the admissibility of the case, to indicate provisional measures, to deal with counter-claims, to pronounce on any request for permission to intervene that may be made by a third State and to decide on any eventual joinder of cases. Additional questions that also give rise to incidental proceedings that is better to classify as “derivative”—given that they take place after a decision on the merits has been rendered—are those concerning reparations, interpretation of judgments and revision of judgments.67 It will be noted that, with the obvious exception of the procedure of intervention, only the States possessing the juridical condition of parties to a case are entitled to activate incidental and derivative proceedings connected to that case. In the second place, there are several provisions in the constituent instruments of the Court that underline the legal consequences for a State of having the status of party to a case. The first and foremost is Article 59 of the Statute, according to which “the decision of the Court has no binding force except between the parties and in respect of that particular case.”68 With respect to the decisions of the Court, then, the full force of res judicata applies only to those States that the French version of that provision calls—perhaps more accurately—“les parties en litige.”69

67  On the scope of the Court’s incidental jurisdiction, see Chapter 2, g). 68  Emphasis added. 69  Incidentally, the use of this expression in the French version of Article 59 dispels any doubts that might exist as to whether that provision referred to the parties to the dispute, rather than to the parties to the proceedings before the Court. See Sir G. Fitzmaurice, “The Problem of the ‘Non-Appearing’ Defendant Government”, BYIL, vol. 51 (1980), pp. 98–99, note 1.

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Chapter 1

Box # 1-3 Effects of Article 59 on States parties to a case70 In the context of the application of Article 62 of the Statute, a chamber of the Court found that a third-State who is admitted to intervene does not, by that mere fact, become a State party to the proceedings. In its decision resolving on the request for permission to intervene by Nicaragua in the El Salvador/Honduras case, the chamber stressed that being a party to a case means for a State to be bound by the decision. Subsequently, in its decision on the merits in the same case, the chamber pointed out that the main consequence of having the status of a party to a case is that, under Article 59 of the Statute, the judgment becomes res judicata for that State, who is bound by it and “becomes entitled equally to assert the binding force of the judgment against the other parties.” Further, as the force of res judicata operates in both directions, a third State “cannot by its own unilateral act place itself in the position of a party, and claim to be entitled to rely on the judgment against the original parties.” [t]he pattern of international judicial settlement under the Statute is that two or more States agree that the Court shall hear and determine a particular dispute. (. . .) Those States are the “parties” to the proceedings, and are bound by the Court’s eventual decision because they have agreed to confer jurisdiction on the Court to decide the case, the decision of the Court having binding force as provided for in Article 59 of the Statute. Normally, therefore, no other state may involve itself in the proceedings without the consent of the original parties. (El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, p. 133, para. 95)

The terms on which intervention was granted, as stated in paragraph 102 of the 1990 Judgment, were that Nicaragua would not, as intervening State, become party to the proceedings. The binding force of the present Judgment for the Parties, as contemplated by Article 59 of the Statute of the Court, does not therefore extend also to Nicaragua as intervener. (. . .)

70  For a discussion on the general import of Article 59 see Chapter 10, f ).

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Access

The Chamber considers that it is correct that a State permitted to intervene under Article 62 of the Statute, but which does not acquire the status of party to the case, is not bound by the Judgment given in the proceedings in which it has intervened. As the Chamber observed in its Judgment of 13 September 1990: “the intervening State does not become party to the proceedings, and does not acquire the rights, or become subject to the obligations, which attach to the status of a party, under the Statute and Rules of Court, or the general principles of procedural law” (. . .). In these circumstances, the right to be heard, which the intervener does acquire, does not carry with it the obligation of being bound by the decision. The question however remains of the effect, if any, to be given to the statement made in Nicaragua’s Application for permission to intervene that it “intends to submit itself to the binding effect of the decision to be given”. In the Chamber’s Judgment of 13 September 1990, emphasis was laid on the need, if an intervener is to become a party, for the consent of the existing parties to the case, either consent ad hoc or in the form of a pre-existing link of jurisdiction. This is essential because the force of res judicata does not operate in one direction only: if an intervener becomes a party, and is thus bound by the judgment, it becomes entitled equally to assert the binding force of the judgment against the other parties. A nonparty to a case before the Court, whether or not admitted to intervene, cannot by its own unilateral act place itself in the position of a party, and claim to be entitled to rely on the judgment against the original parties. In the present case, El Salvador requested the Chamber to deny the permission to intervene sought by Nicaragua; and neither Party has given any indication of consent to Nicaragua’s being recognized to have any status which would enable it to rely on the Judgment. The Chamber therefore concludes that in the circumstances of the present case, this Judgment is not res judicata for Nicaragua. (El Salvador/Honduras, Merits, Judgment of 11 Sept. 1992, ICJ Rep. 1992, pp. 609–610, paras. 421–424)

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The second of these provisions is Article 94 of the Charter of the United Nations. Paragraph 1 of it lays down a peremptory obligation for each Member of the Organization to comply with the decision of the Court “in any case to which it is a party,” and paragraph 2 grants it the possibility of seeking a remedy from the Security Council “if any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court.” This is a subjective right which is bestowed exclusively upon “the other party” to the case, which shows the cardinal importance that having that condition may possess for States at a given moment. Thirdly, a State party to a case remains subject to “the obligations, which attach to the status of a party, under the Statute and Rules of Court, or the general principles of procedural law”—including the obligations derived from Article 59 of the Statute and 94 of the Charter—even if it chooses not to appear before the Court or if it fails to defend its case. Article 53 of the Statute spells the consequences of a State taking the attitude of a non-appearing party. This will be discussed later in this work, but for the time being it suffices to register that the Court has clearly stated that States that choose not to appear before it or simply fail to defend their case do not lose the legal condition of being parties to the case and therefore remain subject to the said obligations.71 A final consequence of having the condition of party to a case is that, under Article 31 of the Statute, the State concerned acquires the right to influence the composition of the Court through the exercise of its right to appoint a judge ad hoc, in case there is no judge of its nationality upon the bench.72 Further Reading

General Works, Series and Treatises

Dubisson’s CIJ, pp. 134–144 Hudson’s PCIJ, pp. 383–404 Rosenne’s Law and Practice, vol. 2, pp. 605–655 Thirlway’s Law and Procedure, Part. 12, BYIL, vol. 72 (2001), pp. 57–60

71  Nicaragua, Merits, Judgment of 27 June 2006, ICJ Rep. 1986, p. 24, para. 28. This is also explicit in Article 4 of the 1991 Resolution by the Institut de Droit International, according to which: “Notwithstanding the non-appearance of a State before the Court in proceedings to which it is a party, that State is, by virtue of the Statute, bound by any decision of the Court in that case, whether on jurisdiction, admissibility, or the merits.” (see note 66, above). 72  See Chapter 4, c).

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Access P.M. Dupuy, “Article 34”, in Oxford Commentary, pp. 585–605 A. Zimmermann, “Article 35”, in Oxford Commentary, pp. 606–632



Articles and Monographs

M. Bedjaoui, “The International Organizations before the International Court of Justice: Appraisal and Future Prospects”, ICJ Yearbook (1994–1995), pp. 215–230 Ch. Chinkin & R. Mckenzie, “Intergovernmental Organizations as ‘Friends of the Court’ ”, in L. Boisson de Chazournes et al. (Ed.s), International Organizations and International Dispute Settlement: Trends and Prospects (2002), pp. 135–162 H. Thirlway, “Injured and Non-Injured States before the International Court of Justice”, in M. Ragazzi (Ed.), International Responsibility Today, Essays in Memory of Oscar Schachter (2005), pp. 311–328 S. Wittich, “Permissible Derogation from Mandatory Rules? The Problem of Party Status in the Genocide Case”, European JIL, vol. 18 (2007), pp. 591–618

Chapter 2

Jurisdiction From the standpoint of litigant States, jurisdiction is very likely the most important aspect of the work of the ICJ, as it refers to the conditions under which the Court is authorized to deal with disputes giving rise to contentious proceedings before it. It is also probably the one which has been more deeply researched and studied. Although questions of jurisdiction do not really belong to the realm of procedure, a study of the practice on litigation before the ICJ would be clearly incomplete without a brief excursion on the principal questions involved. However, since the focus of the present work is practice and procedure in litigation, the presentation of those questions attempted in this chapter will be necessarily sketchy. After discussing the scope and limits of the governing norm in the matter— the principle of consent—some theoretical questions are addressed, such as the definition of legal disputes and the distinction between jurisdiction and propriety, on the one hand, and between principal and incidental jurisdiction, on the other. The contours of the notion of the title of jurisdiction and the principal categories of titles of jurisdiction in existence will be also considered, as will questions of a more practical reach, such as the exhaustion of diplomatic negotiations and the mechanics of operation of the title of jurisdiction that is exclusively based on acts of procedure, better known as forum prorogatum. a)

The Principle of Consent1

International adjudication in general and adjudication by the ICJ in particular are based on a norm of international law to which the Court has referred indistinctly as the “general principle of consensual jurisdiction”2 or the “rule 1  Hudson’s PCIJ, pp. 410–411; Dubisson’s CIJ, pp. 145–154; Rosenne’s Law and Practice, vol. 2, pp. 549–570; E. Lauterpacht, Aspects of the Administration of International Justice, (1991), pp. 23–25; Fitzmaurice’s Law and Procedure, vol. 2, pp. 492–523; C. Tomuschat, “Article 36”, in Oxford Commentary, MN 19, pp. 647–648; Sir E. Lauterpacht, “Principles of procedure in International Litigation”, RC, vol. 345 (2009), pp. 437–484. 2  El Salvador/Honduras, Application to Intervene, Judgment of 13 Sep. 1990, ICJ Rep. 1990, p. 133, para. 94.

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of consent to jurisdiction.”3 According to this norm, the jurisdiction of every international tribunal always depends on the consent by States, and without that consent no international court or tribunal can hear any case involving them. The seminal formulation of this principle can be found in the PCIJ’s decision in the Mavrommatis case, in which the Court remarked that it always operates “bearing in mind the fact that its jurisdiction is limited, that it is invariably based on the consent of the respondent and only exists in so far as this consent has been given.”4

Box # 2-1 State consent to jurisdiction The Court has elaborated on the principle of consensual jurisdiction in several occasions. The following are well-known examples: Anglo-Iranian Oil Company: [t]he Court (. . .) must now derive its jurisdiction to deal with the merits of the case from the general rules laid down in Article 36 of the Statute. These general rules (. . .) are based on the principle that the jurisdiction of the Court to deal with and decide a case on the merits depends on the will of the Parties. Unless the Parties have conferred jurisdiction on the Court in accordance with Article 36, the Court lacks such jurisdiction. ( Jurisdiction, Judgment of 22 July 1952, ICJ Rep. 1952, pp. 102–103)

Aerial Incident (Israel v. Bulgaria): [t]he Court, in order to interpret Article 36, paragraph 5, should consider it in its context and bearing in mind the general scheme of the Charter and the Statute which founds the jurisdiction of the Court on the consent of States. It should, as it said in the case of the Monetary gold removed from Rome in 1943, be careful not to “run counter to a well-established principle of international law embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its consent.” (. . .) (Preliminary Objections, Judgment of 26 May 1959, ICJ Rep. 1959, p. 142)

3  East Timor, Judgment of 30 June 1995, ICJ Rep. 1995, p. 102, para. 29. 4  Mavrommatis Concessions ( Jurisdiction), Judgment No. 2, 30 August 1924, PCIJ A 2, p. 16.

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Qatar v. Bahrain: There is no doubt that the Court’s jurisdiction can only be established on the basis of the will of the Parties, as evidenced by the relevant texts. (. . .) ( Jurisdiction and Admissibility II, Judgment of 15 Feb. 1995, ICJ Rep. 1995, p. 23, para. 43)

Oil Platforms: The Court is always conscious that it has jurisdiction only so far as conferred by the consent of the parties. (Merits, Judgment of 6 Nov. 2003, ICJ Rep. 2003, p. 183, para. 42)

Armed Activities II (DRC v. Rwanda): (. . .) the Court, under its Statute, does not automatically have jurisdiction over legal disputes between States parties to that Statute or between other States entitled to appear before the Court; (. . .) the Court has repeatedly stated that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction; and (. . .) the Court therefore has jurisdiction only between States parties to a dispute who not only have access to the Court but also have accepted the jurisdiction of the Court, either in general form or for the individual dispute concerned (. . .); (Provisional Measures, Order of 10 July 2002, ICJ Rep. 2002, p. 241, para. 57)

Under the Court’s Statute th[e] jurisdiction [of the Court] is always based on the consent of the parties. ( Jurisdiction and Admissibility, Judgment of 3 Feb. 2006, ICJ Rep. 2006, p. 32, para. 64)

The requirement of consent is just an expression of the principle of sovereign equality of States and represents a logical consequence of the rule providing for the free choice of means for the settlement of international disputes, which in itself is a corollary to the principle of the peaceful settlement of disputes. Indeed, since there is no rule of international law compelling States to resort to a given procedure of peaceful solution, the unavoidable conclusion is that no State is bound to submit its disputes to the method of judicial settlement

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or, what amounts to the same, to consent that an international tribunal exercises jurisdiction with respect to it. This is clear in international instruments aimed at developing the basic rules embodied in Article 33 of the Charter, such as the 1970 Declaration on Principles of International Law5 or the 1982 Manila Declaration on the Peaceful Settlement of International Disputes.6 The principle of consent decisively influences every aspect of the Court’s practice and affects the development of the rules governing its procedure.7 For instance, with regard to third States, i.e. States not taking part in the litigation, a chamber of the Court stated as follows: (. . .) the pattern of international judicial settlement under the Statute is that two or more States agree that the Court shall hear and determine a particular dispute. Such agreement may be given ad hoc, by Special Agreement or otherwise, or may result from the invocation, in relation to the particular dispute, of a compromissory clause of a treaty or of the mechanism of Article 36, paragraph 2, of the Court’s Statute. Those States are the “parties” to the proceedings, and are bound by the Court’s eventual decision because they have agreed to confer jurisdiction on the Court to decide the case, the decision of the Court having binding force as provided for in Article 59 of the Statute. Normally, therefore, no other state may involve itself in the proceedings without the consent of the original parties. (El Salvador/Honduras, Application to Intervene, Judgment of 13 Sep. 1990, ICJ Rep. 1990, p. 133, para. 95)

Another important aspect of the principle of consent with regard to the position of third States is that the Court will refrain from exercising the jurisdiction that it possesses in a given case when the legal interests of such a third State “would not only be affected by a decision, but would form the very subjectmatter of the decision.” This is what is commonly called the “Monetary Gold doctrine,” as discussed in more detail in another section of the present work.8 Also with regard to third States, the Court said the following with regard to the impossibility for the Court to enjoin third States to appear before it: 5   Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, UNGA Resolution 2625 (XXV) of 24 Oct. 1970. Text in ILM, vol. 9 (1970), pp. 1292–1297. 6  UNGA Resolution 37/10 of 15 Nov. 1982. Text in ILM, vol. 21 (1982), pp. 449–455. 7  A. Riddell & B. Plant, Evidence before the International Court of Justice (2009), pp. 17, 20–21. 8  Chapter 14, f ).

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National courts, for their part, have more often than not the necessary power to order proprio motu the joinder of third parties who may be affected by the decision to be rendered; that solution makes it possible to settle a dispute in the presence of all the parties concerned. But on the international plane the Court has no such power. Its jurisdiction depends on the consent of States and, consequently, the Court may not compel a State to appear before it, even by way of intervention. (Phosphates in Nauru, Preliminary Objections, Judgment of 26 June 1992, ICJ Rep. 1992, p. 260, para. 53)9

In the East Timor case the Court remarked that the principle of consent is applicable regardless of the nature of the norm alleged to have been breached. Similarly, in the Armed Activities II (DRC v. Rwanda) case it further explained that this is applicable to both rights and obligations erga omnes and norms of jus cogens. (. . .) the Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature of the obligations invoked, the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case. Where this is so, the Court cannot act, even if the right in question is a right erga omnes. (East Timor, Judgment of 30 June 1995, ICJ Rep. 1995, p. 102, para. 29)

(. . .) the mere fact that rights and obligations erga omnes may be at issue in a dispute would not give the Court jurisdiction to entertain that dispute. (. . .) the Court deems it necessary to recall that the mere fact that rights and obligations erga omnes or peremptory norms of general international law ( jus cogens) are at issue in a dispute cannot in itself constitute an exception to the principle that its jurisdiction always depends on the consent of the parties. (Armed Activities II (DRC v. Rwanda), Jurisdiction and Admissibility, Judgment of 3 Feb. 2006, ICJ Rep. 2006, p. 32, para. 64, p. 52, para. 125)

9  See also Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 431, para. 88.

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Box # 2-2 Consent and jus cogens In his separate opinion in the Armed Activities II (DRC v. Rwanda) case, judge ad hoc Dugard applauded the Court’s decision to reject the contention that the principle of jus cogens “trumps” other rules of international law, such as that of the consensual basis of its jurisdiction. 3. The DRC has sought to invoke the jurisdiction of the Court on the basis of a number of arguments premised on the violation of peremptory norms ( jus cogens) by Rwanda. These arguments, in essence, may be reduced to two. First, the allegation of the violation of a norm of jus cogens per se confers jurisdiction on the Court. Secondly, where a violation of a norm of jus cogens is alleged, the respondent State cannot raise a reservation to the Court’s jurisdiction to defeat that jurisdiction. In such a case, jus cogens in effect trumps the reservation. Aware, no doubt, of the novelty and far-reaching implications of its argument, the DRC has urged the Court to act “boldly and creatively”. The Court has responded boldly by acknowledging the existence of norms of jus cogens but it has, rightly, declined the DRC’s invitation to go beyond this. Instead it has, correctly in my judgment, rejected the DRC’s submissions in holding that the fact that a dispute relates to compliance with a peremptory norm, such as genocide, cannot of itself provide a basis for the Court’s jurisdiction; and that a reservation to the Court’s jurisdiction cannot be held to be invalid on the ground that it violates a norm of jus cogens. In so finding the Court has emphasized that its jurisdiction is based on consent and that no peremptory norm requires States to consent to jurisdiction where the compliance with a peremptory norm is the issue before the Court. (. . .) 10. The judicial decision is essentially an exercise in choice. Where authorities are divided, or different general principles compete for priority, or different rules of interpretation lead to different conclusions, or State practices conflict, the judge is required to make a choice. In exercising this choice, the judge will be guided by principles (propositions that describe rights) and policies (propositions that describe goals) in order to arrive at a coherent conclusion that most effectively furthers the integrity of the international legal order. Norms of jus cogens are a blend of principle and policy. On the one hand, they affirm the high principles of international law, which recognize the most important rights of the

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international order—such as the right to be free from aggression, genocide, torture and slavery and the right to self-determination; while, on the other hand, they give legal form to the most fundamental policies or goals of the international community—the prohibitions on aggression, genocide, torture and slavery and the advancement of self-determination. This explains why they enjoy a hierarchical superiority to other norms in the international legal order. The fact that norms of jus cogens advance both principle and policy means that they must inevitably play a dominant role in the process of judicial choice. (. . .) 13. In the present case the Court (. . .) is not asked, in the exercise of its legitimate judicial function, to exercise its choice between competing sources in a manner which gives effect to a norm of jus cogens. On the contrary, it is asked to overthrow an established principle—that the basis of the Court’s jurisdiction is consent—which is founded in its Statute (Art. 36), endorsed by unqualified State practice and backed by opinio juris. It is, in effect, asked to invoke a peremptory norm to trump a norm of general international law accepted and recognized by the international community of States as a whole, and which has guided the Court for over 80 years. This is a bridge too far. The Court cannot be expected to accept the arguments raised by the DRC for by so doing it would not engage in molecular lawmaking, but molar law-making that goes beyond the legitimate judicial function. Only States can amend Article 36 of the Court’s Statute. 14. For this reason the Court, in the present instance, has rightly held that although norms of jus cogens are to be recognized by the Court, and presumably to be invoked by the Court in future in the exercise of its judicial function, there are limits to be placed on the role of jus cogens. The request to overthrow the principle of consent as the basis for its jurisdiction goes beyond these limits. This, in effect, is what the Court has held. (Armed Activities II (DRC v. Rwanda), Jurisdiction and Admissibility, Separate Opinion of Judge ad hoc Dugard, ICJ Rep. 2006, pp. 86–91)10

10  See also M. Ruffert. “Special Jurisdiction of the ICJ in the Case of Infringement of Fundamental Rules of the International Legal Order?”, in Ch. Tomuschat & J.-M. Thouvenin (Eds.), The Fundamental Rules of the International Legal Order, Jus Cogens and Obligations Erga Omnes (2006), pp. 295 ff.

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It is also interesting to note that, according to the letter of the United Nations Charter, not even the Security Council is authorized to force the parties to a dispute to refer it to the ICJ.11 Article 36, para. 3 of the Charter empowers the Council to make recommendations to that effect to the parties, but this evidently falls short from compelling States to forcefully submit their disputes to adjudication by the Court. At the San Francisco Conference there were proposals empowering the Security Council itself to refer disputes to the Court, but they were abandoned, the general understanding being that this organ could only recommend the procedure of judicial settlement to the parties.12 It has been advocated by some that this rule in no way prejudices the powers of the Council under Chapter VII of the Charter and that this organ could very well enjoin States engaged in a dispute to submit themselves to the Court’s jurisdiction for the purposes of solving a particular dispute.13 However, practice shows that the Council has made scarce use of this provision.14 It therefore seems unlikely that it would be inclined to go a step further and make a binding decision for the same purpose, particularly if one takes into account that when the Council is seised of a dispute and decides to deal with it under Chapter VII it is because what is at stake is a politically charged situation that is likely to endanger international peace and security. It is sensible to think that the Council would prefer to retain for itself the handling of all aspects of a dispute of this nature. As for the Statute of the Court, Article 36, which is squarely based on the concept of consent, contemplates different paths to jurisdiction. This provision states that the jurisdiction of the Court “comprises all cases which the parties refer to it” and all matters with regard to which the parties have ­previously accepted its jurisdiction, through the different mechanisms identified in that provision. They are: 11  D. Bowett, “The United Nations and Peaceful Settlement”, in The David Davies Memorial Institute of International Studies, International Disputes, The Legal Aspects (1972), p. 188. 12  Goodrich et al, Charter of the United Nations, Commentary and Documents (1969, 3rd. Rev. Ed.), pp. 281–282. 13  Tomuschat, “Article 36”, in Oxford Commentary, MN 47, p. 665. Contra, see J. Kammerhofer & A. de Hoogh, “All Things to All People? The International Court of Justice and its Commentators”, EJIL, vol. 18 (2007), pp. 974–975. 14  On only two occasions has the Security Council adopted recommendations under Article 36, para. 3 of the Charter: in the disputes leading to the cases concerning the Corfu Channel, between the United Kingdom and Albania (SC Res. 22, 9 April 1947) and the Aegean Sea Continental Shelf, between Greece and Turkey (SC Res. 395, 25 August 1976). The language used in the relevant resolutions was, however, markedly different. See Stein & Richter, “Article 36”, in B. Simma (Ed.), The Charter of the United Nations, A Commentary (1995), MN 41, p. 545.

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(i) Consensual jurisdiction, consisting of the spontaneous submission of cases through a special agreement, very much in the way jurisdiction is conferred upon ad hoc arbitral tribunals (paragraph 1); (ii) Treaty-based jurisdiction, or jurisdiction over “matters specially provided for (. . .) in treaties and conventions in force” (paragraph 1); (iii) Compulsory jurisdiction, by virtue of declarations of acceptance of the jurisdiction under the so-called “Optional Clause” system (paragraphs 2 and following).15

Box # 2-3  “matters specially provided for in the Charter of the United Nations” Article 36, para. 1 of the Statute states that the jurisdiction of the Court also comprises “all matters specially provided for in the Charter of the United Nations.” However, as the Court itself has recognized, “[t]he United Nations Charter contains no specific provision of itself conferring compulsory jurisdiction on the Court.”16 Therefore, this is a clause of the Statute that has not had any application whatsoever. This apparent mistake originates in the fact that the Washington Committee of Jurists, at the insistence of the US delegation, had included a provision to that end under the premise that the Charter would grant the Court some kind of compulsory jurisdiction.17 When the San Francisco Conference rejected all proposals in that direction, no care was taken to delete it from the final text of the Statute. On the other hand, it has been said that the reference in Article 36, para. 1 to “[a]ll matters specially provided for in the Charter of the United Nations” may be said to apply to Article 96 of the Charter, concerning requests for advisory opinions.18

15  Mutual Assistance, Judgment of 4 June 2008, ICJ Rep. 2008, p. 203, para. 60. 16  Aerial Incident (Pakistan v. India), Jurisdiction, Judgment of 21 June 2000, ICJ Rep. 2000, p. 32, para. 48. 17  M.O. Hudson, “The 24th Year of the World Court”, AJIL, vol. 40 (1946), p. 32. See also UNCIO vol. 14, p. 325. 18  F.B. Sloane, “Advisory Jurisdiction of the International Court of Justice, California LR, vol. 38 (1950), p. 847. See also B.A. Ajibola, “Bases for Jurisdiction before the International Court of Justice”, in N. Jasentuliyana (Ed.), Perspectives on International Law (1995), pp. 260–262.

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There is no question that Article 36, para. 3 of the Charter contemplates that when the Security Council is taking action with regard to a dispute under Chapter VI and is recommending that the parties follow “appropriate procedures or methods of adjustment,” it must take into consideration “that legal disputes should as a general rule be referred by the parties to the International Court of Justice.” However, this is immediately qualified by the special proviso that this shall be done “in accordance with the provisions of the Statute of the Court.” Given that under those provisions it is for the parties themselves to submit their legal disputes to the Court and that this submission has to be in accordance with Article 36 of the Statute, it is evident that this article of the Charter does not in itself provide for any matter to be submitted to the Court and thus cannot be invoked by any State as an independent basis for jurisdiction. And yet, this was an avenue tried by the United Kingdom in the first contentious case that came before the current Court, the Corfu Channel case. The Court asserted jurisdiction on a different basis and did not find it necessary to rule on this matter, but in a strong dissent appended to the judgment seven judges were emphatic that the British reading of Article 36, para. 3 of the Charter and Article 36, para. 1 of the Statute was not convincing for three reasons, namely: i) The ordinary meaning of the term “recommendation” found in Article 36, para. 3; (ii) The general structure of the system of consensual jurisdiction provided for in the Charter and the Statute; and (iii) The very terms of Article 36, para. 3 that prevented any consideration of that provision as a way to introduce “more or less surreptitiously” a new type of compulsory jurisdiction.19 It appears that an altogether better way to approach this question is that taken by the first Registrar of the present Court, who made the following remark with regard to the drafting of Article 36, para. 3 of the Charter: This provision, which was inspired by No. 6 (Chapt. VIII) of the Dumbarton Oaks proposals, was inserted in order to take account of the strong support which had been displayed in Committee I for the establishment of compulsory jurisdiction. Without seeking indirectly to introduce compulsory jurisdiction, the text of the Charter stresses the duty of States which have accepted this jurisdiction to submit their legal disputes to the Court. The Council’s recommendation is designed to remind them of this duty.20

19  Corfu Channel, Preliminary Objection, Separate Opinion of Judges Basdevant, Alvarez, Winiarski, Zoricic, De Visscher, Badawi Pasha and Krylov, ICJ Rep. 1948, pp. 31–32. See also the dissenting opinion of judge ad hoc Daxner, ibid., pp. 33–35. 20  ICJ Yearbook (1946–1947), pp. 24–25.

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Another aspect of the consensual basis of the Court’s jurisdiction is that, even if it is squarely based on the consent of the States that are parties to a dispute, the mere fact that the existence of such consent can be doubted at a given moment is not enough to question the existence of jurisdiction. The matter depends always on the intention of the States concerned, and when that intention is manifest, the Court will not make excursions on whether it does or does not possess jurisdiction just because such doubts have arisen.

Box # 2-4  Doubts as to the existence of jurisdiction and the “test of preponderance” When a State party to a case challenges the existence of the Court’s jurisdiction over a given dispute, it is for the Court to settle this preliminary dispute (Statute, Article 36, para. 6). But the question arises whether such a challenge must imply a presumption with regard to the absence of jurisdiction, on account of the principle of consent. In response to this, the Permanent Court developed what has been called the “test of preponderance,” consisting in that, whenever the existence of jurisdiction is questioned the Court will only affirm its jurisdiction “provided that the force of the arguments militating in favour of it is preponderant.” The Court reasoned as follows: It has been argued repeatedly in the course of the present proceedings that in case of doubt the Court should decline jurisdiction. It is true that the Court’s jurisdiction is always a limited one, existing only in so far as States have accepted it; consequently, the Court will, in the event of an objection—or when it has automatically to consider the question—only affirm its jurisdiction provided that the force of the arguments militating in favour of it is preponderant. The fact that weighty arguments can be advanced to support the contention that it has no jurisdiction cannot of itself create a doubt calculated to upset its jurisdiction. When considering whether it has jurisdiction or not, the Court’s aim is always to ­ascertain whether an intention on the part of the Parties exists to confer jurisdiction upon it. The question as to the existence of a doubt nullifying its jurisdiction need not be considered when, as in the present case, this intention can be demonstrated in a manner convincing to the Court. (Factory at Chorzów, Jurisdiction, Judgment No. 8, 26 July 1927, PCIJ A 9, p. 32)

Jurisdiction

This test is still in use and the Court reaffirmed its applicability as recently as 1988 (Armed Actions, Jurisdiction and Admissibility, Judgment of 20 Dec. 1988, ICJ Rep. 1988, p. 76, para. 16). A few years later, in the Qatar v. Bahrain case, where the respondent mounted an impassioned defense of its case supporting the lack of jurisdiction, judge Shahabuddeen (dissenting) elaborated on the meaning and scope of the concept of “preponderance” in this context and the dangers of an undue extension of the scope of the Court’s jurisdiction: It is of course the law that acceptance of jurisdiction is not “subordinated to the observance of certain forms” (. . .). But that relates to the form in which consent is given; it is without consequence for the need to establish consent itself, whatever the form it takes. What is the applicable standard of proof? (. . .) The Court lacks the compulsory jurisdiction of municipal courts; judicial settlement is an optional means, among others, of settling international disputes. A State has a right not to have its case submitted to the Court unless it consents to that particular means of settlement; it may not properly be held to have given up that important right unless its consent is clearly established. How clearly? The received test is whether, in the opinion of the Court, “the force of the arguments militating in favour of [jurisdiction] is preponderant” (. . .). The precise meaning of this is another matter. Two questions arise. First, how “preponderant” should the force of the arguments be? Counsel for Qatar cited the Oxford English Dictionary definition of the word “preponderant” as “meaning, in the first place, ‘surpassing in weight; outweighing, heavier’ and, in the second place, ‘surpassing in influence, power, or importance; predominant’” (. . .). That is not materially different from judicial dictionary definitions (. . .). But “surpassing” by what margin? In the same case in which the test of preponderance was put forward, the Permanent Court of International Justice went on to indicate that the intention to confer jurisdiction had been “demonstrated in a manner convincing to the Court” (PCIJ A 9, p. 32). A year later it spoke of consent being “inferred from acts conclusively establishing it”, and of submission of arguments on the merits falling to be “regarded as an unequivocal indication of the desire of a State to obtain a decision on the merits of the suit” (. . .). In the Corfu Channel case, this Court described Albania’s letter as

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constituting “a voluntary and indisputable acceptance of the Court’s jurisdiction” (. . .). Nor did the test of preponderance stand in the way of its more recent reaffirmation of the criterion of “ ‘an unequivocal indication’ of a ‘voluntary and indisputable’ acceptance of the Court’s jurisdiction” (. . .). A similarly high test had been proposed by judge Lauterpacht in 1957, when he spoke of “the established practice of the Court—which, in turn, is in accordance with a fundamental principle of international judicial settlement— that the Court will not uphold its jurisdiction unless the intention to confer it has been proved beyond reasonable doubt” (. . .). The test of preponderance has to be construed in accordance with this established jurisprudence. The second question is how does the preponderance test impact on a situation in which the Court is in a state of doubt. (. . .) Counsel for Bahrain (. . .) spoke of case law having “rejected what a judgment called ‘a doubt nullifying . . . jurisdiction’” (. . .). Could that have happened in Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment (. . .)? There the Court had before it the “question . . . whether in case of doubt the Court is to be deemed to have jurisdiction or not”. It answered by citing the jurisprudence of the Factory at Chorzow to the effect (already alluded to) that “the Court will, in the event of an objection—or when it has automatically to consider the question—only affirm its jurisdiction provided that the force of the arguments militating in favour of it is preponderant” (PCIJ A 9, p. 32). What this means is that in all situations, other than those in which “the force of the arguments militating in favour of [jurisdiction] is preponderant”, the Court will not affirm its jurisdiction. These other situations, in which the force of the arguments militating in favour of jurisdiction is not preponderant, will logically include situations in which the Court is in doubt. Accordingly, where there is doubt the Court will not affirm its jurisdiction.

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I have considered the references to “doubt” in the Free Zones of Upper Savoy and the District of Gex (. . .) and the Corfu Channel, Merits (. . .). The way in which the matter was considered in those cases does not overthrow the conclusion to be drawn from the Court’s jurisprudence that the Court can be in a state of “doubt nullifying its jurisdiction”. The point is not academic. In my opinion, the attempt to establish jurisdiction in this case does not meet the requisite standard of proof; and thus the Court has no jurisdiction. At best, however, on that standard, it is doubtful that it has; in this event also, it cannot find in favour of jurisdiction. (. . .) It has been rightly said that “it is the duty of the Court at all costs to safeguard the fundamental purpose which it is designed to achieve, namely, the advancement of the application between nations of the principle and method of judicial decision” (. . .). However, in pursuing that high purpose, care needs to be used not to import the principle boni judicis est ampliare jurisdictionem ; it is not considered to be applicable to the Court (. . .). Rather, there is substance in judge Armand-Ugon’s view that “[tlo attempt to force the meaning of texts relating to the jurisdiction of the Court would be to risk consequences that might affect its authority and prestige” (. . .). The risk should not be exaggerated; but neither should it be underestimated. (Qatar v. Bahrain, Jurisdiction and Admissibility II, Dissenting Opinion of Judge Shahabuddeen, ICJ Rep. 1995, pp. 63–66)

Finally, The test of preponderance may also be applicable in other types of international adjudication. An arbitral panel under ICSID has stated that [j]urisdictional instruments are to be interpreted neither restrictively nor expansively, but rather objectively and in good faith, and jurisdiction will be found to exist if—but only if—the force of the arguments militating in favor of it is preponderant. (Southern Pacific Properties (Middle East) Limited v. Egypt ( Jurisdiction No. 2), ICSID Rep. No. 3, 1988, p. 144)

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Legal Disputes

Article 36 is the cardinal provision of the Court’s Statute on questions pertaining to the Court’s jurisdiction ratione materiae. It will be useful to register from the outset that while paragraph 1 of this provision, concerning jurisdiction by special agreement and by virtue of treaties and conventions, mentions “cases” and “matters,” respectively, paragraph 2, concerning jurisdiction under the socalled Optional Clause, is explicit in mentioning “disputes.”21 Besides—and more importantly, because this applies irrespective of the title of jurisdiction used to bring a case before the Court—Article 38 of the Statute is definitive in providing that the function of the Court is “[t]o decide in accordance with international law such disputes as are submitted to it.”22 It follows that a prerequisite for the exercise of the Court’s contentious jurisdiction, under any heading, is that there be in existence a dispute between two or more States. In the Northern Cameroon case the Court stated: “[t]he function of the Court is to state the law, but it may pronounce judgment only in connection with concrete cases where there exists at the time of the adjudication an actual controversy involving a conflict of legal interests between the parties.”23 In the Nuclear Tests cases it further pointed out that “[t]he Court, as a court of law, is called upon to resolve existing disputes between States. Thus the existence of an international dispute is the primary condition for the Court to exercise its judicial function.”24 And it further added that “[i]t does not enter into the adjudicatory functions of the Court to deal with issues in abstracto, once it has reached the conclusion that the merits of the case no longer fail to be determined.”25

21  The difference was registered by the Inter-Allied Advisory Committee (Inter-Allied Committee Report, para. 55). 22  Emphasis added. In the French version of the Statute the same term (“différend”) is used in both Article 36, para. 2 and Article 38. The situation is different in other provisions, like Article 36, para. 6 and Article 60, where a different term (“contestation”) is used. 23  Northern Cameroons, Preliminary Objections, Judgment of 2 Dec. 1963, ICJ Rep. 1963, pp. 33–34. 24  Nuclear Tests, Judgments of 20 Dec. 1974, ICJ Rep. 1974, pp. 270–271, para. 55 and p. 476, para. 58. Reiterated in the Nicaragua v. Colombia case, in regard to disputes brought to the Court under the Optional Clause (Preliminary Objections, Judgment of 13 Dec. 2007, ICJ Rep. 2007, p. 874, para. 138). See also Obligation to Prosecute or Extradite, Merits, Judgment of 20 July 2012, para. 45. 25  Nuclear Tests, Judgments of 20 Dec. 1974, ICJ Rep. 1974, p. 272, para. 59 and p. 477, para. 62.

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The Permanent Court had also underlined that, once the parties have accepted its jurisdiction, “[t]here is no dispute which States entitled to appear before the Court cannot refer to it.”26 As for the definition of “dispute,” the Court’s case law evidences a true jurisprudence constante, according to which “a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests between two persons.”27

Box # 2-5 The definition of “dispute” 28 A review of the jurisprudence of the Court and the PCIJ shows that there are certain basic legal criteria for determining whether “the conditions for the existence of a dispute are fulfilled.”29 They are the following: Whether there exists an international dispute is a matter for objective determination. The mere denial of the existence of a dispute does not prove its non-existence. (. . .) There has . . . arisen a situation in which the two sides hold clearly opposite views concerning the question of the performance or non-performance of certain treaty obligations. Confronted with such a situation, the Court must conclude that international disputes have arisen. (Peace Treaties, Advisory Opinion of 30 March 1950 ( first phase) ICJ Rep. 1950, p. 74)30

26  Upper Silesia (Minority Schools), Judgment No. 12, 26 April 1928, PCIJ A 15, p. 22. 27  Mavrommatis Concessions ( Jurisdiction), Judgment No. 2, 30 August 1924, PCIJ A 2, p. 11. 28  Sir R.Y. Jennings, “Reflections on the Term ‘Dispute’”, in Collected Writings of Sir Robert Jennings (1998), vol. 1, pp. 582–587. See also E. Gordon, “Discretion to Decline to Exercise Jurisdiction”, AJIL, vol. 81 (1987), pp. 131–132; C.F. Amerasinghe, Evidence in International Litigation (2005), pp. 3–7. 29  South West Africa, Preliminary Objections, Judgment of 21 Dec. 1962, ICJ Rep. 1962, p. 328. 30  In the Nicaragua v. Colombia case, the Court quoted this passage and added: “This determination is an integral part of the Court’s judicial function.” (Preliminary Objections, Judgment of 13 Dec. 2007, ICJ Rep. 2007, p. 874, para. 138).

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[i]t is not sufficient for one party to a contentious case to assert that a dispute exists with the other party. A mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its nonexistence. Nor is it adequate to show that the interests of the two parties to such a case are in conflict. It must be shown that the claim of one party is positively opposed by the other. (South West Africa, Preliminary Objections, Judgment of 21 Dec. 1962, ICJ Rep. 1962, p. 328)

Portugal has, rightly or wrongly, formulated complaints of fact and law against Australia which the latter has denied. By virtue of this denial, there is a legal dispute. (East Timor, Judgment of 30 June 1995, ICJ Rep. 1995, p. 100, para. 22)

[a] disagreement on a point of law or fact, a conflict of legal views or ­interests, or the positive opposition of the claim of one party by the other need not necessarily be stated expressis verbis. In the determination of the existence of a dispute, as in other matters, the position or the attitude of a party can be established by inference, whatever the professed view of that party. (Cameroon v. Nigeria, Preliminary Objections, Judgment of 11 June 1998, ICJ Rep. 1998, p. 315, para. 89)

According to the consistent jurisprudence of the Court and the Permanent Court of International Justice, a dispute is a disagreement on a point of law or fact, a conflict or legal views or interests between parties (. . .). Moreover, for the purposes of verifying the existence of a legal dispute it falls to the Court to determine whether “the claim of one party is positively opposed by the other” (. . .). (Certain Property, Preliminary Objections, Judgment of 10 Feb. 2005, ICJ Rep. 2005, p. 18, para. 24)31

In the CERD case the Court neatly summarized these propositions32 an added the following elements:

31  See further the dissenting opinion of judge Morelli in the South West Africa case (Preliminary Objections, ICJ Rep. 1962, pp. 566–568) and the separate opinion of judge Fitzmaurice in the Northern Cameroons case (Preliminary Objections, ICJ Rep. 1963, p. 109). 32  CERD, Preliminary Objections, Judgment of 1 April 2011, ICJ Rep. 2011, p. 84, para. 30. Reaffirmed in Obligation to Prosecute or Extradite, Merits, Judgment of 20 July 2012, para. 46.

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The Court’s determination must turn on an examination of the facts. The matter is one of substance, not of form. As the Court has recognized (. . .), the existence of a dispute may be inferred from the failure of a State to respond to a claim in circumstances where a response is called for. While the existence of a dispute and the undertaking of negotiations are distinct as a matter of principle, the negotiations may help demonstrate the existence of the dispute and delineate its subject-matter. (CERD, Preliminary Objections, Judgment of 1 April 2011, ICJ Rep. 2011, p. 84, para. 30)

With regard to the proof of the existence of a dispute, the Court suggested in the same case that the crucial factor was whether one of the parties made a claim and whether the other party positively opposed it—a criteria that may have its source in the South West Africa decision quoted above: The Court now turns to the evidence submitted to it by the Parties to determine whether it demonstrates, as Georgia contends, that at the time it filed its Application, on 12 August 2008, it had a dispute with the Russian Federation with respect to the interpretation or application of CERD. The Court needs to determine (1) whether the record shows a disagreement on a point of law or fact between the two States; (2) whether that disagreement is with respect to “the interpretation or application” of CERD, as required by Article 22 of CERD; and (3) whether that disagreement existed as of the date of the Application. To that effect, it needs to determine whether Georgia made such a claim and whether the Russian Federation positively opposed it with the result that there is a dispute between them in terms of Article 22 of CERD. (CERD, Preliminary Objections, Judgment of 1 April 2011, ICJ Rep. 2011, p. 85, para. 31)33

It is to be noted that the above considerations apply only to what might be called “substantive” disputes (“différends”), i.e. disputes mentioned in Article 36, paras. 1 and 2 and 38—and possibly to disputes as to the existence of jurisdiction, under Article 36, para. 6. The disputes mentioned in Article 60 of the Statute and concerning the meaning and scope of a judgment have received a different treatment from the Court (See text to note 39 below and Chapter 16, c))

33   For a comment see Quintana’s Procedural Developments, LPICT, vol. 10 (2011), pp. 538–547.

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It is submitted that this classic definition of what constitutes an international dispute in the legal sense might be too lax, because it would allow a State to fabricate an entirely artificial dispute in order to force another State to come to the Court. After all, when a State is faced with an outrageous claim made by another State—a claim made “rightly or wrongly” which could be said to be “predicated on an artificial legal construction unsupported by any facts”34—it is only natural that the former would feel inclined to reject that claim outright and to refuse to accede to the demands of the claimant. As the PCIJ admitted, “[a] difference of opinion does exist as soon as one of the Governments concerned points out that the attitude adopted by the other conflicts with its own views.”35 The Court has underlined that it can exercise its jurisdiction in contentious proceedings “only when a dispute genuinely exists between the parties.”36 However, under the criteria set out in its case law concerning the existence of a dispute, it is unavoidable that a dispute will be born at the very moment at which denial is expressed, for this very denial will bring about “[a] disagreement on a point of law or fact, a conflict of legal views or interests.”37 In these circumstances, the State so reacting has very little protection and it would have to trust in the restraint that the Court and its Registry would exercise with respect to a claim so spurious that it would be evident from the outset that it did not warrant the involvement of the Court at all. In this regard, judge Fitzmaurice remarked that in international law there are no “filter procedures”, like those found in many national systems of law “[f]or eliminating at a relatively early stage, before they reach the court which would otherwise hear and decide them, claims that are considered to be objectionable or not entertainable on some a priori ground.”38 For the reasons stated, the treatment given by the Court to the notion of “dispute” in the Request for interpretation-Avena (Provisional Measures) decision is striking. The case involved the interpretation of the term “dispute” in Article 60 34  Tomuschat, “Article 36”, MN 10, p. 643. 35  Polish Upper Silesia ( Jurisdiction), Judgment No. 6, 25 Aug. 1925, PCIJ A 6, p. 14. 36  Nuclear Tests, Judgment of 20 Dec. 1974, ICJ Rep. 1974, p. 271, para. 57 and p. 477, para. 60. Emphasis added. 37  See the dissenting opinion of judge Gros in the Nuclear Tests cases, in which the application of Article 53 of the Statute, concerning lack of appearance, was raised (Provisional Measures, ICJ Rep. 1973, pp. 118–119 and 153). 38  Northern Cameroons, Preliminary Objections, Separate Opinion of Judge Fitzmaurice, ICJ Rep. 1963, pp. 106–107. For the view that an “artificially constructed” dispute would not pass the test that it is for the Court to determine objectively the existence of a dispute see Muller’s Procedural Developments, LPICT, vol. 4 (2005) 337.

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of the Statute, concerning the interpretation of judgments, a term that is rendered in the French version of the same provision as “contestation.”39 After a brief excursion into the travaux of the Statute of the PCIJ, the Court concluded that in Article 60 “[t]he term “dispute” in English . . . may have a more flexible meaning than that generally accorded to it in Article 36, paragraph 2, of the Statute”.40 In the light of the above, one may wonder what can possibly be a “more flexible meaning” than that generally accorded to the term “dispute” in the Court’s case law, following the Mavrommatis seminal definition. Article 36, para. 2 of the Statute refers not only to disputes but to “legal disputes,” and this warrants a brief excursion into the concepts of “political” and “legal” disputes.41 For a long time there was a discussion in international law on the so-called “justiciability” of disputes, referring to the feasibility of drawing a distinction between “legal disputes,” i.e. those that can be solved by legal means and in particular by adjudication by an international tribunal, and “political disputes,” i.e. those that by their very nature are incapable of settlement by the application of legal rules.42 A good characterization of the former 39  In the English version of the Statute the term “dispute” is used throughout. In the Spanish version there is also a discrepancy of terms: while “controversia” is used in Articles 36, para. 2 and 38, “desacuerdo” is used in Article 60. To further complicate matters, Article 36, para. 6 uses yet another term, namely “disputa.” 40  Request for Interpretation, Avena, Provisional Measures, Order of 16 July 2008, ICJ Rep. 2008, p. 325, para. 53. In the Request for Interpretation-Temple of Preah Vihear case the Court reaffirmed that the term “dispute” in Article 60 has a more flexible meaning than in other provisions of the Statute (Provisional Measures, Order of 18 July 2011, ICJ Rep. 2011, p. 542, para. 22) 41  Legal disputes are also mentioned in Article 36, para. 3 of the Charter, concerning the powers of the Security Council in the realm of dispute settlement. See Stein & Richter, “Article 36”, MN 38, pp. 544–545. 42  For a thorough historical survey of the concept of “justiciability” of legal disputes in international law see H. Kelsen, “Compulsory Adjudication of International Disputes”, AJIL, vol. 37 (1943), pp. 401–405 and Principles of International Law (Revised and edited by R.N. Tucker, 1966), pp. 525–530; I.A. Azzam, “The Justiciability of International Disputes”, Revue Egyptienne DI, vol. 16 (1960), pp. 52–59; R. Higgins, “Policy Considerations and the International Judicial Process”, ICLQ, vol. 17 (1968), pp. 58–84; The David Davies Memorial Institute of International Studies, International Disputes, The Legal Aspects (1972), pp. 6–8; A. Cassese, “The Concept of ‘Legal Dispute’ in the Jurisprudence of the International Court”, in Il processo internazionale, Studi in onore di Gaetano Morelli, Comunicazioni a Studi, vol. 14 (1975) pp. 173–200; T. Sugihara, “The Judicial Function of the International Court of Justice with Respect to Disputes Involving Highly Political Issues”, in A.S. Muller, D. Raic & J.M. Thuranszky (Eds.), The International Court of Justice, Its Future Role after Fifty Years (1997), pp. 117–138; M.N. Shaw, “Peaceful Resolution of ‘Political Disputes’: the

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is that used in Article 17 of the 1949 Revised General Act of Geneva, where it is provided that the disputes to be submitted to the Court are those “[d]isputes with regard to which the parties are in conflict as to their respective rights.”43 This distinction, however, was always highly artificial since any dispute of an international character is capable—for good or for bad—of being “settled by the application of principles and rules of international law” in force at a given time.44 For this reason, a more cogent view is one under which the relevant distinction is made between justiciable and non-justiciable disputes, that is, disputes which for reasons of their own, the parties are willing to submit to adjudication and those that they simply are not. As early as 1920, the Covenant of the League of Nations expressed this position very neatly in its Article 13, para. 1, where mention was made of disputes that the members of the League “recognize to be suitable for submission to arbitration or judicial settlement.” Incidentally, in paragraph 2 of the same provision a listing was included of those categories of disputes that were then and there “declared to be among those which are generally suitable for submission to arbitration or judicial settlement.” This listing is the direct predecessor of the famous enumeration of legal disputes that would find its way into the text of Article 36, para. 2 of the Statute of the Court, as well as in several treaties concerning judicial settlement (“disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which if established would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach”). As is evident, the willingness of States to submit a given dispute to adjudication will depend in large measure on the existence in international law of legal rules that address the matter to which the dispute refers in a way that is perceived by them to be satisfactory. However, with the evolution of international law and the progressive reduction of what for a long time was called the domaine réservé of States, it is clear that the number of inter-State disputes desirable parameters of ICJ jurisdiction”, in J. Dahlitz (Ed.), Peaceful Resolution of Major International Disputes (1999), pp. 49–75; Sir Hersch Lauterpacht, “The doctrine of nonjusticiable disputes in international law”, in E. Lauterpacht (Ed.), International Law, Being the Collected Papers of Hersch Lauterpacht, (2004), vol. 5, pp. 26–64. 43  For the view that the scope of this provision is essentially the same of Article 36, para. 2 of the Court’s Statute see the joint dissenting opinion of judges Onyeama, Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock in the Nuclear Tests cases (ICJ Reports 1974, p. 359, para. 97). 44  Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment of 20 Dec. 1988, ICJ Rep. 1988, p. 91, para. 52.

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that are not perceived by them to be “suitable for submission to arbitration or judicial settlement” grows smaller every day. Closely related to the notion of “legal disputes” is the concept of “legal question,” which is determinative in advisory proceedings held under Article 65 of the Statute. The Court has clarified the meaning of that term, utilizing objective criteria that may also be useful, by analogy, with regard to contentious proceedings. The most important one may be that questions “framed in terms of law and rais[ing] problems of international law . . . are by their very nature susceptible of a reply based on law . . . [and] appear . . . to be questions of a legal character”.45 More recently, the Court remarked: The question put to the Court (. . .) is indeed a legal one, since the Court is asked to rule on the compatibility of the threat or use of nuclear weapons with the relevant principles and rules of international law. To do this, the Court must identify the existing principles and rules, interpret them and apply them to the threat or use of nuclear weapons, thus offering a reply to the question posed based on law. (Nuclear Weapons UNGA, Advisory Opinion of 8 July 1996, ICJ Rep. 1996, p. 234, para. 13)

And in a subsequent case, it underlined: As regards the alleged lack of clarity of the terms of the General Assembly’s request and its effect on the “legal nature” of the question referred to the Court, the Court observes that this question is directed to the legal consequences arising from a given factual situation considering the rules and principles of international law, including the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (hereinafter the “Fourth Geneva Convention”) and relevant Security Council and General Assembly resolutions. The question submitted by the General Assembly has thus, to use the Court’s phrase in its Advisory Opinion on Western Sahara, “been framed in terms of law and raise[s] problems of international law”; it is by its very nature susceptible of a reply based on law; indeed it is scarcely susceptible of a reply otherwise than on the basis of law. In the view of the Court, it is indeed a question of a legal character (. . .). (Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, p. 153, para. 37)

45  Western Sahara, Advisory Opinion of 16 Oct. 1975, ICJ Rep. 1975, p. 18, para. 15.

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Box # 2-6 Legal disputes having political implications In the Aegean Sea Continental Shelf case the Court had to respond to an argument by Turkey according to which the dispute between Greece and Turkey was “of a highly political nature.” The Court started by recalling that Greece had asked the Court to pronounce on its submissions “in accordance with the. . . . principles and rules of international law” and that Turkey, for its part, had invoked legal grounds in reply to the Greek claim, such as the existence of special circumstances. It then remarked that this dispute was clearly one in which “the parties [we]re in conflict as to their respective rights” and concluded that a dispute like this having “some political element” remains nonetheless a legal dispute: It is clear from the submissions in the Greek Application and Memorial, as well as in the observations in the various Turkish diplomatic communications to Greece, that Greece and Turkey are in conflict as to the delimitation of the spatial extent of their sovereign rights over the continental shelf in the Aegean Sea. Thus there are certain sovereign rights being claimed by both Greece and Turkey, one against the other and it is manifest that legal rights lie at the root of the dispute that divides the two States. The Court therefore finds that a legal dispute exists between Greece and Turkey in respect of the continental shelf in the Aegean Sea. (Aegean Sea Continental Shelf, Jurisdiction, Judgment of 19 Dec. 1978, ICJ Rep. 1978, p. 13, para. 31)

In the US Hostages case the Court further stated: [l]egal disputes between sovereign States by their very nature are likely to occur in political contexts, and often form only one element in a wider and longstanding political dispute between the States concerned. Yet never has the view been put forward before that, because a legal dispute submitted to the Court is only one aspect of a political dispute, the Court should decline to resolve for the parties the legal questions at issue between them. Nor can any basis for such a view of the Court’s functions or jurisdiction be found in the Charter or the Statute of the Court; if the Court were, contrary to its settled jurisprudence, to adopt such a view, it would impose a far-reaching and unwarranted restriction upon the role of the Court in the peaceful solution of international disputes. (US Hostages, Merits, Judgment of 24 May 1980, ICJ Rep. 1980, p. 20, para. 37)

Jurisdiction

In the Nicaragua case—politically a highly charged case—the Court recalled its traditional stance on the matter, dating back from the very first contentious case coming before it, and pointed out further that as principal organs of the United Nations the Security Council and the Court can perform their respective functions pari passu with regard to the same situation, the former in the political plane and the latter in the legal one: It is necessary to emphasize that Article 24 of the Charter of the United Nations provides that “In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and ­security . . .” The Charter accordingly does not confer exclusive responsibility upon the Security Council for the purpose. While in Article 12 there is a provision for a clear demarcation of functions between the General Assembly and the Security Council, in respect of any dispute or situation, that the former should not make any recommendation with regard to that dispute or situation unless the Security Council so requires, there is no similar provision anywhere in the Charter with respect to the Security Council and the Court. The 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 events. It must also be remembered that, as the Corfu Channel case (ICJ Rep. 1949, p. 4) shows, the Court has never shied away from a case brought before it merely because it had political implications or because it involved serious elements of the use of force. (Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, pp. 434–435, paras. 95–96)

Similarly, in the Armed Actions (Nicaragua v. Honduras) case, the Court had to confront an objection on admissibility based on the idea that the application was a politically-inspired and artificial request that the Court should not entertain consistently with its judicial character. The Court rejected these contentions in the following terms:

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[t]he Court is aware that political aspects may be present in any legal dispute brought before it. The Court, as a judicial organ, is however only concerned to establish, first, that the dispute before it is a legal dispute, in the sense of a dispute capable of being settled by the application of principles and rules of international law, and secondly, that the Court has jurisdiction to deal with it, and that that jurisdiction is not fettered by any circumstance rendering the application inadmissible. The purpose of recourse to the Court is the peaceful settlement of such disputes; the Court’s judgment is a legal pronouncement, and it cannot concern itself with the political motivation which may lead a State at a particular time, or in particular circumstances, to choose judicial settlement. (Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment of 20 Dec. 1988, ICJ Rep. 1988, p. 91, para. 52)

The Court has taken a similar stance in advisory proceedings.46

On a number of occasions the Court has had to pronounce on the existence of a legal dispute because the point has been raised as a preliminary objection to its jurisdiction.47 Also, the Court has been emphatic in considering that to determine whether a given dispute is or is not of a legal nature falls within the scope of the “compétence de la compétence” principle: [i]t has been suggested that the present dispute should be declared nonjusticiable, because it does not fall into the category of “legal disputes” within the meaning of Article 36, paragraph 2, of the Statute. It is true that the jurisdiction of the Court under that provision is limited to “legal disputes” concerning any of the matters enumerated in the text. The question whether a given dispute between two States is or is not a “legal dispute” for the purposes of this provision may itself be a matter in dispute between those two States; and if so, that dispute is to be settled by the decision of the Court in accordance with paragraph 6 of Article 36. (Nicaragua, Merits, Judgment of 27 Jun. 1986, ICJ Rep. 1986, pp. 26–27, para. 33)

46  Nuclear Weapons UNGA, Advisory Opinion of 8 July 1996, ICJ Rep. 1996, p. 234, para. 13. Reaffirmed in Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, p. 155, para. 41. 47  The existence of a dispute can also be approached as a question of admissibility and not of jurisdiction. See the separate opinion of judge Morelli in the Northern Cameroons case (Preliminary Objections, ICJ Reports 1963, p. 132).

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Even if the question of the existence of a legal dispute would normally arise and be aired before the Court at the stage of preliminary objections, the suggestion has been made that the Court should confront the issue even earlier, as a “pre-preliminary question,” for instance during the provisional measures phase, in cases in which one of the parties makes a request under Article 41 of the Statute.48 There has not yet been an occasion for the Court to deal with this matter. c)

Exhaustion of Diplomatic Negotiations49

Intimately connected with the requirement that there must be a dispute in existence for the Court’s jurisdiction to be activated, there is the notion that it must be a dispute that the parties have not been able to settle by diplomatic negotiations. The 1899 and 1907 Hague Conventions on the Peaceful Settlement of Disputes were explicit in requiring that disputes of a legal nature should go to arbitration only after diplomatic negotiations had been exhausted. In Article 16 of the 1899 Convention (reproduced without changes as Article 38 of the 1907 Convention), arbitration was recognized as the most effective and most equitable means of peaceful settlement for “disputes which diplomacy has failed to settle” that referred to questions of a legal nature. In addition, in Article 20 (41 of the 1907 Convention) the Permanent Court of Arbitration was established “[w]ith the object of facilitating an immediate recourse to arbitration for international differences, which it has not been possible to settle by diplomacy. . .”. Likewise, Article 13 of the Covenant of the League of Nations— in which explicit mention was made to the Permanent Court of International Justice, to be set up under Article 14—referred to the submission to ­arbitration or judicial settlement of disputes “which cannot be satisfactorily settled by diplomacy.” 48  Arrest Warrant, Provisional Measures, Declaration by Judge Oda, ICJ Rep. 2000, pp. 206– 207. The notion of “pre-preliminary” questions was proposed by Fitzmaurice as early as 1963 (see his separate opinion in the Northern Cameroons case, ICJ Rep. 1963, p. 103). See also the separate opinion of judge Gros in the Nuclear Tests cases (ICJ Reports 1974, p. 277, para. 2). 49  G. Salvioli, “Problèmes de procédure dans la jurisprudence internationale”, RC, vol. 91 (1957-I), pp. 565–67; S.M. Bourquin, “Dans quelle mesure le recours à des négotiations diplomatiques est-il nécessaire avant qu’un differend puisse être soumis à la jurisdiction internationale?”, in Hommage d’une generation de jurists au President Basdevant (1960), pp. 43–55.

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However, this provision was not retained in the text of the Statute and therefore since the time of the Permanent Court the existence of previous negotiations cannot be said to constitute a general condition for the existence of jurisdiction. A rule requiring the previous exhaustion of diplomatic negotiations has always been included in individual instruments providing for the Court’s jurisdiction, whether they are jurisdictional clauses, general treaties on peaceful settlement or—in the form of reservations—declarations of acceptance of the jurisdiction under the Optional Clause. It is only natural, then, that the Court has had to examine the question in several occasions. With regard to the PCIJ, two points are worthy a mention. In the first place, in at least two occasions the Court made statements—which are still valid today—indicating that it is highly advisable for States to exhaust diplomatic negotiations before taking a step as serious as that of bringing a case before it: The Court realizes to the full the importance of the rule laying down that only disputes which cannot be settled by negotiations should be brought before it. It recognizes, in fact, that before a dispute can be made the subject of an action at law, its subject-matter should have been clearly defined by means of diplomatic negotiations. (Mavrommatis, Jurisdiction, Judgment No. 2, 30 August 1924, PCIJ A 2, p. 15)

[i]t would no doubt be desirable that a State should not proceed to take as serious a step as summoning another State to appear before the Court without having previously, within reasonable limits, endeavoured to make it quite clear that a difference of views is in question which has not been capable of being otherwise overcome. (Request for Interpretation-Factory at Chorzów, Judgment No. 11, 16 Dec. 1927, PCIJ A 13, pp. 10–11)

Secondly, in the Polish Upper Silesia case the Court had to define whether the absence of diplomatic negotiations was an obstacle for the exercise of jurisdiction in the case, even if the basis of jurisdiction invoked—Article 23 of the Geneva Convention of May 15, 1922—only provided for the submission to the Court of “differences of opinion,” without any mention to diplomatic ­negotiations.50 In a subsequent phase of the same litigation the Court summarized as follows its treatment of the question:

50  Polish Upper Silesia, Jurisdiction, Judgment No. 6, 25 August 1925, PCIJ A 6, p. 13.

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[i]n its judgment No. 6 (. . .) [the Court] expressed the opinion that [Article 23 of the Geneva Convention concerning Upper Silesia] not requiring preliminary diplomatic negotiations as a condition precedent, recourse could be had to the Court as soon as one of the Parties considered that there was a difference of opinion arising out of the interpretation and application of Article 6 to 22 of the Convention. (Request for Interpretation-Factory at Chorzów, Judgment No. 11, 16 Dec. 1927, PCIJ A 13, p. 11)

This implies, a contrario, that in those cases in which such a clause was present in a given title of jurisdiction, recourse could be had to the Court only when it was shown before it that such negotiations were exhausted.51 The present Court confirmed this in unequivocal terms in the Cameroon v. Nigeria case— under the Optional Clause—in which it had to deal with a jurisdictional objection concerning the absence of diplomatic negotiations between the parties: Neither in the Charter nor otherwise in international law is any general rule to be found to the effect that the exhaustion of diplomatic negotiations constitutes a precondition for a matter to be referred to the Court. No such precondition was embodied in the Statute of the Permanent Court of International Justice, contrary to a proposal by the Advisory Committee of Jurists in 1920 (. . .). Nor is it to be found in Article 36 of the Statute of this Court. A precondition of this type may be embodied and is often included in compromissory clauses of treaties. It may also be included in a special agreement whose signatories then reserve the right to seise the Court only after a certain lapse of time (. . .). Finally, States remain free to insert into their optional declaration accepting the compulsory jurisdiction of the Court a reservation excluding from the latter those disputes for which the parties involved have agreed or subsequently agree to resort to an alternative method of peaceful settlement. In this case, however, no reservation of this type was included in the Declarations of Nigeria or Cameroon on the date of the filing of the Application. (Cameroon v. Nigeria, Preliminary Objections, Judgment of 11 June 1998, ICJ Rep. 1998, pp. 302–303, para. 56)

51  This might have happened in the Electricity Company case, although the determinant factor here appears to have been lack of proof on the existence of a dispute (Preliminary Objection, Judgment of 4 April 1939, PCIJ A/B 77, p. 83). For a narrative see Hudson’s PCIJ, pp. 415–416.

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In the same decision, the Court stressed that the condition of the prior exhaustion of negotiations was not applicable when it was seised on the basis of declarations made under the Optional Clause that do not contain it, even if the substantive norm applicable contains a condition to that effect.52 It also reiterated a finding in the Nicaragua case to the effect that there is no requirement in international law of a prior exhaustion of regional negotiating processes as a precondition to seising the Court.53 A final point on the question of the need for previous negotiations is that, since the existence of a dispute is truly a sine qua non for the existence of ­jurisdiction—particularly in cases under the Optional Clause—in many cases the dispute will be defined only through diplomatic negotiations. These negotiations could by themselves constitute evidence of what the PCIJ called a “manifestation of the existence of the dispute,”54 so that demonstrating the existence of the dispute would often entail proving the effective conduction of such negotiations.55 The best example of this situation is probably the Right of Passage case, in which one of the preliminary objections made by India consisted in that, as the application had been filed before the Portuguese claim was effectively made the subject of diplomatic negotiations, the subject-­ matter of the claim had not yet been determined and there was therefore, as yet, no legal and justiciable dispute which could be referred to the Court under the Optional Clause. The reasoning in support of this objection ran as follows: In particular, the Third Objection is based on the allegation that, although neither Article 36 (2) of the Statute nor the Portuguese or Indian Declarations of Acceptance refer directly to the requirement of previous negotiations, the fact that the Application was filed prior to the exhaustion of diplomatic negotiations was contrary to Article 36 (2) of the Statute, which refers to legal disputes. It was contended by India that, unless negotiations had taken place which had resulted in a definition of the dispute between the Parties as a legal dispute, there was no dispute, in the sense of Article 36 (2) of the Statute, the existence of which had been established in the Application and with respect to which the Court could exercise jurisdiction. (Right of Passage, Preliminary Objections, Judgment of 26 Nov. 1957, ICJ Rep. 1957, p. 148)

52  Cameroon v. Nigeria, Preliminary Objections, Judgment of 11 June 1998, ICJ Rep. 1998, p. 322, para. 109. 53  Ibid., p. 307, para. 68. 54  Request for Interpretation-Factory at Chorzów, Judgment No. 11, 16 Dec. 1927, PCIJ A 13, p. 10. 55  Rosenne’s Law and Practice, vol. 3, p. 1198.

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In its judgment the Court found that the diplomatic exchanges which had taken place between the parties disclosed the existence of a dispute between them “on the principal legal issue which is now before the Court.” On this basis, it concluded: It would therefore appear that assuming that there is substance in the contention that Article 36 (2) of the Statute, by referring to legal disputes, establishes as a condition of the jurisdiction of the Court a requisite definition of the dispute through negotiations, the condition was complied with to the extent permitted by the circumstances of the case. (Right of Passage, Preliminary Objections, Judgment of 26 Nov. 1957 ICJ Rep. 1957, p. 149)

This dictum may have been superseded by the passage in Cameroon v. Nigeria reproduced above, in which the Court remarked that a condition on the previous exhaustion of diplomatic negotiations is not to be found in Article 36 of the Statute. It, however, serves the purpose of highlighting the concept that, in certain circumstances, such a notion might be implicit in the separate requirement of the existence of an actual dispute.56 d)

Jurisdiction and Propriety57

A question connected to jurisdiction that is conceptually different from it is that of what has been called “propriety” in the exercise of jurisdiction, which is related to the character of the Court as a court of justice. This aspect is more directly pertinent with regard to advisory proceedings, in which the Court has a large discretionary power as to the issuing of advisory opinions (see Chapter 20, b)), but its applicability in contentious proceedings cannot be entirely ruled out. The question is whether on every occasion that the Court is called to render a decision it must do so, or if there may be cases in which that course of action might be incompatible with its judicial functions or with its character as a judicial organ. This matter has arisen in different contexts, and there has 56  The Court has also rejected the notion that there is a requirement for the definition of a dispute in prior negotiations before an application can be made for permission to intervene under Article 62 of the Statute (El Salvador/Honduras, Application to Intervene, Judgment of 13 Sep. 1990, ICJ Rep. 1990, pp. 113–114, para. 51). 57  Gordon, “Discretion. . .”, pp. 129–135.

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been occasion for the Court to pronounce on it in terms that are cautious but very definitive. The most pertinent dictum in this regard can be found in the judgment in the case concerning Northern Cameroons, in which the Court, for reasons of its own, refused to entertain a dispute submitted to it.58 The Court stated: It is the act of the Applicant which seises the Court but even if the Court, when seised, finds that it has jurisdiction, the Court is not compelled in every case to exercise that jurisdiction. There are inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore. There may thus be an incompatibility between the desires of an applicant, or, indeed, of both parties to a case, on the one hand, and on the other hand the duty of the Court to maintain its judicial character. The Court itself, and not the parties, must be the guardian of the Court’s judicial integrity. (Northern Cameroons, Preliminary Objections, Judgment of 2 Dec. 1963, ICJ Rep. 1963, p. 29)59

In a subsequent passage of the same decision the Court stressed that the exercise of this discretion was independent from that of the remedies sought by the parties: [e]ven if, when seised of an Application, the Court finds that it has jurisdiction, it is not obliged to exercise it in all cases. If the Court is satisfied, whatever the nature of the relief claimed, that to adjudicate on the merits of an Application would be inconsistent with its judicial function, it should refuse to do so. (Northern Cameroons, Preliminary Objections, Judgment of 2 Dec. 1963, ICJ Rep. 1963, p. 37)

58  It is true that the respondent in this case raised several preliminary objections, but the Court chose not to rule on them and preferred to declare that it could not adjudicate upon the merits of the claim for other reasons. 59  In the same direction, in the Free Zones case, the Permanent Court had said that it would be incompatible with the Statute and with its position as a court of justice “[t]o give a judgment which would be dependant for its validity on the subsequent approval of the Parties” ( Judgment of 7 June 1932, PCIJ A/B 46, p. 161). This has been understood as an issue of propriety (G. Gaja, “Relationship of the ICJ with Other International Courts and Tribunals”, in Oxford Commentary, note 32, p. 579).

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On the basis of these findings, it can be said today that the Court always reserves for itself a certain measure of discretion in order to decide whether or not it takes up a case or, more modestly, whether or not it replies to a question posed by one party to a case.60 The Northern Cameroons case is also particularly illustrative on this issue because in its judgment the Court found that, although it was always bound to discharge “[t]he duty to safeguard the judicial function,” whether or not there was jurisdiction over the case at hand at the time the application was filed, circumstances had later arisen that would “[r]ender any adjudication devoid of purpose.”61 This formulation was invoked in the subsequent decision in the Nuclear Tests cases, in which the Court, on the basis of certain actions taken by the non-appearing respondent after the proceedings had been instituted, found that the dispute submitted to it had disappeared and that therefore “[t]he claim advanced . . . no longer has any object. It follows that any further finding would have no raison d’être.”62 In the same decision, however, the Court was careful to caution that it did not consider itself to be entitled to “pick and choose” which cases it could entertain: This is not to say that the Court may select from the cases submitted to it those it feels suitable for judgment while refusing to give judgment in others. Article 38 of the Court’s Statute provides that its function is “to decide in accordance with international law such disputes as are submitted to it”; but not only Article 38 itself but other provisions of the Statute and Rules also make it clear that the Court can exercise its jurisdiction in contentious proceedings only when a dispute genuinely exists between the parties. In refraining from further action in this case the Court is therefore merely acting in accordance with the proper interpretation of its judicial function. (Nuclear Tests, Judgments of 20 Dec. 1974, ICJ Rep. 1974, p. 271, para. 57; p. 477, para. 60)63

60  In the Cameroon v. Nigeria case, the respondent invoked the Northern Cameroon precedent in order to graft a preliminary objection to the concept of judicial propriety. The Court rejected the objection, after a classic exercise in distinguishing the factual situations in both cases (Preliminary Objections, Judgment of 11 June 1998, ICJ Rep. 1998, pp. 308– 309, paras. 72–73). For a discussion of a similar situation in the Interim Accord case see Bordin’s Procedural Developments, LPICT, vol. 11 (2012), pp. 336–339. 61  Northern Cameroon, Preliminary Objections, Judgment of 2 Dec. 1963, ICJ Reports 1963, p. 38. 62  Nuclear Tests, Judgments of 20 Dec. 1974, ICJ Rep. 1974, p. 271, para. 56 and p. 476, para. 59. 63  In the subsequent Burkina Faso/Mali case a chamber of the Court also stressed that “[i]n the absence of “considerations which would lead it to decline to give judgment” (. . .), the

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In a joint dissent in the same case, several members of the Court elaborated further on the Court’s imperative duty to hear and determine the cases submitted to it, provided that it has the necessary competence: [The Court] has not the discretionary power of choosing those contentious cases it will decide and those it will not. Not merely requirements of judicial propriety, but statutory provisions governing the Court’s constitution and functions impose upon it the primary obligation to adjudicate upon cases brought before it with respect to which it possesses jurisdiction and finds no ground of inadmissibility. In our view, for the Court to discharge itself from carrying out that primary obligation must be considered as highly exceptional and a step to be taken only when the most cogent considerations of judicial propriety so require. (Nuclear Tests, Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock, ICJ Rep. 1974, p. 322)

Box # 2-7 Hypothetical questions The Court has endorsed the idea that it is entitled to make a purely declaratory judgment, a matter that of course is related to the nature of the remedies sought by the parties.64 However, the Court has also expressed a natural reluctance to give a decision on a question formulated in purely hypothetical terms, without taking into account the “actual framework of fact and law” that pertains to a given case. First, in the Memel case, the PCIJ referred rather timidly to the inconvenience resulting from the fact that some of the questions submitted to the Court had been “formulated as questions purely in abstracto, without any reference to the facts of the dispute which has arisen.” (Memel Territory, Merits, Judgment of 11 August 1932, PCIJ A/B 49, p. 311). This, however, did not preclude the Court from giving the decision requested. In the second place, in the context of advisory proceedings, the current Court has stressed:

Court is bound to fulfil the functions assigned to it by its Statute.” (Merits, Judgment of 22 Dec. 1986, ICJ Reports 1986, p. 577, para. 45). 64  Northern Cameroons, Preliminary Objections, Judgment of 2 Dec. 1963, ICJ Rep. 1963, p. 37. See Chapter 18 (iv). See also the joint dissenting opinion of judges Onyeama, Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock in the Nuclear Tests (Australia v. France) case, ICJ Rep. 1974, pp. 312–321.

Jurisdiction

The first, and principal, question submitted to the Court in the request is formulated in hypothetical terms : “1. Are the negotiation and notice provisions of Section 37 of the Agreement of 25 March 1951 between the World Health Organization and Egypt applicable in the event that either party to the Agreement wishes to have the Regional Office transferred from the territory of Egypt?” But 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. Accordingly, if a question put in the hypothetical way in which it is posed in the request is to receive a pertinent and effectual reply, the Court must first ascertain the meaning and full implications of the question in the light of the actual framework of fact and law in which it falls for consideration. Otherwise its reply to the question may be incomplete and, in consequence, ineffectual and even misleading as to the pertinent legal rules actually governing the matter under consideration by the requesting Organization. The Court will therefore begin by setting out the pertinent elements of fact and of law which, in its view, constitute the context in which the meaning and implications of the first question posed in the request have to ascertained. (Agreement between the WHO and Egypt, Advisory Opinion of 20 Dec. 1980, ICJ Rep. 1980, p. 76, para. 10)

It is also useful to recall in this context the admonitions by judge Fitzmaurice in the Northern Cameroons case on the impropriety of a court of law making abstract pronouncements: [i]t would be quite normal to allege in respect of a treaty that was no ­longer in force, that breaches of it which occurred during its currency had caused damage to the plaintiff State, for which the latter claimed compensation or other reparation. In the absence of such a claim however, the issue of whether there was a breach of the treaty while it was still in force, could only be an academic one: a judgment on that issue, even if favourable to the plaintiff State, could create no rights or obligations for either party to receive, enjoy, do or refrain from doing anything. Nor would the treaty any longer be in existence, so that the judgment

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could have no operative relevance by way of declaring the treaty’s correct interpretation or application. Such a judgment could at most afford a moral satisfaction to the party in whose favour it was pronounced, and could at most have an academic interest, however high its authority as a pronouncement of law. But courts of law are not there to make legal pronouncements in abstracto, however great their scientific value as such. They are there to protect existing and current legal rights, to secure compliance with existing and current legal obligations, to afford concrete reparation if a wrong has been committed, or to give rulings in relation to existing and continuing legal situations. Any legal pronouncements that emerge are necessarily in the course, and for the purpose, of doing one or more of these things. Otherwise they serve no purpose falling within or engaging the proper function of courts of law as a judicial institution. (Northern Cameroons, Preliminary Objections, Separate Opinion of Judge Fitzmaurice, ICJ Rep. 1963, pp. 98–99)

e)

The Title of Jurisdiction

The technical term “title of jurisdiction” designates the instrument or set of instruments in which the consent to jurisdiction by the parties to a case is expressed. The title of jurisdiction corresponds more precisely to what Article 38, para. 2 of the Rules of Court—dealing with the contents of an application— calls “[t]he legal grounds upon which the jurisdiction of the Court is said to be based.” The corresponding provision of the 1972 rules (Article 35, para. 2) used a slightly different formulation: “[t]he provision on which the applicant founds the jurisdiction of the Court.” It is suggested that the new formulation is better, because the term “provision” could be taken as directed to the article or articles of the Statute which provide the legal foundation of jurisdiction, rather than the instrument or instruments upon which the jurisdiction is said to be based in any given case. Under Article 38, para. 2 of the Rules, an application instituting proceedings should make mention of both elements. Given the strictly consensual nature of all international tribunals, it can be stated as a general proposition that in the field of international adjudication the title of jurisdiction must always be based on the consent of the parties to the case. In the case of the International Court, the crucial factor with regard to the categorization of the titles of jurisdiction is the question of timing, in the sense that the consent by a given State may be manifested at differ-

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ent moments. If one takes as a point of reference the moment the proceedings are instituted—which the Court has identified as the “critical date” for all purposes related to its jurisdiction—65 the emergence of the title of jurisdiction may happen before the institution of proceedings, may occur simultaneously with it or may even take place after the Court has been seised of a case. Hence, on the basis of this chronological element, a distinction may be drawn between different types of titles of jurisdiction or, what amounts to the same, between a diversity of manners in which States can manifest their consent to the jurisdiction of the Court. Accordingly, three general categories or types of titles of jurisdiction can be envisioned for the ICJ: an ad hoc title of jurisdiction (a special agreement or compromis); an ante hoc title of jurisdiction (treaties and declarations under the Optional Clause) and a post hoc title of jurisdiction (forum prorogatum).66 The first and third of these categories are different forms of an agreement to come to the Court so that it can deal with a specific dispute, with the difference that in the former the consent of the parties is embodied in an instrument that is express and formal and in a forum prorogatum situation the consent is given tacitly and the agreement to litigate can be derived from “conclusive acts” by the parties. Under a different model of classification, special agreements and forum prorogatum would be called “voluntary” titles of jurisdiction, as distinct from the “compulsory” titles, which would be treaties and declarations under the Optional Clause. Treaties and Optional Clause declarations, in particular, are the titles of jurisdiction which are more often used by the States that come before the ICJ. As stated above, we are in the presence of an ante hoc title of jurisdiction when consent to the Court’s jurisdiction is given before the introduction of proceedings and often long before the dispute arose. In this case, consent is given with regard to future, hypothetical disputes that have not yet arisen at the time the title of jurisdiction is born to legal life.

65  Arrest Warrant, Merits, Judgment of 14 Feb. 2002, ICJ Rep. 2002, p. 12, para. 26. The concept of the critical date in this context is discussed further in Chapter 5, a). 66  I have freely followed the typology proposed by Sir Gerald Fitzmaurice in his classical study on the law and procedure of the Court (Fitzmaurice’s Law and Procedure, vol. 2, pp. 496–511). The same model is used, among others, by K. Oellers-Frahm, “International Court of Justice”, in R. Bernhardt (Ed.), Encyclopedia of Public International Law (1992), vol. 2, p. 1089.

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Box # 2-8 Multiplicity of titles of jurisdiction i)

Concurrent Titles of Jurisdiction

In the Aegean Sea Continental Shelf case the Court referred tangentially to “[t]he problem of the co-existence of different instruments establishing methods of peaceful settlement.”67 This occurs when several titles of jurisdiction are brought to the Court’s attention within the framework of the same case and there may be some overlap between them. The situation is created when an applicant invokes as a basis for the Court’s jurisdiction more than one legal instrument, frequently referring to two ante hoc titles of jurisdiction, like a treaty and a set of declarations under the Optional Clause. Confronted with a situation in which one such treaty was entered into after the declarations of acceptance of the Court’s jurisdiction had been deposited, the PCIJ took a firm stance on that problem when it held that: [t]he multiplicity of agreements concluded accepting the compulsory jurisdiction is evidence that the contracting Parties intended to open new ways of access to the Court rather than to close the old ways or to allow them to cancel each other out with the ultimate result that no jurisdiction would remain. In concluding the Treaty on conciliation, arbitration and judicial settlement, the object of Belgium and Bulgaria was to institute a very complete system of mutual obligations with a view to the pacific settlement of any disputes which might arise between them. (. . .) It follows that if, in a particular case, a dispute could not be referred to the Court under the Treaty, whereas it might be submitted to it under the declarations of Belgium and Bulgaria accepting as compulsory the jurisdiction of the Court, in accordance with Article 36 of the Statute, the Treaty cannot be adduced to prevent those declarations from exercising their effects and disputes from being thus submitted to the Court. (Electricity Company, Preliminary Objection, Judgment of 4 April 1939, PCIJ A/B 77, p. 76)68

67  Aegean Sea Continental Shelf, Jurisdiction, Judgment of 19 Dec. 1978, ICJ Rep. 1978, p. 38, para. 92. 68  For an opposite view see the dissenting opinions of judges Anzilotti (PCIJ A/B 77, pp. 88– 93); Urrutia (ibid., p. 103 ff.); Van Eysinga (ibid., pp. 110–112) and Hudson (ibid., pp. 123–132). For a comment see J.H.W. Verzijl, “Adjudication Treaty versus Optional Clause”, in Verzijl’s Jurisprudence, vol. 1, pp. 571–583.

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The inverse situation—that of a treaty preceding a set of declarations—has presented itself in several instances, and judging from the way the Court has handled the matter it would appear that the solution would be the same followed by the PCIJ, i.e. to consider that the concurrent titles of jurisdiction are independent and alternative means of coming before the Court.69 The question appears to be one of method rather than of legal principle. Confronted with more than one legal instrument “upon which the jurisdiction of the Court is said to be based” the Court will probably start with examining that which is more likely to furnish a basis for its jurisdiction and will proceed to examine the other only if and when it has found that the former is not viable. By the same token, if the first title of jurisdiction is found valid and applicable to the case in question—or if its applicability to the case at hand is not disputed—70 the Court will likely conclude that it is not necessary for it to consider the other title or titles of jurisdiction. This is the approach followed by the Court in the cases ICAO Council ( Judgment of 18 Aug. 1972, ICJ Rep. 1972, p. 60); Armed Actions (Nicaragua v. Honduras, Jurisdiction and Admissibility, Judgment of 20 Dec. 1988, ICJ Rep. 1988, p. 90, para. 48) and Nicaragua v. Colombia (Preliminary Objections, Judgment of 13 Dec. 2007, ICJ Rep. 2007, p. 872, para. 132) and there is every reason to think that it will remain faithful to it in future cases.

ii) Additional Titles of Jurisdiction A special problem arises when the application refers to one legal instrument as a basis for the Court’s jurisdiction and in a subsequent pleading the applicant attempts to introduce an additional title of jurisdiction. When this has occurred the respondent party has invariably challenged this procedure and has contended that the only title of jurisdiction that the Court can act upon is that which is mentioned in the application. The Court was confronted with this problem in a particularly squarely manner in the Nicaragua case and resolved it by setting out, based on its previous case law, two conditions for allowing the invocation of additional basis of jurisdiction late in the day, namely: (one) That the applicant makes it clear

69  The point was examined at length in the joint dissenting opinion of judges Onyeama, Dillard, Jiménez de Aréchaga and Waldock in the Nuclear Tests (Australia v. France) case (ICJ Rep. 1974, pp. 348–349, para. 81; pp. 352–356, paras. 87–91). See also the dissenting opinion of judge Basdevant in the Norwegian Loans case (ICJ Rep. 1957, pp. 75–76). 70  Libya/Chad, Judgment of 3 Feb. 1994, ICJ Rep. 1994, p. 15, para. 22.

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that it intends to proceed upon that additional basis and (two) That the result is not to transform the dispute into another dispute. The first condition stems from the Norwegian Loans case and the second from the Société Commerciale de Belgique, an old case of the Permanent Court: [t]he Court has to turn to the other ground of jurisdiction relied on by Nicaragua, even though it is prima facie narrower in scope than the jurisdiction deriving from the declarations of the two Parties under the Optional Clause. [N]icaragua in its Application relies on the declarations of the Parties accepting the compulsory jurisdiction of the Court in order to found jurisdiction, but in its Memorial it invokes also a 1956 Treaty of Friendship, Commerce and Navigation between Nicaragua and the United States as a complementary foundation for the Court’s jurisdiction (. . .) The Court considers that the fact that the 1956 Treaty was not invoked in the Application as a title of jurisdiction does not in itself constitute a bar to reliance being placed upon it in the Memorial. Since the Court must always be satisfied that it has jurisdiction before proceeding to examine the merits of a case, it is certainly desirable that “the legal grounds upon which the jurisdiction of the Court is said to be based” should be indicated at an early stage in the proceedings, and Article 38 of the Rules of Court therefore provides for these to be specified “as far as possible” in the application. An additional ground of jurisdiction may however be brought to the Court’s attention later, and the Court may take it into account provided the Applicant makes it clear that it intends to proceed upon that basis (Certain Norwegian Loans, ICJ Rep. 1957, p. 25), and provided also that the result is not to transform the dispute brought before the Court by the application into another dispute which is different in character (Société Commerciale de Belgique, P.C.I.J., Series A/B, No. 78, p. 173). Both these conditions are satisfied in the present case. (Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, pp. 426–427, paras. 77, 80)

The issued has surfaced again in several cases, but always in the context of incidental proceedings on provisional measures, where the Court does not make a final determination concerning the existence of jurisdiction over the merits of the case. The first of these was the Genocide Convention (Bosnia) case, in which the Court, quoting approvingly from Nicaragua, admitted, for the purposes of the indication of provisional measures, the introduction of an

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a­ dditional basis of jurisdiction during the written proceedings. The Court also cautioned that, in general, simply by reserving a right to amend or supplement its application at a later stage, a State cannot “[c]onfer on itself a right to invoke additional grounds of jurisdiction:”71 (. . .) the Agent of the Applicant has, both in its Application instituting proceedings and in its second request for the indication of provisional measures, reserved “the right to revise, supplement or amend” the Application and the request respectively; (. . .) in reliance on these reservations, by letters dated 6 August, 10 August and 13 August 1993, he submitted that the Court’s jurisdiction is grounded not only on the jurisdictional bases previously put forward but also on certain additional texts, specified in the letters referred to; (. . .) the Applicant cannot, simply by reserving “the right to revise, supplement or amend” its Application or requests for provisional measures, confer on itself a right to invoke additional grounds of jurisdiction, not referred to in the Application instituting proceedings ; (. . .) it will be for the Court, at an appropriate stage of the proceedings, to determine, if necessary, the validity of such claims; (. . .); (. . .) the Court thus concludes that, for the purposes of a request for indication of provisional measures, it should therefore not exclude a priori such additional bases of jurisdiction from consideration, but that it should consider whether the texts relied on may, in all the circumstances, including the considerations stated in the decision quoted above, afford a basis on which the jurisdiction of the Court to entertain the Application might prima facie be established. (Genocide Convention (Bosnia), Provisional Measures II, Order of 13 Sept. 1993, ICJ Rep. 1993, pp. 338–339, paras. 27–28)

Secondly, in two of the Kosovo cases (Serbia and Montenegro v. Belgium) and (Serbia and Montenegro v. The Netherlands), the Court somehow retracted from this position and refused to admit the invocation of a new basis of jurisdiction attempted by the applicant when the oral proceedings were already in motion. The Court found that when an action taken so late in the day is objected by the other party this situation would be detrimental to procedural fairness and a sound administration of justice:

71  Reiterated, in even more general terms, in Avena, Merits, Judgment of 31 March 2004, ICJ Rep. 2004, pp. 28–29, para. 24.

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(. . .) the invocation by a party of a new basis of jurisdiction in the second round of oral argument on a request for the indication of provisional measures has never before occurred in the Court’s practice; (. . .) such action at this late stage, when it is not accepted by the other party, seriously jeopardizes the principle of procedural fairness and the sound administration of justice; and (. . .) in consequence the Court cannot, for the purpose of deciding whether it may or may not indicate provisional measures in the present case, take into consideration the new title of jurisdiction which Yugoslavia sought to invoke on 12 May 1999. (Kosovo (Serbia and Montenegro v. Belgium), (Serbia and Montenegro v. The Netherlands), Provisional Measures, Orders of 2 June 1999, ICJ Rep. 1999, p. 139, para. 44 and pp. 556–557, para. 44)

The following subsections of the present chapter will be devoted to discuss in summary terms the different titles of jurisdiction applicable in the case of the ICJ. The institution of forum prorogatum, constituting a post hoc title of jurisdiction, will be examined in more detail in the next section, since it underlines the transcendence that certain acts of procedure can have for the perfection of the jurisdiction of the Court in concrete cases. Ad hoc Title of Jurisdiction: The Special Agreement This is the simplest of all the titles of jurisdiction available at the ICJ. Its distinguishing feature is that when it is resorted to the consent to jurisdiction and the institution of proceedings take place at the same time and are often expressed in the same legal instrument: a “special agreement” that is usually referred to by the French term “compromis.”72 In the majority of cases referred to the Court on the basis of this title of jurisdiction the special agreement has had a dual character, serving both as the title of jurisdiction and as the method for introducing the proceedings.73

72  In the Peter Pázmány University case the PCIJ used the expression “special agreement of submission” to refer to a treaty providing for resort to the Court. It was rendered in the French version of the decision as “clause compromissoire” ( Judgment of 15 Dec. 1933, PCIJ A/B 61, p. 221). 73  To be precise, under Article 40, para. 1 of the Statute (supplemented by Article 39 of the Rules of Court) the introduction of proceedings is to be made by a notification of a special

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The situation in cases introduced by application is radically different because this method of seisin appears to be reserved for cases in which either there is an ante hoc title of jurisdiction (a treaty or a set of declarations under the Optional Clause) or a title of jurisdiction is not yet in existence and consent is given post hoc (forum prorogatum). The reason for this is that an application is a purely procedural document that can never constitute in itself a title of jurisdiction. Nevertheless, there are permutations available to States, like the case in which two States conclude a special agreement and decide to refer a given dispute to the Court but agree that the referral itself will be done by one of them by means of a separate act, i.e., by a unilateral application.74 The legal foundation for this title of jurisdiction is paragraph 1 of Article 36 of the Statute, according to which the Court’s jurisdiction comprises “all cases which the parties refer to it.” The Court’s jurisdiction under this heading is remarkably similar to that of an arbitral tribunal, just as the special agreement resembles closely the legal instruments by which ad hoc inter-State arbitrations are set up and put into motion. This title of jurisdiction works in a relatively simple manner: two or more States that are parties to a dispute agree to bring it before the Court and conclude for that purpose a special agreement.75 Judge Jiménez de Aréchaga described the essential features of this instrument in the following manner: [b]oth parties have come jointly to the Court, hand in hand as it were, after carefully considering who would be their adversary in the judicial proceedings; they have done so after protracted negotiations, first on the merits of the dispute, later on the peaceful method chosen for its settlement. They have thus exercised what Article 33 of the Charter of the United Nations and the Declaration of the General Assembly on Friendly Relations describe as the sovereign right of each State to have recourse to agreement and not by the agreement itself. This will be expanded when the methods for instituting proceedings are discussed, in Chapter 5. 74  For examples see Box # 5-6. Another possibility is that of two simultaneous applications concerning one and the same question, which gives rise to a case that is treated by the Court as if it was submitted by special agreement. 75  Although it is a straightforward mechanism, it is clear that the special agreement is not the most popular method for accepting the Court’s jurisdiction. At the present Court, out of the 128 contentious cases in the Court’s General List, it has been used on only 16 occasions, mostly on territorial or boundary matters (for a listing see ICJ Yearbook (2009–2010), p. 376). It has been remarked that none of the “big cases” that have come before the Court found their way to adjudication through a compromise (Ch. Tomuschat, “Article 36”, MN 42, pp. 662–663).

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“peaceful means of their own choice”. A Special Agreement embodies the accord of both parties that a particular subject-matter is ripe for judicial settlement. (Malta/Libya Continental Shelf, Application to Intervene, Separate Opinion of Judge Jiménez de Aréchaga, ICJ Rep. 1984, p. 63, para. 25)

It is important to note that special agreements have to conform to the governing instruments of the Court and in particular may not contain departures from the rules concerning procedural questions contained in the Statute. In the Free Zones case, before the PCIJ, the parties included in the compromis a joint request to the effect that the result of the Court’s deliberations on a preliminary question of interpretation referred to it should be communicated to their agents, unofficially and in each other’s presence, before the rendering of the decision. The Court acceded to the request by means of an order—thus, in a very official manner—but stressed the exceptional nature of the procedure followed in this case. The order contains the following admonition to drafters of future special agreements: [i]t is important to set forth clearly that special agreements whereby international disputes are submitted to the Court should henceforth be formulated with due regard to the forms in which the Court is to express its opinion according to the precise terms of the constitutional provisions governing its activity, in order that the Court may be able to deal with such disputes in the ordinary course and without resorting, as in the present case, to a construction which must be regarded as strictly exceptional. (Free Zones, Order of 19 August 1929, PCIJ A 22, p. 13)76

At a subsequent phase of the same case, judge Kellog submitted that every special agreement must be considered as containing the substantive provisions of the Statute, which is also the instrument that supplies the criteria for the proper interpretation of their clauses: This Court—a permanent Court of international justice—has, in its Statute, a fundamental law defining the limits of the jurisdiction it may exercise. As aptly remarked, in the argument, by the agent of the French Government (. . .), there are certain articles of the Court’s Statute against which the provisions of the Special Agreement of the Parties cannot 76  Se also PCIJ E 6, p. 295. This situation has never presented before the current Court.

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avail. Every Special Agreement submitting a case to this Court must be considered to have, as tacitly appended clauses thereto, all the pertinent clauses of the Court’s Statute and must, in case of doubt as to its meaning, be interpreted in the light of such provisions of the Statute of the Court. (Free Zones, Order of 6 Dec. 1930, PCIJ A 24, Observations by M. Kellog, p. 33)

A special agreement—which for all purposes is an international treaty—has legal consequences for both the Court and the parties. For the former, it is the instrument that contains the precise formulation of the question submitted to its jurisdiction, as crafted by the parties themselves.77 The wording of this provision is what limits the scope of the Court’s jurisdiction ratione materiae, and this is why States put so much care in the process commonly known as “framing the question.”78 The Court is bound to comply faithfully with the task entrusted to it by the parties, for, as a chamber of the Court recognized: “[i]n the task conferred upon it, [the Chamber] must conform to the terms by which the Parties have defined this task. If it did not do so, it would overstep its jurisdiction.”79 On the other hand, however, the Court has also underlined that while it must not exceed the jurisdiction conferred upon it by the Parties, “[i]t must also exercise that jurisdiction to its full extent.”80 Apart from the provision or provisions by means of which the question submitted to the Court’s jurisdiction is defined, the special agreement usually contains clauses concerning basic aspects of the procedure to be followed, in particular as to the number and order of the pleadings to be filed during the written stage of proceedings. This is recognized by the provision in the Rules governing that question—Article 46—in which due deference to what the parties may agree among them in that regard is paid.81

77  However, the Court retains for itself a wide measure of discretion with regard to the precise characterization of the dispute brought before it, even in proceedings instituted by special agreement (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment of 4 Dec. 1998, ICJ Rep. 1998, p. 448, para. 29). On this, see Chapter 5, c). 78  P. Tomka, “The Special Agreement”, in N. Ando (ed), Liber Amicorum Judge Shigeru Oda (2002), vol. 1, pp. 559–561; H. Thirlway “Compromis”, MN 10, in Max Planck EPIL; Lauterpacht, “Principles. . .”, pp. 494–495. 79  Gulf of Maine, Judgment of 12 Oct. 1984, ICJ Rep. 1984, p. 266, para. 23. 80  Malta/Libya Continental Shelf, Merits, Judgment of 3 June 1985, ICJ Rep. 1985, p. 23, para. 19. 81  For a detailed account of the contents of special agreements used in arbitral practice see Mani’s Adjudication, p. 57.

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The conclusion of this agreement is not subject to special formalities. In line with the flexibility that the Court has always favored on matters of form, it has admitted that a press communiqué issued at the end of a meeting between high officials of two States is capable of constituting a special agreement to bring a dispute before the Court. In the Aegean Sea Continental Shelf case the Court held in firm terms: On the question of form, the Court need only observe that it knows of no rule of international law which might preclude a joint communiqué from constituting an international agreement to submit a dispute to arbitration or judicial settlement (cf. Arts. 2, 3 and 11 of the Vienna Convention on the Law of Treaties). Accordingly, whether the Brussels Communiqué of 31 May 1975 does or does not constitute such an agreement essentially depends on the nature of the act or transaction to which the Communiqué gives expression; and it does not settle the question simply to refer to the form—a communiqué—in which that act or transaction is embodied. (Aegean Sea Continental Shelf, Jurisdiction, Judgment of 19 Dec. 1978, ICJ Rep. 1978, p. 39, para. 96)82

Very often, in the conclusion of a special agreement a simplified procedure is used for reasons of expediency. While this may have serious legal implications from the point of view of the municipal law of the parties, this is a matter that it is only for each of them to take into consideration. If a question like this ever comes before the Court, this body will only concern itself with ascertaining whether, under international law, the agreement was concluded by a proper representative of the State concerned. In the Qatar v. Bahrain case, for instance, the respondent disputed the very existence of a special agreement to bring the dispute before the Court and contended, among other things, that the agreement had been concluded in violation of its own constitutional provisions concerning the conclusion of international treaties. The Court disposed easily of this argument, based on the fact that the agreement bore the signature of the Foreign Ministers of both countries and constituted for all purposes an international treaty.83 82  However, an informal agreement between States reached in the course of advisory proceedings cannot be said to constitute a special agreement, because this would entail a violation of the rule prescribing that only certain international bodies are entitled to request an advisory opinion (PCIJ E 8, p. 255). 83  Qatar v. Bahrain, Jurisdiction and Admissibility I, Judgment of 1 July 1994, ICJ Rep. 1994, pp. 120–122, paras. 21–30. See further J. Klabbers, “Qatar v. Bahrain: The concept of “treaty” in international law”, Archiv des Volkerrechts, vol. 33 (1995), pp. 361–376; S. Rosenne, “The

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Similarly, on requiring the registration of the special agreement with the Secretary-General of the United Nations—or the lack of it—the practice of the Court has not been consistent and the legal literature is not in agreement.84 In general, in cases introduced by special agreement it is highly unlikely that one of the parties will subsequently challenge the existence of jurisdiction.85 However, it is often the case that after seisin a further difference arises between the parties as to the actual interpretation of the clauses of the agreement, as far as the precise scope of that jurisdiction is concerned. In fact, it is only natural that when presenting their case to the Court in their respective pleadings the parties advance opposite claims as to that aspect.

Box # 2-9 Interpretation of the special agreement 86 Following the steps of the PCIJ, the Court has stressed that the construction of the provisions of a special agreement providing for the referral of a dispute to the Court has to be made in accordance with the generally accepted rules of interpretation of international treaties.87 Among those rules, the Court has singled out two, namely the principle of effet utile and the intention of the parties.

i) The effet utile Principle This was mentioned by the current Court in the Corfu Channel case, quoting with approval two decisions by its predecessor:

Qatar/Bahrain Case. What is a Treaty? A Framework Agreement and the Seising of the Court”, LJIL, vol. 8 (1995), pp. 161–182. At the time of the PCIJ the question may have been different, as ratification was usually required for this type of agreements. On the practice in this regard see PCIJ E 10, pp. 156–157; PCIJ D 2, Add. 3, p. 818. 84  See Tomuschat, “Article 36”, MN 45, p. 664 and the sources mentioned thereto. 85  Noted in passim by a chamber of the Court in the Gulf of Maine case ( Judgment of 12 Oct. 1984, ICJ Rep. 1984, p. 265, para. 19). For a special agreement case in which one of the parties did file preliminary objections see Borchgrave, Preliminary Objections, Judgment of 6 Nov. 1937, PCIJ A/B 72, p. 157. 86  A. Orakhelashvili, “Interpretation of Jurisdictional Instruments in International Dispute Settlement”, LPICT, vol. 6 (2007), pp. 170–182. See also Muller’s Procedural Developments, LPICT, vol. 4 (2005), pp. 502–505. 87  The PCIJ also remarked that ordinarily questions of interpretation of a special agreement were not to be treated as preliminary questions and no special phase of the proceedings needed to be opened to deal with them (PCIJ E 10, p. 157).

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It would indeed be incompatible with the generally accepted rules of interpretation to admit that a provision of this sort occurring in a special agreement should be devoid of purport or effect. In this connexion, the Court refers to the views expressed by the Permanent Court of International Justice with regard to similar questions of interpretation. In Advisory Opinion No. 13 of July 23rd, 1926, that Court said (. . .): “But, so far as concerns the specific question of competence now pending, it may suffice to observe that the Court, in determining the nature and scope of a measure, must look to its practical effect rather than to the predominant motive that may be conjectured to have inspired it.” In its Order of August 19th, 1929, in the Free Zones case, the Court said (. . .): “in case of doubt, the clauses of a special agreement by which a dispute is referred to the Court must, if it does not involve doing violence to their terms, be construed in a manner enabling the clauses themselves to have appropriate effects”. (Corfu Channel, Merits, Judgment of 9 April 1949, ICJ Rep. 1949, p. 24)

Also in the Free Zones case, the PCIJ had admitted that every special agreement must be interpreted strictly but warned that “this rule could not be applied in such a way as to give the Special Agreement, under the guise of strict interpretation, a construction according to which it would not only fail entirely to enunciate the question really in dispute, but would, by its very terms, have prejudged the answer to that question.” (Judgment of 7 June 1932, PCIJ A/B 46, pp. 138–139).

ii) The Intention of the Parties As it can be seen, in the dictum from 1926 quoted above the Permanent Court apparently assigned more value to the “practical effect” of the provisions of the special agreement than to the “predominant motive that may be conjectured to have inspired it.” In apparent contradiction to that, in the Malta/Libya Continental Shelf case the current Court was explicit in admitting the importance that the intention of the parties have for purposes of interpretation of an instrument conferring jurisdiction to it, adding that the only limits to that jurisdiction are those placed by the parties themselves:

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Since the jurisdiction of the Court derives from the Special Agreement between the Parties, the definition of the task so conferred upon it is primarily a matter of ascertainment of the intention of the Parties by interpretation of the Special Agreement. The Court must not exceed the jurisdiction conferred upon it by the Parties, but it must also exercise that jurisdiction to its full extent. (Malta/Libya Continental Shelf, Merits, Judgment of 3 June 1985, ICJ Rep. 1985, p. 23, para. 19)

In the El Salvador/Honduras case, a chamber of the Court construed the compromis relying heavily on the “application of the normal rules of treaty interpretation,” as reflected in the Vienna Convention on the Law of Treaties. In doing so, it stressed the importance of having regard to the parties’ “common intention as it is expressed in the words of the Special Agreement” and pointed out that jurisdiction is created only when there is a “meeting of minds” of the parties concerning the submission of their dispute to adjudication. On the face of the text of the Special Agreement, no reference is made to any delimitation by the Chamber. For the Chamber to have the authority to delimit maritime boundaries, whether inside or outside the Gulf, it must have been given a mandate to do so, either in express words, or according to the interpretation of the Special Agreement. It is therefore necessary, in application of the normal rules of treaty interpretation, to ascertain whether the text is to be read as entailing such delimitation. If account be taken of the basic rule of Article 31 of the Vienna Convention on the Law of Treaties, according to which a treaty shall be interpreted “in accordance with the ordinary meaning to be given to the terms”, it is difficult to see how one can equate “delimitation” with “determination of a legal situation . . .” (“Que determine la situación jurídica . . .”) No doubt the word “determine” in English (and, as the Chamber is informed, the verb “determinar” in Spanish) can be used to convey the idea of setting limits, so that, if applied directly to the “maritime spaces” its “ordinary meaning” might be taken to include delimitation of those spaces. But the word must be read in its context; the object of the verb “determine” is not the maritime spaces themselves but the legal situation of these spaces. No indication of a common intention to obtain a delimitation by the Chamber can therefore be derived from this text as it stands.

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(. . .) In the Chamber’s view, however, in interpreting a text of this kind it must have regard to the common intention as it is expressed in the words of the Special Agreement. (El Salvador/Honduras, Merits, Judgment of 11 Sept. 1992, ICJ Rep. 1992, pp. 582, 584, paras. 373, 376)

The chamber also acknowledged that under the Vienna Convention the governing criteria for the interpretation of special agreements is the ordinary meaning of the text and that additional elements such as the circumstances of the celebration or subsequent practice play only a subsidiary role. (. . .) In effect, what Honduras is proposing is recourse to the “circumstances of the conclusion” of the Special Agreement, but these, it is generally recognized, constitute no more than a supplementary means of interpretation, used only where the meaning of the text is ambiguous or obscure, or the interpretation would lead to a manifestly absurd or unreasonable result (see Vienna Convention on the Law of Treaties, Art. 32). (. . .) (. . .) It is true that, as Honduras observes, States may and do draft definitions of disputes to be submitted to a settlement procedure in terms which will avoid any clear surrender of the legal position of either of them. In the present case the Parties have reserved their legal positions in this way on the question whether the legal situation of the waters of the Gulf is such as to require or permit a delimitation; that will be a question for the Chamber to decide. But there can be no such reservation of the question of what the jurisdiction of the tribunal to be seised of the dispute will be, since it is only from the meeting of minds on that point that jurisdiction is created. Honduras in effect interprets the Special Agreement to mean that the Parties intended that the Chamber should decide for itself whether it has jurisdiction to delimit the maritime spaces; but a positive decision to that effect could only be based on the consent of both Parties to a judicial delimitation, which, on Honduras’s own argument, is lacking. The Chamber concludes that there was agreement between the Parties, expressed in Article 2, paragraph 2, of the Special Agreement, that the Chamber should determine the legal situation of the maritime spaces, but that this agreement did not extend to delimitation of those spaces, as part of that operation.

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Honduras has also invoked the rule that subsequent practice of the parties may be taken into account to interpret a treaty. The Chamber considers that, while both customary law and the Vienna Convention on the Law of Treaties (Art. 31, para. 3 (b)) contemplate that such practice may be taken into account for purposes of interpretation, none of these considerations raised by Honduras can prevail over the absence from the text of any specific reference to delimitation. (El Salvador/Honduras, Merits, Judgment of 11 Sept. 1992, ICJ Rep. 1992, pp. 584, 585–586, paras. 376, 378–380)

Ante hoc Title of Jurisdiction I: Treaties and Agreements The first ante hoc title of jurisdiction consists of a provision in a treaty that contemplates recourse to the Court in certain circumstances and is called a “jurisdictional” or a “compromissory” clause. The legal basis for this is found in Article 36, para. 1 of the Statute, providing that: “The jurisdiction of the Court comprises . . . all matters specially provided for . . . in treaties and conventions in force.” There are several modalities for this title of jurisdiction. The treaty in question might be bilateral or multilateral and may consist of a convention on peaceful settlement containing provisions on judicial procedure, a treaty exclusively devoted to the judicial settlement of disputes, an optional protocol to a general convention dealing with dispute settlement or a treaty on a specific matter that contains a jurisdictional clause. The Court’s Yearbook includes a listing of instruments of this nature and the latest edition available contains over 300 treaties, out of which some 85 are multilateral, both regional and ­universal.88 Additionally, the more than 500 treaties of the same type that were in force at the time of the dissolution of the PCIJ have to be factored in, as the jurisdictional clauses contained in them may be applicable in litigation before the present Court, under the provisions of Article 37 of the Statute.89

88  ICJ Yearbook (2009–2010), pp. 181–202. 89  Information concerning these treaties was included in the publication Collection of Texts Governing the Jurisdiction of the Court, PCIJ D 6. The fourth edition of this publication appeared in 1932 and between 1932 and 1938 a total of seven addenda were published. For the notion of transference of jurisdiction from the PCIJ to the ICJ see Box # 2-11.

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Although there are still a number of bilateral treaties specifically devoted to the peaceful settlement of disputes in force, they are rare nowadays.90 As for general multilateral treaties on the same subject, there are only three in existence in which resort to the ICJ features as one of the procedures available to States for the settlement of their disputes: the 1928 General Act for the Pacific Settlement of International Disputes (revised in 1949);91 the 1948 American Treaty on Pacific Settlement or “Pact of Bogotá”92 and the 1957 European Convention for the Peaceful Settlement of Disputes. All of them have been invoked before the Court as a title of jurisdiction in contentious cases.93 In the case of a treaty on dispute settlement that confers jurisdiction to the Court to entertain disputes that may arise in the future between the parties, the commitment that the States parties assume toward compulsory adjudication is larger and riskier than in the case of a treaty on a given matter in which there is a proviso submitting to judicial settlement eventual disputes as to the interpretation and application of its clauses. This was attested by the Court

90  In the list of treaties included in the Court’s Yearbook only seven bilateral treaties devoted to peaceful or judicial settlement can be found. They are the following: Colombia/ Venezuela (1939); Brazil/Venezuela (1940); Turkey/Italy (1950); Finland/Denmark (1953); Italy/Brazil (1954); Greece/Sweden (1956); and UK/Switzerland (1965). This list includes, of course, several treaties devoted to other matters which contain jurisdictional clauses. 91  On the status of the General Act see, in general, J.G. Merrills, “The International Court of Justice and the General Act of 1928”, Cambridge LJ, Vol. 39 (1980), pp. 137–171; C. Tomuschat, “The 1928 General Act for the Pacific Settlement of International Disputes Revisited”, in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge Shigeru Oda (2002), vol. 2, pp. 977–994. Some of the problems raised with regard to this treaty were examined at length in the dissenting opinion of judge De Castro in the Nuclear Tests (Australia v. France) case (ICJ Rep. 1974, pp. 377–384). 92  E. Jiménez de Aréchaga, “The Compulsory Jurisdiction of the International Court of Justice under the Pact of Bogota and the Optional Clause”, in Y. Dinstein (Ed.), International Law at a Time of Perplexity-Essays in honour of Shabtai Rosenne (1989), p. 356; E. Orihuela Calatayud, “El Pacto de Bogotá y la Corte Internacional de Justicia”, REDI, vol. 42 (1990), pp. 415 ff.; E. Valencia-Ospina, “The Role of the International Court of Justice in the Pact of Bogota”, in C. Armas Barea et al (Eds.), Liber Amicorum ‘In Memoriam’ of Judge José María Ruda (2000), pp. 291–329. 93  The Pact of Bogota has been admitted by the Court as a basis for jurisdiction in several cases: Armed Actions (Nicaragua v. Honduras); Nicaragua v. Honduras; Nicaragua v. Colombia, Navigational Rights, Perú v. Chile. It has also been invoked in several cases, some of which are pending at the time of writing (Activities in the Border Area; Construction of a Road; Obligation to Negotiate Access). The European Convention has been invoked as a basis for jurisdiction in the Certain Property and Jurisdictional Immunities cases.

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in the two Fisheries Jurisdiction cases, in which it contrasted “instruments in which the parties had assumed a general obligation to submit to judicial settlement all or certain categories of disputes which might arise between them in the unpredictable future” with bilateral agreement that contained “a definite compromissory clause establishing the jurisdiction of the Court to deal with a concrete kind of dispute which was foreseen and specifically anticipated by the parties.”94 For this reason, it is common for those treaties or general clauses to include limitations concerning particular classes of disputes that are excluded by common agreement. In the early stages of international adjudication this exception normally referred to disputes concerning matters that affected the “independence,” “vital interests” or “national honor” of the parties. More often than not, restrictions of this type completely blocked the operation of the system of judicial settlement, particularly when the State parties also reserved for themselves the ultimate right to decide whether a given dispute fell under the provision in question. In the modern regime on international adjudication these exceptions are clearly out of fashion but new types have emerged, such as the one concerning matters that by their very nature fall under the domestic jurisdiction of the States. In the case of the Pact of Bogota of 1948, for instance, exceptions are made for matters falling within the domestic jurisdiction of the State (Article 5), matters already settled or governed by legal instruments in force at the date of the Pact’s conclusion (Art. 6) and matters concerning diplomatic protection where local remedies have not been exhausted (Art. 7). According to the Court, these constitute “provisions of the Treaty [that] restrict the scope of the parties’ commitment.”95 For the Court, a jurisdictional clause is “[a]ny clause which provides for recourse to an indicated forum, on the part of a specified category of litigant, in relation to a certain kind of dispute.”96 When a jurisdictional clause is invoked in proceedings before the Court, the State in question must show that what the Court has called the “preconditions on the seisin of the International Court of Justice” are fulfilled.97 As the Court stated in the Application for Revision

94  Fisheries Jurisdiction (UK v. Iceland) and (Germany v. Iceland), Jurisdiction, Judgments of 2 Feb. 1973, ICJ Rep. 1973, p. 16, para. 29; p. 60, para. 29. 95  Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment of 20 Dec. 1988, ICJ Rep. 1988, p. 84, para. 35. 96  South West Africa, Second Phase, Judgment of 18 July 1966, ICJ Rep. 1966, p. 39, para. 64. 97  Armed Activities (DRC v. Rwanda), Provisional Measures, Order of 10 July 2002, ICJ Rep. 2002, p. 247, para. 78.

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and Interpretation-Tunisia/Libya Continental Shelf case, an important aspect of principle is involved here: It is of course a fundamental principle that “The consent of States, parties to a dispute, is the basis of the Court’s jurisdiction in contentious cases” (. . .). It follows . . . that parties to treaties or special agreements are free to make their consent to the seisin of the Court, and hence the Court’s jurisdiction, subject to whatever pre-conditions, consistent with the Statute, as may be agreed between them; (. . .). When examining its jurisdiction under Article 36 of the Statute, the Court is accordingly bound to examine and give effect both to any such jurisdictional pre-conditions (. . .). (Application for Revision and Interpretation, Tunisia/Libya Continental Shelf, Judgment of 10 Dec. 1985, ICJ Rep. 1985, p. 216, para. 43)98

These preconditions vary from case to case. The most common are those requiring that the dispute is “not satisfactorily adjusted by diplomacy” and that with regard to it the parties have not “agree[d] to settlement by some other pacific means.”99 In the Armed Activities II (DRC v. Rwanda) case the Court made the important point that the examination of whether these pre-conditions operate or not with regard to a specific case is a matter of jurisdiction and not of admissibility: The Court recalls in this regard that its jurisdiction is based on the consent of the parties and is confined to the extent accepted by them (. . .). When that consent is expressed in a compromissory clause in an international agreement, any conditions to which such consent is subject must be regarded as constituting the limits thereon. The Court accordingly considers that the examination of such conditions relates to its jurisdiction and not to the admissibility of the application. (Armed Actions II (DRC v. Rwanda), Jurisdiction and Admissibility, Judgment of 3 Feb. 2006, ICJ Rep. 2006, p. 39, para. 88)

The Court also clarified in the South West Africa case that jurisdictional clauses are, in principle, “adjectival not substantive in their nature and effect.”100 This 98  See also South West Africa, Second Phase, Judgment of 18 July 1966, ICJ Rep. 1966, p. 37, para. 60. 99  For a comment on the treatment of this question in the Obligation to Prosecute or Extradite case see Bordin’s Procedural Developments, LPICT, vol. 12 (2013), pp. 90–93. 100  South West Africa, Second Phase, Judgment of 18 July 1966, ICJ Rep. 1966, p. 39, para. 64.

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means that, save for special cases, the normal rule is that in any given dispute the substantive rights to which it refers must not be sought in the jurisdictional clause allowing for the dispute to be brought to adjudication and “must therefore be established aliunde vel aliter.” In the words of the Court: Jurisdictional clauses do not determine whether parties have substantive rights, but only whether, if they have them, they can vindicate them by recourse to a tribunal. (South West Africa, Second Phase, Judgment of 18 July 1966, ICJ Rep. 1966, p. 39, para. 65)

More recently, the Court remarked that, as the scope of every provision in a treaty is always limited both ratione personae and ratione materiae, all jurisdictional clauses operate under these limitations: When a compromissory clause in a treaty provides for the Court’s jurisdiction, that jurisdiction exists only in respect of the parties to the treaty who are bound by that clause and within the limits set out in that clause. (Armed Activities (DRC v. Rwanda) II, Provisional Measures, Order of 10 July 2002, ICJ Rep. 2002, p. 245, para. 71)101

A further issue—and a specially thorny one—connected to the construction of jurisdictional clauses that provide for resort to the Court for the settling of disputes as to the interpretation and application of a given treaty is that they usually present the Court with a tough choice: when a State invokes one such clause it is essentially contending that a given dispute (defined by reference to certain facts) comes within the purview of that clause. In other words, it appears that the applicant has to establish a connection between the facts giving rise to the dispute and the substantive clauses of the treaty concerned. As the Court put it in the Nicaragua case with regard to a bilateral treaty adduced by the applicant as a basis for jurisdiction: “[i]n order to establish the Court’s jurisdiction over the present dispute under the Treaty, Nicaragua must establish a reasonable connection between the Treaty and the claims submitted to the Court.”102 It follows that, if jurisdiction is challenged, the Court will have

101  Reaffirmed subsequently at the preliminary phase of the same case (Armed Activities II (DRC v. Rwanda), Jurisdiction and Admissibility, Judgment of 3 Feb. 2006, ICJ Rep. 2006, p. 32, para. 65). 102  Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 427, para. 81, emphasis added.

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to take a stance on the nature of that connection in order to be able to determine that it has—or, indeed, that it lacks—jurisdiction. The question refers basically to the methodology that the Court is to follow for determining whether a particular claim falls within the scope of a specific jurisdictional clause. The problem lies in the fact that the Court’s discretion in this matter lies equidistant from two approaches equally plagued with difficulties. If, on one hand, the Court limits itself to establishing a tenuous or merely plausible connection between the facts and the substantive provisions of the treaty, there is a risk that it would be embracing a very low threshold and it would be affirming jurisdiction only on a basis of unsubstantiated allegations, something that runs counter to the rights of the respondent and is not wholly compatible with the good administration of justice. On the other hand, if it enters into a thorough examination of the legal aspects of jurisdiction, by reference to the likely applicability of the treaty’s substantive provisions to the facts alleged by the applicant, it runs the risk of grossly protruding into the merits of the case, which is also improper for the Court to do at the jurisdictional stage. The jurisprudence of the Court on this aspect is far from coherent as both the PCIJ and the ICJ have used different methodologies at different times for the handling of situations of this type. Both courts have embraced on occasion the two opposite approaches outlined above, ranging from the “provisional conclusion” or “reasonable connection” method, first adopted by the PCIJ in the Nationality Decrees in Tunis and Morocco case (1923), to the “exhaustive examination” test, embraced by the same tribunal in the Mavrommatis case (1924). In the present Court, the former approach may be said to have been followed in the Ambatielos (1953), Interhandel (1959) and Nicaragua (1984) cases, while the latter one was followed in the ICAO Council (1972), Oil Platforms (1996) and Kosovo (1999) cases.103 Referring to these cases, judge Higgins has aptly commented: [t]hey reveal a struggle between the idea that it is enough for the Court to find provisionally that the case for jurisdiction has been made, and the alternative view that the Court must have grounds sufficient to determine definitively at the jurisdictional phase that it has jurisdiction. (Oil Platforms, Preliminary Objection, Separate Opinion of Judge Higgins, ICJ Rep. 1996, p. 849, para. 9)104

103  See a thorough review of the relevant case law in Tomuschat, “Article 36”, MN 62–65, pp. 673–675. 104  This opinion contains a detailed analysis of the problem. See also the separate opinion of judge Ranjeva in the same case (ICJ Rep. 1996, pp. 842–846).

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In any event, on the basis of the more recent decisions that touch upon this aspect of the Court’s jurisdiction, an authoritative commentator has concluded that it is indeed the more stringent test that appears to be currently favored, with the caveat that the Court will always make a conscious effort to leave the final determination of the facts for the merits stage: In sum, it may be concluded that concerning the legal aspects of a compromisory clause, the Court will proceed to an exhaustive examination. As far as the factual aspects are concerned, the Court will generally abstain from ascertaining the veracity of the facts invoked. On the other hand, it could not blindly follow allegations which are clearly at variance with the real situation.105 Ante hoc Title of Jurisdiction II: The Optional Clause System The Optional Clause is the name given to the provision found in Article 36, para. 2 of the Court’s Statute, according to which the States parties are free to make at any time a declaration recognizing the jurisdiction of the Court as compulsory in all legal disputes with other States that have made the same declaration, thus becoming States “accepting the same obligation.” A State making a declaration under the Optional Clause enters into a solemn commitment to take part in future cases before the Court that may be brought against it by any other State party to the system, within the conditions set forth in other provisions of Article 36, particularly paragraphs 3 to 5.

Box # 2-10 The “consensual bond”: Nature and effects of Optional Clause declarations The expression “consensual bond” was first used in the Right of Passage case, in which the Court stated that this is “the basis of the Optional Clause” (Preliminary Objections, Judgment of 26 Nov. 1957, ICJ Rep. 1957, p. 146). In the Fisheries Jurisdiction (Spain v. Canada) case, the Court stated that although there is no doubt as to the character of the declarations as unilateral acts of States, a special feature of them is that they give rise to a “consensual bond” with the other States parties to the system:

105  Tomuschat, “Article 36”, MN 65, p. 675.

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A declaration of acceptance of the compulsory jurisdiction of the Court, whether there are specified limits set to that acceptance or not, is a unilateral act of State sovereignty. At the same time, it establishes a consensual bond and the potential for a jurisdictional link with the other States which have made declarations pursuant to Article 36, paragraph 2, of the Statute (. . .) (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction, Judgment of 4 Dec. 1998, ICJ Rep. 1998, p. 453, para. 46)

This “consensual bond” only operates with regard to other States “accepting the same obligation,” as provided for in Article 36, para. 2. In essence, therefore, the declaration is a unilateral act that creates a series of bilateral sets of legal relationships. As the Court put it in the Nicaragua case: Declarations of acceptance of the compulsory jurisdiction of the Court are facultative, unilateral engagements that States are absolutely free to make or not to make. (. . .) the declarations, even though they are unilateral acts, establish a series of bilateral engagements with other States accepting the same obligation of compulsory jurisdiction. (Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 418, paras. 59 and 60)

However, it is important to note that when a State makes a declaration it does not only enter into a legal relationship with every State already belonging to the system, but also makes an offer to that effect to all those States who have not yet done so: Any State party to the Statute, in adhering to the jurisdiction of the Court in accordance with Article 36, paragraph 2, accepts jurisdiction in its relations with States previously having adhered to that clause. At the same time, it makes a standing offer to the other States party to the Statute which have not yet deposited a declaration of acceptance. (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction, Judgment of 4 Dec. 1998, ICJ Rep. 1998, p. 291, para. 25)

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The jurisdiction bestowed upon the Court by virtue of Optional Clause declarations is normally referred to as “compulsory jurisdiction,” but it may be noted that the jurisdiction granted to the Court by virtue of “treaties and conventions in force” under Article 36, para. 1 is also “compulsory,” in the sense that it is binding on the States parties to those instruments and under their terms. There is then a selected group of States among the parties to the Statute of the Court that belong to what is called the “Optional Clause System” and that have submitted themselves, voluntarily, to the compulsory jurisdiction of the Court with respect to the disputes listed in paragraph 2 of Article 36.106 This provision, one of the better-known articles of the Statute, reads as follows: 2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. b. c. d.

the interpretation of a treaty; any question of international law; the existence of any fact which, if established, would constitute a breach of an international obligation; the nature or extent of the reparation to be made for the breach of an international obligation.

As it was mentioned in a different context, this enumeration of “legal disputes” was included for the first time in Article 13, para. 2 of the Covenant of the League of Nations with the express aim of underlining the sort of disputes that were “generally suitable for submission to arbitration or judicial settlement.” A valid criticism may be voiced to this listing on the basis that the categories in letters a., c. and d. are somewhat superfluous, because each one of them is, on its own merits and without the slightest doubt, a “question of international law” as those mentioned in letter b.107 In general, the record of States with regard to the making of declarations of acceptance of the Court’s jurisdiction is not very impressive, and is clearly not 106  At the time of writing, 67 States were parties to the Optional Clause System, six of them since the time of the PCIJ. 107  H. Kelsen, “Principles. . .”, p. 530. See also Hudson’s PCIJ, p. 461; Tomuschat, “Article 36”, MN 81, p. 682.

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as good as that registered during the first phase of international adjudication, before the PCIJ. In 1925, for instance, out of a community of States to which the Court was open conformed by 36 States, 23 of them or nearly two-thirds had accepted the compulsory jurisdiction under the Optional Clause. In 2011, out of a community conformed by 193 States, only one-third had done so.

Box # 2-11

Transferred jurisdiction

The two modalities of titles of jurisdiction ante hoc share the important feature that with regard to both of them the mechanism of “substitution of forum”108 or transfer of jurisdiction from the Permanent Court of International Justice to the International Court of Justice is applicable, under the provisions of Article 36, para. 5 and Article 37 of the Court’s Statute. This means that the present Court “inherited” to a large extent the jurisdiction of the PCIJ that was based on treaties and Optional Clause declarations that were in force at the date of the latter’s demise. In general, the effect of the provisions of the Statute just mentioned is the same, and consequently the compulsory jurisdiction of the PCIJ, both under treaties and under the Optional Clause, was carried on to the current Court, to the effect that there was in effect what has been called a “[g]eneral system of devolution from the old Court to the new.”109 The basic conditions of application of these two provisions are identical and comprise: (i)  The declaration or the treaty in question must provide for the acceptance of the jurisdiction of the PCIJ; (ii)  The declaration or the treaty must be binding on States that are parties to the Statute of the current Court; and (iii) The declaration or the treaty must still be in force. However, in the Court’s own view the parallel regimes created by Articles 36, para. 5 and 37 of the Statute are not exactly the same, largely because it has given them a differential treatment.

108  Barcelona Traction (New Application: 1962), Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964, p. 28. 109  Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 408, para. 35.

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The leading case for the understanding of the Court’s transferred jurisdiction under the Optional Clause is Aerial Incident (Israel v. Bulgaria), decided in 1959. The respondent in that case, Bulgaria, was not an original signatory of the UN Charter and the Court found that this factor rendered inapplicable to it the “transitional” provision embodied in Article 36, para. 5 of its Statute to that State (Preliminary Objections, Judgment of 26 May 1959, ICJ Rep. 1959, pp. 136–143).110 There are no cogent reasons why this finding could not apply mutatis mutandis to Article 37, a provision in the Statute that also seeks to produce among States parties a transfer of the jurisdiction from the old Court to the current one, only this time as regards to treaties or conventions in force. And yet, at the first available occasion—the Barcelona Traction (New Application: 1962) case, decided in 1964—the Court distanced itself from the construction it had adopted in Israel v. Bulgaria and decided that the regime on the transfer of jurisdiction embodied in Article 37 operates under radically different, less stringent conditions (Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964, pp. 27–34). This decision has been criticized because its reasoning is clearly not as persuasive as the one adopted in that previous case.111 In any case (as noted by the Court itself) there is no doubt that the number of treaties and conventions dating from the time of the Permanent Court that can still be invoked to found the jurisdiction of the Court is by far larger than the number of surviving Optional Clause declarations from the same time.112 This alone appears to have been a major factor of policy militating for the approach followed by the Court with regard to the interpretation of Article 37 of the Statute. Finally, in the Kosovo (Serbia and Montenegro v. Belgium) case, the Court explicitly confirmed the validity of the Barcelona Traction precedent with regard to the conditions of applicability of Article 37 of the Statute—including in particular the fact that the reference to a treaty “being in force” in that

110  This decision was invoked by Thailand in the Temple case in order to support its unsuccessful challenge to the Court’s jurisdiction. The Court described the essence of the decision but found that it did not have the effect that Thailand was contending (Temple of Preah Vihear, Preliminary Objections, Judgment of 26 May 1961, ICJ Rep. 1961, pp. 27 ff.) 111  Tomuschat, “Article 36”, note 359, p. 693; Simma & Richemond, “Article 37”, ibid., MN 20–22, pp. 721–722. See also the persuasive arguments contained in the separate opinion of judge Tanaka (ICJ Rep. 1964, pp. 70 ff.). 112  At the time of writing there were only six declarations to which Article 36, para. 5 could apply: Dominican Republic (1924); Haiti (1921); Louxembourg (1930); Nicaragua (1929); Panama (1921); and Uruguay (1921).

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provision means being in force at the date of the introduction of proceedings and not (as is the case of Optional Clause declarations) at the date when the concerned Stated became a party to the Statute—and added that this provision is only applicable as between States that have access to the Court by virtue of being parties to the Statute:113 It is true that the jurisdiction of the Permanent Court under treaties in force was preserved and transferred, on certain conditions, to the present Court by Article 37 of its Statute. (. . .) The effect of this text is that the parties to such a treaty, by becoming parties to the Statute, agree that the reference in their treaty to the Permanent Court shall be read as a reference to the present Court. However, it does not signify that a similar substitution is to be read into Article 35, paragraph 2, of the Statute, which relates, not to consensual jurisdiction, but to the conditions of access to the Court. The Court notes that Article 37 of the Statute can be invoked only in cases which are brought before it as between parties to the Statute, i.e. under paragraph 1 of Article 35, and not on the basis of paragraph 2 of that Article. As regards jurisdiction, when a treaty providing for the jurisdiction of the Permanent Court is invoked in conjunction with Article 37, the Court has to satisfy itself, inter alia, that both the Applicant and the Respondent were, at the moment when the dispute was submitted to it, parties to the Statute. (. . .) As just noted above, the Court has already determined that Serbia and Montenegro was not a party to the Statute of the Court on 29 April 1999 when it instituted proceedings against Belgium (see paragraphs 91 and 121 above). Article 37 of the Statute of the Court therefore had no application as between Serbia and Montenegro and Belgium at the date of the institution of proceedings. (Kosovo (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, pp. 326–327, paras. 124–125)114

113  For a comprehensive list of cases in which Article 37 has been invoked or applied see Simma & Richemond, “Article 37”, MN 7–14, pp. 715–718. 114  The same passages can be found in the judgment of the same day in the case against The Netherlands ( Judgment of 15 Dec. 2004, ICJ Rep. 2004, pp. 1058–1059, paras. 123–124).

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The conditions of application of the declarations made under the Optional Clause, in particular those concerning the reservations that are often included in them, the effect of the concept of reciprocity and the interpretation of the declarations, give rise to complex legal problems on which there is ample— and not always entirely consistent—jurisprudence by the Court and a profuse body of legal literature. Given their complexity, an examination of these questions exceeds the scope of the present study, which will limit itself to briefly highlight the way that the Court has approached the procedural aspects of the making—and the unmaking—of the declarations. The only formality contained in paragraph 4 of Article 36 is that a declaration is deposited with the U.N. Secretary-General, who has the responsibility of transmitting copies thereof to the States parties to the Statute and to the Registrar of the Court. The Secretary-General undertakes the publication of the declarations in the UN Treaty Series and the Registry in turn routinely reproduces their texts in the Court’s Yearbook and in its website. The Court has emphasized the complete freedom that States have in framing their declarations: The precise form and language in which [States declare that they recognize as compulsory . . . the jurisdiction of the Court] is left to them, and there is no suggestion that any particular form is required, or that any declarations not in such form will be invalid. No doubt custom and tradition have brought it about that a certain pattern of terminology is normally, as a matter of fact and convenience, employed by countries accepting the compulsory jurisdiction of the Court; but there is nothing mandatory about the employment of this language. Nor is there any obligation, notwithstanding paragraphs 2 and 3 of Article 36, to mention such matters as periods of duration, conditions or reservations, and there are acceptances which have in one or more, or even in all, of these respects maintained silence. (Temple of Preah Vihear, Preliminary Objections, Judgment of 26 May 1961, ICJ Rep. 1961, p. 32)

In practice these declarations are embodied in a written document that is signed by a competent authority of the declaring State, frequently the Head of State, the Foreign Minister or the Permanent Representative to the UN. Since the declarations are not subject to ratification they enter into force at the moment of the deposit with the Secretary-General. However, there is ­nothing to prevent the declaration itself from providing that it will only enter

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into force when it is ratified or confirmed in some way. In a case like this, the terms of the declaration will prevail. It is important to stress that according to the Court’s settled case law the fact that the Secretary-General may take some time in transmitting a new declaration to the other States parties to the Statute does not affect the validity and binding force of the declaration, which, as was just noted, is established at the time of deposit. The practical effect of this is that a State party to the Optional Clause System may be brought before the Court by other State even before it becomes acquainted with the fact that the latter entered the system. It is a situation far from desirable but unavoidable, because it responds to an uncertainty that, according to the Court, is “inherent in the operation of the system of the Optional Clause.”115 Under the Statute, the Optional Clause System works on the basis of the principle of reciprocity. However, as a consequence of the attitude taken by the Court with regard to the moment at which the obligation for the declaring State is born into legal life, a State who has not accepted the Court’s competence may at any time decide to do so with the express purpose of bringing a case against a State who has done the same. In order to comply with the condition of reciprocity at the time of seisin, all that this State has to do is simply to deposit a declaration with the Secretary-General of the United Nations and it can immediately proceed to file an application against any State already in the system. In such a situation, it is entirely possible that the State named as respondent has not even had the opportunity to become aware that the former has become a State “accepting the same obligation,” as provided for in Article 36, para. 2. This situation—which appears to be somewhat unfair because it clearly gives a tactical disadvantage to the State who has first accepted the Court’s jurisdiction—has presented itself before the current Court in a number of occasions.116

115  Right of Passage, Preliminary Objections, Judgment of 26 Nov. 1957, ICJ Rep. 1957, p. 143. 116  This situation has been described in graphical terms as the “sitting duck” problem (A. D’Amato, “Modifying US Acceptance of the Compulsory Jurisdiction of the World Court”, AJIL, vol. 79 (1985), p. 387). Apart from the Right of Passage and Cameroon v. Nigeria cases (discussed in Box # 2-12), this device has been employed in the cases Arbitral Award (Guinea Bissau v. Senegal), Diallo, Kosovo and Status of Diplomatic Envoy.

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Box # 2-12 Entry into force of declarations under the Optional Clause In 1955 Portugal deposited a declaration of acceptance of the Court’s jurisdiction and three days later filed an application against India in a dispute concerning the right of passage between certain Portuguese enclaves in Indian territory. By the time it was notified of the filing of the application, India, who had had a declaration in force since 1940, had not even been informed of the deposit of the Portuguese declaration. On the basis of this, India challenged the existence of jurisdiction. The Court stated: The Court considers that by the deposit of its Declaration of Acceptance with the Secretary-General, the accepting State becomes a Party to the system of the Optional Clause in relation to the other declarant States, with all the rights and obligations deriving from Article 36. The contractual relation between the Parties and the compulsory jurisdiction of the Court resulting therefrom are established, “ipso facto and without special agreement”, by the fact of the making of the Declaration. Accordingly, every State which makes a Declaration of Acceptance must be deemed to take into account the possibility that, under the Statute, it may at any time find itself subjected to the obligations of the Optional Clause in relation to a new Signatory as the result of the deposit by that Signatory of a Declaration of acceptance. (Right of Passage, Preliminary Objections, Judgment of 26 Nov. 1957, ICJ Rep. 1957, p. 146)

It further stressed: A State accepting the jurisdiction of the Court must expect that an Application may be filed against it before the Court by a new declarant State on the same day on which that State deposits with the SecretaryGeneral its Declaration of Acceptance. For it is on that very day that the consensual bond, which is the basis of the Optional Clause, comes into being between the States concerned. (Right of Passage, Preliminary Objections, Judgment of 26 Nov. 1957, ICJ Rep. 1957, p. 146)

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Some forty years after that decision was delivered, a respondent State who found itself in the same situation as India tried to move the Court to alter its views on the date on which the consensual bond is born between the two States. In the Cameroon v. Nigeria case, the Court reaffirmed the legal value of the Right of Passage precedent and found that there were no compelling reasons to abandon the reasoning and the doctrine embodied in that decision.117 The Court returned to the ideas of a “standing offer” and a “consensual bond” and concluded that the very essence of the Optional Clause System consists in that Any State party to the Statute, in adhering to the jurisdiction of the Court in accordance with Article 36, paragraph 2 (. . .) makes a standing offer to the other States party to the Statute which have not yet deposited a declaration of acceptance. The day one of those States accepts that offer by depositing in its turn its declaration of acceptance, the consensual bond is established and no further condition needs to be fulfilled. (Cameroon v. Nigeria, Preliminary Objections, Judgment of 11 June 1998, ICJ Rep. 1998, p. 291, para. 25)

The Court also drew a clear-cut distinction between the deposit of declarations and their withdrawal and concluded that criteria adopted with regard to the latter—like the requirement of a “reasonable time”—do not necessarily apply to the former. It also reiterated its finding in Right of Passage that it does not feel entitled to introduce into the Optional Clause elements or conditions that cannot be found in the text of Article 36. [After quoting the relevant passages in its 1984 decision in the Nicaragua case] The Court considers that the foregoing conclusion with respect to the withdrawal of declarations under the Optional Clause is not applicable to the deposit of those declarations. Withdrawal ends existing consensual bonds, while deposit establishes such bonds. The effect of withdrawal

117  For a critique of this decision see O. Elias & C. Lim, “The Right of Passage Doctrine Revisited: A Missed Opportunity”, LJIL, vol. 12 (1999), pp. 231–245.

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is therefore purely and simply to deprive other States that have already accepted the jurisdiction of the Court of the right they had to bring proceedings before it against the withdrawing state. In contrast, the deposit of a declaration does not deprive those States of any accrued right. Accordingly no time period is required for the establishment of a consensual bond following such a deposit. The Court notes moreover that to require a reasonable time to elapse before a declaration can take effect would be to introduce an element of uncertainty into the operation of the Optional Clause system. As set out in paragraph 26 above, in the case concerning Right of Passage over Indian Territory, the Court had considered that it could not create such uncertainty. The conclusions it had reached then remain valid and apply all the more since the growth in the number of States party to the Statute and the intensification of inter-State relations since 1957 have increased the possibilities of legal disputes capable of being submitted to the Court. The Court cannot introduce into the Optional Clause an additional time requirement that does not exist. (Cameroon v. Nigeria, Preliminary Objections, Judgment of 11 June 1998, ICJ Rep. 1998, pp. 295–296, paras. 34–35)

The situation just described has prompted some States to insert a reservation to their declarations designed to neutralize surprise applications, excluding from the acceptance of the Court’s jurisdiction “disputes in regard to which the other party or parties have accepted the compulsory jurisdiction of the Court less than [12] months prior to the filing of the application bringing the dispute before the Court.”118 Sometimes, these States add disputes in respect of which the other party has accepted the compulsory jurisdiction “only in relation to or for the purposes of the dispute.”119 These reservations have proven to be 118  The text was taken from the Declaration made by Spain in 1990 (ICJ Yearbook (2009–2010), p. 174). 119  The first State ever to make this type of reservation was the United Kingdom, in 1957 (J.G. Merrills, “The Optional Clause Revisited”, BYIL, vol. 64 (1993), pp. 219–221). The example was followed by several States and this reservation features in the current declarations by Somalia (1963), Mauritius (1968), Philippines (1972), India (1974), New Zealand (1977), Spain (1990), Bulgaria (1992), Hungary (1992), Poland (1996), Nigeria (1998), Cyprus (2002),

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very effective, because the first time they were tested the Court came quickly to the conclusion that, for that reason, the declarations of the parties “manifestly cannot constitute a basis of jurisdiction in the present case, even prima facie.”120 On the question of the temporal validity of the declarations, an aspect of the Optional Clause regime on which the Statute is silent, the governing criteria must be the intention of each declaring State as it is expressed in its text.121 Thus, a declaration may provide for a fixed duration, like 5 or 10 years, at the completion of which it either expires or is automatically renewed for the same period or even indefinitely. Likewise, a declaration might include a clause by virtue of which the declaring State reserves the right to denounce it, either with immediate effect or at a later moment (usually 6 or 12 months after notice is given). In the Right of Passage case the Court gave essentially the same treatment to what it termed “total denunciation” and “partial denunciation” of Optional Clause declarations.122 While the former is a termination pure and simple of the acceptance of jurisdiction, the latter is the termination of the acceptance with regard to certain category of disputes, normally formulated in terms of a modification of the text of an existing declaration. The question resurfaced a few years later, in the Nicaragua case, in which the Court used the analogous term “[p]artial and temporary termination.”123 However, when a declaration is silent on its duration or termination—a type of declaration that is very rare today—the Court has found that it can be terminated only by giving notice with “a reasonable time,” a requirement that is rooted in considerations of good faith: Australia (2002), Slovakia (2004), the UK (2004), Portugal (2005) and Germany (2008). Nigeria modified its 1965 declaration when the Cameroon v. Nigeria case was sub judice and introduced, among others, the reservation just mentioned. 120  Kosovo (Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999, ICJ Rep. 1999, pp. 770–771, para. 25; Kosovo (Yugoslavia v. UK), Provisional Measures, Order of 2 June 1999, ICJ Rep. 1999, pp. 835–836, para. 25. 121  R. Kolb, “La dénonciation avec effet immédiat de déclarations facultatives établissant la compétence de la Cour internationale de Justice”, in M. Kohen (Ed.), Promoting Justice, Human Rights and Conflict Resolution Through International Law—Liber Amicorum Lucius Caflish (2007), pp. 875–890. 122  Right of Passage, Preliminary Objections, Judgment of 26 Nov. 1957, ICJ Rep. 1957, pp. 142 and 144. 123  Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 417, para. 58.

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[t]he right of immediate termination of declarations with indefinite duration is far from established. It appears from the requirements of good faith that they should be treated, by analogy, according to the law of treaties, which requires a reasonable time for withdrawal from or termination of treaties that contain no provision regarding the duration of their validity. (Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 420, para. 63)124

The Court has not given any indication as to what a “reasonable time” might be, limiting itself to underline that four days—the period at play in the Nicaragua case—clearly did not amount to that. It has been suggested that a period between three months and one year would constitute sufficient notice, the relevant factor being the time a State may reasonably need in order to activate the link of jurisdiction embodied in a set of existing declarations and institute proceedings against the State attempting to “repudiate” the Optional Clause and escape the system.125 This latter view is reinforced by the Court’s acknowledgment in the passage quoted above that the effect of withdrawal is “purely and simply” to deprive other States parties to the system of the right they had to bring proceedings against the withdrawing State. It has also been noted that, in the aftermath of the Nicaragua decision, several States changed their declarations in order to introduce into their text the possibility of withdrawal or modification with immediate effect.126 In fact, a commentator has stated that “the trend towards instantly terminable declarations, and away from periods of notice, is rather clear.”127

124  It is disputed whether this passage constitutes settled law or a mere obiter dictum. A close examination of the circumstances in which the Court embraced the concept of “reasonable time” points to the direction that this passage was indeed, at least in its inception, an obiter. See J.J. Quintana, “The Nicaragua case and the Denunciation of Declarations of Acceptance of the compulsory Jurisdiction of the ICJ”, Leiden JIL, vol. 11, 1998, pp. 97–121. 125  Quintana, “The Nicaragua case. . .”, pp. 115–118; Ch. Tomuschat, “Article 36”, MN 76, p. 679. 126  Ch. Tomuschat, “Article 36”, MN 76, pp. 679–680, and note 271. 127  J.G. Merrills, “The Optional Clause at Eighty”, in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge Shigeru Oda (2002), vol. 1, p. 438.

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Box # 2-13 Shielding a declaring State from the effects of termination on notice When a State’s declaration provides for termination on a given notice—six months, for example—it is bound to observe that limitation, even toward States whose declarations have a wider scope with regard to their termination. In the Nicaragua case, for instance, while the US 1946 declaration contained a six-months’ notice provision, the Nicaraguan 1929 declaration was silent on termination and therefore it was arguably terminable with immediate effect. The Court held the United States to the terms of its notice proviso and concluded that [T]he most important question relating to the effect of the 1984 notification is whether the United States was free to disregard the clause of six months’ notice which, freely and by its own choice, it had appended to its 1946 Declaration. In so doing the United States entered into an obligation which is binding upon it vis-à-vis other States parties to the OptionalClause system. Although the United States retained the right to modify the contents of the 1946 Declaration or to terminate it, a power which is inherent in any unilateral act of a State, it has, nevertheless assumed an inescapable obligation towards other States accepting the Optional Clause, by stating formally and solemnly that any such change should take effect only after six months have elapsed as from the date of notice. (Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 419, para. 61)

However, this entails a strong element of unfairness, because if one State includes in its declaration a clause enabling it to terminate it with immediate effect, it will be in a better position, tactically speaking, than those States whose declarations contain the requirement of previous notice. In the event of unwanted litigation, the former could escape the Optional Clause system easily, via a mere notification to the Secretary-General, while the latter would be precluded from doing this by its Declaration’s own terms. In order to correct or to neutralize the effects of this unbalance, at least one State has included in its declaration a denunciation clause which includes a protective element giving full effect to reciprocity in this context. Spain’s 1990 Declaration contains the following denunciation clause:

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The present Declaration, which is deposited with the Secretary-General of the United Nations in conformity with Article 36, paragraph 4, of the Statute of the International Court of Justice, shall remain in force until such time as it has been withdrawn by the Spanish Government or superseded by another declaration by the latter. The withdrawal of the Declaration shall become effective after a period of six months has elapsed from the date of receipt by the SecretaryGeneral of the United Nations of the relevant notification by the Spanish Government. However, in respect of States which have established a period of less than six months between notification of the withdrawal of their Declaration and its becoming effective, the withdrawal of the Spanish Declaration shall become effective after such shorter period has elapsed.128

(f)

Jurisdiction perfected by means of acts of procedure ( forum prorogatum)

In litigation before the ICJ the term forum prorogatum refers to the acceptance of the Court’s jurisdiction not only after a dispute has arisen (as in the case of a special agreement) but also after that dispute has been submitted to the Court by one of the States parties to it. In a forum prorogatum situation consent is not subject to any formalities. It is in essence an offer of judicial settlement made by one State (the applicant), followed by an acceptance by the other (the potential respondent). It need not be manifested in any explicit way but may be inferred from conclusive acts carried out by the latter in the course of the proceedings. Those acts must be of such a nature that from them a valid presumption may be drawn as to that State’s consent to the Court’s exercising of jurisdiction in the case at hand, even if a valid title of jurisdiction between the two states was lacking from the outset. This type of title of jurisdiction has been developed exclusively through the Court’s case law. The mechanics of forum prorogatum are relatively simple: State X files an application against State Y without invoking any specific title of jurisdiction and if the latter carries out conclusive acts of procedure and refrains from 128  ICJ Yearbook (2009–2010), p. 175.

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c­ hallenging the Court’s jurisdiction, the Court infers from this attitude that the State in question has implicitly given its consent to the jurisdiction.129 Samples of the “conclusive acts” are the appointment of an agent; a request for the fixing of a time-limit for the deposit of a written pleading on the merits; the deposit of such a pleading; the appointment of a judge ad hoc; or the presentation of arguments at a hearing. The situation might be different with regard to less conclusive acts, such as appointing a special representative for the exclusive purpose of challenging the Court’s jurisdiction or participating in a preliminary meeting with the President of the Court and the agent of the other party. In essence, forum prorogatum consists of an imperfect seisin of the Court that later comes to be regularized by actions on the part of the potential respondent, with the result that the jurisdiction of the Court is “established” in a retroactive way. Seen from this point of view, it can be said that the forum prorogatum is what a former member of the Court has called “an original instrument for seising the Court.”130 While the Statute does not contain any mention to this form of consent, there are at least two provisions that may provide it with a legal foundation: on the one hand, Article 36, para. 1 provides that the jurisdiction of the Court comprises “all cases which the parties refer to it,” without imposing any formalities on the manner or procedure to carry out such referral. In the Mutual Assistance case the Court recalled that it had interpreted this provision “as enabling consent to be deduced from certain acts, thus accepting the possibility of forum prorogatum.”131 It also stated that this modality of consent “is applied when a respondent State has, through its conduct before the Court or in relation to the applicant party, acted in such a way as to have consented to the jurisdiction of the Court.”132 On the other hand, Article 36, para. 6, provides that “in the event of a dispute as to whether the Court has jurisdiction” it is for the Court itself to decide the question. This is also pertinent here, because the Court can reach this decision on the basis of the conduct of the State against which an application has been filed, even if that State was not bound to appear before the Court at the date the proceedings were instituted. Mention should also be made of Article 40, 129   Genocide Convention (Bosnia), Provisional Measures, Separate Opinion by Judge ad hoc Lauterpacht, ICJ Rep. 1993, p. 416. 130  M. Bedjaoui, “The forum prorogatum before the International Court of Justice: The Resources of an Institution or the Hidden Face of Consensualism”, ICJ Yearbook (1996– 1997), p. 217. 131  Mutual Assistance, Judgment of 4 June 2008, ICJ Rep. 2008, p. 203, para. 61. 132  Ibid., pp. 203–204, para. 61.

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para. 1 of the Statute, which deals with the introduction of proceedings and sets out that all that must be indicated in the act of seisin—a notification of a special agreement or a written application, as the case may be—is “the subject of the dispute and the parties.” As for the Rules of Court, it is interesting to register that Article 38, para. 2— the provision dealing with the contents of an application—uses a very flexible language according to which “[t]he application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based.”133 This provision can be traced back to Article 32, para. 2 of the 1936 Rules and its legislative history shows clearly that the intention of the drafters was “to preserve the possibility for the Court to found its jurisdiction on forum prorogatum”.134 Indeed, in the Corfu Channel case the Court stated that under then Article 32, para. 2 of the Rules the requirement of a mention of the title of jurisdiction in the application was not “[a]n absolute necessity.”135 By 1934—when the Permanent Court undertook the revision of its Rules— it had already had the chance to affirm jurisdiction on the basis of the conduct of the respondent State on a number of occasions, and it was felt that “[t]he institution of forum prorogatum served the interests of a sound administration of justice” and that “[t]here was no need to increase the number of mandatory requirements to be met by a State wishing to come before the Court by means of an application.”136

Box # 2-14

Forum prorogatum in the Court’s case law

The classic formulation of the doctrine of forum prorogatum by the PCIJ can be found in the Minority Schools case, in which the Court had to deal with a situation in which “the intention of submitting a matter to the Court for decision has been implicitly shown by the fact of arguing the merits without reserving the questions of jurisdiction.” The Court pointed out that:

133  Emphasis added. 134  Mutual Assistance, Judgment of 4 June 2008, ICJ Rep. 2008, p. 205, para. 64. See also PCIJ D 2, Add. 3 (1936), pp. 159–160; S. Rosenne, Provisional Measures in International Law, The International Court of Justice and the International Tribunal for the Law of the Sea (2005), p. 92; Guyomar’s Commentaire, pp. 234–239; Bedjaoui, “The forum prorogatum. . .”, pp. 221– 222, especially at notes 1 and 2. 135  Corfu Channel, Preliminary Objection, Judgment of 25 March 1948, ICJ Rep. 1948, p. 27. 136  Bedjaoui, “The forum prorogatum . . .”, p. 221.

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The acceptance by a State of the Court’s jurisdiction in a particular case is not, under the Statute, subordinated to the observance of certain forms, such as, for instance, the previous conclusion of a special agreement. Thus, in Judgment No. 5 the Court has accepted as sufficient for the purpose of establishing its jurisdiction a mere declaration made by the respondent in the course of the proceedings agreeing that the Court should decide a point which, in the Court’s opinion, would not otherwise have come within its jurisdiction. And there seems to be no doubt that the consent of a State to the submission of a dispute to the Court may not only result from an express declaration, but may also be inferred from acts conclusively establishing it. It seems hard to deny that the submission of arguments on the merits, without making reservations in regard to the question of jurisdiction, must be regarded as an unequivocal indication of the desire of a State to obtain a decision on the merits of the suit. (. . .) It is true that in this case the consent of the respondent took the form of an express declaration, whereas in the present case, it only follows from the fact of having asked for a decision on the merits, without making reservations as to the question of jurisdiction. This circumstance, however, cannot, in the Court’s opinion, justify a different conclusion, since there is no rule laying down that consent must take the form of an express declaration rather than that of acts conclusively establishing it. (Minority Schools, Judgment No. 12, 26 April 1928, PCIJ A 15, pp. 23, 24–25)

Interestingly, several influential judges expressed at that time serious doubts as to the conformity with the Statute of the notion of a tacit acceptance of the Court’s jurisdiction.137 The current Court referred to an analogous situation in the cases concerning the Corfu Channel in the following terms: The letter of July 2nd . . . in the opinion of the Court, constitutes a voluntary and indisputable acceptance of the Court’s jurisdiction. While the consent of the parties confers jurisdiction on the Court, neither the Statute nor the Rules require that this consent should be expressed in any

137  See the dissenting opinions of judges Huber (PCIJ A 15, pp. 52–54), Nyholm (ibid., 57–59) and Negulesco (ibid., pp. 69–71). In the previous Request for Interpretation-Treaty of Neuilly case a chamber of the Court had already had occasion to take cognizance of a case on the basis of the conduct of the parties ( Judgment No. 4, 26 March 1925, PCIJ A 4, p. 6).

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particular form. (. . . .) In submitting the case by means of an Application, the Government of the United Kingdom gave the Albanian Government  the opportunity of accepting the jurisdiction of the Court. This acceptance was given in the Albanian Government’s letter of July 2nd, 1947. Besides, separate action of this kind was in keeping with the respective positions of the parties in proceedings where there is in fact a claimant, the United Kingdom, and a defendant, Albania. Furthermore, there is nothing to prevent the acceptance of jurisdiction, as in the present case, from being effected by two separate and successive acts, instead of jointly and beforehand by a special agreement. (Corfu Channel, Preliminary Objection, Judgment of 25 March 1948, ICJ Rep. 1948, pp. 27–28)

Just two years later, the Court remarked in the Haya de la Torre case: The Parties have in the present case consented to the jurisdiction of the Court. All the questions submitted to it have been argued by them on the merits, and no objection has been made to a decision on the merits. This conduct of the Parties is sufficient to confer jurisdiction on the Court. (Haya de la Torre, Judgment of 13 June 1951, ICJ Rep. 1951, p. 78)

In this case, the Court clearly considered itself to be competent to hear the case exclusively on the basis of the “conduct of the Parties.” This is remarkable, to say the least, because in its application Colombia had invoked as a title of jurisdiction the jurisdictional clause present in a bilateral treaty in force between the two countries and had been explicit in stating that the jurisdiction of the Court was founded on both Article 36 and Article 37 of the Statute.138 Faced with no challenge to its jurisdiction from the respondent, the Court chose to simply ignore the basis for jurisdiction invoked by the applicant and instead dealt with the case on the basis that its jurisdiction had been perfected by the conduct of the parties. The decision, thus, although it can be considered as obiter, lends support to the doctrine of forum prorogatum as an alternative and not as a substitute for a valid title of jurisdiction.

138  ICJ Pleadings, Haya de la Torre, p. 9.

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In the Anglo Iranian Oil Co. case the present Court used for the first time the term forum prorogatum,139 pointing out that it meant some action by the respondent State involving “an element of consent:” The principle of forum prorogatum, if it could be applied to the present case, would have to be based on some conduct or statement of the Government of Iran which involves an element of consent regarding the jurisdiction of the Court. But that Government has consistently denied the jurisdiction of the Court. Having filed a Preliminary Objection for the purpose of disputing the jurisdiction, it has throughout the proceedings maintained that Objection. It is true that it has submitted other Objections which have no direct bearing on the question of jurisdiction. But they are clearly designed as measures of defence which it would be necessary to examine only if Iran’s Objection to the jurisdiction were rejected. No element of consent can be deduced from such conduct on the part of the Government of Iran. (Anglo-Iranian Oil Co., Preliminary Objection, Judgment of 22 July 1952, ICJ Rep. 1952, p. 114)

In the ICAO Council case, the Court suggested that an acceptance of the Court’s jurisdiction could be inferred from a State’s failure to raise a timely preliminary objection: The real issue raised by the present case was whether, in the event of a party’s failure to put forward a jurisdictional objection as a preliminary one, that party might not thereby be held to have acquiesced in the jurisdiction of the Court. (ICAO Council, Judgment of 18 Aug. 1972, ICJ Rep. 1972, p. 52, para. 13)

In the Genocide Convention (Bosnia) case, the respondent itself made a request for provisional measures and the Court had to determine whether this action could be taken as an expression of consent to the Court’s jurisdiction by way of forum prorogatum. Given the conduct of the parties, the Court answered in the negative:

139  It is believed that the term was used for the first time in the context of the procedure before the Permanent Court in 1934, during discussions on the amendment of the Rules of Court (PCIJ D 2, Add. 2 (1936), p. 69).

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(. . .) in the context of the first request made by the Applicant for the indication of provisional measures, the Respondent also, by a communication of 1 April 1993, recommended that such measures, listed in paragraph 9 of the Court’s Order of 8 April 1993, be indicated; (. . .) some of the measures so requested might be directed to the protection of rights going beyond those covered by the Genocide Convention; and (. . .) the question thus arises whether, by requesting such measures, the Respondent might have agreed that the Court should have a wider jurisdiction, in accordance with the doctrine known as that of forum prorogatum; (. . .) however the provisional measure requested by Yugoslavia in a subsequent request, dated 9 August 1993 (paragraph 12 above), was directed solely to protection of asserted rights under the Genocide Convention; (. . .) moreover the Respondent has constantly denied that the Court has jurisdiction to entertain the dispute, on the basis of that Convention or on any other basis; (. . .) in the circumstances the communication from Yugoslavia cannot, even prima facie, be interpreted as “an unequivocal indication” of a “voluntary and indisputable” acceptance of the Court’s jurisdiction (. . .); (Genocide Convention (Bosnia) Provisional Measures II, Order of 13 Sept. 1993, ICJ Rep. 1993, pp. 341–342, para. 34)

In the Armed Activities II (DRC v. Rwanda) case, the Court accurately stated that a forum prorogatum situation cannot come into being in those cases in which the respondent objects to the jurisdiction of the Court and takes part in the proceedings for the very purpose of sustaining a challenge to that jurisdiction: The Court recalls its jurisprudence, as well as that of its predecessor, the Permanent Court of International Justice, regarding the forms which the parties’ expression of their consent to its jurisdiction may take. According to that jurisprudence, “neither the Statute nor the Rules require that this consent should be expressed in any particular form”, and “there is nothing to prevent the acceptance of jurisdiction . . . from being effected by two separate and successive acts, instead of jointly and beforehand by a special agreement” (. . .). The attitude of the respondent State must, however, be capable of being regarded as “an unequivocal indication” of the desire of that State to accept the Court’s jurisdiction in a “voluntary and indisputable” manner (. . .). In the present case the Court will confine itself to noting that Rwanda has expressly and repeatedly objected to its jurisdiction at every stage of the proceedings (. . .). Rwanda’s attitude therefore cannot be regarded as

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“an unequivocal indication” of its desire to accept the jurisdiction of the Court in a “voluntary and indisputable” manner. The fact, as the DRC has pointed out, that Rwanda has “fully and properly participated in the different procedures in this case, without having itself represented or failing to appear”, and that “it has not refused to appear before the Court or make submissions”, cannot be interpreted as consent to the Court’s jurisdiction over the merits, inasmuch as the very purpose of this participation was to challenge that jurisdiction (. . .). (Armed Activities II (DRC v. Rwanda), Jurisdiction and Admissibility, Judgment of 3 Feb. 2006, ICJ Rep. 2006, pp. 18–19, paras. 21–22)140

In the Mutual Assistance case, in which the Court for this first time applied Article 38, para. 5 of the 1978 Rules, it underlined that this title of jurisdiction is also squarely based on the principle of consent: The consent allowing for the Court to assume jurisdiction must be certain. That is so, no more and no less, for jurisdiction based on forum prorogatum. (Mutual Assistance, Merits, Judgment of 4 June 2008, ICJ Rep. 2008, p. 204, para. 62)

The preceding considerations apply to what might be called forum prorogatum stricto sensu, amounting to “[a]ttributing to the Respondent implied acceptance, or deemed consent, in relation to the jurisdiction of the Court.”141 But mention should also be made of a special type of forum prorogatum, which on occasion has been called “unilateral arraignment.”142 It refers to a situation that presented itself on a number of occasions in the 1950s, when it was felt in certain quarters that resorting to an application as a method of seisin in situations in which the State named as respondent had never consented to jurisdiction paved the way to the institution of purely arbitrary or vexatious proceedings. Indeed, in a number of cases a State filed an application in which it recognized explicitly that the State against whom the litigation was introduced had 140  For a comment see Muller’s Procedural Developments, LPICT, vol. 5 (2006) 308–310. 141   Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 85, para. 103. 142  Rosenne’s Law and Practice, vol. 3, p. 712.

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not yet accepted the Court’s jurisdiction and “invited” it to do just that and to plead its case. None of these “invitations” were ever accepted by the State named as respondent, but this action—a “freak phenomenon,” in the words of a commentator—143 had the unfortunate consequences that, by the mere filing of the application, the case was given a name and a folio number, was entered as such in the Court’s General List and all the States entitled to appear before the Court were notified according to the rule in Article 40 of the Statute. As a result of this, not less than eight of these phony or simply non-existent contentious cases feature in the General List, and in none of them was there ever room for taking any procedural action other than ordering their removal from the list, once it was ascertained that the potential respondent was not willing to accept the “invitation.”144 In a subsequent case, referring to its power “[t]o put an end to a case whenever it sees that this is necessary from the viewpoint of the proper administration of justice,”145 the Court recalled this practice in the following terms: [A]lthough the Rules of Court do not provide for such a procedure, there is no doubt that in certain circumstances the Court may of its own motion put an end to proceedings in a case. Prior to the adoption of Article 38, paragraph 5, of the Rules of Court, in a number of cases in which the application disclosed no subsisting title of jurisdiction, but merely an invitation to the State named as respondent to accept jurisdiction for the purposes of the case, the Court removed the cases from the List by order. (Kosovo (Serbia and Montenegro v. Italy), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 880, para. 32)

In 1978 the Court decided to tackle the matter directly and added to Article 38 of the Rules a new paragraph 5, the effect of which is the effective closing of 143  B. Cheng, “The Fist Twenty Years of the International Court of Justice”, The Year Book of World Affairs, vol. 20 (1966), p. 248. 144  See US Aircraft and Crew in Hungary (USA v. Hungary), Order of 12 July 1954, ICJ Rep. 1954, p. 99; US Aircraft and Crew in Hungary (USA v. USSR), Order of 12 July 1954, ICJ Rep. 1954, p. 103; Aerial Incident (USA v. Czechoslovakia), Order of 14 March 1956, ICJ Rep. 1956, p. 6; Antarctica (United Kingdom v. Argentina), Order of 16 March 1956, ICJ Rep. 1956, p. 12; Antarctica (United Kingdom v. Chile), Order of 16 March 1956, ICJ Rep. 1956, p. 15; Aerial Incident I (USA v. USSR), Order of 14 March 1956, ICJ Rep. 1956, p. 9; Aerial Incident II (USA v. USSR), Order of 9 Dec. 1958, ICJ Rep. 1958, p. 158; Aerial Incident III (USA v. USSR), Order of 7 Oct. 1959, ICJ Rep. 1959, p. 276. 145  Kosovo (Serbia and Montenegro v. Italy), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 880, para. 32.

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the way for this abusive procedure, while at the same time formally introducing the institution of forum prorogatum into the Court’s Rules. It reads: 5. When the applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made, the application shall be transmitted to that State. It shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Court’s jurisdiction for the purposes of the case. As is apparent, this provision in effect prevents the automatic entering in the Court’s General List of an application that does not disclose any basis of jurisdiction.146 It lays down two conditions that seek to protect the interests of any State that may find itself in the position of potential respondent before the Court without ever having consented to the Court’s jurisdiction. The first such condition is that, unlike in the case of all other applications (which under Article 42 of the Rules are to be transmitted to the Secretary-General of the United Nations, the Members of the United Nations and other States entitled to appear before the Court) the application is transmitted to that State and to that State alone. The second is that the application is not entered in the General List and no action is taken in the proceedings, so that the dispute to which the application refers—if there is indeed a dispute in existence— does not become a “case” in the legal sense of the term.147 As accurately summarized by an author: “[paragraph 5 of Article 38] was added apparently to prevent the potential applicants from abusing the judicial process for political gains, without eliminating the facility of forum prorogatum completely.”148

146  A commentator has called this “a procedurally better organized form of forum prorogatum.” (Muller’s Procedural Developments, LPICT, vol. 8 (2009), p. 488). See also Lauterpacht, “Principles. . .”, pp. 479–484. 147  Article 38, para. 5 has been invoked as a sole basis of jurisdiction in a number of times (Hungary v. Czech and Slovak Republic, Oct. 1992; Yugoslavia v. several member States of NATO, March 1994; Eritrea v. Ethiopia, Feb. 1999; Liberia v. Sierra Leone, Aug. 2003; Rwanda v. France, April 2007; for a full listing see ICJ Yearbook 2009–2010, pp. 377–378). In only two occasions the invitation to litigate has been accepted by the State named as respondent: Criminal Proceedings (Republic of Congo v. France) (ICJ Press Releases 2003/14 of 11 April 2003) and Mutual Assistance in Criminal Matters (Djibouti v. France) (ICJ Press Release 2006/32 of 10 August 2006). See also ICJ Yearbook 2009–2010, p. 378. 148  S. Yee, “Article 40”, in Oxford Commentary, MN 118, p. 985.

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In the Mutual Assistance case the Court commented in extenso on the import of Article 38, para. 5 of the Rules. The relevant passage is worth quoting in its entirety: The Court observes that this is the first time it falls to the Court to decide on the merits of a dispute brought before it by an application based on Article 38, paragraph 5, of the Rules of Court. This provision was introduced by the Court into its Rules in 1978. The purpose of this amendment was to allow a State which proposes to found the jurisdiction of the Court to entertain a case upon a consent thereto yet to be given or manifested by another State to file an application setting out its claims and inviting the latter to consent to the Court dealing with them, without prejudice to the rules governing the sound administration of justice. Before this revision, the Court treated this type of application in the same way as any other application submitted to it: the Registry would issue the usual notifications and the “case” was entered in the General List of the Court. It could only be removed from the List if the respondent State explicitly rejected the Court’s jurisdiction to entertain it. The Court was therefore obliged to enter in its General List “cases” for which it plainly did not have jurisdiction and in which, therefore, no further action could be taken; it was consequently obliged to issue orders so as to remove them from its List (. . .). Article 38, paragraph 5, now provides, firstly, that no entry is made in the General List unless and until the State against which such application is made consents to the Court’s jurisdiction to entertain the case and, secondly, that, except for the transmission of the application to that State, no action is to be taken in the proceedings. The State which is thus asked to consent to the Court’s jurisdiction to settle a dispute is completely free to respond as it sees fit; if it consents to the Court’s jurisdiction, it is for it to specify, if necessary, the aspects of the dispute which it agrees to submit to the judgment of the Court. The deferred and ad hoc nature of the Respondent’s consent, as contemplated by Article 38, paragraph 5, of the Rules of Court, makes the procedure set out there a means of establishing forum prorogatum. (Mutual Assistance, Judgment of 4 June 2008, ICJ Rep. 2008, pp. 204–205, para. 63)

This provision implies that in circumstances in which there is a “[p]atent, complete and manifest lack of jurisdiction,” the matter can be dealt with administratively by the Court.149 149  The expression was used by judge Weeramantry in his dissent in the Nuclear Tests-Request for Examination case (ICJ Rep. 1995, p. 325). On the concept of “manifest lack of jurisdic-

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Box # 2-15 The Court on the mechanics of “unilateral arraignment” In the Mutual Assistance case, the Court dealt at length with the institution of forum prorogatum on the basis of Article 38, para. 5 of the Rules. The Court stated the following: (b) Forum prorogatum as a basis of the jurisdiction of the Court The Court has . . . interpreted Article 36, paragraph 1, of the Statute as enabling consent to be deduced from certain acts, thus accepting the possibility of forum prorogatum. This modality is applied when a respondent State has, through its conduct before the Court or in relation to the applicant party, acted in such a way as to have consented to the jurisdiction of the Court (. . .). The consent allowing for the Court to assume jurisdiction must be certain. That is so, no more and no less, for jurisdiction based on forum prorogatum. As the Court has recently explained, whatever the basis of consent, the attitude of the respondent State must “be capable of being regarded as ‘an unequivocal indication’ of the desire of that State to accept the Court’s jurisdiction in a ‘voluntary and indisputable’ manner” (. . .). For the Court to exercise jurisdiction on the basis of forum prorogatum, the element of consent must be either explicit or clearly to be deduced from the relevant conduct of a State (. . .). (. . .) (3) Extent of the mutual consent of the Parties France has, in the present case, expressly agreed to the Court’s jurisdiction under Article 38, paragraph 5, of the Rules of Court, in its letter of acceptance dated 25 July 2006. France’s expression of consent must, however, be read together with Djibouti’s Application to discern properly the extent of the consent given by the Parties to the Court’s jurisdiction, and thereby to arrive at that which is common in their expressions of consent.

tion” see Chapter 12, c). For a critique of the 1978 reform see H. Thirlway, “Procedural Law and the ICJ”, in V. Lowe & M. Fitzmaurice, (Eds.), Fifty Years of the International Court of Justice—Essays in Honour of Sir Robert Jennings (1996), pp. 395–396.

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(a) Djibouti’s Application In light of the foregoing, the Court will examine not only the terms of France’s acceptance, but also the terms of Djibouti’s Application to which that acceptance responds. Only then can the scope of the claims in respect of which France has accepted the jurisdiction of the Court be properly understood. As Djibouti readily acknowledges, when consent is given post hoc, a State may well give only partial consent, and in so doing narrow the jurisdiction of the Court by comparison with what had been contemplated in the Application. The Court will therefore examine the various claims raised in the Application, and the extent to which the Respondent has accepted the Court’s jurisdiction with regard to them in its letter of 25 July 2006. (. . .) [W]here jurisdiction is based on forum prorogatum, great care must be taken regarding the scope of the consent as circumscribed by the respondent State. (Mutual Assistance, Judgment of 4 June 2008, ICJ Rep 2008, pp. 203–206, 211, paras. 61–62, 65–66, 87)

On the other hand, once the State named as respondent in the application has freely manifested its consent to litigate, a new entry is made into the Court’s General List. In the two occasions that this has occurred thus far in the practice of the Court, the date that has been taken for all purposes as the date of institution of proceedings is that in which the Registry has received the express manifestation of consent by the respondent.150 In addition, in cases in which Article 38, para. 5 of the Rules is invoked as a basis of jurisdiction, along with other instrument or instruments, it would be unreasonable to pretend that the procedure set out in that provision must be followed in all cases.151 The Court has a wide measure of discretion ­whenever 150  Criminal Proceedings, Provisional Measures, Order of 17 June 2003, ICJ Rep. 2003, pp. 103– 104, paras. 6–7; Mutual Assistance, Judgment of 4 June 2008, ICJ Rep. 2008, p. 181, para. 4. Significantly, in the cover page of the printed text of each application it is clearly stated that it was “filed in the Registry of the Court” at a given date but “entered in the Court’s General List” only at a subsequent date. 151  This has happened in the following cases: Maritime Delimitation (Guinea-Bissau v. Senegal); Kosovo (Yugoslavia v. USA); Armed Activities (DRC v. Burundi) and Armed Activities I (Democratic Republic of the Congo v. Rwanda).

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an application has been filed, and from a simple examination of the contents of this document it will have to make a choice in camera and either treat it as a regular act of seisin—triggering the application of Articles 38, para. 4 and 42 of the Rules—or as an incomplete one, thus requiring completion by an act of the potential respondent in the terms of Article 38, para. 5.

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Unilateral arraignment and provisional measures152

It is interesting to consider the applicability of Article 38, para. 5 of the Rules in cases in which a request for the indication of provisional measures is made along with the institution of proceedings. When a State invoking paragraph 5 of Article 38 as a basis for jurisdiction makes at the same time a request for the indication of provisional measures the only action that the Registrar can take with regard to the imperfect application—and a fortiori with regard to the request for provisional measures—is its transmission to the State named as respondent. So far, this has happened on three occasions. In the first two nothing was done with regard to the request, given that the State named as respondent refused to give its consent to the litigation: application by Eritrea against Ethiopia for alleged violations of the diplomatic status of Ethiopian envoys (ICJ, Press Release 99/04, 16 February 1999) and application by Liberia against Sierra Leone concerning an arrest warrant against the President of Liberia (ICJ Press Release 2003/26, 5 August 2003). The third case is the Criminal Proceedings case, in which the potential respondent did accept—for the first time ever—the invitation to litigate. Pursuant to Article 38, para. 5 of the Rules, the first procedural action taken by the Court with regard to the request for the indication of provisional measures took place only after it had ascertained that the State named as respondent had indeed expressed its consent.153 After the 1978 reform of the Rules, there have been cases in which a State introducing proceedings and requesting provisional measures has invoked Article 38, para. 5 but along with other legal instruments, in the guise of alternative or cumulative titles of jurisdiction. In at least two cases in which this happened, it is submitted that the Court could have made use of Article 38, para. 5, because it was very clear from the outset that the other legal title invoked was 152  S. Yee, “Forum Prorogatum and the Indication of Provisional Measures in the International Court of Justice”, in G.S. Goodwin-Gill & S. Talmon (eds.), Reality of International Law, Essays in Honour of Ian Brownlie, 1999, pp. 565–584. 153  Criminal Proceedings, Provisional Measures, Order of 17 June 2003, ICJ Rep. 2003, pp. 103–104, paras. 6–7.

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feeble or not applicable as between the applicant and the respondent, with the result that, as a dissenting judge aptly put it, “the basis of the Court’s jurisdiction, at this stage of the proceedings . . . is non-existent.”154 The first was the Kosovo case, submitted by Serbia and Montenegro against the United States—simultaneously with the introduction of nine other cases against States members of NATO. The other legal instrument invoked in the application was a treaty—the 1948 Genocide Convention—containing a jurisdictional clause that had been the object of an express reservation by the United States. As the Court declined to apply Article 38, para. 5 and opted for treating the application as a regular act instituting proceedings, the case was given a name and entered into the General List. In fact, in this case the Court conducted parallel incidental proceedings on provisional measures in exactly the same fashion as in the other nine cases bearing the same name, eight of which featured far stronger bases for jurisdiction. At the end of these proceedings it decided to reject the request for provisional measures in all the ten cases and in the case against the United States it ordered further that the case be removed from the List, because of “manifest lack of jurisdiction” (Order of 2 June 1999, ICJ Rep. 1999, p. 925, para. 29).155 The second case—bearing the same name but involving Spain as ­respondent—received the same treatment by the Court but is slightly different because in its application Serbia and Montenegro did not explicitly refer to Article 38, para. 5. Here again, two very doubtful instruments were invoked as a basis of jurisdiction: Spain’s Optional Clause declaration, which by its clear terms excluded an application such as that submitted by Serbia and Montenegro, and the Genocide Convention, to which Spain had made the same reservation as the United States. In the order rejecting the request for provisional measures and striking out the case (once again on grounds of “manifest lack of jurisdiction”) the Court recorded that Spain had also “state[d] that it ‘does not accept the jurisdiction of the Court under Article 38, paragraph 5, of the Rules of Court,’” and that “it is quite clear that, in the absence of consent by Spain, given pursuant to Article 38, paragraph 5, of the Rules, the Court cannot exercise jurisdiction in the present case, even prima facie.” (Order of 2 June 1999, ICJ Rep. 1999, p. 773, para. 35).

154  Kosovo (Serbia and Montenegro v. Spain), Provisional Measures, Declaration of Judge Vereshchetin, ICJ Rep. 1999, p. 780. On this see Sh. Rosenne, “Provisional Measures. . .”, p. 114 and, by the same author, “Controlling Interlocutory Aspects of Proceedings”, in Essays on International Law and Practice (2007), p. 258. 155  See a comment by Yee, “Article 40”, MN 132, p. 993.

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One can just wonder whether the Court would have been in a position to apply Article 38, para. 5 of the Rules in these cases if the applicant would have refrained from requesting provisional measures. In such a situation, in light of the US reservation to the Genocide Convention it would have been unfair for that State to be forced to take part in full preliminary proceedings on matters of jurisdiction and admissibility. The same, of course, can be said of Spain. The lesson to be learned from this seems to be that the rule of Article 38, para. 5 only becomes applicable in cases in which the application does not disclose any separate source of jurisdiction, and in which it is crystal clear from the beginning that the case cannot proceed unless and until the State named as respondent has given its post hoc consent. In cases in which a separate title of jurisdiction, however doubtful, is mentioned in the application—and particularly if provisional measures are also requested—the Court would feel inclined to deal with them in the regular manner, even if by then it can be anticipated that it will have to come to a decision dismissing the case and ordering its removal from the General List. It is interesting to observe that although Article 38, para. 5 does not expressly mention the Registrar as the person in charge of transmitting the application to the State named as respondent and refraining from entering it the General List or from taking any other action in the proceedings, under Articles 40 of the Statute and 26 of the Rules this clearly falls under the purview of the functions of the Registrar.

Additionally, it may be noted that in cases in which a State files an application against another State with which it has no title of jurisdiction in existence and the potential respondent has no objection to the Court’s exercising its jurisdiction in the case, the latter has also a choice as to procedure. It could express its consent either explicitly, by invoking Article 38, para. 5, or implicitly, through successive acts in the course of the proceedings. For instance, in the first case in which an “invitation to litigate” under Article 38, para. 5 of the Rules was accepted, the Court recorded in its order on provisional measures that the respondent had “consented explicitly to the jurisdiction of the Court to entertain the Application on the basis of that text.”156 This is what the Court might have been referring to in the Mutual Assistance case, when it stated that “[o]bviously, the jurisdiction of the Court can be founded on forum proro156  Criminal Proceedings, Provisional Measure, Order of 17 June 2003, ICJ Rep. 2003, p. 107, para. 21. For the view that Article 38, para. 5 does not require express consent see Yee, “Article 40”, MN 129, p. 991.

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gatum in a variety of ways, by no means all of which fall under Article 38, ­paragraph  5.”157 Resort to forum prorogatum stricto sensu before the ICJ is nowadays somewhat rare. On one hand, since Article 38, para. 2 of the Rules requires the application to specify—even if this is to be done only “as far as possible”—the title of jurisdiction, it is highly likely that when this document fails to mention any such title the State named as respondent will take notice of this and, realizing that it is not bound by law to appear before the Court, will choose to convey this to the Court at the first available opportunity. On the other hand, upon receiving a communication by the Registrar in which Article 38, para. 5 of the Rules is mentioned, the State named as respondent who is willing to appear before the Court, even if it is not bound to, will probably feel inclined to give its consent on the basis of that provision by means of an express act, rather than demonstrating its consent by carrying out acts during the course of the proceedings. A final formal aspect is that, interestingly, the drafting of the press release issued by the Registry on the occasion of the filing of an application based exclusively on Article 38, para. 5 of the Rules has changed over time. In the first instances in which this occurred after the 1978 reform the Release was entitled “X applies to the International Court of Justice in its dispute with Y over (a certain matter, summarily described).” In the latest cases, starting in December 2002 with the institution of the Criminal Proceedings case, the title of the Press Release has been “X seises the International Court of Justice of a dispute with Y.” It is submitted that the former formula was more precise, because the latter gives the impression that upon that action by the applicant the Court is immediately seised of the dispute and this is clearly not the case, as an application of this kind can only produce an imperfect or incomplete act of seisin.158 (g)

Incidental and Interlocutory Jurisdiction

A factor considerably mitigating the rigidity of the principle of consent is the distinction between principal and incidental jurisdiction. The former is the general competence of the Court to dispose of a case that has been submitted 157  Mutual Assistance, Judgment of 4 June 2008, ICJ Rep. 2008, p. 205, para. 64. 158  The view has also been expressed that the issuing of this press release defeats to a certain extent the purpose of the 1978 reform to Article 38 of the Rules (Yee, “Article 40”, MN 128, p. 991).

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to it, by deciding upon the merits of the claims of the parties as they have been espoused in the act of introduction of proceedings and developed further during the course of the litigation. The latter represents a direct legal consequence of the act of seisin and covers all those questions that the Court may be called to decide in the process and that are ancillary to the decision on the questions forming the merits of the case.159 In other words, a decision by the Court taken in exercise of its incidental jurisdiction is a decision that “[d]oes not decide the ultimate merits” of the case.160 The exercise of incidental jurisdiction comprises all aspects of a case other than the merits themselves and gives rise to incidental proceedings, which, in the words of the Court, are proceedings conducted “within the context of a case which is already in progress.”161 This presupposes that a case is in existence, for, as the Court has stated: “[i]ncidental proceedings by definition must be those which are incidental to a case which is already before the Court or Chamber.”162 It may be added that a feature of incidental proceedings is that, by their very nature, they are subordinate to the main proceedings, i.e. that part of the litigation that is concerned with the merits of the case.163 A good definition of incidental jurisdiction was proposed by judge Fitzmaurice in his separate opinion in the Northern Cameroons case, in the following terms: [t]here is the Court’s preliminary or “incidental” jurisdiction (e.g. to decree interim measures of protection, admit counterclaims or thirdparty interventions, etc.) which it can exercise even in advance of any determination of its basic jurisdiction as to the ultimate merits; even 159  G. Abi-Saab, Les Exceptions préliminaires dans la procédure de la Cour internationale (1967), pp. 84–89; Mani’s Adjudication, p. 283. Rosenne attributes the introduction of the concept of “incidental jurisdiction” to judge Hudson. See, for a full discussion his Interpretation, Revision and Other Recourse from International Judgments and Awards (2007), pp. 189–191. For the affirmation of the principle in international arbitral practice see B. Cheng, General Principles of Law as Applied by International Courts and Tribunals (1987), pp. 266–267. 160  ICAO Council, Judgment of 18 August 1972, ICJ Rep. 1972, p. 56, para. 18. 161  Genocide Convention (Bosnia), Counter-claims, Order of 17 Dec. 1997, ICJ Rep. 1997, p. 257, para. 30. 162  El Salvador/Honduras, Application to Intervene, Judgment of 13 Sep. 1990, ICJ Rep. 1990, p. 98, para. 134. The French version of this passage is perhaps more accurate: “Par définition, les procédures incidentes sont celles qui surviennent incidemment au cours d’une affaire déjà portée devant la Cour ou une chambre.” 163  K.C. Wellens, “Reflections on some Recent Incidental Proceedings before the International Court of Justice”, in E. Denters & N. Schrijver (Eds.), Reflections on International Law from the Low Countries (1998), p. 420.

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though the latter is challenged; and even though it may ultimately turn out that the Court lacks jurisdiction as to the ultimate merits. Although much (though not all) of this incidental jurisdiction is specifically provided for in the Court’s Statute, or in Rules of Court which the Statute empowers the Court to make, it is really an inherent jurisdiction, the power to exercise which is a necessary condition of the Court—or of any court of law—being able to function at all. (Northern Cameroons, Preliminary Objections, Separate Opinion of Judge Fitzmaurice, ICJ Rep. 1963, p. 103)164

As it is apparent, the distinguishing feature of this type of jurisdiction is that it corresponds to the inherent competence of the Court as a court of law and hence it does not depend on the immediate consent of the parties but on the Statute, the Rules of Court and the general principles on the administration of justice that the Court applies and formulates in its decisions on matters of procedure. A State that ratifies the Statute—or otherwise accepts it in order to be granted access to the Court—manifests by that very act its consent to the exercise by the Court of several modalities of incidental jurisdiction, starting with the latter’s general or inherent competence to conduct proceedings and to decide all matters of procedure (Statute, Article 48). It thus can be said that all the States having access to the Court have accepted that it exercises its incidental jurisdiction and no further consent is necessary. This statutory foundation for the Court’s incidental jurisdiction on the specific matter of third-party intervention was recognized by a chamber of the Court in terms so general that they can be easily extrapolated to cover other types of incidental questions: (. . .) [p]rocedures for a third State to intervene in a case are provided in Articles 62 and 63 of the Court’s Statute. The competence of the Court in this matter of intervention is not, like its competence to hear and determine the dispute referred to it, derived from the consent of the parties to the case, but from the consent given by them, in becoming parties to the Court’s Statute, to the Court’s exercise of its powers conferred by the Statute. There is no need to interpret the reference in Article 36, paragraph 1, of the Statute to “treaties in force” to include the Statute itself; acceptance of the Statute entails acceptance of the competence conferred on the Court by Article 62. (El Salvador/Honduras, Application to Intervene, Judgment of 13 Sep. 1990, ICJ Rep. 1990, p. 133, para. 96)

164  Emphasis in the original.

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In the final analysis, the Court’s incidental jurisdiction can be said to be a manifestation of the inherent powers that it possesses as a court of law, but its different modalities are normally based on express provisions included in the Court’s governing instruments. The notion of “inherent powers” proper refers rather to those procedural situations for which the Statute and the Rules do not provide a clear answer, like in the case of the summary removal of a case from the General List.165 The Court referred to this situation in the Nuclear Tests, in which it found: (. . .) it should be emphasized that the Court possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all matters in dispute, to ensure the observance of the “inherent limitations on the exercise of the judicial function” of the Court, and to “maintain its judicial character” (. . .). Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic judicial functions may be safeguarded. (Nuclear Tests, Judgments of 20 Dec. 1974, ICJ Rep. 1974, p. 259, para. 23 and p. 463, para. 23)

In order to determine the precise scope of the incidental jurisdiction of the ICJ the Rules of Court can be taken as guidance. In Section D of Part III of the Rules the following items are listed under the heading “Incidental Proceedings”:166

• Interim protection (Articles 73–78); • Preliminary objections (Article 79); • Counter-claims (Article 80); • Intervention (Articles 81–86); • Special reference to the Court (Article 87); • Discontinuance (Articles 88–89). 165  Ch. Brown, “The Inherent Powers of International Courts and Tribunals”, BYIL, vol. 76 (2005), pp. 195–244. On the summary removal or dismissal of cases see Chapter 9, a). 166  The previous Rules, starting in 1936, used the more neutral heading “Occasional Rules” (“Regles particulieres”). Interestingly, this expression is still used as a heading in the relevant section of the Court’s Yearbook (ICJ Yearbook (2009–2010), p. 217).

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This enumeration can be considered as authoritative, although it is worth noting that the last two elements in it are more in the nature of procedural techniques that are at the disposal of litigant States. The “special reference to the Court” procedure corresponds to the notion of appeals against decisions by other tribunals and discontinuance is the device used by the States parties wishing to terminate the proceedings before a decision is reached. Furthermore, the concept of joinder of cases, regulated by a provision in the Rules located in a different section of Part III (Article 47, found in Subsection 2 of Section C, dealing with the written proceedings), can also be said to give rise to incidental proceedings. The Court itself has in its jurisprudence added an additional category, consisting in the competence to assess the form and amount of reparations when the responsibility of a State for an internationally wrongful act has been declared, a question belonging to what can be called generally the Court’s “remedial competence.” Likewise, some scholars include among incidental proceedings other aspects of the Court’s working that are mentioned elsewhere in the Statute or the Rules: the jurisdiction to interpret the Court’s own decisions (Statute, Article 60; Rules, Article 98) and the jurisdiction to revise them (Statute, Article 61; Rules, Article 99). In this work, the later categories will be given the treatment of derivative proceedings, as they only arise after a final decision on the merits has been made.167 The conditions in which the Court exercises its jurisdiction under each of these headings will be discussed in Parts 5 and 6 of the present work, devoted, respectively, to incidental and derivative proceedings.168 Incidental proceedings are sometimes called “interlocutory,” a generic term that denotes proceedings that (one) Presuppose the existence of mainline proceedings, in the framework of which they arise and (two) Do not lead to a final and definitive judgment. Interlocutory proceedings proper share this trait with incidental proceedings but instead of referring to incidental questions—such as those listed above—refer rather to minor points of procedure that arise in the course of ordinary proceedings, such as the manner in which a case is to be presented to the Court or the conditions for the production or admissibility of specific types of evidence. In the ICAO Council case the Court briefly referred to proceedings of this nature, remarking that they would normally result in the adoption of

167  On the concept of “derivative proceedings’ see Rosenne, “Interpretation, Revision. . .”, pp. 190–191. 168  See, in general, J.-M. Sorel & F. Poirat, Les procedures incidents devant la Cour international de Justice: exercise ou abus de droits? (2001).

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“[p]rocedural or otherwise genuinely interlocutory decisions” such as those that any organ of adjudication is empowered to make.169 As it will be explained below, in cases of this nature the questions raised are normally resolved in an expeditious way by the Court, after it has summarily ascertained the views of the parties.170 Further Reading

[ Jurisdiction in General] Leading Works

Ch.F. Amerasinghe, Jurisdiction of International Tribunals (2003) Ch.F. Amerasinghe, Jurisdiction of Specific International Tribunals (2009), pp. 11–254



General Works and Treatises on the Court



Articles and Monographs

Dubisson’s CIJ, pp. 144–155 Fitzmaurice’s Law and Procedure, vol. 2, pp. 434–450; 492–523; 496–511 Hudson’s PCIJ, pp. 405–434 H. von Mangoldt & A. Zimmermann, “Article 53”, in Oxford Commentary, pp.  1324– 1354 Rosenne’s Law and Practice, vol. 2, pp. 517–604, 985–1056; vol. 3, pp. 933–984 B. Simma & D. Richemond, “Article 37”, in Oxford Commentary, pp. 712–725 Thirlway’s Law and Procedure, Part 9, BYIL, vol. 69 (1998), pp. 1–83; Part 10, BYIL vol. 70 (1999), pp. 11–16; Part 11, BYIL, vol. 71 (2000), pp. 91–144 C. Tomuschat, “Article 36”, in Oxford Commentary, pp. 633–711

A. Aguilar-Mawdsley, “La Jurisdicción contenciosa de la Corte Internacional de Justicia a la luz de la jurisprudencia de este alto tribunal”, Revista de la Facultad de Ciencias Jurídicas y Políticas, vol. 99 (1996), pp. 17–51 R.P. Anand, Compulsory Jurisdiction of the International Court of Justice (Rev. 2nd. ed., 2008) H. Briggs, “La compétence incidente de la Cour international de justice en tant que compétence obligatoire”, RGDIP, vol. 64 (1960), pp. 217–229

169  ICAO Council, Judgment of 18 August 1972, ICJ Rep. 1972, pp. 55–56, para. 18. 170  See Box # 4-3.

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V. Bruns, “La Cour Permanente de justice internationale, son organization et sa competence”, RC, vol. 62 (1937/IV), pp. 623–665 R. Casado Raigon, La Jurisdicción Contenciosa de la Corte Internacional de JusticiaEstudio de las Reglas de su Competencia (1987) R. Casado Raigón, “El enfoque jurisprudencial de los artículos 36, párrafo 5 y 37 del Estatuto de la Corte Internacional de Justicia”, REDI, vol. 39 (1987), p. 23 ff. C. Espaliú Berdud, Desarrollos Jurisprudenciales y Práctica Reciente en la Jurisdicción Contenciosa de la Corte Internacional de Justicia (2000), pp. 37–84 E. Hambro, “The Jurisdiction of the International Court of Justice”, RC, vol. 76 (1950-I), pp. 125–213 E. Jiménez de Aréchaga, “Jurisdicción de la Corte Internacional de Justicia”, in InterAmerican Juridical Yearbook (1955–1957), pp. 3–43 E. Lauterpacht, “’Partial’ judgments and the inherent jurisdiction of the International Court of Justice”, in V. Lowe & M. Fitzmaurice, (Eds.), Fifty Years of the International Court of Justice—Essays in Honour of Sir Robert Jennings (1996), pp. 465–486 S. Oda, “The International Court of Justice viewed from the Bench (1976–1993)”, RC, vol. 244 (1993-VII) in passim M.C. Philip & J.-Y. De Cara, “Nature et evolution de la juridiction internationale”, in Société Francaise pour le Droit International, Colloque de Lyon, La Juridiction internationale permanente (1987), pp. 3–43 M. Pomerance, The Advisory Function of the International Court in the League and U.N. Eras (1973) Sh. Rosenne, “International Courts and tribunals, Jurisdiction and Admissibility of Inter-State Applications”, in Max Planck EPIL I. Shihata, The power of the International Court to determine its own jurisdiction— Competence de la Competence (1965) V. Starace, La competenza della Corte internazionale di giustizia in materia contenziosa (1970) H. Tourard, “De la compétence – Le champ opératoire : nouvelles perspectives ?”, in C. Apostolidis (Ed.), Les arrets de la Cour internationale de Justice (2005), pp. 11–19



[Special Agreements] General Works and Treatises on the Court

Hudson’s PCIJ, pp. 435–438 Rosenne’s Law and Practice, vol. 2, pp. 663–665 C. Tomuschat, “Article 36”, in Oxford Commentary, MN 39–45, pp. 660–664



Articles and Monographs

C. Espaliú Berdud, Desarrollos Jurisprudenciales y Práctica Reciente en la Jurisdicción Contenciosa de la Corte Internacional de Justicia (2000), pp. 115–128

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R. Lapidoth, “The ‘compromis d’arbitrage’” in K. Koufa (Ed.) International Justice (1997), pp. 73–99 L.C. Marion, “La saisine de la CIJ par voie de compromis”, RGDIP, vol. 99 (1995), pp. 257–300 S. Oda, “The International Court of Justice viewed from the Bench (1976–1993)”, RC, vol. 244 (1993-VII), pp. 32–35



[Treaties and Conventions] General Works and Treatises on the Court

Dubisson’s CIJ, pp. 155–159 Hudson’s PCIJ, pp. 438–448 Rosenne’s Law and Practice, vol. 2, pp. 657–726 C. Tomuschat, “Article 36”, in Oxford Commentary, MN 48–67, pp. 665–675



Articles and Monographs

R.P. Anand, Compulsory Jurisdiction of the International Court of Justice (Rev. 2nd. Ed., 2008), pp. 117–140 R. Casado Raigon, La Jurisdicción Contenciosa de la Corte Internacional de JusticiaEstudio de las Reglas de su Competencia (1987), pp. 61–92 J. Charney, “Compromisory Clauses and the Jurisdiction of the International Court of Justice”, AJIL, vol. 81 (1987), pp. 855–887 C. Espaliú Berdud, Desarrollos Jurisprudenciales y Práctica Reciente en la Jurisdicción Contenciosa de la Corte Internacional de Justicia (2000), pp. 87–114 Fred L. Morrison, “Treaties as a Source of Jurisdiction, Especially in U.S. Practice”, in L.F. Damrosch, et al, The International Court of Justice At A Crossroads (1987), pp. 58–81 S. Oda, “The International Court of Justice viewed from the Bench (1976–1993)”, RC, Vol. 244 (1993-VII), pp. 35–38 W.M. Reisman, “The Other Shoe Falls: The Future of Article 36 (1) Jurisdiction in the Light of Nicaragua”, AJIL, vol. 81 (1987), pp. 166–173 L.B. Sohn, “Settlement of Disputes Relating to the Interpretation and Application of Treaties”, RC, Vol. 150 (1976-II), pp. 195–294 R. Szafarz, The Compulsory Jurisdiction of the International Court of Justice (1993), pp. 17–38



[The Optional Clause] Leading Works

R.P. Anand, Compulsory Jurisdiction of the International Court of Justice (Rev. 2nd. ed., 2008)

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General Works and Treatises on the Court



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133

Dubisson’s CIJ, pp. 159–195 Hudson’s PCIJ, pp. 449–482 Rosenne’s Law and Practice, vol. 2, pp. 727–836 Thirlway’s Law and Procedure, Part 10, BYIL, vol. 70 (1999), pp. 29–63 C. Tomuschat, “Article 36”, in Oxford Commentary, MN 68–108, pp. 676–694

S. Alexandrov, Reservations in Unilateral Declarations Accepting the Compulsory Jurisdiction of the International Court of Justice (1995) S. Alexandrov, “Accepting the Compulsory Jurisdiction of the International Court of Justice with Reservations: An Overview of Practice with a Focus on Recent Trends and Cases”, LJIL, vol. 14 (2001), pp. 89–124 S. Alexandrov, “The Compulsory Jurisdiction of the International Court of Justice: How Compulsory Is It?” Chinese JIL, vol. 5 (2006), pp. 29–38 Ch.F. Amerasinghe, Jurisdiction of Specific International Tribunals (2009), pp. 55–93 B. Bailey, The Optional Clause Reconsidered: Its Nature and Potential As a Future Source of Jurisdiction (1987) H.W. Briggs, “Reservations to the acceptance of compulsory jurisdiction of the International Court of Justice”, RC, vol. 93 (1958), pp. 229–337 E. Brown Weiss, “Reciprocity and the Optional Clause”, in L.F. Damrosch, et al, The International Court of Justice At A Crossroads (1987), pp. 82–105 R. Casado Raigon, La Jurisdicción Contenciosa de la Corte Internacional de JusticiaEstudio de las Reglas de su Competencia (1987), pp. 93–160 S. Engel, “The Compulsory Jurisdiction of the International Court of Justice”, Georgetown LJ, vol. 40 (1951–1952), pp. 41–66 C. Espaliú Berdud, Desarrollos Jurisprudenciales y Práctica Reciente en la Jurisdicción Contenciosa de la Corte Internacional de Justicia (2000), pp. 149–248 M. Fitzmaurice, “The Optional Clause System and the Law of Treaties: Issues of Interpretation in Recent Jurisprudence of the International Court of Justice”, Australian YIL, vol. 20 (1999), pp. 127–159 M. Fitzmaurice, “International Court of Justice, Optional Clause”, in Max Planck EPIL J.A. Frowein, “Reciprocity and Restrictions Concerning Different Optional Clauses”, in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge Shigeru Oda (2002), vol. 1, pp. 397–407 E. Gordon, “’Legal Disputes’ Under Article 36 (2) of the Statute”, in L.F. Damrosch, et al, The International Court of Justice At A Crossroads (1987), pp. 183–222 L. Gross, “Compulsory Jurisdiction under the Optional Clause: History and Practice”, in L.F. Damrosch, et al, The International Court of Justice At A Crossroads (1987), pp. 19–57

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E. Hambro, “Some Observations on the Compulsory Jurisdiction of the International Court of Justice”, BYIL, vol. 25 (1948), pp. 133–157 E. Hambro, “The Jurisdiction of the International Court of Justice”, RC, vol. 76 (1950-I), pp. 181–190 M.W. Janis, “Somber reflections on the compulsory jurisdiction of the ICJ”, AJIL vol. 81 (1987), pp. 144–146 M. Kawano, “The Optional Clause and the Administration of Justice by the Court”, in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge Shigeru Oda (2002), vol. 1, pp. 419–434 N. Kebbon, “The World Court’s Compulsory Jurisdiction under the Optional Clause. Past, Present and Future”, Nordic JIL, vol. 58 (1989), pp. 257–286 R.C. Lawson, “The Problem of the Compulsory Jurisdiction of the World Court”, AJIL, vol. 46 (1952), pp. 219–238 L. Lloyd, “ ‘A springboard for the future’: a historical examination of Britain’s role in developing the optional clause of the Permanent Court of International Justice”, AJIL, vol. 79 (1986), pp. 28–51 J.G. Merrills, “The Optional Clause Today”, BYIL, vol. 50 (1979), pp. 87–116 J.G. Merrills, “Does the Optional Clause Still Matter?”, in K.H. Kaikobad & M. Bohlander (Eds.), International Law and Power, Perspectives on Legal Order and Justice—Essays in Honour of Colin Warbrick (2009), pp. 431–454 S. Oda, “Reservations in the Declarations of Acceptance of the Optional Clause and the Period of Validity of Those Declarations: The Effect of the Schultz Letter”, BYIL, vol. 59 (1988), pp. 31–47 S. Oda, “The International Court of Justice viewed from the Bench (1976–1993)”, RC, vol. 244 (1993-VII), pp. 35–44 F. Orrego Vicuña, “The Legal Nature of the Optional Clause and the Rights of a State to Withdraw a Declaration Accepting the Compulsory Jurisdiction of the International Court of Justice”, in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge Shigeru Oda (2002), vol. 1, pp. 463–479 R. Ravilet, “Perspectivas de la Cláusula Facultativa de Jurisdicción Obligatoria de la Corte Internacional de Justicia”, in M.T. Infante Caffi & R. Cave Schnohr (Comp.), Solución Judicial de Controversias-El Derecho Internacional ante los tribunales internacionales e internos (1995), pp. 51–84 S. Rosenne, “Equitable Principles and the Compulsory Jurisdiction of International Tribunals”, in S. Rosenne, An International Law Miscellany (1993), pp. 181–200 R. Szafarz, The Compulsory Jurisdiction of the International Court of Justice (1993) S. Torres Bernárdez, “La ‘Reciprocidad’ en el “sistema de jurisdicción obligatoria” establecido en el artículo 36 párrafo 2 del Estatuto de la Corte Internacional de Justicia”, Cursos de Derecho Internacional de Vitoria-Gasteiz (1988), pp. 321 ff.

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S. Torres Bernárdez, “Reciprocity in the System of Compulsory Jurisdiction and in Other Modalities of Contentious Jurisdiction Exercised by the International Court of Justice”, in E.G. Bello and B.A. Ajibola (eds) Essays in Honour of Judge Taslim Olawale Elias (1992), vol. 1, pp. 291–329 C.H.M. Waldock, “Decline of the Optional Clause”, BYIL, vol. 32 (1955–1956), pp. 244–287

[ forum prorogatum] General Works and Treatises on the Court

Dubisson’s CIJ, pp. 198–204 Guyomar’s Commentaire, pp. 229–246 Rosenne’s Law and Practice, vol. 2, pp. 695–726 Rosenne’s Procedure, pp. 92–94 Thirlway’s Law and Procedure, Part 9, BYIL vol. 69 (1998), pp. 27–30 S. Yee, “Article 40”, in Oxford Commentary, MN 115–133, pp. 983–994



Articles and Monographs

Address by the President of the Court, Dame Rosalynn Higgins, to the Sixth Committee of the General Assembly, 31 Oct. 2008, ICJ Yearbook (2008–2009), pp. 379–387 Ch.F. Amerasinghe, Jurisdiction of Specific International Tribunals (2009), pp. 94–108 R. Casado Raigon, La Jurisdicción Contenciosa de la Corte Internacional de JusticiaEstudio de las Reglas de su Competencia (1987), pp. 31–35 C. Espaliú Berdud, Desarrollos Jurisprudenciales y Práctica Reciente en la Jurisdicción Contenciosa de la Corte Internacional de Justicia (2000), pp. 129–147 S. Oda, “The International Court of Justice viewed from the Bench (1976–1993)”, RC, vol. 244 (1993-VII), pp. 45–47 S. Rosenne, “The Forum Prorogatum in the International Court of Justice”, RHDI, vol. 6 (1953), pp. 1–26 J. Soubeyrol, “ ‘Forum prorogatum’ et Cour international de Justice: de la procédure contentieuse a la procédure consultative”, RGDIP (1972), p. 1098 ff. P. Stillmukes, “Le ‘Forum Prorogatum’ devant la Cour permenente de Justice internationale et la Cour internationale de Justice”, RGDIP (1964), p. 193 ff. H. Thirlway, “Procedural law and the ICJ” In V. Lowe & M. Fitzmaurice, (Eds.), Fifty Years of the International Court of Justice—Essays in Honour of Sir Robert Jennings (1996), pp. 395–396 S. Yee, “Forum prorogatum in the International Court”, German YIL, vol. 42 (1999), p. 147 S. Yee, “Forum Prorogatum Returns to the ICJ”, LJIL, vol. 16 (2003), pp. 701–713

Part 2 Preparing for and Starting the Litigation

∵

Part 2 concentrates in the steps that have to be taken by the States that prepare to engage in litigation and on the manner in which the litigation process begins. After discussing the principal sources of the procedural law that governs most of the Court’s activity (Chapter 3) and certain general aspects of procedure (Chapter 4), the different methods by which proceedings can be instituted are examined in some detail (Chapter 5).

Chapter 3

Governing Instruments As traditionally the procedure before the ICJ has not attracted a lot of attention from international lawyers, it is not surprising that there have been few attempts to systematize the formal sources of the procedural law applied by the Court.1 This is the set of rules governing the mechanics of legal proceedings conducted before the ICJ, i.e. “the body of rules and practice by which justice is administered.”2 Referring to this aspect of the Court’s work, a commentator has stated that: The Court has not so far found it necessary to consider the sources of the law governing its procedure, since the Statute and Rules have proved adequate to the needs of the Court’s work. Presumably the procedural law of the Court, being part of international law, must derive from the same sources as substantive law (. . .).3 a)

Sources of the Procedural Law of the ICJ

According to the above view, which is certainly sensible, the sources of the procedural law of the ICJ would identify themselves with those elements that are mentioned in Article 38, paragraph 1 of the Court’s Statute, i.e., treaties, international custom, general principles of law and, as a subsidiary means, judicial decisions and doctrine.

1  For attempts at systematization see Scerni’s La Procédure, pp. 583–594; J.B. Acosta Estévez, El Proceso ante el Tribunal Internacional de Justicia (1995), pp. 29–40; Ch. Brown, A Common Law of International Adjudication (2009), pp. 36–55; Sir E. Lauterpacht, “Principles of Procedure in International Litigation”, RC, vol. 345 (2009), pp. 405–406. See also M. Benzing, “Community Interests in the Procedure of International Courts and Tribunals”, LPICT, vol. 5 (2006), pp. 369–408. 2  D. Terris, C.P.R. Romano & L. Swigart, The International Judge, An Introduction to the Men and Women Who Decide the World’s Cases (2007), p. 103. 3  Thirlway’s Law and Procedure, Part 11, BYIL, vol. 71 (2000), p. 158, note 357. See also by the same author: “Dilemma or Chimera?-Admissibility of Illegally Obtained Evidence in International Adjudication”, AJIL, vol. 78 (1984), pp. 623–624.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004297517_004

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Treaties The first group of rules mentioned in Article 38, para. 1 is that of “international conventions . . . establishing rules expressly recognized by the contesting states.” This provision distinguishes between “general” and “particular” conventions and this differentiation may be useful in the context of the present analysis. With regard to “general conventions,” the United Nations Charter and the Statute of the Court occupy a place of preeminence, being the primary sources of the law governing the functioning of the Court and the conduction of litigation before it. A noteworthy feature of these two instruments is that, by virtue of Article 103 of the Charter—the closest to a “supremacy clause” that exists in international law—their provisions prevail over those of any other treaty, at least as far as the obligations of the States parties are concerned.4 As for the Rules of Court, which are derivative law that is not the product of a negotiation process among States, they would not in principle belong to the category of treaty law.5 However, it has been noted that the Court has given support to the principle that, unless a contrary intention has been expressed, when international adjudication takes place before a judicial body of a permanent nature that has its own rules of organization and procedure, “[t]he interested Parties are in such a case held to have accepted such rules.”6 Therefore, it can be said that by granting to the Court the authority to frame its own rules of procedure, the States parties to the Statute have accepted in advance a conventional obligation to abide by those rules and to that extent they form part of the formal sources of the law to be applied to proceedings before the Court.7 The Permanent Court stated the general principle that “[t]he decision of the Court must be in accordance with its Statute and with the Rules duly framed by it in pursuance of article 30 of the Statute.”8 It is, of course, axiomatic that the Rules must conform to the provisions of the Statute and that, as stated by judge 4  The Court gave effect to this provision for the first time in the Lockerbie cases (Provisional Measures, Orders of 14 April 1992, ICJ Rep. 1992, pp. 3 and 114). On the scope of Article 103 see R. Livoja, “The Scope of the Supremacy Clause of the United Nations Charter”, ICLQ, vol. 57 (2008), pp. 583–612. 5  An author has called the Rules “subsidiary legislation” (H. Thirlway, “Article 30”, in Oxford Commentary, MN 4, p. 517). 6  Rosenne’s Law and Practice, vol. 2, p. 544. The quote is from the advisory opinion on the question of Mosul (Advisory Opinion of 21 November 1925, PCIJ B 12, p. 31). See also Guyomar’s Commentaire, pp. 10–11. 7  See further Brown, “A Common Law . . .”, pp. 39–40; Thirlway, “Article 30”, MN 4–7, pp. 517– 519; S. Rosenne, “Some Reflections on the 1978 Revised Rules of the ICJ”, Columbia Journal of Transnational Law, vol. 19 (1981), p. 236. 8  Danzig Legislative Decrees, Order of 31 Oct. 1935, PCIJ A/B 65, p. 70.

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Fitzmaurice in the Namibia case: “The Court has no power to make Rules that conflict with its Statute: hence any rule that did so conflict would be pro tanto invalid, and the Statute would prevail.”9 However, this might amount to a very relative proposition, because, on the one hand, the Court is the only body with authority to pronounce on the question, and on the other, it is believed that no State has ever advanced before the Court the thesis that a given provision of its own Rules is not compatible with the Statute. Nevertheless, the Rules can also be taken as a necessary instrument for the proper application of the general provisions included in the Statute. It is apposite to recall in this regard what the Court had to say on the relationship of a domestic statute and the regulations adopted to implement it: The Court would further point out that (. . .) a statute and its implementing regulations cannot be dissociated. The statute establishes the general legal framework and the regulations permit the application of the statute to meet the variable and changing circumstances through a period of time. The regulations implementing the statute can have no legal existence independently of that statute, while conversely the statute may require implementing regulations to give it effect. (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction, Judgment of 4 Dec. 1998, ICJ Rep. 1998, p. 460, para. 67)

States coming to litigate before the Court cannot escape the regulatory framework established in the Statute and the Rules, not even by declaring in advance that they “reserve their rights” with regard to questions of procedure. In at least two recent occasions the Court has registered that these “reservations”—made very often in the application or in the pleadings—cannot authorize States parties to “exempt themselves from the application (. . .) of the provisions of the Statute and Rules of Court.”10 What States parties can do, by common agreement, is to introduce changes in the Rules in the course of proceedings in a contentious case. This possibility, which is expressly foreseen in Article 101 thereof, will be discussed below. As for “particular conventions,” international instruments that should be included here as true sources of the procedural law of the ICJ in individual 9  Advisory Opinion, Dissenting Opinion of Judge Fitzmaurice, ICJ Rep. 1971, p. 310. See also Thirlway, “Article 30”, MN 7, p. 519. 10  Avena, Merits, Judgment of 31 March 2004, ICJ Rep. 2004, pp. 28–29, para. 24. See also Genocide Convention (Bosnia), Provisional Measures, Order of 13 Sep. 1993, ICJ Rep. 1993, p. 338, para. 28.

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cases are those governing the conferment of jurisdiction to the Court, i.e., treaties containing jurisdictional clauses and special agreements by virtue of which disputes are submitted to adjudication. The Statute and the Rules of Court will be mentioned again in the coming sections of the present Chapter, where the principal legal instruments governing the procedure before the ICJ will be discussed in specific terms. Custom After treaties, Article 38, para. 1 of the Statute mentions in letter (b) “[i]nternational custom, as evidence of a general practice accepted as law.” This normative category presents difficulties from the point of view of the procedural law of the ICJ, if only because most of the customs in existence in international law refer to questions of substantive nature and it would be rare to find a case in which a true rule of customary international law dealing with an aspect of the litigation procedure before the ICJ could be said to exist.11 However, it is important to remember that we are speaking here of procedure stricto sensu, for in the matter of jurisdiction the situation may well be different. The principle of consent to jurisdiction, for instance, is undoubtedly a rule of customary international law and the same could be said of the principle compétence de la compétence. An interesting question is whether there are norms of jus cogens in the field of international adjudication. As far as the ICJ is concerned, in any case, the situation is to a large extent devoid of practical effects, inasmuch as obvious candidates, like the principle of consent, are embodied expressis verbis in the Court’s Statute. The concept of judicial propriety, which cannot be found in the Statute, perhaps qualifies as a norm of jus cogens, being connected as it is to the Court’s permanent “duty . . . to maintain its judicial character.”12 Additionally, two elements must be taken into account. On one hand, a large portion of the procedural law of the ICJ has been codified and can be found either in the Statute or in the Rules of Court, with the result that disputes concerning the application of these rules in actual cases usually revolve around the correct

11  See C.F. Amerasinghe, Evidence in International Litigation (2005), p. 26, concerning the law applicable to evidence and proof. 12  Northern Cameroons, Preliminary Objections, Judgment of 2 Dec. 1963, ICJ Rep. 1963, p. 29. On the relevance of this notion in contentious cases see Chapter 2, d). For another possible candidate to the status of jus cogens see Ch.F. Amerasinghe, Jurisdiction of Specific International Tribunals (2009), pp. 164–165. See also Box # 2-2.

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interpretation of them. This means that one need not search for positive rules in fields like State practice.13 On the other hand, in the next subsection it will be explained that general principles of law play a prominent role in all matters related to litigation and procedure before the ICJ. When the Statute or the Rules of Court fail to provide an answer for a procedural problem that the States parties or the Court come across in the course of a given case, it is more likely that they will resort to the use of a general principle of law than to an international custom that in many cases will be nearly impossible to identify, let alone establish proof of its existence. Nevertheless, it must be stressed that the practice of international courts— what the Court has referred to as “the general practice of courts,”14 an expression that certainly includes the extensive practice connected to inter-State arbitration—plays a cardinal role in the conduction of proceedings and more often than not furnishes the Court and the litigant States with criteria, rules and standards that can be followed in other cases. The practice of the Court itself in previous cases—or, for that matter, the practice of States when acting as litigating parties before the Court—cannot of course be equated to a general international custom binding upon all States. However, the States themselves, when engaged in litigation, very rarely question the procedural decisions upon which the Court arrives, some of which are squarely based on its own practice. A commentator accurately sums up the situation in the following terms: It is doubtful whether anything in the nature of a binding custom, as distinct from the borrowing of tried and efficient practices, can be said to exist. (. . .) A tentative conclusion on this point may be that since very little, if any, of the discernible law of procedure may be regarded as jus cogens, and since most procedural questions are regulated in advance in treaties and rules of court, there is only a very limited field in which a residual general procedural law could operate. Insofar as it does so, it is by the guidance which precedents and practices afford to the judge called upon to resolve an unforeseen point of procedure.15

13  H.W.A. Thirlway, “Procedural law and the International Court of Justice”, in V. Lowe & M. Fitzmaurice, (Eds.), Fifty Years of the International Court of Justice, Essays in Honour of Sir Robert Jennings (1996), p. 389. 14  Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 43, para. 69. 15  H. Thirlway, “Procedure of International Courts and Tribunals”, in R. Bernhardt (Ed.), Encyclopedia of Public International Law, vol. 3 (1992), p. 1128. See also Brown, “A Common Law . . .”, pp. 53–55.

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Box # 3-1 International custom v. practice of the Court in the case law of the Inter-American Court of Human Rights In a recent advisory opinion, the Inter-American Court of Human Rights faced the question of revising its previous reading of the provisions in its constitutive instrument concerning the appointment of judges ad hoc. The Court adopted a novel interpretation of those rules and drastically changed its practice in that regard. Interestingly, in doing so it had to reply to an argument made before it according to which the relevant previous practice of the Court had originated an international custom giving rise to a right for the States parties to appoint a judge ad hoc. Invoking Article 38 of the ICJ’s Statute, the Court rejected this argument and drew a neat distinction between the practice of States, which can generate an international custom, and the interpretation of the constitutive rules made by the Court itself, on the basis of the rules governing its procedure. The latter, even if it is uniform, can never constitute State practice within the meaning of Article 38. 47. Some States have considered that the Court’s repeated invitation on the possibility to appoint Judges ad hoc is “customary international law.” In this regard, they indicated that the appointment of Judges ad hoc in contentious cases originated in individual petitions is an autonomous procedural right of the States that arises from that international custom. 48. In this regard, the Court observes that Article 38(1)(b) of the Statute of the International Court of Justice refers to international custom as “evidence of a general practice accepted as law.” In this regard, the case law of the International Court of Justice, as well as the international doctrine, have indicated that this source of law consists of two formative elements. The first, objective in character, is the existence of a general practice created by the States, and performed constantly and uniformly (usus or diuturnitas). The second element, of a subjective character, refers to the States’ conviction that said practice constitutes a legal norm (opinio juris sive necessitatis). 49. The Court observes that since its first contentious cases it has repeatedly informed the respondent State, through notifications by the Secretariat and following the Presidency’s instructions, of the possibility to appoint a Judge ad hoc when amongst the judges summoned to hear a

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case initiated through an individual petition none are nationals of the respondent State. The Court has thus accepted the intervention of Judges ad hoc when, on one hand, the composition of the Court does not include a judge national of the State Party in the case, and, on the other hand, when titular judges that are nationals of the respondent State are allowed to excuse themselves from participating in the matter based on Article 19(2) of the Statute. This participation is appreciated by the Court. 50. The Court is aware that since the alleged victims and their representatives have the procedural capacity of intervening autonomously before the Inter-American Court, in several contentious cases originated in individual petitions the figure of the Judge ad hoc has been subject to opposition by them and by the Inter-American Commission. In fact, the victim’s representatives have indicated that the functioning of the organs of the Inter-American system for the protection of human rights has been subjected to important reforms through the introduction of substantial changes focused on the recognition of a full, active, and direct participation by the alleged victim, their next of kin or representatives, in all procedural stages before the Court; however, according to the Convention, they do not have the possibility of appointing Judges ad hoc. 51. Regarding this point, until now the Court had not found reasons, “examining the question as an incidental issue in the framework of a specific contentious case,” for modifying the interpretation observed until now (para. 48). The present request for an advisory opinion has required that the Court reexamine this matter. 52. As previously stated, it is a natural function of every court to interpret the substantive and procedural norms that it is empowered to apply (para. 21), and in this regard, the Court must always attempt to interpret the provisions contained in the American Convention in a manner that is effectively compatible both with the language and spirit of the treaty. Consequently, the Court considers that when there is reason to do so, the review of a previously created interpretation is not only possible but necessary. 53. Therefore, the act of repeatedly informing the respondent States Parties of the possibility to appoint Judges ad hoc, responds to an interpretation of Article 55(3) of the Convention performed by the Inter-American Court itself, taking into account its procedural norms. As such, no interpretation of the Convention performed by the Court, even in a repeated

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manner, may be understood as a practice of the States in the sense of Article 38(1)(b) of the Statute of the International Court of Justice, in a manner that prevents the Court from modifying its criteria. Based on the foregoing, it is noted that in this matter there is no internal customary law according to which the States have acquired any rights to appoint Judges ad hoc in contentious cases originated in individual petitions. (Inter-American Court of Human Rights, Advisory Opinion OC-20/09 of Sept. 29, 2009, Article 55 of the American Convention on Human Rights I/A Court H.R., Series A, No. 20)16

General Principles of (Procedural) Law17 The “general principles of law recognized by civilized nations” that are mentioned in letter (c) of paragraph 1 of Article 38 of the Statute are generally considered to be norms of a very general character and scope, often couched as Latin aphorisms or maxims, that are common to all legal systems and are present in both international law and the domestic law of the States.18 It is generally accepted that “[p]rocedure in international adjudication has been informed by experience gained in domestic legal systems.”19 Indeed, as judicial adjudication is common to virtually all systems of law, it is submitted that the realm of procedural law is particularly apt for the identification and application of certain “well-accepted universal principles relating to the

16  See also, in the same case, Concurring Opinion of Judge Sergio García Ramírez, paras. 21–23. 17  A. Sereni, Principi generali di diretto e proceso internazionali (1955); S. Negri, I principi generali del processo internazionale nella giurisprudenza della Corte internazionale di giustizia (2002). 18  For the general concept and a comprehensive legislative history of Article 38, para. 1 (c) see B. Cheng, General Principles of Law as Applied by International Courts and Tribunals (1987), pp. 1–26. In the Pulp Mills case, judge Cançado Trindade appended an individual opinion examining in detail the role played by “general principles of law” as a source of international law (Pulp Mills, Merits, Separate Opinion of Judge Cançado Trindade, ICJ Rep. 2010, pp. 139–156, paras. 8–51). He made the interesting point that “the traditional general principles of law (found in foro domestico) disclosed a rather procedural character” (ibid., p. 153, para. 44). 19  Brown, “A Common Law . . .”, p. 90. For a more guarded view see H. von Mangoldt, “La comparaison des systemes de droit comme moyen d’elaboration de la procedure des tribunaux internationaus”, ZaÖRV (1980), pp. 554–571.

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nature of the judicial process”,20 which by their very nature flow from general conceptions of law that are not privy to international law—or, for that matter, to municipal law—such as justice, equity, abuse du droit, good faith et al. This is demonstrated by the frequency with which references to these principles can be found in decisions by international tribunals in contexts that are clearly procedural.21

Box # 3-2 “General principles of procedure” in the PCIJ Rules During the 1936 revision of the Rules it was proposed at a certain point to insert in Article 32 (dealing with modifications to the Rules jointly proposed by the Parties concerned, a matter covered by Article 101 of the current Rules) an express clause providing for subsidiary resort to the general principles of law mentioned in Article 38 of the Statute. The initiative originated in a Commission of the Court and was described by judge Anzilotti in the following terms: [a]fter consulting his colleagues of the Third Commission, he would submit a formula based on the idea that, in the absence of a specific rule in an international convention, it would appear that the Court should, pursuant to Article 38, No. 3 of the Statute, apply ‘the general principles of law recognized by civilized nations’.22 The formula put forward to the Court read as follows: Should a case arise that is not provided for in the present Rules, it shall be decided by the Court, which shall be guided by the general principles of procedure recognized among civilized nations.23 However, Anzilotti himself expressed hesitation about the convenience of reforming Article 32 at that juncture and said that in any case, the matter was not urgent. After further consideration, the Coordination Commission decided 20  The expression is by judge Weeramantry (Nuclear Weapons (WHO), Advisory Opinion, Dissenting Opinion of Judge Weeramantry, ICJ Rep. 1996, p. 167). 21  An alternative view is that according to which in the realm of procedure there has always been a considerable overlapping between the formal categories of custom and general principles of law. See Brown, “A Common Law…”, p. 54. 22  PCIJ D 2, Add. 3, p. 844. 23  Ibid., p. 845.

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not to include the proposed text and explained that the principles of justice and equity were always factored in by the Court in order to settle questions of procedure: Dans l’intention de la Commission, le fait qu’elle ne croit pas pouvoir recommander l’insertion de cet alinéa ne doit pas être considéré comme tendant à modifier la pratique actuelle de la Cour, qui consiste à s’inspirer, pour la solution des questions de procédure qu’il lui incombe de trancher et qui ne sont pas visées par las dispositions du Règlement, des principes de la justice et de l’équité. Bien au contraire, l’attitude de la Commission s’explique par le fait que, selon elle, l’alinéa proposé n’ajoute rien au pouvoir dont dispose la Cour en ce moment déjà.24 As it can be seen, the text that almost made its way into the Rules of Court was clearly inspired by Article 38 of the Statute, with the significant adjustment that it did not talk about “the general principles of law” but rather about “the general principles of procedure.” As it was later clarified, these included, amongst other, the principles of justice and equity.

As for the present Court, it has had the occasion to refer in passim to “a universal and necessary, but yet almost elementary principle of procedural law;”25 to “the general principles governing the judicial process;”26 to “a generally recognized principle of procedural law;”27 and to “the general principles of procedural law.”28 A technical definition of “principles” has been offered in the following terms: A ‘principle’ of law is a general normative proposition considered to be expressive of the ration of a series of more detailed rules. The principle is thus a sort of ‘constitutional’ proposition of a legal order: it expresses an important or general legal value; or it is the hallmark of a legal idea that per24  Ibid., p. 866. The report of the Commission is available only in French. 25  South West Africa (Second Phase), Judgment of 18 July 1966, ICJ Rep. 1966, p. 39. 26  Review of Judgment No. 158, Advisory Opinion of 12 July 1973, ICJ Rep. 1973, p. 177, para. 30. In the Nicaragua case the Court also made mention to the “general principles as to the judicial process” (Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 39, para. 58). 27  Immunity from Legal Process, Advisory Opinion of 29 April 1999, ICJ Rep. 1999, p. 88, para. 63. 28  El Salvador/Honduras, Intervention, Judgment of 13 Sept. 1990, ICJ 1990, p. 136, para. 102.

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meates different questions of law. It covers an important or even unlimited segment of the legal reality, without however spelling out in a precise way the conditions of its application or its legal effects.29 However, we are only concerned here with adjective law, that is, general principles of procedural law. It is submitted that in order to qualify as a “general principle of procedural law,” a given rule that complies with these prescriptions must meet two additional requirements: (first) That it refers to an aspect of the procedure of litigation before a judicial body; and (second) That it is applicable in both, domestic and international litigation. Among these principles, the following are of note:30 – equality of the parties (including the principle expressed with the maxim audi alteram partem);31 – proper administration of justice; – onus probandi incumbit actori; – iura novit curia; – free choice of evidence presented; – non ultra petita; – free assessment of the evidence by the judge; – res judicata; – duty to state the reasons upon which the decisions is based; – prohibition of abuse of procedure; – eius est interpretare legem cuius est condere; – estoppel; – nemo commodum capere potest de sua propria injuria.

29  R. Kolb, “General Principles of Procedural Law”, in Oxford Commentary, MN 2, p. 872. See also J. Kammerhofer & A. de Hoogh, “All Things to All People? The International Court of Justice and its Commentators”, EJIL, vol. 18 (2007), pp. 979–980. 30  R. Kolb, “General Principles of Procedural Law”, MN 8, pp. 876–877. See also, by the same author: “Les maxims juridiques en droit international public: questions historiques et theoriques”, Revue Belge DI, vol. 32 (1999), pp. 407–434. 31  See Activities in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road (Nicaragua v. Costa Rica), Joinder, Orders of 17 April 2013, Separate Opinion of Judge Cançado Trindade, paras. 19–24.

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Subsidiary Means: Judicial Decisions and Doctrine Finally, Article 38, para. 1, letter (d) mentions “[j]udicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” It is a truism that the Court’s own decisions—dating back from the epoch of the PCIJ—in which its practice with regard to concrete aspects of procedure is embodied and formulated, play a major role in defining the rules governing litigation before it. This was recognized at the San Francisco Conference, at which the decision to preserve the numbering of the articles of the Statute was taken precisely “in order to facilitate the use of precedents under the old Statute”.32 More recently, in his authoritative study on the force of precedents in the work of the International Court, judge Shahabuddeen was able to conclude: As regards procedural law governing the activity of the Court and the parties in relation to the conduct of a case, this, like basic international law, is in important respects customary in origin; but it seems that a new procedural principle may come into being as a result of the precedential authority of the Court’s decisions. In some cases, the Court, as in the case of the substantive law, refers en bloc to its previous decisions or jurisprudence; but, it is submitted, the possibility is not excluded of a single decision being relied on.33 With regard to doctrine, it is worth mentioning that the Court very rarely quotes scientific works in its judgments and has never done so in order to support one of its conclusions on matters of procedure.34 Individual judges, on the other hand, resort very liberally to the use of recognized and authoritative works by scholars and include frequent quotes from them in their separate and dissenting opinions, as do the States engaged in litigation.

32  ICJ Yearbook (1946–1947), p. 21. 33  M. Shahabuddeen, Precedent in the World Court (1996), p. 72. 34  It is believed that the first time that the Court quoted a doctrinal work in one of its judgments was in the El Salvador/Honduras case, in which a chamber made reference to pieces by learned authors such as Sir Cecil Hurst, Oppenheim and G. Gidel ( Judgment of 11 Sept. 1992, ICJ Rep. 1992, pp. 592–593, paras. 392 and 394). See also M. Mendelson, “The International Court of Justice and the Sources of International Law”, in V. Lowe & M. Fitzmaurice, (Eds.), Fifty Years of the International Court of Justice, Essays in Honour of Sir Robert Jennings (1996), pp. 83–84.

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Box # 3-3 Flexibility on matters of form and procedure35 The Court’s prevalent attitude towards questions of form and procedure has always been “broad, liberal and flexible.”36 Both the PCIJ and the ICJ have had occasion to remark that in international law and in litigation before it considerations of form are secondary. The PCIJ stated as follows in one of the most-often quoted passages of the entire case law of the World Court: The Court, whose jurisdiction is international, is not bound to attach to matters of form the same degree of importance which they might possess in municipal law. (Mavrommatis, Jurisdiction, Judgment No. 6, 30 August 1924, PCIJ A 2, p. 34)

The present Court, for its part, has stressed that, in contrast with many domestic systems of law, international law is usually very flexible on questions of form with regard to international instruments and acts, always giving prevalence to the intentions of the parties: As regards the question of forms and formalities, as distinct from intentions, the Court considers that, to cite examples drawn from the field of private law, there are cases where, for the protection of the interested parties, or for reasons of public policy, or on other grounds, the law prescribes as mandatory certain formalities which, hence, become essential for the validity of certain transactions, such as for instance testamentary dispositions; and another example, amongst many possible ones, would be that of a marriage ceremony. But the position in the cases just mentioned (wills, marriage, etc.) arises because of the existence in those cases of mandatory requirements of law as to forms and formalities. Where, on the other hand, as is generally the case in international law, which places the principal emphasis on the intentions of the parties, the law prescribes

35  See a general discussion in Lauterpacht, “Principles . . .”, pp. 430–436. 36  Sir A. Watts, “Burden of Proof, and Evidence before the ICJ”, in F. Weiss, (Ed.), Improving WTO Dispute Settlement Procedures, Issues and Lessons From the Practice of Other International Courts and Tribunals (2000), p. 289.

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no particular form, parties are free to choose what form they please provided their intention clearly results from it. (Temple of Preah Vihear, Preliminary Objections, Judgment of 26 May 1961, ICJ Rep. 1961, p. 31)37

The Court has also stressed that it is always guided by the principle that a simple “defect in a procedural act” that can be remedied by its author should not be penalized in all cases. The PCIJ set the ground for this in the Polish Upper Silesia case, in which it remarked that “the Court cannot allow itself to be hampered by a mere defect of form, the removal of which depends solely on the party concerned” ( Jurisdiction, Judgment No. 6, 25 August 1925, PCIJ A 6, p. 14). The present Court resorted to this doctrine in the Nicaragua ( Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, pp. 428–429, para. 83) and Genocide Convention (Bosnia) cases. In the latter, it stated: It is the case that the jurisdiction of the Court must normally be assessed on the date of the filing of the act instituting proceedings. However, the Court, like its predecessor, the Permanent Court of International Justice, has always had recourse to the principle according to which it should not penalize a defect in a procedural act which the applicant could easily remedy. (Genocide Convention (Bosnia), Preliminary Objections, Judgment of 11 July 1996, ICJ Rep. 1996, p. 613, para. 26)38

Inspired by this general attitude, the Court has shown a marked willingness to excuse failures by the parties to comply strictly with the provisions of the Rules. In a case in which a respondent contended that the application instituting proceedings did not comply with the requirements present in Article 38 (then Article 32) of the Rules, the Court dismissed this allegation and, quoting with approval the Mavrommatis principle, stated: The Court cannot be indifferent to any failure, whether by Applicant or Respondent, to comply with its Rules which have been framed in accor37  See also the separate opinion of Vice-President Wellington Koo in the Barcelona Traction case (Preliminary Objections, ICJ Rep. 1964, p. 56, para. 15 and pp. 62–63, para. 32). 38  Reiterated in Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, pp. 438–443, paras. 81–89. For a discussion on the question of the “critical date” see Box # 5-1.

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dance with Article 30 of its Statute. The Permanent Court of International Justice in several cases felt called upon to consider whether the formal requirements of its Rules had been met. In such matters of form it tended to “take a broad view”. (. . .) The Court agrees with the view expressed by the Permanent Court in the Mavrommatis Palestine Concessions case (. . .). The Court is quite conscious of the Applicant’s deeply felt concern over events referred to in its pleadings and if there were no other reason which in its opinion would prevent it from examining the case on the merits, it would not refuse to proceed because of the lack of what the Permanent Court in the case of the Interpretation of the Statute of the Memel Territory, called a “convenient and appropriate method in which to bring the difference of opinion before the Court”. (. . .) In the view of the Court the Applicant has sufficiently complied with the provisions of Article 32 (2) of the Rules and the preliminary objection based upon non-compliance therewith is accordingly without substance. (Northern Cameroons, Preliminary Objections, Judgment of 2 Dec. 1963, ICJ Rep. 1963, pp. 27–28)

By contrast, a member of the Court in the same case appended a declaration defending the binding force of the Rules and criticizing the Court for authorizing departures from them: One cannot regard rules of procedure as being simply technical. They determine not only a way of proceeding but procedural rights of parties as well. Their strict observance in the International Court of Justice, one might say, is even more important than in national courts. The Court may not change them en passant in deciding a given case. A revision of the Rules of Court should be effected (if necessary) in an orderly manner and, in any case, the changed rules should be known to parties beforehand. (Northern Cameroons, Preliminary Objections, Declaration of Judge Koretsky, ICJ Rep. 1963, p. 40)

b)

Governing Provisions and Implementing Regulations

The procedure used in contentious litigation before the Court is governed by a combination of provisions of the Statute and the instruments adopted by the Court in order to implement them, as well as the abundant jurisprudence

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that is devoted to procedural matters. The most directly relevant provisions of the Statute are Articles 34 to 64, which make up Chapters II and III, entitled, respectively, “Competence of the Court” and “Procedure”. Article 30 of the Statute grants the Court the power to “frame rules for carrying out its functions” and, in particular, to “lay down rules of procedure.”39 Pursuant to that provision the Court adopts the “Rules of Court” and, more recently, what it has called “Practice Directions” (“instructions de procédure”). The Rules in force were adopted by the Court on 14 April 1978 and have been partially amended three times, on 5 December 2000, 14 April 2005 and 29 September 2005. Initially, the Court embraced the Rules of the Permanent Court—adopted in 1922 and revised successively in 1926, 1931 and 1936—and worked comfortably with them from 1946 until 1972, when it passed a set of amendments that were essentially maintained when a comprehensive reform was adopted, in 1978.40 According to a decision adopted in April 2005 concerning the promulgation of amendments to the Rules of Court, “the text will be posted on the Court’s website, with an indication of its date of entry into force and a note of any temporal reservation relating to its applicability (e.g., whether application of the amended article is limited to cases instituted after the date of entry into force of the amendment concerned).”41 There is a marked difference between the Permanent Court and the current Court with regard to their attitude to the rule-making process. While the former was always careful to publish the records of the discussions leading to the adoption of every change to the Rules, i.e. the travaux préparatoires of each amendment, the present Court, much to the chagrin of commentators and students of its work, has not yet published any materials pertaining to the amendments of 1972, 1978, 2000 or 2005.42 As for the Practice Directions, they are adopted for the benefit of litigant States, as they seek to clarify or elaborate on specific aspects covered summarily—or entirely neglected—by the Rules.

39  For a discussion on existing limitations on the rule-making power of the Court see Thirlway, “Article 30”, MN 4–13, pp. 517–521. 40  See a historical survey in Guyomar’s Commentaire, pp. xv–xx. See also Rosenne’s Procedure, pp. 1–5. 41  See the text in ICJ Press Release 2005/9, 14 April 2005. For a comment see Muller’s Procedural Developments, LPICT, vol. 4 (2005), pp. 351–352. 42  S. Yee, “Notes on the International Court of Justice (Part I): Arguments for the Publication of the Rule-making Materials”, Chinese JIL, vol. 7 (2008), pp. 691–698.

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There are also several documents of a lesser rank and diverse scope—they have been called “sub-sub legislation”—43 also having a bearing on aspects of the Court’s working and procedures. The first is the Note for the parties concerning the preparation of pleadings, a document that is handed out to the representatives of the parties at the first meeting with the Registrar. It contains practical information concerning the format of the written pleadings and other details pertaining to the preparation of them and it refers the reader to a separate document prepared by the Registry that is also given to the agents at the earliest opportunity, entitled “Rules for the Preparation of Typed and Printed Texts.” Secondly, there is the Resolution Concerning the International Judicial Practice of the Court, adopted by the Court pursuant to Article 19 of the Rules.44 As it happened in the case of the Rules, the current Court decided in 1946 to provisionally adopt the internal judicial practice of the Permanent Court, which had been formulated in a resolution of 20 February 1931, as amended on 17 March 1936. On 12 April 1976 the Court adopted its own resolution.45 It is important to take into account that the provisions of this resolution are not addressed to the States but rather to the Court itself.46 Thirdly, in accordance with Article 28, paragraph 3, of the Rules the Court approves the Instructions for the Registry, after they are drawn up by the Registrar.47  The Instructions currently in force were drawn up in October 1946 and amended in March 1947 and September 1949.48 c)

The Statute

In the Free Zones case judge Kellog observed that what the Court had in its Statute was “[a] fundamental law defining the limits of the jurisdiction it may 43  Thirlway, “Article 30”, MN 9, p. 519. 44  This provision was introduced in 1978. Prior to that date the Rules made no mention of the resolution on internal judicial practice, although it was in existence since at least 1931. 45  For the text see ICJ, Acts and Documents, pp. 165–173; ICJ Yearbook (1975–1976), pp. 119–123. 46  The main features of this resolution and of the deliberation process within the Court are described in Box # 10-2. 47  Under the previous version of the Rules the Instructions for the Registry were to be drawn by the Registrar and approved by the President of the Court (1946/1972 Rules, Article 23, para. 3). No reasons are known for the change, introduced in the 1978 reform (S. Rosenne, “The President of the International Court of Justice”, in V. Lowe & M. Fitzmaurice, Fifty Years of the International Court of Justice, Essays in honour of Sir Robert Jennings (1996), p. 410). 48  ICJ Yearbook (1946–1947), pp. 72–87; ICJ Yearbook (1949–1950), p. 24. The text can be downloaded from the Court’s web page at: http://www.icj-cij.org.

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exercise”.49 Along the same lines, the Court remarked that the object and purpose of the Statute is “[t]o enable the Court to fulfill the functions provided for therein, and, in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute.”50 It will be recalled that under Article 92 of the Charter of the United Nations, the Statute of the Court is annexed to the Charter and forms an integral part of it and therefore they are to be interpreted together “as a single instrument forming an integral whole.”51 As a result of this, the rules concerning procedure embodied in the Statute are peremptory because they are treaty clauses that are binding upon all its States parties. Furthermore, the provisions of the Statute are “constitutional” in nature, benefiting from the rule contained in Article 103 of the Charter, the effect of which was described above.

Box # 3-4 Travaux préparatories of the Statute The travaux préparatoires of the Statute include (one) The materials concerning the drafting of the original PCIJ Statute in 1920 and its revision in 1929; and (two) The documents concerning the adoption of the current Statute at the San Francisco Conference. The most important primary sources belonging to these categories are: For the Statute of the PCIJ:

•

Advisory Committee of Jurists, Documents presented to the Committee relat-

ing to existing plans for the establishment of a Permanent Court of International Justice (1920) Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee, June 16th–July 24th, 1920 Documents concerning the action taken by the council of the League of Nations under Article 14 of the Covenant and the adoption by the Assembly of the Statute of the Permanent Court, 1921 Conference of States Signatories to the Protocol of signature of the Statute of the Permanent Court of International Justice, Minutes, 1926

• • •

49  Free Zones, Order of 6 Dec. 1930, PCIJ A 24, Observations by M. Kellog, p. 33. 50  LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, p. 502, para. 102. 51  Elettronica Sicula, Judgment, Dissenting Opinion of Judge Schwebel, ICJ Rep. 1989, p. 97.

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157

• Justice, Minutes, 1929 • Conference regarding the Revision of the Statute of the Permanent Court of International Justice, Minutes, 1929 • J. Brown Scott, The Project of a Permanent Court of International Justice and Committee of Jurists on the Statute of the Permanent Court of International

Resolutions of the Advisory Committee of Jurists (1920) [Reproduced as Pamphlet No. 35 in the Pamphlet Series of the Carnegie Endowment of International Law-Division of International Law, vol. 7 (2000)]52

For the Statute of the ICJ:

•

United Nations, Report of the Informal Inter-Allied Committee on the Future of

the Permanent Court of International Justice [Reproduced in AJIL, vol. 39 (1945), Supplement] Report on Draft of Statute of An International Court of Justice Referred to in Chapter VII of the Dumbarton Oak Proposals (Professor Jules Basdevant, Rapporteur), submitted by the United Nations Committee of Jurists to the United Nations Conference on International Organization at San Francisco (1945) [UNCIO, vol. 14, Doc. Jurist 86 G/73, April 25, 1945, pp. 821–853] US Government Printing Office, The International Court of Justice— Selected Documents Relating to the Drafting of the Statute (1946)

• •

The pertinent records of the United Nations Conference on International Organization can be found in UNCIO Documents, vols. 13 (Judicial Organization) and 14 (Washington Committee of Jurists).53 52  For analysis on the drafting and interpretation of the Statute of the PCIJ the following scholarly works can be consulted: B.S. von Stauffenberg, Statut et Règlement de la Cour permanente de Justice internationale-Elements d’interpretation (1934); R. Cassin, « La revision du Statut de la CPIJ », RGDIP, vol. 36 (1929), pp. 377 ff.; A. Fachiri, “The International Court: American Participation; Statute Revision”, BYIL vol. 11, (1930), pp. 85–99; Hudson’s PCIJ, pp. 142–215; O. Spiermann, “ ‘Who Attempts Too Much Does Nothing Well’: The 1920 Advisory Committee of Jurists and the Statute of the Permanent Court of International Justice”, BYIL, vol. 73 (2002), pp. 187–260. 53  A comprehensive analysis of the Statute of the new Court and the changes introduced in 1945 can be found in M.O. Hudson, “The Twenty-Fourth Year of the World Court”, AJIL, vol. 40 (1946), pp. 14–45. See also J. Hostie, “The Statute of the Permanent Court of International Justice”, AJIL, vol. 38 (1944), pp. 407–433; Sir H. Lauterpacht, “The Revision of the Statute of the International Court of Justice: with an Introduction by Sir Elihu Lauterpacht”, LPICT, vol. 1 (2002), pp. 55–128; G. Marston, “The London Committee and the Statute of the

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But the Statute contains only very sketchy rules on procedure, as it confines itself to lay down a few fundamental points, in response to the desire of its drafters “to leave to the Court itself the opportunity to develop its procedural law.”54 One main source of the procedural law of the ICJ is then the Court’s own case law on the interpretation of the provisions of the Statute and the Rules, which is very abundant, covering as it does the entire period of the PCIJ.

Box # 3-5 The interpretation of the Statute and the question of language According to Article 111 of the UN Charter, the Chinese, French, Russian, English, and Spanish texts of the Charter and the Statute are equally authentic. However, it must be remembered that under Article 39, para. 1 of the Statute the Court’s official languages shall be French and English. This leads unavoidably to the situation that whenever the interpretation of a provision in the Statute is discussed before the Court, the English and French versions are confronted and, not surprisingly, it is not uncommon to find divergences of meaning between these two. The question has featured prominently in several recent cases.

i) LaGrand In 2001, in its decision on the merits in this case, the Court had to decide the debated question of the binging force of its orders on the indication of provisional measures, involving the construction of Article 41 of the Statute. The Court registered the profound difference of meanings between the French and the English versions of this provision and applied Article 33, para. 4 of the Vienna Convention on the Law of Treaties, dealing with the interpretation of treaties drafted in different languages—which it explicitly recognized as declaratory of customary international law. The Court thus solved the question before it by resorting to the criteria of the object and purpose of the Statute. Interestingly, the Court mentioned in passing the fact that “in 1920 the French text was the original version.”

International Court of Justice”, V. Lowe & M. Fitzmaurice, (Eds.), Fifty Years of the International Court of Justice—Essays in Honour of Sir Robert Jennings (1996), pp. 40–60. An annotated edition of the Statute, containing references to the Articles thereof to be found in the decisions of both Courts can be found in Rosenne’s Procedure, Appendix, pp. 245–280. 54  M.O. Hudson, International Tribunals, Past and Future (1944), p. 86.

Governing Instruments

The French text of Article 41 reads as follows: “1. La Cour a le pouvoir d’indiquer, si elle estime que les circonstances l’exigent, quelles mesures conservatoires du droit de chacun doivent être prises à titre provisoire. 2. En attendant l’arrêt définitif, l’indication de ces mesures est immédiatement notifiée aux parties et au Conseil de sécurité.” (Emphasis added.) In this text, the terms “indiquer” and “l’indication” may be deemed to be neutral as to the mandatory character of the measure concerned; by contrast the words “doivent être prises” have an imperative character. For its part, the English version of Article 41 reads as follows: “1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. 2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.” (Emphasis added.) According to the United States, the use in the English version of “indicate” instead of “order”, of “ought” instead of “must” or “shall”, and of “suggested” instead of “ordered”, is to be understood as implying that decisions under Article 41 lack mandatory effect. It might however be argued, having regard to the fact that in 1920 the French text was the original version, that such terms as “indicate” and “ought” have a meaning equivalent to “order” and “must” or “shall”. Finding itself faced with two texts which are not in total harmony, the Court will first of all note that according to Article 92 of the Charter, the Statute “forms an integral part of the present Charter”. Under Article 111 of the Charter, the French and English texts of the latter are “equally authentic”. The same is equally true of the Statute. In cases of divergence between the equally authentic versions of the Statute, neither it nor the Charter indicates how to proceed. In the absence of agreement between the parties in this respect, it is appropriate to refer to paragraph 4 of Article 33 of the Vienna Convention on the Law of Treaties, which in the view of the Court again reflects customary international law. This provision reads

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“when a comparison of the authentic texts discloses a difference of meaning which the application of Articles 31 and 32 does not remove the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted”. The Court will therefore now consider the object and purpose of the Statute together with the context of Article 41. (LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, pp. 501–502, paras. 100–101)

ii) Indonesia/Malaysia, Intervention by the Philippines Later in the same year, the Court made a finding concerning the interpretation of a sentence in Article 62 of the Statute, governing third-party intervention. After registering a discrepancy between the two versions, the French version having a broader meaning, the Court attributed considerable importance to the fact that the provision in question had been originally drafted in French: The Court must first consider whether the terms of Article 62 of the Statute preclude, in any event, an “interest of a legal nature” of the State seeking to intervene in anything other than the operative decision of the Court in the existing case in which the intervention is sought. The English text of Article 62 refers in paragraph 1 to “an interest of a legal nature which may be affected by the decision in the case”. The French text for its part refers to “un interet d’ordre juridique . . . en cause” for the State seeking to intervene. The word “decision” in the English version of this provision could be read in a narrower or a broader sense. However, the French version clearly has a broader meaning. Given that a broader reading is the one which would be consistent with both language versions and bearing in mind that this Article of the Statute of the Court was originally drafted in French, the Court concludes that this is the interpretation to be given to this provision. Accordingly, the interest of a legal nature to be shown by a State seeking to intervene under Article 62 is not limited to the dispositif alone of a judgment. It may also relate to the reasons which constitute the necessary steps to the dispositif. (Indonesia/Malaysia, Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep. 2001, p. 596, para. 47)

Governing Instruments

iii) Request for Interpretation-Avena The most recent instance of discrepancies between the English and the French versions of the Statute occurred with regard to Article 60, governing the interpretation of judgments. The Court registered that in English this provision makes mention of the existence of a “dispute” concerning the meaning and scope of a judgment, while in French the term used is not “différend”—which is used in the same sense in other well-known provisions of the Statute, such as Article 36, para. 2 or Article 38—but “contestation.” The Court concluded that it was necessary to give to Article 60 the meaning that best reconciled the French and English texts of Article 60 of its Statute, “bearing in mind its object:” (. . .) the French and English versions of Article 60 of the Statute are not in total harmony; (. . .) the French text uses the term “contestation” while the English text refers to a “dispute”; (. . .) the term “contestation” in the French text has a wider meaning than the term used in the English text; (. . .) Article 60 of the Statute of the International Court of Justice is identical to Article 60 of the Statute of the Permanent Court of International Justice; (. . .) the drafters of the Statute of the Permanent Court of International Justice chose to use in the French text of Article 60 a term (“contestation”) which is different from the term (“différend”) used notably in Article 36, paragraph 2, and in Article 38 of the Statute; (. . .) although in their ordinary meaning, both terms in a general sense denote opposing views, the term “contestation” is wider in scope than the term “différend” and does not require the same degree of opposition; (. . .) compared to the term “différend”, the concept underlying the term “contestation” is more flexible in its application to a particular situation; and (. . .) a dispute (“contestation” in the French text) under Article 60 of the Statute, understood as a difference of opinion between the parties as to the meaning and scope of a judgment rendered by the Court, therefore does not need to satisfy the same criteria as would a dispute (“différend” in the French text) as referred to in Article 36, paragraph 2, of the Statute; (. . .) in the present circumstances, a meaning shall be given that best reconciles the French and English texts of Article 60 of its Statute, bearing in mind its object; (. . .) this is so notwithstanding that the English texts of Article 36, paragraph 2, and Articles 38 and 60 of the Statute all employ the same word, “dispute”; and (. . .) the term “dispute” in English also may have a more flexible meaning than that generally accorded to it in Article 36, paragraph 2, of the Statute; (Request for Interpretation-Avena, Provisional Measures, Order of 16 July 2008, ICJ Rep. 2008, p. 325, para. 53)

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The Rules of Court

In stark contrast with the Statute, the provisions of the Rules of Court are not only more elaborate but also inherently flexible, a feature that is underlined by Article 101 thereof, according to which “[t]he parties to a case may jointly propose particular modifications or additions to the rules” and the Court or chamber dealing with the case may apply them if certain circumstances obtain. A provision equivalent to Article 101 exists in the Rules since 1922 and contains what has been aptly called “a rudiment of arbitral procedure.”55 It has been observed that one interesting feature of Article 101 is that by its own wording it is applicable in litigation before chambers, with the curious result that a chamber of the Court, itself lacking the power to adopt general rules of procedure (for under Article 30 of the Statute that power is vested in the full Court) would be nonetheless empowered to apply a modification of existing rules.56 When the revision of the original Rules of the Permanent Court was being discussed, the following understanding of the scope and purpose of Article 32—the direct ancestor of Article 101—was proposed: M. Anzilotti recalled that the Rules had been intended to reconcile the idea expressed in the Statute—to the effect that the Parties had a certain liberty in regard to procedure—and the Court’s desire to have the last word in regard to the adoption of rules proposed by the Parties. Article 32 afforded the Court the possibility of exercising control over proposals of the Parties whilst indicating a desire to take such proposals into account. So many special circumstances might arise in international cases that it was difficult to apply to the Court—which was, moreover, bound by its Statute—the rigid rules of municipal courts.57

55  The expression was used by judge Schuking during the 1936 discussions on the amendments of the Rules (PCIJ D 2 Add. 3, p. 427). It has always been clear that the final decision to apply any modifications proposed by the parties rests with the Court (PCJI D 2 Add., pp. 67–68). See also Guyomar’s Commentaire, pp. 635–639. 56  Thirlway, “Article 30”, MN 18, p. 522. 57  PCIJ D 2 Add., p. 68. In the Free Zones case, the Permanent Court pointed out that “[i]n contradistinction to that which is permitted by the Rules (Article 32), the Court cannot, on the proposal of the Parties, depart from the terms of the Statute” (Order of 19 Aug. 1929, PCIJ A 22, p. 12).

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163

It will be noted that the application of Article 101 of the Rules is excluded only with regard to Articles 93 to 97, which are found in Title III of the Rules and concern certain distinguishing features of the judgments of the Court. This means that the parties to a case are free to propose to the Court the adoption of special rules with regard to every other aspect of litigation before it. It is true that this provision has not been applied often by the present Court, but its mere presence in the text of the Rules stresses that the provisions embodied therein are not as categorical and definite as the provisions of the Statute. A good example is the Criminal Proceedings case, in which, following agreement between the parties, the Court consented to a third round of pleadings, expressly mentioning Article 101 in the qualités section of the order.58 While it is not clear whether Article 101 was formally invoked by the parties in correspondence with the Registry, the latter’s press release issued on the occasion stresses that the decision to authorize the filing of these additional pleadings (in clear departure of the provisions of Article 45 of the Rules) was taken “[r]eferring in particular to Article 101 of the Rules of Court” and “[t]aking account of the agreement of the Parties and of the exceptional circumstances of the case.”59 The prime addressees of the Rules are the litigant States, for, as Sir Cecil Hurst put it in a report prepared at the request of the Permanent Court, “[t]he chief object with which rules of procedure are made is to inform those who are responsible for the conduct of a case before the Court what steps have to be taken and when and how, for the purposes of submitting that case to the decision of the Court.”60 In a brochure published by the Court and addressed to the public at large, the process leading to the adoption of the Court’s Rules is aptly described: Since the very existence of an international arbitral tribunal results from the will of the parties, it is not surprising that those parties should have a large say in the drawing up of its rules of procedure. The PCIJ, on the other hand, whose composition and jurisdiction were decided before any disputes were submitted to it, felt proper to present parties with a pre-determined body of rules governing its and their conduct during proceedings. Its founders and 58  Criminal Proceedings, Order of 16 Nov. 2009, ICJ Rep. 2009, p. 304. For a comment see Quintana’s Procedural Developments, LPICT, vol. 9 (2010), pp. 348–349. 59  ICJ Press Release No. 2009/33, 23 Nov. 2009. For a rare example of the application of Article 32 by the Permanent Court see PCIJ E 5, p. 255. 60  PCIJ D 2, Add. 3, p. 758. See also A. Riddell & B. Plant, Evidence before the International Court of Justice (2009), p. 14.

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its first Members had available to them for this purpose sundry precedents in the practice of arbitral tribunals and of the Permanent Court of Arbitration, but they also to a large extent had to break new ground. They had to devise a procedure capable of satisfying the sense of justice of the greatest possible number of potential litigants and of placing them on a footing of strict equality. It was necessary for the Court to gain their confidence and, reciprocally, to have confidence in them. The Court accordingly sought to combine simplicity and an absence of formalism in the rules laid down with flexibility in the manner of their application. The PCIJ managed to achieve a rough balance between the various requirements it had to meet, and this balance has been preserved by the ICJ, which has acted with extreme prudence in changing the rules laid down by its predecessor.61 In the same direction, the Court itself has had the occasion to isolate two criteria that govern the exercise of its rule-making power, both of which it inherited from the PCIJ. On one hand, the Court should refrain from attempting to regulate in excessive detail all the aspects of its procedure that are likely to arise in the handling of concrete cases, leaving room for development via its case law: [t]he Court is convinced of the wisdom of the conclusion reached by its predecessor in 1922, that it should not attempt to resolve in the Rules of Court the various questions which have been raised, but leave them to be decided as and when they occur in practice and in the light of the circumstances of each particular case.

(Malta/Libya Continental Shelf, Application to Intervene, Judgment of 21 March 1984, ICJ Rep. 1984, p. 28, para. 45)62

Similarly, the Registrar of the PCIJ remarked in 1933 that from the very outset the Rules had not intended to constitute a codification of the applicable provisions “[b]ut simply to complete the Statute by giving indications on points where the latter is silent.”63

61  The International Court of Justice, 5th ed. (2004), p. 51. 62  Reiterating a finding in Tunisia/Libya Continental Shelf, Application to Intervene ( Judgment of 14 April 1981, ICJ Rep. 1981, p. 14, para. 23). 63  PCIJ D 2, Add. 3, p. 804. See also PCIJ, Procès-verbaux, p. 647.

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165

On the other hand, the Court’s approach to questions of procedure is essentially a flexible one that does not fail to take into account the international character of its jurisdiction: In exercising its rule-making power under Article 30 of the Statute, and generally in approaching the complex issues which may be raised by the determination of appropriate procedures for the settlement of disputes, the Court has kept in view an approach defined by the Permanent Court of International Justice. That Court found that it was at liberty to adopt “the principle which it considers best calculated to ensure the administration of justice, most suited to procedure before an international tribunal and most in conformity with the fundamental principles of international law” (Mavrommatis, PCIJ A 2, p. 16). (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 29, para. 38)

The lack of relevance of questions of form that characterizes much of the Court’s work may be related to the fact that international adjudication has in many respects very little in common with the administration of justice in the domestic plane.64 On the other hand, the ICJ’s procedural law owes a lot to a system of law that forms one important block of the edifice of international law, namely, the law regarding international arbitration and arbitral procedure. The Court has acknowledged that adjudication by permanent international tribunals evolved from the practice of inter-state arbitration and has often applied general principles of international procedural law as adopted and developed by arbitrators and arbitral tribunals.65 This is one of the reasons why a prominent feature of the procedural rules of the Court was always that they were designed for the Court to have little—if any—interference in the manner that the parties in litigation wish to present their cases. The clientèle of the Court is, after all, composed of sovereign States that have come voluntarily before it and the Court itself is the adjudication organ which those Stares not only have chosen but established. These considerations have inspired the Court when drafting its rules of procedure, within the limits

64  Hudson’s PCIJ, p. 548. 65  For examples see Factory at Chorzów, Merits, Judgment No. 13, 13 Sept. 1928, PCIJ A 17, pp. 31, 47; Nottebohm, Preliminary Objection, Judgment of 18 Nov. 1953, ICJ Rep. 1953, p. 119.

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set by the general and virtually static framework offered by the provisions of the Statute.66 However, the last major reforms to the Rules of the current Court took place after the General Assembly of the United Nations had conducted a thorough examination of the work of the Court in a series of discussions in the Sixth Committee. This examination left a clear impression that a sizeable number of member States supported the idea that the Court should take a step forward and avail itself of a larger degree of control upon the proceedings, both written and oral, with the aim to reduce their extension, lower their costs and, in general, make judicial settlement as a means of peaceful settlement of disputes more attractive to States.67 Thus, when the Court undertook the study of substantive amendments to the Rules, both the partial amendments of 1972 and the systematic reform of 1978, it had a significant measure of political backing in order to overcome its traditional attitude of caution and its proverbial desire to influence as little as possible the will of the parties with regard to the presentation of their cases. As a direct result of this, the new Rules of Court contain several provisions that are definitively novel in litigation before the ICJ, and are designed to increase the degree of control that the Court and its President are allowed to exercise over the case through its successive stages, all with the declared purpose of speeding, shortening and simplifying proceedings, thus reducing the costs of international litigation.68

66  For critiques of this attitude and forceful defenses of the need to reverse it see R. Higgins, “Respecting Sovereign States and Running a Tight Courtroom”, ICLQ, vol. 50 (2001), p. 124; Sir R. Jennings, “The Work of the International Bar”, in in L. Ch. Vohrah et al. (Eds.), Man’s Inhumanity to Man, Essays on International Law in Honour of Antonio Cassese (2003), p. 454; Riddell & Plant, “Evidence . . .”, pp. 23–26. 67  Discussions in the Sixth Committee of the General Assembly on the topic “Review of the Role of the International Court of Justice” took place during ordinary sessions 25th (1970, agenda item 96); 26th (1971, agenda item 90); 27th (1972, agenda item 90); 28th (1973, agenda item 97); and 29th (1974, agenda item 93). The most relevant resolutions adopted by the General Assembly following these discussions are: AG Res. 2723 (XXV) of 15 December 1970, AG Res. 2818 (XXVI) of 15 December 1971 and AG Res. 3232 (XXIX) of 12 November 1974. See also the Report of the Secretary-General entitled “Review of the Role of the International Court of Justice” (UN Doc. A/8382, 15 September 1971). For a narrative see Guyomar’s Commentaire, pp. xvii–xx. 68  The view has also been expressed that the community of interests that is a feature of contemporary international law has had a discernible impact on procedure, resulting in a lesser degree of party autonomy and thus a limitation in the influence of the parties in the process (Benzing, “Community Interests . . .”, pp. 370, 406–408).

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Box # 3-6 Travaux Préparatoires of the Rules of Court i)

Rules of the PCIJ69

The background materials of the successive changes to the Rules of the Perma­ nent Court can be consulted in several installments of Series D of the Documents of the PCIJ (Acts and Documents Concerning the Organization of the Court). Particularly useful are the following volumes: For the 1922 Rules:

•

Series D, No.2, Preparation of the Rules of Court (1922) For the 1926 revision:

•

Series D, Addendum to No.2, Revision of the Rules of Court (1926) For the 1931 amendments:

•

Series D, Second Addendum to No.2, Modification of the Rules, 1931 (1931); For the 1936 Rules:

•

Series D, Third Addendum to No.2, Elaboration of the Rules of Court of March 11th, 1936 (1936);70

69  For scholarly commentary on the successive versions of the PCIJ Rules see Hammarskjold, “Le Règlement de la Cour Permanente de Justice Internationale”, Revue de Droit international et de législation compareé, vol. 3 (1922), pp. 125–148; Hammarskjold, “Le Règlement Revisé de la Cour Permanente de Justice Internationale”, Revue de droit international et de législation comparée, vol. 8 (1927), pp. 322–359; M.O. Hudson, “The Amended Rules of the Permanent Court of International Justice”, AJIL, vol. 25 (1931), pp. 427–435; B.S. von Stauffenberg, Statut et Règlement de la Cour permanente de Justice internationale, Éléments d’interpretation (1934); M.O. Hudson, “The 1936 Rules of the Permanent Court of International Justice”, AJIL, vol. 30 (1936), pp. 463–470. A comprehensive study of the evolution of the Rules of the PCIJ can also be found in Hudson’s PCIJ, pp. 275–300. 70  A specially valuable resource for the researcher included in this publication is a Report prepared by the Registrar in June 1933, at the request of the Court, where a review of the practice followed in application of every article of the 1922/1926 Rules can be found (PCIJ D2 Add. 3, pp. 803–839).

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Series D, Fourth Addendum to No.2, Elaboration of the Rules of Court of March 11th, 1936 (1943).

As for the text of the successive versions of the Rules, it can be consulted in the following installments:

• 1926;71 • Series D, No.1, 2nd, edition— Statute and Rules of Court and Other Constitutional Series D, No. 1—Statute of the Court—Rules of Court as amended on July 31st.

Documents, Rules or Regulations (with the modification effected therein up to February 21st, 1931); Series D, No.1, 4th, edition—April 1940—Statute and Rules of Court.

•

All of these documents can be accessed and downloaded via the excellent webpage of the Court (www.icj-cij.org).

ii) Rules of the ICJ72 The text of the successive versions of the Rules of the present Court can be consulted in the following publications:

71  In this volume the full (bilingual) text of the 1922 Rules was also reproduced. This text had been published separately by the Court in 1922. 72  For scholarly commentary on the interpretation and application of the Rules of the current Court the key works are undoubtedly Sh. Rosenne, Procedure in the International Court, A Commentary on the 1978 Rules of the International Court of Justice (1983) and G. Guyomar, Commentaire du Règlement de la Cour Internationale de Justice adopté le 14 avril 1978: Interprétation et pratique (1983). For comments on specific reforms see R.-J. Dupuy, «La réforme du Règlement de la Cour internationale de Justice », AFDI, vol. 18 (1972), p. 265 ff.; E. Hambro, « Quelques observations sur la revision du Règlement de la Cour internationale de Justice », in La Communaute Internationale, Melanges offerts a Charles Rousseau (1974), p. 125 ff.; E. Hambro, “Will the revised Rules of Court lead to greater willingness on the part of prospective clients?” in L.Gross (Ed.), The Future of the International Court of Justice, vol. 1 (1976), pp. 365–376; E. Jiménez de Aréchaga, “The Amendments to the Rules of Procedure of the International Court of Justice”, AJIL, vol. 67 (1973), pp. 1–22; S. Petren, “Quelques reflexions sur la revision du Règlement de la Cour internationale de Justice”, in La Communaute Internationale, Melanges offerts a Charles Rousseau (1974), p. 187 ff.; S. Rosenne, “The 1972 Revision of the Rules of the International Court of Justice”, Israel Law Review, vol. 8 (1973), pp. 197–253; G. Guyomar, « La revision du Règlement de la Cour internationale de Justice », RGDIP, (1973), p. 751 ff.; M. Lachs, “The Revised Procedure of the International Court of

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For the 1946 Rules:

• •

ICJ Acts and Documents, No. 1, second edition, pp. 54–83 ICJ Yearbook 1950–1951, pp. 235–262 For the 1972 Rules:

•

ICJ Acts and Documents No. 3, pp. 92–149 For the 1978 Rules:

• •

ICJ Acts and Documents No. 4, pp. 92–161 ICJ Acts and Documents No. 5, pp. 91–161 Unfortunately the current Court has not made public the full records of the successive changes it has made to its own rules. Succinct background information on the changes introduced to the Rules can be found in: For the 1946 changes:

•

ICJ Yearbook (1946–1947), pp. 102–103 For the 1972 revision:

• (Background Note IV or ICJYB (1971–1972), pp. 3–11) • Table of Concordance between the Articles of the 1946 Rules of Court and those Note by the Registry indicating the Rules of Court Amended on 10 May 1972 of the 1972 Rules (ICJYB (1972–1973), pp. 3–4)

Justice”, in F. Kalshoven, et al. (Eds.), Essays on the Development of the International Legal Order in Memory of Haro F. van Panhuys (1980), pp. 21–52; S. Rosenne, “Some Reflections on the 1978 Revised Rules of the International Court of Justice”, Columbia Journal of Transnational Law, vol. 19 (1981), pp. 235–253; D.W. Prager, “The 2001 Amendments to the Rules of Procedure of the ICJ”, LPICT, vol. 1 (2002), pp. 155–187; Sh. Rosenne, “The International Court of Justice: Revision of Articles 79 and 80 of the Rules of Court”, LJIL, vol. 14 (2001), pp. 77–87; S. Torres Bernárdez, “La modification des articles du règlement de la Cour international de Justice relatives aux exceptions préliminaries et aux demandes reconventionalles”, AFDI, vol. 49 (2003), pp. 207–247; Muller’s Procedural Developments, LPICT, vol. 4 (2005), pp. 352–354; Muller’s Procedural Developments, LPCIT, vol. 4 (2005), pp. 507–509.

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For the 1978 reform:

• (1978) • ICJ Yearbook (1977–1978), pp. 111–110

ICJ Background Note V, Note by the Registry on the Revised Rules of Court

For the 2000 Amendment:

• 2000 (Background Note VII) • ICJ Yearbook (2000–2001), pp. 3–4

Note by the Registry Indicating the Rules of Court (1978) Amended on 5 December

For the 2005 Amendment:



e)

•

ICJ Yearbook (2004–2005), pp. 3–4

The Practice Directions73

The adoption of the Practice Directions, subordinate to the Rules of Court, is one striking innovation in the Court’s practice. It has been brought about with the declared intention of requesting and obtaining the cooperation of States parties in cases in order to enable the Court to efficiently process its increasing case-load. The previous practice—following that of the Permanent Court— had been to record general interpretations of the Statute and the Rules given in the course of specific cases in a section of the Court’s Yearbook,74 but in the late 1990s the Court decided to systematize such indications and promulgated

73  S. Rosenne, “International Court of Justice: Practice Directions on Judges ad hoc; Agents, Counsel and Advocates; and Submission of New Documents”, LPICT, vol. 1 (2002), pp. 223– 245; Sir A. Watts, “New Practice Directions of the International Court of Justice”, ibid., pp. 247–256 and “The ICJ’s Practice Directions of 30 July 2004” ibid., vol. 3 (2004), pp. 385–­ 394; S. Rosenne, “International Court of Justice—New Practice Directions”, ibid., vol. 8 (2009), pp. 171–180; Riddell & Plant, “Evidence . . .”, pp. 25, 27; A. Koroma, “International Court of Justice, Rules and Practice Directions”, in Max Planck EPIL, MN 32–35. 74  A good example is a practice direction adopted in 1953 with regard to the handling of proceedings on preliminary objections (ICJ Yearbook (1952–1953), p. 89).

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a set of “Practice Directions”, which by their very nature have a permanent character.75 The first step in this direction was taken in April 1998 with the adoption of a “Note containing recommendations to the parties to new cases,” which was to be submitted to the States at the outset of proceedings and was also published by the Court’s Information Department.76 This Note was modified in December 2000, in order to expedite the proceedings on preliminary objections.77 In October 2001 the Court modified it again and reissued it under the title “Note containing important information for parties to new cases.” This new document included, for the first time, a set of Practice Directions (numbered I to VI) that “involve no alteration to the Rules of Court, but are additional thereto” and which the Court “wishe[d] the parties to follow in proceedings before the Court.”78 In April 2002, the Court took additional steps on procedural matters and adopted three further Practice Directions (VII–IX);79 in July 2004 it amended Practice Direction V and added three more (X–XII);80 in December 2006 it revised Practice Directions IX and XI and adopted two new ones (IXbis and IXter);81 in January 2009 it revised Practice Directions III and VI and adopted a new one (XIII)82 and, finally, in April 2013 it adopted a new Practice Direction (IXquater).83 75  The original proponent of the idea of adopting permanent “practice guidelines” may have been the late K. Highet in a presentation given at the 1996 ICJ/UNITAR Colloquium on the Court (K. Highet, “Problems in the Preparation and Presentation of a Case from the Point of View of Counsel and of the Court”, in UNITAR Colloquium I, pp. 129–130). It may be noted that other international tribunals have also taken the step of adopting Practice Directions in recent times (Ph. Couvreur, “L’Organisation et le moyens des jurisdictions internationales face au contentieux international”, in Societe Francaise pour le Droit International, Colloque de Lille, La Juridictionnalisation du droit international (2003), p. 506). 76  ICJ Press Release 98/14 of 6 April 1998 and ICJ Yearbook (1997–1998), pp. 284–286. This Note was modified on 12 January 2001, simultaneously with the adoption of amendments to Articles 79 and 80 of the Rules (See ICJ Press Release 2001/1 of 12 January 2001). 77  ICJ Yearbook (2000–2001), p. 196. 78  ICJ Press Release 2001/32 of 31 October 2001. 79  ICJ Press Release 2002/12 of 4 April 2002. This document includes a set of “measures” numbered from 1 to 5 which apparently co-exist with the Practice Directions. See also ICJ Yearbook (2001–2002), pp. 3–5. 80  ICJ Press Release 2004/30 of 30 July 2004; ICJ Yearbook (2003–2004), pp. 3–4; ICJ Yearbook (2004–2005), pp. 5–8. 81  ICJ Press Release 2006/43 of 13 December 2006; ICJ Yearbook (2006–2007), pp. 4–9. 82  ICJ Press Release 2009/8 of 30 January 2009; ICJ Yearbook (2008–2009), pp. 5–10. 83  ICJ Press Release 2013/6 of 11 April 2013.

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Box # 3-7 Aspects of procedure governed by the Practice Directions84 According to the Court, the Practice Directions are “the result of the Court’s ongoing review of its working methods.” The Practice Directions in force at the time of writing concern the following aspects of the procedure before the Court (the more directly relevant provisions in the Statute and the Rules are also mentioned): Practice Direction I Subject: Cases submitted by special agreement / Number and order of pleadings Concordant provisions: Statute, Article 40, para. 1; Rules, Arts. 39 and 46 Practice Direction II Subject: Contents of written pleadings / Summary Concordant provisions: Statute, Art. 43; Rules, Arts. 45 and 49 Practice Direction III Subject: Annexes to written pleadings Concordant provisions: Statute, Art. 43; Rules, Arts. 50 and 51 Practice Direction IV Subject: Translations of pleadings and annexes Concordant provisions: Statute, Art. 39; Rules, Art. 51 Practice Direction V Subject: Preliminary objections / Time-limit for the presentation of written statement Concordant provisions: Rules, Art. 79 Practice Direction VI Subject: Brevity in oral statements / Contents of oral proceedings on preliminary objections Concordant provisions: Statute, Art. 43; Rules, Arts. 58, 60 and 79

84  The comprehensive text of the Practice Directions in force can be downloaded from the Court’s web page at www.icj-cij.org/documents/.

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Practice Direction VII Subject: Designation of judge ad hoc and agent, counsel or advocate / Limitations Concordant provisions: Statute, Arts. 31 and 42; Rules, Arts. 35, 37, 40 Practice Direction VIII Subject: Designation of agent, counsel or advocate / Further limitations Concordant provisions: Statute, Art. 42; Rules, Art. 40 Practice Direction IX Subject: New documents Concordant provisions: Statute, Arts. 43 and 52; Rules, Art. 56 Practice Direction IXbis Subject: New documents / “part of a publication readily available” Concordant provisions: Rules, Art. 56, para. 4 Practice Direction IXter Subject: Oral proceedings / Judges’ Folders Concordant provisions: Statute, Art. 43; Rules, Art. 56 Practice Direction IXquater Subject: Audiovisual and photographic materials Concordant provisions: Statute, Arts. 48 and 52; Rules, Arts. 57 and 58 Practice Direction X Subject: Meetings of the President with the agents Concordant provisions: Rules, Art. 31 Practice Direction XI Subject: Contents of oral pleadings on provisional measures Concordant provisions: Statute, Art. 41; Rules, Art. 74 Practice Direction XII Subject: Statements and documents submitted by non-governmental organ­ izations in advisory proceedings Concordant provisions: Statute, Art. 66; Rules, Art. 105

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Practice Direction XIII Subject: Methods for ascertaining the views of the parties with regard to procedure Concordant provisions: Rules, Art. 31

The Practice Directions have been defined as “indications to parties how they should act as regards litigation and procedures they should follow”85 It is submitted that their main effect is that of either consolidating existing practices or notifying States parties of the Court’s preferences with regard to the application or interpretation of specific provisions of the Rules. As a matter of course, States parties simply take for granted that the Practice Directions are to be followed and take great pains to conform their procedural actions to what is provided in them.86 f)

Procedural Decisions

Apart from the general, permanent rules governing procedure, the Court issues decisions on procedural matters—mostly in the form of orders—in the context of virtually every single case that is called upon to address.87 In some instances, these may have applicability beyond the case at issue. The role that the Court’s case law plays with regard to the development of its own procedure was accurately highlighted by the Registrar of the Court in a report prepared in 1933, on the occasion of the revision to the Rules: The Rules do not claim to constitute a more or less complete code of procedure, but merely to provide such indications as are indispensable for litigant 85   R. Higgins, “Some Misconceptions about the Judicial Settlement of International Disputes”, Hague YIL, vol. 20 (2007), pp. 15–16. 86  Interesting—and diverse—views have been expressed on this aspect. See Higgins, “Respecting . . .”, p. 124; S. Rosenne, “International Court of Justice: Practice Directions on Judges ad hoc; Agents, Counsel and Advocates; and Submission of New Documents”, LPICT, vol. 1 (2002), pp. 223–224; Sir A. Watts, “New Practice Directions of the International Court of Justice”, ibid., pp. 248, 255; A. Pellet, “Remarks on Proceedings before the International Court of Justice”, LPICT, vol. 5 (2006), p. 178; Thirlway, “Article 30”, MN 13, p. 485. 87  W. Rothholz, « La nature juridique des ordonnances de la C.P.J.I. », RGDIP, vol. 43 (1936), pp. 643–687.

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parties: the Court’s intention has been to fill in gaps by its jurisprudence and not by legislation.88 The practice of the Court shows that the law that it applies to questions of procedure is heavily influenced by the notion of precedents. As a former member of the Court puts it: “On procedural questions, the Court would consult its previous decisions, published or unpublished”.89 Article 48 of the Statute grants to the Court an uncontested procedural authority, by empowering it to “make orders for the conduct of the case” (“rend des ordonnances pour la direction du process”); to “decide the form and time in which each party must conclude its arguments;” (“rend des ordonnances pour . . . la détermination des formes et délais dans lesquels chaque partie doit finalement conclure”) and to “make all arrangements connected with the taking of evidence” (“prend toutes les mesures que comporte l’administration des preuves”). Consistent with the general principle that a tribunal is the master of its own procedure, the Court is thus empowered to organize the conduction of litigation before it up to its last details. As a general rule, this is done by means of formal orders—although on occasion the Court prefers to adopt certain procedural decisions in a more informal or simplified manner.90 In several cases, the Statute or the Rules also empower the President or the presiding judge to take certain procedural decisions on behalf of the Court, when the latter is not sitting.

Box # 3-8 Decisions delegated to the President of the Court The only occasion in which the Statute empowers the President of the Court to take certain decisions “should it not be sitting,” is in Article 66, paragraphs 2 and 4, concerning certain procedural decisions to be taken with regard to those States and international organizations called to take part in advisory proceedings. 88  PCIJ, D 2, Add. 3, p. 804. 89  Shahabuddeen, “Precedent . . .”, p. 18. See also Riddell & Plant, “Evidence . . .”, pp. 28–31. 90  Torres Bernárdez, “Article 48”, in Oxford Commentary, MN 6, pp. 1082–1083. The content of these decisions is normally described in a passage included in a judgments or an advisory opinion. A rare example of a formal “decision” by the Court not adopting the form of an order can be found in the judgment on the merits in the Corfu Channel case, in connection with the organization of an expert enquiry ( Judgment of 9 April 1949, ICJ Rep. 1949, p. 151).

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On the other hand, since the Court is not always sitting and only the President and the Registrar are required to reside at the seat of the Court (Statute, Article 22), the Court decided early on that it could confer on the President the right to take interlocutory decisions on urgent matters.91 In pursuance of this, the Rules of Court authorize the President to take procedural decisions when the Court is not sitting in the following cases:

• • para. 4); • Written stage / access to pleadings by third parties (Article 53, para. 1); • Oral stage / opening of the hearings (Article 54, para. 3); • Oral stage / steps to be taken for the examination of witnesses (Article 63, para. 2); • Oral stage / participation of international organizations in certain cases (Article 69, para. 3); • Provisional measures / convening of the Court (Article 74, para. 2); • Preliminary objections / time-limit for written statement by other party (Article 79, para. 5); • Intervention / time-limit for written observations by principal parties (Article 83, para. 1); • Article 62 intervention / time-limit for written observations on statement by intervening State (Article 85, para. 1); • Article 63 intervention / time-limit for written observations by third State (Article 86, para. 1); • Discontinuance by agreement / orders (Article 88, para. 3); • Unilateral discontinuance / decisions (Article 89, para. 3); • Interpretation of judgments / time-limit for written observations by other party (Article 98, para. 3); • Revision of judgments / time-limit for written observations by other party (Article 99, para. 2); • Advisory proceedings / decisions concerning procedure (Article 105, para. 2); • Advisory proceedings /access to pleadings (Article 106). Composition of the bench / appointment of judge ad hoc (Article 37, para. 1); Written stage / number and order of pleadings and time-limits (Article 44,

91  PCIJ D 2, pp. 28–30. This need was more pressing in the first epoch of the PCIJ, when it met in what were called “judicial sessions.” Since 1936 the Court is a truly permanent body.

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Some (but not all) of these decisions are taken in the form of orders. In this regard, it has always been understood that the President exercises these powers by delegation from the Court and hence the latter’s right to make orders differing from those already made by the President “would not involve a right on the part of the Parties to appeal to the Court against the orders of the President.”92

But even when the governing instruments are silent, the Court has stated that it considers itself to possess an “inherent jurisdiction” that empowers it to do a variety of things. Perhaps the best assertion of this power was made in the Nuclear Tests cases, in the following terms: [i]t should be emphasized that the Court possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all matters in dispute, to ensure the observance of the “inherent limitations on the exercise of the judicial function” of the Court, and to “maintain its judicial character” (. . .). Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic judicial functions may be safeguarded. (Nuclear Tests, Judgments of 20 Dec 1974, ICJ Rep 1974, pp. 259–260, para. 23 and p. 463, para. 23)93

92  PCIJ E 3, p. 210. On the role of the President see in general Rosenne, “The President . . .”, pp. 406–423. 93  For the concept of “inherent jurisdiction” see C. Brown, “The Inherent Powers” of International Courts and Tribunals”, BYIL, vol. 76 (2005), pp. 195–244; and, by the same author, “A Common Law . . .”, pp. 55–82. When the Court decided to join the proceedings in the Activities in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road (Nicaragua v. Costa Rica) cases judge Cançado Trindade appended a separate opinion in which he touched upon the notion of “inherent powers,” which in his view are linked to the principle of “compétence de la compétence” (Orders of 17 April 2013, Separate Opinion of Judge Cançado Trindade, paras. 4–6, 14–18).

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Another example is the Monetary Gold case, in which the Court stated in very general terms that it could not “[c]onsider itself as lacking jurisdiction to adjudicate upon the validity, withdrawal or cancellation of an application which has been submitted to it: to adjudicate upon such questions with a view to deciding upon the effect to be given to the Application falls within the purview of its judicial task.”94 It has long been recognized that, while the orders that the Court issues under Article 48 of the Statute lack the force of res judicata or the finality that is attached to its judgments under Articles 59 and 60 of the Statute—a point made by the PCIJ in the Free Zones case—they are nonetheless binding upon the States parties to a case.95 As a chamber of the Court has recalled: “[S]tates engaged in proceedings before the Court or a Chamber are under a duty to conform with all decisions as to procedure, which the Court is specifically empowered to make by Articles 30 and 48 of its Statute”.96 Besides, the Court may also adopt orders under other provisions of the Statute and is free to adopt decisions in the form of orders that “d[o] not relate to the conduct of the case” and are not based on Article 48 of the Statute.97 Additionally, there is the question that in most cases lack of compliance with the Court’s directions on questions of procedure and evidence will in all likelihood work against the interests of the party concerned. A comprehensive study concerning compliance with the decisions of the Court found that, for this reason, compliance in the field of the procedure governing all aspects of litigation before the Court has never been perceived as a problem.98

Box # 3-9 Rules v. Practice Judge Shahabuddeen is one of the members of the Court that has devoted more attention to the interplay between the Rules and the practice of the Court. The following are two specific aspects of this question on which he has expanded in individual opinions: 94  Monetary Gold, Preliminary Question, Judgment of 15 June 1954, ICJ Rep. 1954, p. 28. 95  Free Zones, Order of 19 Aug. 1929, PCIJ A 22, p. 13. 96  El Salvador/Honduras, Merits, Judgment of 11 Sep. 1992, ICJ Rep. 1992, p. 581, para. 371. On the distinction between res judicata and binding effect see Torres Bernárdez, “Article 48”, MN 13, p. 1219. See also H. Thirlway, “Judgments of International Courts and Tribunals”, in Max Planck EPIL, MN 19. 97  PCIJ E 8, p. 254. See also Hudson’s PCIJ, p. 586. 98  C. Schulte, Compliance with Decisions of the International Court of Justice (2004), pp. 13–14.

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i)

179

Should the Rules Prevail over Practice at All Times?

In the Aerial Incident (Iran v. USA) case the question arose whether the State wishing to make a preliminary objection had to wait until the opposite party filed its Memorial to do so or could do it before that date. The question was resolved by the Court in the negative, stating that, while the respondent State is certainly entitled to know the contents of the Memorial before making its preliminary objections, it can waive that right and file its objections exclusively on the basis of the application.99 This decision was based mainly on an interpretation of Article 79, para. 1 of the Rules that the Court found to be the right one. Judge Shahabuddeen disagreed and pointed out that the practice of both courts had been in the opposite direction, i.e., suggesting that the preliminary objections could (or should) not be made until the applicant had had the opportunity to file its Memorial. In this context, he wondered whether the Court was entitled to disregard this practice altogether and posed the following question: “How are the literal terms of a formal rule of procedure to be reconciled with a variant supervening practice?”100 Judge Shahabuddeen’s reply to this question would be as follows: [i]t may be contended that the practice referred to is not strictly consistent with the terms of the existing rule, in the sense that it tends to inhibit a respondent in the exercise of a seemingly absolute right available under the strict terms of the rule to file a preliminary objection before the filing of the Memorial. But, however arguable that might be, the possibility of a different interpretation of the rule could not be wholly excluded, and of course the competence to interpret the Rules lay with the Court. It is general experience that formal rules of procedure—at any rate where no conflict with an overriding constituent instrument is involved (a caveat to which I attach importance in this field)—develop through the way in which they are interpreted and applied by the court concerned as evidenced by its practice. The real question then is, should this Court at this stage overrule the interpretation of Article 79 of the Rules, which is implicit in its practice, on the ground that it is erroneous? The Court is not committed to any doctrine of binding precedent, but it does respect its own jurisprudence. 99  Aerial Incident (Iran v. USA), Order of 13 Dec. 1989, ICJ Rep. 1989, p. 134. On this question, see Chapter 12, text to notes 69 and 70. 100  Ibid., ICJ Rep. 1989, p. 146.

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Consequently, though competent to reverse its previous holdings on the law, the Court is not expected to exercise that competence lightly and without good reason (. . .). It may be too general a way of putting the position merely to say that the Court should act cautiously. But what then should be the criteria guiding the prudence of the Court in a procedural matter of this kind? In the absence of any clear guidelines having been adopted by the Court, it seems to me that, in a case of this particular kind, it would be reasonable for the Court to apply something corresponding to the twin tests of clear error and public mischief as known to the upper levels of judicial activity in many jurisdictions. There should, I think, be clear error in the sense that the Court must be satisfied that the opposing arguments are not barely persuasive but are conclusively demonstrative of manifest error in a previous holding. And there should be public mischief, or something akin to it, in the sense that the injustice created by maintaining a previous but erroneous holding must decisively outweigh the injustice created by disturbing settled expectations based on the assumption of its continuance; mere marginal superiority of a new ruling should not suffice. (Aerial Incident (Iran v. USA), Order of 13 Dec. 1989, Separate Opinion of Judge Shahabuddeen, ICJ Rep. 1989, pp. 157–158)

ii) Power of the Court to Reverse its Previous Decisions In the El Salvador/Honduras case judge Shahabuddeen argued that the Court is always free to reverse its previous decisions, provided certain conditions are observed. His arguments on this question have to be assessed in the light of his pervading criticism on the position that the Court assumed with regard to the chambers system, as evidenced in the 1972 amendments and the subsequent decisions putting them into practice. The Court has . . . taken a position, even though not reasoned, on the question whether the existing practice is in accordance with the Statute. But does this preclude the matter from being re-opened? Before a practice is held to be inconsistent with a controlling provision of the Statute or of the Rules of Court, to which it must yield if in conflict, the meaning of the provision must first be established. What is evidenced by the cases referred to is not a simple accidentally developed practice, but a practice resting on decisions of the Court which manifest its interpretation of the applicable provisions of those instruments. To what

Governing Instruments

extent would it be proper for the Court at this stage to reverse its previous decisions as to the meaning of those provisions? (. . .) The answer may, I think, be derived from the position put forward by Sir Hersch Lauterpacht as follows: “Subject to the overriding principle of res judicata, the Court is free at any time to reconsider the substance of the law as embodied in a previous decision . . . it will not do so lightly and without good reason. But it may do so, and it has done so.” (. . .) That the Court should not act lightly and without good reason suggests to my mind that the mere fact that the Court in a later case may be disposed to see the law differently from the way in which it saw it in an earlier case may not always suffice to warrant a reversal of its previous holding on the same point. But I do not think the Court will be acting lightly and without good reason if it were to reverse a previous decision on the law on the ground that it was clearly erroneous as well as productive of grave consequences for the judicial integrity of the Court of which the Court itself is the avowed guardian. In this case, expectations based on the continuance of the system sanctioned by the previous decisions of the Court cannot outweigh the gravity of the consequences of those decisions for the essential nature and structure of the Court. I believe that the applicable criteria are satisfied in this case to the point of unmistakably requiring the Court to reverse its previous decisions and to redirect the law along its proper course. Reasonable development of the law, even if sometimes bold, is natural and legitimate; mere expansiveness is another matter. (El Salvador/Honduras, Application to Intervene, Order of 28 Feb. 1990 Dissenting Opinion of Judge Shahabuddeen, ICJ Rep. 1990, pp. 52–53)

Further Reading

General Works and Treatises on the Court

J-P Cot, “Article 68”, in Oxford Commentary, pp. 1669–1684 Guyomar’s Commentaire, pp. xv–xx, 1–11, 635–639 Hudson’s PCIJ, pp. 142–215, 270–301 R. Kolb, “General Principles of Procedural Law”, in Oxford Commentary, pp. 871–908 Mani’s Adjudication, pp. 12–53

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Scerni’s La Procédure, pp. 563–679 Rosenne’ s Law and Practice, vol. 3, pp. 1063–1096 Thirlway’s Law and Procedure, Part 11, BYIL, vol. 71 (2000), pp. 159–162 Thirlway, “Article 30”, in Oxford Commentary, pp. 529–516 Torres Bernárdez, “Article 48”, in Oxford Commentary, pp. 1215–1233



Articles and Monographs

A. de Saavedra y Muguelar, “El Nuevo Reglamento de la Corte Internacional de Justicia”, REDI, vol. 33 (1981), pp. 111–125 M. Bedjaoui, “The ‘manufacture’ of Judgments at the International Court of Justice”, ICJ Yearbook (1996–1997), pp. 234–242 V. Coussirat-Coustere & P-M Eisemann, “La procedure devant les jurisdictions internationales permanentes”, in La jurisdiction internationale permanente (1987), pp. 108–165 Ch. de Visscher, Aspects récents du Droit procedural de la Cour interntionale de Justice (1966) L. Delbez, Les principles généraux du contentieux international (1962) Sir R. Jennings: “The Collegiate Responsibility and Authority of the ICJ”, in Collected Writings of Sir Robert Jennings (1998), vol. 1, pp. 509–521 Sir R. Jennings, “The Internal Judicial Practice of the International Court of Justice”, ibid., pp. 522–542 Sir R. Jennings, “The Role of the International Court of Justice”, BYIL, vol. 68 (1997), pp. 1–63 J.J. Quintana, “Cómo Se Toman las Decisiones de la Corte Internacional de Justicia”, Revista Notas de Diplomacia, No. 5 (1997) S. Talmon, “A Primer on ICJ Procedure—A Commentary on Article 43 ICJ Statute”, Bonn Research Papers on Public International Law, Paper No. 2/2012 (2012), MN 7–17 S. Yee, “Notes on the International Court of Justice (Part 3): Rule-making at the CourtIntegration, Uniformization, Keeping Existing Article Numbers and Giving Public Notice”, Chinese JIL, vol. 8 (2009), pp. 681–694

Chapter 4

Procedure: General Aspects Before entering into the discussion of how litigation is initiated and conducted it will be good to attempt a general overview of the procedural sequence followed in contentious cases before the ICJ. Two major notions need to be examined, explained and, above all, distinguished: on the one hand, the components of procedure, namely the procedural “stages” that every case (or phase of a case) goes through, and, on the other, the different phases that may take place within a given case. Then a discussion follows on the question of the composition of the Court in particular cases, a subject of evident importance from the point of view of the litigant States. The chapter closes with an enumeration of those actions that litigant States must carry out in preparation for upcoming litigation. a)

Components of Procedure: Written Stage and Oral Stage

Article 43 of the Statute prescribes that the procedure before the Court “shall consist of two parts: written and oral” (paragraph 1) and describes summarily these parts in paragraphs 2 to 5.1 Ordinary procedure can thus be said to have two components or to go through two different stages, namely: the stage of written proceedings, and the stage of oral proceedings. Sometimes they are referred to as, respectively, the “written phase” and the “oral phase” of proceedings. However, it seems better to reserve the term “phase of a case” for incidental proceedings concerning issues other than the merits, such as provisional measures, preliminary objections, counter-claims, intervention, etc.2 While the written stage consists of the filing by each party of a number of written pleadings, within time-limits fixed by the Court, the oral stage comes 1  While “procedure” is the term used in this work to refer to all the aspects of a case other than the merits, “proceedings” will be used to refer to the case itself, or what in French is accurately called “instance” or “affaire.” For the inconsistent use of these terms in the Statute and the Rules of Court see Hudson’s PCIJ, pp. 547–548. On the notion of “procedure” see also R. Kolb, “General Principles of Procedural Law”, in Oxford Commentary, MN 3–5, pp. 873–875. 2  This is the meaning implicit in several provisions of the Rules in which the term “phase of a case” is used (Article 8, para. 3; Article 17, para. 4; Article 32, para. 2; Articles 33 and 37).

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down to a series of public hearings held at the Peace Palace, seat of the Court, on dates to be determined by the Court. The rationale for this, according to the Registry of the Court, is that the drafters of the Statute wished to combine in a balanced manner the two major types of procedure that are used to varying degrees in domestic judicial proceedings.3 While some criticism has been levied on both of these aspects it has proven impossible to determine whether any of them should be dispensed with altogether. What matters is that the combination of written pleadings and oral argument produces the result that at the closing of proceedings the Court is well informed of the arguments of both parties on each aspect of the case. For the same reason, the parties themselves can be reasonably confident that their contentions have been brought to the Court’s attention with all the necessary detail. In any case the rule of combining written pleadings and oral argument is flexible and nothing prevents the parties from laying more emphasis on either of the two stages.4 In this, as in many other aspects of procedure, the Court undoubtedly would defer to the parties’ wishes. The only instance in which the Rules of Court authorize doing away with one of the components of the proceedings is in cases dealt with by a chamber and not by the full Court.5 One of these cases refers to litigation before a chamber of the type provided for in Article 26, paragraph 2 of the Statute, in which the applicable provision in the Rules of Court contains an express provision according to which it is possible to do away with the oral proceedings (Article 92, para. 3 of the Rules). It may be noted that this exceptional provision has not been invoked or applied in any of the cases in which one of these chambers has been constituted. The second case could conceivable be when the case is heard by the Chamber of Summary Procedure foreseen in Article 29 of the Statute, which “[m]ay hear and determine cases by summary procedure.” There is no practice concerning this provision yet, either.6 Apart from these cases, it is doubtful that the Court would authorize dispensing with either the written or the oral proceedings, even if the parties were in agreement. In the Anglo-Iranian Oil Co. case, for instance, the applicant

3  The International Court of Justice, 5th ed. (2004), p. 53. 4  Examples of cases in which the parties put more emphasis on the written proceedings are the Fisheries and Right of Passage cases. Examples of cases in which more emphasis was put on the oral proceedings may be Corfu Channel and South West Africa. 5  For the situation in advisory proceedings see Chapter 20, c). 6  For details on litigation before chambers see Chapter 19.

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intimated in the Memorial that, were the respondent to file a preliminary objection, it “[w]ould be satisfied to reply orally to an objection to jurisdiction.” The President of the Court, however, felt that this was not sufficient to depart from the rule requiring the filing of written observations in response to the preliminary objections (Article 62, para. 3 of the Rules then in force, currently Article 79, para. 5).7 Similarly, in the US Nationals in Morocco case both parties notified the Court of their desire that oral proceedings on the preliminary objection “should be waived.” The Court had no occasion to take action on this request, since the preliminary objection of the United States was withdrawn.8 In the Haya de la Torre case the parties apparently made a suggestion to dispense with the oral proceedings but the Court found that the rule laid down in Article 43, para. 1 of the Statute must not be departed from.9 There are opposing views as to the relative importance of the written and the oral components of proceedings within the overall context of litigation and equally sound arguments can be put forward to stress the preponderance of one over the other.10 The most attractive feature of the written stage of proceedings for litigant States is probably that there are virtually no limitations as to the degree of detail they can go into in their pleadings and arguments. As for the added value of the oral stage, it may relate to those aspects that by their very nature have no role to play during the written part, such as the production of non-documentary evidence, like witnesses or experts, or the questions put to the parties by the Court or by the judges.11

7  Anglo-Iranian Oil Co., Order of 11 Feb. 1952, ICJ Rep. 1952, p. 14. 8  ICJ Yearbook (1951–1952), p. 99. 9  ICJ Yearbook (1953–1954), p. 99. 10  For the view that the written phase plays a predominant role in litigation at the ICJ see T.D. Gill, Litigation Strategy at the International Court—A Case Study of the Nicaragua v. United States Dispute, (1989), p. 89. For the view that “the written proceedings are subordinate to the oral proceedings” see the review of this work by K. Highet in AJIL, vol. 86 (1992), p. 402. See also Rosenne’s Procedure, p. 120; Sir R. Jennings, “The Role of the International Court of Justice”, BYIL, vol. 68 (1997), p. 14 and, by the same author “The Work of the International Bar”, in L. Ch. Vohrah et al. (Eds.), Man’s Inhumanity to Man, Essays on International Law in Honour of Antonio Cassese (2003), p. 461. 11  For the view that oral proceedings play a limited role in international adjudication, as compared with other systems of law, see Sir A. Watts, “Enhancing the effectiveness of Procedures of International Dispute Settlement”, Max Planck Yearbook of United Nations Law, vol. 5 (2001), pp. 25–29.

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In any case, both stages are mandatory and are placed on an equal footing in the Statute, so that States parties must devote their best efforts to ensure two things: on the one hand, that the documents and arguments included in the pleadings present their cases in the most comprehensive manner possible, and, on the other, that the statements and legal argument made on their behalf and the evidence produced at the hearings are of the outmost quality, forensically speaking. After complexion of the oral proceedings stage, the case enters what may be called the “deliberative stage,” a period running from the date of the closure of the oral proceedings to the reading of the judgment or the termination of the case by other means. The following sketch may be useful to visualize the different steps that are followed in ordinary contentious proceedings before the International Court of Justice (assuming that the proceedings are not terminated before the Court comes to a decision on the merits of the dispute):

figure 1

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Box # 4-1 Pieces of procedure12 The following is a list of the separate acts and instruments produced by the parties that constitute the pieces of procedure, which together comprise the case-file.



•

Institution of Proceedings

The document instituting proceedings (an application or the notification of

a special agreement, as the case may be);

Written Proceeding Stage

• each pleading; • The documentary evidence submitted during the written stage (either as

The written pleadings, including the submissions contained at the end of annexes to the pleadings or as additional documents);



Oral Proceedings Stage

• of the written proceedings. • The statements made on behalf of each party during the oral hearings; • The documentary evidence submitted during the oral stage (including any evidence the production of which is called for by the Court itself); • The final submissions (handed out in writing at the closure of the hearings);

Any “new documents” that the parties may see fit to produce after the closure



Deliberative Stage

• submitted in writing within a time-limit fixed by the Court); • Other material or evidence submitted after the closure of the oral stage (as

The answers to any questions put by the Court or by the judges (ordinarily may be directed by the Court).

12  The pieces of procedure should not be confused with the documents of the written proceedings, (“pièce de la procédure écrite”). The latter is an expression having a more limited scope that in the PCIJ Rules was used to refer to the written pleadings (1936 Rules, Article 40). In Article 52 of the current Rules the term used is “pièce de procédure,” consistently rendered into English as “pleading”.

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It is a common belief that proceedings before the ICJ are long and expensive and that most of the blame for this lies on the Court. However, in many cases the delays in the handling of a case originate to the attitude that the parties themselves adopt towards the litigation. A case goes through different moments and stages and the Court is not to be held responsible for eventual delays in all of them. In particular, when the written pleadings stage extends for long periods of time, this is because the parties either request leave of the Court to file additional pleadings—in departure from the general norms embodied in the Rules—or request and obtain successive extensions in the time-limits fixed for the deposit of a given pleading. Both situations arise often and the Court normally obliges, as it is always bound to consider “the views of the parties with regard to questions of procedure.” (Rules, Article 31). An author has accurately summoned the situation in this regard as follows: “If the parties are determined to play for time through protracted pleadings, the Court in reality can do very little about it.”13 It is only after the closure of the written proceedings stage that the Court assumes full control of the pace of the case. Therefore, if there are undue delays in the determination of the date for the opening of the oral proceedings, this will be due to the manner in which the Court handles its methods and program of work. The same is true as to the time elapsing between the closing of the proceedings and the rendering of the decision.14 b)

Phases of a Case and Interlocutory Proceedings

When a case enters the Court’s General List it is assigned an official name, which it maintains throughout the subsequent procedural phases through which it passes.15 By “phase of a case” it is meant the ancillary or parallel proceedings that may take place on questions other than the merits themselves, i.e. incidental proceedings that are concerned with procedural incidents like provisional measures, 13  Mani’s Litigation, p. 101. 14   R. Higgins, “Some Misconceptions about the Judicial Settlement of International Disputes”, Hague YIL, vol. 20 (2007), pp. 16–17. 15  In the Nicaragua case the Court used the expression “stages of the procedure” (“étapes de la procédure”) to refer to this phenomenon (Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 24, para. 28). However, the expression “phase of a case” (“phase d’une affaire”), as used in several provisions of the Rules, is more accurate (see text to note 2 above). As explained, “stages” will be used in this work to refer to the written and oral components of ordinary proceedings.

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preliminary objections, counter-claims, third-party intervention and reparations. The pertinent sections of the Rules of Court contain the rudiments of what can be called a “procedural code” intended to govern each of these proceedings.16 Distinguishing between stages of proceedings and phases of a case is useful because whenever a case is brought to the Court, two possibilities are present: The first is that the Court deals straightaway with the substantive question submitted to it and, after exhausting the regular stages of written and oral proceedings and considering in full the claims of the parties and the arguments supporting them (following the sequence outlined in Figure 1 above) delivers a final judgment on the merits. In this event the litigation goes on uninterrupted, the case does not go through any phase at all and the procedural actions taken by the parties and by the Court itself with regard to the case refer to the main proceedings on the substantive claims of the parties.17 The second possibility—and the more frequently seen in actual practice— is that in the course of the case additional questions arise that are connected to the merits but do not strictly belong to them. The Court is called to make a decision concerning each of these questions, if necessary after suspending or interrupting the litigation in the mainline proceedings and opening what has been justly called “cases within cases”.18 This normally covers questions that arise prior to the final decision on the merits (incidental proceedings stricto sensu), but in at least one case (reparations) it covers also questions that may arise after the decision is rendered and as a direct consequence thereof (derivative proceedings). Two other types of derivative proceedings in existence, namely, those concerning the interpretation and revision of judgments, are not so much “phases” in a case but rather separate stand-alone proceedings that for all procedural purposes are treated as wholly independent cases. What is important, from the point of view of procedure, is that very often these phases give rise to genuine proceedings connected to the main case before the Court—and bearing the same name—albeit of an incidental character. As will be seen in due course, in some cases these incidental proceedings 16   S. Rosenne, “The President of the International Court of Justice”, in V. Lowe & M. Fitzmaurice, Fifty Years of the International Court of Justice, Essays in honour of Sir Robert Jennings (1996), pp. 416, 417. 17  Cases belonging to this category (clearly, a minority) are Fisheries; Minquiers and Ecrehos; Convention of 1902 on the Guardianship of Infants; Certain Frontier Land; Arbitral Award (Honduras v. Nicaragua); ICAO Council; Jan Mayen; Libya/Chad; Botswana/Namibia; Nicaragua v. Honduras; Malaysia/Singapore; Romania v. Ukraine; Navigational Rights, Mutual Assistance, Interim Accord and Burkina Faso/Niger. 18  ICJ Yearbook (1997–1998), pp. 275, 276.

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also go through a written and an oral stage of their own, which are to be distinguished from the written and oral components of the main proceedings on the merits. There are, of course, cases in which the merits phase is never reached, like those in which questions on jurisdiction and admissibility are raised before the proceedings on the merits formally start and the Court upholds the objections and finds that it lacks jurisdiction or that the application is inadmissible.19 Accordingly, a given case can go through different procedural phases and in each of them a special procedure, subject to specific rules, must be followed. Other than the merits, the most common of these phases are the following:

• • • • •

Provisional measures phase; Jurisdiction and admissibility phase; Counter-claims phase;20 Intervention phase (whether under Article 62 or under Article 63 of the Statute); and Reparations phase. Incidental proceedings and the procedural phases to which they give rise take place at different points of time during the lifespan of a case and, in most situations, have the effect of interrupting, delaying or even suspending altogether the main proceedings. For instance, while proceedings on provisional measures can be instituted “at any time during the course of the proceedings” (Rules, Article 73, para. 1), proceedings on preliminary objections may be instituted “as soon as possible, and not later than three months after the delivery of the Memorial” (Rules, Article 79, para. 1) and a counter-claim should be made “in the Counter-Memorial and shall appear as part of the submissions contained therein.” (Rules, Article 80, para. 2). Likewise, proceedings on intervention under Article 62 of the Statute must be instituted, unless there are exceptional circumstances, “not later than the closure of the written proceedings” (Rules, Article 81, para. 1) and proceedings on intervention under Article 63 are to be introduced “not later than the date fixed for the opening of the oral proceedings” (Rules, Article 82, para. 1). 19  For an example see Aerial Incident (Pakistan v. India), Jurisdiction, Judgment of 21 June 2000, ICJ Rep. 2000, p. 12. 20  Counter-claims as such are considered within the framework of ordinary proceedings on the merits, but there may be room for a previous debate on admissibility of a counterclaim, thus giving rise to a genuine procedural “phase” devoted to the matter. For details see Chapter 13, b).

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As for derivative proceedings concerning either the interpretation or the revision of the judgment, as a general rule they can be introduced at any time after a decision on the merits has been read.21 Most importantly, as stated above, rather than giving rise to additional phases of the principal case, they take the form of separate proceedings that are entered into the Court’s General List as fresh cases.22 An additional phase in the original case does take place when derivative proceedings with regard to the question of reparations are opened, a circumstance that obtains after (one) The Court has come to a decision containing a finding on State responsibility and a duty to make reparation; and (two) A certain period has elapsed during which the parties are unable to come to an agreement on the form and amount of the said reparations.23 A different type of cases comprises entirely new proceedings between the same parties which are instituted after a decision is made, with the view that the Court expands on certain points of the original decision. These may be properly called a “sequel” to a case. A good example is the Haya de la Torre case, instituted by Colombia against Peru after the Court’s consecutive decisions in the Asylum and Request for Interpretation-Asylum cases, both of which proved disappointing for the Colombian government, acting as an applicant in all of them. Likewise, the Maritime Delimitation (Guinea-Bissau v. Senegal) case was clearly conceived as a sequel to the Arbitral Award case, between the same parties.24 It is also important to mention that, for purposes of the composition of the bench for a case (as distinguished from the Court), there are several provisions in the Rules endorsing a settled practice according to which each phase of a case is separate and distinct from earlier or subsequent phases, and may therefore be handled by a different group of judges.25 This will be discussed in the following section.

21  The case of revision is special because article 61 of the Statute contains no only one but two different time-limits for the institution of proceedings on revision (See Chapter 17, c)). 22  Cameroon v. Nigeria, Merits, Judgment of 10 Oct. 2002, ICJ Rep. 2002, p. 313, para. 14. 23  For details see Chapter 18 (iv). 24  The ultimate “sequel” case before the Court would have been the Nuclear Tests (Request for Examination) case but it was dismissed in limine by the Court (For details see Box # 5-10). 25  Rosenne, “The President . . .”, p. 413.

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Box # 4-2 “Hearing the parties:” Interlocutory proceedings in the Rules of Court Although the expression as such does not actually appear in the Statute, a number of provisions in the Rules contain the condition that the Court is to take certain decisions “after hearing the parties.” This formula is usually understood as providing for the need to conduct some sort of interlocutory proceedings. This is the case of the following provisions of the Rules: – Article 35, para. 4 (on the appointment of a judge ad hoc); – Article 36, para. 2 (on joinder of procedings); – Article 56, para. 2 (on the late production of documents); – Article 67, para. 1 (on arranging for an enquiry or an expert opinion by leave of the Court); – Article 79, para. 9 (on preliminary objections); and, – Article 80, para. 3 (on counter-claims). However, the Court has ample latitude as to the manner in which these proceedings are to be conducted and they can go from a mere exchange of correspondence or of views—at a meeting of the President with the agents—to an exchange of written observations or a formal hearing at a public sitting of the Court. Likewise, the format of the decision that the Court is to take at the end of these interlocutory proceedings is not pre-determined beforehand. Save in a few cases in which the Statute or the Rules provide otherwise, such decision may be embodied in a letter by the Registrar to the parties, in a formal order adopted by the Court or by the President, or even in a passage in a judgment.26 The decisive factor appears to be the relative importance of the question to which these proceedings refer, as assessed by the Court on a case-by-case basis. The Rules provide little guidance on this.27 At the counter-claims phase of the Genocide Convention (Bosnia) case, judge ad hoc Lauterpacht leveled criticism on the manner, somehow irregular, in which the Court’s practice on this matter has developed:

26  S. Rosenne, “International Court of Justice: Practice Directions on Judges ad hoc; Agents, Counsel and Advocates; and Submission of New Documents”, LPICT, vol. 1 (2002), p. 229, note 15. See also Hudson’s PCIJ, p. 584; Rosenne’s Law and Practice, vol. 3, p. 1245. 27  Guyomar’s Commentaire, p. 604.

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2. The problem before the Court at this stage of the case is one of the admissibility of counter-claims filed by the Government of the Federal Republic of Yugoslavia (“Yugoslavia” hereinafter). While I agree with the Court’s Order in so far as it relates to the admissibility of the counterclaims, I have been concerned about the fact that the Court has not given the Parties the opportunity to develop their respective positions in oral argument. PROCEDURE 3. The justification for oral proceedings lies in Article 80, paragraph 3, of the Rules of Court which provides that: “In the event of doubt as to the connection between the question presented by way of counter-claim and the subject-matter of the claim of the other party the Court shall, after hearing the parties, decide whether or not the question thus presented shall be joined to the original proceedings.” (Emphasis added.) 4. The Court has taken the view that the requirement of “hearing the parties” can, in the present case, be satisfied by giving each of them the opportunity of presenting its views in writing. The position taken by the Court is supported by its practice in respect of some, but not all, other matters covered by a similar requirement, for example, the nomination of ad hoc judges. Article 35, paragraph 4, of the Rules provides that: “In the event of any objection or doubt, the matter shall be decided by the Court, if necessary after hearing the parties.” Again, in relation to the problem of appointing an ad hoc judge that arises when two or more parties may be in the same interest, Article 36, paragraph 2, provides that “the matter may be decided by the Court, if necessary after hearing the parties”. Likewise, Article 56, paragraph 2, relating to the authorization of the production of documents after the closure of the written proceedings, contains a similar formula, as does Article 67. In regard to these matters, the practice of the Court has been merely to give the parties the opportunity to present their views in writing. 5. Even so, that interpretation is not one that immediately springs to mind in respect of so substantial an issue as the admissibility of counterclaims. It is to be recalled that the Rule on counter-claims (Art. 80) appears immediately after the rule on preliminary objections (Art. 79) and that

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both are classed together in Section D of the Rules, under the heading “Incidental Proceedings”. A similar requirement of hearing the parties appears also in Article 79, paragraph 7,28 and has regularly been met by the holding of oral proceedings. Even if the Court retains a discretion to decide in a given case that such proceedings need not be held, the present case is one in which the relative merits and the complexity of the issues involved would certainly have warranted giving the parties the additional opportunity of commenting orally on each other’s arguments and the Court the opportunity of the more extended consideration of the matter that would have been involved in the holding of a hearing and in the deliberations that would then have followed—the more so as such a step would also have met the expressed expectations of the Parties. (. . .) 7. It is, therefore, to be hoped that when the Rules of Court next come to be revised, the opportunity will be taken to eliminate the cause of the present division of opinion by ensuring that the word “hearing” is used consistently to convey the idea of oral proceedings and that when the Court intends to retain a discretion to determine that the exchanges between representatives of the parties are to be limited to written proceedings, it will adhere to such wording as is used elsewhere in the Rules (e.g. Arts. 46, para. 1, 53, paras. 1 and 2, 55 and 58, para. 2), namely “after ascertaining the views of the parties” or, as in Article 76, paragraph 3, after affording “the parties an opportunity of presenting their observations on the subject” or, as in Article 79, paragraph 3, “the other party may present a written statement of its observations”. (Genocide Convention (Bosnia), Counter-claims, Separate Opinion of Judge Lauterpacht, ICJ Rep. 1997, pp. 278–280)29

When in the course of ordinary proceedings a question concerning procedure arises and neither the Statute nor the Rules foresee that it should give rise to the opening of a separate phase, interlocutory proceedings take place. Hence, interlocutory proceedings are used to settle any number of procedural matters on 28  Renumbered as paragraph 9 after the 2000 reform to Article 79. 29  The position that the expression “hearing the parties” in certain articles of the Rules appears to imply that oral hearings should be held was recently endorsed by judge ad hoc Gaja (Jurisdictional Immunities, Counter-claim, Declaration of Judge ad hoc Gaja, ICJ Rep. 2010, p. 398).

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which the Statute or the Rules of Court are silent or simply obscure. As it is only natural, in instances of this type the Court usually avails itself of every possible opportunity to clarify or develop aspects of the application of the rules governing its practice and procedure. Sufficient authority for this can be derived from Article 48 of the Statute, which empowers the Court to make orders “for the conduct of the case” (“la direction du procès”) without any qualification, thus making the Court the true master of its own procedure.30

Box # 4-3 Questions resolved through interlocutory proceedings: Samples A few scattered examples of procedural actions taken by the Court on subjects on which the Statute or the Rules provide little guidance are:

i)

ex parte actions regarding the Court’s composition

In the South West Africa cases the respondent objected to the participation of certain member of the Court in the proceedings. After hearing the parties at closed hearings the Court rejected the challenge and issued an order recording this (Order of 18 March 1965, ICJ Rep. 1965, p. 3; Judgment of 18 July 1966 (Second Phase), ICJ Rep. 1966, p. 9).

ii)  Simultaneous handling of several (incidental and derivative) questions In the Application for Revision and Interpretation-Tunisia/Libya Continental Shelf case, the application by Tunisia contained not one but several requests concerning an earlier judgment, namely, an application for revision, an application for interpretation and a request for the correction of an error. The Court crafted a special procedure for dealing with this combination of matters and resolved them all by means of a single judgment, observing that no provision of the Statute or the Rules “operates as a bar” to this procedure and that it had

30  See E. Lauterpacht, “ ‘Partial’ judgments and the inherent jurisdiction of the International Court of Justice”, in V. Lowe & M. Fitzmaurice, (Eds.), Fifty Years of the International Court of Justice—Essays in Honour of Sir Robert Jennings (1996), p. 475; C. Espaliú Berdud, Desarrollos Jurisprudenciales y Práctica Reciente en la Jurisdicción Contenciosa de la Corte Internacional de Justicia (2000), pp. 337–355.

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clear practical advantages in the circumstances (Judgment of 10 Dec. 1985, ICJ Rep. 1985, pp. 197–198, paras. 7–10).

iii) Jurisdiction of chambers on incidental matters (I) In the Burkina Faso/Mali case, brought by special agreement before a chamber of the Court constituted under Article 26, para. 2 of the Statute, both States parties submitted separate requests for provisional measures, but one of them addressed the request to the full Court and the other to the chamber (Provisional Measures, Order of 10 Jan. 1986, ICJ Rep. 1986, p. 4, para. 2). The question arose as to which was the competent body to deal with the requests and apparently was resolved in exchanges of the parties with the Registry.31 The order of the chamber is silent about this but is careful in stating that it considered itself competent to indicate provisional measures (ICJ Rep. 1986, pp. 8–9, paras. 10, 18–19).

iv) Jurisdiction of chambers on incidental matters (II) In the El Salvador/Honduras case, also brought by special agreement and also before an Article 26, para. 2 Chamber, Nicaragua filed a request for permission to intervene under Article 62 of the Statute but addressed it to the full Court and not to the chamber seised of the case. In its request the would-be intervener stated clearly that in its opinion it was for the Court to take a decision on admitting or rejecting it, and not for a chamber in whose composition it had not participated. The Court requested the views in writing of the principal parties and after a short deliberation made an order settling the question. According to this order any decision on a request for intervention entailed an incidental question, which could be dealt with only by the judicial body dealing with the merits of the case (Order of 28 Feb. 1990, ICJ Rep. 1990, p. 5).32

v) Amending an Application Instituting Proceedings In the Cameroon v. Nigeria the Court faced the unprecedented action by an applicant who intended to amend its original application, adding to it what in effect constituted new claims and, arguably, a new dispute. The Court gathered

31  C. López Contreras, “Las Salas ad hoc de la Corte Internacional de Justicia”, Separata del Anuario Hispano-Luso-Americano de Derecho Internacional, vol. 18 (2007), p. 459. 32  See by the present author, “The Intervention by Nicaragua in the Case between El Salvador and Honduras before an ad hoc Chamber of the ICJ”, Netherlands ILR, vol. 38 (1991), pp. 201 ff.

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the views of the other party and issued an order registering that the latter had no objection to this “Additional Application” being treated as an amendment to the initial application, so that the Court would be able to deal with the case as a whole in a single set of proceedings (Order of 16 June 1994, ICJ Rep. 1994, p. 106).

vi) Further examination of an aspect of a case already decided In the Nuclear Tests (Request for Examination) case, the Court was called essentially to determine whether the Nuclear Test cases, on which it had issued an inhibitory decision in 1974, were still active. The Court conducted interlocutory proceedings of a sui generis nature, whose main purpose was to determine whether the request by New Zealand fell within the provisions of paragraph 63 of that judgment and eventually decided, by an order, that this was not so. When communicating to the parties the arrangements made for the conduction of a hearing the Registrar transmitted to the parties the Court’s view that “The above arrangements shall in no way prejudice any decision which the Court will subsequently take regarding the existence or not of a case before it” (Order of 22 Sept. 1995, ICJ Rep. 1995, p. 296, para. 27).

c)

The Bench for a Case: Changes in the Composition of the Court

When the Court is seised of a case between two given States, there are a number of factors that come into play and may affect the composition of the bench for the purposes of dealing with that specific case and lead to it being altered, reduced or enlarged. These factors are enumerated in Section B of Part III of the Rules of Court (“The Composition of the Court for Particular Cases”), which up to 1972 was located in the initial section of the Rules, dealing with the institutional aspects of the composition of the Court. It includes regulations concerning four different situations: – Presiding the bench (Article 32); – Alterations of the configuration of the bench, due to the replacement of judges during the lifespan of a case (Article 33); – Reductions of the size of the bench, due to the non-participation of certain members in the case (Article 34); and, – Enlargements of size of the bench, connected to the institution of the judge ad hoc (Articles 35–37).

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The Presiding Judge Article 32 of the Rules deals with a case in which the President of the Court— or, more precisely, the person exercising the presidency under Article 13 of the Rules—is a judge who is a national of one of the parties. When this happens, the functions of the presidency with respect to that case—the President of the bench—will be exercised by the member of the Court following in precedence. An interesting example of a flexible application of this rule was given by the Lockerbie cases, two parallel litigations conducted between Libya and the United Kingdom, on one hand, and between Libya and the United States, on the other, in which, it may be noted, the Court declined to join the proceedings. When the cases were at the phase of provisional measures, the President of the Court was the English judge (Jennings), so, under Article 32 of the Rules the presidency in the case against the UK was assumed by judge Oda, then the Vice-President of the Court. In the parallel case against the US Article 32 was not applicable stricto sensu, but it was decided that the Court should also be presided over by judge Oda. The reasons for this was, according to a press release of the Court, that “[P]resident Sir Robert Jennings decided that for him to attempt to preside solely in the case against the United States would be mistaken, as well as inconvenient for all concerned.”33 When the cases reached the preliminary objections phase, the situation was reversed, for the Court came to be presided over by the US judge (Schwebel). The same procedure was used and the judgment in the case against the UK records that “[a]lthough [Article 32 of the Rules] is not applicable in the present case, the President thought it appropriate that he should not exercise the functions of the presidency in the present case as well. It therefore fell to the Vice-President, in accordance with Article 13, paragraph 1, of the Rules of Court, to exercise the functions of the presidency in the case.”34 Paragraph 2 of Article 32 assures that the member of the Court who is presiding in a case “on the date on which the Court convenes for the oral proceedings” continues in that position until completion of the current phase of the case, even if in the meantime a new President or Vice-President has been elected. This rule is important because it leaves no doubt that the critical date for purposes of the composition of the bench, i.e. the date on which it is reputed that the members of the Court for a particular case begin dealing with that case, is that of the opening of the oral proceedings. This is also the decisive 33  ICJ Press Release No. 92/6 Corr., 1 April 1992. 34  Lockerbie (Libya v. United Kingdom), Preliminary Objections, Judgment of 27 Feb. 1998, ICJ Rep. 1998, p. 13, para. 10.

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date for the application of Article 13 of the Rules, dealing with replacement in the event that the presiding judge becomes unable to act at a later stage. In addition, Article 32 is clear in that the rule on continuity in the exercise of the presidency applies only to the “current phase of a case” and not to the case in its entirety. This means that in subsequent phases of the same case other member of the Court can be called to exercise the presidency, under the rule embodied in paragraph 1 of the same provision.35

The Bench Altered: Replacement of Judges during the Lifespan of a Case Article 33 of the Rules covers the situation in which a judge’s term of office comes to an end while he or she is taking part in the handling of a case. The decisive date here is the same as that which is provided for in Article 32, i.e. the date when the Court convenes for the oral proceedings. Thus, if a member of the Court is replaced following the expiration of his or her term of office and at the date of the replacement the oral proceedings in a given case have begun, he or she “[s]hall discharge the duty imposed upon [him or her] (. . .) by continuing to sit until the completion of any phase of [the] case.” Exception is made again for the case of ad hoc chambers, for which Article 17, para. 4 of the Rules contains an entirely different regime. Under Article 13, para. 3 of the Statute “the members of the Court shall continue to discharge their duties until their places have been filled. Though replaced, they shall finish any cases which they may have begun.” The effect of provisions of the Rules like Articles 32 and 33 is to make known that the Court interprets the word “Court” in that provision as meaning the Court as composed on the date that the oral proceedings are opened, and the word “cases” as meaning a phase in the case, as distinct from a case in its entirety.36

The Bench Reduced: Non-participation of Certain Members in the Case Article 34 of the Rules refers back to two provisions of the Statute: Article 17, para. 2 and Article 24. The first deals with certain prohibitions applicable to the members of the Court when they participate in a decision in a given case and the eventual disqualification that this might entail. The second applies 35  Notably, this is not applicable in the case of ad hoc chambers constituted under Article 26, para. 2 of the Statute, in which the decisive date with regard to the composition of the bench is the date when the Court takes a decision on the constitution of the chamber. See Chapter 19, b). 36  Guyomar’s Commentaire, pp. 182, 216.

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when the member himself, or the President, considers that there are reasons indicating that the former should not take part in the decision of a particular case. Under Article 31, para. 6 of the Statute both provisions are also applicable to judges ad hoc. In fact, the insertion of Article 34 in the Rules might have been prompted by the difficulties encountered by the Court in the initial stages of the South West Africa litigation with regard to the participation of Sir Muhammad Zafrulla Khan (Pakistan) as a judge in this case. Initially he had been chosen as an ad hoc judge by the applicants, but never actually sat as such and in 1963 he was elected as a member of the Court. At the merits phase, he was persuaded by the President (Spender) to recuse himself, a decision that proved to be fateful, because it left the bench composed of an even number of judges and the crucial decision in this case came to be adopted by the casting vote of the President.37 Article 34, para. 1 simply provides that if a doubt arises as to the application of Article 17, para. 2 of the Statute or if there is a disagreement as to the application of Article 24, “the President shall inform the Members of the Court, with whom the decision lies.” The clear implication of this drafting is that it is now clear that the judges ad hoc will not take part in any decision taken under Article 34, para. 1 of the Rules. The question of the incompatibility of functions of the members of the Court (also affecting Article 16 of the Statute) has been considered by the Court on several occasions. At the time of the PCIJ certain general criteria were indentified.38 As for the present Court, in 1947 an internal Committee of the Court prepared a report on the application of the relevant rules but the Court did not take any decision upon it, merely taking note that “[w]henever a judge was in doubt as to whether it would be permissible for him to retain or accept certain functions, he might ask the advice of the President and, if necessary, of the Court.” In 1967 a new Committee studied the question and this time the Court considered its report and adopted it on 3 July 1968. Although this document has not been published, it has been reported that the recommendations included in it relate to matters such as other forms of peaceful settlement

37  S. Rosenne, “Article 31 of the Statute of the International Court of Justice Revisited: The Judge ad hoc”, in S. Rosenne, Essays on International Law and Practice (2007), pp. 121–122; UNITAR Colloquium, pp. 384–385 and 396). At the subsequent Namibia advisory case, South Africa attempted to challenge the same judge, but the Court, this time unanimously, denied the corresponding request (See Box # 4-4). 38  PCIJ E 3, pp. 177–178.

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of disputes; scientific activities; public functions and occupations of a professional nature; and private activities.39 The second paragraph of Article 34 concerns the procedure of recusal (“récusation”) in particular cases. This provision authorizes a party who claims to possess information relevant for the application of the governing provisions of the Statute to bring it to the attention of the Court and directs it to communicate the pertinent facts to the President. This must be done confidentially and in writing. This provision was introduced in the 1978 Rules in light of difficulties experienced in the past and with a clear intention to discourage States from bringing a recusal before the Court by means of a formal pleading, thus avoiding the need to publish the pertinent documentation at a later stage.

Box # 4-4 Disqualification of members of the Court: Practice40 Prior to the 1978 reform of the Rules, attempts at recusal of members of the Court took place in two instances, one contentious and one advisory. After the reform, Article 34 of the Rules has been invoked only once, in an advisory case.

i)

Prior to the 1978 reform of the Rules

•

In the South West Africa cases, the respondent notified the Registrar its intention to make “an application to the Court relating to the composition of the Court for the purposes of the cases now before it.” After transmitting the notification to the applicants, the Court decided to hear the contentions of the parties and for the first time organized closed hearings, invoking for that purpose Article 46 of the Statute. At the conclusion of the hearings, and with the participation of the judges ad hoc of the parties,41 the Court decided by 8 to 6 votes “not to accede to the application,” without even mentioning the identity of the member or members of the Court who were being recused.

39  ICJ Yearbook (1967–1968), pp. 91–92. Also relevant in this regard are Practice Directions VII and VIII, adopted in February 2002 (See Box # 4-9). 40  A thorough analysis of this question, albeit a little outdated can be found in W.M. Reisman, “Revision of the South West Africa cases”, Virginia JIL, vol. 7 (1966), pp. 42–55. See also Guyomar’s Commentaire, pp. 183–200. 41  By a previous order of 20 May 1961 the Court had joined formally the cases of Liberia v. South Africa and Ethiopia v. South Africa and had decided that the applicants were in the same interest and therefore were entitled to appoint a single judge ad hoc (Order of 20 May 1961, ICJ Rep. 1961, p. 13).

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The only provision invoked as authority in the qualités of this order is Article 48 of the Statute (Order of 18 March 1965, ICJ Rep. 1965, p. 3). In the Namibia advisory case, the Government of South Africa, in its written statement, challenged the participation of three members of the Court in the case, namely President Zafrulla Khan and judges Padilla Nervo and Morozov. The Court considered the question and disposed of it by means of three separate orders, made exclusively on the basis of Article 48 of the Statute, in which it summarily rejected the objections raised by South Africa (Orders Nos. 1, 2 and 3 of 26 Jan. 1971, ICJ Rep. 1971, pp. 3, 6 and 9).42 In the subsequent Opinion, the Court recalled as follows this aspect of the case:

•

In its written statement, filed on 19 November 1970, the Government of South Africa had taken objection to the participation of three Members of the Court in the proceedings. Its objections were based on statements made or other participation by the Members concerned, in their former capacity as representatives of their Governments, in United Nations organs which were dealing with matters concerning South West Africa. The Court gave careful consideration to the objections raised by the Government of South Africa, examining each case separately. In each of them the Court reached the conclusion that the participation of the Member concerned in his former capacity as representative of his Government, to which objection was taken in the South African Government’s written statement, did not attract the application of Article 17, paragraph 2, of the Statute of the Court. (Namibia, Advisory Opinion of 21 June 1971, ICJ Rep. 1971, p. 18, para. 9)43

ii) Under the 1978 Rules The Construction of a Wall is the only case thus far in which the provisions of Article 34, para. 2 of the Rules have been applied. After the Court made an initial order identifying the States and organizations entitled to participate in the proceedings, the Government of Israel addressed a communication to the 42  Orders Nos. 1 (Zafrulla Khan) and 2 (Padilla Nervo) were adopted unanimously. Order No. 3 (Morozov) was adopted by a 10 to 4 vote. With regard to the latter, judge Gros explained his negative vote in a dissenting opinion appended to the advisory opinion (ICJ Rep. 1971, pp. 323–324). 43  At this point the advisory opinion moves onto considerations relevant to the situation of each of the three judges (Advisory Opinion of 21 June 1971, ICJ Rep. 1971, pp. 18–19).

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Registrar referring to the composition of the Court on the date that order was made and objecting to the participation of one judge in the proceedings. A few days later, Israel supplemented this letter with a confidential communication to the President of the Court stated to have been sent under Article 34, para. 2 of the Rules. In this communication Judge Elaraby was identified as the member of the Court whose participation in the case was objected to by that State. It was argued that both in his previous professional capacity and in his statements of opinion, he “ha[d] been actively engaged in opposition to Israel including on matters which go directly to aspects of the question now before the Court.” The Court examined Israel’s arguments and, after quoting from its decision in the Namibia case, rejected them by a comfortable majority of 13 to 1,44 reasoning that: [t]he activities of Judge Elaraby referred to in the letter of 15 January 2004 from the Government of Israel were performed in his capacity of a diplomatic representative of his country, most of them many years before the question of the construction of a wall in the occupied Palestinian territory, now submitted for advisory opinion, arose; (. . .) that question was not an issue in the Tenth Emergency Special Session of the General Assembly until after Judge Elaraby had ceased to participate in that Session as representative of Egypt; (. . .) in the newspaper interview of August 2001, Judge Elaraby expressed no opinion on the question put in the present case; (. . .) consequently Judge Elaraby could not be regarded as having “previously taken part” in the case in any capacity. (Construction of a Wall, Order of 30 Jan. 2004, ICJ Rep. 2004, p. 5, para. 8)45

The Bench enlarged: The judge ad hoc46 Article 1, para. 2 of the Rules clearly distinguishes between the Court, which is composed of 15 permanent judges elected according to the provisions of 44  Judge Buergenthal appended a dissenting opinion to the order (ICJ Rep. 2004, p. 7). 45  The advisory opinion mentions that this decision was taken “by a reasoned order,” in apparent contrast with the unreasoned orders made with regard to this question in the Namibia case (Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, p. 142, para. 8). 46  There is extensive literature on the topic. See N. Valticos, “L’évolution de la notion de Juge ad hoc”, Revue Hellenique DI, vol. 50 (1997), pp. 1–15; S. Rosenne, “Article 31. . .”, pp. 105–128; S. Schwebel, “National judges and judges ad hoc of the International Court of Justice”, ICLQ,

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the Charter and the Statute, and the bench, which is the Court, as it may be composed “for the purposes of a particular case.” Under that provision “the Court may also include upon the Bench one or more persons chosen under Article 31 of the Statute to sit as judges ad hoc.”47 As for Article 31 of the Statute, which is the governing provision on the institution of the judge ad hoc, it is implemented by Articles 35, 36 and 37 of the Rules, in the context of determining the composition of the bench for particular cases. Article 35 contains the basic rules concerning the appointment of judges ad hoc by States having no national judge in the Court at a given moment; Article 36 governs the operation of this figure in a case in which two or more parties are deemed to be in the same interest; and Article 37 refers to the appointment, in certain circumstances, of a judge ad hoc by a State who already has a national judge in the Court. The decision to appoint a judge ad hoc is entirely discretional for the States parties, although rare will be the case in which a State will refrain from exercising this right when the other party has a national judge at the Court or has appointed a judge ad hoc of its own. However, in several cases both States parties have refrained from appointing judges ad hoc.48 In the Genocide Convention (Bosnia) case, neither of the parties appointed a judge ad hoc during the first provisional measures phase, but both of them did so at all the subsequent phases. In the Navigational Rights case both parties appointed judges ad hoc (none of them of their nationality) and subsequently the judge ad hoc appointed by Costa Rica was elected to the Court. Since the election took place after the closing of the written pleadings stage but before the opening of the oral hearings stage, that State was in theory entitled to appoint a new judge ad hoc but graciously declined to do so. Under Article 35, para. 1 of the Rules, a notification of the intention to appoint a judge ad hoc, made by any of the parties, must be communicated to the Court “as soon as possible,” and, if possible, this notification should also vol. 48 (1999), pp. 889–900; I. Scobbie, “Une hérésie en matiere judiciaire” ? The Role of the Judge ad hoc in the International Court”, LPICT, vol. 4 (2005), pp. 421–464; P. Kooijmans, “Article 31”, in Oxford Commentary, pp. 530–542; Sir E. Lauterpacht, “Principles of Procedure in International Litigation”, RC, vol. 345 (2009), pp. 497–499. 47  It will be noted that the expression “judge ad hoc” as such cannot be found in the Statute, Article 31 merely speaking of the choosing of a person as a judge and of a judge being “chosen.” 48  Examples of these situations are the cases Certain Frontier Land (Belgium/Netherlands); Temple of Preah Vihear (Cambodia v. Thailand); Border and Transborder Armed Actions (Nicaragua v. Honduras); Phosphates in Nauru (Nauru v. Australia); and Botswana/ Namibia.

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indicate the name, nationality and biographical details of the person chosen. If this information is not supplied with the notification, the Article fixes a timelimit to do that, namely “not later than two months before the time-limit fixed for the filing of the Counter-Memorial.”49 It is also specified that the judge ad hoc does not need to possess the nationality of the party appointing him, a matter on which there is abundant practice. Although the original Statute did not explicitly require that the person appointed as judge ad hoc possessed the nationality of the appointing party, it was interpreted in that sense and a condition to that effect was incorporated in the 1922 Rules of Court (Articles 2, para. 2 and 4, para. 1). In fact, in the first epoch of the Permanent Court they were consistently referred to as “National judges.”50 This changed with the 1936 Rules of Court (Article 3, para. 1) and was further strengthened in 1978 with the addition of the closing sentence of current Article 35, para. 1 providing expressly that “[t]he judge ad hoc may be of a nationality other than that of the party which chooses him.”51 With regard to nationality, a special problem is whether a State can appoint as a judge ad hoc a person having a nationality which is already represented in the Court, a situation that is potentially a breach of the spirit—if not also the letter—of Article 3, para. 1 of the Statute. The question was discussed by the PCIJ during the revision of the Rules, but no definitive conclusion was reached.52 In practice, this situation has occurred more than once in recent years, in all cases with regard to States belonging to the privileged class of countries that always have a national judge in the Court.53 Paragraph 2 of Article 35 refers to the case in which a party proposes to the other to refrain from exercising its right to choose a judge ad hoc, on condition

49  For a comment on the overlapping of this time-limit with that provided for in Article 79, para. 1 of the Rules for making preliminary objections see Box # 12-6. 50  Bustamante’s World Court, p. 149; Fachiri’s PCIJ, p. 50; N.L. Hill, “National Judges in the Permanent Court of International Justice”, AJIL, vol. 25 (1931), pp. 670–683. 51  For the rationale of this change see Guyomar’s Commentaire, p. 209. See also Schwebel, “National Judges. . .”, pp. 896–897. 52  PCIJ D 2, Add. 4, pp. 357–360; Guyomar’s Commentaire, p. 210. 53  Guyomar’s Commentaire, pp. 206–207. For example, in the Nicaragua, Application for Revision and Interpretation-Tunisia/Libya Continental Shelf, Arbitral Award (Guinea-Bissau v. Senegal), Romania v. Ukraine and Navigational and Related Rights cases, a French national was appointed as judge ad hoc and sat in the bench alongside the French judge. The same happened in the Indonesia/Malaysia and Romania v. Ukraine cases with regard to a US national and in the Genocide Convention (Bosnia), Provisional Measures and Certain Property cases with regard to a British subject.

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that the latter does the same.54 In such a situation, if the second State insists in appointing a judge ad hoc, the first State will have more time to make known its own appointment, as determined by the President.55 It has been pointed out that the right of the parties to appoint a judge ad hoc is not unconditional.56 Developing this idea, paragraphs 3 and 4 of Article 35 contemplate interlocutory proceedings to be exhausted in the event that any “objection or doubt” is raised by the other party or by the Court itself concerning the appointment of a judge ad hoc. This entails the other party submitting observations within a time-limit to be fixed by the President and, in the event of an objection, “hearing the parties,” which may translate into the organization of a formal hearing. Only after the Court has taken a decision concerning the objection can the appointment of a judge ad hoc “become final.”57

Box # 4-5 Challenges to the Appointment of a Judge ad hoc: Practice Objections or doubts with regard to either the right to appoint a judge ad hoc or the appointment of a certain individual have been raised in two advisory cases and six contentious cases. The two advisory cases (Namibia, Order of 29 Jan. 1971, ICJ Rep. 1971, p. 12; Advisory Opinion of 21 June 1971, ICJ Rep. 1971, pp. 24–27, paras. 35–39; Western Sahara, Order of 22 May 1975, ICJ Rep. 1975, p. 6) are also the only instances in which hearings devoted to the appointment of a judge ad hoc were held. As for contentious cases, the first instance in which doubts arose concerning the appointment of a judge ad hoc was Fisheries Jurisdiction (Germany v. Iceland), which presented two special features: on the one hand there was a parallel case going on against the same respondent but with a different applicant, one which happened to have a national judge in the Court (the United Kingdom). On the other hand, from the outset the respondent government failed to appear in the proceedings, so that the question of the appointment

54  This rule codifies a practice that may have been initiated by Liechtenstein in the Nottebohm case (ICJ Yearbook (1954–1955), pp. 92–93). 55  Guyomar’s Commentaire, pp. 213–214. For examples of the practice see Schwebel, “National Judges. . .”, pp. 897–898. 56  Valticos, “L’evolution. . .”, p. 5; Guyomar’s Commentaire, pp. 214–215. 57  This power of the Court to take a final decision on the regularity of the appointment of a judge ad hoc has no specific basis in the Statute. All the same, a provision covering this matter has featured in the Rules since the revision of 1936 (Article 3, para. 1).

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of a judge ad hoc arose only with regard to Germany.58 The case underwent successive phases on provisional measures, jurisdiction and merits and the treatment of the question of an eventual German judge ad hoc was different in each of them. At the provisional measures phase, the question appears not to have arisen, which probably was connected with the urgency that is characteristic of this type of proceedings. At the jurisdiction phase, faced with a formal request from Germany for the appointment of a judge ad hoc, the Court resolved as follows, after registering that the non-appearing respondent had made no objections: [T]he Court, taking into account the proceedings instituted against Iceland by the United Kingdom on 14 April 1972 in the case concerning Fisheries Jurisdiction and the composition of the Court in this case, which includes a judge of United Kingdom nationality, decided by eight votes to five that there was in the present phase, concerning the jurisdiction of the Court, a common interest in the sense of Article 31, paragraph 5, of the Statute which justified the refusal of the request of the Federal Republic of Germany for the appointment of a judge ad hoc. (Fisheries Jurisdiction (Germany v. Iceland), Jurisdiction, Judgment of 2 Feb. 1973, ICJ Rep. 1973, p. 51, para. 7)

At the merits phase, after hearing the parties the Court took the decision to refrain from joining the two cases. Subsequently, taking into account that Iceland was not appointing a judge ad hoc of its own, Germany waived its right to do so. The judgment recalls the episode in the following terms: The Court does not include upon the bench any judge of the nationality of either of the Parties. However, the Government of Iceland did not indicate any intention to avail itself of the right conferred upon it by Article 31, paragraph 3, of the Statute of the Court; and in the present phase of the proceedings the Agent for the Federal Republic of Germany informed the Court in the above-mentioned letter dated 25 September 1973 that, taking account of the fact that the Government of Iceland was declining to take part in the proceedings and to avail itself of the right to have a

58  This is a common feature of cases of lack of appearance: while the non-appearing State retains its right to appoint a judge ad hoc, if it simply decides not to exercise it the converse right of the other party is not affected. The Court invariably takes note of the attitude of the non-appearing government (See, in general, Chapter 18 (ii)).

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judge ad hoc on the bench, the Government of the Federal Republic, as long as that situation persisted, did not feel it necessary to insist on the appointment of a judge ad hoc. (Fisheries Jurisdiction (Germany v. Iceland), Merits, Judgment of 25 July 1974, ICJ Rep. 1974, p. 178, para. 10)

In the Nuclear Tests cases the (non-appearing) respondent contended that the Court manifestly lacked jurisdiction in the cases and that, therefore, the question of the appointment of judge ad hoc did not arise. The Court considered that this was not an objection within the meaning of Article 3, paragraph 1, of the Rules then in force (corresponding to paragraph 3 of Article 35 of the current Rules) (ICJ Yearbook (1972–1973), p. 138). The remaining cases are four of the Kosovo litigations, between Yugoslavia and several States members of NATO. When the proceedings were instituted, by means of simultaneous applications against ten of those States, each accompanied by a request for provisional measures, not less than five of them had national judges at the Court (US, UK, France, Germany and The Netherlands). As for the remaining respondents (Belgium, Canada, Italy and Spain) they expressed an intention to appoint a judge ad hoc at the provisional measures phase.59 Having been notified under Article 35, para. 3 of the Rules, Yugoslavia (who was itself appointing a judge ad hoc) objected on the basis of Article 31, para. 5 of the Statute, governing the issue of parties with the same interest. In its orders on provisional measures, the Court succinctly remarked that “the Court, after due deliberation, found that the nomination of a judge ad hoc by [the State concerned] was justified in the present phase of the case” (Yugoslavia v. Belgium) Provisional Measures, Order of 2 June 1999, ICJ Rep. 1999, p. 130, para. 12; (Yugoslavia v. Canada), ibid., pp. 264–265, para. 12; (Yugoslavia v. Italy), ibid., p. 487, para. 12; and (Yugoslavia v. Spain, ibid., p. 767, para. 12).60 At the conclusion of the proceedings on provisional measures the Court decided to remove from the List the cases against Spain and the US, but maintained in its docket the remaining eight cases, in all of which the respondent 59  Portugal was the only State in this group that did not avail itself of Article 31 of the Statute at that stage. At the subsequent phase of preliminary objections this State did indicate its intention to appoint a judge ad hoc. 60  This led to complicated arrangements for the organization of the hearings on provisional measures, given that the composition of the bench was essentially different in each of the four cases in which judges ad hoc were appointed. For a comment see Rosenne, “Article 31. . .”, p. 113.

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submitted preliminary objections. At the preliminary objections phase in these cases, the same situation occurred again: the respondents who had appointed a judge ad hoc confirmed their choice for the current phase of proceedings and Yugoslavia objected, invoking again Article 31, para. 5 of the Statute (although the objection was abandoned later). The Court gathered the views of the States concerned, both in writing and during a meeting held with the agents in order to discuss several aspects of procedure and eventually decided that, during the preliminary objections phase, the judges ad hoc should not sit. The relevant passage in the respective judgments reads: By letter of 23 December 2003 the Registrar informed all the Parties to the cases concerning Legality of Use of Force of the Court’s decisions on the issues discussed at the meeting of 12 December 2003. The Agents were informed that the Court had decided, pursuant to Article 31, paragraph 5, of the Statute, that, taking into account the presence upon the Bench of judges of British, Dutch and French nationality,61 the judges ad hoc chosen by the respondent States should not sit during the current phase of the procedure in these cases; it was made clear to the Agents that this decision by the Court did not in any way prejudice the question whether, if the Court should reject the preliminary objections of the Respondents, judges ad hoc might sit in subsequent stages of the cases. (Serbia and Montenegro v. Belgium) Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 287, para. 18; (Serbia and Montenegro v. Canada), ibid., p. 436, para. 17; (Serbia and Montenegro v. Italy), ibid., p. 872, para. 17)

In the remainder eight cases, the Court upheld the preliminary objections and therefore there was no need to revisit the question of the appointment of judges ad hoc by the respondent States.

If a judge ad hoc who has accepted the appointment later “becomes unable to sit”—a rather vague expression that must be equated with a situation of sickness or physical impossibility to attend meetings at The Hague—he or she may be replaced—presumably following an analogous procedure (paragraph 5).62 It is interesting to note that, once the Court has been notified of the appointment 61  The judge from Germany (Simma) had by then recused himself. 62  This happened in the Corfu Channel case, in which the judge ad hoc originally appointed by Albania became too impaired to attend certain sittings of the Court and the Albanian

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by the State concerned, the judge ad hoc will sit during all the phases of the case that might take place in the future—the only exception being those derivative proceedings that give rise to entirely new cases, like those concerning the interpretation or the revision of judgments, in which fresh appointments have to be made—63 and the termination of his or her term in office only occurs by resignation or by death. If the appointing party has reasons for desiring the replacement of its judge ad hoc the only avenues it can try are either to persuade him or her to resign, or to convince the President of the Court that there is “some special reason” advising that the judge ad hoc should not sit in the case, and that the procedure provided for in Article 24 of the Statute should be followed.64 A final general rule concerning the judge ad hoc is that he or she shall cease to sit on the bench “when the reasons for [his or her] participation (. . .) are found no longer to exist” (paragraph 6). There is no practice concerning this matter and the purpose and scope of this provision is not clear.65 Paragraph 5 of Article 31 of the Statute contemplates that in the case in which two or more parties are “in the same interest” (“parties font cause commune”) they shall, for the purposes of the appointment of a judge ad hoc “be reckoned as one party only.”66 Article 36 of the Rules merely establishes the procedure to follow in these cases.67 First of all, it is for the Court to make a finding that two or more government had to make a new appointment (ICJ Pleadings, Corfu Channel, vol. 5, pp. 192–194). 63  If the same person is appointed as judge ad hoc in the derivative proceedings he or she will have to make a new solemn declaration. This is according to a practice inaugurated in the Request for Interpretation-Asylum case and confirmed in the Application for Revision and Interpretation-Tunisia/Libya Continental Shelf case (ICJ Yearbook (1984–1985), p. 174). 64  Article 24 is applicable to judges ad hoc by virtue of the provisions of Article 31, para. 6 of the Statute. Interestingly, Article 18 (concerning the replacement of a judge by unanimous decision of the other members of the Court) does not apply to judges ad hoc. On the question of the applicability of Article 17, para. 2 to judges ad hoc see Guyomar’s Commentaire, p. 212. 65  Additional aspects connected to the appointment of a judge ad hoc are discussed in other sections of this work. See Chapter 11, e) (provisional measures); Box # 12-6 (preliminary objections); Chapter 14, d) (Article 62 intervention); and Chapter 20, c) (advisory proceedings). 66  G. Guillaume, «La « cause commune » devant la Cour internationale de Justice », in E. Yakpo & T. Boumedra (Eds.), Liber Amicorum Mohammed Bedjaoui (1999), pp. 325–341; P. Kooijmans, “Article 31”, in Oxford Commentary, MN 23–34, pp. 536–539. 67  The preceding versions of the Rules (Article 3, para. 2 of the 1936/1946/1972 Rules) contained a different wording, stating that the parties being in the same interest were entitled to choose a judge ad hoc “acting in concert.”

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parties are in the same interest, something that will be done in cases in which they present the same submissions.68 When it does so, it must fix a time-limit for the joint appointment of a judge ad hoc. Then, if one of the States concerned alleges the existence of a separate interest of its own or puts forward an objection, it is for the Court to decide, after hearing the parties.

Box # 4-6 Parties in the same interest: Review of the Court’s case law69 In the Lockerbie (Libya v. UK) case, the Court considered and dismissed the contention that the US and the UK, respondents in the two cases submitted simultaneously by Libya, were in the same interest for the purposes of Article 31, para. 5 of the Statute. The Court also allowed the UK to appoint a judge ad hoc, because its national judge in the bench had recused herself (Preliminary Objections, Judgment of 27 Feb. 1998, ICJ Rep. 1998, p. 13, para. 9). Judges Bedjaoui, Guillaume and Ranjeva appended a joint declaration criticizing this decision and included in it a thorough review of the relevant case law: 8. This decision seems on the face of it to conflict with the jurisprudence on parties in the same interest of both the Permanent Court of International Justice and the International Court of Justice; which precedents must be looked into before we consider the facts in this case. [Here follows a discussion of the manner in which this question was treated in the Jurisdiction of the Commission of the River Oder; Customs Union; South West Africa; North Sea Continental Shelf and Fisheries Jurisdiction (UK and FRG v. Iceland) cases] (. . .) 13. All in all, the jurisprudence of the Permanent Court and that of the International Court of Justice look perfectly coherent: (a) Governments which, before the Court, present the same submissions must be regarded as being in the same interest. The arguments advanced by the parties are not very important in this respect, the submissions alone being determinative (settled jurisprudence);

68  Guyomar’s Commentaire, p. 224. 69  See also Box # 18-2.

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(b) when objections to jurisdiction and admissibility are submitted in limine litis, in the initial phase of proceedings the attitude of the parties to these objections must be evaluated. Thus if the parties submit that the Court has jurisdiction, they must be regarded as being in the same interest (Fisheries Jurisdiction cases); (c) It is for the Court to decide independently of the attitude of the parties (North Sea Continental Shelf case); (d) This solution applies whether the applications are joined (South West Africa and North Sea Continental Shelf cases) or remain separate (Fisheries Jurisdiction cases). (Lockerbie (Libya v. UK), Preliminary Objections, Joint Declaration of Judges Bedjaoui, Guillaume and Ranjeva, ICJ Rep. 1998, pp. 34–39)70

A final aspect concerning the judge ad hoc is that under Article 37 of the Rules—a provision for which there is no corresponding article in the Statute—the right to appoint a judge ad hoc extends to a State with a national judge in the Court, when the said judge “[i]s or becomes unable to sit in any phase of a case.” This rule was incorporated in the 1978 reform in order to deal with a situation like the one presented before the PCIJ in the Free Zones case, between France and Switzerland, in which the French judge passed away before the first phase of the case started and France was authorized to appoint a judge ad hoc.71 During a subsequent phase a new French national had been elected to the Court, but, as he happened to be disqualified to sit in the case, the appointment was kept in force. Before the present Court, the situation has presented itself on several occasions.72 70  On this, see Thirlway’s Law and Procedure, Part. 11, BYIL, vol. 71 (2000), pp. 163–169; Kooijmans, “Article 31”, MN 23–34, pp. 537–542. 71  Rosenne’s Procedure, p. 90. Even before the Free Zones case, the Court had admitted this possibility in the Lotus case, also with regard to the French judge (PCIJ E 4, p. 274). 72  This has happened in the following cases: Lockerbie (Libya v. UK) (judge Higgins stepping down and being replaced by Sir R. Jennings: Preliminary Objections, Judgment of 27 Feb. 1998, ICJ Rep. 1998, p. 13, para. 9); Certain Property (Liechtenstein v. Germany) (judge Simma stepping down and being replaced by C.-A. Fleischhauer: Preliminary Objections, Judgment of 10 Feb. 2005, ICJ Rep. 2005, p. 11, para. 7) and Mutual Assistance (judge Abraham stepping down and being replaced by G. Guillaume: Judgment of 4 June 2008, ICJ Rep. 2008, pp. 181–182, para. 6). In the Kosovo case against Germany, when the case reached the preliminary objections phase the German judge (Simma) recused himself, but the Court found that “Germany did not become entitled to choose a judge ad hoc under Article 37 of the Rules of Court” (Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 727, para. 16).

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Box # 4-7 The role of the judge ad hoc Formally, there are no differences between the elected judges and the judges ad hoc, since under Article 31, para. 6 the latter “shall take part in the decision on terms of complete equality with their colleagues.” In the realm of theory, it is even possible that one or more judges ad hoc could be elected to form part of the drafting committee that under the terms of Article 6 of the 1976 Resolution Concerning the Internal Judicial Practice the Court elects for the purposes of preparing the text of a judgment or advisory opinion.73 In any case, the judge ad hoc is by definition occasional and not institutional 74 and in this condition, naturally, the degree of influence that he or she exerts upon the other members of the bench depends on the authority and respect that he or she can command. In principle, a non-national of the appointing State will be more easily perceived as independent from that State, and this applies also to individuals who have strong connections with the Court, like former judges or former officials of the Court. A much-quoted appraisal of the role that the judge ad hoc is called to play was made by E. Lauterpacht, acting himself as a judge ad hoc, in a separate opinion in the Genocide Convention (Bosnia) case. The arguments reproduced below are more poignant in view of the fact that the father of this distinguished jurist, the great Sir Hersch Lauterpacht, was, as a matter of principle, famously opposed to the institution of the judge ad hoc.75 4. What is true for the Court as a whole is every bit as compelling for an ad hoc judge. The fact that he is appointed by a party to the case in no way reduces the operative force of his solemn declaration under Article 20 of the Statute, made in the same form as that of the titular judges, that he will exercise his powers impartially and conscientiously. 5. At the same time, it cannot be forgotten that the institution of the ad hoc judge was created for the purpose of giving a party, not otherwise having upon the Court a judge of its nationality, an opportunity to join in the work of this tribunal. The evidence in this regard of the attitude of those who participated in the drafting of the original Statute of the 73  Rosenne’s Procedure, p. 16. For a possible exception to this in cases before ad hoc chambers see S. Rosenne, “Article 27 of the Statute of the International Court of Justice Revisited”, in S. Rosenne, Essays on International Law and Practice (2007), p. 93, note 32. 74  Obligation to Prosecute or Extradite, Provisional Measures, Separate Opinion of Judge ad hoc Sur, ICJ Rep. 2009, p. 201, para. 2. 75  Valticos, “L’evolution . . .”, pp. 6–8; Schwebel, “National judges . . .”, pp. 891–892.

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Permanent Court of International Justice can hardly be contradicted. This has led many to assume that an ad hoc judge must be regarded as a representative of the State that appoints him and, therefore, as necessarily precommitted to the position that that State may adopt. 6. That assumption is, in my opinion, contrary to principle and cannot be accepted. Nonetheless, consistently with the duty of impartiality by which the ad hoc judge is bound, there is still something specific that distinguishes his role. He has, I believe, the special obligation to endeavour to ensure that, so far as is reasonable, every relevant argument in favour of the party that has appointed him has been fully appreciated in the course of collegial consideration and, ultimately, is reflected—though not necessarily accepted—in any separate or dissenting opinion that he may write. (Genocide Convention (Bosnia), Provisional Measures II, Separate Opinion of Judge ad hoc Lauterpacht ICJ Rep. 1993, pp. 408–409)

These views have been warmly endorsed by other learned practitioners when acting as judges ad hoc in different cases. Two of them have added views of their own that are worthy a transcription here. In the Nuclear Tests (Request for Examination) case Sir Geoffrey Palmer, judge ad hoc for New Zealand stated: The position of an ad hoc judge on this Court is an unusual one and the nature of the obligations imposed on such a judge have been a source of consideration for me. The Statute provides, in Article 31 (6), that such judges “shall take part in the decision on terms of complete equality with their colleagues”. In this case I feel the institution served a useful purpose of bringing to the Court a perspective of one who lives in the region of the world with which the application deals. But I have not felt that my position on the Court is a representative one. Its utility was in providing another perspective and some more detailed familiarity with the background. (Nuclear Tests (Request for Examination) Dissenting Opinion of Judge Sir Geoffrey Palmer, ICJ Rep. 1995, p. 420, para. 118)

And in the Indonesia/Malaysia case, Thomas Franck, the first US national ever to be appointed as judge ad hoc (for Indonesia), remarked: [A]s Judge ad hoc Nicolas Valticos has pointed out, the ad hoc judge is not simply a representative of the appointing State. Notably, one—Judge

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ad hoc Suzanne Bastid—has even disagreed on the merits with the position of the appointing States. (. . .) 10. The nub of the matter is this: the ad hoc judge must always ensure that the appointing State’s arguments are fully addressed by the Court, whether or not they convince the majority of the judges. Between March 1948 (Corfu Channel (United Kingdom v. Albania)) and July 2002 (Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo)) there have been ad hoc judges in 45 cases and 53 phases of cases before this Court. Of these, 29 have written dissenting opinions, corresponding quite closely to the number of ad hoc judges appointed by losing parties. That, however, does not argue against the integrity of the institution of ad hoc judges. Rather, it demonstrates that, when a State is the losing party, the ad hoc judge it appointed has an even greater obligation to ensure that the Court’s judgment accurately and fully reflects the careful consideration given by the Court to the losing State’s representations. The drafting of the dissent attests to the richness of the Court’s collegial deliberative process. 11. The function of the dissent, therefore, is multiple. It assures the losing party that its arguments, far from being overlooked, were considered extensively by the entire Court. It facilitates the reasoned and balanced exchange of research and written views among the judges during the deliberative process. And, perhaps, it presents to the law’s universal market place of ideas certain principles of law and nuances of analysis which, even if not adopted in the instant case, may be of use in another, as yet unforeseen, context. 12. The ad hoc judge, like any other judge authoring a separate opinion, is accorded a sacred freedom. To be preserved, it must be used. As Judge ad hoc Bula-Bula has written, the ad hoc’s “traditional practice would seem to be characterized by its freedom” (. . .). That freedom, of course, quite simply, is to write as one wills: to be the sole author of an opinion, unencumbered by a majority’s need, sometimes, to find common ground through compromise and creative ambiguity. (Indonesia/Malaysia, Dissenting Opinion of Judge Franck, ICJ Rep. 2002, pp. 694–695, paras. 9–12)76

76  See also the separate opinion of judge ad hoc Sur in the Obligation to Prosecute or Extradite, Provisional Measures case (ICJ Rep. 2009, pp. 201–202, para. 2 and p. 204, para. 7).

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Pre-adjudicative Steps by the Parties

Pre-adjudicative steps are all those actions that are undertaken before the Court begins its consideration of a case and before the litigation process starts in earnest. They cover both, steps taken by the parties prior to the actual start of the litigation and steps taken by the Court and by its Registry immediately after proceedings have been instituted. The latter will be discussed in Chapter 5, after the modalities for the institution of proceedings are examined. As it will be seen in due course, the litigation can begin either by unilateral action or by joint action. In the former case, the steps to be described below will be taken by the moving party prior to the filing of the act instituting proceedings and by the defendant as soon as it is appraised that it has been summoned and named as a respondent before the Court. In the latter case, both parties will be aware of the fact that a litigation is upcoming and will therefore be in a position to take these steps well before the filing of the act instituting proceedings. Appointment of an Agent The very first act of procedure to be carried out by the parties to a case, once proceedings are instituted, is the appointment of an agent, a term taken from arbitral practice.77 It is for the party instituting proceedings to inform the Court the name of its agent and an address for service at the seat of the Court, “to which all communications concerning the case are to be sent” (Rules, Article 40, para. 1).78 It is common practice to appoint also a co-agent or a deputy agent, who will be able to step in and maintain fluid communication with the Court in the absence of the agent.79

77  In advisory proceedings the use of the term “agent” has been traditionally avoided. Written statements are sent to the Court through diplomatic channels and the individual addressing the Court on behalf of a State—or an International Organization—at the oral stage of proceedings is referred to as “representative.” He may be assisted by counsel and advocates (Guyomar’s Commentaire, p. 264). 78  In one of its first decisions with regard to procedure, the Court determined in 1922 that it was not convenient to include in the Rules a provision “limiting the right of pleading before the Court” and that “any person appointed by a State to represent it should be admitted by the Court.” (PCIJ D 2, pp. 78–79). 79  However, this might give rise to difficulties. For instance, in the Genocide Convention (Bosnia) case certain communications to the Court by a person appointed as co-agent flatly contradicted actions taken by the agent (Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, pp. 52–54, paras. 18–24).

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The fundamental norm concerning representation of States before the Court is embodied in Article 42, para. 1 of the Statute, according to which “The parties shall be represented by Agents.”80 Article 40, para. 1 of the Rules develops this principle by imposing the peremptory requirement that “[a]ll steps on behalf of the parties after proceedings have been instituted shall be taken by agents.” In this connection, the Court has recalled the general rule according to which in a litigation before it the Court “can only take account of the acts and attitudes of governments or of the authorized agents of governments.”81 Article 40, para. 1 of the Rules is also careful in specifying that this rule does not apply in the special circumstances provided for in Article 38, para. 5, that is, when a State files with the Court what essentially is just an offer to litigate certain matter. Accordingly, the response by the other State, referred to in the said rule in very careful terms as “the State against which such application is made,” can be signed by any authority representing that State. A special case arises when a State named as respondent chooses not to appear before the Court or “fails to defend its case,” thus triggering the application of Article 53 of the Statute. In situations of this type it has been stated accurately that the Court is not in a position to demand from such a State the appointment of an agent.82 In practice, States failing to appear have abstained from formally appointing an agent but this has not prevented them from transmitting to the Court, by diplomatic channels, information and documentation concerning the dispute in question.83 Agents must be appointed as early as possible in the proceedings, as any delay may paralyze the action of the Court.84 If the case was instituted by means of an application, the name of the agent for that State shall be stated in the application and in practice it is common that the application itself bears the signature of the person appointed as agent, in the manner provided for in Article 38, para. 3 of the Rules. As for the respondent, Article 40, para. 2 of the 80  This rule is binding on every State party to the Statute that is summoned before the Court. For a situation in which a State contended that its domestic legislation “did not authorize that Government to be represented before a court which had no power to adjudicate” and the treatment given to it by the Court see Nottebohm, Preliminary Objection, Judgment of 18 Nov. 1953, ICJ Rep. 1953, pp. 123–124. 81  Barcelona Traction, Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964, p. 23. 82  Hudson’s PCIJ, p. 527. 83  See Chapter 18, ii), d). 84  PCIJ C 16/I, p. 295. The PCIJ observed, for instance, that pending the appointment of the parties’ agents the President was unable to arrange the meeting contemplated in Article 37, para. 1 of the Rules [Article 31 of the current Rules] (PCIJ E 16, p. 180). See also Guyomar’s Commentaire, p. 261.

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Rules states that it shall inform the Court of the name of its agent upon receipt of the certified copy of the application or “as soon as possible thereafter,” an expression that is currently interpreted as meaning that the respondent is under a duty to appoint an agent in a matter of days or, at most, weeks.85 The same procedure applies if proceedings are instituted by a unilateral notification of a special agreement (ibid., para. 3). If this notification is made jointly by the parties to the special agreement the information concerning the names of the respective agents is usually included in the same instrument. Simultaneously with the appointment of an agent, the States involved in the litigation should inform the Court an address for service at the city of The Hague, seat of the Court. The main reason for this requirement is related to the need of assuring direct and immediate contact between the Court’s officials—the President and the Registrar—and the parties.86 Article 31 of the Rules imposes a duty on the President to “ascertain the views of the parties” with regard to all questions pertaining to procedure and empowers him to “summon the agents of the parties to meet him as soon as possible after their appointment, and whenever necessary thereafter.”87 Hence, the second procedural action to be undertaken by the States party to a case is for their appointed agents to attend the meeting convened by the President of the Court in order to discuss in general terms the procedure that is to be followed in the case.

Box # 4-8 Communications with the Court and its President: Practice Directions X and XIII In order to implement the provisions of Article 31 of the Rules, the Court has adopted two Practice Directions. In the first place, Practice Direction X, issued in July 2004, states in very general terms: Whenever a decision on a procedural issue needs to be made in a case and the President deems it necessary to call a meeting of the agents to ascertain the views of the parties in this regard pursuant to Article 31 of 85  For an old case in which there was a delay in the appointment of the agent by the respondent but this did not preclude the proceedings to advance see PCIJ E 12, p. 191. 86  For an enumeration of these reasons see PCIJ C 18-I, p. 1041; PCIJ E 7, p. 294; ICJ Pleadings, Compagnie de Beyrouth, pp. 121–122. See also Mani’s Adjudication, p. 66. 87  For the importance of these consultations between the President of the Court and the agents of the parties throughout the entire proceedings see A. Riddell & B. Plant, Evidence before the International Court of Justice (2009), p. 22.

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the Rules of Court, agents are expected to attend that meeting as early as possible. Secondly, in January 2009 the Court approved a new Practice Direction XIII, which takes into account technical developments in communications and particularly the possibility of using devices such as video or telephone conferences. It reads The reference in Article 31 of the Rules of Court to ascertaining the views of the parties with regard to questions of procedure is to be understood as follows: After the initial meeting with the President, and in the context of any further ascertainment of the parties’ views relating to questions of procedure, the parties may, should they agree on the procedure to be followed, inform the President by letter accordingly. The views of the parties as to the future procedure may also, should they agree, be ascertained by means of a video or telephone conference.

A second reason for having an address in The Hague for service is that it allows all documents to be submitted in the course of proceedings—and all communications to be received from the Court—to have immediate effect. However, with the current state of communications it is undeniable that this is less pressing now than it was when the Rules were drafted. In particular, in recent times States parties and the Registry have resorted to the transmission of documents via facsimil (telefax), sending at the same time the original by ordinary mail. The Court itself has had the chance to register this practice.88 States often appoint as their agents before the Court their diplomatic representatives to The Netherlands. For all practical purposes they convert their diplomatic missions in The Hague into the headquarters of the defense team, mainly because they may be the best place to undertake actions like setting up working meetings with counsel and advocate, drafting documents of procedure, 88  Obligation to Arbitrate, Order of 9 March 1988, ICJ Rep. 1988, p. 4; Nicaragua, Order of 26 Sep. 1991, ICJ Rep. 1991, p. 48; Passage through the Great Belt, Order of 10 Sep. 1992, ICJ Rep. 1992, p. 348; Libya/Chad, Judgment of 3 Feb. 1994, ICJ Rep. 1994, p. 10, para. 5; Guinea-Bissau v. Senegal, Discontinuance, Order of November 1995, ICJ Rep. 1995, p. 426; Armed Activities (DRC v. Burundi), Order of 30 Jan. 2001, ICJ Rep. 2001, p. 4; Armed Activities (DRC v. Rwanda), Order of 30 Jan. 2001, ICJ Rep. 2001, p. 7; Status of Diplomatic Envoy, Order of 9 June 2006, ICJ Rep. 2006, p. 108; Criminal Proceedings, Order of 16 Nov. 2010, ICJ Rep. 2010, p. 636.

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and sending and receiving communications to and from the central government and the Court.89 This, however, is entirely discretional and nothing precludes a State from appointing another official or even a particular having no previous affiliation with the government. The agent is the head of the delegation representing a State party before the Court. This is composed by the agent, counsel and advocates, and all the other persons that the State wishes to include therein, for instance technical experts or support staff, like stenographers, interpreters, etc. The agent is the representative of the State for the purposes of the case and, as such, his tasks during the written stage consist of corresponding with the Registry on all aspects pertaining to the case and taking part in those meetings with the President and the agent of the other party that may be held under Article 31 of the Rules, as supplemented by Practice Direction X. At the oral stage of proceedings the agent’s tasks are usually limited to introduce the delegation to the Court, to present the general layout of its party case, to stress those considerations of policy as he sees fit and to read the party’s final submissions “without recapitulation of the arguments,” at the closing of the oral stage, in compliance with Article 60, para. 2 of the Rules. It is not his task to plead before the Court or to present legal arguments as such, unless he is listed as both agent and counsel or advocate.90 An important aspect of the Agent’s task is that the statements he makes before the Court have binding effects for the State he represents. As an arbitral tribunal put it in a recent decision: It is well established that commitments made by Agents of States before international tribunals bind the State, which is thenceforth under a legal obligation to act in conformity with the commitment so made. This follows from the role of the Agent as the intermediary between the State and the tribunal. (PCA, Arbitration between Barbados and the Republic of Trinidad and Tobago Award of 11 April 2006, para. 291)91

89  See in general V. Bruns, “La Cour Permanente de Justice international, son organization at sa competence”, RC, vol. 62 (1937/IV), pp. 585–605; Rosenne, “The Agent in Litigation in the International Court of Justice”, in S. Rosenne, An International Law Miscellany (1993), pp. 259–288; M. Matheson, “Practical Aspects of the Agent’s Role in Cases before the ICJ”, LPICT, vol. 1 (2002), pp. 467–479. 90  For the difference between “counsel” and “advocate” see Hudson’s PCIJ, pp. 531–532; S. Rosenne, “ICJ: Practice Directions on Judges ad hoc; Agents, Counsel and Advocates; and Submission of New Documents”, LPICT, vol. 1, (2002), p. 225, note 5. 91  The text can be downloaded from the web site of the PCA at http://www.pca-cpa.org/ showpage.asp?pag_id=1029. The Tribunal listed here as authority a long list of precedents,

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There is an interesting development concerning the appointment of agents. Traditionally, the person appointed as an agent for a party before the ICJ has been a high rank official of the Government concerned. But in recent years certain States have departed from this practice and have taken to appoint as agent a private individual, for instance a partner at a prominent law firm. While there is nothing in the law and practice of the Court ruling this out, a member of the Court has issued a warning with regard to this trend, which he considers risky for the sound working of international justice: [i]n the present case, I note that a State appearing before the Court is not represented by a person holding high office in the Government acting as Agent, but by a private lawyer from another, highly developed, country. This has rarely been the case in the history of the Court and reinforces my feeling that a question arises as to whether the case is brought to the Court in the interest of the State involved or for some other reason. I would like to repeat here a passage from an article I published a few months ago: “I personally wonder, in the light of the increasing number of unilateral applications, whether the offhand or casual unilateral referral of cases by some States (which would simply appear to be instigated by ambitious private lawyers in certain developed countries), without the Government of the State concerned first exhausting diplomatic channels, is really consistent with the purpose of the International Court of Justice as the principal judicial organ of the United Nations. I see what may be termed an abuse of the right to institute proceedings before the Court. Past experience appears to indicate that irregular procedures of this nature will not produce any meaningful results in the judiciary.” (. . .) (Armed Activities (DRC v. Uganda), Provisional Measures, Declaration of Judge Oda, ICJ Rep. 2000, pp. 132–133, para. 8)92

including the PCIJ’s decision in the Mavrommatis Jerusalem Concessions (PCIJ A 5 (1925), p. 37). See also Peru v. Chile, Judgment of 27 Jan. 2014, para. 178 and Separate Opinion of Judge ad hoc Orrego Vicuna, para. 9. 92  This declaration of judge Oda was in turn quoted by a judge ad hoc of the International Tribunal on the Law of the Sea in a declaration appended to the tribunal’s decision in the Grand Prince (Belize v. France) case (Judgment of 20 April 2001, Declaration of Judge ad hoc Cot, para. 10). On this see further J.P. Cot, “Appearing ‘for’ or ‘on behalf of’ a State: The Role of private Counsel before International Tribunals”, in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge Shigeru Oda, vol. 2 (2002), pp. 835–847.

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Box # 4-9 Limitations in the choice of agent, counsel and advocate: Practice Directions VII and VIII States used to enjoy full freedom as to the choosing of their representation before the Court, including the persons to be appointed as agent, counsel or advocate. In February 2002, however, the Court decided to adopt two Practice Directions that severely curtail this freedom. They both are related to persons who are or have been connected to the Court in the capacity of judge, judge ad hoc or high official.93 The first is Practice Direction VII, referring in particular to certain criteria that States should use for the appointment of a judge ad hoc. In it the Court records that it has reached the conclusion that “it is not in the interest of the sound administration of justice that a person sit as judge ad hoc in one case who is also acting or has recently acted as agent, counsel or advocate in another case before the Court.” From here the Court goes on to suggest that when choosing a judge ad hoc States should refrain from nominating persons “who are acting as agent, counsel or advocate in another case before the Court or have acted in that capacity in the three years preceding the date of the nomination.” As a corollary, the closing sentence of this Practice Direction reads: Furthermore, parties should likewise refrain from designating as agent, counsel or advocate in a case before the Court a person who sits as judge ad hoc in another case before the Court. The second is Practice Direction VIII, which imposes a straightforward restriction on the State’s freedom to designate its agent, counsel or advocate. While under Practice Direction VII they should refrain from designating in any of these capacities a person who is sitting as judge ad hoc in another case, Practice Direction VIII extends that restriction to any person who, in the previous three years, has held that position or any other high position within the Court: Practice Direction VIII The Court considers that it is not in the interest of the sound administration of justice that a person who until recently was a Member of the Court,

93  This expression covers the Registrar, the Deputy Registrar and the Secretaries of the Registry (principal legal secretary, first secretary or secretary).

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judge ad hoc, Registrar, Deputy-Registrar or higher official of the Court (principal legal secretary, first secretary or secretary), appear as agent, counsel or advocate in a case before the Court. Accordingly, parties should refrain from designating as agent, counsel or advocate in a case before the Court a person who in the three years preceding the date of the designation was a Member of the Court, judge ad hoc, Registrar, Deputy-Registrar or higher official of the Court.94 An important practical aspect is that, since the composition of each delegation is to be communicated to the Registry by each party shortly before the opening of the oral proceedings, during the written stage of proceedings the Court is not at all concerned with the names of the counsel retained by a party. Therefore, it is only on the occasion of the opening of the hearings that the Court will be furnished with the names of those who have been appointed as counsel and advocates for each of the parties. The governing date for purposes of the limitations described above is, then, that of the opening of the oral stage of proceedings.

Legal Representation The second step to be considered by the parties concerns assuring proper legal representation. The Statute anticipates that the agents of the parties will be assisted by “counsel and advocate” (Article 42, para. 2) and this has been interpreted as suggesting that the persons in question should have legal qualifications.95 In practice, these individuals share with the agent the task of conducting the litigation throughout the entire proceedings. This is more visible during the oral stage of proceedings, in which counsel and advocate take the floor and plead individually before the Court, in the order determined by the party concerned. Counsel, however, also participate in the arduous task of drafting the written pleadings, as well as a substantial portion of the correspondence that is sent to the Court.96 The role of the agent 94  For analytical comments see Rosenne, “ICJ: Practice Directions. . .”, pp. 224 ff.; Sir A. Watts, “New Practice Directions of the ICJ”, LPICT, vol. 1 (2002), p. 252 ff. 95  Sir H. Waldock, “The International Court of Justice as Seen from Bar and Bench”, BYIL, vol. 54 (1983), pp. 2–4. 96  See, in general, A. Pellet, “Remarques sur le ‘métier’ de Conseil devant la Cour international de Justice”, in UN Office of Legal Affairs, Collection of Essays by Legal Advisers of States, Legal Advisers of International Organizations and Practitioners in the Field of International Law (1999), pp. 435–458; J. Crawford, “Advocacy before the International

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has more to do with the overall coordination of the defense team and the representation of his State at every step in the proceedings as he serves as the only formal communication channel between the State and the Court.97 In addition, since the time of the PCIJ it has been recognized that the power to take decisions on questions of procedure binding the government of a Party belongs exclusively to the agent and cannot be exercised by a person appointed solely in the capacity of counsel.98 However, this dos not affect the binding character of declarations made by counsel on behalf of a party.99 It has been remarked that the while the conduct of proceedings appears to require the appointment of agents, the appointment of counsel and advocates is not necessary in all cases.100 However, no State wants to engage in litigation before the Court without sound legal advice and for this reason the appointment of an agent is always coupled with, or followed by, the retaining of professional international lawyers. If the case is submitted by special agreement, the process of selecting and retaining the persons who will form the legal team would normally take place in both States long before the institution of proceedings. If the case is submitted by application the situation is radically different, because it is established that a State has no obligation to inform another State of its intention to bring proceedings before the Court.101 The applicant State has therefore a clear tactical advantage, as it can take the necessary actions with sufficient anticipation and the respondent might find itself under considerable constrains to find proper legal representation. This is especially true when the application is accompanied by a request for the indication of provisional measures.

Court of Justice and other International Tribunals in State-to-State Cases”, in R. Doak Bishop, The Art of Advocacy in International Arbitration (2004), pp. 11–38. 97  During the first amendment of the Rules of the PCIJ, the Registrar remarked that the Court had established a clear distinction between the task of the agent, who was responsible for liason between the Court and his government “and the task of an advocate whose duty it was to expound his government’s legal standpoint.” (PCIJ D 2, Add., p. 119). 98  PCIJ D 2, Add. 3, p. 817. 99  Polish Upper Silesia (Merits), Judgment No. 7, 25 May 1926, PCIJ A 7, p. 13. See also Hudson’s PCIJ, pp. 536–537; Mani’s Adjudication, pp. 69–72. 100  Hudson’s PCIJ, p. 531. 101  Cameroon v. Nigeria, Preliminary Objections, Judgment of 11 June 1998, ICJ Rep. 1998, p. 297, para. 39.

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Box # 4-10 The “closed bar” of the ICJ Although States parties have complete freedom in choosing the persons who will be in charge of their legal representation before the Court, this always comes down to a handful of well-known international lawyers who are called to perform that role, time and again.102 In 1996, a former President of the Court included some provocative comments in this regard in an address given at an informal meeting of Legal Advisers to Ministries of Foreign Affairs of members of the UN. The text was later reproduced in the Court’s Yearbook: [I] feel the following requires to be said about the choice of advocates. It in no way detracts from the great merits of those who appear before the Court to point out that maybe they belong to a rather narrow circle. Is it really right that, in a world of five billion inhabitants, a mere handful of lawyers should address the Court in case after case? Normally, a State party to a case appoints an agent of its own nationality. That is what one would expect. But for the rest, it will as often as not employ foreigners— unless it happens to be France, the United States, the United Kingdom, Italy, Belgium or Spain. So much so that the impression is created of a bar closed to all except a few leading lights. Indeed, the registry of the Court regularly receives letters from lawyers requesting to be informed as to the procedure for enrolment. Yet there is no Bar of the Court. There is not even any requirement that those who plead before it should possess a legal qualification. Everything is up to the litigant States and their choice of counsel. Now, given the importance of the issues at stake, it is doubtless understandable that Governments should seek to engage ‘horses for courses’ by hiring top international lawyers who already boast long experience of the Court and hence, it is imagined, have its ear. The high price of this option is, alas, all too likely to include the sacrifice of young national talents which are doomed to remain obscure. Certainly, there are circumstances in which the restriction of the official languages of the Court to English and French may create some difficulty, but that problem can be overcome.103 102  Sir A. Watts, “Enhancing the effectiveness of Procedures of International Dispute Settlement”, Max Planck Yearbook of United Nations Law, vol. 5 (2001), p. 28. 103  M. Bedjaoui, “The ‘Manufacture’ of Judgments at the International Court of Justice”, ICJYB (1996–1997), p. 237. See also analogous comments in Sir R, Jennings, “The Work of the International Bar”, in L. Ch. Vohrah et al. (Eds.), Man’s Inhumanity to Man, Essays

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Choice of Language A matter that States may have to consider from very early in the proceedings is the choosing of the language or languages to be used throughout the proceedings. Under Article 39 of the Statute there are three options available to States parties to cases. The first is to use indistinctly both official languages of the Court, in which case the judgment shall be delivered in both of them and the Court will determine on its own which of the two texts is authoritative. In this case, Article 51, para. 1 of the Rules lays down that any written pleading or any part of a pleading shall be submitted in one or other of the official languages. The second option is using only one of the two official languages of the Court, i.e., either English or French.104 This is subject to agreement with the other party and if this occurs the judgment (and the pertinent orders) shall be delivered in the language so agreed. The PCIJ understood this in a literal way and in those cases in which the parties agreed to use one language it rendered the judgment in only that language. The text of the decision so rendered was issued accompanied with a translation into the other language made by the Registry and sometimes “approved” by the Court.105 The practice of the present Court is different, for the judgment is always rendered in both languages, with the indication of which of the two shall be the authoritative text. In this case, the text of the judgment in that language “shall be the authoritative text,” as ordered by Article 96 of the Rules. Article 51, para. 1 of the Rules further provides that in this case the written pleadings will be submitted only in that language.106 Likewise, Article 70, para. 1 (also applicable to the situaon International Law in Honour of Antonio Cassese (2003), pp. 444–445 and L.I. Sanchez Rodríguez: “Litigation Practice before the International Court of Justice: Some Specific Problems of Developing and Small Countries”, in UN, Office of Legal Affairs, Collection of Essays by Legal Advisers of States, Legal Advisers of International Organizations and Practitioners in the Field of International Law, (1999), pp. 466–474. For the practice of the PCIJ see Hudson’s PCIJ, pp. 537–538. 104  These have been the official languages since the time of the PCIJ (for a review of the practice see Guyomar’s Commentaire, pp. 614–615). For a useful examination of the role that the question of language play within the internal workings of the Courts see A. Pellet, “Remarks on proceedings before the International Court of Justice”, LPICT, vol. 5 (2006), pp. 170–173. 105  PCIJ E 10, p. 156; PCIJ E 16, pp. 172–176. See also M. Kohen, “Article 39”, in Oxford Commentary, MN 31, p. 918. 106  At the present Court the parties have agreed to plead only in the French language in the Asylum, Burkina Faso/Mali, Benin/Niger and Burkina Faso/Niger cases. English as

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tion described under the first option) directs that all speeches and statements made and evidence given at the hearings in one of the official languages will be interpreted into the other. Finally, it is always possible to use a third language, something that has to be expressly requested by a party and authorized by the Court.107 This has important practical consequences for both the written and the oral stages of proceedings. With regard to the first, Article 51, para. 2 of the Rules provides that a translation into French or English, certified as accurate by the party submitting it, shall be attached to the original of each written pleading. As for the oral pleadings, Article 71, para. 2 states that: When speeches or statements are made in a language which is not one of the official languages of the Court, the party on behalf of which they are made shall supply to the Registry in advance a text thereof in one of the official languages, and this text shall constitute the relevant part of the verbatim record. The Permanent Court advanced the following understanding of the scope of the provision in Article 39 of the Statute concerning the use of a third language: [t]he Court decided that under Article 39 of the Statute a language other than French or English could only be used in Court with the previous consent of the Court, given in response to a request by the Party concerned. Arising out of the foregoing decision, it was however agreed (. . .) that Article 39 of the Statute only referred to the use of a language other than French or English as an official language for the whole of procedure in a particular case.108

an exclusive language was used in the Botswana/Namibia case. Noticeably, all of these cases were submitted by means of a special agreement. An application case in which English was used in the written pleadings and most of the oral arguments was Phosphates in Nauru. 107  Under Article 39 of the PCIJ Statute this was discretional for the Court. A change of wording introduced in San Francisco made sure that it is now mandatory for the Court to accede to a request by a party to be authorized to use a third language (M.O. Hudson, “The Twenty-Fourth Year of the World Court”, AJIL, vol. 40 (1946), p. 36). 108  PCIJ E 3, p. 201.

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Practice indicates that States tend to use both of the official languages and nowadays it is very rare to use a third language.109 This is connected to the fact that international lawyers engaged by States as counsel and advocates usually come from either the Anglo-Saxon or the French-continental legal professional communities but also to the sometimes sharp division that is noticeable in the Court’s bench, between English-speaking and French-speaking judges.110 In most cases, even if this is not mandatory, the written pleadings are presented in one single language, freely chosen by the party filing them, and oral argument at the hearings is delivered in either English or French, depending on the counsel or advocate delivering it. Other Decisions The fact that litigation before the ICJ is conducted as a general rule in both of the official languages of the Court is a factor that contributes to make it a very expensive process. Also, the fees charged by the members of the “closed bar” discussed above are considerably high and sometimes are well above the costs incurred in litigation before domestic courts, even in highly industrialized countries. The combination of these two factors puts a heavy financial burden on the States that come before the Court. Therefore, a State considering bringing a case or a State who learns that it will be facing a suit before the Court in the near future would do well in taking all the necessary measures in order to warrant an adequate funding of all the costs involved.

Box # 4-11 Financing the litigation: The UN Secretary-General’s Trust Fund In order to alleviate to a certain extent the financial burden for States coming to the Court and to encourage a wider recourse to judicial settlement, the Secretary-General of the United Nations established in 1989 a trust fund to provide financial assistance to States coming before the Court. The purpose of the Trust Fund is to make available financial assistance to States coming before the Court in order to defray expenses like the following: 109  The only case in which this has happened before the present Court is Barcelona Traction, in which Article 39, para. 3 of the Statute was invoked by Spain at the oral proceedings stage (ICJ Yearbook (1968–1969), p. 111). Interestingly enough, Spain had made the same request in the Borchgrave case (PCIJ E 16, pp. 174–175). For examples of the use a third language in advisory proceedings see ICJ Yearbook (1949–1950), p. 97. 110  K. Highet, “Problems in the Preparation and Presentation of a Case from the Point of View of Counsel and of the Court”, in UNITAR Colloquium I, pp. 144–145.

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– costs of agents, counsel, experts or witnesses; – staff costs; – costs of reproduction of maps, graphs and production of technical documents; – expenses incurred in connection with the written pleadings; – costs of legal research; – costs incurred in connection with the oral proceedings; and – expenses incurred in connection with the execution of a judgment of the Court.111 Originally, access to the Fund was limited to States lacking financial resources in connection with either a dispute submitted to the Court by way of a special agreement or in connection with the execution of a judgment.112 However, under its Revised Terms of Reference, adopted in 2004, the Fund can also be used in cases brought by application on the basis of either a treaty in force or the Optional Clause, provided that the case has reached the merits stage.113 A second innovation introduced by the Secretary-General in the Terms of Reference in 2004 is that applicant States may now seek to obtain, once an award is granted, an advance not to exceed 50 per cent of the amount of the awarded financial assistance to cover actual approved expenditures. The Fund is replenished with voluntary contributions. While the contributions have been slow in coming, by 30 June 2011 the Secretary-General was able to report that the total balance of the fund was $891,205.79.114

111  See T. Bien-Aime: “A Pathway to The Hague and Beyond: The United Nations Trust Fund Proposal”, New York University Journal of International Law and Politics, vol. 22 (1989–1990), pp. 671–708; P.H.F. Bekker, “International Legal Aid in Practice: The ICJ Trust Fund”, AJIL, vol. 87 (1993), pp. 659–668; C. Espósito, “Article 64”, in Oxford Commentary, MN 10–17, pp. 1602– 1604; D. Anderson, “Trusts Funds in International Litigation”, in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge Shigeru Oda, vol. 2 (2002), pp. 793–808. 112  The original Terms of Reference were included in Document A/47/444, annex. The text of the “Revised Terms of Reference, Guidelines and Rules of the Secretary-General’s Trust Fund to Assist States in the Settlement of Disputes through the International Court of Justice” can be found as an annex to UN Doc. A/59/372 of 21 September 2004. 113  This change may have been introduced in order to meet a concern voiced by the Court (ICJ Yearbook (2002–2003), p. 334). 114  For the latest developments on record concerning the Trust Fund see the Report “SecretaryGeneral’s Trust Fund to Assist States in the Settlement of Disputes through the International Court of Justice: Report of the Secretary-General” (UN Doc. A/67/494 of 4 October 2012).

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Among the developing States that have successfully applied to the fund in order to defray the expenses incurred in connection with the submission of their disputes to the Court are Benin and Niger (each of whom was awarded US$ 350,000, 00 for expenses connected to the Benin/Niger case, submitted to a chamber of the Court) and Djibouti (it was awarded $290,500,00, for expenses connected to the Mutual Assistance case).

Finally, a fourth step that the States parties to a litigation may have to consider early in the proceedings has to do with the process of choosing the person who will be called to perform the important role of judge ad hoc, in the event that the Court does not include upon the bench a judge of the nationality of the party concerned. This used to be part and parcel of the domain reserve of the States parties to cases before the Court, but with the adoption of Practice Directions VII and VIII, in February 2002, the States have now clear limits in this respect.115 Further Reading

General Works and Treatises on the Court

Bustamante’s World Court, pp. 149–150 Fachiri’s PCIJ, pp. 47–51 Guyomar’s Commentaire, pp. 174–228, 643–692 M. Kohen, “Article 39”, in Oxford Commentary, pp. 909–921 R. Kolb, “General Principles of Procedural Law”, in Oxford Commentary, pp. 871–908 P. Kooijmans, “Article 31”, in Oxford Commentary, pp. 530–542 Mani’s Adjudication, pp. 13–53 Rosenne’s Law and Practice, vol. 3, pp. 1063–1164 Rosenne’s Procedure, pp. 73–75, 79–90, 120–121, 209–224 Scerni’s La procédure, pp. 583–594 Study Group Report, pp. 27–111 Thirlway’s Law and Procedure, Part 11, BYIL, vol. 71 (2000), pp. 158–180; Part 12, BYIL, vol. 72 (2001), pp. 38–57 H. Thirlway, “Article 30”, in Oxford Commentary, pp. 516–529 UNITAR Colloquium, pp. 370–396 S. Yee, “Article 40,” in Oxford Commentary, MN 73–79, pp. 922–999 115  See Box # 4-9. For a discussion of the practical implications of these measures see Watts, “New Practice Directions. . .”, pp. 252–254.

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J.B. Acosta Estévez, El Proceso ante el Tribunal Internacional de Justicia (1995), pp. 29–40 H.H. Bachrach, “Practical Aspects of International Litigation”, in Proceedings of the American Society of International Law at its 64th Annual Meeting (1970), vol. 64, pp. 345–251 D.W. Bowett, “The Conduct of International Litigation”, in Bowett et al., The International Court of Justice: Process, Practice and Procedure (1997), pp. 1–20 C. Brown, “The Inherent Powers of International Courts and Tribunals”, BYIL, vol. 76 (2005), pp. 195–244 M.V. Coussirat-Coustere & P.M. Eisemann, “La procédure devant les jurisdictions internationales permanentes”, in Société Française pour le Droit International, Colloque de Lyon, La Juridiction internationale permanente (1987), pp. 108–165 P. Couvreur, “El Secretario de la Corte Internacional de Justicia: Estatuto y Funciones”, en C. Jiménez Piernas (Ed.), Iniciación a la Práctica en Derecho Internacional y Derecho Comunitario Europeo (2003), p. 41 L. M. Goodrich, E. Hambro & P. Simmons, Charter of the United Nations, Commentary and Documents (1969, 3rd. Rev. Ed.) R. Higgins, “Remedies and the International Court of Justice: An Introduction”, in M.D. Evans (Ed.), Remedies in International Law: The Institutional Dilemma, 1998, pp. 1–2 ———, “Respecting Sovereign States and Running a Tight Courtroom”, ICLQ, vol. 50 (2001), pp. 124–125 M. Kazazi, “Commentary on the Hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals”, LPICT, vol. 10 (2011), pp. 17–23 R. Kolb, “Les maxims juridiques en droit international public: questions historiques et théoriques”, Revue Belge du droit International, vol. 32 (1999), pp. 407–434 Sir H. Lauterpacht, “The Revision of the Statute of the International Court of Justice: with an Introduction by Sir Elihu Lauterpacht”, LPICT, vol. 1 (2002), pp. 55–128 V.S. Mani, “Audi alteram partem: journey of a principle from the realms of private procedural law to the realms of international procedural law”, Indian YIL, vol. 9 (1969), p. 391 ff. L. Millan Moro, “El Juez ‘ad hoc’ en la Corte Internacional de Justicia”, in Cursos de Derecho Internacional de Vitoria-Gasteiz (1990), pp. 213–258 D.D. Nsereko, “The International Court, impartiality and judges ad hoc”, Indian YIL, vol. 13 (1973), pp. 207 ff. A. Pellet, “Remarks on Proceedings before the International Court of Justice”, LPICT, vol. 5 (2006), pp. 163–182 P. Sands, “The ILA Hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals”, LPICT, vol. 10 (2011), pp. 6–15 Sir A. Watts, “New Practice Directions of the International Court of Justice”, LPICT, vol. 1, (2002), pp. 247–256 S. Yee, “Forum Prorogatum Returns to the ICJ”, LJIL, vol. 16 (2003), p. 70

Chapter 5

Institution of Proceedings In every case that comes before the Court it is important to distinguish among three elements that interplay, namely: i. The legal basis for jurisdiction, which is normally a provision of the Statute, but can also have its source in the practice and case law of the Court, like in the case of the forum prorogatum.1 ii. The title of jurisdiction, which is the act or set of acts in which the consent of the States that are parties to a dispute is manifested, as far as the submission of that dispute to the Court is concerned. Examples of this type of acts are a special agreement, a jurisdictional clause in a treaty, a set of declarations under the Optional Clause or a series of actions from which an unequivocal will to litigate before the Court can be inferred. iii. The form in which proceedings are instituted, which is the method used for the seisin (“saisine”) of the Court of a case (a unilateral application or the notification of a special agreement, as the case may be), thereby supplementing the title of jurisdiction. The present chapter examines this last aspect and sets out to explain the notion of seisin and to discuss the distinctive features of the two methods that States can use in order to institute proceedings before the ICJ: by means of an application and by means of a special agreement. The closing sections explores the institution of proceedings other than proceedings on the merits, i.e. incidental and derivative proceedings and the first steps taken by the Court once the litigation has started in earnest. a)

The Concept of Seisin2

In the Qatar v. Bahrain case the Court remarked that seisin is “[a] procedural step independent of the basis of jurisdiction invoked and, as such, [g]overned 1  See Chapter 2, f ). 2  See in general G. Abi-Saab, Les Exceptions préliminaries dans la procédure de la Court internationale (1967), pp. 49–54; Mani’s Adjudication, pp. 88–90; Fitzmaurice’s Law and Practice, vol. 2, pp. 440–447; P. Weil, « Compétence et saisine: un nouvel aspect du principle de la jurisdic-

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by the Statute and the Rules of Court.”3 Seisin means the act or set of acts by which a dispute is brought before the Court and contentious proceedings referring to that dispute are instituted. Once a valid act instituting proceedings has taken place, a new case is opened and a new entry is made into the Court’s General List. The Court then becomes “seised” of a case. The form of instituting proceedings is important with regard to the jurisdictional aspects of a case because there is normally a difference between a case introduced by special agreement and a case introduced by application, in that more often than not in the latter case the State named as respondent is brought before the Court against its immediate will. The pertinent element for jurisdictional purposes, however, is the finer distinction connected with the question of whether, at the time of the institution of proceedings, both parties to the dispute perceive as convenient the referral of that dispute to adjudication. If only one of the parties has this perception—as is often the case—then it has at its disposal only one method for seisin: that of filing an application against the reluctant party. This is in stark contrast to cases in which both parties have an immediate interest in submitting their dispute to the Court, in which they can choose either of the two methods: they can define by common understanding the scope of the dispute and the task of the Court, concluding a special agreement to that effect, or they can simply agree—explicitly or tacitly—that one of them will set the proceedings in motion by filing an application. There are, nonetheless, several permutations possible. For instance, there have been cases submitted by application where from the outset the two parties were in agreement as to the submission of the dispute to the Court.4 It has also happened that two States bring a case to the Court by special agreement even though this could have been done by unilateral application, given the existence at the time of a valid title of jurisdiction between them.5 Therefore, the pertinent element in every case, for jurisdictional purposes, is not the entirely formal aspect of the form of seisin—the method chosen to bring the dispute to the attention of the Court—but the substantive question whether,

tion consensuelle », in J. Makarczyk (Ed.), Theory of International Law at the Threshold of the 21st. Century: Essays in Honour of Krysztof Skubiszewski (1996), pp. 833–848; H. Ruiz Fabri & J.-M. Sorel (Eds.), La saisine des jurisdictions internationales (2006), pp. 9–97. 3  Qatar v. Bahrain, Jurisdiction and Admissibility II, Judgment of 15 Feb. 1995, ICJ Rep. 1995, p. 23, para. 43. 4  The Fisheries and Elettronica Sicula cases are just two examples chosen at random. 5  This happened in cases like Ayslum and Minquiers and Ecrehos. See H. Thirlway, “Compromis”, in Max Planck EPIL, MN 26.

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at the time of the introduction of the case, both parties had consented to the Court’s jurisdiction with respect to that dispute.6 However, there is a strong link between the concepts of jurisdiction and seisin. In the Qatar v. Bahrain case the Court underlined this, remarking that the latter may very well give rise to a jurisdictional question proper: The Court does not consider it necessary to dwell at length on the links which exist between jurisdiction and seisin. (. . .) the Court is unable to entertain a case so long as the relevant basis of jurisdiction has not been supplemented by the necessary act of seisin: from this point of view, the question of whether the Court was validly seised appears to be a question of jurisdiction. (Qatar v. Bahrain, Jurisdiction and Admissibility II, Judgment of 15 Feb. 1995, ICJ Rep. 1995, pp. 23–24, para. 43)

It follows that the act of seisin supplements the title of jurisdiction and is what makes it effective, for, as judge Shahabuddeen put it, “[t]he use of the correct method of seisin is a condition-precedent to the exercise of jurisdiction.”7 There may be a title of jurisdiction in existence but it will fail to produce effects unless and until it is activated by one of the States involved. This activation is brought about by means of the act of seisin. An element that adds considerable importance to the question of seisin is that it is settled jurisprudence that the critical date for purposes of both, a finding on jurisdiction and a determination that a suit is admissible, should be the date of institution of proceedings, i.e., in many cases the date when an application is filed by one State against the other. With regard to its jurisdiction, the Court has reaffirmed the so-called “Nottebohm principle,” to the effect that the critical date for the purposes of jurisdiction should be, in principle, that of the filing of the application.8 As a consequence, no fact occurring after that date and affecting the title of jurisdiction invoked can alter the legal situation obtaining at the date of seisin with regard to the Court’s jurisdiction. 6  This is what a commentator has called “real consent.” See T.D. Gill, Litigation Strategy at the International Court, A Case Study of the Nicaragua v. United States Dispute (1989), pp. 70–74. 7  Qatar v. Bahrain, Jurisdiction and Admissibility II, Dissenting Opinion of Judge Shahabuddeen, ICJ Rep. 1995, p. 60. 8  Nottebohm, Preliminary Objection, Judgment of 18 Nov. 1953, ICJ Rep. 1953, pp. 122–123. A forceful formulation of the principle can be found in the Right of Passage case (Preliminary Objections, Judgment of 26 Nov. 1957, ICJ Rep. 1957, p. 142).

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The Court recalls that, according to its settled jurisprudence, its jurisdiction must be determined at the time that the act instituting proceedings was filed. Thus, if the Court has jurisdiction on the date the case is referred to it, it continues to do so regardless of subsequent events. Such events might lead to a finding that an application has subsequently become moot and to a decision not to proceed to judgment on the merits, but they cannot deprive the Court of jurisdiction. (Arrest Warrant, Judgment of 14 Feb. 2002, ICJ Rep. 2002, pp. 12–13, para. 26)9

In the Genocide Convention (Croatia) case the Court amply elaborated on the rationale for this rule: In numerous cases, the Court has reiterated the general rule which it applies in this regard, namely: “the jurisdiction of the Court must normally be assessed on the date of the filing of the act instituting proceedings” (. . .) It is easy to see why this rule exists. If at the date of filing of an application all the conditions necessary for the Court to have jurisdiction were fulfilled, it would be unacceptable for that jurisdiction to cease to exist as the result of a subsequent event. In the first place, the result could be an unwarranted difference in treatment between different applicants or even with respect to the same applicant, depending on the degree of rapidity with which the Court was able to examine the cases brought before it. Further, a respondent could deliberately place itself beyond the jurisdiction of the Court by bringing about an event or act, after filing of an application, as a result of which the conditions for the jurisdiction of the Court were no longer satisfied—for example, by denouncing the treaty containing the compromissory clause. That is why the removal, after an application has been filed, of an element on which the Court’s jurisdiction is dependent does not and cannot have any retroactive effect. What is at stake is legal certainty, respect for the principle of equality and the right of a State which has properly seised the Court to see its claims decided, when it has taken all the necessary precautions to submit the act instituting proceedings in time. Conversely, it must be emphasized 9  See also Obligation to Prosecute or Extradite, Provisional Measures, Order of 28 May 2009, ICJ Rep. 2009, p. 148, para. 46. The Court revisited this question at the merits phase in the same case ( Judgment of 20 July 2012, paras. 44–55). For a comment see Bordin’s Procedural Developments, LPICT, vol. 12 (2013), pp. 85–90. On the concept of mootness see in general Prager’s Procedural Developments, LPICT, vol. 1 (2002), pp. 410–411.

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that a State which decides to bring proceedings before the Court should carefully ascertain that all the requisite conditions for the jurisdiction of the Court have been met at the time proceedings are instituted. If this is not done and regardless of whether these conditions later come to be fulfilled, the Court must in principle decide the question of jurisdiction on the basis of the conditions that existed at the time of the institution of the proceedings. (Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, pp. 437–438, paras. 79–80)10

The principle is also applicable to the admissibility of an application, as distinct from the jurisdiction of the Court. The Court has stated that “under settled jurisprudence, the critical date for determining the admissibility of an application is the date on which it is filed.”11 Furthermore, the date of the institution of proceedings is also the critical date for the admissibility of a claim, as distinct from the admissibility of the entire application.12 However, it is generally accepted that events subsequent to the date of institution of proceedings may also be of relevance and may even render the application without object. The critical date for determining the admissibility of an application is the date on which it is filed (. . .). It may however be necessary, in order to determine with certainty what the situation was at the date of filing of the Application, to examine the events, and in particular the relations between the Parties, over a period prior to that date, and indeed during 10  The Court also stressed that the rule applies irrespective of the title of jurisdiction invoked (Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 445, para. 95). 11  Arrest Warrant, Merits, Judgment of 14 Feb. 2002, ICJ Rep. 2002, pp. 14–15, 17. See also Lockerbie, Preliminary Objections, Judgments of 27 Feb. 1998, ICJ Rep. 1998, p. 26, para. 44 and p. 130, para. 43; Request for Interpretation, Cameroon v. Nigeria, Preliminary Objections, Judgment of 25 March 1999, ICJ Rep. 1999, p. 38, para. 15). Per contra, see the view of judge Schwebel, who remarked that under customary law the crucial date for determining the admissibility of a claim is not the date of seisin but the date on which the decision is made (Lockerbie, Preliminary Objections, Dissenting Opinion of President Schwebel, ICJ Rep. 1998, pp. 69–70 and 160–161). 12  Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment of 20 Dec. 1988, ICJ Rep. 1988, pp. 95, 100, para. 79. On the critical date for the admissibility of a claim, see further the dissenting opinion of Vice-President Weeramantry in the Request for Interpretation, Cameroon v. Nigeria, Preliminary Objections case (ICJ Rep. 1999, pp. 46–47).

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the subsequent period. Furthermore, subsequent events may render an application without object, or even take such a course as to preclude the filing of a later application in similar terms.

(Armed Actions, Jurisdiction and Admissibility, Judgment of 20 Dec. 1988, ICJ Rep. 1988, p. 95, para. 66)

The Court has already affirmed on a number of occasions that events occurring subsequent to the filing of an application may render the application without object such that the Court is not called upon to give a decision thereon (. . .). (Arrest Warrant, Merits, Judgment of 14 Feb. 2002, ICJ Rep. 2002, pp. 14–15, para. 32)

Box # 5-1 The date of seisin as the “critical date” for purposes of jurisdiction: Departures In recent times the Court has relaxed considerably the application of this principle in concrete cases—apparently endorsing as a critical date the date when the Court decides on its jurisdiction. This has been done under the pretext that a procedural defect can be easily remedied after the Court has been seised of a case. In the first instance that this happened, at the preliminary objections phase of the Genocide Convention (Bosnia) case, the Court relied heavily in its caselaw—and that of the Permanent Court—concerning the flexibility that prevails in its practice and procedure on matters of form. From here, the Court went on to admit that a fact subsequent to the filing of the application instituting proceedings was capable of perfecting a title of jurisdiction that was not in existence on that date: It is the case that the jurisdiction of the Court must normally be assessed on the date of the filing of the act instituting proceedings. However, the Court, like its predecessor, the Permanent Court of International Justice, has always had recourse to the principle according to which it should not penalize a defect in a procedural act which the applicant could easily remedy. (. . .) [The Court recalls here passages from the decisions in Mavrommatis, Polish Upper Silesia, Northern Cameroons and Nicaragua] In the present case, even if it were established that the Parties, each of which was bound by the Convention when the Application was filed [on

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20 March 1993], had only been bound as between themselves with effect from 14 December 1995, the Court could not set aside its jurisdiction on this basis, inasmuch as Bosnia and Herzegovina might at any time file a new application, identical to the present one, which would be unassailable in this respect. (Genocide Convention (Bosnia), Preliminary Objections, Judgment of 11 July 1996, ICJ Rep. 1996, p. 613, para. 26)

Secondly, in the case of the same name between Croatia and Serbia, the Court resorted to essentially the same methodology in order to resolve a question related to access. This time, however, the Court found it necessary to reason more carefully its chosen departure from the rule concerning the critical date, on the basis of concerns of judicial economy and the requirements of the sound administration of justice in the case at hand: 78. This brings the Court to address an issue of particular importance in the present case: whether fulfilment of the conditions laid down in Article 35 of the Statute must be assessed solely as of the date of filing of the Application, or whether it can be assessed, at least under the specific circumstances of the present case, at a subsequent date, more precisely at a date after 1 November 2000. [The Court recalls here its case law concerning the rule that the jurisdiction must be assessed at the date of seisin] (. . .) 81. However, it is to be recalled that the Court, like its predecessor, has also shown realism and flexibility in certain situations in which the conditions governing the Court’s jurisdiction were not fully satisfied when proceedings were initiated but were subsequently satisfied, before the Court ruled on its jurisdiction. (. . .) [Here the Court reviews the case law quoted above] 85. The Court observes that (. . .) given the logic underlying the cited jurisprudence of the Court deriving from the 1924 Judgment in the Mavrommatis Palestine Concessions case, it does not matter whether it is the applicant or the respondent that does not fulfil the conditions for the Court’s jurisdiction, or both of them—as is the situation where the compromissory clause invoked as the basis for jurisdiction only enters into force after the proceedings have been instituted. The Court sees no convincing reason why an applicant’s deficiency might be overcome in the

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course of proceedings, while that of a respondent may not. What matters is that, at the latest by the date when the Court decides on its jurisdiction, the applicant must be entitled, if it so wishes, to bring fresh proceedings in which the initially unmet condition would be fulfilled. In such a situation, it is not in the interests of the sound administration of justice to compel the applicant to begin the proceedings anew—or to initiate fresh proceedings—and it is preferable, except in special circumstances, to conclude that the condition has, from that point on, been fulfilled. (. . .) 87. More importantly, the Court cannot accept Serbia’s argument that when the defect is that one party does not have access to the Court, it is so fatal that it can in no case be cured by a subsequent event in the course of the proceedings, for example when that party acquires the status of party to the Statute of the Court which it initially lacked. As stated above, the question of access is clearly distinct from those relating to the examination of jurisdiction in the narrow sense. But it is nevertheless closely related to jurisdiction, inasmuch as the consequence is exactly the same whether it is the conditions of access or the conditions of jurisdiction ratione materiae or ratione temporis which are unmet: the Court lacks jurisdiction to entertain the case. It is always within the context of an objection to jurisdiction, as in the present case, that arguments will be raised before the Court regarding the parties’ capacity to participate in the proceedings. That being so, it is not apparent why the arguments based on the sound administration of justice which underpin the Mavrommatis case jurisprudence cannot also have a bearing in a case such as the present one. It would not be in the interests of justice to oblige the Applicant, if it wishes to pursue its claims, to initiate fresh proceedings. In this respect it is of no importance which condition was unmet at the date the proceedings were instituted, and thereby prevented the Court at that time from exercising its jurisdiction, once it has been fulfilled subsequently. 88. It is true that the Court apparently did not take account in its 2004 Judgments of the fact that Serbia and Montenegro had by that date become a party to the Statute: indeed, the Court found that it lacked jurisdiction on the sole ground that the Applicant did not have access to the Court in 1999, when the Applications were filed, without taking its reasoning any further. 89. But if the Court abided in those cases strictly by the general rule that its jurisdiction is to be assessed at the date of filing of the act

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i­ nstituting proceedings, without adopting the more flexible approach following from the other decisions cited above, that is justified by particular considerations relevant to those cases. (. . .) it is concern for judicial economy, an element of the requirements of the sound administration of justice, which justifies application of the jurisprudence deriving from the Mavrommatis Judgment in appropriate cases. The purpose of this jurisprudence is to prevent the needless proliferation of proceedings. No such consideration obtained in 2004 to justify the Court departing at that time from the principle holding that its jurisdiction must be established at the date of filing of the applications. Indeed, Serbia and Montenegro took care not to ask the Court to do so; while Croatia is asking the Court to apply the jurisprudence of the Mavrommatis case to the present case, no such request was made, or could logically have been made, by the Applicant in 2004. (Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Reports 2008, pp. 437–443)

This use of the Mavrommatis precedent with regard to the question of access was heavily criticized by several judges.13

b)

Methods for Instituting Proceedings

Article 40 of the Statute governs the way in which a case is to be brought before the Court and thus refers to one of the most important stages in the judicial procedure.14 It states that cases are brought to the Court either by the notification of a special agreement or by a written application addressed to the Registrar, the latter being the method most favored by States resorting to the Court. These “modes of approach to the Court” or “particular modalities of seisin”15 receive 13  See Separate Opinion of Vice-President Al-Khasawneh (ICJ Rep. 2008, pp. 469–470); Joint Declaration of Judges Ranjeva, Shi, Koroma and Parra Aranguren (ibid., pp. 475– 476, paras. 6–9); Dissenting Opinion of Judge Ranjeva, ibid., pp. 483, paras. 3–4 and pp. 491–494, paras. 27–36; Dissenting Opinion of Judge Owada, pp. 499–504, paras. 8–14; Separate Opinion of Judge Abraham, ibid., pp. 540–542, paras. 50–56; Declaration of Judge Bennouna, ibid., pp. 543–545; Dissenting Opinion of Judge Skotnikov, ibid., p. 546, para. 1. See also Muller’s Procedural Developments, LPICT, vol. 8 (2009), pp. 482–483 14  H. Kelsen, The Law of the United Nations (1950), p. 536. 15  Both expressions were used by the Court at the jurisdiction and admissibility phase of the Qatar v. Bahrain case. The first in the judgment of 1 July 1994 (ICJ Rep. 1994, p. 124, para. 34)

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a separate treatment in the Rules: reversing the order in which they appear in Article 40, Article 38 of the Rules deals first with the institution of proceedings by means of an application, and Article 39 refers then to the notification of a special agreement. According to the Court, when either of these provisions becomes applicable, “[b]oth Parties are bound by the procedural consequences which the Statute and the Rules make applicable to the method of seisin employed.”16 An important difference between the two—already mentioned in the chapter dealing with the title of jurisdiction—is that while the application is a purely procedural document that in itself can never be an instrument creative of jurisdiction, the case of the special agreement is different. In effect, a special agreement is often called to simultaneously play two roles, namely, that of furnishing the Court with a valid title of jurisdiction (the agreement enshrined in its provisions) and that of being the procedural vehicle to bring the actual proceedings before the Court. Nevertheless, in the unlikely event that two States file simultaneous applications against each other concerning essentially the same matter, it would be possible for the Court to consider that, for procedural purposes, the method of seisin is actually that of a special agreement and proceed accordingly, as the PCIJ actually did in the South-Eastern Greenland case.17 A second difference between an application and a special agreement is that while the Rules contain detailed provisions on what the contents of the former must be, they are silent as to the contents of the latter, which is of course in deference to the will of the parties, as it is expressed in the text of special agreement. During the discussions concerning the revision of the Rules of the PCIJ judge Anzilotti explained that as regards the institution of proceedings by special agreement the Rules “had nothing to add to the Statute,” but that in the case of unilateral applications “the Court had to consider safeguards for the other Party, and for that reason must lay down what the application must contain.”18 In any event, as explained above, in both cases the act of seisin—the notification of a special agreement or the filing of an application, as the case may be— supplements the title of jurisdiction and produces the effect of activating the and the second in the subsequent judgment of 15 February 1995 (ICJ Rep. 1995, p. 16, para. 27). 16  Ibid., p. 24, para. 43 in fine. 17  South-Eastern Greenland, Order of 2 August 1932, PCIJ A/B 48, p. 270. Since the Registry had made separate entries in the General List, the Court’s order embodies also a formal joinder of the two suits. But note that this decision was a purely procedural one, with no implications upon the jurisdiction of the Court, which in this case was based in the Optional Clause declarations made by both parties. 18  PCIJ D 2, Add. 4, p. 95.

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jurisdiction of the Court. As the Court stated in the Nottebohm case: “Once the Court has been regularly seised, the Court must exercise its powers, as these are defined in the Statute”.19 Also of note is the fact that when the method chosen is the filing of an application there will be from the very beginning a plaintiff, or “Applicant State” and a defendant, or “Respondent State”, which in the official name to be given to the case will appear in that order separated by the initial “v.” (versus). This however is a formal designation with implications of an exclusively procedural character and has no relevance with regard to questions of jurisdiction and much less with matters of evidence and the burden of proof. In this regard, in the Nicaragua case the Court took note of the fact that “[t]he Court’s jurisdiction in regard to a particular State does not depend on whether that State is in the position of an Applicant or a Respondent in the proceedings.”20 Additionally, the Court has taken note of a case in which a State who was the respondent from a formal standpoint had to be considered also as a claimant, because of a substantive claim it presented in its Counter-Memorial.21 In the case brought to the Court by special agreement both States stand in the same procedural position, simply as “parties to the case”. The Permanent Court remarked that in these cases the two parties are to be “[h]eld to be simultaneously in the position of Applicant and Respondent.”22 Consequently, their names will appear in the title of the case in alphabetical order and separated by the convention “/”.23 Using one or other method for the institution of proceedings may also be of relevance with regard to the termination of the case, when this is brought about by discontinuance. In effect, under Articles 88 and 89 of the Rules in a case submitted by special agreement any discontinuance has to take place also by mutual agreement of the parties (under the conditions set out in Article 88), while in cases submitted by application the discontinuance can take place either by mutual agreement or by unilateral action (under Article 89). The option of unilateral discontinuance is then simply not open when the case is submitted by special agreement.24 19  Nottebohm (Preliminary Objection), Judgment of 18 Nov. 1953, ICJ Rep. 1953, p. 122. 20  Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 410, para. 39. 21  Temple of Preah Vihear, Merits, Judgment of 15 June 1962, ICJ Rep. 1962, pp. 15–16. 22  South Eastern Greenland, Order of 2 August 1932, PCIJ A/B 48, p. 270. 23  On the naming of cases see f ) below. 24  For details see Chapter 9, b).

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Box # 5-2 State authority to seise the Court Although it is not usual, it may happen that a State challenges the authority upon which proceedings were instituted against it. The situation arose in the Genocide Convention (Bosnia) case, in which the respondent contended that the person who had appointed an agent and authorized the initiation of proceedings, Mr. Alija Izetbegovic, was not serving as President of Bosnia-Herzegovina and on this basis objected to the indication of provisional measures requested by that State and challenged the admissibility of the application. At the provisional measures phase the Court rejected these allegations and made reference to the treatment of the Bosnian Government by the United Nations and to the powers recognized to Heads of State by international law: (. . .) in the written observations referred to in paragraph 9 above, Yugoslavia made what it termed “a preliminary objection with regard to the legitimacy of the Applicant”, claiming that neither the President of the Republic of Bosnia and Herzegovina, Mr. A. Izetbegovic, who appointed the Agents of that State and authorized the institution of the present proceedings, nor the Government of the Republic of Bosnia and Herzegovina, are legally elected; . . . Yugoslavia claims that the legitimacy and mandate of the Government and the President of the Republic of Bosnia and Herzegovina are disputed not only by representatives of the Serb people but also by representatives of the Croat people, and furthermore that the mandate of Mr. Izetbegovic expired on 20 December 1992, and was challenged on this ground by the Prime Minister of Bosnia-Herzegovina in a letter to the Chairman of the European Affairs Subcommittee of the United States Senate Foreign Relations Committee dated 24 February 1993, circulated, at the request of the Prime Minister of Bosnia-Herzegovina, by the Secretary-General of the United Nations as a document of the General Assembly and of the Security Council; (. . .) the Agent of Bosnia-Herzegovina stated that President Izetbegovic is recognized by the United Nations as the legitimate Head of State of the Republic of Bosnia and Herzegovina; . . . the Court has been seised of the case on the authority of a Head of State, treated as such in the United Nations; . . . the power of a Head of State to act on behalf of the State in its international relations is universally recognized, and reflected in, for example, Article 7, paragraph 2 (a), of the Vienna Convention on

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the Law of Treaties; . . . accordingly the Court may, for the purposes of the present proceedings on a request for provisional measures, accept the seisin as the act of that State; (Genocide Convention (Bosnia), Provisional Measures I, Order of 8 April 1993, ICJ Rep. 1993, p. 11, paras. 12–13)

At the preliminary objections phase in the same case, the Court revisited the matter and insisted upon the fact that the individual authorizing the act of seisin was recognized by the international community as the Head of State and as such was entitled to bind his State in the international plane: According to the second objection of Yugoslavia, the Application is inadmissible because, as Mr. Alija Izetbegovic was not serving as President of the Republic—but only as President of the Presidency—at the time at which he granted the authorization to initiate proceedings, that authorization was granted in violation of certain rules of domestic law of fundamental significance. Yugoslavia likewise contended that Mr. Izetbegovic was not even acting legally at that time as President of the Presidency. The Court does not, in order to rule on that objection, have to consider the provisions of domestic law which were invoked in the course of the proceedings either in support of or in opposition to that objection. According to international law, there is no doubt that every Head of State is presumed to be able to act on behalf of the State in its international relations (see for example the Vienna Convention on the Law of Treaties, Art. 7, para. 2 (a)). As the Court found in its Order of 8 April 1993 (. . .), at the time of the filing of the Application, Mr. Izetbegovic was recognized, in particular by the United Nations, as the Head of State of Bosnia and Herzegovina. Moreover, his status as Head of State continued subsequently to be recognized in many international bodies and several international agreements—including the Dayton-Paris Agreement–bear his signature. It follows that the second preliminary objection of Yugoslavia must also be rejected. (Genocide Convention (Bosnia), Preliminary Objections, Judgment of 11 July 1996, ICJ Rep. 1996, p. 622, para. 44)

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Instituting Proceedings by Way of an Application

In the Northern Cameroons case the Court underlined the significance that the right to institute proceedings by means of an application has for a State. It also remarked that the exercise of this right has no implications with regard to the jurisdiction of the Court: This procedural right to apply to the Court, where, whatever the outcome, all aspects of a matter can be discussed in the objective atmosphere of a court of justice, is by no means insubstantial. The filing of an application instituting proceedings, however, does not prejudge the action which the Court may take to deal with the case. (Northern Cameroons, Preliminary Objections, Judgment of 2 Dec. 1963, ICJ Rep. 1963, p. 29)

Contrary to what may be thought, the institution of proceedings by unilateral application is not reserved for cases of compulsory jurisdiction, in which there is in existence an ante hoc title of jurisdiction. In most cases, this is what happens and the application indicates the treaty provisions or the Optional Clause declarations upon which the Court’s jurisdiction is said to be based. But in a case submitted on the basis of an ad hoc title of jurisdiction it might occur that the parties to the special agreement decide that one of them will institute proceedings by means of an application to be deposited at a later stage. Likewise, in the case of a post hoc title of jurisdiction, founded on forum prorogatum, the application itself plays the role of an invitation or an offer to litigate, which the State named as respondent is free to accept or deny.

Box # 5-3 Irregular filing of an application as grounds for inadmissibility If the formalities concerning the filing of an application present in the Statute and the Rules are not observed by the applicant State this might give rise to what the Court has called “an objection directed against the admissibility of the application founded on the alleged procedural irregularity of that instrument.” (Corfu Channel, Preliminary Objection, Judgment of 25 March 1948, ICJ Rep. 1948, p. 27).25 This avenue was tried by Albania in the Corfu Channel case, the first

25  See in general G. Salvioli, “Problèmes de procédure dans la jurisprudence internationale”, RC, vol. vol. 91 (1957-I), pp. 557–559.

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contentious case to come before the present Court, but was not upheld on the grounds that, by a separate act (a letter sent to the Court in response to the filing of the application by the United Kingdom), Albania had consented to its jurisdiction and, in doing so, had waived its right to raise any such objection to the admissibility of the application. The Court’s decision is of interest in the present context because it clarifies that the method of submitting an application is not reserved for the domain of compulsory jurisdiction and can be used by a State to “invite” another State, with which it does not have a valid jurisdictional link at the time of seisin, to come before the Court on the basis of a post hoc title of jurisdiction ( forum prorogatum). In addition, the Court clarified that Article 36 of the Statute refers only to matters of jurisdiction and that the separate question of seisin is governed exclusively by the provisions of Article 40. (. . .) the Albanian Government, while declaring on the one hand that it “would be within its rights in holding that the Government of the United Kingdom was not entitled to bring the case before the International Court by unilateral application, without first concluding a special agreement with the Albanian Government,” states on the other hand, that “it is prepared notwithstanding this irregularity in the action taken by the Government of the United Kingdom, to appear before the Court.” This language used by the Albanian Government cannot be understood otherwise than as a waiver of the right subsequently to raise an objection directed against the admissibility of the Application founded on the alleged procedural irregularity of that instrument. (. . .) The Albanian contention that the Application cannot be entertained because it has been filed contrary to the provisions of Article 40, paragraph 1, and of Article 36, paragraph 1, of the Court’s Statute, is essentially founded on the assumption that the institution of proceedings by application is only possible where compulsory jurisdiction exists and that, where it does not, proceedings can only be instituted by special agreement. This is a mere assertion which is not justified by either of the texts cited. Article 32, paragraph 2, of the Rules26 does not require the Applicant, as an absolute necessity, but only “as far as possible,” to specify in the application the provision on which he founds the jurisdiction of the Court. It clearly implies, both by its actual terms and by the reasons underlying

26  This corresponds to Article 38, para. 2 of the current Rules.

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it, that the institution of proceedings by application is not exclusively reserved for the domain of compulsory jurisdiction. In submitting the case by means of an Application, the Government of the United Kingdom gave the Albanian Government the opportunity of accepting the jurisdiction of the Court. This acceptance was given in the Albanian Government’s letter of July and, 1947. Besides, separate action of this kind was in keeping with the respective positions of the parties in proceedings where there is in fact a claimant, the United Kingdom, and a defendant, Albania. (Corfu Channel, Preliminary Objection, Judgment of 25 March 1948, ICJ Rep. 1948, pp. 27–28)

Filing of the Application27 Article 38 of the Rules—a provision that, together with Article 40, para. 1 of the Statute, is for the Court “[e]ssential from the point of view of legal security and the good administration of justice”—28 establishes the procedure for the institution of proceedings by means of an application. The application is addressed to the Registrar and should be presented in an original copy signed either by the agent of the party submitting it (who, under Article 42, para. 1 of the Statute, represents that Party before the Court for all purposes); by a diplomatic representative of that State in The Hague; or “by some other duly authorized person” (such as a high official at the Ministry of Foreign Affairs). It is important to note that in the first and the third case the signature must always be authenticated by the State’s diplomatic representative to The Netherlands or by a competent authority of the said Ministry.29 Contents of the Application In contrast with the situation current in certain domestic legal systems, an Application Instituting Proceedings before the ICJ is a very brief and concise document whose only purpose is to seise the Court of the case and to bring 27  In the French version of the Statute this document is called “requête”. In the Spanish version the word “solicitud” is used, but a more precise term would be “demanda.” 28  Phosphates in Nauru, Preliminary Objections, Judgment of 26 June 1992, ICJ Rep. 1992, pp. 266–267, para. 69. 29  All the same, Hudson expressed the view that, with regard to the agent’s signature, this provision was inadequate, for “once an agent is duly appointed his signature should need no legalization.” (Hudson’s PCIJ, p. 533, note 55).

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before it a claim or a set of claims. It is clearly distinguished from the first substantive pleading to be submitted in writing—the Memorial—because by its own nature it contains no evidence and includes only a rough sketch of the legal arguments supporting the claims to be developed in the course of the subsequent proceedings. In the beginnings of the Permanent Court there were proposals directed at assimilating or even combining these two documents but they were rejected, not only because the Statute itself treats them separately but also because it would be unrealistic to require from an applicant State that it lays down before the Court all the argument and evidence that will constitute its case as early as the date when the proceedings are instituted.30 Up to the 1978 reform, the Rules contained a sentence in paragraph 2 of Article 38 according to which the facts and grounds stated succinctly in the application would be developed in the Memorial, to which the evidence would be annexed.31 Although this was deleted because the sentence in question was considered redundant,32 it is useful to recall that the reason for the inclusion of that provision in the 1936 Rules was to maintain the size of the applications within reasonable limits, giving that the cost of translating, printing and distributing them is assumed by the Court. In the Prince von Pless case Germany filed an application containing 15 annexes and running to some 120 pages and when the Rules were revised in 1934–1936 care was taken to insert a provision directed at forestalling such procedure.33 It is clear, then, that despite the silence of current Article 38 in this regard, the Memorial and subsequent pleadings are supposed to develop the conclusions as to the facts and the contentions as to the law summarily stated in the application.34 According to Article 38, paras. 1 and 2, of the Rules of Court the application shall indicate five separate aspects, namely:

30  Guyomar’s Commentaire, p. 294. See specially PCIJ D 2, Add., p. 95. 31  1936/1946 Rules, Article 32, para. 2; 1972 Rules, Article 35, para. 2. 32  Rosenne’s Procedure, p. 92; Guyomar’s Commentaire, p. 239. 33  Hudson’s PCIJ, p. 541, note 15; PCIJ D 2, Add. 3, p. 766. 34  All the same, litigant States do not always abide strictly by these rules. In the Diallo case, for example, the application by Guinea included as an annex a document entitled “Memorial of the Republic of Guinea,” and containing a detailed account of facts and legal arguments. In its judgment the Court registered that the application had two parts and that the second of these (the “Memorial”) “set out the facts underlying the dispute, expanded on the legal grounds put forward by Guinea and stated Guinea’s claims.” (Diallo, Merits, Judgment of 30 Nov. 2010, ICJ Rep. 2010, p. 645, para. 1).

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(i) The party making the application (para. 1); (ii) The State against which the claim is brought (para. 1); (iii) The subject of the dispute (para. 2); (iv) The precise nature of the claim (“la nature précise de la demande”) (para. 2);35 and, (v) A succinct statement of the facts and grounds on which the claim is based (para. 2).36 Interestingly, the Rules do not require that the application contains formal submissions or that documents in support are annexed to it, as they do with regard to the written pleadings (Articles 49 and 50).37 Despite this, when stating “the precise nature of the claim,” States often include submissions in the closing section of the application and it is also common practice to append as annexes carefully selected documents.38 There are several aspects concerning the interpretation of Article 38 on which the Court has had occasion to shed some light. The first is that it is now clear that the words “as far as possible” in paragraph 2 do not apply to the statement of “the precise nature of the claim” or of “the facts and grounds on which the claim is based,” two elements that now must be specified in the text of every application, along with the identification of the parties and the subject of the dispute. As the Court put it in the Mutual Assistance case, “No applicant may come to the Court without being able to indicate, in its Application, the State against which the claim is brought and the subject of the dispute, as well as the precise nature of that claim and the facts and grounds on which it is based.”39 Secondly, both Article 40, para. 1 of the Statute and Article 38, para. 1 of the Rules require the parties to the case to be clearly identified in the text of the application and the latter is very clear in that this document shall indicate both “the party making it” and “the State against which the claim is brought.” In 35  In article 35 of the 1922 Rules of the PCIJ the expression used in English to refer to this was “an indication of the claim,” rendered into French as “la designation de la chose demandée.” The expression “the precise nature of the claim” (“l’indication précise de l’object de demande”) was added in 1936 (Article 32). 36  Only the first three elements are mentioned in Article 40, para. 1 of the Statute. Elements four and five are additions made by the Court in exercise of its rule-making power. 37  For reasons connected to the eventual rising of preliminary objections, the PCIJ considered that a claimant party should not be constrained to formulate its submissions “in a more or less final manner” as early as in the application (PCIJ D 2, Add. 3, p. 818). 38  For authority on this see PCIJ D 2, Add. 3, p. 74; Factory at Chorzów, Merits, Judgment of 13 Sept. 1928, PCIJ A 17, p. 17. See also Guyomar’s Commentaire, p. 309. 39  Mutual Assistance, Judgment of 4 June 2008, ICJ Rep. 2008, p. 206, para. 64.

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ordinary circumstances this is one of the less problematic aspects of an application, but there have been cases in which it has given rise to difficulties. In the US Citizens in Morocco case, for instance, the United States, acting as respondent, filed a preliminary objection on the ground that the application by France was defective because it failed to specify whether France was acting in its own right, or as a Protecting Power of Morocco, or on behalf of Morocco, thus breaching the requirements of then Article 32, para. 2 of the Rules. After France had submitted its written observations on the preliminary objections filed by the United States, the Court requested the French Agent “to clarify the capacity in which the French Republic was proceeding in that case, and, in particular, to specify whether it was appearing both on its own account and as Protecting Power in Morocco.” In its reply France stated straightforwardly that “[t]he Government of the French Republic was prepared, in order to dispel the doubts remaining in the mind of the Government of the United States of America, to supplement its observations and submissions in regard to the objection by specifying that the French Republic was proceeding in the case both on its own account and as Protecting Power in Morocco, the judgment of the Court to be binding upon France and Morocco.” When the US received a copy of this letter it decided to withdraw its preliminary objection and the proceedings on the merits were resumed. The Court issued an order recording the formal discontinuance of the proceedings on the preliminary objection raised.40 More recently, in the Genocide Convention (Bosnia) case the application was directed against the State of Serbia and Montenegro and when the merits phase was reached that State had split into two sovereign States, with the result that the Court had to make a finding on what it called the “identification of the respondent party.” The Court noted that, while Serbia had accepted full continuity between Serbia and Montenegro and the Republic of Serbia and had assumed responsibility for its commitments deriving from international treaties concluded by Serbia and Montenegro, Montenegro did not claim to be the continuator of Serbia and Montenegro. It also recalled that Montenegro did not continue the legal personality of Serbia and Montenegro and, therefore, it could not “have acquired, on that basis, the status of Respondent in the present case.”41 It was also clear from the facts of the case that Montenegro did not give its consent to the jurisdiction of the Court for the purposes of the dispute. On the basis of all this, the Court concluded that the Republic of Serbia remained 40  US Nationals in Morocco, Order of 31 Oct. 1951, ICJ Rep. 1951, p. 110. 41  Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 76, para. 76.

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a respondent in the case, and at the date of the judgment on the merits was “indeed the only Respondent.”42 Essentially the same situation occurred some years later in the case with the same name involving Croatia as an applicant and, again, Serbia and Montenegro/Serbia as respondent, and the response by the Court was identical.43 Thirdly, the Court has explained the precise scope of the term “succinct” in paragraph 2 of Article 38, remarking that in order to satisfy this requirement all that an application has to contain is “a sufficiently precise statement of the facts and grounds on which the Applicant bases its claim.”44 It also noted that, in any case, any defect in an application’s rendering of the facts and grounds on which the claim is based would work to the detriment to the applicant itself: (. . .) The Court notes that “succinct”, in the ordinary meaning to be given to this term, does not mean “complete” and neither the context in which the term is used in Article 38, paragraph 2, of the Rules of Court nor the object and purpose of that provision indicate that it should be interpreted in that way. Article 38, paragraph 2, does therefore not preclude later additions to the statement of the facts and grounds on which a claim is based. (. . .) Lastly, the Court cannot agree that the lack of sufficient clarity and completeness in Cameroon’s Application and its inadequate character, as perceived by Nigeria, make it impossible for Nigeria to respond effectively to the allegations which have been presented or makes it impossible for the Court ultimately to make a fair and effective determination in the light of the arguments and the evidence then before it. It is the applicant which must bear the consequences of an application that gives an inadequate rendering of the facts and grounds on which the claim is based (. . .). (Cameroon v. Nigeria, Preliminary Objections, Judgment of 11 June 1998, ICJ Rep. 1998, pp. 318–319, paras. 98, 101)

42  Ibid., p. 76, para. 77. 43  Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, pp. 422–423, paras. 29–33. 44  Cameroon v. Nigeria, Preliminary Objections, Judgment of 11 June 1998, ICJ Rep. 1998, p. 319, para. 100.

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Box # 5-4 The subject of a claim and the cause of a claim In certain legal systems a distinction is made between the subject-matter of a claim and its cause. Taking as a point of departure that paragraph 2 of Article 38 of the Rules requires explicitly that an application mentions the facts and grounds on which the claim is based, judge Ranjeva included an interesting digression concerning the concept of “cause” in a declaration appended to the judgment of the Court in the Oil Platforms case, in which there was some discussion concerning the order in which the Court handled different aspects of the case.45 The relevant passages read as follows: 5. I would have preferred to adopt a different procedural approach from that of the Court in this dispute in order to arrive at the same solutions. Inasmuch as this approach departs from the traditional ones, it does not justify an opinion. It is based on an analysis of the substance of the claim or matter in dispute. It consists of two essential elements: the subjectmatter (quid) and the “cause” (cur); those elements are essential in order to determine and characterize the substance of a dispute, even though it may be difficult precisely to define their respective content. 6. Defining the “cause” of a claim—the underlying reason therefor—is a controversial issue in doctrine because of the notion’s malleable character and metaphysical connotations. Article 40 of the Statute confines itself to requiring that the elements to be indicated in the application instituting proceedings shall include the subject-matter of the claim. However, in Article 38, paragraph 2, of the Rules there is a fleeting reference to the notion of “cause”: the application “shall also specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based” (emphasis added). Under the Rules, the applicant is required to set out the factual and legal bases of its claim. This drafting device simply transposes the problem without resolving it. Thus the issue of “cause” is bound up with that of the compatibility of the consensual basis of the Court’s jurisdiction with the principle jura novit curia. It would be inappropriate here to enlarge upon the doctrinal controversy regarding the difficulty of distinguishing between subject-matter and “cause” and determining the latter’s constituent elements, as these are issues not directly dealt with in the Judgment.

45  On this see Chapter 10, c).

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7. The notion of “cause” poses a dual difficulty: that of the extent of the Court’s power to determine the rule of law to be applied to the dispute submitted to it, and that of how it determines the rules and methods which appear to it to be the most appropriate. Irrespective of forensic strategy and pleading techniques, the Court must not debar itself from ascertaining the true intention of each Party. In paragraphs 32 and 37, the Judgment was at pains to note the position of the respondent Party, which effectively left it to the Court to determine how it should address the connection between Article X, paragraph 1, the basis of its jurisdiction, and Article XX, paragraph 1 (d), which is the underlying “cause” in terms of the applicable law as well as of the claim. I can only regret that the Court failed to take the opportunity to find a practical, empirical solution to a delicate problem and to provide a more convincing justification for the order in which it decided to address the issues. (Oil Platforms, Merits, Declaration of Vice-President Ranjeva, ICJ Rep 2003, pp. 221–222, paras. 5–7)

The Reference to the Title of Jurisdiction in the Application Paragraph 2 of Article 38 also establishes that the application shall specify “as far as possible” the legal ground upon which the jurisdiction of the Court is said to be based, i.e., the legal basis for the Court’s jurisdiction. From a jurisdictional point of view, the presence of the words “as far as possible” in this provision opens the door to the application of the doctrine of forum prorogatum, as discussed in a previous chapter.46 It may also allow an application that lacks precision with regard to the title of jurisdiction to proceed, leading to the opening of judicial proceedings, in the course of which it will be for the Court to “ascertain in each case whether it has jurisdiction”.47 In any case, paragraph 2 must be read together with paragraph 5 of the same Article, which refers to the procedure to be followed when “[t]he applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made.” A distinction should thus be made between a case in which the application fails to disclose that the State against which it is made has consented to the Court’s jurisdiction, and a case in which the application acknowledges that no 46  Chapter 2, f ). 47  Arrest Warrant, Provisional Measures, Order of 8 Dec. 2000, ICJ Rep. 2000, pp. 198–200, paras. 61–64.

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such consent has yet been given. Paragraph 5 of Article 38 is applicable only in the latter case and in the former it will be for the State named as respondent to bring to the Court’s attention any arguments it may have concerning lack of consent, through one of the methods established for challenging the Court’s jurisdiction. Unavoidably, it would fall upon the President and the Registrar to make an initial, purely administrative assessment of the situation in this regard, if only in order to decide what steps should be taken with regard to the transmittal of the application to third parties.48 Article 41 of the Rules contains a special proviso—applicable to both methods of instituting proceedings—concerning a State that brings a case before the Court without being a party to the Statute, under the special mechanism laid down in Article 35, para. 2 of the Statute. In such cases, the document instituting proceedings must be accompanied by a deposit of the declaration of acceptance of the jurisdiction made in accordance with the Security Council resolution governing the matter, which is resolution 9 (1946).49 As already mentioned, this is of little importance today, when virtually every State in the world is a member of the United Nations and a party to the Court’s Statute. From a procedural point of view, it may be said that this is the most important aspect of the contents of the application. In the first place, this is what will determine whether the application is handled under paragraph 5 of Article 38 of the Rules or is treated in a regular manner, beginning with the notifications provided for in Article 42. Secondly, in normal circumstances the State named as respondent should verify with special care the “legal grounds” that the applicant invokes as a basis for the Court’s jurisdiction—in other words, the title or titles of jurisdiction. The reason for this is that, in the event that this State is not inclined to submit to the Court the dispute to which the application refers, it is the validity and applicability of those grounds to the dispute at hand that will allow it to enter a challenge to the Court’s jurisdiction or to the admissibility of the application. In the last analysis, the power of the Court to adjudicate upon the said dispute will hinge almost exclusively on the legal validity of this title of jurisdiction and/or its applicability to the case at hand. 48  A case in point would be the Arrest Warrant case, in which the application contained a cursory mention to a title of jurisdiction that, no doubt, existed between the parties, but was identified in a precise manner only during the incidental proceedings on provisional measures (Provisional Measures, Order of 8 Dec. 2000, ICJ Rep. 2000, pp. 198–200, paras. 61–64). 49  This requirement has been applied in a very flexible manner by the Court, notably in the Corfu Channel case.

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Thirdly, the Norwegian Loans case showed that it is for the applicant to identify the title of jurisdiction by reference to which it intends to present its case to the Court. Absent special circumstances, the Court would not make enquiries of its own as to the existence or the applicability of other possible basis for its jurisdiction.50 The State against which an application is filed should also be very careful in taking any action in response to the notification made by the Registrar under paragraph 4 of Article 38 of the Rules. If the Court actually lacks jurisdiction in the case and that State carries out procedural steps without challenging the jurisdiction, the Court will be entitled to affirm its jurisdiction on the basis of the doctrine of forum prorogatum, as explained above. Therefore, when a State is appraised of the fact that it has been named as a respondent before the Court its authorities must first of all ask themselves whether it is in their interest that the Court deals with the case. If the answer is affirmative, they may take the procedural steps foreseen in the Rules, the first of which is the appointment of an agent (Article 40, para. 2 of the Rules). However, if the answer is negative, as is often the case, it will be necessary for that State to carefully evaluate the actual chances of challenging the existence of the title of jurisdiction invoked by the applicant or its applicability to the case at hand. A hasty action before the Court or before the other party may be enough to perfect a title of jurisdiction whose very existence might still be questionable and in these circumstances the State could be forced to participate in a litigation for which it may not be prepared. In this context, it is worth remembering that the Court has ruled that, within certain limits, in the course of the proceedings a State is entitled to invoke as a basis of jurisdiction a legal instrument that was not mentioned in the original application.51 Connected to this, it often happens that the applicant reserves for itself the right to “revise, supplement or amend” the application. While this has never been objected as such, the Court has clearly shown that it will retain for itself a supervisory role on the exercise of this right. Thus, in the Genocide Convention (Bosnia) case, faced with the introduction of an additional title of jurisdiction purportedly made in reliance on this reservation, the Court observed that a party cannot, simply by reserving such a right confer on itself a different right that it may not posses from the outset under the Court’s law and practice, such as that of introducing an additional title of jurisdiction at a later stage. The Court has additionally stated in very firm terms that “it will be for the Court, at

50  Norwegian Loans, Judgment of 6 July 1957, ICJ Rep. 1957, p. 25. 51  See Box # 2-8.

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an appropriate stage of the proceedings, to determine, if necessary, the validity of such claims.”52

Box # 5-5 Amending or supplementing the application The Rules are silent on the amendment of the application and there is a scarce practice available. Two cases are worthy a mention in this context:

i)

The Cameroon v. Nigeria Case

The proceedings in this case were instituted by an application filed by Cameroon on 29 March 1994 and on 6 June of the same year the same State submitted an additional application, “for the purpose of extending the subject of the dispute” in order to include certain claims that had not been mentioned in the original application. The respondent did not object to this “Additional Application” being treated as an amendment to the initial application, so that the Court would be able to deal with the case as a whole in a single set of proceedings. The Court itself had no objection to this procedure and made an order registering these circumstances and fixing the dates for the first exchange of written pleadings.53 Still, one may wonder what would have happened if Nigeria had objected to this procedure. In that event it is likely that the Court would have been compelled to apply Article 47 of the Rules, dealing with the joinder of proceedings and related actions.54 However, that rule presupposes that one or more cases have been formally opened and have been entered into the Court’s General List. Therefore, Article 47 would have been applicable in this situation only after the second application was entered in the Court’s General List as a separate case, albeit with the same parties.

52  Genocide Convention (Bosnia), Provisional Measures, Order of 13 Sep. 1993, ICJ. Rep. 1993, pp. 338–339, paras. 27–28. Reaffirmed in the Avena case (Merits, Judgment of 31 March 2004, ICJ Rep. 2004, pp. 28–29, para. 24). 53  Cameroon v. Nigeria, Order of 16 June 1994, ICJ Rep. 1994, p. 106. For a comment see E. Lauterpacht, “Partial” judgments and the inherent jurisdiction of the International Court of Justice”, in V. Lowe & M. Fitzmaurice, (Eds.), Fifty Years of the International Court of Justice— Essays in Honour of Sir Robert Jennings (1996), pp. 475–476. See also Box # 4-3. 54  See Chapter 18 (i).

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ii) The Vienna Convention Case The case was instituted by an application filed by Paraguay against the United States on 3 April 1998. On 9 April of the same year the Court made an order indicating certain provisional measures and made a separate order fixing the 9th of June as the time-limit for the deposit of Paraguay’s Memorial. At Paraguay’s request, this time-limit was later extended to 9 October. On this latter day, Paraguay filed two separate documents along with the Memorial, namely: an “Amended Application Instituting Proceedings” and a “Conditional Request for an Order Conclusively Establishing Facts.” The first of these documents was apparently premised on the fact that the case originally submitted had experimented substantive changes, as a result of the respondent’s conduct with regard to the Court’s order indicating certain provisional measures. In particular, the US failed to halt the execution of a Paraguayan national, despite the fact that the Court’s order contained an injunction to that effect. Paraguay argued that it had instituted the proceedings precisely in order to prevent that execution and that, as a result of the US failure to comply with the Court’s order [t]he case returns to this Court in a fundamentally different posture than it had at the time Paraguay filed its Application. The United States’ violation of the Order has rendered it impossible for the Court to grant Paraguay restitutio in integrum in the form of a new trial for Mr. Breard or, in the alternative, reconveyance of the plea offer. Paraguay must therefore seek other, infinitely less adequate forms of reparation.55 Consistent with this reasoning, the “Amended Application” contained a claim for remedies that was markedly different from that included in the submissions of the original application. The relevant passage in this document reads as follows: As a result of [the US breaches of international obligations toward Paraguay], and in light of the impossibility of restoration of the status quo ante, Paraguay is entitled to a declaration of the United States’ liability, an

55  Vienna Convention, Memorial of the Republic of Paraguay, 9 October 1998, para. 1.3 (downloaded from the Court’s website at http://www.icj-cij.org).

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order of non-repetition of such acts and reparation in the form of compensation and satisfaction.56 The Court had no occasion to deal with the situation created by this “amended application,” because shortly after its filing Paraguay discontinued the proceedings. It is suggested, however, that in all likelihood the unprecedented step taken by the applicant in this case was unnecessary. It is always possible that a case before the Court undergoes certain changes after the provisional measures phase is exhausted—a reasoning that may be also applicable to other incidental proceedings, notably preliminary objections or counter-claims—but in such event the proper course of action is not to re-introduce the case, but to modify the submissions, adjusting to the requirements of the new situation the claims—including any claims for remedies—to be included in the Memorial or in any further pleadings. Therefore, amending the original application or even submitting a fresh “Amended Application” appears to be simply unnecessary.

New Claims The Rules make a fine distinction between the subject of the dispute and the subject of the claim, both of which must be mentioned in the text of the application.57 The notion of “dispute” is of course larger than that of the “claim” or “claims” that in the context of a given dispute one of the parties may assert against the other.58 In fact, one important role that the claims of the parties play is that of delimiting the subject-matter of the dispute brought to adjudication, something that may be crucial for jurisdictional purposes: “it is those claims that delimit the subject-matter of the dispute which the Court is called upon to settle. It is in respect of those claims that the Court must determine whether it has jurisdiction to entertain the case.”59 However, since it is understood that these claims are to be developed at a later stage in the proceedings, the only requirement that Article 38, para. 2 of 56  Amended Application Instituting Proceedings submitted by the Government of Paraguay, 9 October 1998, para. 8 (ICJ Pleadings, Vienna Convention, p. 74). See also the submissions in p. 81, para. 45 of the same document. 57  This point was made by judge Basdevant in the Interhandel case (Preliminary Objections, Declaration by Judge Basdevant, ICJ Rep. 1959, p. 30). 58  See on this the dissenting opinion of judge Bedjaoui in the Fisheries Jurisdiction (Spain v. Canada) case ( Jurisdiction, Judgment of 4 Dec. 1998, ICJ Rep. 1998, p. 522, para. 17). 59  Jurisdictional Immunities, Merits, Judgment of 3 Feb. 2012, para. 39.

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the Rules contains in this regard is that they are the object of a cursory mention in the text of the Application Instituting Proceedings. This document, as the 1920 Advisory Committee adverted, merely gives a general indication of the claims “sufficient to define the case and to allow the proceedings to be commenced.”60 The Court has also accepted, basing itself in the case law of the PCIJ, that additional or new claims that are not put forward in the application can be introduced in the course of the subsequent proceedings, within certain limits. In the first place, the Court has stressed the importance that the relevant provisions in the governing instruments—Article 40, para. 1 of the Statute and Article 38, para. 2 of the Rules—have always had for an orderly conduct of proceedings: Article 40, paragraph 1, of the Statute of the Court provides that the “subject of the dispute” must be indicated in the Application; and Article 38, paragraph 2, of the Rules of Court requires “the precise nature of the claim” to be specified in the Application. These provisions are so essential from the point of view of legal security and the good administration of justice that they were already, in substance, part of the text of the Statute of the Permanent Court of International Justice, adopted in 1920 (Art. 40, first paragraph), and of the text of the first Rules of that Court, adopted in 1922 (Art. 35, second paragraph), respectively. (Phosphates in Nauru, Preliminary Objections, Judgment of 26 June 1992, ICJ Rep. 1992, pp. 265–267, para. 69)

Secondly, a claim that is not presented in the application but is advanced for the first time in the body of a pleading—thus constituting formally a new claim— can be entertained only if it “[c]an be considered as included in the original claim in substance.”61 This would require that the new claim claim is “implicit in the application (. . .) or must arise ‘directly out of the question which is the subject-matter of that Application’ ” (. . .).62 The subject of the dispute that

60  PCIJ, Proces-verbal, p. 734. See also PCIJ D 2, Add. 3, p. 74. 61  Phosphates in Nauru, Preliminary Objections, Judgment of 26 June 1992, ICJ Rep. 1992, p. 266, para. 65. 62  Ibid., p. 266, para. 67. The first criterion was taken from the decision in the Temple of Preah Vihear case (Merits, Judgment of 15 June 1962, ICJ Rep. 1962, p. 36). The second comes from the judgment in the Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) case (Merits, Judgment of 25 July 1974, ICJ Rep. 1974, p. 203, para. 72).

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the Court adjudicates upon must never be “distinct from the subject of the dispute originally submitted to it in the Application.”63 Along the same lines, the Court has remarked that the new claim must be “inherent in the original claim.”64 The new claim will therefore be admissible only if it is “[i]mplicit in and arise directly out of the question which is the subject-matter of [the] Application:”65 The Court observes that, from a formal point of view, the claim relating to sovereignty over the islands in the maritime area in dispute, as presented in the final submissions of Nicaragua, is a new claim in relation to the claims presented in the Application and in the written pleadings. However, the mere fact that a claim is new is not in itself decisive for the issue of admissibility. In order to determine whether a new claim introduced during the course of the proceedings is admissible the Court will need to consider whether, “although formally a new claim, the claim in question can be considered as included in the original claim in substance” (. . .). For this purpose, to find that the new claim, as a matter of substance, has been included in the original claim, it is not sufficient that there should be links between them of a general nature. Moreover, “[a]n additional claim must have been implicit in the application (. . .) or must arise ‘directly out of the question which is the subject-matter of that Application’ (. . .)” (. . .). (Nicaragua v. Honduras, Judgment of 8 Oct. 2007, ICJ Rep. 2007, pp. 695–696, paras. 109–110)66

According to this, the decisive factor for determining whether a new claim may be deemed admissible or inadmissible is not the fact that it was introduced belatedly, but rather whether it is sufficiently connected to those claims: “[a] new claim is not inadmissible ipso facto; the decisive consideration is the nature of the connection between that claim and the one formulated in 63  Phosphates in Nauru, Preliminary Objections, Judgment of 26 June 1992, ICJ Rep. 1992, pp. 265–267, para. 68. 64  Nicaragua v. Honduras, Judgment of 8 Oct. 2007, ICJ Rep. 2007, p. 697, para. 115. 65  Ibid., para. 114. In Diallo, the Court further stated that these were “two alternative tests” with regard to the admissibility of a new claim (Merits, Judgment of 30 Nov. 2010, ICJ Rep. 2010, p. 657, para. 41). 66  For a comment see Muller’s Procedural Developments, LPICT, vol. 6 (2007), pp. 483–486. Although it went largely unnoticed, the problem of “new claims” may also have presented itself in the LaGrand case. For a discussion see S. Yee, “Article 40”, in Oxford Commentary, MN 111–112, pp. 982–983.

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the Application instituting proceedings; (. . .) to find that a new claim, as a matter of substance, has been included in the original claim, “it is not sufficient that there should be links between them of a general nature.”67 More importantly, the new claim cannot have the effect of transforming the subject of the dispute originally submitted to the Court. In the Société Commerciale de Belgique case, the PCIJ famously found: [i]t is clear that the Court cannot, in principle, allow a dispute brought before it by application to be transformed by amendments in the submissions into another dispute which is different in character. A practice of this kind would be calculated to prejudice the interests of third States to which, under Article 40, paragraph 2, of the Statute, all applications must be communicated in order that they may be in a position to avail themselves of the right of intervention provided for in Articles 62 and 63 of the Statute. Similarly, a complete change in the basis of the case submitted to the Court might affect the Court’s jurisdiction. (Société Commerciale de Belgique Judgment of 15 June 1939, PCIJ A/B 78, p. 173)

The Court invoked this precedent in the Nicaragua case and added that a ground of jurisdiction not mentioned in the application may be brought to the Court’s attention later and the Court may take it into account provided that “the result is not to transform the dispute brought before the Court by the application into another dispute which is different in character.”68 This approach has been reaffirmed in several occasions.69 Fourthly, when incidental proceedings on preliminary objections are opened the proceedings on the merits are suspended automatically. A direct consequence of this suspension is that any new claim of substance that may be put forward in the pleadings concerning the preliminary objections will not be entertained unless and until the proceedings on the merits are resumed. 67  Diallo, Merits, Judgment of 30 Nov. 2010, ICJ Rep. 2010, pp. 656–657, paras. 40–41. 68  Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 427, para. 80. 69  Cameroon v. Nigeria, Preliminary Objections, Judgment of 11 June 1998, ICJ Rep. 1998, pp. 318–319, para. 99; Nicaragua v. Honduras, Judgment of 8 Oct. 2007, ICJ Rep. 2007, p. 695, para. 108; Diallo, Merits, Judgment of 30 November 2010, ICJ Rep. 2010, p. 656, para. 39. The Court returned to these questions at the merits phase of the Nicaragua v. Colombia case, in connection to a claim advanced by Nicaragua for the first time in its Reply ( Judgment of 19 Nov. 2012, ICJ Rep. 2012, pp. 664–665, paras. 108–112; see also Dissenting Opinion of Judge Owada).  For a comment see Bordin’s Procedural Developments, LPICT, vol. 12 (2013), pp. 100–106.

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This happened in the Interhandel case, in which Switzerland, as a partial reaction to the preliminary objections made by the United States, submitted what it considered to be a mere modification of one of its submissions. The Court found that it constituted in effect a new claim and, recalling the provision of the Rules concerning the effect of making preliminary objections, concluded: The claim in question . . . which is described as “alternative principal Submission”, does not constitute a mere modification; it constitutes a new claim involving the merits of the dispute. Article 62, paragraph 3,70 of the Rules of Court, however, is categorical: “Upon receipt by the Registrar of a preliminary objection filed by a party, the proceedings on the merits shall be suspended.” Consequently, the new Swiss submission relating to a request for a declaratory judgment, presented after the suspension of the proceedings on the merits, cannot be considered by the Court at the present stage of the proceedings. (Interhandel Preliminary Objections, Judgment of 21 March 1959, ICJ Rep. 1959, p. 20)

The Court has also stressed that when “a substantively new claim” is asserted after the respondent has exhausted its opportunity to raise objections to admissibility or jurisdiction, i.e., after the filing of its Counter-Memorial on the merits, the “fundamental procedural right” of the respondent to do so may be impaired: Since . . . the new claim was introduced only at the Reply stage, the Respondent was no longer able to assert preliminary objections to it, since such objections have to be submitted, under Article 79 of the Rules of Court as applicable to these proceedings, within the time-limit fixed for the delivery of the Counter-Memorial (and, under that Article as in force since 1 February 2001, within three months following delivery of the Memorial). A Respondent’s right to raise preliminary objections, that is to say, objections which the Court is required to rule on before the debate on the merits begins (. . .), is a fundamental procedural right. This right is infringed if the Applicant asserts a substantively new claim after the Counter-Memorial, which is to say at a time when the Respondent can still raise objections to admissibility and jurisdiction, but not preliminary objections. (Diallo, Merits, Judgment of 30 November 2010 ICJ Rep. 2010, p. 658, para. 44)

70  It corresponds to Article 79, para. 5 of the Rules currently in force.

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Lastly, these criteria are also applicable a fortiori to counter-claims made under article 80 of the Rules of Court.71 Characterization of the Dispute The application plays a fundamental but by no means definitive role in characterizing the dispute submitted to the Court, an operation that may be said to consist of determining “[w]hat was the subject of the dispute brought before it, in circumstances where the parties could not agree on how it should be characterized.”72 This is fundamental from a jurisdictional point of view, for, as it was stated in the Right of Passage case: “[i]n order to form a judgment as to the Court’s jurisdiction it is necessary to consider what is the subject of the dispute.”73 In the Fisheries Jurisdiction (Spain v. Canada) case, the Court observed that it is for the Court itself to determine the precise contours of the issues dividing the parties. The Court will of course start by giving due consideration to the terms of the application, which “must be the point of reference for the consideration by the Court of the nature and existence of the dispute brought before it.”74 But it will also take into account supplementary materials, such as the submissions of parties presented in the course of pleadings and other pertinent evidence: There is no doubt that it is for the Applicant, in its Application, to present to the Court the dispute with which it wishes to seise the Court and to set out the claims which it is submitting to it. (. . .) In order to identify its task in any proceedings instituted by one State against another, the Court must begin by examining the Application (. . .). However, it may happen that uncertainties or disagreements arise with regard to the real subject of the dispute with which the Court has been seised, or to the exact nature of the claims submitted to it. In such cases the Court cannot be restricted to a consideration of the terms of the Application alone nor, more generally, can it regard itself as bound by the claims of the Applicant. (. . .). It is for the Court itself, while giving particular attention to the formulation of the dispute chosen by the Applicant, to determine on an objective 71  See Box # 13-6. 72  Fisheries Jurisdiction (Spain v. Canada), Jurisdiction, Judgment of 4 Dec. 1998, ICJ Rep. 1998, p. 448, para. 29. In contrast, in cases submitted by special agreement it is this instrument in itself that “manifests the different points at issue between the parties” (Mani’s Adjudication, pp. 890–90). 73  Right of Passage, Merits, Judgment of 12 April 1960, ICJ Rep. 1960, p. 33. 74  Nuclear Tests, Judgments of 20 Dec. 1974, ICJ Rep. 1974, p. 260, para. 24, p. 463, para. 24.

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basis the dispute dividing the parties, by examining the position of both parties (. . .) The Court’s jurisprudence shows that the Court will not confine itself to the formulation by the Applicant when determining the subject of the dispute. (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction, Judgment of 4 Dec. 1998, ICJ Rep. 1998, pp. 447–450, paras. 29–30)75

In a subsequent case, the Court stressed that the requirements in Articles 40 of the Statute and 38 of the Rules concerning the identification of the subject of the dispute are of a substantive and not a formal nature. As a consequence, the formulation chosen by the applicant is not binding on the Court, which remains free to make its own assessment, as was recognized since the Right of Passage case: Neither Article 40 of the Statute nor Article 38 of the Rules of Court subject the application to particular formal (as opposed to substantive) requirements regarding the manner by which the necessary elements of the application should be presented. Thus, if a section entitled “Subject of the dispute” does not entirely circumscribe the extent of the issues intended to be brought before the Court, the subject-matter of the dispute may nonetheless be discerned from a reading of the whole Application. Ruling on this issue in the case concerning Right of Passage over Indian Territory (Portugal v. India), the Court stated that it would not confine itself to the formulation by the Applicant when it was called upon to determine the subject of the dispute. It then defined the subject of the dispute [and] clearly stated that the subject of the dispute was not to be determined exclusively by reference to matters set out under the relevant section heading of the Application. (Mutual Assistance, Judgment of 4 June 2008, ICJ Rep. 2008, p. 207, paras. 69–70)76

75  This aspect of the decision was criticized in strong terms by several members of the Court, on the basis that the decision failed to accord to the application its proper role in the definition of the subject-matter of the dispute submitted to adjudication. See the dissenting opinions of judges Bedjaoui (ICJ Rep. 1998, pp. 521–533, paras. 13–41); Ranjeva (ibid., pp. 554–561, paras. 4–20) and Vereschetin (ibid., pp. 570–574, paras. 2–9), as well as that of judge ad hoc Torres Bernárdez (ibid., pp. 601–629, paras. 4–20). See also R. Casado Raigón, “España c. Canadá o España/Canadá? El Objeto de la Controversia en la Sentencia de la C.I.J. de 4 de diciembre de 1998”, REDI, vol. 51 (1999), pp. 131–140. 76  See also M. Kawano, “The Administration of Justice by the International Court of Justice and the Parties”, in S. Yee & J-Y. Morin (Eds.), Multiculturalism and International Law— Essays in Honour of Edward McWhinney (2009), pp. 286–293.

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Instituting Proceedings by Way of a Special Agreement

Special agreements can play two roles, a substantive role as a basis for the Court’s jurisdiction and a purely procedural role, as the act instituting proceedings (“l’acte introductive”), under the provisions of Article 40, para. 1 of the Statute and Article 39 of the Rules of Court. Since the former was already examined in the chapter concerning jurisdiction, the present section will concentrate on the latter.77 According to those provisions, the institution of proceedings by means of a special agreement—which is often called “compromis”, a term clearly reminiscent of the golden age of inter-State arbitration—is governed by the following norms: i.

The instrument instituting proceedings is not the special agreement as such, but rather a separate document through which that agreement is notified to the Court (Statute, Article 40, para. 1). ii. This notification can be effected either jointly by the parties to the special agreement or by any of them. In the latter case, just like in cases instituted by application, the Registrar is bound to transmit “forthwith” a certified copy of the notification to the other party (Rules, Article 39, para. 1). iii. The notification must be accompanied by the text of the special agreement, whether in its original version or in a certified copy (Rules, Article 39, para. 2). iv. In cases in which the special agreement itself does not contain the basic information required by Article 40, paragraph 1 of the Statute, namely “the subject of the dispute and the parties,”78 this will have to be included in the notification. (Rules, Article 39, para. 2). Under Article 42 of the Rules, a copy of this notification will also be transmitted to the Secretary-General of the United Nations and to the States entitled to appear before the Court.

77  See Chapter 2, e). 78  This provision is implemented by Articles 38 and 39 of the Rules. Observe, however, the difference in wording between Article 38, para. 1, according to which the application shall mention “the subject of the dispute” and Article 39, para. 2, according to which the special agreement or the notification thereof shall mention “the precise subject of the dispute” (emphasis added).

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Box # 5-6 Special agreement v. application as methods of seisin As a general rule a special agreement has a dual character, as a basis for the Court’s jurisdiction and as an act of seisin. But there is nothing to prevent that in a case in which the basis of the Court’s jurisdiction is a special agreement the other method of seisin is used, with the result that the case is eventually instituted by means of an application. The following are examples of cases where this devise has been used:79

i) The Asylum (Colombia/Peru) Case The parties concluded a special agreement in order to submit a dispute to the Court. In the agreement they acknowledged that they had been “unable to reach an agreement on the terms in which they might refer the dispute jointly.” Consequently, they left open the possibility that any of them could later institute proceedings against the other by unilateral application. Colombia did this in due course. The agreement contained only a vague reference to the subject of the dispute and it was clear that the precise definition of its scope was to be accomplished by the parties in the course of the proceedings (Asylum, Judgment of 20 Nov. 1950, ICJ Rep. 1950, p. 268). Interestingly enough, although the method of seisin was clearly that of an application, the name that the Court gave to the case does not use the particle “v.” to separate the names of the parties but the convention “/,” which is reserved for proceedings instituted by special agreement. With regard to the number and order of pleadings, the Court consistently treated this case as if it had been instituted by special agreement.80

79  Certain authors consider that this constitutes a special method of seisin and refer to it as a “Framework Agreement.” See S. Rosenne, “The Framework Agreement as the Basis for the Jurisdiction of the International Court of Justice and Some Problems of Language”, in S. Rosenne, Essays on International Law and Practice (2007), pp. 161–170; H. Thirlway, “Compromis”, in Max Planck EPIL, MN 23–25. I take the view that it is rather a combination of a traditional method of seisin (a unilateral application) and a basis of ­jurisdiction that ordinarily needs not to be supplemented by a separate act of seisin (a special agreement). 80  Guyomar’s Commentaire, p. 299.

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ii) The Arbitral Award (Honduras v. Nicaragua) Case The special agreement for the submission of a dispute to the Court concluded by the parties was silent as to the means of instituting proceedings. The agreement included two annexes containing statements of the legal position of each party with regard to the incoming litigation, and their language suggested that Honduras was to play the role of applicant. A year later, Honduras did file an application invoking the provisions of the special agreement but referring also to the Optional Clause declarations made by the two States (Arbitral Award (Honduras v. Nicaragua), Judgment of 18 Nov. 1960, ICJ Rep. 1960, pp. 194 and 203– 204). No questions were raised in this regard by the other party or by the Court.

iii) The Libya/Chad Case The parties concluded on 31 August 1989 what they termed a “Framework Agreement” (“Accord-Cadre”) in order to submit to the Court a territorial dispute between them. On 31 August 1990 Libya submitted to the Court a notification of the said agreement and three days later, on 3 September, Chad filed on its own an application against Libya concerning essentially the same questions. As the two instruments referred to one and the same dispute and the basis for the Court’s jurisdiction was unquestionably the Framework Agreement, the parties had no difficulty in agreeing “that the proceedings had in effect been instituted by two successive notifications of the special agreement constituted by the Accord-Cadre of 31 August 1989—that filed by Libya on 31 August 1990 and the communication from Chad filed on 3 September 1990, read in conjunction with the letter from the Agent of Chad of 28 September 1990–” (Libya/ Chad, Judgment of 3 Feb. 1994, ICJ Rep. 1994, p. 11, para. 8). It is interesting to note that in this recital of the judgment the Court refers to the action by Chad as a “communication,” avoiding—perhaps deliberately—the technical term “application.” At the beginning of the reasoning section of the judgment, the Court was also careful to specify that it had been seised of the dispute “[b]y the notifications of the special agreement constituted by the Accord-Cadre” (ibid., p. 14, para. 18).

iv) The Qatar v. Bahrain Case These two States reached certain arrangements that amounted to a special agreement for the submission of a dispute to the Court but later on one of them

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disputed its binding force and its very existence, prompting the other to activate the Court’s jurisdiction by filing an application. The basis of jurisdiction in this complex case was formed by a set of documents which embodied, according to the applicant, an agreement to submit a concrete dispute to the Court. After incidental proceedings on jurisdiction and admissibility, the Court found that an exchange of letters coupled with the “Minutes” relating to a series of meetings, did constitute an international agreement providing for the submission to the Court of a dispute therein defined, although it did not contemplate a particular method of seisin. The Court also decided to afford the parties the possibility to submit to it the “whole of the dispute” and gave them six months to take “jointly or separately” action to that end (Qatar v. Bahrain, Jurisdiction and Admissibility I, Judgment of 1 July 1994, ICJ Rep. 1994, pp. 126–127, para. 41).81 At the expiry of this time-limit the applicant in the original case filed a new application and the Court issued a second decision finding that it had jurisdiction “to adjudicate upon the dispute submitted to it between the State of Qatar and the State of Bahrain” and that the application filed by Qatar was admissible (Qatar v. Bahrain, Jurisdiction and Admissibility II, Judgment of 15 Feb. 1995, ICJ Rep. 1995, p. 26, para. 50). For all practical purposes, the Court treated this case as if it was a case submitted by special agreement rather than by application. Finally, the inverse situation of proceedings instituted by application which later become a special agreement case occurred also in Corfu Channel (United Kingdom v. Albania). Shortly after a decision had been rendered rejecting a preliminary objection submitted by the respondent (Preliminary Objection, Judgment of 25 March 1948, ICJ Rep. 1948, p. 15), and when time-limits had already been filed for the deposit of two rounds of pleadings, the two parties notified the Court of a special agreement concluded between them and providing for a joint submission of the same dispute. The Court issued a new order in which, after talking note that “this Special Agreement now forms the basis of further proceedings before the Court in this case, and states the questions which the Parties have agreed to submit to the Court for decision”, decided to “confirm” the time-limits originally fixed (Order of 26 March 1948, ICJ Rep. 1948, p. 55). In its judgment on the merits the Court recalled that:

81  This very unorthodox decision was criticized by two members of the Court (See Qatar v. Bahrain, Jurisdiction and Admissibility I, Separate Opinion of Judge Schwebel, ICJ Rep. 1994, pp. 130–131; Dissenting Opinion of Judge Oda, ibid., pp. 134–135, paras. 3–5).

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The main object both Parties had in mind when they concluded the Special Agreement was to establish a complete equality between them by replacing the original procedure based on a unilateral Application by a procedure based on a Special Agreement. There is no suggestion that this change as to procedure was intended to involve any change with regard to the merits of the British claim as originally presented in the Application and Memorial. Accordingly, the Court, after consulting the Parties, in its Order of March 26th, 1948, maintained the United Kingdom’s Memorial, filed previously, “with statements and submissions.” (Corfu Channel, Merits, Judgment of 9 April 1949, ICJ Rep. 1949, pp. 24–25)

It was said above that from a procedural point of view one of the most important aspects of the application is the mention to the title of jurisdiction, pursuant to the provisions of Article 38, para. 2 of the Rules. In contrast, in the case of a special agreement this element plays no role at all, given that in this case the agreement itself provides “the legal grounds upon which the jurisdiction of the Court is said to be based.” The description of “the precise subject of the dispute,” however, has considerable more importance here, because it is that description what, in principle, circumscribes the scope of the jurisdiction to be exercised by the Court. As for the role that the Court may play with regard to the characterization of a dispute submitted to it, in the Fisheries Jurisdiction (Spain v. Canada) case, it made the following observation: Even in proceedings instituted by Special Agreement, the Court has determined for itself, having examined all of the relevant instruments, what was the subject of the dispute brought before it, in circumstances where the parties could not agree on how it should be characterized (. . .). (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction, Judgment of 4 Dec. 1998, ICJ Rep. 1998, p. 448, para. 29)

This is why the parties desirous to submit a dispute to the Court by means of a special agreement are very careful when negotiating the terms of the agreement, particularly during the process of “framing the question” to be submitted to adjudication. It also explains that during the ensuing proceedings differences as to the correct interpretation of the clauses of the agreement are likely to arise, just as it happens when the dispute is not submitted to judicial but to arbitral settlement.

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Box # 5-7 Language of the special agreement82 One major difference between the two methods for instituting proceedings is that the application is always made in one of the two official languages of the Court, while the special agreement can be—and sometimes is—concluded in some other language, like a language which happens to be common to both parties. What would normally be in either English or French is the notification of the special agreement, which, as mentioned above, is a separate instrument that under Article 39, para. 2 of the Rules must indicate the precise subject of the dispute and identify the parties “in so far as this is not already apparent from the agreement.” This notification has to be accompanied also by either the original or a certified copy of the special agreement. If the special agreement is not drafted in either English or French and the parties do not agree from the outset on the terms of a single translation for the benefit of the Court, this might raise problems, as it happened in the following cases: i) In the Tunisia/Libya Continental Shelf case, the special agreement was concluded in Arabic and each of the parties notified it to the Court separately. Tunisia was first, enclosing a translation into French and Libya followed suit later on, enclosing a translation into English. At the beginning of its decision on the merits the Court reproduced both versions and referred to this aspect of the case in the following terms: Each of the Parties filed its own French or English translation, set out in paragraphs 2 and 4 above, of the original Arabic text of the Special Agreement on the basis of which the present dispute has been brought before the Court for settlement. For convenience, the text that will hereafter be referred to in the present Judgment will be, except where otherwise indicated, the English translation made by Libya, which was in turn translated by the Registry into French. That English translation is also generally consistent with the translation made by the Secretariat of the United Nations following registration of the Special Agreement pursuant to Article 102 of the Charter. (Tunisia/Libya Continental Shelf, Merits, Judgment of 24 Feb. 1982, ICJ Rep. 1982, p. 37, para. 22)83 82  On this see Rosenne, “The Framework Agreement . . .”, pp. 168 ff. 83  In this case the Court decided that the English text of the judgment was authoritative.

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ii) In the El Salvador/Honduras case the parties transmitted jointly to the Court a certified copy of the Spanish text of a special agreement concluded on 24 May 1986. Four years later and well into the case they had not been able to agree on the terms of a translation to the Court’s official languages in order to formally notify it to the chamber of the Court dealing with the case. In its decision of 13 September 1990, concerning the request of intervention by Nicaragua, the chamber took note that up until that moment the parties had not furnished it with such a translation and that neither of them had seen fit to supply a translation of their own. That judgment, then, reproduced the text of the special agreement in the Spanish language (Application to Intervene, Judgment of 13 Sep. 1990, ICJ Rep. 1990, p. 94, paras. 1–3). An agreed translation into English was finally submitted to the Court by the parties in 1991 and the chamber was able to include it, along with its own translation into French, in its judgment on the merits ( Judgment of 11 Sep. 1992, ICJ Rep. 1992, pp. 356–358, paras. 2–3). iii) In the Qatar v. Bahrain case, which, as explained above, was instituted by application even though the basis for the Court’s jurisdiction was a series of diplomatic documents amounting to a special agreement, the said agreement was concluded in Arabic. Each party supplied the Court with its own translation. In the first of the two jurisdictional decisions that the Court made in this case, it simply took note of the fact that those translations “differ on certain points” (Qatar v. Bahrain, Jurisdiction and Admissibility I, Judgment of 1 July 1994, ICJ Rep. 1994, p. 119, para. 19). In the second decision, the Court made a deliberate excursion into the elucidation of the precise meaning of an expression in the Arabic language and went as far as to give an interpretation of it (Qatar v. Bahrain, Jurisdiction and Admissibility II, Judgment of 15 Feb. 1995, ICJ Rep. 1995, pp. 18–19, paras. 34–35).

e)

Instituting Incidental and Derivative Proceedings84

When one of the parties to a case chooses to activate one of the modalities of the Court’s incidental jurisdiction, whether it refers to provisional measures, preliminary objections, counter-claims, etc., incidental proceedings are open. As a general rule, these proceedings are less rigid and shorter than ordinary proceedings on the merits but each of them has its special features, which 84  Mani’s Adjudication, pp. 83–88; Yee, “Article 40”, MN 134–147, pp. 994–999.

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will be discussed in more detail in another section of the present work.85 Each of these proceedings is also instituted in a different manner and the act of seisin—which is always unilateral—receives a different name, as can be seen in the following outline:

•

Proceedings on provisional measures of protection are instituted by a written document called “Request for the indication of provisional measures” (“demande en indication de mesures conservatoires”) which “may be made by a party at any time during the course of the proceedings in the case in connection with which the request is made.” (Rules, Article 73, para. 1). Preliminary objections (“Exceptions préliminaries”) “shall be made in writing as soon as possible, and not later than three months after the delivery of the Memorial” (Rules, Article 79, para. 1).86 A Counter-claim (“demande reconventionnelle”) “shall be made in the Counter-Memorial and shall appear as part of the submissions contained therein” (Rules, Article 80, para. 2). Proceedings on third-party intervention under Article 62 of the Statute are instituted by an “Application for permission to intervene” (“requête à fin d’intervention”) that “shall be filed as soon as possible, and not later than the closure of the written proceedings” (Rules, Article 81, para. 1). Proceedings on third-party intervention under Article 63 of the Statute are instituted by a “Declaration” (“déclaration”) that “shall be filed as soon as possible, and not later than the date fixed for the opening of the oral proceedings” (Rules, Article 82, para. 1).87

• • • •

As for derivative proceedings, i.e. those proceedings which are incidental in nature but take place only after a decision on the merits has been reached 85  See Part V, Chapters 11–15. 86  Basing himself on the circumstance that proceedings on preliminary objections are not instituted by a request (“demande”), a commentator has ventured the view that proceedings on this matter are fundamentally different from incidental proceedings proper, like those concerning provisional measures, counter-claims or intervention (Presentation by J.P. Queneudec on the topic “Les Mesures conservatories: La Sauvegarde du droit des victims?”, in J.-M. Sorel & F. Poirat (Eds.), Les procédures incidents devant la Cour internationale de Justice: exercice ou abus de droits? (2001), p. 63). 87  In addition to this, contentious proceedings concerning a decision taken by one international body, i.e. the so-called “special reference to the Court” (“renvoi spécial devant la Cour”) are instituted by an application that should not only “identify the decision or other act of the international body concerned” but also “contain a precise statement of the questions raised in regard to that decision or act” (Rules, Article 87, para. 2). See Chapter 18 (iii).

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in a given case, the situation as far as requests for interpretation or revision of a judgment are concerned is essentially the same as in proceedings on the merits: each one of them is instituted by a special act (although in the case of proceedings on interpretation this does not have to be a unilateral act), in the following manner:

•

A request for the interpretation of a judgment “may be made either by an Application or by the “Notification of a special agreement to that effect between the parties” (Rules, Article 98, para. 2). A request for revision of a judgment “shall be made by an Application” (Rules, Article 99, para. 1).

•

The case of derivative proceedings on reparations—which do not feature as such in the Statute or in the Rules but have a solid foundation in the Court’s case law—is unique, because it is generally established that they are not instituted by one of the parties, but have their origin in the very decision in which the Court includes a finding on State responsibility by the other party—thus entitling the former to certain form of remedy.88 The jurisdictional aspects involved, as well as the procedures to be followed, will be discussed later in this work.89 Lastly, interlocutory proceedings on minor questions of procedure arising in the course of a case may be said to be instituted by a written communication from the agent of one of the parties which is not subject to any formalities and is addressed to the Registrar under Article 30 of the Rules.90 Notwithstanding this, the same provision anticipates that a party may also make a request “in open court in the course of the oral proceedings” and this may, in itself, give rise to interlocutory proceedings to be handled as the Court sees fit. f)

Pre-adjudicative Steps by the Court

As far as the Court is concerned, the first actions it has to take with regard to a case as soon as proceedings have been introduced are mainly administrative— and hence are carried out by the Registrar.91 They include:

88  Rosenne’s Law and Practice, vol. 3, p. 1247. 89  See Chapter 18 (iv). 90  Rosenne’s Law and Practice, vol. 3, p. 1245. 91  Mani’s Adjudication, pp. 92–102.

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i)

Transmitting a certified copy of the application to the respondent, if the case was submitted unilaterally (Rules, Art. 38, para. 4); ii) Communicating the institution of proceedings to those entities and persons mentioned in Article 40 of the Statute (Rules, Article 42); iii) Entering the new case into the Court’s General List, thereby opening a folio and numbering it. According to Article 26, 1, (b) of the Rules, this will be done “in the order in which the documents instituting proceedings or requesting an advisory opinion are received in the Registry;” It is important to note that while the entering of a new case in the General List is an administrative action that is taken by the Registrar, in close consultation with the President, the removal of a case from the List entails a judicial action that can only be taken by the Court.92 In practice, this requires taking certain actions before the adjudication process actually starts, like making an initial assessment of the act instituting proceedings or organizing a meeting of the President of the Court with the agents of the parties. Assigning a title to the case and opening a new entry into the Court’s General List are procedural actions that are taken subsequently. They are of paramount importance, because they signal the formal initiation of the litigation process and evidence that the Court has been seised of the case. These steps will be described below. Initial Assessment It goes without saying that the document instituting proceedings has to conform to the requirements as to form and contents found in the Statute and the Rules and in particular is bound to include the basic information required by Article 40 of the former and by Article 38 or 39 of the latter, as the case may be. When this is not the case and the Registrar notices an irregularity or a fundamental defect in a document instituting proceedings he is bound to bring this “to the notice of the party or person from whom the document emanates.” This is pursuant to Article 14 of the Court’s Instructions for the Registry, which to a certain extent—at least in cases submitted by application—replaced a practice adopted by the PCIJ and followed for a time by the ICJ, under which the first procedural order adopted by the Court or by the President contained a clause stating that the application “fulfills the formal conditions laid down in the Statute and the Rules.”93

92  On the removal of cases see Chapter 9. 93  Hudson’s PCIJ, p. 542. This practice appears to have been abandoned in 1955.

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For instance, if it is a piece of diplomatic correspondence that simply announces in general terms the submission of a dispute but fails to identify the subject-matter of this dispute or to formulate an actual claim, it will not be treated as a genuine act instituting proceedings. Therefore, no procedural action will be taken by the Registrar and, most importantly, the case will not be entered into the Court’s General List unless and until these defects are corrected. A good example of this situation from the time of the PCIJ is a letter sent on 30 March 1933 to the President of the Court by the delegate of Peru to the League of Nations by virtue of which he purported “[t]o submit to the jurisdiction of the Court, under Article 36 of the Statute, the Salomón-Lozano Treaty concluded between the Governments of Peru and Colombia.”94 The Court’s report for that year records that “[t]he entry of this application in the Court’s list was postponed pending the filing of an application fulfilling the formal conditions laid down by the Statute and Rules.”95 It will also be recalled that no procedural action will be carried out by the Registrar in the case provided for in Article 38, para. 5 of the Rules, that is, “[w]hen the applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made.” Under that provision, when the application fails to disclose any title of jurisdiction at all the only action that the Registrar is entitled to take in that regard is transmitting that document to the other State. All the subsequent actions, i.e. entering the application as a new case in the General List and, in general, officially opening the proceedings, will be performed only on the date in which the acceptance of the jurisdiction by the State named as respondent is received in the Registry. In those cases, then, the Court does not become seised of the case when the act instituting proceedings is filed by the applicant but on the date in which this “invitation to litigate” is accepted by the potential respondent State. In any case, if an application is said to be based on Article 38, para. 5 of the Rules but includes also the invocation of a separate title of jurisdiction, however dubious, practice indicates that the Registrar will probably feel inclined to treat it as a regular act instituting proceedings, particularly if it is accompanied by a request for the indication of provisional measures.96 94  PCIJ E 9, p. 76. 95  Ibid., note 2. An analogous situation occurred at the present Court with regard to a communication from the Government of Yugoslavia that the Registrar was unable to consider as an act instituting proceedings. See Rosenne’s Law and Practice, vol. 3, p. 1223. 96  See Chapter 2, f ) and Box # 2-16.

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Communications If the case is submitted by application, Article 40, para. 2 of the Statute directs the Registrar to communicate that document “to all concerned.” Interestingly, this provision does not mention expressly among those “concerned” the State against whom the application is made. This is corrected by Article 38, para. 4 of the Rules, stating that the same official shall “forthwith transmit to the respondent a certified copy of the application.” This provision was inserted in the Rules in the 1936 revision with the aim of fulfilling a lacuna that was noticed in the governing instruments.97 The PCIJ also clarified that while this action does not prejudge the question of the admissibility of the application, it may settle the question whether a given document does or does not constitute an application within the meaning of Article 40 of the Statute.98 The communication to States at large of the fact that a new case has been brought before the Court is one of the ordinary tasks performed by the Registrar. The matter is governed by the combined application of articles 40 of the Statute and 42 of the Rules, which present at least two curious features. In the first place, it has been noticed that the drafting of Article 40 is unfortunate because there is little consistency between the different paragraphs making it up. To be sure, while paragraph 1 spells out the two methods of seisin (a notification of a special agreement or a written application, as the case may be), paragraph 2 refers exclusively to “the application.”99 In spite of this, it has never been disputed that the notification provided for in paragraph 2 should be made also with regard to special agreements. Article 42 of the Rules is perfectly clear about this. In the second place, paragraphs 2 and 3 of Article 40 refer to two (presumably different and separate) notifications: the act instituting proceedings shall be communicated “to all concerned” and notifications shall also be sent to the States entitled to appear before the Court. This is done with the special proviso that for the members of the United Nations—which are of course included in this category—the notification is to be made through the Secretary-General. Who are then those “concerned” to whom the act instituting proceedings shall be communicated “forthwith” under paragraph 2 of Article 40? There is no doubt that this expression refers in the first place to the parties to the case and this appears to be applicable regardless to the method of seisin. But does it refer also to third States that may have an interest in the case, who, in any 97  PCIJ D 2, Add. 3, p. 869. 98  PCIJ E 9, p. 164. 99  For a possible explanation see Yee, “Article 40”, MN 6, pp. 927–928.

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case, will be notified under paragraph 3 of the same Article? Does it include the members of the Court? The exact meaning of the expression “all concerned” has been the object of some discussion, given that there are conflicting views, all of them authoritative. In 1933, for instance, the Registrar of the PCIJ ventured the opinion that “the members of the Court are no doubt included among ‘those concerned’ in Article 40 of the Statute.”100 This view may have been supported by Article 34, para. 1 of the 1936 Rules of Court, which was the provision purporting to implement Article 40 of the Statute and contemplated in explicit terms that the Registrar should transmit copies of special agreements or applications submitting a case “to all members of the Court.” Given that this was eliminated in the 1972 reform, one is bound to conclude that the matter of communication to the members of the Court is now covered by the general provisions of Article 26, 1, (a), governing the functions of the Registrar. However, the 1933 view by the Registrar appears to be contradicted by a passage in the 1920 Committee of Jurists who drafted the Statute, according to which “[t]he Registrar, to whom this application is made, informs all concerned, that is to say, the contesting parties and also any others who might conceivably feel called upon to intervene in the case on receipt of this information.”101 As it is apparent, the members of the Court were not mentioned and the passage appears to apply only to States. But this is not free from difficulties either, because there is no doubt that third States “who might conceivably feel called upon to intervene” will be notified in due course under paragraph 3. What is more, if the eventual intervention is based on Article 63 of the Statute (which is applicable to all States, and not only those entitled to appear before the Court) the Registrar is bound to send an additional notification to all States that are parties to the treaty whose construction is in question. The circumstance that can explain these discrepancies might be that the formal links of the PCIJ with the League of Nations were markedly different from those of the present Court with the United Nations. What the old Statute sought by means of Article 40 was to make sure that all States who conceivably could have an interest in a new case would be informed, whether they were States “concerned” or members of the League. As for the present Court the situation is clearly different because, since all members of the UN are ipso facto parties to the Statute and therefore have access to the Court, it can be said that

100  PCIJ D 2, Add. 3, p. 819. For a description of the procedure followed “normally” by the Registry on receipt of an act instituting proceedings see PCIJ E 3, pp. 202–203. 101  PCIJ, Proces-Verbaux, p. 734.

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the notification provided for in paragraph 3 of Article 40 would always reach all those States who can be deemed to be “concerned” under paragraph 2. Another action that the Registrar carries out as soon as a document instituting proceedings is received by him is to issue a press release informing the public at large of that circumstance, which nowadays is transmitted by e-mail to subscribers.102 This is obviously very advantageous for those who follow the Court’s work but may have the drawback of giving undeserved publicity to applications based exclusively on Article 38, para. 5 of the Rules, that is, summons before the Court that require action by the other State in order to produce any legal effect.103 Meeting with the Agents The President of the Court is bound by Article 31 of the Rules to “summon the agents of the parties to meet him as soon as possible after their appointment” in order to ascertain their views with regard to questions of procedure.104 It is not clear whether this meeting takes place before or after the new case is assigned a name and is entered into the Court’s General List. Everything appears to indicate, however, that the President meets the agents before those actions are carried out. It will be noted that the name and folio number that the case is given in the General List appear for the first time in the first procedural order adopted by the Court in the case, which usually is made shortly after that meeting has been held. With regard to this first meeting, in normal circumstances, the “questions of procedure” referred to in Article 31 will be confined to the time-limits to be fixed for the submission of the first round of written pleadings on the merits. Nevertheless, depending on the attitude of the parties, they can also refer to the handling of a request for provisional measures of protection or of an eventual challenge to the Court’s jurisdiction. In the latter case there may even be room to decide then and there that the procedure to be followed will be that pro-

102  The press releases are issued by the Registrar on his own authority, but it is believed that if the circumstances warrant it, he will consult with the President of the Court (S. Rosenne, “The President of the International Court of Justice”, in V. Lowe & M. Fitzmaurice, Fifty Years of the International Court of Justice, Essays in honour of Sir Robert Jennings (1996), p. 410). 103  On this see S. Yee, “Forum Prorogatum Returns to the ICJ”, LJIL, vol. 16 (2003), p. 707. See also Chapter 2, f ). 104  On the scope and purpose of these consultations see Mani’s Adjudication, pp. 92–93. See also Box # 4-8.

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vided for in paragraphs 2 and 3 of Article 79 of the Rules, as it will be explained in detail in the section concerning challenges to the Court’s jurisdiction.105 Naming the Case There is no certainty as to the manner in which a case gets its official name, once the President and the Registrar have examined the contents of the document instituting proceedings.106 It has been said that the title of the cases used to be determined by the Registrar but in current practice it is chosen “[b]y the Court, at the proposal of the Registrar”107 A member of the Court has remarked that the commendable practice of the Court is to give a neutral title to the cases that are brought before it.108 In a typical case, the initial notice issued by the Registry limits itself to record that certain proceedings have been instituted, whether it is by one given State against the other or jointly by two States, on such and such matters. This is a press release issued on the same day that proceedings are instituted, which is different from the formal communication informing all States of that fact, under Articles 40, para. 3 of the Statute and 42 of the Rules. The latter is sent a few weeks later, after the printed text of the document instituting proceedings (already bearing the official name of the case) is available. Under Article 38, para. 4 of the Rules the State named as respondent is informed of the filing of the application on the same date (and with modern communications it is now probably furnished with the full text of the application and any annexes it may have), but it receives the printed copies of this document only at a later stage. The official title of the case is thus made known to the public at large only on the occasion of the issuance of the first procedural order, whether this is the order fixing time-limits for the first round of written pleadings (and this first round, on its turn, can relate either to the merits or to questions of jurisdiction or admissibility) or the order announcing the holding of hearings on provisional measures. It may be noted that this order invariably starts with a recital recalling the submission of the dispute, identifying the parties to it and describing its subject-matter in a very concise manner. 105  See Chapter 12, c). 106  M. Kamto, “L’intitulé d’une affaire porteé devant la C.I.J.”, Revue Belge DI, vol. 34 (2001), pp. 5–22; Rosenne’s Law and Practice, vol. 3, pp. 1230–1233. 107  P. Couvreur, “El Secretario de la Corte Internacional de Justicia: Estatuto y Funciones”, en C. Jiménez Piernas (Ed.), Iniciación a la Práctica en Derecho Internacional y Derecho Comunitario Europeo (2003), p. 41. 108  Lockerbie, Provisional Measures, Dissenting Opinion of Judge Bedjaoui, ICJ Rep. 1992, p. 33, para. 1 and p. 143, para. 1.

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Interestingly, in the South West Africa case the respondent voiced an objection with regard to the description of the dispute included in the initial order fixing time-limits for the first round of written pleadings. The Registrar reply contains the following statement: “In accordance with the common practice of the Court, the general words used to describe the nature of the case referred to it are taken from the letters of transmittal of the Applications referring the case to the Court. The employment of these descriptive words prejudges no issue between the Parties.”109 In a case instituted by special agreement, it is logical to assume that the Court would defer to the preferences of the parties with regard to the name to be given to the case, as they might have been expressed, either in the agreement itself or in the letter of notification. This is apparent from a decision in the boundary dispute between El Salvador and Honduras, submitted to a chamber of the Court, in which it was stated: [f]or the purposes solely of determining the title to be given to the case, it is . . . appropriate to use the form of words adopted by both Parties in the joint letter of 11 December 1986, namely the “land, island and maritime frontier dispute” between the Parties, the adoption of this title being without prejudice to the proper interpretation of the provisions of the Special Agreement defining the subject of the dispute. (El Salvador/Honduras, Constitution of Chamber, Order of 8 May 1987, ICJ Rep. 1987, p. 11, para. 5)

It is customary that the name chosen for the case is followed by the full official name of each of the parties, separated by the initial “v” (versus) if the case was instituted by application and by the typographical convention “/” if the case was instituted by special agreement. In cases submitted by application the order of the names of the States involved is logically applicant-respondent and in cases submitted by special agreement it is their alphabetical order in each of the official languages of the Court. Clearly, this order may differ, depending on the language used. In one of the North Sea Continental Shelf cases, for instance, the names of the parties in the official name of the case is “Federal Republic of Germany/Netherlands,” in English and “Pays-Bas/République Fédérale D’Allemagne,” in French. It may also occur that in the middle of a case the official name of one of the State parties undertakes a change. Thus, Upper Volta became Burkina Faso when the Frontier Dispute case was already on its way and Yugoslavia became Serbia and Montenegro after the Court had issued 109  ICJ Pleadings, South West Africa, Part 4, vol. 12, p. 524.

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several decisions in the Genocide Convention case. In these cases, the name of the case is changed accordingly. 110

Box # 5-8 Changing the name of the case111 Although apparently States have no say in the matter of assigning or altering the name of a case in which they are parties, the following are examples in which this question might have given rise to difficulties, albeit of varying importance: CONTENTIOUS CASES i) The Convention of 1902 on the Guardianship of Infants case In the first two procedural orders made in this case, it was referred to as Case concerning the Guardianship of an Infant. It was only on the occasion of the opening of the oral proceedings that its title was changed to the definite Application of the Convention of 1902 governing the Guardianship of Infants (Netherlands v. Sweden). Judge Moreno Quintana had the following to say about the import of this change: [t]reaties which, like that with which [this case] is concerned, are designed to achieve unification of the rules deriving from the application to private persons of particular State laws, undeniably have the character of private international law treaties. The original title: “Case concerning the guardianship of an infant” was subsequently, and very wisely, changed to “Case concerning the application of the Convention of 1902 governing the guardianship of infants”, and this new title is undoubtedly much more in accord with the scope of the judgment to be given by the Court in this case. (Convention of 1902 on the Guardianship of Infants, Separate Opinion of Judge Moreno Quintana, ICJ Rep. 1958, p. 103) 110  Burkina Faso/Mali, Judgment of 22 Dec. 1986, ICJ Rep. 1986, p. 558, para. 4; Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 55, para. 32). In this last case the situation was further complicated due to the fact that the independence of Montenegro was declared when the proceedings had not been concluded, so the respondent party at the last stages of the case was just Serbia (See Chapter 5, c)). 111  Yee, “Article 40”, MN 81, p. 967.

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ii) The Norwegian Loans case This case was instituted unilaterally by France on 6 July 1955. It appears that in the printed version of the application that was sent originally to the respondent the formula used was, Certain Norwegian Loans issued in France. Norway objected to this title and formally requested that it be modified and France, while stating that this was a matter belonging to the merits, declared that it was prepared to accept Certain Norwegian Loans as a title for the case.112 The Court consented to the modification and the new name was used as from the issuing of the first procedural order made in the case (Order of 19 Sep.1955, ICJ Rep. 1955, p. 124). iii) The Nicaragua case The case brought by Nicaragua against the United States on 9 April 1984 got the name Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States). The United States objected vigorously to this name, which it considered to prejudge the merits of the case, but the Court never took action in this regard. In the decision on the merits, judge Schwebel criticized the manner in which the Court handled this aspect of the case: 128. The very title of the case suggests that, from the outset, the case has been misperceived by the Court. That misperception, in my view, has impregnated its evaluation of the evidence; it sheds light on the approach of the Court to the case, which has been one which, in my perception, has concentrated on the apparent delicts of the United States while depreciating the alleged delicts of Nicaragua. The title of the case embraces the essential thesis of Nicaragua (and the essential words of its Application: cf. paras. 26 (a) and 26 (g): that it concerns, and exclusively concerns: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). However, equally at the outset, the United States informed the Court of its contrary thesis, namely, that the substantive focus of the Court’s concern—if it were to engage the substance of the case, which the United States contested—should be the activities by 112  The text of the application published in the corresponding volume of the Pleadings series contains a footnote referring to “[a] text which was issued in a provisional edition for the use of the Court” (ICJ Pleadings, Norwegian Loans, p. 6). This was probably the text bearing a longer title. ICJ Pleadings, Norwegian Loans, p. 257, Doc. # 16 and pp. 259–260, Doc. # 23.

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Nicaragua in supporting Salvadoran and other rebels in and against El Salvador and other neighbouring States. While concentrating on challenging the Court’s jurisdiction and the admissibility of the claims, the United States consistently pleaded, by way of an affirmative defence, that its activities in and against Nicaragua were and are justified as acts of collective self-defence undertaken in support of El Salvador. It is accordingly remarkable that the Court should have adopted, and persisted in maintaining, a title of the case which so obviously and exclusively reflects the focus of Nicaragua. Such a stance by the Court is unprecedented. 129. Thus if one looks at the list of titles of all the cases which have previously been dealt with by this Court, conveniently found in the Court’s Yearbooks, one cannot find a listing which is comparable. Take, for example, the first case, entitled: Corfu Channel (United Kingdom v. Albania). If that case had been entitled as the current case is, it would have read something like: Mining activities in the Corfu Channel against the United Kingdom. But the Court chose a neutral formula, which recognized implicitly that Albania might have had a defence to the claim of the United Kingdom. It did so in the case which, perhaps more than any other of this Court, has elements in common with the substance of the current case, concerning as it did uses of force and questions of intervention. In the list of the 70-odd cases of this Court, none is entitled so as to embrace only the contentions of the claimant and inferentially exclude those of the defendant—apart from the instant case. 130. In its traditional approach, this Court has acted as courts customarily do. Cases are normally entitled, “Jones v. Smith”, not “Smith’s Trespass on Jones’s Property”. Indeed, the objectivity and restraint of some legal systems are so marked that the names of the parties to a case are not revealed in the report, the case being known by its number or pagination in the particular volume of the Reports. 131. In a letter to the Registrar of 27 April 1984, the Agent of the United States referred to the title of the case and stated “that the United States regards the title given to the case as prejudicial”. He requested that “the title be replaced by one that is neutral”. He elaborated these contentions in a letter of 2 May 1984. The Court took no positive action in response to his request, despite the obvious infirmities of the title. (Nicaragua, Merits, Dissenting Opinion of Judge Schwebel, ICJ Rep. 1986, pp. 320–321)

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iv) The Jan Mayen case This case, referring to maritime delimitation, was brought to the Court by an application filed by Denmark on 16 August 1988. When the Registrar transmitted to all States entitled to appear before the Court a copy of the printed text of the application, the case bore the name Maritime Boundary in the Area between Greenland and Jan Mayen (Denmark v. Norway). However, in the first order issued by the Court in this case, dated 14 October 1988, the name of the case had been changed into Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway). It is not known whether this change was introduced by the Court on its own motion or was prompted or influenced in any manner by the parties. It certainly did not make much of a difference with regard to the final outcome of the case, for in its judgment of 14 June 1993, the Court did draw a maritime boundary between the two parties to the case (Judgment of 14 June 1993, ICJ Rep. 1993, p. 38). v) The Qatar v. Bahrain case This case was submitted by an application filed by Qatar on the basis of a set of legal documents that were considered by that State as embodying a special agreement. The Court confirmed this latter point in an initial judgment of 1 July 1994, but reserved a decision on whether the unilateral seisin of the Court was authorized by that agreement or not. In a second decision of 15 February 1995 the Court found that this was the case, that it had jurisdiction to entertain the dispute and that Qatar’s application was admissible. The Court recalled that after the 1994 judgment Bahrain put forward certain proposals, one of which referred explicitly to a change in the name given to the case, which apparently referred to the Court having used the initial “v” instead of the symbol “/ ” to separate the names of the parties. The decision recalls: [The Bahraini draft] requested the Court to amend the title of the case to make it clear that it would be dealt with, not pursuant to an Application by one Party, but to a joint initiative by the two Parties, and in order to comply with “the pattern of names in other cases placed before the Court jointly by the Parties”. (Qatar v. Bahrain, Jurisdiction and Admissibility, Judgment of 15 Feb. 1995, ICJ Rep. 1995, p. 13, para. 20)

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It is worth noting that while the name of the case remained unchanged until the end of the proceedings—referring to the parties as “Qatar v. Bahrain,” like in cases submitted by application—for all procedural purposes the Court treated it as if it had been submitted by special agreement.113 vi) The Nicaragua v. Honduras case This case was instituted by an application filed by Nicaragua on 5 December 1999. The case was assigned the name Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) but during the oral stage the question of title over some small islands and cays located in the delimitation area arose and the Court had to pronounce on that in its judgment on the merits. The Court found that Nicaragua’s claims on this question were so intimately connected to the original question that they were admissible and could be properly dealt with in the same decision ( Judgment of 8 Oct. 2007, ICJ Rep. 2007, pp. 694–696, paras. 104–110). When the judgment was issued, on 8 October 2007, the name of the case had changed abruptly and had become Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras).114 ADVISORY PROCEEDINGS In advisory proceedings the question of the naming of the case appears to be easier to handle, if only because the Court would normally follow verbatim the language used in the decision by the requesting body. Nevertheless, there may be situations in which a case undergoes a change of name, like the following: i)  Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter). This case was originally named “Financial Obligations of Members of the United Nations” (Order of 27 Dec. 1961, ICJ Rep. 1961, p. 64). 113  This can be dispositive on the question of the number and order of pleadings (see Chapter 6, a)). 114  Another contentious case that also underwent a change of name, apparently without raising any difficulties, was LaGrand, which originally had been called “Vienna Convention on Consular Relations (Germany v. United States of America),” just as in a previous case between Paraguay and the United States that had been discontinued by the time of the filing of Germany’s application. See ICJ Press Release 1999/9, 3 March 1999.

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ii)  Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo. This case was originally entitled “Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo”. The change of name in this case—which is closely related to one key aspect of the case, that of the authorship of the declaration of independence of the territory of Kosovo, and to the manner in which the Court decided to approach this substantive issue—took place only on occasion of the delivery of the advisory opinion. Vice-President Tomka was the only member of the Court that referred to this matter, in a declaration in which he concluded that the question had been correctly formulated in the request adopted by the General Assembly and that, therefore, “[t]here was no reason to “adjust” it and subsequently to modify the title itself of the case.” (Advisory Opinion of 2 July 2010, Declaration of VicePresident Tomka, ICJ Rep. 2010, p. 460, para. 21).

The General List The General List of the International Court of Justice is a useful administrative device that was introduced in the Rules in 1931, at the proposal of judge Fromageot, with the declared aim “to prevent unjustified preference being given to one case over another.”115 Under its original configuration, set out in Article 38 of that year’s version of the Rules of Court, the General List was to contain all “cases submitted to the Court for decision or for advisory opinion” and it was to be prepared and kept up by the Registrar, under the authority of the Court. Most importantly, cases were to be entered in the list and numbered successively “according to the date of the receipt of the document submitting the case to the Court.” This objective criterion has been essentially maintained and can be found in Article 26, para. 1 of the 1978 Rules, which provides that the Registrar, in the discharge of his functions, shall: (b) keep, under the supervision of the President, and in such form as may be laid down by the Court, a General List of all cases, entered and numbered in the order in which the documents instituting 115  PCIJ D 2, Add. 2, p. 92. Up to that date, the practice was to keep “session lists,” in keeping with the fact that, until 1936, the Court used to meet in sessions. The “session lists” coexisted with the General List until 1936, when they simply were discontinued.

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proceedings or requesting an advisory opinion are received in the Registry;116 If several documents instituting proceedings are received at the same time— something that happens when “paired” cases are submitted, usually having the same applicant and several different respondents—the cases are entered into the General List following an alphabetical order in either of the two official languages. After the adoption of the 1936 amendment it became customary to reproduce the General List in the annual report of the Permanent Court, and, since 1946, in the current Court’s yearbook. This practice was abandoned in 1964, when the full transcription of the List was replaced by a “[s]ummary of the particulars given for each case in the General List.”117 This “summary” was, on its turn, deleted in 1968, owing to a rearrangement in the layout of the yearbook. In that year, the Registry announced that from then on the summary would be printed as a “background note” and would be supplied by the Registry on request.118 As far as it has been possible to ascertain it, the Court issued only two of these background notes entitled “Synopsis of cases referred to the international Court of Justice”: Background Note II, covering the period 1947–1969 and Background Note II bis, for 1969–1976. Since 1965 the Yearbook also includes a footnote stating that “[e]xtracts from the General List are supplied by the Registry on request.”119 Regrettably, in the 1978 reform the detailed description of the different headings that the General List should contain was deleted altogether, with no apparent explanation. Another amendment introduced in 1978 and severely reducing the role that the General List plays within the overall context of litigation before the ICJ was the deletion of Article 50, concerning the criteria that the Court was bound to use in order to fix the date for the opening of the oral proceedings in any given case. This was deleted and replaced by a general authorization to the Court, or its President in the Court is not sitting, to take the relevant decisions (Article 54).

116  For examples see ICJ Yearbook (1998–1999), p. 297. 117  ICJ Yearbook (1964–1965), p. 92. 118  ICJ Yearbook (1968–1969), p. v. 119  The definite General List of the PCIJ was reproduced in the last report of that organ, covering the years 1939–1945 (PCIJ E 16, pp. 92–147).

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Box # 5-9 Contents of the General List120 Regardless of the fact that this was deleted in the 1978 reform, it is interesting to recall the full contents of Article 20, paras. 2 and 3 of the 1972 Rules, which provide a useful indication as to the type of information that each entry of the General List should contain. There are in fact indications that these headings are still in use, although some of them appear to be obsolete.121 2. The General List shall contain the following headings: I. Number in list. II. Short title. III. Date of registration. IV. Registration number. V. File number in the archives. VI. Class of case (contentious procedure or advisory opinion). VII. Parties. VIII. Interventions. IX. Method of submission. X. Date of document instituting proceedings. XI. Time-limits for filing pleadings. XII. Prolongation, if any, of time-limits. XIII. Date of closure of the written proceedings. XIV. Postponements. XV. Date of the beginning of the hearing (date of the first public sitting). XVI. Observations. XVII. References to earlier or subsequent cases. XVIII. Result (nature and date). XIX. Removal from the list (cause and date). XX. References to publication of the Court relating to the case.

120  S. Rosenne, “The General List of the International Court of Justice”, in Sh. Rosenne, Essays on International Law and Practice (2007), pp. 197–208; S. Yee, “Article 40,” MN 72–78, pp. 964–965. 121  Couvreur, “El Secretario . . .”, pp. 40–41.

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3. The General List shall also contain a space for notes, if any, and spaces for the inscription, above the initials of the President and of the registrar, of the dates of the entry of the case, of its result, or of its removal from the list, as the case may be.

Most of the difficulties experienced with regard to the General List refer to the removal of a case from it but the entering of a case in the List may also give rise to actions disputed by the parties. For obvious reasons, in cases submitted by special agreement the entering of a case in the General List takes place as soon as the necessary notification is received in the Registry and has never presented a problem. As for cases submitted by application, a first type in this category are regular cases in which the application discloses one or more titles of jurisdiction between the party making it and the State named as respondent and thus they are entered in the General List as a matter of course. A second type of cases is composed of those in which the applicant “proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made” (Article 38, para. 5 of the Rules), i.e. cases in which the application fails to specify “the legal grounds upon which the jurisdiction of the Court is said to be based,” as ordered by paragraph 2 of the same provision. As explained above, since the 1978 reform to the Rules in this cases of “unilateral arraignment” no entry into the General List is made and there is no room for the Registrar to take any action with regard to that document “unless and until the State against which such application is made consents to the Court’s jurisdiction for the purposes of the case.”122

Box # 5-10 Disputing the entering of a case in the General List A State named as respondent strongly objected that a document purporting to play the role of an application was entered in the General List, because in its view there was really no case before the Court. The procedure followed to handle this unprecedented situation is interesting, mostly because it showed that the Court is in a position to take certain procedural actions—judicial, not administrative—with regard to the institution of proceedings, even in situa-

122  See Chapter 2, f ).

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tions in which it is itself not convinced that there is an actual contentious case before it. The situation arose in 1995, out of the submission by New Zealand of a document entitled “Request for an Examination of the Situation” which purported to institute proceedings against France with regard to certain actions announced by France which, in New Zealand’s view, would, if carried out, “affect the basis” of the judgment rendered by the Court in 1973 in the Nuclear Tests cases. New Zealand clearly considered that these were not fresh proceedings, because they were essentially a continuation of the original litigation, on the ground that the finding of the Court in paragraph 63 of the 1974 judgment gave it a right to request “the resumption of the case begun by Application on 9 May 1973.” (Nuclear Tests (Request for Examination), Order of 22 Sep. 1995, ICJ Rep. 1995, p. 289, para. 3). On 21 August 1995, New Zealand transmitted to the Court a letter of resignation of the judge ad hoc it had chosen for the original litigation— in 1973!—and notified the appointment of a new person in that capacity (ibid., p. 291, para. 7). As for jurisdiction, the request stated that, as the basis of the 1974 Judgment was altered and, consequently, New Zealand was entitled to seek a resumption of the proceedings instituted in 1973, “the bases of the jurisdiction of the Court remaining the General Act for the Pacific Settlement of International Disputes of 26 September 1928, as well as France’s acceptance of the Optional Clause as it stood at the time of the original Application.” (Nuclear Tests (Request for Examination), Order of 22 Sep. 1995, ICJ Rep. 1995, p. 290, para. 4). France informed the Court, through its Ambassador in The Hague, that no basis existed which might found, even if only prima facie, the jurisdiction of the Court to entertain the requests by New Zealand, that the claim concerning atmospheric tests no longer existed and that “as the Court manifestly lacked jurisdiction in the absence of the consent of France, neither the question of the choice of a judge ad hoc, nor that of the indication of provisional measures, arose.” More importantly, it concluded that “the action of New Zealand could not properly be the object of entry in the General List.” (Nuclear Tests (Request for Examination), Order of 22 Sep. 1995, ICJ Rep. 1995, pp. 292–293, para. 13). Faced with this unprecedented situation, which clearly called for an ad hoc procedure, the President of the Court invited the two States, “if they so wished,” to briefly present, in an “informal aide-mémoire,” their positions “regarding the legal nature of the New Zealand Requests and of their effects.” Having received these documents, on 8 September 1995 the Registrar addressed to both States identical letters stating:

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The Court . . . held a private meeting in order, inter alia, to enable the President to consult his colleagues on various matters relating to the submission of the documents concerned. At the closeof that meeting, it was agreed that (. . .) the Court will hold a public sitting in order to enable New Zealand and France to inform it of their views on the following question: ‘Do the Requests submitted to the Court by the Government of New Zealand on 21 August 1995 fall within the provisions of paragraph 63 of the Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests (New Zealand v. France)?’ (Nuclear Tests (Request for Examination), Order of 22 Sep. 1995, ICJ Rep. 1995, p. 296, para. 27)

The letter contained the carefully drafted caveat that “[t]he above arrangements shall in no way prejudice any decision which the Court will subsequently take regarding the existence or not of a case before it”. However, it also recorded the Court’s decision “bearing in mind the composition of the Court at the time when the Judgment was delivered” to admit the judge ad hoc appointed by New Zealand to join the Court for the purposes of that sitting and to make the necessary solemn declaration. After the closing of these oral proceedings,123 the Court came to the conclusion that the request submitted by New Zealand did not fall within the provisions of paragraph 63 of the 1974 judgment and, therefore, must be dismissed. The dismissal applied also to the separate “further” request for provisional measures made by New Zealand and to the parallel requests for permission to intervene and/or declarations of intervention filed by third States, which were all contingent on the former. This decision was embodied in an order made citing as sole authority the Court’s general powers under Article 48 of the Statute. It contains two interesting paragraphs mentioning the entry of the case in the General List and the subsequent decision to direct the Registrar to remove it from there. They read:

123  Rosenne calls attention to the fact that instead of using the common terms “oral proceedings” o “hearing,” the order speaks of “public sitting.” Similarly, the term “aide-mémoire,” used to refer to the documents to be submitted by the parties, is completely alien to the Court’s governing instruments and practice. This only underlines the entirely sui generis nature of the procedure crafted by the Court to deal with the request by New Zealand, which this author calls “pre-judicatory or threshold proceedings” (Rosenne’s Law and Practice, vol. 2, p. 817, note 35).

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44. (. . .) New Zealand has submitted a “Request for an Examination of the Situation” under paragraph 63 of the Judgment delivered by the Court on 20 December 1974 in the Nuclear Tests (New Zealand v. France) case; . . . such a request, even if it is disputed in limine whether it fulfils the conditions set in that paragraph, must nonetheless be the object of entry in the General List of the Court for the sole purpose of enabling the latter to determine whether those conditions are fulfilled; and . . ., consequently, the Court has instructed the Registrar, pursuant to Article 26, paragraph 1 (b), of its Rules, to enter that Request in the General List; 66. (. . .) as indicated in paragraph 44 above, the “Request for an Examination of the Situation” submitted by New Zealand in accordance with paragraph 63 of the 1974 Judgment has been entered in the General List for the sole purpose of allowing the Court to determine whether the conditions laid down in that text have been fulfilled in the present case; (. . .) following the present Order, the Court has instructed the Registrar, acting pursuant to Article 26, paragraph 1 (b), of the Rules, to remove that Request from the General List as of 22 September 1995; (Nuclear Tests (Request for Examination), Order of 22 Sep. 1995, ICJ Rep. 1995, pp. 302, 306)

As it is observed, the Court simply ignored France’s formal request not to enter New Zealand’s request in the General List, but limited this entry for the purposes of enabling the Court to determine whether the conditions set in paragraph 63 of the 1974 Judgment were fulfilled by the request. Having found that they were not, the Court simply reversed course and instructed the Registrar to remove the request from the List. Interestingly, this decision is recorded in the reasoning section of the order. In the operative part only the dismissal of the requests is mentioned. Taking into account the caveat contained in the Registrar’s letter of 8 September 1995, it is possible to conclude that throughout the entire process the Court had serious doubts as to “the existence or not of a case before it” and the entry in the List of the request did not have the effect of admitting the existence of such a case. This awkward situation, in which despite the fact that there is no actual case before the Court a document is entered into the General List and a State is authorized to appoint a judge ad hoc to take part in proceedings leading the Court to conclude that there is no such a case, will probably never present again before the Court. In a declaration appended to the order by Vice-President Schwebel, he retorted that, despite the ambiguities of the situation, the Court was in fact confronting a real case:

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Whatever the reservations expressed, it is plain that when fifteen judges gathered in their robes in the Great Hall of Justice of the Peace Palace, and when Judge ad hoc Sir Geoffrey Palmer took his oath of office, the Members of the Court did not meet, Pirandello style, in search of a courtroom or a case, but conducted an oral hearing on a phase of a case. (Nuclear Tests (Request for Examination) Declaration of Vice-President Schwebel, ICJ Rep. 1995, p. 309)124

Finally, it is interesting to note what the current Registrar of the Court had to say with regard to the process of entering of a case in the General List: As for the entering of a case in the General List, the Registrar is under a duty to carry it out it since the moment of the deposit of a written document, formally valid, instituting proceedings, even when it is evident that the basis for jurisdiction invoked is not serious. This is because any appreciation on the jurisdiction is always a judicial task that only the Court is competent to undertake (see art. 36, para. 6 of the Statute)125 Further Reading General Works, Series and Treatises Sir F. Berman, “Article 42”, in Oxford Commentary, pp. 1078–1087 Guyomar’s Commentaire, pp. 229–276 Hudson’s PCIJ, pp. 527–546 M. Kohen, “Article 39”, in Oxford Commentary, pp. 909–921 Mani’s Adjudication, pp. 54–102 Rosenne’s Law and Practice, pp. 1165–1247 Rosenne’s Procedure, pp. 91–101 124  For a comment see B. Kwiatkowska, “New Zealand v. France Nuclear Tests: The Dismissed Case of Lasting Significance”, Virginia JIL, vol. 37 (1996), pp. 107–190. 125  Couvreur, “El Secretario . . .”, pp. 41–42 (translation by the author). The original reads: “En cuanto a la inscripción en el Registro, el Secretario tiene la obligación de efectuarla desde el momento del depósito de un escrito formalmente válido incoando el procedimiento, incluso cuando es evidente que la base de competencia invocada no es seria, ya que la apreciación de la competencia es siempre un trámite judicial que compete únicamente a la Corte (vid. Art. 36–6 del Estatuto).” See, in the same direction S. Rosenne, “Provisional Measures and Prima Facie Jurisdiction Revisited”, in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge Shigeru Oda (2002), vol. 1, p. 536.

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Scerni’s La procédure, pp. 619–629 Thirlway’s Law and Procedure, Part. 12, BYIL, vol. 72 (2001), pp. 57–69 S. Yee, “Article 40”, in Oxford Commentary, pp. 922–999 Articles and Monographs J.B. Acosta Estévez, El Proceso ante el Tribunal Internacional de Justicia (1995), pp. 1754–180 M. Bedjaoui, “The ‘Manufacture’ of Judgments at the International Court of Justice”, ICJ Yearbook (1996–1997), pp. 234–242 J.P. Cot, “Appearing ‘for’ or ‘on behalf of’ a State: The Role of private Counsel before International Tribunals”, in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge Shigeru Oda, vol. 2 (2002), pp. 835–847 P. Couvreur, “Le Greffier de la Cour internationale de Justice: Statut et Fonctions”, The Global Community Yearbook of International Law & Jurisprudence, vol. 3 (2003), pp. 19–78 R. Lapidoth, “The ‘compromis d’arbitrage’ ” in K. Koufa (Ed.) International Justice (1997), pp. 73–99 L.C. Marion, «  La saisine de la CIJ par voie de compromis  », RGDIP, vol. 99 (1995), pp. 257–300 M. Matheson, “Practical Aspects of the Agent’s Role in Cases before the ICJ”, LPICT, vol. 1 (2002), pp. 467–479 S. Oda, “The International Court of Justice viewed from the Bench (1976–1993)”, RC, vol. 244 (1993-VII), pp. 32–35 A. Orakhelashvili, “Interpretation of Jurisdictional Instruments in International Dispute Settlement”, LPICT, vol. 6 (2007), pp. 170–182 A. Pellet, “Remarks on proceedings before the International Court of Justice”, LPICT, vol. 5 (2006), pp. 163–182 J.J. Quintana, “Procedure before the ICJ: A Note on the Opening (or Not) of New Cases”, LPICT, vol. 9 (2010), pp. 115–126 S. Rosenne, “The Agent in Litigation in the International Court of Justice”, in S. Rosenne, An International Law Miscellany (1993), pp. 259–288 S. Rosenne, “ICJ: Practice Directions on Judges ad hoc; Agents, Counsel and Advocates; and Submission of New Documents”, LPICT, vol. 1 (2002), pp. 223–245 S. Rosenne, “Unilateral Applications to the International Court of Justice”, in S. Rosenne, Essays on International Law and Practice (2007), pp. 171–195 P. Tomka, “The Special Agreement”, in N. Ando (ed), Liber amicorum Judge Shigeru Oda (2002), vol. 1, pp. 553–65 Sir A. Watts, “New Practice Directions of the ICJ”, LPICT, vol. 1, (2002), pp. 247–256

Part 3 Conducting the Litigation (Ordinary Proceedings)

∵

The conduction of litigation before the ICJ involves participation in the two major components of contentious proceedings, namely, the written proceedings stage (Chapter 6) and the oral proceedings stage (Chapter 7). While the former revolves around the pleadings that the parties are directed to file with the Court, within certain time-limits , the second consists of a series of public hearings that take place with marked solemnity at the great hall of justice of the Peace Palace in the city of The Hague, seat of the Court. The production of evidence will also be considered in this part of the work, as it may take place at either stage of the proceedings (Chapter 8).

Chapter 6

Written Proceedings Stage: The Pleadings The Court underlined the importance that the pleadings have from the point of view of the principle of equality and the correct administration of justice: The provisions of the Statute and Rules of Court concerning the presentation of pleadings and evidence are designed to secure a proper administration of justice, and a fair and equal opportunity for each party to comment on its opponent’s contentions. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 26, para. 32)

Within this framework, the written proceedings stage consists of the submission by the parties of a series of documents that are generically called “pleadings” (“plaidoiries”), within time-limits set by the Court or by the President. Article 43, para. 2 of the Statute identifies these acts of procedure by name, by providing that The written proceedings shall consist of the communication to the Court and to the parties of memorials, counter-memorials and, if necessary, replies; also all papers1 and documents in support. The number of written pleadings to be filed in a case is variable and depending on this number it is common to speak of “rounds” of pleadings, a round consisting of the submission of a pleading by each of the parties, always preserving the strictest equality between them. Ordinarily, two or three rounds of pleadings are exchanged before the written stage is done with. Interestingly enough, in the early practice of the PCIJ it was contemplated that the party named as respondent was to file a special document containing a reply to the application—and in which that party could raise any preliminary objection that it may have. In the 1933 Report the Registrar recorded that this system had already been abandoned.2 In fact, when the case is

1  In the French version of the Statute this expression is rendered as “toute pièce et document à l’appui.” In the practice of litigation the term “papers” is rarely, if ever, used. See also Box # 4-1. 2  PCIJ D 2, Add. 3, p. 817.

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s­ ubmitted to the ICJ by means of an application the respondent in essence never replies to this initial document, resulting in a situation that gives the applicant a slight tactical advantage over the former. Another consequence of this (also applicable to special agreement cases) is that the application is not covered by the high degree of confidentiality that under established practice protects the written pleadings, at least up to the date of the opening of the oral proceedings. Indeed, the text of the act instituting proceedings is published by the Registrar shortly after a new case-file is opened and under Article 40, para. 3 of the Statute it is also notified to all States entitled to be parties and to the Secretary-General of the United Nations. In the Barcelona Traction case, the Court referred in a tangential way to this situation and explained that this advantage tends to be neutralized as the proceedings advance in due course: “The scope of the Court’s process is . . . such as, in the long run, to neutralize any initial advantage that might be obtained by either side.”3 Besides, since the written proceedings are formally opened only when an order is made fixing the time-limits for the deposit of the first pleadings, it is generally considered that stricto sensu the application does not form part of the documents of the written proceedings. For this reason, the situation described does not affect the principle of equality of the parties before the tribunal. In the Losinger case, the PCIJ remarked that the document instituting proceedings, whether it was an application or a special agreement, was not covered by the expression “document of the written proceedings,” as it was used in what was then Article 40 of the 1936 Rules.4 By contrast, in certain incidental and derivative proceedings the act instituting proceedings does form part of the written proceedings and often plays the role of the first pleading by the party instituting them. This is the case of proceedings on preliminary objections, intervention, interpretation of judgments and revision of judgments. With regard to the pleadings, Article 44 of the Rules grants ample powers to the Court, and to the President if the Court is not sitting, to take all necessary decisions. This extends not only to the number of pleadings, but also to the order in which they are to be filed and to the time-limits for their filing with the Registry of the Court, with the special proviso that the latter “shall be as short as the character of the case permits” (Article 48). The decisions taken in 3  Barcelona Traction, Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964, p. 25. 4  Order of 27 June 1936, PCIJ A/B 67, p. 22; see also PCIJ E 14, p. 142. That provision corresponds to Article 52 of the current Rules, in which the term “pleadings” replaced “document of the written proceedings.” See on this S. Yee, “Article 40,” in Oxford Commentary, MN 19, p. 934. See also the 1933 report by the Registrar (PCIJ D 2, Add. 3, pp. 815–816).

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the exercise of these powers are usually embodied in orders that are adopted after the President has appraised himself of the views of the parties, as these are expounded in consultations carried out pursuant to Article 31 of the Rules.5 On occasion, however, no separate order will be necessary, if the Court chooses to incorporate a decision concerning time-limits in a decision concerning other matters, such as a judgment on questions of jurisdiction or an order on the indication of provisional measures. Further, while in cases submitted by special agreement due regard must be paid to the pertinent provisions of this instrument, the interests of “a sound administration of justice” prevail in all cases and may justify a decision by the Court forcing a departure from the provisions in a special agreement regarding time-limits.6 In clear contrast with this, the date for the opening of the oral stage of proceedings is not fixed by an order but by a simple decision by the Court or the President, communicated as such to the agents by the Registry. This was also the practice with regard to time-limits during the written stage up to 1928.7 Time-limits are fixed by setting a specific period but always indicating a definite date (“. . . not later than a given date”), as provided for in Article 48 of the Rules. Occasionally, a time-limit has included a specific time of the day.8 This followed the results of a discussion within the PCIJ as to the moment at which the time-limits should begin to run. While some judges favored the view that this should be from the day on which the order fixing the time-limit was adopted, the majority thought it best to leave to the Court to fix the day on which a time limit should start. At this point, judge Nyholm suggested that the Court should never fail to state the day on which the time limit should start, a formula that was eventually adopted.9 An interesting question is that the Court is free to select, not only the amount of time that it will allocate to each party, but also the precise date from which that time will begin to run. In the case of the first pleading by each party, for instance, the time-limits can be computed either as of the date of the institution of proceedings or as of the date on which the Court issues an order fixing them, something that usually takes places several months later, once the meeting referred to above has taken place. In the case of the second or third 5  Guyomar’s Commentaire, p. 287. 6  PCIJ E 7, p. 295. See also Mani’s Adjudication, p. 96. 7  Hudson’s PCIJ, p. 557. 8  In an order made on 10 April 1961, for instance, it is recorded that a given time-limit would expire at noon (Barcelona Traction, Order of 10 April 1961, ICJ Rep. 1961, p. 10). 9  PCIJ D 2, pp. 130–131. See also PCIJ E 14, p. 144.

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round of pleadings, another date that is usually taken as a point of reference is that on which the previous pleadings have been filed. As a general rule, the parties comply with the time-limits but there is always the possibility of extending them, which in fact happens quite often.10 In order to extend a time-limit a request by the concerned party is required and the Court itself, after it has been appraised of the views of the other party, must to be satisfied that such a request is justified (Article 44, para. 3).11 An indirect (and not always convenient) consequence of granting extensions is that, under the principle of equality of the parties, the time-limit fixed for the delivery of the corresponding pleading by the other party should also be extended, thus prolonging the overall duration of the litigation.12 Under the same provision, the Court may at any time, at the request of a party, “decide that any step taken after the expiration of the time-limit fixed therefor shall be considered as valid.”13 When it fixes these time-limits the Court is bound to take into account any agreement that the parties may have reached, but with the important qualification that this will be done only if the said agreement “does not cause unjustified delay” (Article 44, para. 2). This is a signal that the current Rules of Court aim to empower it to do its utmost to reduce and accelerate proceedings, as far as this is feasible.14 In the US Hostages case, for instance, a few days after adopting an order indicating certain provisional measures, the President of the Court fixed extremely short time-limits for the first (and only) round of written pleadings, taking into account the circumstances of the case, in which the life and personal integrity of a sizeable group of persons was at issue. The order adopted to that effect contained a caveat according to which the respondent State (who was not appearing) was entitled to apply to the Court

10  For the criteria to be taken into consideration to grant extensions and examples from the practice of both courts see Mani’s Adjudication, pp. 96–99. A good study on extensions based on empirical data—albeit a little outdated—can be found in L. Gross, “The Time Element in the Contentious Proceedings in the International Court of Justice”, AJIL, vol. 63 (1969), pp. 74–85. 11  The Court is free both to refuse a postponement that has been agreed to by the other party and to grant one that has been objected. For examples of both situations see Asylum case (ICJ Rep. 1949, pp. 267–268; ICJ Rep. 1950, p. 125). 12  See a comment in Muller’s Procedural Developments, LPICT, vol. 4 (2005), p. 153. 13  For examples see East Timor, Judgment of 30 June 1995, ICJ Rep. 1995, p. 93, para. 5 and Avena, Merits, Judgment of 31 March 2004, ICJ Rep. 2004, p. 18, para. 6. 14  E. Jiménez de Aréchaga, “The Amendments to the Rules of Procedure of the International Court of Justice”, AJIL, vol. 67 (1973), p. 6.

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for ­reconsideration of these time-limits.15 With regard to this case, it is also to be noted that in cases of lack of appearance the Court is scrupulous in fixing time-limits for the pleadings of both parties and always endeavors to maintain a full procedural equality of the parties during the written proceedings stage. Absent special circumstances, under settled practice States are usually given nine months for the first round of pleadings and six months for the second round.16 a)

Number and Order of Pleadings17

Each of the pleadings has a specific name, according to the order in which it is to be submitted in the course of the litigation. This order, as it will be explained below, depends in the first place on the method of seisin, but in general terms it will always be as follows: Memorial --- Counter-Memorial --- Reply --- Rejoinder Interestingly enough, up to 1936, the initial pleadings were called in English the “Case” and the “Counter-Case,” following the usage in Article 43 of the Statute, duly preserved in Article 39 of the 1922 Rules. In 1936 the Court replaced these terms for “Memorial” and “Counter-Memorial,” respectively, in what became Article 41 of its Rules, with the argument that the word “case” was equivocal, as it was also used to refer to the proceedings themselves.18 In San Francisco care was taken to amend Article 43 in the English version in order to adjust it to the terminology used in the Rules.19

15  US Hostages, Order of 24 Dec. 1979, ICJ Rep. 1979, p. 24. These time-limits were 15 January 1980 for the Memorial of the United States and 18 February 1980 for the Counter-Memorial of Iran, i.e., less than a month from the date of the order for the first pleading by the applicant and less than two months from that date for the first pleading by the respondent. 16  For proposals to shorten these periods see Sir A. Watts, “Enhancing the effectiveness of Procedures of International Dispute Settlement”, Max Planck Yearbook of United Nations Law, vol. 5 (2001), p. 33. 17  This section concerns proceedings before the full Court. As will be seen in Chapter 19, proceedings before chambers operate according to specific rules that differ in significant aspects from this template. 18  PCIJ D 2, Add. 3, p. 768. 19  M.O. Hudson, “The 24th Year of the World Court”, AJIL, vol. 40 (1946) p. 38.

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From the formal point of view these documents are identical and the only way to distinguish them is by reference to the place that they occupy within the general order of the pleadings. As to their substance, they do differ in as much as the second pleading is always subordinate to the first, the third to the second and so on. The question of the number and order of pleadings to be deposited in every case is closely related to the degree of control that the Court is called to exercise over proceedings, with or without the immediate acquiescence of the parties involved in the litigation. In general terms, before the 1972 amendment to the Rules the parties to contentious cases were simply used to exercise in full and with virtually no limits their right to plead their cases as they saw fit and in certain instances the volume of the written pleadings reached inordinate proportions. This trend was mentioned by the Court in one of the best examples of these “monster” cases, the Barcelona Traction, in which it found that, from the point of view of the proper functioning of international justice, it was far from desirable that the length of the written proceedings in contentious cases should be so pronounced. The Court was keen, however, in apportioning blame where blame was due, i.e. on the States parties themselves: [t]he Court considers that reference should be made to the unusual length of the present proceedings, which has been due to the very long time-limits requested by the Parties for the preparation of their written pleadings and in addition to their repeated requests for an extension of these limits. The Court did not find that it should refuse these requests and thus impose limitations on the Parties in the preparation and presentation of the arguments and evidence which they considered necessary. It nonetheless remains convinced of the fact that it is in the interest of the authority and proper functioning of international justice for cases to be decided without unwarranted delay. (Barcelona Traction, Second Phase, Judgment of 5 Feb. 1970, ICJ Rep. 1970, pp. 30–31, para. 27)20

In the discussions at the General Assembly during the years 1970–1974—in the wake of overextended litigations like Barcelona Traction or South West Africa—21 20  See also the comments in the same direction by judges Fitzmaurice (Separate Opinion, ICJ Rep. 1970, p. 113) and Jessup (Separate Opinion, ibid., p. 221). 21  These two are, still today, the most voluminous cases to have come before the ICJ. In the South West Africa litigation (between 1960 and 1966) the collection of pleadings goes up to 12 volumes and in Barcelona Traction (between 1962 and 1970) it reaches 10 volumes.

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it was clear that a number of States were very much against an undue prolongation of cases. This situation translated in the Court assuming, via the reform to its Rules, a larger degree of control over the course of the proceedings, both during the written and the oral stages. Several provisions in the current Rules attest to this. The general rules on the number and order of pleadings can be found in articles 45 and 46 of the current Rules, providing for different regimes according to the method used to institute proceedings. The basic distinction contained in the Rules with regard to the order of the written pleadings is that in cases submitted by application the pleadings are submitted consecutively, while in cases submitted by special agreement they are submitted simultaneously.

Figure 1-A

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Under Article 45, para. 1, in cases instituted by application the written proceedings stage should be limited to a single round of consecutive or successive pleadings, that is, a Memorial by the applicant followed by a Counter-Memorial by the respondent. Paragraph 2 of the same provision contains the exception that the Court may authorize or direct the filing of a second round of pleadings (a Reply by the applicant, followed by a Rejoinder by the respondent) “[i]f the parties are so agreed, or if the Court decides, proprio motu or at the request of one of the parties, that these pleadings are necessary.” It is important to register that under this rule, even if both parties agree that a second round of pleadings is convenient or necessary, the final decision on this point falls always upon the Court. These provisions were introduced in the Rules in 1972, with a clear intention to eliminate what up to then was considered an unqualified right of the parties to submit a second pleading— a right that, as accurately pointed out by a former President of the Court, did not really have a statutory basis.22 Further, in April 2002 the Court took a series of measures in order to expedite the examination of cases brought before it. One of these concerned the number of pleadings in cases submitted by application and reads as follows: 1. (. . .) The Court has decided that, consistently with Article [45], a single round of written pleadings is to be considered as the norm in cases begun by means of an application. A second round of written pleadings will be directed or authorized only where this is necessary in the circumstances of the case. In cases where this occurs, Article 49, paragraph 3, of the Rules of Court provides that “The Reply and Rejoinder, whenever authorized by the Court, shall not merely repeat the parties’ contentions, but shall be directed to bringing out the issues that still divide them.” (emphasis in the original)23

22  Jiménez de Aréchaga, “The Amednments . . .”, p. 5. 23  ICJ Press Release 2002/12, 4 April 2002, p. 2. Interestingly, this is not a practice direction but one of a set of “measures” that the Court adopted in April 2002. At the same time that the Court took these measures and reported accordingly, it was “promulgating” Practice Directions VII to IX, as an addition to those initially approved in October 2001 (Practice Directions I to VI). In a subsequent communication the Registry quoted this press release without adding any qualification and therefore one may safely assume that these “measures” have not been replaced by the practice directions adopted later and co-exist with them (ICJ Press Release 2004/30, 30 July 2004). See also Prager’s Procedural Developments, LPICT, vol. 1 (2002), pp. 426–430.

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Limiting the written stage of proceedings to a single round of pleadings has several practical advantages, which were identified as follows by a commentator of the 2002 measures: First, parties will have to present their full case in the first round of pleadings. In particular, they will be discouraged from withholding certain factual or legal documents for the second round. Parties will also have to present all documents in the first round of pleadings, in particular since Practice Direction IX makes clear that the Court seeks to implement Article 56 of the Rules more strictly. Second, and more importantly, the Court’s decision will put more emphasis on the hearings. Since the applicant’s first opportunity to reply to the written pleadings of the respondent will now, as a norm, be in oral argument, the hearings will be more lively, and will not be limited to a mere restatement of the arguments already made in the written proceedings.24 In practice, however, and despite these obvious advantages, it would be very rare if the Court were to refuse a request—much less a joint request—for the filing of a second round of pleadings. In fact, practice shows that more often than not both parties are in agreement as to the need for a second or even a third round and it is hard to find cases in which they have felt contented with the exchange of one single pleading. Also, when the respondent raises objections to jurisdiction and/or admissibility and chooses to include them in its Counter-Memorial there is a high probability that the applicant will request to be afforded the opportunity to respond to these objections in a second written pleading, just as it happens when the Counter-Memorial contains a counter-claim.25 Despite the Court’s apparently firm indication that a single round of written pleadings is to be considered as the norm in cases begun by means of an application, this has happened in just a handful of cases submitted since the adoption of this measure.26 In all the remaining cases a second round was authorized and in one of them there was even room for a third round. In clear departure from Article 45 of the Rules, then, and much against the Court’s 24  Prager’s Procedural Developments, LPICT, vol. 1 (2002), p. 429. 25  For a recent example see Interim Accord, Order of 12 March 2010, ICJ Rep. 2010, p. 11. On objections presented as a plea in bar see in general Chapter 12, c). 26  Avena, Merits, Judgment of 31 March 2004, ICJ Rep. 2004, p. 18, para. 6; Mutual Assistance, Judgment of 4 June 2008, ICJ Rep. 2008, p. 182, para. 9; Obligation to Prosecute or Extradite, Merits, Judgment of 20 July 2012, para. 8.

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wishes, as expressed in 2002, the norm remains that in cases submitted by application two rounds of successive pleadings usually take place before the case can be considered to be “ready for hearings.” However, there have been interesting developments in this regard. The Whaling in the Antarctic case, for instance, is believed to be the first instance in which the Court put on record a decision “not to direct a Reply [by the applicant] and a Rejoinder [by the respondent].”27 Similarly, in the Activities in the Border Area case the Court registered that at a meeting of the agents with the President of the Court the parties “agreed not to request the Court´s authorization to file a reply and a rejoinder.”28 On the basis of these, one feels authorized to perceive the possible emergence of a general conviction that having a single round of written pleadings is the most convenient for both Court and parties. Article 45 does not contemplate on its face the possibility of a third round of pleadings in cases submitted by application. In the first occasion in which the parties in a case in this group requested leave from the Court to file a third pleading the Court complied but found it necessary to invoke Article 101 of the Rules in the qualities of the order, stressing also the “exceptional circumstances” of the case.29 Interestingly, in the Court’s lexicon there is no technical term to refer to the pleadings to be exchanged during this third round. Since in cases submitted by special agreement the pleadings are exchanged simultaneously, the first round is constituted by Memorials, the second by CounterMemorials, the third by Replies and an eventual fourth round by Rejoinders. In the case of consecutive pleadings the first round is constituted by a Memorial by the applicant and a Counter-Memorial by the respondent and the second by a Reply and a Rejoinder. For this reason, the pleadings to be exchanged during the third round in this case were simply called by the Court “additional pleadings.” As for cases instituted by special agreement, Article 46 of the Rules provides that, absent a special provision in that instrument, the written proceedings stage will consist in two rounds of simultaneous—not successive—pleadings, that is, a Memorial by each of the parties, followed by a Counter-Memorial, also by each of them, for a total of four pleadings. The primary rule is, of course, that the number and order of pleadings are matters governed by the provisions 27  Whaling in the Antarctic, Declaration of intervention, Order of 6 Feb. 2013, fifth preambular clause. 28  Activities in the Border Area, Counter-claims, Order of 18 April 2013, para. 10. Presumably, this would also be applicable to the parallel Construction of a Road case, which was joined to the former by means of orders made on 17 April 2013. 29  Criminal Proceedings, Order of 16 Nov. 2009, ICJ Rep. 2009, p. 306.

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in the special agreement itself, but in case this instrument is silent on the question and the parties cannot reach agreement as to that aspect of the procedure, the subsidiary rule stipulating two rounds of simultaneous pleadings applies. Under Article 46, para. 2, the Court will not authorize a third round of pleadings (Replies) “unless it finds them to be necessary.” Therefore, if the parties wish to go deep into the presentation of their cases it is better for them to include a special provision for three or four rounds of pleadings in the text of the special agreement, rather than having to request the Court to authorize the conduction of an additional round at a later date.

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The preference for simultaneous pleadings in special agreement cases has the consequence that proceedings in them tend to be remarkably longer due to the ensuing proliferation of pleadings. After all, it is only natural that every State party tends to wait until the opponent has made its arguments known before fully revealing its own. In fact, in cases like these it is almost unavoidable to have a third round, given that the full extent of each party’s case will be apparent only after the exchange of the second pleadings.30 However, permutations are allowed. In the Borchgrave case, submitted by special agreement, the parties requested leave of the Court to present their pleadings alternatively “as in a case brought by application,” and the Court duly complied.31 A similar situation arose in the Corfu Channel case.32 The opposite situation, that of a case submitted by application in which the parties agreed to the simultaneous presentation of their pleadings, was foreseen by the PCIJ when drafting its initial Rules.33 It is believed that the closest to this that has happened before the present Court was in the Qatar v. Bahrain case, in which the Court ordered the parties to file simultaneous pleadings, notwithstanding that the proceedings had been submitted by application. For all practical purposes this case was treated as if it had been submitted by special agreement.34

Box # 6-1 Order of pleadings in special agreement cases: Practice Direction I The Court addressed the situation of the order of pleadings in cases submitted by special agreement in its 1998 “Note” concerning the reconsideration of its working methods. In this Note, it was pointed out that “[t]he simultaneous filing by parties of their written pleadings is not an absolute rule in such circumstances” and that, in consequence, the Court “[w]ould see nothing but advantages if, in these cases, the parties agreed, in accordance with Article 46, para. 2, of the Rules of Court, to file their pleadings alternately.”35

30  Sir A. Watts, “New Practice Directions of the ICJ”, LPICT, vol. 1 (2002), pp. 248–249. See also K. Highet, “Evidence, The Chamber, and the ELSI Case”, in R.B. Lillich (Ed.), Fact-Finding Before International Tribunals (1991), p. 45. 31  PCIJ E 13, p. 150. 32  ICJ Yearbook (1953–1954), p. 111. 33  PCIJ D 2, pp. 72–73. 34  Qatar v. Bahrain, Jurisdiction and Admissibility II, Judgment of 15 Feb. 1995, ICJ Rep. 1995, p. 21, para. 40. 35  Annex to ICJ Press Release 1998/14, 6 April 1998, point 3, a).

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With this, the Court was distancing itself from a position adopted by the PCIJ as early as 1934, when a coordination commission dealing with aspects of the Rules to be revised remarked with apparent firmness that [i]l va sans dire (. . .) que, en général et notamment en case de doute, la Cour préférera, dans les instances introduites par compromis, la méthode de la présentation simultanée de [les] pièces [de la procédure écrite].36 However, a member of the Court has rightly recalled that the practice of providing for simultaneous pleadings in special agreements is in fact relatively recent. In the first cases before the present Court in which this method of seisin was used (Minquiers and Ecrehos, Certain Frontier Lands and North Sea Continental Shelf) the parties followed the model of consecutive pleadings. The practice of providing for simultaneous pleadings began only with the Tunisia/Libya Continental Shelf case.37 In the Practice Directions that subsequently expanded and replaced the 1998 Note, the Court took a step further and quite openly made an effort to discourage the parties to special agreements from employing simultaneous rather than consecutive pleadings.38 The text of the current Practice Direction I reads: Practice Direction I The Court wishes to discourage the practice of simultaneous deposit of pleadings in cases brought by special agreement. The Court would expect future special agreements to contain provisions as to the number and order of pleadings, in accordance with Article 46, paragraph 1, of the Rules of Court. Such provisions shall be without prejudice to any issue in the case, including the issue of burden of proof. If the special agreement contains no provisions on the number and order of pleadings, the Court will expect the parties to reach agreement to that effect, in accordance with Article 46, paragraph 2, of the Rules of Court.

36  PCIJ D 2, Add. 3, p. 867. In 1926 the Court rejected a proposal directed to provide for the successive presentation of pleadings in special agreement cases in which the notification of this instrument to the Court was made unilaterally (Guyomar’s Commentaire, p. 297). 37  P. Tomka, “The Special Agreement”, in N. Ando (ed), Liber amicorum Judge Shigeru Oda (2002), vol. 1, p. 562. See also Guyomar’s Commentaire, pp. 299–300. 38  Annex to ICJ Press Release 2001/32, 31 Oct. 2001.

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It is apparent that in adopting this measure the Court borrowed almost word for word a suggestion made in 1996 by a Study Group of the British Institute of International and Comparative Law (Study Group Report, p. 36). Another source of inspiration may have been Article 92, para. 1 of the Rules, concerning the conduction of proceedings before chambers.39 It should be noted, however, that this provision, adopted in October 2001, has not met with success, for apparently it has not been followed in any of the special agreement cases submitted after that date. In all the cases that have been submitted by special agreement after the adoption of Practice Direction I (Benin/Niger, in 2002; Malaysia/Singapore, in 2003 and Burkina Faso/Niger, in 2010) the text of the agreement contained express provisions on simultaneous rounds of pleadings. In fact, taking into account the traditional attitude of the parties in cases submitted by special agreement and the very fact that the Rules themselves contain provisions for simultaneous pleadings as a residual rule, it is a little unrealistic to expect those States to switch easily to a system of successive pleadings. In this light, Practice Direction I appears to be slightly divorced from reality.40 A more sensible course of action would be for the Court to amend straightaway Article 46, para. 2 of the Rules in order to insert there the concept of successive pleadings as a residual rule in cases submitted by special agreement. However, since this was not done, the norm in cases submitted by special agreement remains that two or three rounds of simultaneous pleadings are used.

It must be taken into account that any decision to authorize additional pleadings in both, cases submitted by application and cases submitted by special agreement, can be taken by the President, if the Court is not sitting, but “without prejudice to any subsequent decision of the Court.” (Rules, Article 44, para. 4). This provision also specifies that if the consultation of the President with the agents of the parties “reveals persistent disagreement between the parties” as to the number and order of any additional pleadings, the Court must be convened to resolve the matter, which in practice leads to ­interlocutory

39  On this see Chapter 19, b). 40  Along the same lines see A. Pellet, “Remarks on Proceedings before the International Court of Justice”, LPICT, vol. 5 (2006), p. 178. See a discussion on the question of simultaneous v. consecutive pleadings in UNITAR Colloquium II, pp. 18–19.

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proceedings on the specific question of whether further pleadings are required at this juncture. In connection to this, under Article 49, para. 3 of the Rules the Reply and Rejoinder—should they be authorized by the Court—“shall not merely repeat the parties’ contentions, but shall be directed to bringing out the issues that still divide them.” This formulation presupposes that at this stage of the litigation it is left to the parties themselves to determine the issues of fact and law that “still divide them.” However, the interlocutory proceedings foreseen in Article 44, para. 4 might very well pave the way for an early enquiry by the Court concerning the identification of the questions still dividing the parties. This has the potential to create difficulties, including that of the Court prematurely taking a position on questions pertaining to the merits.41 b)

Contents of the Pleadings

Article 49 of the Rules is very precise as to the basic contents of every pleading. The Memorial, to begin with, shall comprise three main sections: (i) A statement of the relevant facts; (ii) A statement of law; and (iii) The submissions. The Counter-Memorial has, by its very nature, a larger scope than the Memorial and shall contain: (i) (ii) (iii) (iv) (v)

An admission or denial of the facts stated in the Memorial; Any additional facts, if necessary; Observations concerning the statement of law in the Memorial; A statement of law in answer thereto; and The submissions.

It is also important to note that under Article 80, para. 2 of the Rules, in the event that the respondent wishes to file a counter-claim, it should be included in these submissions.42

41  Rosenne’s Procedure, p. 103. 42  On counter-claims in general see Chapter 13.

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As for the Reply and Rejoinder, if they are authorized by the Court, their contents are not described in detail but in an indirect manner. The abovementioned provision of the Rules stipulates what they should not contain (a mere repetition of the parties’ contentions) and what their purpose must be (bringing out “the issues that still divide them”). Paragraph 4 of Article 49 lays down an important rule that is common to all written pleadings, namely: Every pleading shall set out the party’s submissions at the relevant stage of the case, distinctly from the arguments presented, or shall confirm the submissions previously made. This provision underlines the distinction between the submissions and the arguments. While the former consists of the petitum,43 the latter are more elaborate intellectual constructions that aim at supporting the submissions and providing them with a solid legal basis. It is clear that when finalizing each of its pleadings, a State party has a choice in this regard, for it can either set out its submissions as they may be “at the relevant stage of the case,” or simply confirm the submissions previously made. As for the petitum, it consists of a succinct formulation of what the party filing the pleading would like the Court to resolve in the dispositif of the decision—ordinarily employing the ritual expression “The State X requests the Court to adjuge and declare. . .”44 The importance of the submissions in the written pleadings was recently underlined by the Court, when it remarked that “[i]t should be noted that the Memorial is of considerable importance, not just because it expounds the Applicant’s arguments, but also because it specifies the submissions.”45 The term “submissions” is used again in the section of the Rules dealing with the oral proceedings (Article 60, para. 2), but in this case the Rules are referring rather to the final submissions, to be submitted in writing at the closing of the oral proceedings stage, which are the ones that, in the last analysis, govern the decision-making process by the Court.46 In any case, the previous 43  The term was used by a chamber of the Court in the Burkina Faso/Mali case, albeit with reference to the final submissions of the parties (Merits, Judgment of 22 Dec. 1986, ICJ Rep. 1986, p. 579, para. 50). 44  The Court has called this a “traditional formula” (Nuclear Tests (Australia v. France), Judgment of 20 Dec. 1974, ICJ Rep. 1974, p. 263, para. 30). 45  Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 444, para. 90. 46  For details see Chapter 7, b).

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versions of the submissions, as they are formulated in the closing section of each of the written pleadings are relevant for a proper interpretation of the final submissions because they show with variable degrees of clarity the evolution of each party’s position, as the litigation process develops and follows its course.47 In connection to this, Article 95, para. 1 of the Rules directs that the text of the submissions presented by both parties be reproduced in the judgment. This includes the submissions presented in the act instituting proceedings (if any), those presented during the written proceedings (in each of the pleadings filed) and those read and filed with the Registry at the end of the oral proceedings (the final submissions).48

Box # 6-2 Scope of the pleadings: Practice Directions II and III Practice Direction II, adopted in 2001 on the basis of one of the provisions included in the 1998 “Note containing recommendations to the parties to new cases,” is aimed at providing guidance to the parties on a proper understanding of the role that the pleadings are to play within the overall context of the litigation. It provides in its first sentence: Practice Direction II Each of the parties is, in drawing up its written pleadings, to bear in mind the fact that these pleadings are intended not only to reply to the submissions and arguments of the other party, but also, and above all, to present clearly the submissions and arguments of the party which is filing the proceedings. In the light of this, at the conclusion of the written pleadings of each party, there is to appear a short summary of its reasoning.

47  It appears to be clear that a contention that is not reproduced in the final submissions is not one which the Court is called to address, although it may “[t]hrow light upon the intention of the previous submission” (Monetary Gold, Preliminary Question, Judgment of 15 June 1954, ICJ Rep. 1954, p. 28). 48  For an example of a refusal by the Court to authorize a party to amend its submissions (during the written proceedings) “[i]n order to ensure the procedural equality of the Parties” see Avena, Merits, Judgment of 31 March 2004, ICJ 2004, p. 18, para. 7.

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This provision also stresses the distinction between “the submissions and arguments” of each party, which is in line with the rules contained in Article 49. Practice Direction II also introduces into the Court’s procedure a useful practical device that some States were already using when drafting their pleadings, that of a “short summary” of their reasoning. This provision calls for two comments. In the first place, the last sentence of Practice Direction II appears to impose an unequivocal duty on each of the parties to include a “short summary of its reasoning” at the conclusion of its written pleadings. The wording of the 1998 “Note” in which this measure made its appearance for the first time in the Court’s practice was considerably weaker: “In the light of this, any summary of the reasoning of the parties at the conclusion of the written proceedings would be welcome.” It is apparent that under the new formulation the inclusion of a short summary is now a formal requirement which States are bound to comply with when drafting their pleadings. Secondly, since the summary is to be provided “at the conclusion of the written pleadings” of each party (and not at the conclusion of each written pleading), it would appear that this summary must feature only in the last pleading of that party and not at the closing section of each of the pleadings that are filed in the course of the written proceedings stage. Nevertheless, practice shows that litigating States are growing accustomed to including a short summary at the end of each pleading—right before the submissions—and this in itself shows that they may have found this device useful, if only for methodological reasons. Finally, in January 2009 the Court revised once again its procedures and working methods and decided to introduce a new sentence in Practice Direction III, which until then was concerned only with the documents annexed to the pleadings. The new provision deals with the actual volume of each pleading by stating: The parties are strongly urged to keep the written pleadings as concise as possible, in a manner compatible with the full presentation of their positions. This is unprecedented, inasmuch as the Court had previously never made any attempt to limit the size of the pieces of the written phase of proceedings. It is submitted that States parties to cases will find it difficult to comply with this direction. As parties in litigation are normally desirous of including a “full presentation of their positions” in every pleading that they file before the Court, it will prove hard to do this while at the same time remaining faithful to the (new) requirement that each pleading is to be kept concise.

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(c) Annexes Annexes are mentioned twice in the Statute: in Article 43, para. 2, in which it is provided that the written proceedings shall consist of the communication to the Court and to the parties of the written pleadings and “also, all papers and documents in support;” and Article 52, in which mention is made of “further . . . written evidence” that one party may desire to present after the Court has received the proofs and evidence within the time specified for that purpose. The latter provision is particularly relevant, for in most cases the documentation presented in the form of annexes to the pleadings is intended to constitute evidence that is submitted to the Court during the written proceedings stage. The Court has emphasized—in the context of proceedings on intervention—that “[t]he choice of the means whereby [a] State . . . seeks to prove its assertions lies in the latter’s sole discretion.”49 Paragraph 3 of Article 50 of the Rules, then, can be construed as allowing the parties to use the mechanism of documents annexed to a pleading as a vehicle to submit evidence to the Court.50 In virtually every case, then, each pleading will be accompanied by annexes, which are defined in Article 50, para. 1 of the Rules as “[r]elevant documents adduced in support of the contentions contained in the pleading.” They comprise treaties and other international instruments, diplomatic correspondence, official documentation and correspondence, legislation, excerpts from books and articles and even press clips. On occasion, “opinions” or “reports” by experts are produced, including authoritative opinions on topics of international law offered by learned authors. The same provision states that the original of every pleading must be supplemented with certified copies of such documents (paragraph 1) and must include a list of all documents that are annexed (paragraph 3). However, the Court has clarified, again in the context of intervention proceedings, that a list of documents annexed to a pleading must be included “[o]nly where such documents have in fact been attached” to the said pleading.51 States are free to refrain from attaching documents to a pleading and in that case no list of

49  Indonesia/Malaysia, Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep. 2001, p. 587, para. 29. In the same passage of this decision the Court also noted that “[p]aragraph 3 of Article 81 of its Rules has the same purpose, mutatis mutandis as paragraph 3 of Article 50.” 50  The submission of documentary evidence is further discussed in Chapter 8, d). 51  Indonesia/Malaysia, Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep. 2001, p. 587, para. 29.

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annexes must be furnished. Also, a document mentioned in an argument can be simply referenced in a footnote and not be included as an annex.52 Paragraph 2 of Article 50 deals with situations in which only parts of a document are relevant. In these cases all that must be annexed are “[s]uch extracts as are necessary for the purpose of the pleading in question,” provided that a copy of the whole document in its original version is deposited in the Registry. This forms a separate volume of “Originals of the Annexes,” of which two copies must be filed with the Registry. As a general rule, this consists of a batch of photocopies of the original documents, of which excerpts have been included, duly translated into one of the official languages of the Court, as annexes to the pleading. An exception is made, however, when the document in question has been published and is readily available.53 According to an author, “[t]he rationale of such a practice is evidently to avoid any wrong inferences to be drawn from the extracts and bits, and leave the tribunal free to decide for itself the probative value of the extracts alluded to in the context of the whole document.54

Box # 6-3 Originals and photocopies55 Under Article 50, para. 1 of the Rules, “certified copies” of any relevant documents adduced in support of the contentions contained in the pleading shall be annexed to the original of every pleading. Ordinarily, the Court is satisfied with typed copies or photocopies certified as true (“copie certifiée conforme”) by the Agent of the party submitting it, but it always retains the right to request the original of a given document to be produced.56 This type of situation has occurred occasionally, as the following samples demonstrate:

52  This notwithstanding, the PCIJ chastised a State for not having included certain annexes to its Memorial and called it “to produce all documents which were cited in the [Memorial] and which had not previously been filed” (PCIJ E 9, p. 168). 53  For the criteria used to determine whether a given document can be considered as being published and “readily available” see Box # 6-7. 54  Mani’s Adjudication, p. 221. On extracts see also W.F. Foster, “Fact Finding and the World Court”, Canadian YIL, vol. 7 (1969), p. 163. 55  Mani’s Adjudication, pp. 219–220. 56  For challenges to the authenticity of a document submitted by the other party see Box # 8-8.

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Corfu Channel

During the hearings on the merits in this case, one of the parties submitted “a photostat of an extract from a document” and the other party objected ­basing itself on the fact that the copy was not certified as authentic. The judgment records in the following manner the Court’s reaction, which definitively did not go as far as the objecting party had wished: [t]he Court, on November 24th, 1948, made a decision in which it reminded both Parties of the provisions of Article 48 and Article 43, paragraph 1, of the Rules of Court;57 held that the document in question could be received only if it were presented in an original and complete form; ordered that all documents which the Parties intended to use should previously be filed in the Registry ; and reserved the right to inform the Parties later which of these documents should be presented in an original, and which in certified true copy, form. (emphasis added) (Corfu Channel, Merits, Judgment of 9 April 1949, ICJ Rep. 1949, p. 8)58

ii) Ambatielos A short while before the opening of the oral proceedings at the preliminary objections phase in this case, the Court addressed a letter to both parties requesting to be furnished with certain documents. Most of them were requested in certified true copy but with regard to a treaty that was highly relevant the Court explicitly requested the production of the original of several documents, including the text of the treaty, the instruments of ratification and the protocol of exchange of ratifications. The same communication, however, anticipated that if the production of the original presented difficulties the Court could accept certified copies, as long as a number of formal conditions were fulfilled.59 57  Interestingly, Article 43, para. 1 of the 1946 Rules (Article 47 of the 1972 version) only required that “a copy” of the documents in support should be annexed to the pleading. The requirement that they be “certified copies” was introduced in 1978. 58  See also ICJ Pleadings, Corfu Channel, vol. 3, p. 539. For more details on this episode see J. Evensen, “Evidence before International Courts”, NordTIR, Acta Scandinavica Juris Gentium, vol. 25 (1955), pp. 52–53. 59  ICJ Pleadings, Ambatielos, p. 547. For a similar occurrence in the Right of Passage case see Guyomar’s Commentaire, pp. 314–316.

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The reduction of the volumes of annexes is a perennial desideratum in international adjudication and the Court has adopted several measures in that direction. In the 1998 “Note,” for instance, it decided to ask the parties to see to it that “the annexes are more strictly selected.”60 This developed and became Practice Direction III, which reads: Practice Direction III (. . .) In view of an excessive tendency towards the proliferation and protraction of annexes to written pleadings, the parties are. . . urged to append to their pleadings only strictly selected documents.61 It is to be noted that annexes are documents that work as a companion to every written pleading that is filed and the Rules contain no distinction between initial and final pleadings in this regard. A former President of the Court has suggested an amendment to the Rules directed at ordering that all major ­documentation, like reports of a highly technical nature, is presented as annexes to the first round of pleadings, confining annexes to the subsequent rounds to “limited and essential documentation.”62 The rationale for this would be to avoid the protraction of the written phase, because when one document of that kind is produced in the second or third round of pleadings it is unavoidable that the other part would feel entitled to counter with a document of its own that would need to be produced also as an annex to a further pleading. It is questionable whether the States parties are ready for such a drastic interference with their right to present their cases as they see fit during the written proceedings stage. In addition, the Court has been disinclined to accept the submission of documentation that is not presented formally as annexes to the pleadings. In the Nicaragua v. Honduras case, for instance, at the moment of filing its CounterMemorial, Honduras filed two sets of “additional documents which were not 60  ICJ Press Release 1998/14, 6 April 1998, “Measures concerning the Parties,” point 2. 61  Originally, Practice Direction III referred only to the question of the annexes. The text was revised in January 2009 and a new paragraph was added concerning the contents and length of the written pleadings. Annexes are now mentioned in the second (unnumbered) paragraph of Practice Direction III. 62  R. Higgins, “Respecting Sovereign States and Running a Tight Courtroom”, ICLQ, vol. 50 (2001), p. 126.

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produced as annexes thereto, but were, according to Honduras, provided only for informational purposes.”63 The President of the Court met with the agents of the parties in order to agree on a procedure to be followed with regard to those documents. This was a two-step procedure, involving the fixing of a time-limit during which Honduras had to inform the Registry “which of the additional documents it intended to produce as annexes to the said CounterMemorial under Article 50 of the Rules of Court” and, subsequently, the actual filing of them as “additional annexes to the Counter-Memorial.”64 d)

Questions of Language, Printing and Format

The question of the language to be used throughout the proceedings was discussed in general terms in Chapter 4. Article 51 of the Rules governs this aspect of litigation with regard to the written proceedings stage and in general seeks to ensure that all documents submitted to the Court are promptly available in both official languages. It is interesting to note that nothing in this provision compels the parties to submit their entire pleadings in a single language and, in fact, the opposite is clearly envisaged by paragraph 1 of Article 51, which provides that if the parties do not agree to use only one language “any pleading or any part of a pleading shall be submitted in one or other of the official languages.”65 If both languages are used indistinctly and each party presents its pleadings in either of the official languages, the Registrar’s practice is to produce a non-official translation into the other language, for exclusive use of the members of the Court. On occasion, States parties have made observations concerning specific aspects of these translations.66 In practice it is generally assumed by the parties’ legal teams that each written pleading should be in one single language and that the indistinctive use of both languages is confined for the oral proceedings stage. Paragraph 3 of Article 51, in particular, provides that if a document annexed to a pleading is not in one of the official languages, the party producing it must include a certified translation. The rule is flexible for it allows for the party to translate only relevant passages of the annexes, by providing as follows:

63  Nicaragua v. Honduras, Judgment of 8 Oct. 2007, ICJ Rep. 2007, p. 664, para. 7. 64  Ibid. 65  Emphasis added. 66  Guyomar’s Commentaire, pp. 321–322.

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The translation may be confined to part of an annex, or to extracts therefrom, but in this case it must be accompanied by an explanatory note indicating what passages are translated. The Court may however require a more extensive or a complete translation to be furnished. This rule is further developed in paragraph 2 of the “Note for the parties concerning the preparation of pleadings,” which is handed out to the Agents at the first meeting with the Registrar. According to this guideline: 2. Under Article 50, paragraph 1, and Article 51, paragraph 2, of the Rules relevant documents are to be annexed to the pleading, and any such document not in English or French is to be accompanied by a certified translation into one of those languages. For practical convenience, it is acceptable if the relevant annex to the pleading is constituted by the translation (into the language used for the pleading itself) of such a document; but if this is done at least two certified copies of the originallanguage text of the document must be filed with the pleading, one of which will be transmitted to the other party. Moreover, under Article 50, paragraph 3, of the Rules, a signed list of all documents annexed to the pleading is to be furnished at the time of the filing. (emphasis in the original) In practice, the pleadings and their respective annexes, in one of the Court’s official languages, are printed in separate volumes under each party’s ­responsibility.67 The party submitting a pleading is to deposit with the Registry, within the time-limit fixed by the Court, an original, duly signed, of the pleading, as well as certified translations of those annexes which are not in English or French. It is also required to provide a second certified copy for communication to the other party and the number of copies of the volumes of the printed pleading and the annexes that the Registry requires (see below). Two copies of a separate folder containing “certified copies of the original-language text” of any document that is not in English or French should also be deposited. These are usually photostatic copies certified as accurate by the Agent and the translation of these documents into one of the Court’s languages—or, more commonly, the translations of the relevant excerpts—are included as part of the volume of printed annexes. In any case, the fact that a party is bound to

67  This is not applicable to the act instituting proceedings, which is printed and translated by the Registry.

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present a translation of a document into one of the official languages of the Court does not imply that the Court will use it.68

Box # 6-4 Translation of annexes One of the heaviest tasks to be performed by the Registry is the translation of every pleading (and document annexed to it) into the other of the Court’s languages. As this is an aspect of its work that consumes a large portion of its budget, it is only natural that the Court has sought ways to reduce this burden and expedite the job of translating the documentation. In 1998, the Court adopted a measure to that end and included it in the “Note” that was the direct forerunner of the Practice Directions issued in October 2001. The relevant provision, which is applicable to both the pleadings and the annexes, reads as follows: Practice Direction IV Where one of the parties has a full or partial translation of its own ­pleadings or of those of the other party in the other official language of the Court, these translations should as a matter of course be passed to the Registry of the Court. The same applies to the annexes. These translations will be examined by the Registry and communicated to the other party. The latter will also be informed of the manner in which they were prepared.69

The original of each pleading, signed by the Agent and duly dated (the date of its receipt in the Registry is the date that “will be regarded by the Court as the material date” (Rules, Article 52, para. 1)), is filed in the Registry, along with supplementary documentation. A full listing of the materials to be supplied to the Registry on the occasion of the filing of a pleading is as follows:

68  For examples see Elettronica Sicula, Judgment of 20 July 1989, ICJ Rep. 1989, p. 41, para. 47 and El Salvador/Honduras, Merits, Judgment of 11 Sep. 1992, ICJ Rep. 1992, p. 402, note 1. 69  For examples of curious situations faced by the Court with regard to translations of a party’s pleadings see Sir R. Jennings, “The Role of the International Court of Justice”, BYIL, vol. 68 (1997), pp. 11–12.

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· An original copy of the pleading, signed by the Agent, to which is annexed a · · · · ·

certified copy of any relevant document adduced in support of the contentions put forward; An English or French translation, certified by the Agent to be accurate, of any part of a pleading or annexed document submitted in another language; A copy, certified by the Agent, of the pleading and annexed documents, for communication to the other party; 125 further copies of the pleading and annexed documents (75 of which should be on paper, while 50 may be on CD-ROM); An electronic copy of any pleading; and In the case of any document of which only parts are relevant and only necessary extracts have been annexed to the pleading, a copy of the whole document.70

Since the 1972 amendment to the Rules, the copies of the pleadings do not have to be printed and can be reproduced by other means.71 In any case, even after this requirement was deleted from the Rules, the printing of the pleadings was a task in which the Registry lent a hand to litigating States. To that end, Article 52 of the Rules used to contain a paragraph concerning the procedure to be followed when the Registrar itself arranged for the printing of a pleading, at the request and under the responsibility of a party (paragraph 3, as adopted in 1978). The published version of the Rules also contained a footnote to Article 52 which read: “The agents of the parties are requested to ascertain from the Registry the usual format of the pleadings, and the conditions on which the Court may bear part of the cost of printing” (emphasis added). In April 2005 the Court—no doubt, for budgetary reasons—decided to amend Article 52 by deleting altogether the then paragraph 3 and the footnote to the Article was amended accordingly, deleting the last sentence. Therefore, the partnership between the parties and the Registry with regard to the printing of the pleadings is, now, regrettably, a thing of the past.72 In any case, the Registry has an understandable interest in preserving as much as possible a uniform format for the pleadings that the parties submit. To this end the following provision was included in the “Note for the parties concerning the preparation of pleadings:”

70  ICJ Yearbook (2009–2010), p. 213. 71  Jiménez de Aréchaga, “The Amendmens . . .”, p. 6. 72  For a comment see Muller’s Procedural Developments, LPICT, vol. 4 (2005), pp. 352–354.

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3. In a footnote to Article 52 the agents of the parties are requested to ascertain from the Registry the usual format of the pleadings. This format should be respected, irrespective of whether the document is printed or not; the purpose is to secure a certain degree of uniformity in the pres­ entation of the pleadings, thus facilitating their handling and study. A copy of the Registry’s Rules for the Preparation of Typed and Printed Texts is being supplied to you.73 These Rules consist of a detailed handbook on methodology for the preparation of the pleadings that often includes idiosyncratic rules that are out of use in other contexts. It is not surprising that in the geographic surroundings of the seat of the Court, in the city of The Hague, there is a flourishing publishing industry that specializes in the printing and editing of pleadings and annexes. Litigating States usually avail themselves of these highly technical services. As for corrections to the pleadings and the documents in support, the early practice of the Court was restrictive: when one party intended to take actions like withdrawing certain annexes or filing a list of errata the Court would seek the agreement of the other party and would only authorize such an action if and when this agreement was obtained.74 The rationale for this was that, in principle, the contents of a document which had been duly filed were considered by the Court as ne varietur. The question is now governed by Article 52, para. 3 of the Rules, providing that the correction of a slip or error (“erreur matérielle”) in a document which has been filed “may be made at any time with the consent of the other party or by leave of the President.” A provision along these lines has been present in the Rules since the revision in 1936 and the travaux make it clear that this procedure is only applicable to purely clerical errors.75 In practice, a State desiring to introduce a correction to one of its pleadings or to an annex to a pleading will submit to the Registry a list of errata in the form of a corrigendum and the latter will notify it to the other party or parties “in the same manner as the pleading to which it relates.” The intervention by the President would be required only if the other party objects, something that is bound to occur only very rarely. Further, if the other party’s objection is upheld by the President

73  The text can be consulted at www.icj-cij.org. 74  PCIJ D 2, Add. 3, p. 816. For examples see Guyomar’s Commentaire, pp. 334–335. 75  PCIJ D 2, Add. 3, pp. 605–607.

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and the correction does not go through, there is nothing to prevent the first party to make the point at the hearings.76 e)

Closure of the Written Proceedings Stage

Remarkably, neither the Statute nor the Rules define the exact point in time at which the closure of the written proceedings is to take place. Article 52, para. 1 of the Rules limits itself to state that “[u]pon the closure of the written proceedings, the case is ready for hearing” (“en état”).77 As for the practice of the Court, the only certain fact in this regard is that no formal order is issued recording the fact that the written stage in a given case is closed or that a case is ready for hearing. According to the prevailing view, the closure of the written proceedings stage “[i]s reached automatically on the day following the filing of the last pleading within the time-limit, or with the expiration of that time-limit without a pleading having been filed.”78 The most natural way to interpret this assertion is by concluding that the written stage is closed on the next day that the last pleading is filed or (when a party fails to file its pleading, as it happens in cases of lack of appearance) on the next day that the time-limit fixed for that final pleading expires. The problem with this approach is that in many cases a party filing a pleading has no way of being sure that it will be its last. In a case instituted by application, for instance, in which the written proceedings stage consists in principle of a single round of pleadings, the fact of the matter is that the closing of the written proceedings will occur only after both parties are absolutely certain that no additional pleadings will be filed, something that may well be dependent on a formal decision by the Court, in the terms of Article 45, para. 2 of the Rules.

76  This was observed by Anzilotti during the discussions in 1936 (PCIJ D 2 Add. 3, p. 605). 77  The closure of the written proceedings is also mentioned in passim in other provisions of the Rules such as Articles 9 (assessors); 17, para. 1 (chambers); 37, para. 3 (national judge); 69, para. 2 (information by international organizations) and 81, para. 1 (Article 62 intervention). Further, Article 1 of the Resolution Concerning the Internal Judicial Practice of the Court refers to “the termination of the written proceedings.” 78  Rosenne’s Law and Practice, vol. 3, p. 1302. See also Tams, “Article 52”, in Oxford Commentary, MN 5, p. 1314.

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If, for instance, the respondent files its Counter-Memorial and the other party allows some time to elapse before filing a request for a second pleading— which will be entirely natural, because such a decision can only be taken after careful study of the arguments put forward in the Counter-Memorial—it can hardly be said that the written proceedings stage was closed on the date of the filing of the Counter-Memorial (unless it is accepted that a request for an additional round has the effect of re-opening the written stage, something which appears highly artificial). The date of the closure of the written stage would then become entirely contingent on the manner in which the Court reacts to this request, for if it grants it, that date will be postponed until after the completion of the second round but if it rejects it, the closure date could only be on or after the date of the decision of the Court containing the rejection. A good example of the latter situation is found in the Fisheries Jurisdiction (Spain v. Canada) case, in which the Court denied the applicant’s request for a further round of pleadings at the jurisdiction and admissibility phase and determined that “consequently” the case became ready for hearings then and there: [b]y Order of 8 May 1996, the Court decided that it was sufficiently informed, at that stage, of the contentions of fact and law on which the Parties relied with respect to its jurisdiction in the case, and that the presentation, by them, of further written pleadings on that question ­therefore did not appear necessary. The case was consequently ready for hearing with regard to the question of the jurisdiction of the Court. (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction, Judgment of 4 Dec. 1998, ICJ Rep. 1998, p. 436, para. 6)

In the case of proceedings instituted by special agreement the situation is even more complicated, for in that instrument the parties usually reserve the right to request leave from the Court to file a second, a third and even a fourth pleading, and until this issue has been settled to everyone’s satisfaction there will be no certainty as to when the written proceedings are to be closed. The Court took note of this situation in several cases with regard to the institution of incidental proceedings on intervention under Article 62—a context in which the date of the closure of the written phase is also dispositive. On at least two different occasions, the Court registered that, since the special agreement contemplated “a possible further exchange of pleadings,” even when the Counter-Memorials of the parties had been filed, “[t]he date of the closure of

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the written proceedings, within the meaning of Article 81, paragraph 1, of the Rules of Court, would remain still to be finally determined.”79 In the Indonesia/Malaysia case, also in reference to a third-party request of intervention, the Court admitted that in cases submitted by special agreement it is difficult, not only for the parties but also for the Court itself, to ascertain the precise date on which the written stage of proceedings has come to an end. The Court stated: It will be recalled that the Special Agreement provided for the possibility of one more round of written pleadings—the exchange of Rejoinders— “if the Parties so agree or if the Court decides so ex officio or at the request of one of the Parties”. It was only on 28 March 2001 that the Parties notified the Court by joint letter “that [their] Governments . . . ha[d] agreed that it is not necessary to exchange Rejoinders.” Thus, although the third round of written pleadings terminated on 2 March 2001, neither the Court nor third States could know on the date of the filing of the Philippine Application whether the written proceedings had indeed come to an end. In any case, the Court could not have “closed” them before it had been notified of the views of the Parties concerning a fourth round of pleadings contemplated by Article 3, paragraph 2 (d), of the Special Agreement. Even after 28 March 2001, in conformity with the same provision of the Special Agreement, the Court itself could ex officio “authoriz[e] or prescrib[e] the presentation of a Rejoinder”, which the Court did not do. (Indonesia/Malaysia, Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep. 2001, p. 586, para. 24)

This dictum can be construed as envisaging the need for some form of action by the Court in order to “close” the written proceedings, a notion that openly conflicts with the idea of an automatic closure, as discussed above. Additionally, the decisions adduced as authority to support the theory of the automatic closure do not confirm on their face the validity of this approach.80 79  Tunisia/Libya Continental Shelf, Application to Intervene, Judgment of 14 April 1981, ICJ Rep. 1981, p. 6, para. 5; El Salvador/Honduras, Application to Intervene, Judgment of 13 Sep. 1990, ICJ Rep. 1990, p. 98, para. 12. 80  Corfu Channel (Compensation), Judgment of 15 Dec. 1949, ICJ Rep. 1949, p. 246; Electricity Company of Sofia, Order of 26 Feb. 1940, PCIJ A/B 80, p. 9. See J.J. Quintana, “Procedure before the ICJ: What is the Exact Date of the Closure of the Written Phase of Proceedings?”, LPICT, vol. 7 (2008), pp. 193–203; S. Talmon, “Article 43”, in Oxford Commentary, MN 91–92,

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A different way to look at the question is that intimated by judge ad hoc Weeramantry in the Indonesia/Malaysia case, in connection to a request for permission to intervene under Article 62 of the Statute: The Court does not have a practice of making a formal order of closure of written proceedings. Closure of written proceedings is thus a de facto situation that arises when the written proceedings are for practical purposes understood to be closed. (Application to Intervene, Separate Opinion of Judge Weeramantry, ICJ Rep. 2001, p. 650, para. 42)

It is submitted that in this quotation, “for practical purposes” could only mean the moment in which the parties—and the Court, for that matter—can be positively sure that there will be no further rounds of pleadings, a moment that in the nature of things cannot happen on the next day that a party’s second or even third pleading is filed. There will always be, therefore, by sheer necessity, a short period after a party has delivered what it considers in good faith to be its final written pleading and before the Court has indicated in some manner—though not necessarily by a formal order—that the written proceedings in the case are formally closed and that the case is “ready for hearing” within the meaning of Article 54, para. 1 of the Rules.81 It is submitted that during this interval, however narrow, both parties are entitled to submit any new documents as they see fit without having to resort to the cumbersome procedure provided for in Article 56 (see below). These documents could be submitted simply as further annexes or additions to the pleadings—in the guise of what Article 43 of the Statute calls “papers and documents in support”— thus belonging in their own right to the not-yet-closed written proceedings in the case.

pp. 1126–1127 and, by the same author, “A Primer on ICJ Procedure— A Commentary on Article 43 ICJ Statute”, Bonn Research Papers on Public International Law, Paper No. 2/2012 (2012), MN 91–92, pp. 57–58. 81  In the Whaling in the Antarctic case, within two months from the date of the filing of the Counter-Memorial by the respondent, the Court took the unprecedented step of issuing a press release putting on record that it had decided that the filing of a Reply and a Rejoinder in this case was not necessary and that “[t]he written proceedings in the case are accordingly closed.” (ICJ Press Release No. 2012/18, 18 May 2012). While this was recorded in a subsequent order (Declaration of Intervention of New Zealand, Order of 6 Feb. 2013, fifth preambular clause) it remains to be seen whether this will inaugurate a practice in cases submitted by application.

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“New Documents”

An important procedural device that litigating States will do well to factor in when organizing their defense is that of the so-called “new,” “late” or “further” documents,82 i.e. documentary material that a State wishes to submit after the written proceedings stage has been closed. In principle, States should include as annexes to their pleadings all those documents to which they intend to make mention during the hearings. However, Article 52 of the Statute provides: After the Court has received the proofs and evidence within the time specified for the purpose, it may refuse to accept any further oral or written evidence that one party may desire to present unless the other side consents. On the basis of this, the norm is that no further documents will be accepted after the closing of the written proceedings and, starting in 1936, the Court has taken measures to ensure that this will happen only in exceptional circumstances and subject to strict criteria of admissibility.

Box # 6-5 “New Documents” in the practice of the PCIJ The procedural device of new documents made its appearance in the Rules of the Court in 1936, with the adoption of one provision expressly devoted to this (Article 48). However, under the 1926 Rules the issue had already arisen in the Peter Pázmány University case, in which the Court had the opportunity to make the following comments: According to the Court’s previous practice, if there is no special decision fixing the time-limit contemplated by Article 52 of the Statute for the production of new documents, this time-limit has been regarded as expiring upon the termination of the written proceedings; if, after a case is ready for hearing, new documents are produced by one Party, the consent referred to in that Article has been presumed unless the other Party, after receiving copies of such documents, lodges an objection; but in the

82  The expression used in Article 52 of the Statute is “document nouveau.” The English version of this provision is drafted in more general terms and makes reference to “further . . . written evidence.”

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absence of that Party’s consent, the Statute allows the Court to refuse to accept the documents in question but does not oblige it to do so. In these circumstances, it is desirable that, at the opening of the oral proceedings, the Court should know the views of the two Parties with regard to the intended production of new documents by one of them. For this reason, such an intention should, if possible, be expressed early enough to enable the other Party to intimate, before the hearings, whether it gives or withholds its consent. (. . .) In his oral reply, the Agent for the Czechoslovak Government cited certain documents and publications not previously filed and read extracts from them. Thereupon the Agent for the Hungarian Government requested the Court to refuse to accept any new document mentioned by the other Party. The Czechoslovak Agent, however, for his part, stated that he had produced no new document; and in fact none had been filed with the Registry. The Court, in adjudicating upon this request, after deliberation, confined itself to the statement that it had before it no new document within the meaning of Article 52 of the Statute and that, consequently, it was not called upon to take a decision. When Article 52 speaks of “documents nouveaux” (“written evidence”) it means documentary evidence.” (Peter Pázmány University , Judgment of 15 Dec. 1933, PCIJ A/B 61, pp. 215–216)

This early decision—adopted exclusively on the basis of Article 52 of the Statute, at a time when the Rules were silent on the matter—already features the aspects that were to determine future discussions on the question of late documents, such as the following: – The general norm is that the time-limit for the production of documents is that of the termination of the written phase, with the corollary that the production of any new document will always be an exceptional procedure; – Consent of the other party to the production of a new document can be presumed, if no objection is raised; – In the context of determining the attitude of the other party toward the production of new documents the important date is that of the opening of the oral proceedings stage; – In order to be admitted, any new document must be filed with the Registry; and, – It is for the Court to make a final decision on the admissibility of new documents, after interlocutory proceedings.

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The applicable provision in the current Rules of Court is Article 56, which is located in the section concerning the oral proceedings stage in contentious cases.83 This provision develops Article 52 of the Statute and is based on Article 48 of the 1946 Rules. However, it is to be noted that Article 56 of the Rules is narrower in scope than Article 52 of the Statute, for it only refers to documentary evidence submitted or intended to be submitted after the closure of the written stage, while the latter covers not only all forms of evidence, but also that which is submitted at any time during the lifespan of the proceedings. The Free Zones case, for instance, has been mentioned as proof that the PCIJ showed a non-formalist approach toward this problem, but in it the discussion was about the admissibility of “new arguments” rather than “new documents.”84 Article 56 is drafted in the negative form and is peremptory as to the fact that, after the closing of the written proceedings, no “further documents” may be submitted to the Court, unless the special procedures therein contained are followed. The rationale of this rule is that the parties have already had the opportunity to include as many documents as they have wanted as annexes to their pleadings, so that the oral stage can safely focus on “[t]he issues that still divide the parties, and shall not go over the whole ground covered by the pleadings, or merely repeat the facts and arguments these contain,” as provided for in Article 60, para. 1 of the Rules. At a deeper level, behind these rules there is an understandable desire on the part of the Court to reduce as far as possible the likelihood of unfair surprises at the oral proceedings stage and to prevent a party from being caught off guard during the hearings.85 The special procedures in question can be found in paragraphs 1 and 2 of Article 56 of the Rules and consist in that the party wishing to produce a new document after the closure of the written phase is to file the original or a certified copy of the document, together with the number of copies required by the Registry, and the latter communicates it to the other party and informs the Court accordingly. If the other party does not lodge any objection to the production of the document its consent will be presumed and the document is incorporated to the case-file.86 In the event of an objection, interlocutory 83  The procedure for the production of new documents appears to be applicable only in contentious proceedings. See on this Tams, “Article 52”, MN 2, p. 1313. 84  PCIJ E 8, p. 268. 85  Tams, “Article 52”, MN 1, pp. 1312–1313. 86  This refers only to the formal admissibility of the document and has no bearing on its admissibility as evidence and much less on its probative value, which will need to be determined by the Court in due course (Rosenne’s Law and Practice, vol. 3, p. 1305).

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proceedings will take place at the end of which the Court will decide whether it admits or rejects the production of the late document, with the important qualification that the admission hinges upon the fact that “[i]t considers the document necessary”. This sentence in paragraph 2 of Article 56 was added in the 1972 reform to the Rules and underlines a more restrictive approach toward this problem, one under which new documents would not be treated as necessary in all cases.87 The interlocutory proceedings envisaged in Article 56 may consist of a mere exchange of views between the parties—either in writing or orally, at the hearing—for the only requirement in paragraph 2 is for the Court to take its decision “after hearing the parties.”88 It has been remarked that Article 56 does not require the Court to be appraised of the contents of the document prior to deciding on its admissibility as new evidence, although under paragraph 1 the Registrar is bound to “inform the Court” of its filing.89 As for the format of this decision, practice shows that after it is taken in camera it is notified to the parties by the Registrar and it is later mentioned in the qualités of the judgment.90 It is important to observe that paragraphs 1 and 2 of Article 56 refer to two different methods for the production of new documents, as it is explicitly recognized in paragraph 3 of the same provision and in the opening sentence of paragraph 1 itself. Under paragraph 1, when there is consent by the other party, a party is thereby authorized to submit new documents to the Court, with the only condition that in filing them with the Registry it complies with the directions mentioned in that paragraph. Strictly speaking, in this scenario the question of the production of new documents never comes before the Court for decision. By contrast, under paragraph 2, when the other party lodges an objection it will be for the Court, after hearing the parties, to authorize the production of the new documents, if it considers them necessary. In both cases, however, Article 56 presupposes that one party moves to produce a new document and that the other party is called to react. A different scenario that is not mentioned at all in Article 56, consists of two States parties 87  For the factors that the Court should weigh when taking a decision under Article 56, para. 2 see D.W. Prager, “Procedural Developments at the International Court of Justice”, LPICT, vol. 1 (2002), pp. 406–407. 88  On this see Box # 4–2. 89  The practice of the Court on this has not been consistent. For a comment see Tams, “Article 52”, MN 16–17, pp. 1318–1319. 90  After some discussion, the PCIJ decided against including a provision in the Rules requiring that this decision should be embodied in an order in all cases (PCIJ D 2, Add. 3, pp. 195–197).

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agreeing among them on the production of some new documents and notifying this agreement to the Court. While this case (express agreement) could be assimilated to that provided for in paragraph 1 of Article 56 (lack of objection or tacit agreement), with the consequence that the Court would have no saying with regard to the production of those documents, a recent decision suggests that the Court will in all cases reserve a role for itself in authorizing the production of these documents.91 Paragraph 5 of the same provision lays down a special rule that the Court must always take into account, according to which “The application of the provisions of this Article shall not in itself constitute a ground for delaying the opening or the course of the oral proceedings.” It is also convenient to take into account that under the principle of equality of arms, in the event that the production of a new document is consented to by the other party or author­ ized by the Court, the former will be afforded the opportunity of commenting upon it and submitting documents on its own in support of those comments (paragraph 3). The importance of the special procedure provided for in Article 56 lies in the fact that under paragraph 4 of the same provision no reference may be made in oral argument to the contents of any document that has not been either included in the pleadings or produced under paragraphs 1 and 2 of this provision, with the only exception being that the document in question “is part of a publication readily available.”92 In practice, it is not unusual that when during a hearing the agent or counsel of a party mentions a given document that apparently is not included as an annex to the pleadings, the President or the Registrar interrupts and takes the floor in order to remind the speaker of the need to comply with the requirements of Article 56 of the Rules.93 The question can be settled on the spot, if for instance it is shown that the document is part of a publication “readily available,” but if this is not the case and the other party raises an objection, the Court will be forced to take a decision on whether it authorizes or rejects the production of the document. This decision can be taken during the hearings or can be postponed for a later moment, in which case the President will inform the parties that they will be notified in due course. In any case, this type of incident is highly disruptive and is not beneficial from the point of view of an orderly conduction of the oral proceedings. 91  Pulp Mills, Judgment of 20 April 2010, ICJ Rep. 2010, p. 26, para. 15. See also Quintana’s Procedural Developments, LPICT, vol. 9 (2010), pp. 354–359. 92  See Box # 6–7. 93  For an early example (under Article 48 of the 1946 Rules) see the Asylum case (ICJ Pleadings, Asylum, vol. 2, pp. 10, 43).

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The Court’s practice in this regard has not been entirely consistent and there have been persistent doubts particularly as to the criteria that the Court should take into account when called to make a decision on the admissibility of a new document. In 1953, as a reaction to the proliferation of new documents in the first cases submitted to it, the Court adopted a general practice direction in this regard, according to which: In future, Agents will be reminded that, in accordance with Article 43 of the Statute, the procedure consists of two parts, one written and one oral; and that the submission of new documents after closure of the written proceedings is permissible only in exceptional circumstances and in conformity with the conditions laid down in Article 48 of the Rules.94 However, problems persisted and in its “Note” of 1998 the Court made a first attempt of setting limits to the States’ right to submit new documents and adopted a concise provision concerning the written stage of proceedings according to which: In order to ease their task at this stage of the proceedings, the Court will, acting by virtue of Article 56 of the Rules of Court, more readily accept the production of additional documents during the period beginning with the close of the written proceedings and ending one month before the opening of the oral proceedings.95 Practice shows that States paid little if any attention to this exhortation concerning the timing for the production of new documents and in many cases Article 56 was invoked on the eve or even on the very date of the opening of the oral proceedings stage. As a partial reaction to this, in April 2002 the Court decided to promulgate more detailed regulations with the aim of “limiting the production of new documents after the closure of the written proceedings”96 and incorporated them in one “Practice Direction” that was to be added to those initially issued in October 2001 (Practice Direction IX).97 Noticeably, in this new provision the Court dropped altogether the artificial time-limit of one 94  ICJ Yearbook (1953–1954), p. 114. 95  Commenting upon this measure, judge Higgins stated that for the Court it represented at the time “[a]llowing a more liberal policy on admission of essential late documents” (Higgins, “Respecting . . .”, p. 129). This position may have been abandoned later. 96  ICJ Press Release 2002/12, 4 April 2002, p. 3. 97  Ibid. See also ICJ Yearbook (2001–2002), p. 5.

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month before the opening of the oral proceedings for the production of a new document. In addition, in December 2006 it amended Practice Direction IX in order to specify that resort to paragraphs 1 and 2 of Article 56 may occur even “during the oral proceedings.”98 This is, after all, compatible with the wording of Article 56, para. 5, according to which the application of the special rules on the production of new documents “[s]hall not in itself constitute a ground for delaying the opening or the course of the oral proceedings”.99 Accordingly, the production of the new document could take place even in the middle of the oral pleadings stage.

Box # 6-6 New documents: Practice Direction IX The full text of Practice Direction IX, as it now stands, is as follows: Practice Direction IX 1. The parties to proceedings before the Court should refrain from submitting new documents after the closure of the written proceedings. 2. A party nevertheless desiring to submit a new document after the closure of the written proceedings, including during the oral proceedings, pursuant to Article 56, paragraphs 1 and 2, of the Rules, shall explain why it considers it necessary to include the document in the case file and shall indicate the reasons preventing the production of the document at an earlier stage. 3. In the absence of consent of the other party, the Court will auth­ orize the production of the new document only in exceptional circumstances, if it considers it necessary and if the production of the document at this stage of the proceedings appears justified to the Court. 4. If a new document has been added to the case file under Article 56 of the Rules of Court, the other party, when commenting upon it, shall confine the introduction of any further documents to what is strictly necessary and relevant to its comments on what is contained in this new document.

98  ICJ Press Release 2006/43, 13 Dec. 2006. 99  Emphasis added.

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This guideline calls for several comments. First of all, paragraph 1 employs a strong language, apparently indicating that the Court intends to restrict as far as possible the resort to the late production of documents, an intention that is clearly reinforced by paragraph 3. According to the latter provision, in case of objection by the other party the Court will only authorize the production of new documents in exceptional circumstances, provided that it considers that (one) The document is necessary and (two) The production of the document at this stage of the proceedings is justified. Nevertheless, it will be noted that over the last decade the Court has rejected requests to produce late or new documents in only a handful of cases. In the Romania v. Ukraine case—which represents the first instance of an express invocation and application of Practice Direction IX—the Court authorized the production of a new document effectively overruling objections raised by the other party ( Judgment of 3 Feb. 2009, ICJ Rep. 2009, p. 65, para. 7). Secondly, under Practice Direction IX the burden for the State wishing to produce a new document is now certainly heavier than it was before, for according to paragraph 2 it must justify to the Court’s satisfaction both the necessity of the document and the reasons that prevented it from producing the document in a timely manner, as part of its regular pleadings. As a balance to this, paragraph 4 considerably limits the margin of action of the other party when reacting to the production of the new document and commenting upon it.

Overall, it can be said that with the adoption of Practice Direction IX the Court has adopted a stricter approach to the procedural device of the submission of late documents.100 However, a few years later, as it will be explained below, the Court considerably relaxed the conditions under which the “part of a publication readily available” exception mentioned in paragraph 4 of Article 56 may be invoked, with the result that it is now relatively easy for legal teams to make reference during the hearings to documents not previously produced. Another point on the submission of late documents is that the procedure set out in Article 56 is fully applicable in cases of lack of appearance, in which the non-appearing State is given every opportunity to raise an objection to their production. This happened in the last instance thus far of lack of ­appearance

100  Sir A. Watts, “New Practice Directions . . .”, p. 251. See also, in the same publication S. Rosenne, “ICJ: Practice Directions on Judges ad hoc; Agents, Counsel and Advocates; and Submission of New Documents”, ibid., pp. 243–245.

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before the current Court, during which, immediately prior to the opening of the oral proceedings stage, the applicant filed a batch of documents that it chose to call “Supplemental Annexes” to the Memorial. In its judgment the Court recalled in a terse passage that “in application of Article 56” these documents were treated as “new documents,” that copies were transmitted to the respondent and that the latter “did not lodge any objection to their production.”101

Box # 6-7 Part of a publication “readily available”: Practice Direction IXbis A State wishing to mention during the hearings a certain document that was not included in the pleadings and not wanting to produce it as a new document under paragraphs 1 and 2 of Article 56 has also the option of claiming that the document “is part of a publication readily available.” Under paragraph 4 of Article 56 of the Rules, if this is the case, the special procedure laid down in paragraphs 1 to 3 of that provision can be excused altogether. In December 2006 the Court adopted Practice Direction IXbis, which “provides the parties with guidance concerning their entitlement under Article 56, paragraph 4, of the Rules to refer during oral proceedings to the contents of a document which is ‘part of a publication readily available’.”102 This detailed new guideline, which is for its most part self-explanatory, reads as follows: Practice Direction IXbis 1. Any recourse to Article 56, paragraph 4, of the Rules of Court, is not to be made in such a manner as to undermine the general rule that all documents in support of a party’s contentions shall be annexed to its written pleadings or produced in accordance with Article 56, paragraphs 1 and 2, of the Rules of Court. 2. While the Court will determine, in the context of a particular case, whether a document referred to under Article 56, paragraph 4, of the Rules of Court, can be considered “part of a publication readily available”, it wishes to make it clear to the parties that both of the following two criteria must be met whenever that provision is applied.

101  Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 18, para. 12. For a critical comment see Tams, “Article 52”, MN 12, p. 1317. 102  ICJ Press Release 2006/43, 13 Dec. 2006, p. 1.

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(i) First, the document should form “part of a publication”, i.e. should be available in the public domain. The publication may be in any format (printed or electronic), form (physical or online, such as posted on the internet) or on any data medium (on paper, on digital or any other media). (ii) Second, the requirement of a publication being “readily available” shall be assessed by reference to its accessibility to the Court as well as to the other party. Thus the publication or its relevant parts should be accessible in either of the official languages of the Court, and it should be possible to consult the publication within a reasonably short period of time. This means that a party wishing to make reference during the oral proceedings to a new document emanating from a publication which is not accessible in one of the official languages of the Court should produce a translation of that document into one of these languages certified as accurate. 3. In order to demonstrate that a document is part of a publication readily available in conformity with paragraph 2 above and to ensure the proper administration of the judicial process, a party when referring to the contents of a document under Article 56, paragraph 4, of the Rules of Court, should give the necessary reference for the rapid consultation of the document, unless the source of the publication is well known (e.g. United Nations documents, collections of international treaties, major monographs on international law, established reference works, etc.). 4. If during the oral proceedings a party objects to the reference by the other party to a document under Article 56, paragraph 4, of the Rules of Court, the matter shall be settled by the Court. 5. If during the oral proceedings a party refers to a document which is part of a publication readily available, the other party shall have an opportunity of commenting upon it. The only observation that this guideline calls for refers to the interaction between paragraphs 2 and 4. Under the former, it will be for the Court to determine in each case whether a given document can be considered “part of a publication readily available” and, if it so finds, to admit the document to the record in the case. However, paragraph 4 appears to indicate that the Court will be called to give a decision on the nature of the document only if an

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o­ bjection is raised by the other party. In the nature of things, however, it may be thought that, even in the absence of an objection by a party, were the Registry or a m ­ ember of the Court to have any doubts as to a given document’s compliance with the criteria laid down in Practice Direction IXbis, the matter would be brought to the attention of the State intending to make reference to that document. In any case, the final decision will always be for the Court to make. It is important to note that Article 56, para. 4 of the Rules and Practice Direction IXbis refer to documents not previously produced. Therefore, when a State invokes these provisions and contends that a given document is part of a publication readily available, it is not really called to “produce” any new documents, but rather it is merely authorized to make reference to its contents during the oral phase of proceedings. The distinction was underlined by one of the parties in the Fisheries Jurisdiction case, in which the other party apparently misunderstood the precise scope of this provision. The Court registered the episode as follows: By letter of 8 June 1998, the Agent of Spain, referring to Article 56, para‑ graph 4, of the Rules of Court, submitted to the Court five official Cana­ dian documents which had been published but not previously produced. A copy thereof was communicated to the Agent of Canada, who, by letter of 9 June 1998, stated that, in his Government’s opinion, the provision referred to by Spain afforded the possibility of making reference in oral arguments to documents which were part of readily available publications, but did not contemplate their production, adding that despite the late date of submission of the documents in question Canada would not object to their production, in order to avoid delaying the work of the Court. (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction, Judgment of 4 Dec. 1998, ICJ Rep. 1998, p. 436, para. 7)

One last aspect of this question is that the procedure contemplated in Practice Direction IXbis is supplementary and not alternative to the different procedures regulated in Article 56 and Practice Direction IX. In the Pulp Mills case, for example, the States parties resorted to all of them in succession: first they notified the Court that they had come to an agreement for the purpose of producing new documents and the Court decided to authorize them to do so;103

103  Pulp Mills, Merits, Judgment of 20 April 2010, ICJ Rep. 2010, p. 26, para. 15. See note 91 above.

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secondly, Uruguay invoked Article 56, para. 4 of the Rules and Practice Direction IXbis and communicated to the Court certain documents forming part of publications readily available, on which it intended to rely during the oral proceedings;104 thirdly, Argentina in turn invoked Article 56 and Practice Direction IX and sent to the Court new documents “which it wished to produce.” Uruguay objected to the production of this third set of documents and the judgment put on record that “the Registrar informed the Parties that the Court did not consider the production of the new documents submitted by the Argentine Government to be necessary within the meaning of Article 56, paragraph 2, of the Rules of Court, and that it had not moreover identified any exceptional circumstance (Practice Direction IX, paragraph 3) which justified their production at that stage of the proceedings.”105

A final aspect of the question of new documents is that the only consequence of rejecting the production of a document appears to be that provided for in paragraph 4 of Article 56, under which none of the parties will be able to make reference to the contents of that document during the oral proceedings stage. However, under paragraph 1 of the same Article the State party wishing to submit a new document is bound to file the document together with the number of copies required by the Registry and the latter will communicate it to the other party and will inform the Court. This has the consequence that the other party, the Registry and the members of the Court get fully acquainted with the contents of the document even if its production is eventually denied. The experience obtained in this regard in the El Salvador/Honduras case has given rise to calls for a revision of Article 56, para. 1, so as to avoid this “anomalous” situation.106 g)

Access to the Pleadings

One of the main differences between arbitration and judicial settlement is the strictly confidential nature of the proceedings that is a feature of the first of these methods of settlement. This stands in contrast with the publicity and

104  Ibid, p. 27, para. 18. 105  Ibid, p. 27, para. 19. 106  Rosenne, “ICJ: Practice Directions . . .”, pp. 244–245.

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transparency that must inform the workings of the International Court of Justice in its condition as a principal organ of the United Nations. In fact, it might be thought that in certain delicate cases the publicity that is implicit in the litigation before the Court can discourage States from submitting to its jurisdiction and rather prompt them to resort to ad hoc arbitration. In litigation before the Court confidentiality of the pleadings is still the rule but only during the written proceedings stage, given that Article 46 of the Statute orders that oral proceedings be public, save in exceptional cases, which are of rare occurrence. As a consequence, up to the moment at which the Court decides to make the pleadings available to the public, their contents will be known only by the parties, the judges and the Court’s staff. In accordance with established practice, the pleadings are communicated to each member of the Court as soon as they are filed in the Registry, or, in the case of a newly elected member of the Court, at the beginning of his term of office. In the case of a judge ad hoc, the pleadings in the case for which he has been appointed are communicated to him as soon as his appointment becomes final and subsequently as soon as the pleadings are filed in the Registry.107 The practice of the Court has always been to insist that the written pleadings remain confidential while the case is pending and, at any rate, until a decision is made under Article 53 of the Rules. One of the implications of this rule is that a party cannot make public its own pleadings, or excerpts of them, without the consent of the other party and without the Court being informed.108 On occasion, States have had to be reminded of this rule. At the time of the PCIJ, the Registrar’s 1933 Report recorded as follows the attitude of the Court with regard to this matter: The Court has objected to the publication by the parties, more particularly in the Press, of the text, in whole or in part, of the documents of the written proceedings. In any case an agreement between the parties, duly notified to the Court, would be required.109

107  ICJ Yearbook (1957–1958), p. 99. This used to be ordered by a specific provision in the Rules (Article 48, para. 1 of the 1972 Rules, corresponding to Article 44, para. 1 of the 1936/1946 Rules) but it was eliminated in the 1978 reform. 108  However, copies of the pleadings can be made available to certain internal authorities, provided that they are treated as confidential while the case is sub judice. For an example see PCJI E 14, p. 147. 109  PCIJ D 2, Add. 3, p. 822. See also PCIJ E 6, p. 284.

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As for the present Court, in the Fisheries case the Registrar sent a letter to the agent of Norway referring to this practice and stating the reasons behind it: [In reference to Article 44, para. 2 of the 1946 Rules, now Article 53] The above-mentioned provisions of the Rules of Court are based on the consideration that it would be inconsistent with the proper administration of justice to expose the pleadings to public, perhaps even to polemical, discussion before the hearing, which, in principle, has to be fully public, as prescribed by Article 46 of the Statute. The reasons which underlie these provisions lead to the conclusion that a party should refrain from making even its own pleadings available to the public, either fully or in the form of extracts or summaries. If there are special circumstances which are thought to justify a departure from this rule, the material should not be made public without the consent of the other party, and not until the Court has been informed, so that it may be in a position to decide on an action it thinks proper.110 Article 53 of the Rules deals with the tension between confidentiality and publicity of the pleadings and attempts to resolve this by means of a rule that contemplates two different situations: (i) Making the Written Pleadings Accessible to Third States When a case is at the written proceedings stage any State who is entitled to appear before the Court may request to be furnished with copies of the pleadings and annexed documents presented by the parties In these situations, Article 53, para. 1 of the Rules provides that the Court or the President, if the Court is not sitting, is to ascertain the views of the parties and to take a decision with regard to the request. In practical terms, there are two groups of States that may feel inclined to make such a request: on the one hand, those with a general (and laudable) interest in the development of the rules of international law governing the subject-matter of the case; and on the other hand those with a concrete and precise interest in the question to which the case refers, as in the case of a neighboring State in proceedings concerning territorial or maritime disputes. In the first instance, a denial by the Court to make available to the third State

110  ICJ Pleadings, Fisheries, vol. 4, p. 629. A letter along the same lines (in French) was sent to the agent of Colombia in the Asylum case (ICJ Pleadings, Asylum, vol. 2, pp. 224–225).

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copies of the pleadings will have no consequence other than forcing it to wait until the pleadings are made public, which usually happens at the opening of the oral proceedings. In the second case, however, a refusal of access to the pleadings might have important consequences related to the third State’s potential inclination to attempt an intervention in the proceedings under either Article 62 or Article 63 of the Statute.111 The link between access to the pleadings and the procedure of intervention is highlighted by the fact that in his 1933 report the Registrar stated unhesitatingly that the relevant provision in the Rules (Article 42 of the 1926 Rules, the predecessor of Article 53 of the current Rules) was “in reality designed to allow States to consider whether or not they desire to intervene.”112 In general, despite the fact that the requirement in Article 53, para. 1 refers merely to obtaining the views, not the consent, of the parties, the tendency of the Court is to respect their wishes on this matter. This has the effect that when one of the parties, or both, raise objections to one such request by a third State, it is invariably denied. Notably, this has happened notwithstanding that the third State has insisted on its request after being denied access.113 If, on the other hand, the request is granted, the third State receiving copies of the documents is bound to maintain their confidential character until they are published.114 In a case in which one of the parties is not appearing, there is certain artificiality in the idea that, by not reacting to the Court’s communication the party concerned voices no objections to granting the third State access to the pleadings. In any case, if a State is not appearing and the request is granted, the third State will have access to the pleadings of the appearing party only, and thus there would be no reason why the former should have a say in the matter.115 (ii) Public Dissemination of the Pleadings It is common practice that on the date of the opening of the oral proceedings the Court (not the President, as it was provided in the 1946/1972 Rules) announces that copies of the pleadings are made available to the public

111  See Box # 14-8. 112  PCIJ D 2, Add. 3, p. 822. See also Hudson’s PCIJ, p. 558; Guyomar’s Commentaire, p. 337. 113  Nicaragua v. Honduras, Judgment of 8 Oct. 2007, ICJ Rep. 2007, p. 665, para. 11. 114  Rosenne’s Law and Practice, vol. 3, p. 1289. 115  For an example see Aegean Sea Continental Shelf, Jurisdiction, Judgment of 19 Dec. 1978, ICJ Rep. 1978, p. 6, para. 11.

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at large.116 Article 53, para. 2 of the Rules also requires that this is done after ascertaining the views of the parties but this is a mere formality and there is no case in recent practice in which any of them has objected to this.117 Interestingly, the former version of this provision (Article 48, para. 3 of the 1972 Rules, which in turn was based on Article 44, para. 3 of the 1946 Rules and Article 44, para. 3 of the 1936 Rules) was stricter, as the consent of the parties was explicitly required and the pleadings could be made public at some time “before the termination of the case.” Under that Rule, there were cases in which the parties asked the Court to authorize the pleadings and annexed documents to be made accessible to the public even before the hearings. The Court agreed to this course and the relevant documents were deposited in the Library of the Peace Palace.118 In the US Nationals in Morocco case one of the parties requested permission to publish the pleadings before the opening of the hearings, invoking the rights of the individuals affected. After registering the other party’s strong objection, the Court declined.119 Article 106 of the Rules—new in 1978—extends this practice to “the written statements and annexed documents” submitted in advisory proceedings. In the event that “[t]he request for advisory opinion relates to a legal question actually pending between two or more States,” the views of those States shall first be ascertained. One interesting feature of this practice is that in proceedings concerning preliminary objections this rule of making public the pleadings unavoidably extends to any pleading on the merits that may have already been submitted, which in most cases will be the Memorial by the applicant. Thus an unusual situation will present itself, for while this initial pleading will be public as of the date of the opening of the oral phase on questions of jurisdiction and ­admissibility, the Counter-Memorial of the other party and any additional

116  On that date, provisional copies of the pleadings are provided by the Registry, on request. Nowadays, the pleadings (but not the volumes of annexes) are also uploaded in the Court’s web site. For a comment see Higgins, “Respecting . . .”, p. 124. 117  In the Mutual Assistance case France objected to the fact that Djibouti had included as a document of the written proceedings a document protected by confidentiality under French law. It therefore requested the Court to delay making the document available to the public on the date of the opening of the oral proceedings. The Court duly obliged ( Judgment of 4 June 2008, ICJ Rep. 2008, p. 182, para. 11). In a case in which a third State has been admitted to intervene, the views of the latter would also be ascertained in advance (ICJ Yearbook (2001–2002), p. 297). 118  ICJ Yearbook (1951–1952), p. 97. 119  Ibid.

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pleadings that still may be filed will be protected by the rule on confidentiality up to the opening of the oral phase on the merits.120

Box # 6-8 Improving the written proceedings stage: The Jennings proposals On several occasions, commentators and scholars have put forward valuable proposals directed to streamline and improve the written proceedings stage before the Court. They usually cover aspects such as shortening time-limits, restricting the granting of extensions of said time-limits, limiting the size of the pleadings and reducing the volume of annexes.121 Most of these have been implemented and are either incorporated into the governing instruments—in particular the Practice Directions—or given due consideration by the Court and its President when making decisions as to the conduction of the written proceedings stage. But by far the most imaginative set of proposals concerning the conduction of the written proceedings stage was advanced by the late Sir R. Jennings in an article published in 2003, shortly before his demise.122 These proposals are inspired on attested practices on the preparation of cases in use in common law systems and apparently are already used in some international arbitrations. They certainly merit serious consideration by both the Court and the parties to cases.

120  This will not happen if the method chosen to challenge the jurisdiction of the Court or the admissibility of the application is that of isolating those questions and devoting the first round of pleadings to them. For details see Chapter 12, c). 121  Among others, see H.H. Bachrach, “Practical Aspects of International Litigation”, in Proceedings of the American Society of International Law at its 64th Annual Meeting (1970), vol. 64, pp. 248; M. Reisman, “Accelerating Advisory Opinions: Critique and Proposal”, AJIL, vol. 68 (1974), pp. 650–651; Study Group Report, pp. 34–40; UNITAR Colloquium I, pp. 101–164; UNITAR Colloquium II, pp. 18–20; G. Griffith, “Modernising the General Business of the International Court of Justice: A Critical Evaluation”, Australian YIL, vol. 17 (1996), pp. 77–78. 122  Sir R. Jennings, “The Work of the International Bar”, in in L. Ch. Vohrah et al. (Eds.), Man’s Inhumanity to Man-Essays on International Law in Honour of Antonio Cassese (2003) pp. 452–456.

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i)  Early Organization of Preliminary Aspects of the Case by the Parties This would happen before the case goes to the Court. The lawyers of both parties could get together and attempt to draft an agreed list of the main issues which divide the parties. Even if no agreement is possible, the parties could exchange their respective lists of such issues and this could go a long way in facilitating the Court’s task. In the words of judge Jennings: Considering how much time the ICJ and other international tribunals nearly always have to spend at a much later stage deciding what the issues in the case are, there is much to be said for having the parties make some effort to tackle it, even at the earliest stage.123

ii)  Requests for “Further and Better Particulars” Concerning Evidence This consists in getting some agreed basis for the later examination of evidence and resembles the process of “discovery” in certain legal systems. Once the written pleadings have been exchanged and each party has a pretty good idea of the facts alleged by the counterpart and of the evidence offered in support, each of them would be entitled to request that the other furnishes “further and better particulars,” because it is not satisfied that the evidence presented is sufficient. If the request is not satisfied, the moving party could go to the Court and ask from it an order requiring the production of such materials. According to judge Jennings, even if such an order would lack the force that a similar action could have in domestic systems with it “[t]he court or tribunal has a very powerful weapon in the possibility of damaging comment or indeed tacit inference.”124

iii) Agreed Statement of Admissions The parties could come together and agree on a list of matters which are essentially undisputed by the parties, including not only aspects of the case that they both perceive and formulate in the same manner, but also

123  Ibid., p. 453. 124  Ibid.

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arguments put forward by one party on which there is an admission by the other party. In Jenning’s view: In this way, with a reasonably comprehensive list of admissions, much of the time of the court can be saved, and court time is not spent on discovering and establishing, usually a fairly long list, of allegations by the either side that are, or seem to have been, “admitted.”125

iv) Single Bundle of Documents of the Case The representatives of the parties would be required to jointly create a separate single bundle of documents which may be needed during the oral proceedings and on whose pertinence and presentation they are in agreement. This would not only translate into a sensible reduction of the number of annexes that each party feels constrained to append to its pleadings but also would go a long way in correcting the current practice concerning the “Judges’ Folders” that are used during the oral stage. Indeed, it is common practice that the same document appears as an annex in the pleadings of both parties and that the folders in question contain several documents in common with only slight variations of format, a situation that judge Jennings strongly condemns as being “[a] cumbersome, tiresome, and utterly pointless complication and also an extremely costly way of proceeding.”126



Further Reading



General Works and Treatises on the Court

Guyomar’s Commentaire, pp. 283–346, 359–376 Hudson’s PCIJ, pp. 547–560 Mani’s Adjudication, pp. 103–161 Rosenne’s Law and Practice, vol. 3, pp. 1249–1315 Rosenne’s Procedure, pp. 102–119

125  Ibid. 126  Ibid., p. 455. This last proposal had been advanced before by the same author (Sir R. Jennings, “The Role of the International Court of Justice”, BYIL, vol. 68 (1997), p. 11). On the judges’ folders see Box # 7-3.

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Scerni’s La procédure, pp. 630–634 Study Group Report, pp. 34–40, 70–72 S. Talmon, “Article 43”, in Oxford Commentary, pp. 1088–1171 C.J. Tams, “Article 52”, in Oxford Commentary, pp. 1312–1323 UNITAR Colloquium II, pp. 18–20 S. Yee, “Article 40”, in Oxford Commentary, pp. 922–999



Articles and Monographs

J.B. Acosta Estevez, El Proceso ante el Tribunal Internacional de Justicia (1995), pp. 182– 187, 228–233 D. Bethlehem, “Submissions on Points of Fact and Law: Written and Oral Pleadings before the International Court of Justice”, in F. Weiss, (Ed.), Improving WTO Dispute Settlement Procedures: Issues and Lessons From the Practice of Other International Courts and Tribunals (2000), pp. 175–191 Sir E. Lauterpacht, “Principles of Procedure in International Litigation”, RC, vol. 345 (2009), pp. 517–520

Chapter 7

Oral Proceedings Stage: The Hearings According to Article 43, para. 5 of the Statute, the oral proceedings “[s]hall consist of the hearing by the Court of witnesses, experts, agents, counsel, and advocates.” In practice, the oral stage of proceedings consists of a series of public sittings that take place in the Peace Palace at The Hague. During these hearings there is room for several procedural actions, the most important of which are, clearly, the presentation of each party’s case by its agent, counsel and advocates, on the one hand, and the production of evidence other than documents submitted during the written stage, on the other. In addition to the presentation of legal argument, any of the following specific actions can take place on the occasion of the hearings:

· Calling and examining witnesses and/or experts; · Obtaining of evidence proprio motu by the Court; · Furnishing of information by a public international organization; and · Formulating questions to the parties either by the bench or by the judges. The rules governing these procedural devices will be considered below, after a brief discussion of the role that the oral stage of proceedings plays in actual litigation before the ICJ. The question of evidence will be the subject of a separate chapter, given the importance it possesses for the actual conduction of litigation before the ICJ. The 1944 Informal Inter-Allied Committee devoted some time to the discussion of the relative advantages and disadvantages of the oral proceedings, because some of its members expressed their impression that these proceedings simply represented a repetition of the arguments already set out in writing. The Committee concluded that, although the written proceedings should constitute “the main part” of the proceedings before the Court, it was not advisable to eliminate the oral proceedings, “which have considerable psychological value and act as an important focusing point for the work of the Court.”1 Rather, the Committee recommended certain improvements, without suggesting that they required changes in the Statute or the Rules:

1  Inter-Allied Committee Report, p. 24, para. 77.

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We think . . . that there would be some advantage in confining the oral proceedings to two main classes of matters, namely, (a) points raised or made in the last written pleading to which the other party had not yet had an opportunity to replying; (b) points on which the Court had itself indicated to the parties in advance that it would like to hear oral arguments. To assist in focusing the oral proceedings we should also like to see a more extensive adoption of the existing practice whereby Judges may ask specific questions of the advocates in the course of the hearing, instead of simply listening in silence to their speeches.2 During the debates on the role of the Court that took place in the UN General Assembly in 1970–1974, again, a number of States indicated discomfort with the length and duration of the oral stage of proceedings in certain cases that had been handled by the Court in the immediately previous years. This was only natural, since in some cases of the period the number of oral hearings conducted was extremely high: in the celebrated Barcelona Traction case, concluded in 1970, a total of 64 hearings took place, while in the South West Africa case, decided in 1966, that number reached the staggering figure of 102. It was even proposed that the parties to a case should be entitled to agree to dispense altogether with the oral stage or that the Court could be empowered to decide so. Against this convincing arguments were raised, among them the fact that the Court cannot deal with a case in a satisfactory manner if the parties have not argued all possible angles and have not presented their position on the facts and the law with all the necessary detail. Equally important is the insurmountable obstacle that Article 43 of the Statute provides for a dual procedure in all cases, thus making the conduction of an oral stage virtually mandatory. However, it is important to register that under the Rules in force at that time the Court lacked the means to exercise a larger degree of control over the proceedings and could not, for instance, urge States parties to shorten the length of their oral pleadings or indicate to them those aspects of the case over which it considered itself sufficiently informed. This led the Court to take corrective measures in that regard, beginning with the 1968 reform of the resolution governing its internal practice—the essence of which was preserved in the 1976 version of the same resolution, which is still in force. One of the main objectives of the Court with the revision was to facilitate for itself and for the President the carrying out of their function to control the proceedings. 2  Ibid.

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The second set of measures is perhaps more important, as it directly affects the States parties to cases. It consists of a series of amendments to the Rules of Court, incorporated in the partial revision of 1972 and preserved with minor changes in the comprehensive reform of 1978. The cardinal purpose of both of these revisions was to make litigation before the Court more attractive for States, reducing its overall duration and hence its costs. In any case, it has been rightly stressed that to put these reforms into practice requires first and foremost that the President of the Court is willing and capable of directing and influencing the course of the proceedings, which, in turn, is connected with the degree of support that he is able to garner from the members of the Court.3 It is also important to take into account that while it is inconceivable that the oral stage of proceedings is dispensed with during the merits phase (with the possible exception of a case brought before a chamber, under Article 92, para. 3 of the Rules) in the case of incidental proceedings there are several events in which this may happen and actually do happen. This is the case of proceedings concerning the admissibility of third-party intervention under Articles 62 and 63 of the Statute; the admissibility of a counter-claim under Article 80 of the Rules; the admissibility of a request for interpretation of a judgment under Article 60 of the Statute; and the admissibility of an application for revision under Article 61. This may also be the case in advisory proceedings, under the rule in Article 66, para. 2 of the Statute. a)

The Hearings

After the written proceedings are closed, when the case is ready for hearing or en état, the Court—or, if it is not sitting, the President—fixes the date for the opening of the oral proceedings, something that—absent incidental proceedings or other special circumstances—occurs as a general rule some six months after that date. The only external factor that the Court is bound to take into consideration when fixing this date is those cases in which the Rules provide for certain proceedings to have priority over all other cases. The relevant provision (Article 54, para. 2 of the Rules) mentions expressly the case of Article 47, on proceedings on provisional measures, but directs that account is taken also of “any other special circumstances, including the urgency of a particular case.” Examples of the latter might be found in Article 103 (on advisory proceedings 3  Rosenne’s Procedure, p. 121.

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conducted as a matter of urgency) and Article 84, para. 1 (on cases of intervention under Articles 62 or 63 of the Statute). The 1978 reform brought about a radical change in this respect, for the previous Rules, starting with those adopted in 1936, used to contain a whole set of criteria to be employed by the Court or its President when called to make the pertinent decisions concerning the fixing of the dates for the hearing. In particular, Article 50 of the 1972 Rules provided a procedure to be followed when several cases became ready for hearing at the same time. It also allowed for departures from that system both by motion of the Court and of the parties themselves.4 This provision was deleted in 1978 and the entire matter of the fixing of the dates for the hearings is now governed by the succinct rules contained in Article 54. The Rules do not contain an explicit requirement that the parties are consulted prior to the fixing of the date for the opening of the oral proceedings and previous practice was clearly against it. In the South West Africa cases, for instance, South Africa requested that the Court delayed the organization of the oral proceedings and the Court replied that “the practice hitherto followed by the Court (. . .) does not involve the consultation of the Parties with regard to the date to be fixed for the opening of the hearings.”5 However, the provision in the Rules concerning the duty of the President to meet with the agents of the parties in order to “ascertain the views of the parties with regard to questions of procedure” (Article 31, corresponding to Article 37, para. 1 of the 1946 Rules and 40, para. 1 of the 1972 Rules) was amended in 1978 so as to make this meeting mandatory not only at the beginning of the proceedings but also “whenever necessary thereafter.”6 In one of the first cases heard under the new Rules Article 31 was applied in this context and since then the practice developed that, prior to fixing the date for the hearings, the President meets or corresponds with the agents of the parties in order to appraise him or herself of their views on the matter.7

4  For comments see Guyomar’s Commentaire, p. 350; S. Rosenne, “The General List of the ICJ”, in Essays on International Law and Practice (2007), pp. 199–200. 5  ICJ Pleadings, South West Africa, vol. 12, p. 566. 6  M. Lachs, “The Revised Procedure of the International Court of Justice”, in F. Kalshoven, et al. (Eds.), Essays on the Development of the International Legal Order in Memory of Haro F. van Panhuys (1980), p. 32, note 41. This Rule was further developed through Practice Directions X, adopted in 2004 and XIII, adopted in 2009. See further Box # 4–8. 7  US Hostages, Judgment of 24 May 1980, ICJ Rep. 1980, p. 22, para. 41.

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Interestingly, all the decisions concerning the organization of the oral proceedings are taken in camera and are not incorporated in a formal order.8 The parties are notified in correspondence by the Registry and the public at large is advised by means of a press release issued some weeks before the opening of the oral stage. Any decision as to postponing or interrupting the hearings after they are opened falls upon the Court—or the President if it is not sitting—having regard to the same criteria mentioned in Article 54, para. 2 of the Rules. In practice, parties often request from the Court to postpone or delay the hearings, sometimes with a view to pursue negotiations that may lead to an outof-court settlement, and in most cases the Court obliges. However, when this is done on the eve of the hearings the effects can be highly disruptive for the Court’s general program of work.9 As for the question of venue, under Article 22 of the Statute, which was introduced in 1945, the Court can sit and exercise its functions outside of the city of The Hague. Article 55 of the Rules—which is placed at the intersection of the written and the oral stages of proceedings—gives effect to that provision by establishing that, if the Court considers it convenient and after ascertaining the views of the parties, it may decide that “[a]ll or part of the further proceedings in a case shall be held at a place other than the seat of the Court.” There is no practice on this matter so far.10 The production of evidence is also highly relevant at the oral stage. Article 57 of the Rules is the key provision with regard to this and directs each party to provide to the Court, prior to the opening of the oral stage of proceedings and with sufficient time, “information regarding any evidence which it intends to produce or which it intends to request the Court to obtain.” On the basis of this information and its assessment of the number and reach of the written pleadings so far filed, the Court will determine whether the arguments by the parties’ representatives are to be presented before or after the production of evidence (Rules Article 58, para. 1).11 This has an important caveat, which is that the right 8   In only one known instance this date was fixed by an order of the Court (Electricity Company, Order of 26 Feb. 1940, PCIJ A/B 80). 9   Prager’s Procedural Developments, LPICT, vol. 3 (2004), p. 128. 10  A related, albeit different possibility, is that of obtaining evidence on the spot, if necessary by carrying out a visit to the site, under article 66 of the Rules. For the practice of the Court in the matter see Box # 8-4. 11  A provision to that effect has been present in the Rules since 1922. On the occasion of the reform of 1926 there was an intense debate on the convenience of deleting it but it was decided to maintain it (Scerni’s La Procédure, p.635; see also PCIJ D 2, Add., p. 116).

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of the opposite party to comment on the evidence submitted by a party must be preserved at all times, for there is a clear distinction between the right of a party to comment on evidence adduced by the other party and its right to make its own oral argument.12 For this reason, it is common practice that the statements by witnesses and experts—which are the most common form of evidence other than documentary evidence that is produced at the hearings—are heard during the first round of pleadings.13 It follows that if none of the parties makes use of Article 57 prior to the opening of the hearings, there will be no room for the production of evidence during the oral stage of proceedings, unless it is under the exceptional circumstances foreseen in Article 63, para. 1 of the Rules. The hearings will then consist exclusively of the oral pleadings, i.e. the statements made on behalf of the States parties by the agents, counsel and advocates. This is also the norm in incidental, derivative and advisory proceedings. As for the conduction of the oral proceedings, in the exercise of the general power granted to it by Article 48 of the Statute, the Court determines the following practical aspects, after ascertaining the views of the parties (Rules, Article 58, para. 2):

· The order in which the parties will be heard;14 · The method for handling the evidence; · The method for examining any witnesses and experts; and · The number of counsel and advocates to be heard on behalf of each party. The power by the Court to determine the number of counsel and advocates to be heard on behalf of each party was introduced in the Rules in the amendment of 1972, with the commendable intention of trying to maintain the costs of litigation before the Court at reasonable levels, to prevent abuses and to minimize any real or perceived lack of symmetry among the States parties.15 12  Mani’s Adjudication, p. 245. 13  Guyomar’s Commentaire, p. 388. 14  The pre-1972 versions of Article 58 of the Rules (Article 51 of the 1936/1946 Rules) mentioned “the order in which the agents, counsel or advocates” would be heard. The change has been interpreted as a reaffirmation by the Court that oral argument should constitute a dialogue between two litigant parties rather than a succession of statements by different speakers concerning separate topics (Guyomar’s Commentaire, p. 392). 15  E. Jiménez de Aréchaga, “The Amendments to the Rules of Procedure of the International Court of Justice”, AJIL, vol. 67 (1973), pp. 7–8; Lachs, “The Revised Procedure . . .”, pp. 37–38.

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It has been rightly stated, however, that the application of this rule may give rise to difficulties because it may be perceived as an intromission into the manner in which a State chooses to organize its defence. Even if the Court manages to limit the number of counsel who will take the floor on behalf of each party during the hearings, there is nothing it can do about the number of counsel actually retained by each State.16 As a general rule, the hearings shall be public, unless the Court decides otherwise, either on its own or at the request of the parties (Article 59 of the Rules, repeating the language of Article 46 of the Statute). The present Court conducted closed hearings on two occasions, both of them concerning the composition of the bench for particular cases. The first was in the South West Africa case, when it resorted to Article 46 of the Statute in order to handle an application by one party “concerning the composition of the Court” and entailing a challenge to the participation of a judge.17 The second was in the Namibia advisory proceedings, when it conducted a closed hearing in order to hear the arguments of South Africa supporting its request to appoint a judge ad hoc.18 Subsequently, the Court decided to make public the record of the closed hearing.19 On the basis of Article 49 of the Statute, there are several modalities for the Court’s intervention with regard to the manner in which the parties are to pre­ sent their arguments during the oral proceedings. Some of these may even be deemed to considerably enlarge the scope of that provision:

· Prior to the opening of the hearings, or at any time during their conduction,

the Court may direct the parties to address certain aspects that it wishes them to explore more deeply. It can also indicate to them such points or issues of the case that in its view have already been sufficiently discussed (Rules, Art. 61, para. 1).20 However, if this is not done with enough caution it

16  Rosenne’s Procedure, pp. 127–128. On the costs involved in litigation see Chapter 4, d). Waldock made the important point that sometimes States retain a high number of foreign counsel in order “to ensure that they will not be found on the other side” (Sir H. Waldock, “The International Court of Justice as Seen from Bar and Bench”, BYIL, vol. 54 (1983), p. 4). 17  South West Africa, Order of 18 March 1965, ICJ Rep. 1965, p. 3. 18  Namibia, Order of 29 Jan. 1971, ICJ Rep. 1971, p. 12. 19  Namibia, Advisory Opinion, ICJ Rep. 1971, p. 19, para. 11. Further, in a number of cases the Court has met in private to attend the screening of a film. 20  This language was introduced in the Rules in the 1972 amendment. For the rationale behind it see Jiménez de Aréchaga, “The Amendments . . .”, pp. 6–7.

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can lead to an undue interference with the presentation of the parties’ case during the oral stage. At any time during the hearings the Court, through the President, may put questions to the agents, counsel or advocates or ask them for explanations. This right is also vested in the individual judges. The Court is also empowered to call upon the parties “to produce such evidence or to give such explanations as the Court may consider necessary for the elucidation of any aspect of the matters in issue” and can itself “seek other information for this purpose.” (Rules, Article 62)

· ·

The oral statements made before the Court on behalf of each party by the agents, counsel and advocates constitute the bulk of the oral stage of proceedings (Rules, Article 60). Also, over the last two decades the practice of using visual aids, such as the projections of highlighted portions of texts or graphics on a screen located in front of the judges has become popular among certain counsel, but this trend has been resisted by many persons involved in the Court’s work, who find it distractive and even plainly annoying.21 The length of the statements to be presented by each speaker is limited. Under Article 60, para. 1 of the Rules the interventions “shall be as succinct as possible within the limits of what is requisite for the adequate presentation of that party’s contentions at the hearing.”22 In practice, after an exchange of views with the agents of the parties the Court adopts a detailed schedule of the hearings and communicates it to the parties through the Registrar. This schedule embodies a timeline that specifies the rounds of oral argument to be presented by each party, the number of sessions reserved for that purpose and the allocation of a fixed time for every session.23 As for the contents of these statements, they are also restricted beforehand: oral argument will be directed to the issues that still divide the parties, without

21  See an articulated critique in Sir R. Jennings, “The Work of the International Bar”, in L. Ch. Vohrah et al. (Eds.), Man’s Inhumanity to Man, Essays on International Law in Honour of Antonio Cassese (2003), p. 456. 22  For the rationale of this provision see M. Lachs, “Evidence in the Procedure of the International Court of Justice: Role of the Court”, in E.G. Bello and B.A. Ajibola (Eds.), Essays in Honour of Judge Taslim Olawale Elias (1992), vol. 1, p. 268. 23  There may be an emerging trend towards limiting the time made available to each party during the hearings. A former Registrar of the Court has cautioned on the detrimental effects that this could have for the quality of the judgment (E. Valencia-Ospina, remarks at a Panel on “International Law in ferment and the World Court: A Discussion on the Role and Record of the International Court of Justice”, ASIL Proceedings, vol. 94 (2000), pp. 177–178). See also Hudson’s PCIJ, p. 573.

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reviewing what was developed in the written pleadings and without “merely repeating the facts and arguments these contain” (Article 60, para. 1). The view has been expressed that this provision, which was incorporated in the 1972 reform, as Article 56 of that year’s version of the Rules, “seems at times to be honoured more in the breach than the observance.” 24 It is apt to recall in this context that in an order concerning time-limits made by the President (Basdevant) in one of the first contentious cases that came before the Court it was expressed that “it is desirable (. . .) to have [the oral] arguments restricted to what will seem essential to the statement of the claim and of the defence, without reverting to what should previously have been made sufficiently clear in the written proceedings.”25

Box # 7-1 Resort to Article 61, para. 1 of the Rules: Recent practice Article 61, para. 1 of the Rules authorizes the Court to “[i]ndicate any points or issues to which it would like the parties specially to address themselves, or on which it considers that there has been sufficient argument” and is careful in specifying that this can be done “[a]t any time prior to or during the hearing.” This is a very useful provision that, if it were to be employed more often, would go a long way to achieve the desired shortening of the oral proceedings, thus making litigation before the ICJ less onerous and more attractive.26 Article 61, para. 1 has also to be read together with Article 1, paragraph (i) of the 1976 resolution concerning the internal judicial practice, which provides: “After the termination of the written proceedings and before the beginning of the oral proceedings, a deliberation is held at which the judges exchange views concerning the case, and bring to the notice of the Court any point in regard to which they consider it may be necessary to call for explanations during the course of the oral proceedings.” Paragraph (ii) of that same Article states further that “In cases where two exchanges of oral arguments take place, after the first such exchange has been concluded, a further deliberation is held having the same objects.”

24  D. Bethlehem, “Submissions on Points of Fact and Law: Written and Oral Pleadings before the International Court of Justice”, in F. Weiss, (Ed.), Improving WTO Dispute Settlement Procedures: Issues and Lessons From the Practice of Other International Courts and Tribunals (2000), p. 185. 25  Fisheries, Order of 10 Jan. 1951, ICJ Rep. 1951, p. 9. 26  For the arguments in favor of the Court taking a more activist approach in this regard see Bethlehem, “Submissions. . .”, p. 181.

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In fact, the Court itself decided in April 2002 to make better use of this device, along with Article 1 of this resolution. In one of the measures adopted on that date with a view to accelerating its procedures it is stated: The Court intends to make greater use of these provisions in the future to give specific indications to the parties of areas of focus in the oral proceedings, and particularly in any second round of oral arguments.27 Regrettably, the rule in question has been invoked only very sparsely.28 The first example of invocation of this provision happened at the provisional measures phase of the Genocide Convention (Bosnia) case. In this type of incidental proceedings oral proceedings are organized in a matter of weeks due to the urgency of the question and normally there is no room for any exchange of written pleadings. At the opening of the hearings in this case, the President of the Court read the text of Article 61, para. 1 of the Rules and remarked that in order for the Court to be in a position to deal with the question of its prima facie jurisdiction under the 1948 Genocide Convention, he wanted to invite the parties “[t]o address themselves particularly to the acts, or threatened acts . . . alleged to have involved breaches of the Genocide Convention.”29 It is submitted that if the Court really felt the need to make use of its powers under Article 61, para. 1 in that case it would have been preferable to have done so prior to the opening of the hearings, when the parties were actively engaged in preparing the text of the statements to be delivered before the Court. On the first day of the hearings it may have been already too late, because by that time counsel and advocates of both parties are supposed to be in possession of a definite text of their statements, so much so that it is customary that a copy of their intended speeches is given out to the Registry in advance, for use by the Court’s interpreters. Thus, the only way that the parties could have accommodated such a request was by addressing the subject indicated by the Court in the second round of oral pleadings, which in this case took place the very next day.

27  ICJ Press Release 2002/12, 4 April 2002. See also Prager’s Procedural Developments, LPICT, vol. 1 (2002), p. 428. 28  It must be admitted, however, that resorting to this rule also presents difficulties. Some of them were highlighted by J. Crawford in 1997 (Commentary to K. Highet’s presentation “Problems in the Preparation and Presentation of a Case from the Point of View of Counsel and of the Court”, in UNITAR Colloquium I, pp. 151–152). 29  Genocide Convention (Bosnia), CR 93/12, p. 10 (Sitting of 1 April 1993).

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The second example took place during the preliminary objections phase of the Genocide Convention (Croatia) case, when three weeks before the opening of the hearings, the Court made use of Article 61, para. 1 of the Rules by having the Registrar inform both parties that “[t]he Court asked them to address, during the hearings, the issue of the capacity of the Respondent to participate in proceedings before the Court at the time of filing of the Application, given the fact that the issue had not been addressed as such in the written pleadings.”30 Alternatively, this episode can be viewed as an application of the special rule governing proceedings on preliminary objections laid down in Article 79, para. 8 of the Rules. According to the latter, “[i]n order to enable the Court to determine its jurisdiction at the preliminary stage of the proceedings, the Court, whenever necessary, may request the parties to argue all questions of law and fact, and to adduce all evidence, which bear on the issue.” Notably, while the judgment fails to invoke either provision as authority, it carefully spells out the consequences of the Court’s action: The Respondent did not raise the question of its lack of capacity to participate in proceedings in its preliminary objections. The Court informed the Parties, by means of letters dated 6 May 2008 from the Registrar, of its wish to hear this issue addressed in the hearings and it was so addressed; the issue is now before the Court. (Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 434, para. 69)

It is believed that this is the first time in recent practice in which the Court has so “invited” the parties to address a specific issue during the hearings, after ascertaining that this issue did not receive a proper treatment in the written pleadings. All the same, it is worth mentioning that the Court took its time to issue this invitation, as the letters containing it were dispatched to the parties on 6 May 2008, that is, a mere twenty days before the scheduled date for the opening of the hearings and more than five years after the written proceedings on the preliminary objections had been closed. Given that Article 61, para. 1 is careful in specifying that the Court can exercise that power “even before the hearings,” it would be useful that, were the

30  Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 417, para. 16, p. 424, para. 36 and p. 434, para. 69.

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Court inclined to make more use of that provision, it made the request to the parties in sufficient time before the opening of the oral proceedings, i.e. shortly after the completion of the written proceedings.

As a general rule the hearings last two or three weeks, but in complex cases this timeframe can extend and go on for several months. Ordinarily each party has the right to two rounds of argument (a “first round” and a “reply stage”),31 and during each round two, three or even four counsel or advocates take the floor on behalf of each party, doing so in any of the official languages of the Court—with the Registry providing (since 1965) simultaneous interpretation into the other language.32 In cases submitted by application, the State instituting proceedings pleads first; and in cases submitted by special agreement, if the order of pleading was not previously agreed upon between the parties, it is determined by drawing lots. In certain incidental proceedings the party instituting such proceedings (like the party requesting provisional measures or the party making preliminary objections) will be heard first. In cases in which a third State is admitted to intervene the main parties to the proceedings are heard first. Like it happens in other international fora, the persons taking the floor actually read a text previously prepared, a copy of which is furnished to the interpreters right before the commencement of the hearing.33 This has given rise to harsh criticism from some quarters, such as that voiced by a former member of the Court, for whom “[t]he so-called oral proceedings of the Court have, to a very large extent, degenerated to counsels’ reading from manuscripts that could as well have been mailed to the judges.”34 Be that as it may, it is hard

31  D.W. Bowett, “The Conduct of International Litigation”, in D.W. Bowett et al., The International Court of Justice-Process, Practice and Procedure (1997), p. 18. 32  Originally, the interpretation was consecutive, something that extended considerably the duration of the hearings (Guyomar’s Commentaire, pp. 450–455). 33  It is also customary, as a show of courtesy, to provide the other party with the text of the statements at the end of the hearing. Nowadays this is done via a CD-ROM or an electronic device. 34  S. Petren, “Forms of expression of judicial activity”, in L. Gross (Ed.), The Future of the International Court of Justice (1976), vol. 2, p. 454. See also Jennings, “The Work . . .”, p. 458. At the time of the PCIJ, the Court itself expressed the opinion that “the reading of prepared written statements is contrary to the principle underlying oral proceedings.” (PCIJ E 6, p. 296).

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to visualize measures to remedy this situation, for, as it has been noted, in a collegiate tribunal such as the ICJ systematic oral questioning of counsel by the Court or its members would hardly be practicable.35 In addition and not surprisingly, litigating States want to keep a tight control of anything that is said before the Court on their behalf and would probably not be prepared to authorize counsel to provide answers or to give statements that have not been screened by the concerned authorities.36

Box # 7-2 The verbatim record: Corrections to the transcript Article 47 of the Statute directs that minutes (“un procès-verbal”) are made at each hearing. The Registry prepares a verbatim record of every sitting, which is distributed on the same day of the hearing. A translation into the other official language is ready on the next day (Rules, Article 71). Once they are signed by the Registrar and the President, these minutes “alone shall be authentic.” This is developed by Article 71 of the Rules, which provides that the authentic minutes of the sitting mentioned in Article 47 shall be constituted by a certified copy of the transcript of the verbatim record, after it has been duly corrected and signed by those authorities.37 In the 1936 Rules, Article 47 of the Statute was implemented by Articles 59 and 60. The former described the contents of the minutes and the latter provided for the making of “shorthand notes” of the oral proceedings (“un compte rendu sténographique de la procédure orale”). These provisions were carried out into the 1946 Rules but in 1972 were merged into one, becoming Article 65, the direct predecessor of current Article 71. A verbatim record (compte rendu) of every hearing is thus made by the Registrar and copies of the transcript are circulated to the judges sitting in the case and to the parties. Article 71, paras. 4 and 5 establish the following ground rules for the correction process:

35  Sir A. Watts, “Enhancing the effectiveness of Procedures of International Dispute Settlement”, Max Planck Yearbook of United Nations Law, vol. 5 (2001), p. 26. 36  Ibid. 37    For descriptions of the process see Guyomar’s Commentaire, pp. 465–466; S. von Schorlemer, “Article 47”, in Oxford Commentary, MN 16–23, pp. 1211–1214.

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5.

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The [parties] may, under the supervision of the Court, correct the transcripts of speeches and statements made on their behalf, but in no case may such corrections affect the sense and bearing thereof. The judges may likewise make corrections in the transcript of anything they may have said. Witnesses and experts shall be shown that part of the transcript which relates to the evidence given, or the statements made by them, and may correct it in like manner as the parties.

In practice, the correction process is carried out in a matter of days. Since the North Sea Continental Shelf cases the Court’s practice has been fixed as follows: [In reference to the transcript mentioned in Article 60, para. 3 of the 1946 Rules, corresponding to Article 71, para. 4 of the current Rules] This transcript is usually made available to each speaker on the same day as the sitting on which he has spoken, with the exception of the transcript of Monday’s sitting, which will be made available at the end of Tuesday morning. In order to facilitate any supervision which the Court may feel it proper to exercise, the Court has decided that any correction or revision which Agents, counsel or advocates may wish to make to the transcript should be handed in to the Registry by 6 p.m. on the working day following the sitting at which the speech or declaration has been made, with the exception of corrections or revisions to the transcript of Monday’s sitting, which should be handed in by 6 p.m. on Wednesday.38 The limitations to the corrections to the transcript that the representatives of the parties may propose under Article 71, para. 4 are clear: in no case they may “affect the sense and bearing” of the speeches and statements made on behalf of the parties. Although today this does not give rise to difficulties, the Pajzs, Csáky, Esterházy case, from the time of the PCIJ, is illustrative as to the criteria that would be applied in the event that doubts arise as to the conformity of proposals for correction with the said provision.39

38  CJ Pleadings, North Sea Continental Shelf, vol. 2, p. 387. 39  PCIJ E 12, pp. 193–194.

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The Final Submissions40

An element clearly singled out at this stage of the proceedings is that of the final submissions. Article 60, para. 2 of the Rules states that “[a]t the conclusion of the last statement made by a party at the hearing” (Rules, Article 60, para. 2), the agent reads its party’s final submissions, without recapitulating the arguments.41 The term “submissions” in the context of the pleadings appears to have been used for the first time in the 1933 report by the Registrar.42 It was introduced in the English version of Article 42 of the 1936 Rules, replacing “conclusions,” which had been used in previous versions of that provision, because it was felt that this later term “does not bear a technical meaning.”43 In French “conclusions” has always been used. Article 48 of the Statute provides in a general manner that the Court shall make orders for the conduction of the cases and “[s]hall decide the form and time in which each party must conclude its arguments,” thus suggesting that the Court would be called to take action concerning this on an ad hoc basis.44 It is submitted that with the adoption of Article 60, para. 2 of the Rules this became largely unnecessary.45 As for the practice of calling the parties either to confirm the submissions contained in their written pleadings or to read their final conclusions after concluding their oral argument, it was first registered by the Court in the mid1950s and it made its appearance in the Court’s Rules in the 1972 revision, as paragraph 2 of Article 56.46 40  See Hudson’s PCIJ, pp. 575–577; A.H. Feller, “Conclusions of the Parties in the Procedure of the Permanent Court of International Justice”, AJIL, vol. 25 (1931), pp. 490–502; J. Basdevant, « Quelques mots sur les ‘conclusions’ en procédure internationale », in Scritti di diritto internazionale in onore di Tomaso Perassi, vol. 1 (1957), pp. 173–180; Aslaoui, Les Conclusions et leurs Modifications en Procédure Judiciaire International (1963); Fitzmaurice’s Law and Procedure, vol. 2, pp. 578–581; M. Kdhir, Dictionnaire Juridique de la Cour Internationale de Justice (1997), pp. 42–43. 41  Emphasis added. For a variety of reasons, submissions play no role in advisory proceedings. The matter is discussed in J-P Cot, “Article 68”, in Oxford Commentary, MN 36–38, pp. 1682–1683. 42  PCIJ D 2, Add. 3, p. 821. 43  Ibid., p. 768. 44  See PCIJ E 5, pp. 257–258. For an instance of this see Factory at Chorzów, Merits, Judgment No. 13, 13 Sept. 1928, PCIJ A 17, p. 17. 45  See the observations of judge Beichmann during the discussions on the revision of the 1922 Rules of the PCIJ (PCIJ D 2, p. 64). 46  ICJ Yearbook (1953–1954), p. 99.

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In any case, there is nothing to prevent the agent from making himself the last statement provided for in Article 60, para. 2 and including at the end of it a summary of the essence of its party’s case. In fact, this seems only sensible and in keeping with the spirit of Practice Direction II, ordering that at the conclusion of the written pleadings each party should include “a short summary of its reasoning.” If this is the case, it is advisable that the agent should make a short pause, after which he should clearly indicate to the President that that party’s final submissions will then be read. Article 60, para. 2 of the Rules also requires that the written text of these submissions, duly signed by the agent, be communicated to the Court and transmitted to the other party.47 A distinction is thereby stressed, as in the written proceedings, between the submissions—which may or may not be identical to those included in the written pleadings—and the arguments in support.48 The submissions have been defined as “a synthesis of the arguments advanced and an indication of the action which the party desires the Court to take.”49 A State can present a single submission or several submissions and in the latter case it can couch them in the form of either alternative or subsidiary submissions. In the case of alternative submissions, the Court is invited to choose between two or more courses of action.50 In the case of subsidiary submissions, the Court is asked to decide on a principal submission and to move to consider a subsidiary submission only in the event that it rejects the former. Subsidiary claims are of common occurrence in international litigation. The Court has always assigned a crucial importance to the formulation that the States parties to a case have chosen for their final submissions. In the process, it has identified certain basic propositions that embody general criteria applicable to them. The following are of note. Final Submissions v. Previous Submissions The final submissions referred to in article 60, para. 2 of the Rules must be distinguished from the submissions advanced by each party during the written

47  For the significance of the requirement that the final submissions are presented in writing and are signed by the agent see Nuclear Tests, Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock, ICJ Rep. 1974, p. 317, para. 14; p. 500, para. 13. 48  On this see Chapter 6, b). 49  Hudson’s PCIJ, p. 575. 50  For an example of a case in which the Court explicitly accepted alternative submissions see PCIJ E 10, pp. 160–161.

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pleadings stage. While the former are definitive, i.e. “final and unalterable,”51 under the terms of Article 48 of the Statute, the latter are always tentative and thus can be modified, within certain limits. To begin, the Court has recognized that the parties are always free to modify their submissions up to the closure of the oral proceedings and has had occasion to remark that “[i]n fact, the final submissions of a party frequently vary from those found in the written pleadings.”52 All the same, the Court has confirmed old dicta of the PCIJ according to which that freedom is not unlimited and, in particular, cannot be used to radically transform the nature of the dispute submitted to the Court. In the Prince von Pleiss Administration case, for instance, the Court observed that “under Article 40 of the Statute, it is the Application which sets out the subject of the dispute, and the Case [the Memorial], though it may elucidate the terms of the Application, must not go beyond the limits of the claim as set out therein.”53 Subsequently, the Court spelled out that the rationale for this is that such an action would not only affect the rights of third States under Articles 62 and 63 of the Statute, but it also could affect the scope of the jurisdiction of the Court in dealing with the case: The Court has not failed to consider the question whether the Statute and Rules of Court authorize the parties to transform the character of a case as profoundly as the Belgian Government has done in this case. It is to be observed that the liberty accorded to the parties to amend their submissions up to the end of the oral proceedings must be construed reasonably and without infringing the terms of Article 40 of the Statute and Article 32, paragraph 2, of the Rules which provide that the Application must indicate the subject of the dispute.54 The Court has not hitherto had occasion to determine the limits of this liberty, but it is clear that the Court cannot, in principle, allow a dispute brought before it by application to be transformed by amendments in the submissions into another dispute which is different in character. 51  See the dissenting opinion of judge Armand-Ugon in the Right of Passage case (Merits, ICJ Rep. 1960, pp. 76–77). 52  Factory at Chorzów, Merits, Judgment No. 13, 13 Sept. 1928, PCIJ A 17, p. 17; Barcelona Traction, Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964, p. 25. For an example of the Court requesting the agent of one party “to reformulate his submissions in full” see PCIJ E 13, p. 151. 53  Prince von Pleiss Administration, Order of 4 Feb. 1933, PCIJ A/B 52, p. 14. 54  It corresponds to Article 38, para. 1 of the current Rules.

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A practice of this kind would be calculated to prejudice the interests of third States to which, under Article 40, paragraph 2, of the Statute, all applications must be communicated in order that they may be in a position to avail themselves of the right of intervention provided for in Articles 62 and 63 of the Statute. Similarly, a complete change in the basis of the case submitted to the Court might affect the Court’s jurisdiction. (Societé Commerciale de Belgique, Judgment of 15 June 1939, PCIJ A/B 78, p. 173)55

Role Played by the Final Submissions From the standpoint of a State’s litigation strategy, the final submissions may easily turn out to be the single most important part of its presentation before the Court, in the sense that, in practice, they embody the petitum, that is “[t]hose statements of the parties on which the court must take action.56 In short, they constitute the prayers for relief, the most essential portion of the pleadings”.57 As for the Court and the judges, the submissions represent a reduction, concentration or refinement of the entire matter of a case to a series of issues that will have to be decided and will ultimately form the operative part of the decision.58 Without them, it is doubtful whether the Court would be in a position to discharge its functions adequately. For these reasons, what a State has to ask itself when drafting its final submissions is how the dispositif of the judgment should read in order to satisfy its expectations concerning the results of the litigation. As it was stated in a joint dissent by several members of the Court in the Nuclear Tests cases: In a case brought to the Court by means of an application the formal submissions of the parties define the subject of the dispute (. . .). Those ­submissions must therefore be considered as indicating the objectives which are pursued by an applicant through the judicial proceedings. 55  Reaffirmed in Phosphates in Nauru, Preliminary Objections, Judgment of 26 June 1992, ICJ Rep. 1992, pp. 266–267, para. 69 and Arrest Warrant, Merits, Judgment of 14 Feb. 2002, ICJ Rep. 2002, p. 16, para. 36. In this last decision, the Court referred to this as “settled jurisprudence.” See also the discussion on the concept of “new claims” in the context of the institution of proceedings by way of an application (Chapter 5, c)). 56  Burkina Faso/Mali, Merits, Judgment of 2 Dec. 1986, ICJ Rep. 1986, p. 579, para. 50. 57  Feller, “Conclusions. . .”, p. 490. 58  Sir R. Jennings, “The Proper Work and Purposes of the International Court of Justice”, in A.S. Muller et al. (Eds.), The International Court of Justice, Its Future Role after Fifty Years (1997), pp. 33–34.

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Or, as judge Schwebel put it in the Qatar v. Bahrain case: It is (. . .) a commanding feature of the jurisprudence of this Court that the submissions of the Parties define the parameters of a judgment, that it is the function of the dispositif of the judgment to rule upon and dispose of those submissions (unless exceptional considerations rendered them moot).

(Qatar v. Bahrain, Jurisdiction and Admissibility I, Separate Opinion of Judge Schwebel, ICJ Rep. 1994, p.130)59

The Court subsequently suggested that for a party’s request to be considered as a formal submission it has to refer to the formulation of the operative part of the judgment.60 From the point of view of the Court and of an orderly administration of justice, the final submissions of the parties have also a fundamental importance, because it is with reference to them that the application of the non ultra petita rule will be assessed.61 In the Arrest Warrant case the Court recalled the continuing validity of this “well-established principle” and pointed out that it controls the drafting of the dispositif (although not that of the reasoning part): While the Court is thus not entitled to decide upon questions not asked of it, the non ultra petita rule nonetheless cannot preclude the Court from addressing certain legal points in its reasoning. Thus in the present case

59  See also the joint dissenting opinion of judges Onyeama, Dillard, Jiménez de Arechaga and Sir Humphrey Waldock in the Nuclear Tests cases (ICJ Rep. 1974, p. 314, para. 7, p. 496, para. 7). For a recent case in which a submission became moot and the Court decided that it needed not to rule on it see Peru v. Chile, Judgment of 27 Jan. 2014, paras. 187–189. 60  Navigational and Related Rights, Judgment of 13 July 2009, ICJ Rep. 2009, p. 268, para. 153. 61  Request for Interpretation-Asylum, Judgment of 27 Nov. 1950, ICJ Rep. 1950, p. 402; Barcelona Traction, Second Phase, Judgment of 5 Feb. 1970, ICJ Rep. 1970, p. 37, para. 49; Malta/ Libya Continental Shelf, Judgment of 3 June 1985, ICJ Rep. 1985, p. 23, para. 19; Request fior Interpretation-Temple of Preah Vihear, Judgment of 11 Nov. 2013, para. 71. For the contents and limits of this principle see Fitzmaurice’s Law and Procedure, vol. 2, p. 524; Rosenne’s Law and Practice, vol. 2, pp. 576–578; R. Kolb, “General Principles of Procedural Law,” in Oxford Commentary, MN 33–46, pp. 893–903.

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the Court may not rule, in the operative part of its Judgment, on the question whether the disputed arrest warrant, issued by the Belgian investigating judge in exercise of his purported universal jurisdiction, complied in that regard with the rules and principles of international law governing the jurisdiction of national courts. This does not mean, however, that the Court may not deal with certain aspects of that question in the reasoning of its Judgment, should it deem this necessary or desirable. (Arrest Warrant, Merits, Judgment of 14 Feb. 2002, ICJ Rep. 2002, p. 19 para. 43)62

Indeed, the final submissions play a fundamental role in defining the scope of the Court’s task in settling the dispute: [I]t is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions; (Asylum, Judgment of 20 Nov. 1950, ICJ Rep. 1950, p. 402)63

Where . . . claims of a legal nature are made by an Applicant against a Respondent in proceedings before the Court, and made the subject of submissions, the Court has in principle merely to decide upon those submissions, with binding force for the parties only (. . .) (Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 431, para. 88)64

Normally, the scope of a decision of the Court is defined by the claims or submissions of the parties before it. (Malta/Libya Continental Shelf, Application to Intervene, Judgment of 21 March 1984, ICJ Rep. 1984, p. 19, para. 29)

62  See also the joint separate opinion of judges Higgins, Kooijmans and Buergenthal in the same case (ICJ Rep. 2002, pp. 66–67, paras. 11–15). It has been suggested that in the subsequent Oil Platforms case the Court may have reversed this holding, by including in the dispositif a finding on a question that did not form part of the submissions of the applicant (Prager’s Procedural Developments, LPICT, vol 3 (2004), p. 132). 63  Reaffirmed in Arrest Warrant, Merits, Judgment of 14 Feb. 2002, ICJ Rep. 2002, pp. 18–19, para. 43. 64  On the influence of the submissions upon the reasoning of the Court see further Chapter 10, c).

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Finally, the submissions are also important from the standpoint of evidence, because when determining the facts of a case the Court will take into account only those that are necessary to respond to the questions put to it by the parties in their submissions: [The Court] will make such findings of fact as are necessary for it to be able to respond to the first submission of the DRC, the defences offered by Uganda, and the first submissions of Uganda as regards its counterclaims. It is not the task of the Court to make findings of fact (even if it were in a position to do so) beyond these parameters. (Armed Activities (DRC v. Uganda), Merits, Judgment of 19 Dec. 2005, ICJ Reports 2005, pp. 200–201, para. 57)

Final Submissions and Method Used For Instituting Proceedings The rule that final submissions must be read and communicated in writing at the conclusion of the last statement made by a party at the hearing is applicable in all cases and regardless of the way the proceedings were instituted. Nevertheless, in cases submitted by special agreement it is to the provisions of the latter that the Court would turn when it comes to the moment of formulating the operative part of the decision, with the result that in these cases the submissions play a less important role than in cases introduced by ­application.65 This was acknowledged by the PCIJ in the following terms: Before approaching the consideration of the principles of international law contrary to which Turkey is alleged to have acted (. . .), it is necessary to define, in the light of the written and oral proceedings, the position resulting from the special agreement. For, the Court having obtained cognizance of the present case by notification of a special agreement concluded between the Parties in the case, it is rather to the terms of this agreement than to the submissions of the Parties that the Court must have recourse in establishing the precise points which it has to decide. (Lotus, Judgment No. 9, 7 Sep. 1927, PCIJ A 10, p. 12)

In contrast, in cases submitted to the Court unilaterally the final submissions are the instrument “by which each of the Parties. . . state[s] what it asks the

65  Fitzmaurice’s Law and Procedure, vol. 2, p. 578.

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Court to adjudge and declare;” they encompass the “final formulation” of the questions submitted to the Court.66 In these cases it is in the submissions of the applicant party “that the formulation of the claims on which the Court must adjudicate is to be sought.”67 Proper (and Improper) Content of the Final Submissions It has been said that in the practice of the ICJ “[s]ubmissions are not a pleading but a framework designed to assist the Court in formulating its decision.”68 Hence, a final submission should contain “a precise and direct statement of a claim” and should state “what the party [is] asking the Court to decide.” It should not include “propositions which, in the form of definitions, principles or rules, purport to justify certain contentions.”69 The latter are “elements which might furnish reasons in support of the judgment, but cannot constitute the decision.”70 The Court has (. . .) repeatedly exercised the power to exclude, when necessary, certain contentions or arguments which were advanced by a party as part of the submissions, but which were regarded by the Court, not as indications of what the party was asking the Court to decide, but as reasons advanced why the Court should decide in the sense contended for by that party. (Nuclear Tests, Judgments of 20 Dec. 1974, ICJ Rep. 1974, pp. 262, para. 29; and pp. 466–467, para. 30)71

Interpretation of Submissions: Limits and Criteria While one of the attributes of the Court’s judicial function is to interpret the submissions made by the parties, the tribunal cannot take their place and reformulate them, even in cases in which the submissions are “inadequate.”

66  Right of Passage, Merits, Judgment of 12 April 1960, ICJ Rep. 1960, p. 27. 67  Ibid. 68  H.H. Bachrach, “Practical Aspects of International Litigation”, in Proceedings of the American Society of International Law at its 64th Annual Meeting (1970), vol. 64, p. 249. 69  Fisheries, Judgment of 18 Dec. 1951, ICJ Rep. 1951, p. 126. 70  Ibid. 71  See also the dissenting opinion of judge Gros in the Fisheries Jurisdiction (Merits) cases (ICJ Rep. 1974, pp. 137–138).

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[I]t is the Court’s duty to isolate the real issue in the case and to identify the object of the claim. It has never been contested that the Court is entitled to interpret the submissions of the parties, and in fact is bound to do so; this is one of the attributes of its judicial functions. It is true that, when the claim is not properly formulated because the submissions of the parties are inadequate, the Court has no power to “substitute itself for them and formulate new submissions simply on the basis of arguments and facts advanced” (PCIJ, Series A, No. 7, p. 35), but that is not the case here, nor is it a case of the reformulation of submissions by the Court. (Nuclear Tests, Judgments of 20 Dec. 1974, ICJ Rep. 1974, pp. 262, para. 29; and pp. 466, para. 30)72

When interpreting the submissions, for its part, the Court will not limit itself to a purely textual interpretation but rather it will take into account every indication from the applicant as to the “true object and purpose of the claim.” In the circumstances of the present case, although the Applicant has in its Application used the traditional formula of asking the Court “to adjudge and declare” (. . .), the Court must ascertain the true object and purpose of the claim and in doing so it cannot confine itself to the ordinary meaning of the words used; it must take into account the Application as a whole, the arguments of the Applicant before the Court, the diplomatic exchanges brought to the Court’s attention, and public statements made on behalf of the applicant Government. If these clearly circumscribe the object of the claim, the interpretation of the submissions must necessarily be affected. (Nuclear Tests, Judgments of 20 Dec. 1974, ICJ Rep. 1974, pp. 263, para. 30; pp. 467, para. 31)

Submissions Based on Facts Subsequent to the Application Ordinarily, the critical date for all jurisdictional purposes is that of the institution of proceedings, with the consequence that facts occurring subsequent to that date should be excluded from consideration by the Court.73 However, the Court has remarked that it may take into consideration, for purposes of jurisdiction, subsequent facts, on condition that they arise “directly out of the question” which is the subject-matter of the application.

72  But see the joint dissenting opinion of judges Onyeama, Dillard, Jiménez de Arechaga and Sir Humphrey Waldock in the same case (ICJ Rep. 1974, pp. 316–317, paras. 11–13). 73  See Chapter 5, a).

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The Court reaffirms (. . .) what it said in its Judgment in the Fisheries Jurisdiction case, where it declared that in order to consider the dispute in all its aspects it may also deal with a submission that “is one based on facts subsequent to the filing of the Application, but arising directly out of the question which is the subject-matter of that Application. As such it falls within the scope of the Court’s jurisdiction . . .” (. . .). (LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, pp. 483–484, para. 45)

c)

Questions Put to the Parties

Developing the general rule contained in Article 49 of the Statute, Article 61, para. 2 of the Rules empowers the Court to put questions to the representatives of the parties during the hearing and to ask them for explanations, which may refer to both matters of law and matters of fact.74 The right to put questions to the agents, counsel and advocates is also vested upon individual judges— including judges ad hoc—but in this case they are bound to announce to the President their intention to exercise it beforehand. When this right was introduced into the Rules of the PCIJ an interesting discussion ensued. The first document to mention expressly the judge’s right to put questions to the parties was the Permanent Court’s seminal resolution of 20 February 1931 concerning its internal judicial practice. Paragraph 2 of this resolution stated that individual judges could put questions to the parties and that these questions “[m]ust exclusively relate to the subject to which the argument is devoted at the moment.”75 It was understood that questions put by individual judges should be concerned with aspects of the merits and could not refer to the conduct of the case itself, which was within the exclusive purview of the President of the Court.76 In the revision of 1936 this was transported to the text of the Rules, with significant changes, one of them being the deletion of this limitation. Article 52 of that year’s Rules contemplated the right of any judge—including the President—to put questions during the hearing and also to ask the parties “for explanations.” This provision became Article 61 of the current Rules.

74  W.F. Foster, “Fact Finding and the World Court”, Canadian YIL, vol. 7 (1969), p. 180. 75  PCIJ D 2, Add. 3, p. 167. 76  Hudson’s PCIJ, pp. 573–574. For the discussion leading to the amendment see PCIJ D 2, Add. 2, pp. 212–217.

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As a general rule these questions are asked before the Court adjourns for a break and in the case of questions addressed to both parties, it is customary to ask them at the last sitting. The answers by the parties’ representatives may be given on the spot or in writing, within a time-limit to be announced at the hearing or set subsequently by the President (Rules, Article 61, para. 4). In a case in which no oral proceedings are organized, these questions will be put in writing and will be communicated to the party concerned by the Registrar.77 Interestingly, the deadline for supplying the parties’ answers to these questions has changed over time. Under Article 52, para. 3 of the 1936/1946 Rules the parties were free to answer immediately “or at a later date.” Article 57, para. 4 of the 1972 Rules stated that the questions could be answered “immediately, later in the sitting, or subsequently, but in any event prior to the close of the oral proceedings.” The 1978 reform changed this and as a consequence the replies by the parties can only be known when the pleadings in the case are published, something that usually happens several years later. It is true that the records of the hearings are nowadays uploaded to the Court’s web site on the same day of each sitting, but this does not include replies to questions that are furnished to the Court after the closing of the oral stage of proceedings—nor, for that matter, the correspondence exchanged by the parties with the Registry. The Court usually makes mention to the questions in the decision, but the text of the parties’ answers is never reproduced in full. In this regard, Article 1 of the 1976 resolution concerning the Court’s internal judicial practice provides that before the beginning of the oral proceedings a deliberation should be held “at which the judges exchange views concerning the case, and bring to the notice of the Court any point in regard to which they consider it may be necessary to call for explanations during the course of the oral proceedings.” If, as often happens, there is more than one exchange of oral argument, a further deliberation would be held having the same object. It is also provided in that Article that during the oral proceedings the Court should meet in private from time to time in order “to enable judges to exchange views concerning the case and to inform each other of possible questions which they may intend to put.” For its part, Article 72 of the Rules provides that any written reply by a party to a question put under Article 61 or any evidence or explanation supplied by a party under Article 62 that is received after the closure of the oral stage is to be communicated to the other party, which shall then be given the opportunity to comment, if necessary by re-opening the proceedings. Moreover, it has 77  Judgment 2867 of ILOAT, Advisory Opinion of 1 Feb. 2012, para. 16.

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always been clear that a party is not entitled to put questions directly to the other party, since Article 43, para. 3 of the Statute requires that all communications between the parties “shall be made through the Registrar,” a formula that the Registrar himself interpreted as intending “to provide a buffer between the parties.”78 In practice, the members of the Court have shown a marked reluctance to avail themselves of these provisions.79 Over the last decades, however, this reticence has been receding and now it is a frequent occurrence that at the end of the hearings one or more judges—never too many—put(s) questions to the agents concerning aspects developed during the argument presented on behalf of their States.80 A judge may even use a question as a vehicle to request the parties to produce additional evidence on certain matter.81 Questions made by the President on behalf of the Court are considerably less frequent.82 In general, posing questions to the agents is a salutary practice that contributes to finding out what is the real position of the parties concerning key issues of the case. It has been opposed on the basis that by putting a question a judge or the Court itself may be providing in advance an indication of what their thinking is on the case or the manner in which the main ques-

78  PCIJ D 2, 3rd. Add. (1936), p. 825. For examples see ICJ Pleadings, Haya de la Torre, p. 151; ICJ Yearbook (1984–1985), p. 179. See also Tams, “Article 49”, MN 16, pp. 1282–1283. 79  For a good appraisal of the reasons see S. Schwebel, “Three Cases of Fact-Finding by the International Court of Justice”, in R.B. Lillich (Ed.), Fact-Finding Before International Tribunals (1991), pp. 3–5. He makes the interesting point that judges are more prone to put questions to the parties in cases dealt with by chambers. On this see also K. Highet, “Evidence, The Chamber, and the ELSI Case”, in R.B. Lillich (Ed.), Fact-Finding Before International Tribunals (1991), p. 47; Sir R. Jennings, “The Work of the International Bar”, in L. Ch. Vohrah et al. (Eds.), Man’s Inhumanity to Man—Essays on International Law in Honour of Antonio Cassese (2003), pp. 462–464. 80  M. Lachs, “Evidence . . .”, pp. 269–270 and Sir R. Jennings, “The Role of the International Court of Justice”, BYIL, vol. 68 (1997), pp. 15–16. See also a general appraisal in Tams, “Article 49”, MN 9–12, pp. 1280–1281. 81  For an example see the question put to the parties by judge Koroma at the closing of the hearings in the Navigational and Other Related Rights (CR 2009/7, pp. 64–65, sitting of 12 March 2009). 82  Questions were put to the parties on behalf of the Court in the following cases: Corfu Channel, US Nationals in Morocco, Ambatielos, Anglo-Iranian Oil Co., South West Africa, Fisheries Jurisdiction, Aegean Sea Continental Shelf and US Hostages (Guyomar’s Commentaire, p. 405). Other cases in this group are Elettronica Siccula, Arrest Warrant (Provisional Measures) and Benin/Niger. Noticeably, the first and third of these were handled by ad hoc chambers.

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tions of substance raised during the litigation are being or will be approached. However, the growing tendency to make these questions only at the closing sitting assures that none of the parties is in a position to derive any real advantage from them, tactical or otherwise. On balance, it may be thought that the merits of this practice far overcome its disadvantages, especially if care is taken when framing each question, an operation in which the role to be played by the President of the Court is certainly crucial.83 Interestingly, Article 61, para. 2 contemplates expressly that the questions are to be put to the representatives of the parties “during the hearings,” a formula that apparently excludes questions put either prior to the opening of the oral proceedings or after their closure. However, in at least one case—in which, it may be noted, one of the parties was defaulting—the Court put questions to one party before the hearings had started and this was done, according to the Court itself, “in preparation of the hearings.”84 Likewise, there are examples in the practice of the Court of individual judges putting questions to the parties after the closure of the hearings.85 In both cases the Court’s authority to do that is unquestionable, either under Article 61, para. 1—which refers to action taken “at any time prior to or during the hearing”—or under Article 62, which also uses the expression “at any time.”

Box # 7-3 Measures to accelerate the oral stage of proceedings: Practice Directions VI and IX ter Among the recent measures adopted by the Court with the intention to shorten and accelerate the oral stage of proceedings are those contained in Practice Directions VI and IX ter, related to, respectively, the requirement that the pleadings do not simply repeat what was said in written argument and the practice of providing the judges with folders with documents.

i)

Brevity in the Pleadings

Practice Direction VI, as originally adopted in October 2001, contained a w ­ arning to the States appearing before it that the Court will require “full ­compliance”

83  A. Aguilar Mawsdley, “Evidence before the International Court of Justice”, in R. St. J. Macdonald (Ed.) Essays in Honour of Wang Tieya (1993), p. 549. 84  US Hostages, Provisional Measures, Order of 15 Dec. 1979, ICJ Rep. 1979, p. 10, para. 7. 85  ICJ Pleadings, Aegean Sea Continental Shelf, pp. 622–623.

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with Article 60, para. 1 of the Rules of Court, as well as “observation of the requisite degree of brevity in oral pleadings.”86 In January 2009 this Practice Direction was revised and a new provision was inserted immediately after the reference to Article 60, para, 1 of the Rules. The new clause reads as follows: In that context, the Court will find it very helpful if the parties focus in the first round of the oral proceedings on those points which have been raised by one party at the stage of written proceedings but which have not so far been adequately addressed by the other,87 as well as on those which each party wishes to emphasize by way of winding up its arguments. The two criteria set out in this provision would apply only to the statements to be delivered during the first round of the hearings. This is to be expected, since by the very nature of things the second round is essentially reactive and embodies a rebuttal to some of the arguments presented by the other party during the previous session. At the end of the first round, it is for each defence team to make a careful evaluation of the arguments voiced by the opponents during their appearances and to select among them those which are worthy of a reply within the limited time allotted for the second round. The arguments to be developed in the second round will thus be, then, by sheer necessity, focused on very specific points. In April 2002 the Court also announced the adoption of a series of measures designed to improve its procedures and to facilitate for itself the task of coping with its increasing caseload. One of these measures concerns the presentation of arguments during the oral pleadings stage. After a quotation in full of Article 60, para. 1 of the Rules, this provision reads as follows: 3. In relation to the oral procedure before the Court (. . .) [t]he Court has decided that the efficient functioning of justice requires that [Article 60, para. 1] be conscientiously observed. The length of oral argument in previous cases has frequently been longer than necessary. In future, dates for oral arguments in a case will be fixed having regard to what is reasonably required by the parties, in order to avoid unnecessarily protracted oral

86  ICJ Press Release 2001/32, 31 October 2001. 87  This language echoes one of the recommendations made by the Informal Inter-Allied Committee in 1944 (Inter-Allied Committee Report, p. 24, para. 77).

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arguments. In particular, a second round of oral arguments, if any, should be brief.88

ii) The Judges’ Folders Practice Direction IXter, adopted in December 2006, seeks to provide some guidance with regard to a practice of recent appearance under which the parties produce, for the benefit of the members of the Court, folders or “hearing books”89 that are handed to them through the Registry at the commencement of the hearing. Ordinarily these folders include excerpts from relevant documents, charts, sketch-maps, graphics and the like—already submitted as part of the written pleadings—that the concerned party is interested in highlighting during the oral argument, as well as graphic material. The text of this provision is as follows: Practice Direction IXter The Court has noted the practice by the parties of preparing folders of documents for the convenience of the judges during the oral proceedings. The Court invites parties to exercise restraint in this regard and recalls that the documents included in a judge’s folder should be produced in accordance with Article 43 of the Statute or Article 56, paragraphs 1 and 2, of the Rules of Court. No other documents may be included in the folder except for any document which is part of a publication readily available in conformity with Practice Direction IXbis and under the conditions specified therein. In addition, parties should indicate from which annex to the written pleadings or which document produced under Article 56, paragraphs 1 and 2, of the Rules, the documents included in a judge’s folder originate.90 Interestingly, Practice Direction IXter does not mention that, as a matter of elementary courtesy, a copy of this folder should also be transmitted to the other party through the Registry.91 88  ICJ Press Release 2002/12, 4 April 2002. 89  K. Highet, “Problems in the Preparation and Presentation of a Case from the Point of View of Counsel and of the Court”, in UNITAR Colloquium I, p. 143. 90  It happens often that the same documents are included in the folders prepared separately by each party. For a valuable suggestion to correct this see Box # 6–8. 91  Muller’s Procedural Developments, LPICT, vol. 6 (2007), p. 230.

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d)

377

Closing (and Reopening) the Oral Stage92

Although Article 54, para. 1 of the Statute pointedly refers to the closure of the hearing (“des débats”) and not to the closure of the oral proceedings (“la procédure orale”) as such, there is no doubt that the latter is the matter which that provision intends to govern. After all, the remaining provisions of the said article embody rules for questions that come into being only after the oral stage of proceedings—and, for that matter, the entire proceedings in the case— have been closed or terminated, such as the Court withdrawing to consider the judgment (para. 2) and the deliberations of the Court taking place in private and remaining secret (para. 3). As for the Rules of Court, the closure of the oral proceedings is mentioned in passing in several provisions, namely, Article 69, para. 1, dealing with requests for information relevant to a case addressed to an international organization; Article 72, concerning information received after the closure of the oral stage of proceedings and the eventual reopening of them; and Article 74, para. 3, governing procedural aspects of incidental proceedings on interim protection. Also of import here is Article 2 of the 1976 resolution of the internal judicial practice, in which the expression “the termination of the oral proceedings” is used. Ordinarily, the closure of the oral stage of proceedings is announced by the President at the end of the last sitting, once the agents, counsel and advocates of the parties are done with their presentations and due notice has been taken of the reading of the final submissions by each party, pursuant to Article 60, para. 2 of the Rules. It is customary that at this moment the President formally declares the oral proceedings in the case to be closed but requests both agents “to remain at the Court’s disposal to provide any additional information it may require.” Under the early practice of the PCIJ the President frequently refrained from making such a declaration after the oral presentations “and reserve[d] the Court’s right to ask for further information.”93 Given the extent of the powers that the Court now possesses under Article 62, para. 1 of the Rules and the fact that they may be exercised “at any time,” this appears to be no longer necessary. This notwithstanding, new questions may arise during the deliberations that the judges undertake, under Article 3 of the 1976 resolution, after the termination of the oral stage of proceedings.

92  Mani’s Adjudication, pp. 245–247. 93  PCIJ D 2, Add. 3, p. 825; see also Hudson’s PCIJ, p. 578; Guyomar’s Commentaire, p. 467.

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It is important to recall that Article 72 of the Rules expressly anticipates that after the closure of the oral proceedings the Court may receive either (a) The written reply by a party to a question put under Article 61; or (b) Additional evidence or explanations by a party supplied on request under Article 62. In both cases, this will be communicated to the other party, which shall be given the opportunity to comment upon it, also in writing. At this juncture, Article 72 of the Rules speaks for the first time of the possibility of reopening the oral stage of proceedings by stating that this may happen “if necessary.”94 There are several cases in which the Court has actively considered the possibility of reopening the proceedings but it has never found it fit to do so. In fact, it is believed that the actual reopening of the oral stage has only been decided in one occasion, in the context of an advisory case and even then the pertinent decision was reversed by the Court before the relevant order had been issued.95 Before the present Court, reopening was briefly considered and dismissed in the Nuclear Tests and Nicaragua cases. The Court’s Yearbook for 1999–2000 records that at the provisional measures phase in the Armed Activities (RDC v. Uganda) case, the Court briefly reopened the hearings at the request of the applicant State and with a view “to hold a second round, during which only that applicant State presented further arguments.”96 The Court has intimated that—particularly in cases of lack of appearance— when new facts that are pertinent for the decision of a case are brought to its attention after the closure of the oral proceedings, “the interests of justice” may well require it to order such a reopening. On the other hand, if the new facts are not “completely new” and merely “supplement or reinforce” circumstances of fact that are already before the Court, it would not be necessary to resort to that procedure, which is clearly of an exceptional nature: In view of the object of the Applicant’s claim . . . the Court has to take account of any developments, since the filing of the Application, bearing upon the conduct of the Respondent. (. . .) In these circumstances the Court is bound to take note of further developments, both prior to and subsequent to the close of the oral proceedings. In view of the nonappearance of the Respondent, it is especially incumbent upon the Court to satisfy itself that it is in possession of all the available facts.

94  Although the practice of reopening the oral phase of proceedings comes from the time of the PCIJ, it only found expression in the text of the Rules in the reform of 1978. 95  PCIJ E 7, p. 301. 96  ICJ Yearbook (1999–2000), p. 272.

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(. . .) It would no doubt have been possible for the Court, had it considered that the interests of justice so required, to have afforded the Parties the opportunity, e.g., by reopening the oral proceedings, of addressing to the Court comments on the statements made since the close of those proceedings. Such a course however would have been fully justified only if the matter dealt with in those statements had been completely new, had not been raised during the proceedings, or was unknown to the Parties. (. . .) Although as a judicial body the Court is conscious of the importance of the principle expressed in the maxim audi alteram partem, it does not consider that this principle precludes the Court from taking account of statements made subsequently to the oral proceedings, and which merely supplement and reinforce matters already discussed in the course of the proceedings, statements with which the Applicant must be familiar. (. . .) The Court, having taken note of the Applicant’s comments, and feeling no obligation to consult the Parties on the basis for its decision finds that the reopening of the oral proceedings would serve no useful purpose. (Nuclear Tests, Judgments of 20 Dec. 1974, ICJ Rep. 1974, pp. 263–265, paras. 31–33)97

However, the Court has also emphasized that “[g]eneral principles as to the judicial process require that the facts on which its Judgment is based should be those occurring up to the close of the oral proceedings on the merits of the case.”98 Accordingly, the reopening of the oral proceedings would be the proper course of action only in situations “[w]here facts, apparently of such a nature as materially to affect its decision, came to its attention after the close of the hearings.”99 A related question refers to the possibility of submitting new documentary evidence after the closure of the oral stage of proceedings. As such, this is not mentioned anywhere in the texts governing the Court’s functioning and procedure, although it may be thought that the expression used in Article 52 of the Statute (“any further oral or written evidence”) is ample enough to make that provision applicable to such a situation. If this is the case, the Court may refuse or accept the evidence in question “unless the other side consents.”

97  For a comment on this decision, which was not devoid of criticism, see I. Sinclair, “Some Procedural Aspects of Recent International Litigation”, ICLQ, vol. 30 (1981), pp. 347–349. 98  Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 39, para. 58 (emphasis added). 99  Ibid.

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As for the Rules of Court, as it was explained above, Article 56 governs with a certain degree of detail the production of new or late documents after the closure of the written stage of proceedings and Practice Direction IX now specifies that this provision is also applicable to documents submitted “during the oral proceedings.”100 A chamber of the Court went beyond and took the position that this provision is likewise applicable “by extension and mutatis mutandis” to documents submitted by a party after the oral stage has been closed: In September 1991, after the close of the hearings, the Agent of El Salvador submitted to the Chamber complete sets of all the additional documents referred to in the Meanguera dossier, “subject to Article 56 of the Rules of Court”. The President of the Chamber, while noting that the submission of further documents to the Court after the closure of the [oral]101 proceedings was not a normal part of the procedure, took the view that it was appropriate to apply to them, by extension and mutatis mutandis, the provisions of Article 56 of the Rules. A set of copies of the documents was therefore transmitted to Honduras, which objected to the admission of the additional documents submitted by El Salvador. After examining the question the Chamber decided not to authorize the submission of those documents. (El Salvador/Honduras, Merits, Judgment of 11 Sep. 1992, ICJ Rep. 1992, p. 574, para. 360)102

Further Reading

General Works and Treatises on the Court

Fitzmaurice’s Law and Procedure, vol. 2, pp. 578–581 Guyomar’s Commentaire, pp. 347–467 Hudson’s PCIJ, pp. 561–578

100  See Chapter 6, e). 101  In this line there is a slip in the printed version of the judgment, for it says “written proceedings” while the sentence clearly refers to the oral stage. An addenda, in the form of an errata sheet issued by the Registry on 23 December 1993 contains the necessary correction. 102  See also, in the same decision, p. 361, para. 21. The Qatar v. Bahrain case is another example of a case in which the parties produced new documents after the closure of the oral stage of proceedings, without any objection being raised by the other party (Merits, Judgment of 16 March 2001, ICJ Rep. 2001, p. 49, para. 30).

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Mani’s Adjudication, pp. 162–186 Rosenne’s Law and Practice, vol. 3, pp. 1317–1383 Rosenne’s Procedure, pp. 120–147 Scerni’s La Procédure, pp. 635–640 Study Group Report, pp. 40–51 C. Tams, “Article 49”, in Oxford Commentary, pp. 1276–1286 UNITAR Colloquium II, pp. 20–25



Articles and Monographs

J. B. Acosta Estévez, El Proceso ante el Tribunal Internacional de Justicia (1995), pp. 233–238 A.-M. Guynat, “La procédure orale devant la Cour permanente de Justice international”, RGDIP, vol. 37 (1930), pp. 312–323 S. Talmon, “A Primer on ICJ Procedure: A Commentary on Article 43 ICJ Statute”, Bonn Research Papers on Public International Law, Paper No. 2/2012, 2 Feb. 2012, MN 93–170

Chapter 8

Evidence Questions related to the collection and weighing of available evidence are central to the conduction of proceedings before any court of law and litigation before international tribunals is no exception. A useful definition of the role that evidence plays in international litigation was attempted by an arbitration panel in the following manner: In its wider and universal sense [evidence] embraces all means by which any alleged fact, the truth of which is submitted to examination, may be established or disproved. (Faber case, Mixed Claims Commission (Germany-Venezuela), RIAA, vol. 10, p. 459)

In the case of the ICJ, the most directly relevant provision is perhaps Article 36, para. 1, letter (c) of its Statute, under which the States parties may accept the Court’s jurisdiction over legal disputes concerning “[t]he existence of any fact which, if established, would constitute a breach of an international obligation.”1 This provision covers the two operations that embody the very concept of the judicial function that the Court is called to perform: the “definition of the factual situation,”2 on the one hand, and the legal qualification of that situation according to international law, on the other.3 While the former entails the establishment of the facts making up the case’s “factual matrix,” the latter involve a determination of the legal consequences obtaining, which may or may not include a decision as to whether such facts give rise to a breach of an international obligation. In a more recent decision the Court described its role in this matter in the following manner: [The Court] needs only to be mindful of the fact that, despite the volume and complexity of the factual information submitted to it, it is the 1  In Article 53 of the Statute, concerning situations of lack of appearance, reference is also made to the Court’s duty to satisfy itself “that the claim is well founded in fact and law.” 2  Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 39, para. 58. 3  All the same, there is nothing preventing States to submit to the Court a dispute concerning exclusively matters of fact. For an example see Serbian Loans, Judgment No. 14, 12 July 1929, PCIJ A 20, p. 19.

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responsibility of the Court, after having given careful consideration to all the evidence placed before it by the Parties, to determine which facts must be considered relevant, to assess their probative value, and to draw conclusions from them as appropriate. (Pulp Mills, Merits, Judgment of 20 April 2010, ICJ Rep. 2010, p. 72, para. 168)

The rules that form the procedural law pertaining to evidence concern the determination of the facts of the case and represent one of the most important aspects of the procedure used in litigation at the ICJ and a true cardinal element of international procedure.4 In this field, it may be noted, the Court has always made a conscientious effort to develop its own system of evidence, taking elements from different systems of law, without fully aligning itself with any of them. Thus, while it has been said that the liberal system of admissibility of evidence adopted by the drafters of the Statute is closer to the English legal system, as regards questions such as the Court’s powers in the assessment of evidence, the standard of proof or the prevalence to be accorded to documentary evidence, the Court’s regime resembles more the civil or continental law system.5 For this reason, the Court’s independent approach to the questions of evidence has been described by a well-known practitioner as “adversarial in principle but libertarian in practice.”6 In the Western Sahara case, judge de Castro underlined the preponderant role played by the parties to cases before the ICJ in the production of evidence and the essentially passive role reserved for the latter: In litigation, the parties are masters of the evidence: the court has a passive role. In the words of the traditional axiom of procedure, the court says to the party: da mihi factum, dabo tibi jus. The parties put forward facts and submit the evidence that they consider favourable to their

4  Armed Activities (DRC v. Uganda), Merits, Judgment of 19 Dec. 2005, ICJ Rep. 2005, pp. 200–201, paras. 57, 59. See also Mani’s Adjudication, pp. 187–188, 247. 5  E. Valencia-Ospina, “Evidence before the International Court of Justice”, International Law FORUM du droit international, vol. 1 (1999), pp. 202, 203, 204. See also A. Aguilar Mawsdley, “Evidence before the International Court of Justice”, in R.St.J. Macdonald (ed) Essays in Honour of Wang Tieya (1993), p. 534; Mani’s Adjudication, p. 195; A. Riddell & B. Plant, Evidence before the International Court of Justice (2009), p. 11; Ch. Brown, A Common Law of International Adjudication (2009), pp. 90–92. 6  J. Crawford & A. Pellet, “Anglo Saxon and Continental Approaches to Pleading Before the ICJ”, in I. Buffard et al. (Eds.), International Law between Universalism and Fragmentation, Festschrift in Honour of Gerhard Hafner (2008), p. 851 (Crawford).

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claims, and the court takes them into consideration when making its decision (secundum allegata et probata). That is perfectly logical, because the purpose of the judgment is to decide as between the parties, and it “has no binding force except between the parties and in respect of that particular case” (Statute, Art. 59). (Western Sahara, Advisory Opinion, Separate Opinion of Judge de Castro, ICJ Rep. 1975, p. 138)7

However, this does not mean that the Court is entirely in the hands of the parties in order to obtain certainty with regard to the facts of a case before it. On the contrary, since very early in its practice the Court reserved a role for itself with regard to the production of evidence and it has noted that it will obtain knowledge regarding certain facts relevant to the decision of a case “[e]ither by means of evidence furnished [to] it by the Parties or by means of any researches which the Court may think fit to undertake or to cause to be undertaken.”8 In addition, since the Court is not a fact-finding organ per se, when it is dealing with a case it normally would avoid to “attempt a determination of the overall factual situation” of the case and would limit itself to “make such findings of fact as are necessary” for it to be able to respond to submissions and the defenses offered by the parties: “[i]t is not the task of the Court to make findings of fact (even if it were in a position to do so) beyond these parameters.”9 During the time of the PCIJ questions of evidence were obviated in many cases, given that most of the cases concerned the application of treaties.10 As for the current Court’s general approach with respect to evidentiary matters, it can be said to be essentially pragmatic and reveals a high degree of flexibility with regard to the admission of evidence, which, in turn, is merely a reflection of the general flexibility that characterizes the law of evidence in the

7  For the opposite view, according to which the Court should not adopt a passive attitude towards the obtaining of evidence see the dissenting opinion of judge van Eysinga in the Oscar Chinn case (PCIJ A/B 63, pp. 146–147) and the separate opinion of judge Owada in the Oil Platforms case (ICJ Rep. 2003, p. 321, para. 47 and pp. 322–323, para. 52). 8  Brazilian Loans, Judgment No.15, 12 July 1929, PCIJ A 21, p. 124. See also, in the same direction, Nuclear Tests, Judgments of 20 Dec. 1974, ICJ Rep. 1974, p. 257, para. 15 and p. 461, para. 15. For commentaries see Scerni’s La Procédure, pp. 600–601; M. Benzing, “Evidentiary Issues”, in Oxford Commentary, MN 10–14, pp. 1238–1240. 9  Armed Activities (DRC v. Uganda), Merits, Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 200, para. 57. 10  Valencia-Ospina, “Evidence . . .” p. 202.

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international plane.11 This flexibility can be attributed to several causes, but in particular to the following: (i) The inherent generality of the subject-matter of the litigation in many cases brought to international adjudication. In the case of the ICJ, for instance, fact-intensive cases continue to be the exception rather than the rule. (ii) The need to accommodate different—and diverging—approaches and methodologies to the question of evidence, in particular the commonlaw and the continental law approaches. (iii) A myriad of practical difficulties that any organ of international adjudication is bound to experience for the collection of evidence, lack of resources being only one of the most prominent.12 Under the flexibility umbrella, it has been said that the applicable principle is that of “freedom of evidence” or the “free admissibility of evidence,” which has the corollary that there is no general exclusionary rule based exclusively on the nature of the evidence to be submitted.13 On the other hand, admissibility of the evidence is quite different from the evaluation or assessment of its legal worth, including its substantive admissibility and its probative value.14 This is a distinct task that will fall to be undertaken by the judges during the deliberation preceding the rendering of the decision, under the correlative principle of the “free assessment of evidence.” In the Nicaragua case, the Court stated in explicit terms that “[w]ithin the limits of its Statute and Rules, it has freedom in estimating the value of the various elements of evidence.”15 There are in fact no limits to the freedom

11  Mani’s Adjudication, pp. 192–198. 12  D. Joyce, “Fact-Finding and Evidence at the International Court of Justice: Systemic Crisis, Change or More of the Same?”, Finnish YIL, vol. 18 (2007), p. 286. 13  UNITAR Colloquium II, p. 25. For the reasons that led the Court to embrace what has been called “le système anglo-saxon de la liberté des preuves orales”, see Scerni’s La Procédure, p. 637. On the usage of this principle by the PCIJ and other international tribunals see J. Evensen, “Evidence before International Courts”, NordTIR, Acta Scandinavica Juris Gentium, vol. 25 (1955), pp. 45–49. A passionate defence of this principle can be found in a memorandum submitted by judge Huber in December 1925, containing a set of propositions on the amendment of certain provisions in the Rules (PCIJ D 2, Add., pp. 249–251). 14  C.F. Amerasinghe, Evidence in International Litigation (2005), p. 185 ff; Mani’s Adjudication, pp. 194–196. 15  Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 40, para. 60.

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of action that the Court possesses in the assessment of the evidence. During the discussion on the 1922 Rules a proposal was considered to include a provision requiring that the Court’s appreciation of evidence should be made “in accordance with its conscience and with the principles of equity,” but this was rejected.16 In the Genocide Convention (Bosnia) case, the Court remarked that “[t]he assessment made by the Court of the weight to be given to a particular item of evidence may lead to the Court rejecting the item as unreliable, or finding it probative.”17 The Court’s assessment of the materials relied on by the parties will cover “their weight, reliability and value.”18 This flexibility is entirely natural, since in international judicial proceedings it often happens that the facts themselves are not in dispute among the parties. In the words of an author: [a]n important characteristic of proceedings before the Court, and most other “traditional” international tribunals where States litigate civil claims on the basis of public international law, (is) that disputations of fact play a relatively subordinate role in the proceedings. The large majority of cases do not involve the resolution of questions of disputed factual evidence. Obviously, factual considerations are relevant in every case in the sense that they provide the context in which the case is presented and to which legal principles must be applied. But the majority of factual evidence in proceedings at the Court is provided by the parties themselves in the form of their pleadings and official or semi-official documentation which “generally speaking” is not questioned or disputed. The Court’s task is to ascertain the relevance of such documentation and assertions of fact to the case and to determine the relevant weight to be given to the factual assertions of the parties.19 As a consequence of the above, the production of evidence and its assessment in order to determine whether it is effectively “evidence that can safely be 16  PCIJ D 2, pp. 148 and 264. 17  Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 130, para. 213. 18  Armed Activities (DRC v. Uganda), Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 200, para. 59. 19  T.D. Gill, Litigation Strategy at the International Court (1989), pp. 205–206. On this see also H. Thirlway, “Evidence Before International Courts and Tribunals”, in R. Bernhardt (Ed.), Encyclopedia of Public International Law, vol. 2 (1995), p. 302. This situation was also current at the time of the PCIJ (Hudson’s PCIJ, p. 565).

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relied on in a court of law,”20 only come to play a role in international litigation with regard to those facts that either are not of public knowledge—which are sometimes called “facts having a notorious character”—or are presented in a different fashion by the parties.21 The applicable principle would be that notorious facts or those which are expressly admitted by the parties do not have to be proven: notorium non eget probation. This is a general rule applicable to contentious proceedings before any court of law.22 For the same reason, the Court tends to base itself to a large extent in the attitude of each party with regard to the allegations of the other. In this context, in order to decide on a given point the Court usually assigns considerable importance to those facts that a party admits in an unequivocal manner in its arguments, as well as all allegations of fact made by the opposite party that are not contradicted or denied by the former in its pleadings or in oral argument. This general approach, moreover, is also valid if one of the parties is not appearing, as can be observed from the following passage of the Court’s decision in the US Hostages case: The (. . .) Court has available to it a massive body of information from various sources concerning the facts and circumstances of the present case, including numerous official statements of both Iranian and United States authorities. So far as newspaper, radio and television reports emanating from Iran are concerned, the Court has necessarily in some cases relied on translations into English supplied by the Applicant. The information available, however, is wholly consistent and concordant as to the main facts and circumstances of the case. This information, as well as the United States Memorial and the records of the oral proceedings, has all been communicated by the Court to the Iranian Government without having evoked from the Government any denial or questioning of the facts alleged before the Court by the United States. Accordingly, the 20  Armed Activities (DRC v. Uganda), Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 219, para. 130. 21  Aguilar Mawdsley, “Evidence . . .”, pp. 535–536; Quintana’s Procedural Developments, LPICT, vol. 10 (2011), p. 162; Benzing, “Evidentiary Issues”, MN 17, p. 1240. On undisputed facts see further W.F. Foster, “Fact Finding and the World Court”, Canadian YIL, vol. 7 (1969), pp. 183–185. 22  See D. Sandifer, Evidence Before International Tribunals (rev. ed. 1975), pp. 382–397; M. Lachs, “Evidence in the Procedure of the International Court of Justice: Role of the Court”, in E.G. Bello and B.A. Ajibola (eds.), Essays in Honour of Judge Taslim Olawale Elias (1992), vol. 1, p. 267; J.B. Acosta Estevez, El Proceso ante el Tribunal Internacional de Justicia, Bosch (1995), p. 191; Amerasinghe, “Evidence . . .”, pp. 160–161 and 188–189. See also Box # 8–1.

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Court is satisfied that, within the meaning of Article 53 of the Statute, the allegations of fact on which the United States bases its claims in the present case are well founded. (US Hostages, Merits, Judgment of 24 May 1980, ICJ Rep. 1980, pp. 9–10, para. 13)

Box # 8-1

Judicial notice and facts of public knowledge

Judicial notice is a tool that is available to a tribunal in order to handle facts that are matters of public or common knowledge and with regard to which the parties themselves are not required to provide evidence. The distinctive feature of this technique is that, although the parties are entitled to rely on certain facts in order to support their arguments, they are relieved from their normal duty of furnishing proof as to the existence of those facts.23 Judicial notice features as such in the governing instrument of certain international tribunals and in some cases, as in the Charters of the Nuremberg and Tokyo Tribunals or the Rules of Evidence of the ICTY and the ICTR, the use of this technique is mandatory for the tribunal.24 In the case of the Rome Statute of the International Criminal Court, resort to judicial notice is not mandatory but optional under Article 69, para. 6, according to which: “[t]he Court shall not require proof of facts of common knowledge but may take judicial notice of them.” (emphasis added). Since nothing of the sort can be found in the Court’s Statute or Rules, the question is governed by the Court’s practice. In the German Interests in Polish Upper Silesia case, the PCIJ mentioned certain facts that were “matters of common knowledge” ( Judgment No. 7, 25 May 1926, PCIJ A 7, p. 73). Similarly, in the Fisheries case, the current Court made a passing reference to the “notoriety” of

23  B. Cheng, General principles of law as applied by international courts and tribunals (1987), p. 303; Sandifer, “Evidence . . .”, pp. 382–390; Mani’s Adjudication, pp. 209–211; Foster, “Fact Finding . . .”, pp. 176–179; Benzing, “Evidentiary Issues”, MN 19, p. 1241; Brown, “A Common Law . . .”, pp. 102–104; Riddell & Plant, “Evidence . . .”, pp. 137–144. 24  Charter of the Nuremberg Tribunal (Article 21); Charter of the International Military Tribunal (Far East) (Article 13 (d)); Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda (Rule 94 (A)). See also the interpretation of the latter by the Appeals Chamber of the ICTR in the Keremera, Ngirumpatse, Nzirorera case (Case No. ICTR-98–44 AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006, especially at paras. 29 and 35).

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certain facts contended by Norway ( Judgment of 18 Dec. 1951, ICJ Rep. 1951, p. 139), but refrained from making a statement of general scope in that regard.25 So far, the question of which facts can be said to be of public knowledge has arisen primarily in connection with the handling of “secondary sources” of evidence, noticeably press reports, and the only thing that can be said for certain is that the Court has shown remarkable restraint in this regard and, for instance, has never used the term “judicial notice” in this context in a decision.26 However, with the developments in communications that are a feature of the information age, the matter is becoming increasingly pressing.27 In general, the Court has been willing to consider as proven certain facts recorded in press reports or articles, when they are consistent and correspond to a situation that is in the public domain. Thus, in the US Hostages case—in which the respondent did not appear, a circumstance that considerably complicated the collection of evidence—the Court admitted as means of evidence several press reports furnished by the applicant, after recalling that the respondent, to whom they were duly transmitted, refrained from rebutting or commenting upon them (Merits, Judgment of 24 may 1980, ICJ Rep. 1980, p. 10, para. 13). Subsequently, at the merits stage of the Nicaragua case—also facing a situation of lack of appearance—the Court showed more caution with regard to the value to be attributed to this type of corroborating material: [Referring to reports in press articles and extracts from books] . . . the Court has been careful to treat them with great caution; even if they seem to meet high standards of objectivity, the Court regards them not as evidence capable of proving facts, but as material which can nevertheless contribute, in some circumstances, to corroborating the existence of a fact, i.e., as illustrative material additional to other sources of evidence. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 40, para. 62)

25  See also the separate opinion of judge Anzilotti in the Austro-German Customs Regime advisory case (PCIJ A/B 41, p. 70). 26   For an appraisal of the Court’s treatment of secondary sources of evidence see R. Teitelbaum, “Recent Fact-Finding Developments at the International Court of Justice”, LPICT, vol. 6 (2007), pp. 142–144. 27  For an analysis of the role that the media plays as a vehicle for evidence in proceedings before the Court see the separate opinion of judge Shahabuddeen in the Genocide Convention (Bosnia) case (Provisional Measures II, ICJ Rep. 1993, pp. 357–358). See also Joyce, “Fact-Finding . . .”, pp. 289–294.

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This notwithstanding, the Court acknowledged that when the relevant facts are of public knowledge that condition may be established by means of secondary sources. These materials might be pertinent, then, not for proving the facts themselves, but for demonstrating that they are matters of public knowledge, to which a “certain amount of weight” can be attached: However, although it is perfectly proper that press information should not be treated in itself as evidence for judicial purposes, public knowledge of a fact may nevertheless be established by means of these sources of information, and the Court can attach a certain amount of weight to such public knowledge. (. . .) The Court has however to show particular caution in this area. Widespread reports of a fact may prove on closer examination to derive from a single source, and such reports, however numerous, will in such case have no greater value as evidence than the original source. It is with this important reservation that the newspaper reports supplied to the Court should be examined in order to assess the facts of the case, and in particular to ascertain whether such facts were matters of public knowledge. (Nicaragua, Merits, Judgment of 27 Jun. 1986, ICJ Rep. 1986, pp. 40–41, para. 63)

In a subsequent passage of the same decision, the Court did make a finding about facts of public knowledge on the basis of press report: Nicaragua claims that the United States has on a number of occasions carried out military manoeuvres jointly with Honduras on Honduran territory near the Honduras/Nicaragua frontier; (. . .). As evidence of these manoeuvres having taken place, Nicaragua has offered newspaper reports; since there was no secrecy about the holding of the manoeuvres, the Court considers that it may treat the matter as one of public knowledge, and as such, sufficiently established. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 53, para. 92)

In the Genocide Convention (Bosnia) case, judge ad hoc Lauterpacht was very firm in advocating for the Court use of “written secondary evidence” such as statements of fact adopted by the political organs of the UN. He stated in this regard:

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There is no reason why the Court should not take [this] cathegor[y] of evidence into account, giving more or less weight to particular items, according to the particular circumstances. The doctrine of judicial notice is known in many legal systems. Tribunals may not and do not close their eyes to facts that stare them in the face. (Genocide Convention (Bosnia), Provisional Measures II, Separate Opinion of Judge Lauterpacht, ICJ Rep. 1993, p. 423, para. 42)

As a matter of practice, the allegations by a party are countered by means of corresponding allegations but when a certain contention is supported by evidentiary material, like an affidavit, the more reasonable course of conduct is to use the same type of evidence, for instance providing a mirror affidavit or a statement by a witness during the hearing.28 But it is important to keep in mind that apart from attempting to disprove or discredit the claims of the other party, a party adducing evidence before the Court should also seek to persuade the latter of the validity of its own claims.29 a)

The Burden of Proof 30

On a number of occasions, the Court has sanctioned the applicability of the fundamental principle of procedural law onus probandi incumbit actori, under which “[i]t is primarily the task incumbent upon the party which claims certain facts as the basis of its contention to establish them by producing sufficient evidence”.31 The first of these was in the Temple of Preah Vihear case, when it was stated that: “[t]he burden of proof in respect of [facts and contentions which are asserted or put forward by one Party or the other] will of 28  This chapter focuses on the presentation of evidence in cases in which both parties duly appear and take part in the proceedings. For the handling of evidentiary matters in cases of lack of appearance see Chapter 18, (ii), c). 29  Mani’s Adjudication, p. 188. 30  M. Kazazi, Burden of Proof and Related Issues: A Study on Evidence Before International Tribunals (1996). See also Sandifer, “Evidence . . .”, pp. 123–146; Cheng, “General Principles . . .”, pp. 327–335; Mani’s Adjudication, pp. 202–207; Amerasinghe, “Evidence . . .”, pp. 34–37, 61–95; Benzing, “Evidentiary Issues”, MN 34–50, pp. 1245–1249; Riddell & Plant, “Evidence . . .”, pp. 79–99. 31  Oil Platforms, Separate Opinion of Judge Owada, ICJ Rep. 2003, p. 321, para. 46.

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course lie on the Party asserting or putting them forward.”32 This principle has been reaffirmed in numerous occasions.33 The allocation of the burden of proof is important because there will be no decision in favour of a party that bears the burden of proving a certain issue if it is unable to discharge this burden successfully.34 However, allocation of the burden of proof must be distinguished from the procedural role that a State is called to play in litigation. It is often believed that the role a State plays either as applicant or respondent has some bearing on the question of the burden of proof, but this is to a large extent unfounded.35 Without going too far, Practice Direction I, which seeks to discourage the practice of simultaneous filing of pleadings in cases submitted by special agreement, is careful in stating that one of the measures proposed “shall be without prejudice to any issue in the case, including the issue of burden of proof.” In fact, special agreements often contain a provision to the same effect. The rationale behind this appears to be the (erroneous) belief that the method of simultaneous presentation of pleadings and evidence makes inoperative the principle of burden of proof. In the Temple case, however, the Court had the occasion to clarify that the State formally having the status of respondent can also be a claimant and is therefore under a duty to discharge some burden of proof:36 As concerns the burden of proof, it must be pointed out that though, from the formal standpoint, Cambodia is the plaintiff, having instituted the proceedings, Thailand also is a claimant because of the claim which was presented by her in the second Submission of the Counter-Memorial and which relates to the sovereignty over the same piece of territory. Both Cambodia and Thailand base their respective claims on a series of facts

32  Temple of Preah Vihear, Merits, Judgment of 15 June 1962, ICJ Rep. 1962, p. 16. In the Minquiers and Ecrehos case the Court applied the principle but without a clear enunciation of its contents ( Judgment of 17 Nov. 1953, ICJ Rep. 1953, p. 52). For a review of the relevant caselaw see Amerasinghe, “Evidence . . .”, pp. 67–72. 33  Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 128, para. 204; Malaysia/Singapore, Judgment of 23 May 2008, ICJ Rep. 2008, p 31, para. 45; Romania v. Ukraine, Judgment of 3 Feb. 2009, ICJ Rep. 2009, p. 86, para. 68; Pulp Mills, Merits, Judgment of 20 April 2010, ICJ Rep. 2010, p. 71, para. 162. 34  Amerasinghe, “Evidence . . .”, p. 36. 35  Fitzmaurice’s “Law and Procedure, vol. 1, p. 139 (notes 1–3) and p. 142 (note 2). Mani’s Adjudication, p. 203. 36  Foster, “Fact Finding . . .”, pp. 154–155; Cheng, “General Principles . . .”, pp. 331–335. See also M. Lachs, “Evidence . . .”, pp. 266–267; Brown, “A Common Law . . .”, p. 95.

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and contentions which are asserted or put forward by one Party or the other. The burden of proof in respect of these will of course lie on the Party asserting or putting them forward. (Temple of Preah Vihear, Merits, Judgment of 15 June 1962, ICJ Rep. 1962, pp. 15–16)37

More recently, the Court stressed that the onus probandi rule “applies to the assertions of fact both by the Applicant and the Respondent”38 and remarked that its application depends in the first place on the subject-matter and the nature of the dispute: (. . .) [i]t would be wrong to regard th[e] rule [that the party alleging a fact in support of its claims must prove the existence of that fact], based on the maxim onus probandi incumbit actori, as an absolute one, to be applied in all circumstances. The determination of the burden of proof is in reality dependent on the subject-matter and the nature of each dispute brought before the Court; it varies according to the type of facts which it is necessary to establish for the purposes of the decision of the case. (. . .) It is for the Court to evaluate all the evidence produced by the two Parties and duly subjected to adversarial scrutiny, with a view to forming its conclusions. In short, when it comes to establishing facts such as those which are at issue in the present case, neither party is alone in bearing the burden of proof. (Diallo, Merits, Judgment of 30 November 2010, ICJ Rep. 2010, pp. 660–661, paras. 54–55)

One question that is often raised in connection with the issue of burden of proof is that of the alleged existence of a duty of States to cooperate with the Court in the procurement of evidence. The question is whether there is a general duty for States to cooperate with the Court in establishing the relevant facts and a corresponding “general obligation of disclosure,” i.e. a duty to produce any evidence that it may be in its sole possession and to disclose “all material facts relative to the merits of the claim.”39

37  On the import of this question in cases submitted by special agreement in which there is not an identifiable plaintiff/defendant relationship see Valencia-Ospina, “Evidence . . .”, p. 203. 38  Pulp Mills, Judgment of 20 April 2010, ICJ Rep. 2010, p. 71, para. 162. 39  Cheng, “General principles . . .”, p. 329.

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Proponents of this idea rely heavily on the general notion that States are under a duty to “act in good faith when engaging in a judicial procedure.”40 They invoke provisions like Article 75 of the 1907 Hague Convention on the Pacific Settlement of International Disputes, which binds the States parties “[t]o supply the Tribunal, as fully as they consider possible, with all the information required for deciding the dispute”, or Article 15, para. 2 of the 1953 ILC Draft Convention on Arbitral Procedure, under which “[t]he parties shall cooperate with the tribunal in the production of evidence and shall comply with the measures ordered by the tribunal for this purpose.”41 They also quote a celebrated dictum in the Parker case, before the US-Mexico General Claims Commission, according to which: [i]t is the duty of the respective Agencies to co-operate in searching out and presenting to this tribunal all facts throwing any light on the merits of the claim presented. (. . .) [t]he Parties before this Commission are sovereign Nations who are in honor bound to make full disclosures of the facts in each case so far as such facts are within their knowledge, or can reasonably be ascertained by them. (General Claims Commission (Convention of  September 8, 1923) (United Mexican States, United States of America), William A. Parker (U.S.A.) v. United Mexican States, March 31, 1926, RIAA, vol. 4, p. 39, paras. 6 and 7)

However, it must be noted that an analogous provision is entirely missing from the Court’s governing instruments and the closest to Article 75 of the 1907 Hague Convention that can be found in the Court’s Statute is Article 49, in which the consequences of a refusal to comply with a request from the Court concerning the production of evidence (“documents” or “explanations”) are very tersely spelled out: “[f]ormal note shall be taken of any refusal.”42 After carefully analysing the scope and limits of Article 49 a commentator concluded that this provision “is silent on whether litigant States are under a legal obligation to disclose documents requested by the Court (. . .) de lege lata, the 40  Aguilar Mawdsley, “Evidence . . .”, p. 539; Amerasinghe, “Evidence . . .”, pp. 96–117; Mani’s Adjudication, pp. 198–201; Muller’s Procedural Developments, LPICT, vol. 6 (2007), p. 488. 41  ILC Draft Convention, p. 56. In the commentary reference is made to an alleged “principle of co-operation in the matter of evidence” (ibid., p. 61). See also article 18 of the 1958 Model Rules (ILC Model Rules, p. 85). 42  For the view that, in certain circumstances, this may lead to a finding that a confession has taken place see Aguilar Mawdsley, “Evidence . . .”, p. 546.

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more convincing view is that parties are under no legal obligation to comply with requests under Art.49, cl.1. (. . .).43 More recently, in the Pulp Mills case the Court implied for the first time that both parties have a duty to cooperate in the provision of evidence. After stressing the already noted aspect that the principle of the burden of proof applies to facts asserted both by the applicant and the respondent, the Court remarked: It is of course to be expected that the Applicant should, in the first instance, submit the relevant evidence to substantiate its claims. This does not, however, mean that the Respondent should not co-operate in the provision of such evidence as may be in its possession that could assist the Court in resolving the dispute submitted to it. (Pulp Mills, Merits, Judgment of 20 April 2010, ICJ Rep. 2010, p. 71, para. 163)44

Finally, assuming that such a duty does exist, the consequences of its breach were spelled out by the same organ that decided the Parker case, in the following terms—which closely resemble the last sentence in Article 49 of the Court’s Statute: While ordinarily it is incumbent upon the party who alleges a fact to introduce evidence to establish it, yet before this Commission this rule does not relieve the respondent from its obligation to lay before the Commission all evidence within its possession to establish the truth, whatever it may be . . . In any case where evidence which would probably influence its decisions is peculiarly within the knowledge of the claimant or of the respondent government, the failure to produce it, unexplained, may be taken into account by the Commission in reaching a decision. (RIAA, vol. 4, p. 39, paras. 6 and 7)

The Court has had occasion to clarify several specific aspects concerning the burden of proof. Chiefly among them are the following:45

43  Tams, “Article 49”, in Oxford Commentary, MN 20–21, pp. 1285–1286. See also Benzing, “Evidentiary Issues”, MN 45, pp. 1247–1248; Brown, “A Common Law . . .”, pp. 105–106. 44  For a comment see Quintana’s Procedural Developments, LPICT, vol. 9 (2010), pp. 360–362. 45  The Court has also had occasion to identify certain criteria applicable to the burden of proof with regard to the existence of a legal interest that would justify a third State’s intervention under Article 62 of the Statute. These are examined in Chapter 14, b).

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Burden of Proof and Burden of Evidence In certain common law systems there is a distinction between the burden of proof and the burden of going forward with the evidence, sometimes called the “burden of evidence.” In his treatise on the PCIJ, Hudson remarked that while on several occasions the Court referred to the burden of proof as falling upon a particular party, it did so “without distinguishing it from the burden of going forward with proof.”46 More recently, in the Avena case, the United States invoked that distinction with regard to the proof of the nationality of some of the individuals to which the application by Mexico referred. The Court denied that this distinction is applicable in litigation before it and simply determined which of the two parties carried the burden of proof with regard to the question of nationality and whether it had met that burden.47 Lack of Proof and Consequences If a State is not able to provide “sufficient proof of relevant facts” at the Court’s satisfaction, thus failing to discharge its burden of proof, the corresponding submission will be rejected as unproven, rather than declared inadmissible a priori: The Court is bound to observe that any judgment on the merits in the present case will be limited to upholding such submissions of the Parties as have been supported by sufficient proof of relevant facts, and are regarded by the Court as sound in law. (. . .) Ultimately, however, it is the litigant seeking to establish a fact who bears the burden of proving it; and in cases where evidence may not be forthcoming, a submission may in the judgment be rejected as unproved, but is not to be ruled out as inadmissible in limine on the basis of an anticipated lack of proof. (Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 437, para. 101)48

46  Hudson’s PCIJ, p. 565. 47  Avena, Merits, Judgment of 31 March 2004, ICJ Rep. 2004, pp. 41–42, paras. 56–57. This question is discussed in more detail by judge Ranjeva in a declaration appended to the judgment (ICJ Rep. 2004, pp. 75–76, paras. 1–6). See also Amerasinghe, “Evidence . . .”, pp. 37–41; Muller’s Procedural Developments, LPICT, vol. 3 (2004) pp. 555–556. 48  Reaffirmed in Cameroons v. Nigeria, Preliminary Objections, Judgment of 11 June 1998, ICJ Rep. 1998, p. 319, para. 101.

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Lack of Relevance of the Burden of Proof in Certain Circumstances There are certain situations in international law, for instance territorial and boundary disputes, in which the burden of proof plays little if any role, given that the evidence may be particularly hard to obtain and that lack of proof of a legal title advanced by one party does not necessarily means that the other party has a better title. A chamber of the Court admitted as much in the Burkina Faso/Mali case, when it stated: At this stage of its reasoning, the Chamber must emphasize that the present case is a decidedly unusual one as concerns the facts which have to be proven and the evidence which has been, or might have been, produced for this purpose. The Chamber has to ascertain where the frontier lay in 1932 in a region of Africa little known at the time and largely inhabited by nomads, in which transport and communications were very sketchy. (. . .) Although the Parties have provided it with a case file as complete as possible, the Chamber cannot however be certain of deciding the case on the basis of full knowledge of the facts. The case file shows inconsistencies and shortcomings (. . .). In these circumstances, it is clear that the Chamber cannot resolve the problem by means of any of the powers in the matter of evidence under Articles 48–49 and 50 of the Statute of the Court. Nor can the solution be looked for in a systematic application of the rule concerning the burden of proof. (. . .) In any event, however, in a case such as this, the rejection of any particular argument on the ground that the factual allegations on which it is based have not been proved is not sufficient to warrant upholding the contrary argument. The Chamber has to indicate the line of the frontier on the basis of the documents and other evidence presented to it by the disputant Parties. Its task is further complicated by the doubts it has expressed above regarding the sufficiency of this evidence. (Burkina Faso/Mali, Merits, Judgment of 22 Dec. 1986, ICJ Rep. 1986, pp. 587–588, paras. 64–65)49

49  However, see the opinion of Cheng, for whom this is rather a confirmation of the rule that the burden of proof falls upon the claimant, in the sense that in this type of case both parties are in the position of claimants before the tribunal (“General principles . . .”, p. 334).

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Relaxation of the Burden of Proof with Regard to Negative Facts In Roman law a procedural rule was developed according to which a negative fact did not have to be proven: the party invoking the absence of a fact could be relieved of the duty of establishing that absence and the burden of proof was placed on the other party, who was bound to prove the presence of the fact (ei incumbit probatio qui dicit, non qui negat). This rule is not applicable as such in contemporary international law, but the Court has given indications that the burden of proof on a party alleging a negative fact may be lighter, for the Court will always take into account the nature of the facts to be demonstrated: The evidence or material offered by Nicaragua in connection with the allegation of arms supply has to be assessed bearing in mind the fact that, in responding to that allegation, Nicaragua has to prove a negative. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 80, para. 147)50

Reversal of the Burden of Proof The Court has in general not been inclined to admit a reversal of the burden of proof. In Corfu Channel, the Court famously stated that the territorial exclusivity of a State party over the evidence located in its territory does not bring about a shifting in the burden of proof.51 More recently, the Court adopted the same approach with regard to the “precautionary principle,” one of the basic concepts of International Environmental Law: Regarding the arguments put forward by Argentina on the reversal of the burden of proof and on the existence, vis-à-vis each Party, of an equal onus to prove under the 1975 Statute, the Court considers that while a precautionary approach may be relevant in the interpretation and application of the provisions of the Statute, it does not follow that it operates as a reversal of the burden of proof. The Court is also of the view that there is nothing in the 1975 Statute itself to indicate that it places the burden of proof equally on both Parties. (Pulp Mills, Merits, Judgment of 20 April 2010, ICJ Rep. 2010, p. 71, para. 164)

50  See also text to note 60. 51  Merits, Judgment of 9 April 1949, ICJ Rep. 1949, p. 18.

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Burden of Proof on the Existence of Rules of International Law It has been stated that while the facts must be proved, the law has to be argued.52 Therefore, the parties to a case have no burden of proof with regard to establishing the rules of international law applicable to the settlement of the dispute. Under the principle iura novit curia this lies within the province of the Court alone.53 The Court (. . .) as an international judicial organ, is deemed to take judicial notice of international law, and is therefore required (. . .) to consider on its own initiative all rules of international law which may be relevant to the settlement of the dispute. It being the duty of the Court itself to ascertain and apply the relevant law in the given circumstances of the case, the burden of establishing or proving rules of international law cannot be imposed upon any of the parties, for the law lies within the judicial knowledge of the Court. (Fisheries Jurisdiction (UK v. Iceland)(Germany v. Iceland) Merits, Judgments of 25 July 1974, ICJ Rep. 1974, p. 9, para. 17; p. 181, para. 18)

However, the fact that the Court must know what international law is does not mean that it does so in all cases or that the parties play no role at all in the process of identifying the contents of that law. In the Lotus case, the PCIJ gave certain hints on the methodology it followed in order to ascertain for itself what the contents of certain international law rule were: The Court (. . .) observes that in the fulfillment of its task of itself ascertaining what the international law is, it has not confined itself to a consideration of the arguments put forward, but has included in its researches all precedents, teachings and facts to which it had access and which might possibly have revealed the existence of one of the principles of international law contemplated in the special agreement. (Lotus, Judgment No. 9, 7 Sep. 1927, PCIJ A 10, p. 31)

52  Sir A. Watts, “Burden of Proof, and Evidence before the ICJ”, in F. Weiss, (Ed.), Improving WTO Dispute Settlement Procedures, Issues and Lessons From the Practice of Other International Courts and Tribunals (2000), p. 293. 53  Riddell & Plant, “Evidence . . .”, pp. 144–149.

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Quoting this precedent, the Court noted in the Nicaragua case that “[t]he principle iura novit curia signifies that the Court is not solely dependent on the argument of the parties before it with respect to the applicable law.”54 Note, however, that when the status of customary law is uncertain, parties to cases normally devote considerable effort in order to demonstrate the existence of a given rule by offering evidence on State practice and opinio iuris.55 The reason for this is that, in general, iura novit curia does not restrict the parties in their treatment of the law in the course of the pleadings.56 In the case of regional customs, the Court itself has stated unequivocally that “[t]he Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party.”57 Burden of Proof and Questions of Jurisdiction Jurisdiction is not a question of fact but a question of law. Therefore, the question of the burden of proof is not as important in cases involving a challenge to the Court’s jurisdiction as in other type of cases.58 The Court has stated in apparently unambiguous terms that “there is no burden of proof to be discharged in the matter of jurisdiction.”59 It has also indicated that the applicable test would be whether, in the opinion of the Court, “the force of the arguments militating in favour of [jurisdiction] is preponderant.”60 This has been elaborated as follows: The Parties have devoted some argument to a question defined by them as that of the burden of proof: whether it is for Nicaragua to show the existence of jurisdiction for the Court to deal with its claims, or for Honduras to establish the absence of such jurisdiction. Each of them has 54  Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 24, para. 29. 55  Aguilar Mawdsley, “Evidence . . .”, pp. 537–538; Amerasinghe, “Evidence . . .”, pp. 56–57. 56  D. Bethlehem, “Submissions on Points of Fact and Law: Written and Oral Pleadings before the International Court of Justice“, in F. Weiss, (Ed.), Improving WTO Dispute Settlement Procedures: Issues and Lessons From the Practice of Other International Courts and Tribunals (2000), p. 187. 57  Asylum, Judgment of 20 Nov. 1950, ICJ Rep. 1950, p. 276; reaffirmed in US Nationals in Morocco, Judgment of 27 Aug. 1952, ICJ Rep. 1952, p. 200. 58  A slightly different take on this question is that of Amerasinghe, for whom in cases concerning questions of jurisdiction the burden of proof is discharged by the presentation of pleadings (Amerasinghe, “Evidence . . .”, p. 45). 59  Fisheries Jurisdiction (Spain v. Canada), Jurisdiction, Judgment of 4 Dec. 1998, ICJ Rep. 1998, p. 450, para. 38. 60  On the “test of preponderance” see also Box # 2–4.

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cited, in support of its contention, the Court’s dictum that “it is the litigant seeking to establish a fact who bears the burden of proving it” (. . .). The existence of jurisdiction of the Court in a given case is however not a question of fact, but a question of law to be resolved in the light of the relevant facts. The determination of the facts may raise questions of proof. However the facts in the present case—the existence of the Parties’ declarations under Article 36 of the Statute, the signature and ratification of the Pact of Bogota, etc.—are not in dispute; the issue is, what are the legal effects to be attached to them? The question is whether in case of doubt the Court is to be deemed to have jurisdiction or not. (. . .) The Court will therefore in this case have to consider whether the force of the arguments militating in favour of jurisdiction is preponderant, and to “ascertain whether an intention on the part of the Parties exists to confer jurisdiction upon it”. (Armed Actions, Jurisdiction and Admissibility, Judgment of 20 Dec. 1988, ICJ Rep. 1988, pp. 75–76, para. 16)

Burden of Proof in Espousal Cases When the question at issue concerns the impairment of individual rights espoused by a State on behalf of one of its nationals, certain flexibility is in order, in particular because what needs to be proven by the State endorsing the claim of its national would be in most cases a negative fact:61 In particular, where, as in these proceedings, it is alleged that a person has not been afforded, by a public authority, certain procedural guarantees to which he was entitled; it cannot as a general rule be demanded of the Applicant that it prove the negative fact which it is asserting. A public authority is generally able to demonstrate that it has followed the appropriate procedures and applied the guarantees required by law—if such was the case—by producing documentary evidence of the actions that were carried out. However, it cannot be inferred in every case where the Respondent is unable to prove the performance of a procedural obligation that it has disregarded it: that depends to a large extent on the precise nature of the obligation in question; some obligations normally

61  On questions of evidence in “espousal cases” see K. Highet, “Evidence, The Chamber and the ELSI Case”, in R.B. Lillich (Ed.), Fact-Finding before International Tribunals (1992), pp. 42–44.

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imply that written documents are drawn up, while others do not. The time which has elapsed since the events must also be taken into account. (Diallo, Merits, Judgment of 30 Nov. 2010, ICJ Rep. 2010, pp. 660–661, para. 55)

Box # 8-2 Municipal law as a fact subject to proof 62 Since the time of the Permanent Court, the case law has been clear as to the role that the municipal law of the different States is to play in the context of international litigation: from the standpoint of international law the laws of any given State are merely facts. This was clearly stated by the Court in 1926 in the following terms: It might be asked whether a difficulty does not arise from the fact that the Court would have to deal with the Polish law of July 14th, 1920. This, however, does not appear to be the case. From the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures. The Court is certainly not called upon to interpret the Polish law as such; but there is nothing to prevent the Court’s giving judgment on the question whether or not, in applying that law, Poland is acting in conformity with its obligations towards Germany under the Geneva Convention. (Polish Upper Silesia, Merits, Judgment No. 7, 25 May 1926, PCIJ A 7, p. 19)

But, since the principle iura novit curia does not apply here, when the Court is obliged to obtain knowledge with regard to a certain system of municipal law it is entitled to, on its own, either undertake or cause to be undertaken research in that direction:63 Though bound to apply municipal law when circumstances so require, the Court, which is a tribunal of international law, and which, in this capacity, is deemed itself to know what this law is, is not obliged also to know the municipal law of the various countries. All that can be said in this respect

62  See a thorough study by A. Cassese, Il diritto interno nel processo internazionale (1962). 63  It has been pointed out that in cases in which judges ad hoc have been appointed by the parties and they happen to be nationals of them, they may be particularly helpful for the Court in undertaking this research (Aguilar Mawdsley, “Evidence . . .”, p. 536).

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is that the Court may possibly be obliged to obtain knowledge regarding the municipal law which has to be applied. And this it must do, either by means of evidence furnished by the Parties or by means of any researches which the Court may think fit to undertake or to cause to be undertaken. (Brazilian Loans, Judgment No. 15, 12 July 1929, PCIJ A 21, p. 124)

In the subsequent Serbian Loans case, the PCIJ added that it should also take into account what sometimes has been called “judicial evidence,” i.e., the jurisprudence of municipal courts. The reason given for this was that “[i]t is French legislation, as applied in France, which really constitutes French law” ( Judgment No. 14, 12 July 1929, PCIJ A 20, p. 46).64 Similarly, in the Elettronica Sicula case a chamber of the Court treated certain decisions by domestic courts as “additional evidence” of the situation before the chamber and found no need to determine whether they had to be treated as “findings of Italian law” or as “findings of fact” ( Judgment of 20 July 1989, ICJ Rep. 1989, p. 62, para. 99). More recently, in the context of decolonization and the determination of territorial and boundary disputes, the present Court has pointed out that the same rationale is applicable, in essence, to colonial law, which under the principle of uti possidetis juris would be the system of law governing such questions. In the Court’s view, under international law domestic (colonial) law is simply “a factual element among others,” or evidence indicative of what has been called the “colonial heritage” of the States arising out of the process of decolonization. The determination of a frontier line between two States is obviously a matter of international law, but the Parties both recognize also that the question has here to be appraised in the light of French colonial law, “droit d’outre-mer”. Since the territories of the two States had been part of French West Africa, the former boundary between them became an international frontier only at the moment when they became independent. The line which the Chamber is required to determine as being that which existed in 1959–1960, was at that time merely the administrative boundary dividing two former French colonies, called territoires d’outre-mer from 1946; as such it had to be defined not according to international law, but according to the French legislation which was applicable to such territoires.

64  On the basis of this decision, a former President of the Court has concluded that “[t]he Court drew back from treating evidence of municipal law with the same freedom as other evidence” (Lachs, “Evidence . . .”, p. 274).

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One clarification is, however, necessary as concerns the application of French droit d’outre-mer. By becoming independent, a new State acquires sovereignty with the territorial base and boundaries left to it by the colonial power. This is part of the ordinary operation of the machinery of State succession. International law—and consequently the principle of uti possidetis—applies to the new State (as a State) not with retroactive effect, but immediately and from that moment onwards. It applies to the State as it is, i.e., to the “photograph” of the territorial situation then existing. The principle of uti possidetis freezes the territorial title; it stops the clock, but does not put back the hands. Hence international law does not effect any renvoi to the law established by the colonizing State, nor indeed to any legal rule unilaterally established by any State whatever; French law—especially legislation enacted by France for its colonies and territoires d’outre-mer—may play a role not in itself (as if there were a sort of continuum juris, a legal relay between such law and international law), but only as one factual element among others, or as evidence indicative of what has been called the “colonial heritage”, i.e., the “photograph of the territory” at the critical date. (Burkina Faso/Mali, Merits, Judgment of 22 Dec. 1986, ICJ Rep. 1986, p. 568, paras. 29–30)

In the present case these territorial boundaries were no more than delimitations between different administrative divisions of colonies subject to the same colonial authority. Only at the moment of independence, also called the “critical date”, did these boundaries became international frontiers. Until that time the matter of delimitation was governed by French colonial law, known as “droit d’outre-mer”. As noted above . . ., in the application of the principle of uti possidetis juris, French law does not play a role in itself but only as one factual element among others or as evidence indicative of what has been called the “colonial heritage” at the critical date. (Benin/Niger, Judgment of 12 July 2005, ICJ Rep. 2005, p. 120, para. 46)

Evidence

b)

405

The Standard of Proof 65

Once it is established which of the parties has the burden of proving certain facts, it is necessary to determine how far it must go in order to convince the Court of the accuracy of those facts.66 The quantum of the proof required in a given case has been variably described as “[w]hat a party must do in order to discharge the burden of proof when that burden rests upon it,”67 or “the degree of certainty of a fact that the parties need to establish.”68 The Court has shown a cautious attitude toward this question and a clear inclination to deal with each case on its own merits.69 Nevertheless, on the basis of a handful of decisions it is possible to discern different types of situations that would seem to call for different standards of proof.70 In the first place, in the Corfu Channel case the Court pointed out that when charges of “exceptional gravity” are levelled against a State, a special “degree of certainty” is required.71 The terminology used in Corfu Channel—in which the Court was not convinced that the testimony of a certain witness called by the United Kingdom was persuasive—is instructive. The Court found that without questioning “the personal sincerity of the witness” or “the truth of what he said,” the facts stated by him from his personal knowledge were not “sufficient to prove” what the United Kingdom Government considered them to prove. The witness’ 65  A good analysis of the standard of proof can be found in Teitelbaum, “Recent FactFinding . . .”, pp. 124–129. See also Amerasinghe, “Evidence . . .”, pp. 232–261; A. Gattini, “Evidentiary Issues in the ICJ’s Genocide Judgment”, Journal of International Criminal Justice, vol. 5 (2007), pp. 893–899; Benzing, “Evidentiary Issues”, MN 107–112, pp. 1264– 1266; Riddell & Plant, “Evidence . . .”, pp. 123–137. 66  Brown, “A Common Law . . .”, p. 97. 67  Pulp Mills, Merits, Separate Opinion of Judge Greenwood, ICJ Rep. 2010, p. 230, para. 25. 68  Muller’s Procedural Developments, 6 (2007), p. 489. See also Teitelbaum, “Recent Develop­ ments . . .”, p. 124. 69  S. Halink, “All Things Considered: How the International Court of Justice Delegated Its Fact-Assessment to the United Nations in the Armed Activities Case”, New York University Journal of International Law and Politics, vol. 40 (2007–2008), pp. 21–22; Watts, “Burden of proof . . .”, p. 294. 70  This is what a commentator has called “a sliding scale” for the standard of proof (Halink, “All Things Considered . . .”, p. 24). 71  Corfu Channel, Merits, Judgment of 9 April 1949, ICJ Rep. 1949, p. 17. See also Qatar v. Bahrain, Jurisdiction and Admissibility II, Dissenting Opinion of Judge Shahabuddeen, ICJ Rep. 1995, p. 63.

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a­ llegations did “not suffice to constitute decisive legal proof ” of what he was ­asserting and thus could be regarded only “as allegations falling short of conclusive evidence.”72 In the Armed Activities (RDC v. Uganda) case, dealing also with serious allegations concerning the unlawful use of force, the Court introduced new terminology (“convincing evidence;”73 “probative evidence;”74 and “sufficient evidence”)75 and on two occasions limited itself to state in rather generic terms that, on the basis of the evidence before it, a given fact “ha[d] not been established to its satisfaction.”76 However, if there are cases in which “charges of exceptional gravity” are levelled against a State, there must necessarily also be cases in which a State is the object of less serious charges and in which a lower standard of proof would appear to be applicable.77 The only indication in this regard in the case law of the Court is a dictum in the Genocide Convention (Bosnia) case, in which the Court marked a contrast between proving charges concerning the commission of the crime of genocide by the respondent and proving a claim that the latter had breached its undertakings under the 1948 Convention to prevent genocide and to punish and extradite persons charged with genocide. The Court reaffirmed that in the former situation the evidence on serious charges levelled against a State must be “fully conclusive” so that the Court is in a position to become “fully convinced” of the veracity of allegations made in the proceedings: The Court has long recognized that claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive (. . .). The Court requires that it be fully convinced that allegations made in the proceedings, that the crime of genocide or the other acts enumerated in Article III have been committed, have been clearly established. The same standard applies to the proof of attribution for such acts. (Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 129, para. 209)

72  Corfu Channel, Merits, Judgment of 9 April 1949, ICJ Rep. 1949, pp. 16–17 (emphasis added in all cases). 73  Armed Activities (RDC v. Uganda), Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 209, para. 91. 74  Ibid., p. 217, para. 123. 75  Ibid., p. 230, para. 173. 76  Ibid., pp. 205, para. 71 and p. 213, para. 106. 77  The point was made quite accurately by judge Greenwood (Pulp Mills, Merits, Separate Opinion of Judge Greenwood, ICJ Rep. 2010, p. 230, para. 25).

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Significantly, in this case the Court remained faithful to the criterion it had adopted in Corfu Channel and declined to apply the stricter standard of proof advocated by the respondent, which was in effect closer to criminal law than that ordinarily used in (civil) inter-State international litigation. Serbia contended that the proceedings “[c]oncern the most serious issues of State responsibility and . . . a charge of such exceptional gravity against a State requires a proper degree of certainty. The proofs should be such as to leave no room for reasonable doubt.”78 The Court refrained from taking that avenue, although in at least one respect it came close to using a “beyond any doubt” standard of proof.79 Likewise, the Eritrea-Ethiopia Claims Commission was emphatic in refusing to accept that in some cases the standard of proof concerning an inter-State claim should be higher and closer to that used in individual criminal proceedings.80 As for situations not involving “charges of exceptional gravity,” the Court simply remarked that with respect to them, “[t]he Court requires proof at a high level of certainty appropriate to the seriousness of the allegation.”81 Commenting upon this dictum, judge Higgins has stated: “[t]here have been some curious comments by observers as to this being a ‘higher’ or ‘lower’ standard than ‘beyond reasonable doubt’. It is simply a comparable standard, but employing terminology more appropriate to a civil, international law case.”82 Thirdly, the question of the standard of proof may also be influenced by the quality of the available evidence. In particular, when the circumstances of a case make it necessary to resort to indirect or circumstantial evidence, the standard of proof is clearly higher than in cases in which direct proof is available. This flows from yet another statement by the Court in the Corfu Channel case, according to which:

78  Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 129, para. 208. 79  Ibid., para. 422. See further Teitelbaum, “Recent Developments . . .”, p. 128; R. Higgins, “The Judicial Determination of Relevant Facts”, in R. Higgins, Themes and Theories—Selected Essays, Speeches, and Writings in International Law (2009), p. 1374. 80  Partial Award on Prisoners of War, Ethiopia’s Claim No. 4, para. 38, Eritrea’s Claim No. 17, para. 47, reproduced in ILM, vol. 42 (2003), pp. 1063 and 1092). A good analysis can be found in Ch.Van den Wyngaert, “International Criminal Courts as Fact (and Truth) Finders in Post Conflict Societies: Can Disparities with Ordinary International Courts be Avoided?”, ASIL Proceedings, vol. 100 (2006), pp. 37–42. 81  Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 130, para. 210. 82  Higgins, “Judicial Determination . . .”, p. 1374. Emphasis in the original.

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The Court must examine . . . whether it has been established by means of indirect evidence that Albania has knowledge of mine-laying in her territorial waters independently of any connivance on her part in this operation. The proof may be drawn from inferences of fact, provided that they leave no room for reasonable doubt. (Corfu Channel, Merits, Judgment of 9 April 1949, ICJ Rep. 1949, p. 18)83

To sum up, broadly speaking, there are three types of cases that could be distinguished, as far as the standard of proof is concerned:84 (i) Ordinary cases, in which the required proof must have a high level of certainty appropriate to the seriousness of the allegation; (ii) Cases in which charges of exceptional gravity against a State require a higher than ordinary standard of proof, under which the Court is bound to attain a high degree of certainty, after assessing materials constituting decisive legal proof or conclusive evidence. In cases of this kind the Court must be satisfied that convincing, probative or sufficient evidence has been presented;85 (iii) Cases in which, in the absence of direct evidence, resort to circumstantial or indirect evidence is warranted, provided that the inferences to be made leave no room for reasonable doubt.86

83  Emphasis in the original. 84  This typology is concerned exclusively with litigation before the ICJ. On the general plane, an author has identified as many as five different standards of proof that may be used by international tribunals (Brown, “A Common Law . . .”, pp. 98–101). 85  It is not clear whether the criteria of “conclusiveness” and “sufficiency” are equivalent. For a criticism on the manner that the Court dealt with them in the Oil Platforms case, see Prager’s Procedural Developments, LPICT, vol. 3 (2004), pp. 129–130. For a criticism on the concept of “insufficient evidence” see also the separate opinion of judge Buergenthal in the Oil Platforms case (Merits, ICJ Rep. 2003, pp. 286–287, para. 41). 86  In apparent contradiction to this, in the El Salvador/Honduras case, a chamber of the Court had to determine whether a certain river had been a provincial boundary and therefore had a role to play under the uti possidetis principle. The chamber remarked that on that specific point there was “no great abundance of evidence either way” and that, in these conditions and acting “on a balance of probabilities,” the river in question had effectively been such a boundary (Merits, Judgment of 11 Sept. 1992, ICJ Rep, 1992, p. 506, para. 248).

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Box # 8-3 Criticizing the Court’s attitude towards the standard of proof The traditional caution that the Court displays with regard to the question of the standard of proof has been criticized from several quarters. In a particularly clear opinion, judge Higgins stated in the Oil Platforms case: 30. (. . .) [t]he Court asserts that the United States has the “burden of proof of the existence of an armed attack” such as to justify it using force in self-defence (. . .). Leaving aside for the moment whether this is indeed the right legal test, it may immediately be noted that neither here nor elsewhere does the Court explain the standard of proof to be met. That a litigant seeking to establish a fact bears the burden of proving it is a commonplace, well-established in the Court’s jurisprudence (. . .). But in a case in which so very much turns on evidence, it was to be expected that the Court would clearly have stated the standard of evidence that was necessary for a party to have discharged its burden of proof. 31. As to standard of proof in previous cases, the Court’s prime objective appears to have been to retain a freedom in evaluating the evidence, relying on the facts and circumstances of each case (. . .). 32. In Corfu Channel, the Court simultaneously rejected evidence “falling short of conclusive evidence” (. . .); and referred to the need for “a degree of certainty” (. . .). In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court did not even attempt to articulate the standard of proof it relied on, merely holding from time to time that it found there was “insufficient” evidence to establish various points (. . .). 33. Beyond a general agreement that the graver the charge the more confidence must there be in the evidence relied on, there is thus little to help parties appearing before the Court (who already will know they bear the burden of proof) as to what is likely to satisfy the Court. Other judicial and arbitral tribunals have of necessity recognized the need to engage in this legal task themselves, in some considerable detail (for example, Prisoners of War, Eritrea’s Claim 17, Eritrea and Ethiopia, Eritrea Ethiopia Claims Commission, Partial Award of 1 July 2003, at paras. 43– 53; Velasquez Rodriguez case, Judgment of 29 July 1988, Inter-American Court of Human Rights, paras. 127–139). The principal judicial organ of the United Nations should likewise make clear what standards of proof it

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requires to establish what sorts of facts. Even if the Court does not wish to enunciate a general standard for non-criminal cases, it should in my view have decided, and been transparent about, the standard of proof required in this particular case. (Oil Platforms, Separate Opinion of Judge Higgins, ICJ Rep. 2003, pp. 233–234)87

In a scholarly article published subsequently, judge Higgins remarked that “[p]art of this reluctance to be specific is caused by the gap between the explicit standard-setting approach of the common law and the ‘intime conviction du juge’ familiar under civil law.”88

c)

Production and Handling of Evidence

The production of evidence before the Court operates in a relatively simple manner: evidence is either presented by the parties in support of their respective arguments or its production is ordered by the Court, which can act proprio motu on this matter. The pertinent provision in the Statute is Article 52, concerning the duty of the parties to provide “proofs and evidence” to the Court’s satisfaction. What is missing in the Court’s law and practice is anything resembling procedures for discovery or disclosure, as well as an equivalent to what an arbitrator called “municipal restrictive rules of adjective law or of evidence,” like the rigid rules on the admissibility of certain types of evidence found in several systems of municipal law.89 The production of evidence is summarily regulated in the Statute and Rules, which contain a few sketchy norms directed at assuring at all times the fullest equality between the contentious parties. In the Nicaragua case, one of the most important in the history of both courts in terms of the handling of 87  See also the separate opinion of judge Owada in the same case (ICJ Rep. 2003, pp. 321–323). 88  R. Higgins, “The Judicial determination of Relevant Facts”, in R. Higgins, Themes and Theories, Selected Essays, Speeches, and Writings in International Law (2009), p. 1374. See also Valencia-Ospina, “Evidence . . .”, p. 203; Prager’s Procedural Developments, 3 (2004), pp. 128–130. 89  General Claims Commission (Convention of September 8, 1923) (United Mexican States, United States of America), William A. Parker (U.S.A. v. United Mexican States), March 31, 1926, RIAA, vol. 4, p. 39. See also Mani’s Adjudication, p. 218. On discovery and disclosure see Benzing, “Evidentiary Issues”, MN 46–50, pp. 1248–1249.

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e­ vidence, the Court referred to existing “specific rules” in this field in the following manner: The Court is bound by the relevant provisions of its Statute and its Rules relating to the system of evidence, provisions devised to guarantee the sound administration of justice, while respecting the equality of the parties. The presentation of evidence is governed by specific rules relating to, for instance, the observance of time-limits, the communication of evidence to the other party, the submission of observations on it by that party, and the various forms of challenge by each party of the other’s evidence. The absence of one of the parties restricts this procedure to some extent. The Court is careful, even where both parties appear, to give each of them the same opportunities and chances to produce their evidence. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, pp. 39–40, para. 59)90

The Court also underlined that the principle of the free assessment of evidence is tempered by the consideration that “general principles of judicial procedure necessarily govern the determination of what can be regarded as proved.”91 In the same case, the Court formulated the important rule that “[t]he facts on which its Judgment is based should be those occurring up to the close of the oral proceedings on the merits of the case”.92 To this, it added that “[w]here facts, apparently of such a nature as materially to affect its decision, came to its attention after the close of the hearings” the proper course would be to re-open the oral proceedings.93 In the subsequent Armed Activities (DRC v. Uganda) case, another factintensive case involving questions concerning the use of force, the Court outlined what can be considered as a set of basic rules that guide it in assessing evidentiary material”:94

• The Court will treat with special caution evidentiary materials specially pre-

pared for a case (or evidence that “appears to have been prepared u­ nilaterally

90  For a comment see K. Highet, “Evidence, the Court and the Nicaragua Case”, AJIL, vol. 61 (1987), p. 4). 91  Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 40, para. 60. 92  Ibid. 93  Ibid., p. 39, para. 58). On the re-opening of proceedings see Chapter 7, d). 94  Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 201, para. 61. See also UNITAR Colloquium II, p. 26; Muller’s Procedural Developments, LPICT, vol. 5 (2006) 200–206.

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for purposes of litigation”)95 and also materials emanating from a single source; It will prefer contemporaneous evidence from persons with direct knowledge; It will give particular attention to reliable evidence acknowledging facts or conduct unfavourable to the State represented by the person making them; The Court will also give weight to evidence that has not, even before the current litigation, been challenged by impartial persons for the correctness of what it contains; Evidence obtained by examination of persons directly involved, and who were subsequently cross-examined by judges skilled in examination and experienced in assessing large amounts of factual information, some of it of a technical nature, merits special attention. The evidentiary value of this type of material will be enhanced when the proceedings in question have led to findings of unchallenged credibility that are accepted by both parties.96

• • • •

Box # 8-4 Obtaining evidence in situ: the “descente sur les lieux” in the Court’s Rules and Practice Article 66 of the Rules, which was introduced in 1978, reads as follows: The Court may at any time decide, either proprio motu or at the request of a party, to exercise its functions with regard to the obtaining of evidence at a place or locality to which the case relates, subject to such conditions as the Court may decide upon after ascertaining the views of the parties. The necessary arrangements shall be made in accordance with Article 44 of the Statute. This provision consecrates the legal foundation for a descente sur les lieux, i.e., the possibility of the Court’s obtaining evidence in situ “subject to such conditions as the Court may decide upon after ascertaining the views of the parties.” This rule is related to Article 55 of the Rules—concerning the possibility of the Court sitting “at a place other than the seat of the Court”—and contains a

95  Armed Activities (DRC v. Uganda), Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 277, para. 336. 96  In the Genocide Convention (Bosnia) case, the Court made extensive use of this category with regard to the fact-finding process within the ICTY (See Box # 8–16).

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r­ envoi to Article 44 of the Statute, presumably to paragraph 2, concerning “steps [that] are to be taken to procure evidence on the spot.” It has been remarked that it is not clear whether the descente sur le lieux has a legal basis in Article 44, para. 2 of the Statute, a provision that was not invoked as authority by the PCIJ on the first occasion that it resorted to this device.97 With the adoption of Article 66 of the 1978 Rules, however, the question may have become moot. At the time of the PCIJ this device was used only once (Diversion of Water from the River Meuse, Judgment of 28 June 1937, PCIJ A/B 70, p. 9). In the Corfu Channel the Court ordered that the committee of experts it had appointed to determine certain questions of fact pertaining to the merits carried out a descente sur le lieux.98 A proposal for the Court to carry out an inspection in loco and a visit to certain countries was considered and rejected (by means of an order) in the South West Africa cases (Order of 29 Nov. 1965, ICJ Rep. 1965, p. 9). Similarly, in the El Salvador/Honduras case a suggestion by a party aimed at a chamber exercising its functions with regard to the obtaining of evidence in situ in the disputed areas of the land frontier was rejected (Merits, Judgment of 11 Sept. 1992, ICJ Rep. 1992, pp. 361–362, para. 22). There has been only one instance of a visit to the site in the practice of the Court: the Gabcikovo-Nagymaros case (ICJ Rep. 1997, pp. 13–14, para. 10). Although the intention of the drafters when introducing Article 66 in the Rules was to facilitate the collection of evidence in situ by the Court itself, the opinion has been expressed that the visit in this case had really little to do with that and was more about helping the Court to understand better the complexity of the case and its geographical setting.99

In the instruments governing the procedure before the Court a clear distinction can be discerned between the documents that are furnished during the written stage of proceedings, as annexes to the pleadings, and the evidence, 97  Guyomar’s Commentaire, pp. 424–429; Brown, “A Common Law . . ., p. 112”. 98  For a narrative see Guyomar’s Commentaire, pp. 435–436. 99  UNITAR Colloquium II, p. 31; Higgins, “Judicial Determination . . .”, p. 1373; Mani’s Adjudication, pp. 213–215; J.-M. Thouvenin, “La descente de la Cour sur les lieux dans l’affaire relative au projet Gabcikovo-Nagymaros”, AFDI, vol. 43 (1997), pp. 333 ff; S. Rosenne, “Visit to the site by the International Court”, in Sh. Rosenne, Essays on International Law and Practice (2007), pp. 221–233. See further Ch. Walter, “Article 44”, in Oxford Commentary, MN 6–26, pp. 1174–1181.

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which is presented during the oral stage. In fact, the production of evidence is one of the most important components of the oral proceedings and most of the questions concerning evidence only flare up when the case reaches the oral stage of proceedings. In the words of Sir Cecil Hurst: [t]he intention of the authors of the Statute appeared to have been that written evidence should be annexed to the documents of the written proceedings, whereas during the oral debates it was only a question of “hearing evidence”, i.e. of oral evidence.100 It is true that in a general sense the annexes to the written pleadings constitute evidence of a documentary nature—and in many cases the main source of evidence, at that—but the technical term “evidence” (“moyen de prevue”) is generally reserved for the non-documentary material that is produced during the hearings. An affidavit, for instance, has a dual character: formally, it is a document submitted during the written stage, but its substance is that of evidence in the nature of the testimony of the person signing it.101 While an author has observed that affidavits may be “a superior form of documentary evidence or an inferior form of live evidence,” another has said that they constitute a “hybrid” form of evidence.102 Ex parte Action Article 57 of the Rules is clear as to the point in time at which the process of the production of party-generated evidence—other than the documentary evidence freely submitted during the written stage—begins: it is for each of the parties to the case to address a communication concerning evidentiary questions to the Registrar “in sufficient time before the opening of the oral proceedings.” It is a truism to say that the parties to the case are the only States concerned with the production of evidence. However, it cannot be ruled out that a third State may agree to get involved in the process for the gathering of evidence in an indirect manner, as an amici curiae of sorts. This happened squarely with Yugoslavia in the Corfu Channel case.103 100  PCIJ D 2, Add. 3, p. 201. To this, Anzilotti immediately countered that “visits to the spot or inspections were not, properly speaking, either oral evidence or written evidence.” (ibid.). 101  Mani’s Adjudication, pp. 225–226. 102  Highet, “Evidence, The Chamber . . .”, p. 64; Valencia-Ospina, “Evicence . . .”, p. 204. See also Aguilar Mawdsley, “Evidence . . .”, p. 541. 103  For narratives on this episode see Rosenne’s Law and Practice, vol. 3, pp. 1372–1374; M. Bartos, “L’Intervention yugoslave dans l’affaire du Détroit de Corfou”, in Il proceso

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By means of the communication referred to in Article 57 the parties inform the Registrar of any evidence that they intend to produce or intend to request the Court to obtain.104 In the same communication all the particulars of any witnesses and experts that a party intends to call should be included, as well as certain additional information pertaining to them.105 The aim of this provision is, of course, to prevent surprises and to afford the other party the opportunity to prepare itself to counter that evidence, if necessary by producing or moving the Court to obtain correlative evidence.106 Article 63, para. 1 of the Rules contains a residual rule that is applicable only to one form of evidence: testimony by a witness or an expert. This provision deals with the case of a witness or expert who, failing to appear in the list mentioned in Article 57, is nevertheless called by a party after the oral proceedings are in motion. In such a case, the witness or expert will be heard only if the other party does not object or if the Court “is satisfied that his evidence seems likely to prove relevant.” Interestingly, this language is not found in Article 57 and on this basis it may be thought that if a witness or expert is included in the list mentioned in Article 57 he or she must be called by the Court. However, practice indicates that the Court will reserve for itself the final word on the admissibility of this and all other evidence.107 To a certain extent, this resembles the procedure governing the production of late or new documents, under Article 56 of the Rules and Practice Direction IX, provisions that pursue essentially the same objective: to prevent one of the parties—and the Court itself— from being taken by surprise in the middle of the hearings. Another device that can be used in order to move the parties to provide evidence with regard to specific aspects of the case is that of the questions that may be put to them during the oral stage of proceedings. A judge availing himself or herself of the right to make questions contemplated in Article 61, para. 3

i­nternazionale, Studi in onore di Gaetano Morelli, Comunizazioni e Studi, vol. 14 (1975), p. 41; Riddell & Plant, “Evidence . . .”, pp. 18–19. 104  This last possibility was added in the 1936 revision of the Rules, Article 47 of the original Rules having been concerned only with “evidence which [each party] intends to produce.” For the discussion see PCIJ D 2, Add. 3, pp. 206–208. 105  On the basis of this information, the Court might decide against admitting certain piece of evidence. For an example see ICJ Yearbook (1948–1949), p. 78. 106  Rosenne’s Law and Practice, vol. 3, p. 1342; Evensen, “Evidence . . .”, pp. 56–57; Mani’s Adjudication, pp. 201–202. 107  See Box 8–10. See also Guyomar’s Commentaire, pp. 415–416.

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of the Rules is entitled to ask for the production of evidence connected to the reply to be given to those questions and the Court itself could do the same.108 Action by the Court Article 48 of the Statute grants to the Court wide powers to adopt all measures that may be necessary for the taking of evidence (“l’administration des preuves”). This provision is aimed at preserving the equality of the parties and as such it may be said to contain a guarantee for the orderly collection of evidence.109 Article 49, likewise, authorizes the Court to “call upon the agents to produce any document or to supply any explanations” and to do so even before the start of the oral stage of proceedings. This provision covers two distinct types of functions by the Court: the power to obtain documentary evidence and the power to request explanations. Strictly speaking, only the first refers directly to the collection of evidence, as the second may be used to gather further information on questions of law. In any case, if the “explanations” requested concern questions of fact this may very well result in the production of further evidence.110 Instances of resort to the powers under Article 49 for evidentiary purposes are not numerous.111 Interestingly, in at least two cases the Court used this power in order to deal with preliminary objections, thereby circumventing the special procedure provided for in Article 79 of the Rules (formerly Article 62).112

Box # 8-5 The Vienna Convention case and Paraguay’s request for an “order conclusively establishing facts” The Vienna Convention case, between Paraguay and the United States, provides an example of a State trying to move the Court to take action with regard to the establishment of facts. In its application Paraguay sough the remedy of

108  For a recent example see the question put to the parties by judge Koroma at the closing of the hearings in the Navigational Rights case (CR 2009/7, pp. 64–65, Sitting of 12 March 2009). 109  Torres Bernárdez, “Article 48”, in Oxford Commentary, MN 73, p. 1233. 110  Tams, “Article 49”, MN 1, p. 1278. 111  ICJ Pleadings, Ambatielos, p. 566; US Hostages, Provisional Measures, Order of 15 Dec. 1979, ICJ Rep. 1979, p. 10, para. 7. 112  ICJ Pleadings, US Citizens in Morocco, vol. 4, pp. 431–432; Monetary Gold, Order of 3 Nov. 1953, ICJ Rep. 1953, p. 44.

Evidence

r­ estitution and in particular asked the Court, through the mechanism of provisional measures, to order the US to halt the execution of a Paraguayan national who had been sentenced to the death penalty. The Court made an order indicating a provisional measure to that effect but the US authorities plainly ignored it and the person in question was executed as planned. Then, when the moment came for Paraguay to file its Memorial on the merits, it filed also a separate document, unprecedented in the practice of the Court, entitled “Conditional Request of Paraguay for an order Conclusively Establishing Facts.”113 The essence of the argument of Paraguay was that by ignoring the Court’s order on provisional measures the US had deprived Paraguay of “a principal source of evidence” in the case and that, therefore, Paraguay was suffering “evidentiary prejudice.” The “Conditional Request” intended to remedy that prejudice, by having the Court to declare that any disputed issues of fact that were material to Paraguay’s claims as to which its national’s testimony would have been relevant were “established in Paraguay’s favour.”114 According to Paraguay, the Court’s authority to grant such an order derived not only from express provisions in the Statute and the Rules but also from the fact that “[t[he Court, as a court of justice, would have authority to control the proceedings before it, including by determining proof of facts.”115 Eventually, Paraguay discontinued the proceedings and the Court had no occasion to act on this request. In any case, it is worth to reproduce some passages of that document, embodying an imaginative procedural action that could be tried again in the future: 6. [P]araguay will not have access to Mr. Breard’s testimony bacause the United States chose to disregard [the Court’s] Order. For purposes of these proceedings, as between Paraguay and the United States, it should be the United States that suffers any adverse consequence from Mr. Breard’s absence. Hence, however the Court may rule on Paraguay’s claim for reparation arising from the breach of the order, Paraguay is independently entitled to an order remedying any evidentiary prejudice it might suffer from the conduct that deprived it of Mr. Breard’s testimony. (. . .)

113  See the full text in ICJ Pleadings, Vienna Convention, pp. 85–88. 114  Ibid., p. 85, paras. 1 and 3. 115  Ibid., p. 87, para. 12.

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8. In the order [concerning provisional measures] the Court took note of the United States’ contentions concerning prejudice and determined that “the issue of whether any such remedy is dependent upon evidence of prejudice to the accused in his trial and sentence can . . . only be decided upon at the merits.” If the Court were to hold a showing of prejudice to be required, the injury to Paraguay’s ability to pursue its claims under the Vienna Convention would ripen. In that event, Paraguay would be entitled to an appropriate order protecting it from evidentiary prejudice. (. . .) 9. If this Court holds that Paraguay must make a factual showing of prejudice in order to prevail on its Vienna Convention claims, it should also hold that, for purposes of this proceeding, that fact should be deemed conclusively established. The Court would have the authority to so order as a sanction for the violation of the Order or of the general duty owed by State litigants not to interfere with the effective functioning of the judicial process. But it would also have authority to enter such an order pursuant to its authority, both express and inherent, to conduct the proceedings in a fair and effective manner. [Here reference is made to articles 48, 49 and 30 of the Statute and to Articles 54–72 of the Rules of Court] (. . .) 13. Hence, the Court has undoubted authority to determine the means by which it will determine disputed facts. This authority includes the authority to enter appropriate orders when a party deprives the Court of relevant evidence, either by refusing to provide it or, as here, preventing the adverse party from doing so. (. . .) Thus, when a party fails to produce evidence in its control or, as in this case, renders such evidence impossible to obtain, a tribunal may order that the adverse party be deemed conclusively to have established the disputed fact. 14. Whether as a sanction for violating the Order or the customary law duty of fidelity to a judicial body, or as a matters of the Court’s express and inherent authority to prevent prejudice to Paraguay resulting from the United States’ execution of an important witness, the Court should enter an order protecting Paraguay from any evidentiary prejudice caused by Mr. Breard’s execution. (ICJ Pleadings, Vienna Convention, pp. 86–88).

Developing Article 49 of the Statute, Articles 62 and 66 of the Rules consecrate extensive evidence-gathering powers for the Court and make it clear that on this matter it can always act proprio motu. All things considered, one ­cannot but agree with the contention that the combination of Articles 49 of

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the Statute and 62 of the Rules “equip the Court with powerful tools for collecting evidence.”116 The Court itself has admitted that the powers it enjoys in the obtainment of evidence are “considerable”117 and yet it has not often made use of them.

Box # 8-6 Powers of the Court with regard to the production of Evidence: Evolution of the Rules The main provision in the Rules dealing with the powers of the Court to take action concerning the production of evidence—as distinct from merely reacting to measures proposed or requested by the States parties—is Article 62. The text is as follows: Article 62 1.

2.

The Court may at any time call upon the parties to produce such evidence or to give such explanations as the Court may consider to be necessary for the elucidation of any aspect of the matters in issue, or may itself seek other information for this purpose. The Court may, if necessary, arrange for the attendance of a witness or expert to give evidence in the proceedings.

It is interesting to recall the evolution that this provision has undertaken through the successive reforms to the Rules. The original provision on the matter now covered by Article 62 was Article 48 of the 1922 Rules, which was unchanged in 1926 and 1931. It reads as follows: 1922/1926/1931 Rules of Court Article 48 The Court may, subject to the provisions of Article 44 of the Statute, invite the parties to call witnesses, or may call for the production of any other evidence on points of fact in regard to which the parties are not in agreement.

116  Teitelbaum, “Recent Developments . . .”, p. 122. 117  Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 437, para. 100.

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This provision became Article 54 of the 1936 Rules and its text was preserved without changes in 1946. In 1972 the numbering changed and it became Article 59 and its text was maintained, with only one change (in the opening sentence, the word “request” took the place of “invite”). The text of Article 59 of the 1972 Rules reads as follows: 1936/1946/1972 Rules of Court Article 54/59 The Court may request the parties to call witnesses or experts, or may call for the production of any other evidence on points of fact in regard to which the parties are not in agreement. If need be, the Court shall apply the provisions of Article 44 of the Statute. As can be observed, the main change introduced in 1936 was the addition of the word “experts,” as the previous version referred only to “witnesses.” Apart from that, the reference to the possible application of Article 44 of the Statute was preserved, but in a more attenuated form, for the previous version made the application of the article wholly dependent on that provision of the Statute, while the new version states that its application would take place only when necessary. Finally, the 1978 reform brought about a complete reformulation of this provision. The most prominent differences between Article 59 of the 1972 Rules and Article 62 of the current Rules are the following:

• The reference to Article 44 of the Statute was dropped altogether (only to resurface in Article 66, concerning the obtaining of evidence in situ). • The main subject of the article was substantially enlarged, for it now refers

to evidence, in general, specifying that this includes both “explanations” and “other information.” The former version referred primarily to the calling of witnesses and experts by the parties and only in a subsidiary form to the possibility of the Court making a call “for the production of any other evidence.” Additionally, a new paragraph was added concerning the calling of witnesses and experts by the Court itself. The material scope of the provision was also enlarged, because the former rule applied only to evidence concerning “points of fact in regard to which the parties are not in agreement.” The new rule refers more generally to materials (evidence or explanations) that “the Court may consider to be necessary for the elucidation of any aspect of the matters in issue.” Arguably, this

•

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may cover questions of fact that are undisputed between the parties, if the Court finds the need to make its own assessment on them.118 The extent of the powers that the Court possesses has also been expanded. While the former rule authorized it only to request (and previously to merely invite) the parties to call witnesses or experts or to call for the production of any other evidence, the last sentence of paragraph 1 now empowers the Court to “itself seek other information” for the purpose of elucidating “any aspect of the matters in issue.” Under paragraph 2 the Court is empowered to act proprio motu, for, when it finds it necessary, it may “arrange for the attendance of a witness or expert to give evidence in the proceedings.” This was completely absent from the previous rule, which was always interpreted in the sense that the Court lacked the power to summon witnesses.119

•

•

In particular, it is submitted that Article 62, para. 1 of the Rules constitutes a useful device for the gathering of evidentiary materials additional to those that the parties have considered it fit to provide to the Court.120 In what is believed to be one of the first instances of invocation and application of this rule at the present Court, in the Elettronica Sicula case the chamber dealing with the case readily granted a request by Italy to move the US to produce certain documents which in the long run proved to be very useful to the chamber.121 Commenting upon this episode some time later, a well-known practitioner who took part in this case highlighted the potential of this provision of the Rules: The procedure of obtaining indirect “discovery” by asking the Court (or chamber) to take action under Article 62 of its Rules was unprecedented. It provided an effective substitute for more forthright discovery powers. 118  See Foster, “Fact Finding . . .”, pp. 184–185; M. Lachs, “The Revised Procedure of the International Court of Justice”, in F. Kalshoven, et al. (Eds.), Essays on the Development of the International Legal Order in Memory of Haro F. van Panhuys (1980), p. 38. 119   Evensen, “Evidence . . .”, p. 55. For an assessment of the 1978 changes see Lachs, “Evidence . . .”, p. 268. 120  For examples see PCIJ E 8, p. 268; ICJ Yearbook (1968–1969), p. 112. It has been noted that on occasion it may prove difficult to maintain a distinction between a démarche made in application of Article 62, para. 1 and a question put to a party under Article 61, para. 2 (Guyomar’s Commentaire, p. 413). 121  ICJ Pleadings, Elettronica Sicula, vol. 3, pp. 131 and 432.

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There is no reason to believe that the Court, or a chamber, would deny a request for similar production as long as such a request was justified by the circumstances. (. . .) Parties would therefore do well to keep the provisions of article 62 in mind in the course of oral proceedings, as it can prove to be a useful tool. Naturally the powers herein expressed must be sought to be exercised through the Court. (. . .) An indirect substitute for more extensive production, it may well be more useful, and more used, in the future than can presently be predicted.122 However, there is a noticeable trend on the part of the Court no to honour requests from a party directed at the other party being called to produce a given document. In the Genocide Convention (Bosnia) case, for example, the applicant requested the Court to act upon Articles 49 of the Statute and 62, para. 1 of the Rules and to call the other party to produce certain documents. After Serbia communicated to the Court that the documents in question, or sections of them, were classified, the Court declined to grant the request but let it be known that it felt entitled to make such a request at a later stage in the proceedings: “[t]he Court reserved the right to exercise subsequently, if necessary, its powers under Article 49 of the Statute and Article 62, paragraph 1, of the Rules of Court, to request, proprio motu, the production by Serbia and Montenegro of the documents in question.”123 Eventually, the Court refrained from using this power, with the result that the documents in question were never produced. At the hearings, Bosnia argued that on account of the refusal of Serbia and Montenegro to produce these documents the burden of proof with regard to certain facts of the case should be reversed, pursuant to the rule contained in the closing sentence of Article 49 of the Statute. The Court avoided taking a stance on this matter and limited itself to state as follows in its final judgment: [t]he Applicant . . . contends that in certain respects the onus [of proof] should be reversed, especially in respect of the attributability of alleged acts of genocide to the Respondent, given the refusal of the Respondent to produce the full text of certain documents. 122  Highet, “Evidence, The Chamber . . .”, pp. 60 and 64. He made the crucial point that if the Court makes a request under Articles 61 or 62, para. 1, it would be inconceivable for one of the parties to decline to answer on grounds of sovereignty (ibid., pp. 62–63). In the last analysis, providing the Court with what it wants or needs should certainly work in the interests of the party involved. 123  Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 57, para. 44.

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The particular issue concerns the “redacted” sections of documents of the Supreme Defence Council of the Respondent, i.e. sections in which parts of the text had been blacked out so as to be illegible. The documents had been classified, according to the Co-Agent of the Respondent, by decision of the Council as a military secret, and by a confidential decision of the Council of Ministers of Serbia and Montenegro as a matter of national security interest. The Applicant contends that the Court should draw its own conclusions from the failure of the Respondent to produce complete copies of the documents. It refers to the power of the Court, which it had invoked earlier (paragraph 44 above), to call for documents under Article 49 of the Statute, which provides that “[f]ormal note shall be taken of any refusal”. (. . .) On this matter, the Court observes that the Applicant has extensive documentation and other evidence available to it, especially from the readily accessible ICTY records. It has made very ample use of it. (. . .) Although the Court has not agreed to either of the Applicant’s requests to be provided with unedited copies of the documents, it has not failed to note the Applicant’s suggestion that the Court may be free to draw its own conclusions. (Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, pp. 128–129, paras. 204–206)

This decision has been criticized on the ground that, under Article 49, the “formal note” of a refusal to produce a document can be taken only after a request for a document made by the Court has been denied by one of the parties. In the absence of discovery proceedings in the Court’s legal regime, the only tool available to Bosnia in order to obtain access to unexpurgated versions of the documents in question was to move the Court to make a request to that effect, under Articles 49 of the Statute and 62 of the Rules. After this request was denied, however, there was really nothing upon which the Court could draw any “conclusions” concerning the respondent’s attitude toward the documents in question and, as noted by some of the dissenting judges, that process really never took place.124

124  Dissenting Opinion of Vice-President Al-Khasawneh, ICJ Rep. 2007, pp. 254–255, para. 35; Dissenting Opinion of Judge ad hoc Mahiou, ibid., pp. 415–421, paras. 56–63. For good analysis see Teitelbaum, “Recent Developments . . .”, pp. 130–131; Gattini, “Evidentiary Issues . . .”, pp. 892–893.

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Similarly, in the Genocide Convention (Croatia) case, the judgment recalls Croatia’s request “that the Court call upon the Respondent, under Article 49 of its Statute and Article 62, paragraph 1, of the Rules of Court, to produce a certain number of documents.”125 After gathering further information relating to the said request from both parties, the Court rejected the request. The decision records that the Registrar “[i]ndicated to the Parties that the Court was not satisfied that the production of the requested documents was necessary for the purpose of ruling on preliminary objections. The Registrar also explained that the Court considered that Croatia had failed to provide sufficient reason to justify the great lateness of its request and that to accede to this request made at this very late juncture would, in addition, raise many practical problems.”126 This refers to the fact that Croatia’s request was made in April 2008, i.e., shortly before the opening of the oral stage of proceedings on the preliminary objections made by the respondent. The Court has also made use of its powers under Article 49 of the Statute in advisory proceedings. In the Judgment 2867 of ILOAT case it invoked this provision and called upon one of the organizations involved to produce certain documents.127 The only recent case in which the Court has acted upon Article 62 of the Rules (apparently of its own accord) is Diallo. On the last day of the hearings concerning preliminary objections, the Court addressed a letter to one of the parties asking it “to furnish [the Court] with certain additional documents.” In doing so, the Court expressly invoked Article 62, para. 1 of the Rules.128

Box # 8-7 Making better use of the Court’s powers with regard to the production of evidence Persuasive defences of the need for the Court to make better use of its powers with regard to the production of evidence have been made by dissenting judges in a number of cases. Judge Bustamante, for instance, stated the following in the Barcelona Traction case:

125  Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 416, para. 13. 126  Ibid., para.15. 127  Judgment 2867 of ILOAT, Advisory Opinion of 1 Feb. 2012, para. 15 128  Diallo, Preliminary Objections, Judgment of 24 May 2007, ICJ Rep. 2007, p. 587, para. 9.

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[I]t is reasonable to suppose that more definite representations on all these matters may have passed between the two Governments. Accordingly, it does not seem to me to be unlikely that if the Court, in the exercise of its powers, were proprio motu to ask the Parties to furnish it with any relevant document or piece of information—a suitable questionnaire would be drawn up for this purpose—it might be found possible to throw light on one or more of the questions raised above. I naturally accept that in each case the onus of proof is placed on one of the parties, but it is also true that the overriding interests of justice give the Court the faculty of taking such steps as are possible to induce the parties to clarify what is not sufficiently clear. (Barcelona Traction, Preliminary Objections, Separate Opinion of Judge Bustamante, ICJ Rep. 1964, p. 80)

Along the same lines, judge Owada expressed the following view in the Oil Platforms case: 46. [t]here is no denying the fact that there undoubtedly exists an asymmetry in the situation surrounding this case . . ., in terms of producing evidence for discharging the burden of proof, between the position of the Applicant in its claim against the Respondent and the position of the Respondent in its defence against the Applicant. I am prepared to accept that this asymmetry is inherent in the circumstances of the present case and that there is little the Court can do under the circumstances. It is primarily the task incumbent upon the party which claims certain facts as the basis of its contention to establish them by producing sufficient evidence in accordance with the principle actori incumbit onus probandi. 47. Accepting as given this inherent asymmetry that comes into the process of discharging the burden of proof, it nevertheless seems to me important that the Court, as a court of justice whose primary function is the proper administration of justice, should see to it that this problem relating to evidence be dealt with in such a way that utmost justice is brought to bear on the final finding of the Court and that the application of the rules of evidence should be administered in a fair and equitable manner to the parties, so that the Court may get at the whole truth as the basis for its final conclusion. It would seem to me that the only way to achieve this would have been for the Court to take a more proactive stance on the issue of evidence and that of fact-finding in the present case. (. . .)

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52. (. . .) [I] should have liked to see the Court engage in a much more in-depth examination of this difficult problem of ascertaining the facts of the case, if necessary proprio motu, through various powers and procedural means available to the Court under its Statute and the Rules of Court, including those relating to the questions of the burden of proof and the standard of proof, in the concrete context of the present case. (Oil Platforms, Merits, Separate Opinion by Judge Owada, ICJ Rep. 2003, pp. 321–323)

d)

Types of Evidence

As it was observed by judge Anzilotti during the discussions leading to the revision of the Rules in 1936, “[n]either the Rules nor the Statute gave any information as to the forms of evidence.”129 Practice indicates that the forms of evidence most often used in proceedings before the ICJ are the following: documentary evidence, expert evidence, testimonial evidence, third party evidence and circumstantial or indirect evidence.130 Formally, and as a direct consequence of the principle of freedom of evidence, these categories have the same relevance and none of them has priority or a higher probative value than the others, it being for the Court to rule in each case on the relevance and legal effects of each piece of evidence p ­ roduced.131 Nevertheless, litigation before the ICJ has always resembled the procedure employed in domestic private/civil law cases and therefore it should come as no surprise that the written evidence undoubtedly has a manifest preponderance. In fact, many are the cases that the Court has been able to decide entirely

129  He went on to say that in addition to witnesses there could be “evidence by experts, visits to the spot, inspections or perhaps interrogations.” (PCIJ D 2, Add. 3, p. 201). 130  Other forms of evidence (sometimes called “demonstrative or real evidence”) that occasionally have been used before the Court are small-scale models, bas reliefs, photographs and the like. See Hudson’s PCIJ, pp. 565–566; Evensen, “Evidence . . .”, pp. 53–54. There appear to be no clear rules as to the opportunity to introduce this type of evidence (Aguilar Mawdsley, “Evidence . . .”, p. 547). 131  R. Wolfrum, “International Courts and Tribunals-Evidence”, in R. Wolfrum (Ed.), Max Planck EPIL, MN 79.

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on the basis of the pleadings of the parties and the documentary evidence adduced in support of them.132 1) Documentary Evidence133 This is formed by all the documents that are incorporated into the case file, under any of the following procedures:134 a) As “documents in support” under Article 43, para. 1 of the Statute, i.e. annexes to one of the written pleadings; b) As “additional documents,” produced after the delivery of a pleading but prior to the closure of the written stage of proceedings;135 c) As “supplemental documents,” filed at any moment under authorization of the Court;136 and d) As “new documents,” produced after the closure of the written stage, under the special procedure governed by Article 56 of the Rules and Practice Direction IX.137 In general, the documents produced by a party under one of these procedures are offered in support of the statements of facts contained in the pleadings, i.e. the “statement of the relevant facts” that must be included in the Memorial, or the “admission or denial of the facts stated in the Memorial,” as well as “any additional facts” that may be included in the Counter-Memorial (Rules, Article 49, paras. 1 and 2). They are admitted as evidence with no incident, unless the other party objects to their authenticity. In most cases it is not the accuracy of the document as a record that is in doubt but rather its significance within the framework of the case at hand.

132  K. Highet, “Evidence and Proof of Facts”, en L.F. Damrosch (Ed.), The ICJ at A Crossroads (1987), p. 357. On the other hand, if an assertion included in a pleading is unsupported by any evidence at all it will have little chance to be accepted by the Court (Amersainghe, “Evidence . . .”, p. 44). 133  Benzing, “Evidentiary Issues”, MN 52–62, pp. 1250–1252; Riddel & Plant, “Evidence . . .”, pp. 231–305. See also, in general, Chapter 6. 134  Talmon, “Article 43”, in Oxford Commentary, MN 63–76, pp. 1115–1121. 135  For a discussion on the precise date of the closure of the written proceedings see Chapter 6, e). 136  For an example see Qatar v. Bahrain, Merits, Judgment of 16 March 2001, ICJ Rep. 2001, pp. 47–48, paras. 24–25. 137  See Chapter 6, f ). For documents produced or intended to be produced after the closure of the oral stage of proceedings see Chapter 7, d).

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Box # 8-8 Challenging the authenticity of documentary evidence before the Court In addition to cases in which the Court requests to see the original of a document of its own accord, there have been cases in which one of the parties disputed the material admissibility of a document. These cases have in common that in all of them the challenging party levelled against the other what amounts to be a serious charge of tampering with evidence and adulterating the text of a given document, a certified copy of which had been produced in the regular manner. In two known instances in which this happened, the party producing the document decided to abandon the relevant argument or simply withdrew the contested document. In a third case the party denied the accusation of altering the document and the chamber dealing with the case appears to have taken note of the irregularity without making any mention of it in the judgment.

i)

Arbitral Award (Honduras v. Nicaragua)

In this case Nicaragua submitted as an annex to one of its pleadings a copy of a diplomatic note, certified as true by the Agent. When the oral proceedings were in motion, Honduras presented to the Registry a photocopy of the note which in certain respects differed from the text offered by Nicaragua. After the Registry notified this fact to Nicaragua, the matter was discussed during the hearing. The arguments advanced by the challenging party with regard to the authenticity of the document make for very good reading. M. DE VISCHER [Honduras]: Monsieur le Président, Messieurs de la Cour, (. . .) il est de mon devoir d’attirer l’attention de la Cour sur le fait que la procédure que nous avons suivie pour signaler l’altération du document produit à la Cour a été, à notre sens, entièrement conforme, non seulement au Règlement de la Cour, mais également aux habitudes et aux pratiques de la Cour. Nous nous sommes adressés a M. le Greffier, nous lui avons remis le texte original dans l’intention précisément qu’il en avertisse la Partie adverse afin que celle-ci puisse en prendre connaissance. Je ne relèverai pas non plus la manière dont on a qualifié l’altération en parlant de « quelques différences matérielles ». Il ne s’agit pas, Messieurs, d’un simple oubli commis dans la reproduction d’un document. Il s’agit de la substitution de certains mots à d’autres mots. Enfin, Messieurs, à

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la demande de ma délégation, je me dois de relever l’erreur commise par l’honorable agent du Gouvernement du Nicaragua lorsque celui-ci a affirmé qu’il n’existait pas de copie du texte original dans les archives de son Département, parce que ces archives auraient été détruites par un tremblement de terre en 1931. J’oppose a cette déclaration le texte même de l’annexe 29, où je lis ce qui suit: « Alejandro Montiel Arguello, Ministre des Affaires étrangères de la République du Nicaragua, Certifie : Que dans les Archives du Ministère des Affaires Étrangères du Nicaragua, sous sa direction, dans la liasse respective, se trouve le document concernant les limites entre le Nicaragua et le Honduras dont la copie textuelle est celle-ci: » Monsieur le Président, messieurs, ceci étant dit, nous prenons acte de la déclaration loyale qui a été faite de l’autre côté de la barre. Nous prenons acte du fait que la Partie adverse reconnait l’altération commise dans le document et nous prenons acte surtout du fait que la Partie adverse veut bien renoncer au grief de nullité déduit des mots « Gouvernement d’Espagne ».138

ii) Elettronica Sicula In this litigation before a chamber of the Court there was a little noticed episode concerning the minutes of a meeting that had taken place some twenty years before the case came for adjudication. The United States—which was acting in exercise of diplomatic protection of a private company, a fact that may have had far-reaching consequences with regard to the presentation of evidence before the Chamber—139 was in possession of two typewritten versions of the minutes, one of which was appended to the Memorial on the merits. In its Counter-Memorial Italy registered a discrepancy between them and asserted that the document deposited as an annex had been altered. In correspondence with the Registrar, the US denied the accusation and stated that the minutes were “summarizations” of the notes taken by one of the participants in the meeting and that the omissions detected by the other party were ­simple

138  ICJ Pleadings, Arbitral Award (Honduras v. Nicaragua), vol. 2, pp. 164–165. 139  Highet, “Evidence, the Chamber . . .”, pp. 42–44.

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“typographical errors.” It also supplied “[f]or the Court’s reference” a copy of the original handwritten notes.140 Italy reverted to the question during the hearings, claiming that the typewritten minutes omitted crucial passages of the document in question, which had therefore been doctored and that the matter was so serious that the attempt to cover up that information should be taken “as a form of admission against interest.”141 The chamber made no mention to this in its judgment, but, noticeably, when it referred to the meeting in question it quoted from “the hand-written minutes” of the meeting record ( Judgment of 20 July 1989, ICJ Rep. 1989, p. 30, para. 26).

iii) Qatar v. Bahrain The third case in which a challenge to the authenticity of documents submitted by one party was successfully mounted by the other party was considerably more serious, as it involved nothing short of the alleged forgery of 82 documents that had been formally submitted as evidence before the Court. Upon receiving objections from the other party in the case, the Court requested the views of both parties on the authenticity of the documents—taking special care to avoid a disruption of the written stage of proceedings on this account—but before it made any decision on the matter Qatar, the challenged party, reacted to the allegation by withdrawing the documents in question (Order of 30 March 1998, ICJ Rep. 1998, p. 243; Order of 17 Feb. 1999, ICJ Rep. 1999, p. 3). The judgment recalls in a terse manner the sequence of events concerning this unpleasant incident, which the Court limited itself to place on record, clearly choosing not to address the matter of the disputed authenticity of the documents (Qatar v. Bahrain, Merits, Judgment of 16 March 2001, ICJ Rep. 2001, pp. 46–47, paras. 15–23). The judge ad hoc chosen by Bahrain, the challenging party, was dissatisfied with this approach and stated that in this case the Court “had a duty to do more than merely narrate the Parties’ respective exchange of letters following Bahrain’s challenge of the authenticity of 82 documents which loomed as central to Qatar’s case” and regretted that it elected not to do so (Qatar v. Bahrain, Merits, Separate Opinion of Judge Fortier, ICJ Rep. 2001, pp. 451–453).

140  ICJ Pleadings, Elettronica Sicula, vol. 3, pp. 405–406. 141  Ibid., p. 249. The episode and its effects are recalled in some detail in Highet, “Evidence, the Chamber . . .”, pp. 65–67.

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Commenting upon this incident, an author and practitioner has expressed the hope that in the future the Court will be inclined to change its stance with regard to the manner in which the parties handle the evidence material that is submitted to it and the degree of control that it is bound to exercise in that respect: At some point the Court may need to consider, in advance of another such case arising, what procedure it should adopt if it is alleged that documents put before it are forged or that witnesses are lying. It might also perhaps consider what sanctions are or should be available to it, if the accusation proves to be justified, especially if it appears or is established that the Government concerned has acted in bad faith or with gross negligence.142

Apart from the documents produced by the parties as evidence, the Court is entitled to take into account any other document that it “may consider to be necessary for the elucidation of any aspect of the matters in issue.” (Rules, Article 62, para. 1) The rationale for this is that, as judge Jessup remarked in the South West Africa cases, the Court “does not limit itself to considering documents actually presented to it by counsel, or [in the case of advisory proceedings] by the Representatives of the Governments.”143 Special Types of Documents I: Secret or Confidential Material144 As it was already mentioned, Article 49 of the Statute provides that the Court may, even before the hearing begins, “call upon the agents to produce any document or to supply any explanations” and adds that “formal note shall be taken of any refusal.” It might happen, for instance, that a State refuses to comply with a request made by the Court under this provision pleading that it refers to a document classified as secret or confidential under its own laws and regulations. The practice followed in this regard, notably in the Corfu Channel case, shows that in cases like these there is very little that the Court can do and 142  M. Mendelson, “The Curious Case of Qatar v. Bahrain in the International Court of Justice”, BYIL, vol. 72 (2001), p. 211. 143  South West Africa, Dissenting Opinion of Judge Jessup, ICJ Rep. 1966, p. 348. 144  For a good discussion of the import of security considerations with regard to the production of evidence see N.H. Alford, “Fact Finding by the World Court”, Villanova Law Review, vol. 4 (1958), pp. 86–90. See also Benzing, “Evidentiary Issues”, MN 27–28, pp. 1242–1243.

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even the taking of “formal note” of the refusal can be of little effect, at least for evidentiary purposes. In that case the Court formally invoked Article 49 of the Statute and Article 54 of the Rules—the direct predecessor of current Article 62—in order to have access to certain documents, with the special caveat that they were intended only “for the use of the Court.” The United Kingdom declined to oblige and the Court limited itself to register this, taking care also to point out that it could not “draw from this refusal to produce the orders any conclusions differing from those to which the actual events gave rise.”145 Of interest with regard to Article 49 is also the argument put forward by counsel for the UK (Sir Eric Beckett) on the scope and import of that provision: The Court is fully aware of the purpose and scope of this Article. The purpose of it was, in fact, to recognize and respect the right of States, in legitimate cases, to withhold records or documents, and it was—we may think wisely—appreciated that any other rule would make it very difficult for States to submit to the jurisdiction of an international tribunal.146 It is also proper to recall that if the Court were to request from a State the production of certain documents and they are protected by secrecy, the latter could always request that under Article 46 of the Statute the Court declares the proceedings closed to the public.147 Special Types of Documents II: Maps148 Maps or cartographic material belong to a special category, because while formally they are no doubt evidence of a documentary nature, the Court has on

145  Corfu Channel, Merits, Judgment of 9 April 1949, ICJ Rep. 1949, pp. 31–32. For comments see Fitzmaurice’s Law and Procedure, vol. 1, p. 129; A. Carty, “The Corfu Channel Case and the Missing Admiralty Orders”, LPICT, vol. 3 (2004), pp. 1–36. 146  ICJ Pleadings, Corfu Channel, vol. 4, pp. 563–564. 147  A proposal directed at providing expressly for this in the Rules was discussed by the PCIJ in 1929, but it was not adopted (PCIJ D 2, Add., pp. 124–132, 251). See further Foster, “Fact Finding . . .”, pp. 162–163; S. von Schorlemer, “Article 46”, in Oxford Commentary, MN 14–17, pp. 1201–1202. See also the treatment of the question of the secrecy of certain documents in the Genocide Convention (Bosnia), as discussed above (text to note 123). 148  See a discussion on the evidentiary value of cartographic material in UNITAR Colloquium II, pp. 26–27. See also Mani’s Adjudication, pp. 223–225; C.C. Hyde, “Maps as Evidence in International Disputes”, AJIL, vol. 27 (1933), pp. 311–316; G. Weissberg, “Maps as Evidence in International Boundary Disputes: A Reappraisal”, Indian JIL, vol. 4 (1964), p. 367;

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occasion been willing to treat them as “extrinsic evidence” or “evidence of a circumstantial kind.” Maps, charts and sketch-maps are usually included as annexes to the written pleadings. During the oral stage of proceedings enlargements are frequently shown in the form of transparencies or projections and copies of them are placed in the judges’ folders.149 The Court has always shown a high degree of caution with regard to the probative value of maps and charts in cases concerning territorial questions. In an often cited dictum in the Burkina Faso/Mali case, a chamber of the Court stated as follows in this regard: Whether in frontier delimitations or in international territorial conflicts, maps merely constitute information which varies in accuracy from case to case; of themselves, and by virtue solely of their existence, they cannot constitute a territorial title, that is, a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights. Of course, in some cases maps may acquire such legal force, but where this is so the legal force does not arise solely from their intrinsic merits; it is because such maps fall into the category of physical expressions of the will of the State or States concerned. This is the case, for example, when maps are annexed to an official text of which they form an integral part. Except in this clearly defined case, maps are only extrinsic evidence of varying reliability or unreliability which may be used, along with other evidence of a circumstantial kind, to establish or reconstitute the real facts. (Burkina Faso/Mali, Judgment of 22 Dec. 1986, ICJ Rep. 1986, p. 582, para. 54)

In another passage of the same decision, the chamber clarified that maps have probative value only as an auxiliary element, i.e. as material used in order to corroborate or confirm a fact which has been proven by other means, not constituting in themselves a legal title: Since relatively distant times, judicial decisions have treated maps with a considerable degree of caution (. . .) maps can (. . .) have no greater legal value than that of corroborative evidence endorsing a conclusion at which a court has arrived by other means unconnected with the maps.

M. Kamto, “Le matériau cartographic dans les contentieux frontaliers at territoriaux internationaux”, in Liber Amicorum Judge Mohammed Bedjaoui (1999), pp. 371–398. 149  On this device see Box # 7–4.

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In consequence, except when the maps are in the category of a physical expression of the will of the State, they cannot in themselves alone be treated as evidence of a frontier, since in that event they would form an irrebuttable presumption, tantamount in fact to legal title. The only value they possess is as evidence of an auxiliary or confirmatory kind, and this also means that they cannot be given the character of a rebuttable or juris tantum, presumption such as to effect a reversal of the onus of proof. (ICJ Rep. 1986, p. 583, para. 56)

These findings have been confirmed by the Court in virtually every occasion on which it has had to deal with the question. Of note in this regard are the Botswana/Namibia and the Nicaragua v. Honduras cases.150 The value of maps as evidence in litigation before the ICJ is, therefore, marginal at best. Special Types of Documents III: Films The practice of the Court with regard to films and video materials to be shown during the oral proceedings has been sparse and has developed through a small number of cases. At an early stage, when a party requested leave of the Court to show a film for the latter’s benefit, this took place during a private sitting or “in camera,” as the Court itself put it.151 In the Tunisia/Libya case, the judgment recalls that a party desired to project a film and that the agent of the other party “had previously been afforded the opportunity of studying the film, and had indicated that he did not find it necessary to object to the showing of the film.”152 In the Gulf of Maine case Canada announced that it intended to show a film during the hearings and the United States strongly objected. After a summary exchange of correspondence, the Registrar informed the parties of the views of the chamber in the following terms: The Chamber is of the opinion that, without prejudice to any question of admissibility of the film, it is not for the Chamber to interfere in the preparation by the Parties of the presentation of their case. Accordingly, 150  Botswana/Namibia, Judgment of 13 Dec. 1999, ICJ Rep. 1999, p. 1100, para. 87; Nicaragua v. Honduras, Judgment of 8 Oct. 2007, ICJ Rep. 2007, pp. 722–724, paras. 213–214, 217–218. See also Indonesia/Malaysia, Merits, Judgment of 17 Dec. 2002, ICJ Rep. 2002, p. 667, para. 88. 151  Tunisia/Libya Continental Shelf, Merits, Judgment of 24 Feb. 1982, ICJ Rep. 1982, p. 25, para. 12; see also Temple of Preah Vihear, Merits, Judgment of 15 June 1962, ICJ Rep. 1962, p. 9. 152  Tunisia/Libya Continental Shelf, Judgment of 24 Feb. 1982, ICJ Rep. 1982, p. 25, para. 12.

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it would be premature for the Chamber to make any ruling at this stage; it is when or if the question actually arises, in the course of the oral proceedings, of the propriety or admissibility of a film as part of a Party’s case, that it will be for the Chamber to rule on the matter. The Chamber has requested me to draw the Parties’ attention to this, and in addition, for their guidance, to draw attention to the texts and precedents which may be relevant. In the few cases in the past in which films have been presented before the Court (. . .) such films have had the character of a form of evidence, comparable to a document produced before the Court. In the one case, no objection was taken by the other Party to the pres­ entation of the film, which had not been prepared for the purposes of the case but taken from the Party’s archives. In the other case, objection was at first made by the other Party, but after a copy of the film had been made available to it by the Party seeking to present the film, that objection was withdrawn, and the film then shown to the Court. In the light particularly of this latter case, the Parties should as soon as possible agree on the United States viewing the film in question and thereafter explore whether they can reach agreement on its utilization. In the absence of agreement between the Parties, it will ultimately be for the Chamber to decide on the admissibility of the film in question as a document, giving such weight as it thinks appropriate to the views expressed by the Parties. It will be recalled that where new documents are concerned, under Article 56, paragraph 2, of the Rules, in the absence of agreement between the Parties, the Court will only authorize their production if it considers it necessary.153 On the basis of this communication, three basic criteria can be identified with regard to the presentation of films as evidence, namely: i)

ii)

For all practical purposes, films are considered as “a form of evidence comparable to a document produced before the Court.” This means that there are no obstacles for a party including a film as an annex to any of its pleadings, in which case it will be considered as a “document in support,” as provided for in Article 43, para. 2 of the Statute. By the same token, if the film is not produced during the written stage of proceedings, it would in principle be admissible only as a new document,

153  ICJ Pleadings, Gulf of Maine, vol. 7, pp. 334–335. Eventually, Canada abandoned this idea and decided not to show any film (ICJ Yearbook (1983–1984), p. 143).

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under the conditions laid down in Article 56 of the Rules and Practice Directions IX and IXbis, which involve, first and foremost, the consent of the Court to its production. However, the Court has traditionally taken a more liberal approach towards evidence in the form of video material and has often allowed its production after the closure of the written pleadings stage;154 iii) A State party wishing to show a film or some video material at the hearing should notify its intention in advance to the Registry and to the other party. If the latter does not object to the utilization of the film during the hearings, the projection will in all probability be authorized by the Court; if there are objections, it will be for the Court or chamber dealing with the case to formally decide on its admissibility “as a document,” in which case the requirements in Article 56 of the Rules should apply strictly.155

Box # 8-9 Audiovisual material: Practice Direction IXquater In April 2013 the Court decided to codify its practice concerning the presentation of what it called “audio-visual or photographic material” at the hearings and adopted to that end Practice Direction IXquarter. The text is as follows.156 Practice Direction IXquater 1.

Having regard to Article 56 of the Rules of Court, any party wishing to present audio-visual or photographic material at the hearings which was not previously included in the case file of the written proceedings shall submit a request to that effect sufficiently in advance

154  D.W. Prager, “Procedural Developments at the International Court of Justice”, LPICT, vol. 1 (2002), p. 408. 155  Following these procedures, films or videos were shown in the following cases: GabcíkovoNagymaros (ICJ Rep. 1997, p. 13, para. 8); Qatar v. Bahrain (ICJ Yearbook (1999–2000), p. 273); Botswana/Namibia (ICJ Rep. 1997, p. 1052, para. 8); Cameroon v. Nigeria (CR 2002/11, Sitting of 5 Mar. 2002, pp. 62–63); Indonesia/Malaysia (CR 2002/30, Sitting of 6 June 2002, pp. 19–21); Genocide Convention (Bosnia), Judgment of 26 Feb. 2007, ICJ Rep. 2007, pp. 57–58, para. 45). In the Nicaragua v. Honduras case, the decision on the merits records that the Court decided not to accede to a request by one of the parties to show “a short video” during the oral proceedings (Judgment of 8 Oct. 2007, ICJ Rep. 2007, pp. 665–666, para. 13). 156  I.C.J. Press Release No. 2013/6, 11 April 2013.

Evidence

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4.

5.

437 of the date on which that party wishes to present that material to permit the Court to take its decision after having obtained the views of the other party. The party in question shall explain in its request why it wishes to present the audio-visual or photographic material at the hearings. A party’s request to present audio-visual or photographic material must be accompanied by information as to the source of the material, the circumstances and date of its making and the extent to which it is available to the public. The party in question must also specify, wherever relevant, the geographic co-ordinates at which that material was taken. The audio-visual or photographic material which the party in question is seeking to present shall be filed in the Registry in five copies. The Registrar shall communicate a copy to the other party and inform the Court accordingly. It shall be for the Court to decide on the request, after considering any views expressed by the other party and taking account of any question relating to the sound administration of justice which might be raised by that request.

The only comment to this is that, although this Practice Direction contains a renvoi to Article 56 of the Rules, it would appear that the exception concerning materials that are “readily available”, as provided for in paragraph 4 of the said provision and further elaborated in Practice Direction IXbis, is not applicable to audio-visual or photographic materials. The reason is that in paragraph 3 of this Direction it is stated that when a party makes a request to present this type of materials at the hearings it must provide inter alia, information as to “the extent to which it is available to the public.” Therefore, even if these materials can be considered as readily available, the Court would still be entitled to reject permission for their pres­ entation. With regard to the “readily available” exception, therefore, Practice Direction IXquarter is to be considered as lex specialis with regard to audiovisual or photographic materials.

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2) Testimonial Evidence157 In general, testimony can be said to consist of evidence to be obtained from a person who is called to establish facts within his or her personal knowledge which might help the Court to settle the dispute brought before it.158 Testimony can be included either during the written stage of proceedings, in the form of a sworn affidavit included as an annex to the pleadings or submitted as a new document, or during the oral stage, in the form of an oral statement given by a live witness before the Court. The fact that while in the first case the witness swears an oath before a local authority (most often a notary) and in the second he or she makes a solemn declaration before the Court appears to be of no consequence with regard to the probative value of the testimony concerned. The criteria developed by the Court in this regard (which are discussed below) are equally applicable to both types of evidentiary materials. It is also open to the parties to use both procedures, i.e. including an affidavit as an annex to one of its pleadings and later calling the same person to provide testimony as a witness, by including his or her name in the list to be provided to the Registrar under Article 57 of the Rules. If the testimony is to be provided orally, the person in question will be subject to cross-examination by the other party and may also be subject to questioning by the judges. It may also happen that one party wishes to call for cross-examination a witness not appearing in the list provided for the other party but whose testimony was included as an annex to the written pleadings. If this is the case, this party could invoke the part of Article 57 of the Rules that directs it to communicate to the Registrar information regarding any evidence “which it intends. . . to request the Court to obtain” and request then and there that the Court calls that witness or directs the other party to produce him or her at the hearings. There are indications that the Court will honour these requests, for, otherwise, that evidence would remain untested. What the Court has refused to endorse is the curtailing of the right of a party to call witnesses under the pretext that the same evidence could be provided in the form of sworn affidavits. Faced with a request to take such action, the Court emphasized that “[t]he Statute and Rules contemplated a right in the party in contentious proceedings to produce all evidence before the Court by the calling of witnesses and experts, and a party must be left to

157  Benzing, “Evidentiary Issues”, MN 63–86, pp. 1252–1259; Riddell & Plant, “Evidence . . .”, pp. 307–327. 158  Mutual Assistance, Judgment of 4 June 2008, ICJ Rep. 2008, pp. 182–183, para. 12.

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exercise that right as it thought fit, subject, of course, to the provisions of the Court’s Statute and Rules”.159 Party-Appointed Witnesses and Experts Witnesses and experts are mentioned twice in the Statute: in Article 43, para. 5, in which it is stated that a component of the oral stage of proceedings will be “the hearing by the Court of witnesses, experts, agents, counsel, and advocates;” and in Article 51, providing that the Rules will establish the conditions under which questions are to be put to “the witnesses and experts” during the hearing. The relevant provisions in the Statute and Rules are consistent in maintaining a distinction between witnesses, on one hand, and experts, on the other, and, for instance, the formula for the solemn declaration to be made by each of them is different (Rules, Article 64). The Court, moreover, has added the category of “witness-experts,” i.e., persons who can both testify as to knowledge of facts and give an opinion on a matter upon which they have expertise.160 As for the Rules, the key provision is article 57, already mentioned, under which it is for each party to communicate to the Registrar, in sufficient time before the opening of the oral proceedings, information regarding proposed evidence, in general, and in particular “a list of the surnames, first names, nationalities, descriptions and places of residence of the witnesses and experts whom the party intends to call, with indications in general terms of the point or points to which their evidence will be directed.” The language used in this provision (“the witnesses and experts whom the party intends to call”) indicates clearly that the parties’ right under this provision is limited to request from the Court leave to call to the stand certain individuals as witnesses and/ or experts and that it is for the Court to ultimately decide whether or not to accede to this request. Additionally, Articles 64 and 65 lay down ground rules for the examination of witnesses and experts. A ­ s mentioned, the first of these two provisions contains the conventional formula for the solemn declaration that each witness or expert must make “upon [his or her] honour and conscience,” unless the Court decides on a different form of words “on account of special circumstances.”161 When the PCIJ adopted this formula, it was contemplated for a while that the Court could be authorized to administer an oath, but this was rejected after

159  ICJ Pleadings, South West Africa, vol. 8, p. 42. 160  For comments see Guyomar’s Commentaire, p. 418; Higgins, “Judicial Determination”, p. 1372; Riddell & Plant, “Evidence . . .”, pp. 321–324. 161  Guyomar’s Commentaire, p. 418.

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a short debate.162 On the other hand, since the time of the PCIJ it has been accepted that when making a solemn declaration a witness is not thereby obliged to violate professional secrecy.163 The reiteration by an expert of the formula used by the witness, concerning the duty to speak “the truth, the whole truth and nothing but the truth,” was introduced in the Rules in 1978, because in several cases States had presented one and the same person in a dual capacity of witness and expert and, under the previous Rules, they were forced to make two different declarations. Apart from that change, the current rule is identical of that contained in Article 53 of the 1946 Rules (Article 58 of the 1972 Rules) and therefore the interpretation of it that the Court made in the Corfu Channel case may be still considered as valid. According to it, the declaration referred to in that provision concerned experts designated by the parties and not “experts appointed by the Court,” i.e. members of a committee charged with giving an expert opinion under Article 50 of the Statute. Accordingly, the Court drafted a special declaration to be made by those experts.164 This practice was codified in 1978 and a provision to that effect can be found now in the last sentence of Article 67, para. 1 of the Rules.165 Witnesses and experts are examined by the agents, counsel and advocates of the parties, but always “under the control of the President,” who may—as well as any of the judges—put questions to them (Rules, Art. 65). It is worth recalling that this power is not subject to the limitation applicable to the questions put to the parties themselves, according to which each judge must inform the President in advance of its intention to pose a question (Rules, Article 61, para. 3). Also, in exercise of this power the President may call the attention of a witness to certain questions to which he or she should not make reference. In the German Interests in Upper Silesia case, for instance, the President stated that witnesses called by the parties “must confine themselves to matters of fact relating to the . . . cases in question, without entering upon considerations of law.”166 As a general rule, before testifying the witnesses must remain out of courtroom, but in practice when the same person has also the condition of an expert he or she remains in the hall throughout the entire hearing.

162  PCIJ D 2 (1922), pp. 82–83. 163  PCIJ E 3, p. 212. 164  ICJ Yearbook (1962–1963), p. 129. 165  Rosenne’s Procedure, p. 140; Guyomar’s Commentaire, p. 430. 166  PCIJ C 11-I, p. 30.

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The governing instruments of the Court are silent on the conditions applicable to the examination of experts and witnesses but the Court has developed in its practice a “basic framework” which is essentially pragmatic. In the first case that came before it, the Court’s President (Guerrero) remarked that this procedure was “very liberal” and could be summarily described as follows: There is no limit to the number of questions which may be put. The Court has one wish, and that is that as much light as possible should be cast upon the matters discussed by the Court, and secondly the Court wishes to give the parties every opportunity to defend their point of view, so after the examination and after the cross-examination have taken place, the Agent presenting the witness originally will have the right to put new questions to him and also to add technical explanations directly; or technical explanations may be provided by the experts accompanying the declarations.167 The method for examining experts and witnesses follows the Anglo-Saxon model and contemplates four sequential actions, namely: (i) Examination in chief (done by the party calling the witness or expert); (ii) Cross-examination (done by the other party); (iii) Re-examination or re-direct (done again by the party calling the witness or expert); (iv) Questions (put either by the President on behalf of the Court or by individual judges).168 Experts or witnesses called on the motion of one of the parties must be compensated by that party. This is not explicit in the Rules, but it can be inferred from the provisions of Article 68, laying down that, “where appropriate,” experts or witnesses called at the Court’s instance will be paid out of the funds of the Court. 167  ICJ Pleadings, Corfu Channel, vol. 3, pp. 428–429. See also the remarks made by the President (Higgins) at the opening of the hearings in the merits phase of the Genocide Convention (Bosnia) case (CR 2006/22, Sitting of 17 March 2006, pp. 10–11). 168  ICJ Yearbook (1962–1963), p. 128. For details on the methodology used see Mani’s Adjudication, pp. 231–232; Lachs, “Evidence . . .”, pp. 272–273; Guyomar’s Commentaire, pp. 421–424; Rosenne’s Law and Practice, vol. 3, pp. 1346–1360; Tams, “Article 51”, in Oxford Commentary, MN 12–17, pp. 1306–1309.

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Box # 8-10 Live testimony by witnesses and experts: Practice Before the present Court, individuals have been called to give evidence in relatively few cases. The following are of note: As witnesses only:

· Nicaragua (Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 18, para. 13) · El Salvador/Honduras (Merits, Judgment of 11 Sept. 1992, ICJ Rep. 1992, p. 361, para. 20)

As experts only:

· Tunisia/Libya Continental Shelf (Merits, Judgment of 24 Feb. 1982, ICJ Rep. 1982, p. 25, para. 11) · Gulf of Maine ( Judgment of 12 Oct. 1984, ICJ Rep. 1984, p. 256, para. 9) · Malta/Libya Continental Shelf (Merits, Judgment of 3 June 1985, ICJ Rep. 1985, pp. 17–18, para. 9) · Whaling in the Antarctic (CR 2013/7, Sitting of 26 June 2013, pp. 17–18). As witnesses and experts or witnesses-experts:

· Corfu Channel (Merits, Judgment of 9 April 1949, ICJ Rep. 1949, pp. 7–8)169 · Temple of Preah Vihear (Merits, Judgment of 15 June 1962, ICJ Rep. 1962, pp. 8–9) · South West Africa (Second Phase, Judgment of 19 July 1966, ICJ Rep. 1966, pp. 9–10) · Elettronica Sicula ( Judgment of 2 July 1989, ICJ Rep. 1989, p. 19, para. 8)170 · Genocide Convention (Bosnia) (Merits, Judgment of 26 Feb. 2007, p. 11, paras. 39–42; p. 12, para. 43; p. 13, paras. 48–49; p. 14, para. 53; p. 15, paras. 55–5; p. 16, para. 59)

169  In this case the Court decided against hearing a certain witness, “since it was clear from the statement filed in accordance with [Article 49, corresponding to Article 57 of the 1946 Rules] that the witness in question had no personal knowledge of the facts to which he was supposed to testify” (ICJ Yearbook (1948–1949), p. 78). 170  In this case, given the particular conditions of one of the members of the United States delegation, Italy requested and obtained from the chamber that he be treated pro tanto a witness ( Judgment of 20 July 1989, ICJ Rep. 1989, p. 19, para. 8). For a comment see Highet, “Evidence, the Chamber . . .”, p. 51.

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Also of interest are a number of cases in which the Court denied a request by a party to be authorized to call a witness or expert witness. They are:

· Arbitral Award (Guinea-Bissau v. Senegal) Guinea-Bissau requested, during the hearings, authorization to call “as a witness or expert witness” a person who was included as an adviser in the list of the delegation representing that State. The judgment records that “[t]he Agent of Senegal, on the basis, inter alia, of Article 57 of the Rules of Court, objected to this being done. After consideration, the Court decided that it would not be appropriate to accede to the request of Guinea-Bissau.” ( Judgment of 12 Nov. 1991, ICJ Rep. 1991, p. 56, para. 9).

· Armed Activities (DRC v. Uganda) On 17 October 2003, some weeks before the date scheduled for the opening of the hearings in this case—which were subsequently postponed—the Agent of Uganda informed the Court that his Government wished to call two witnesses in accordance with Article 57 of the Rules of Court. The applicant having objected, the Court decided that “it would not be appropriate, in the circumstances, to authorize the calling of those two witnesses by Uganda.” ( Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 178, para. 15).

· Mutual Assistance Some weeks before the commencement of the hearings and invoking Article 57 of the Rules, France informed the Court that it wished to call a certain person as a witness during the hearings. Djibouti objected and the Court settled the question in favor of the latter. The decision records that “the Court had deemed that the evidence to be obtained from Mrs. Borrel did not appear to be that of a witness called to establish facts within her personal knowledge which might help the Court to settle the dispute brought before it, and that consequently the Court had decided not to accede to France’s request.” (Mutual Assistance, Judgment of 4 June 2008, ICJ Rep. 2008, pp. 182–183, para. 12).

A special case is that of an expert who is called to address the Court as a member of a party’s delegation, a practice which has been so widely used in recent cases that it has been asserted that “[e]xpert evidence seems now largely to

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be assimilated within the submissions of a legal team.”171 In these cases, the statement by this “expert-advocate” or “expert-counsel”172 is considered as an argument of a technical nature presented on behalf of that State, rather than as evidence proper.173 It has been noted that this might present problems, if, for instance, it is apparent that the real intention of the party resorting to this device is to avoid cross-examination by the other party.174 In 1984 the Court found convenient to include the following observation in this regard in its Yearbook: Experts appearing before the Court or a chamber pursuant to Articles [51] of the Statute and [Article 57, 58, 63 and 65] Rules are to be distinguished from the technical experts whom the Court is entitled to appoint . . ., and from experts who are members of the delegations representing the parties.175 Two years later, the same publication registered the case of a person listed as an expert in the delegation of a party who made a number of statements before a chamber of the Court without having made the solemn declaration under Article 64 of the Rules. It goes on to state that “the President of the Chamber observed that in these circumstances the person in question would be considered by the Chamber as speaking on behalf of the Party he represented, and not as making a personal statement as expert.”176 In the Pulp Mills case, the Court expressed dissatisfaction with this practice and let it be known that, as a form of evidence, these statements have very limited value:

171   Higgins, “Judicial Determination . . .”, p. 1371. See also Watts, “Burden of proof . . .”, pp. 299–300. 172  Tams, “Article 49”, p. 1105, note 34. See also D. Bethlehem, “Submissions on Points of Fact and Law: Written and Oral Pleadings before the International Court of Justice”, in F. Weiss, (Ed.), Improving WTO Dispute Settlement Procedures: Issues and Lessons From the Practice of Other International Courts and Tribunals (2000), p. 86. 173  ICJ Yearbook (1988–1989), p. 162. 174  Tams, “Article 51”, MN 5, pp. 1121–1122. See also Sir A. Watts, “Enhancing the Effectiveness of Procedures of International Dispute Settlement”, Max Planck Yearbook of United Nations Law, vol. 5 (2001), pp. 29–30. 175  ICJ Yearbook (1983–1984), p. 143. 176  ICJ Yearbook (1988–1989), p. 162.

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The Court has given most careful attention to the material submitted to it by the Parties (. . .). Regarding those experts who appeared before it as counsel at the hearings, the Court would have found it more useful had they been presented by the Parties as expert witnesses under Articles 57 and 64 of the Rules of Court, instead of being included as counsel in their respective delegations. The Court indeed considers that those persons who provide evidence before the Court based on their scientific or technical knowledge and on their personal experience should testify before the Court as experts, witnesses or in some cases in both capacities, rather than counsel, so that they may be submitted to questioning by the other party as well as by the Court. (Pulp Mills, Judgment of 20 April 2010, ICJ Rep. 2010, p. 72, para. 167)177

In the event that from the statement made by that person during the hearing it is clear that what is being submitted to the Court is actually not legal argument but evidence in the form of expert advice, it would be for the other party to bring this to the attention of the Court and to request from the latter that some action should be taken in order to assure that the rules concerning the taking of evidence of this type are observed.

Box # 8-11 Maintaining the distinction between experts, witnesses and counsel In the Pulp Mills case judge Greenwood stressed the importance of maintaining the distinction between experts giving evidence and counsel delivering arguments on behalf of a party: 27. (. . .) I wish to record my strong agreement with the Court’s remarks, at paragraph 167 of the Judgment, regarding the practice of having persons who provide evidence before the Court (based, in this case, upon their research, observations and scientific expertise) address the

177  See also the comments of President Owada in a speech before the General Assembly with regard to the use of experts in cases in which the Court has to consider complex scientific evidence, like environmental disputes (Statement of 28 October 2010, at http://www .icj-cij.org).

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Court as counsel. The distinction between the evidence of a witness or expert and the advocacy of counsel is fundamental to the proper conduct of litigation before the Court (as it is before other courts and tribunals). A witness or expert owes a duty to the Court which is reflected in the declaration required by Article 64 of the Rules of Court. The duties of someone appearing as counsel are quite different. Moreover, a person who testifies, whether as an expert, a witness or in both capacities, can be questioned by the other party and by the Court. For a person who is going to speak of facts within his own knowledge or to offer his expert opinion on scientific data to address the Court as counsel is to circumvent these provisions of the Rules and, in the words of the late Sir Arthur Watts, unacceptably to blur the distinction between evidence and advocacy (Arthur Watts, “Enhancing the Effectiveness of Procedures of International Dispute Settlement” in: J.A. Frowein and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Vol. 5, 2001, pp. 29–30). The problem is particularly acute where, as in the present case, some of those who addressed the Court as counsel had been actively and closely involved in the preparation of scientific reports which were part of the evidence before the Court. For those persons to address the Court as counsel, rather than giving evidence as witnesses or experts, was both unhelpful to the Court and unfair to the other Party. 28. In the present case, any unfairness was mitigated by the fact that both Parties engaged in the same practice. The issue of principle, however, remains and I am pleased that the Court has unequivocally indicated that such a practice should not be repeated in future cases. (Pulp Mills, Merits, Separate Opinion of Judge Greenwood ICJ Rep. 2010, p. 231)

Court-Appointed Witnesses and Experts According to Article 62, para. 2 of the Rules, the Court is empowered, when it considers it necessary, to “arrange for the attendance of a witness or expert to give evidence in the proceedings.” Article 70, para. 2 of the Rules, concerning language interpretation, provides further that “[i]n the case of witnesses or experts who appear at the instance of the Court, arrangements for interpretation shall be made by the Registry.” In a case like this, Article 44, para. 1 of the Statute, concerning service of notices upon persons through the agency of the State where the notice has to be served, would in principle be applicable, even if it is not mentioned

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explicitly in the said paragraph.178 Interestingly, Article 44 has always been ­interpreted as having the effect of precluding the Court from summoning witnesses and experts directly.179 Notwithstanding the fact that the term “experts” is used in both cases, the witnesses and experts who appear at the instance of the Court under Article 62, para. 2 are to be distinguished from the persons that the Court appoints to carry out an enquiry or to give an expert opinion under Articles 50 of the Statute and 67 of the Rules.180 Although Article 62, para. 2 of the Rules has not been resorted to thus far, a former President of the Court has stated publicly that “it is a possibility that is constantly in [the Court’s] view.”181 The closest to this in the Court’s practice happened in the German Interests in Upper Silesia case, in which the PCIJ made an order inviting the parties to furnish “at a public hearing, by whatever means they may think fit, further information” concerning certain aspects of the case.182 Both parties replied to this invitation by calling expert witnesses, who were cross-examined at a hearing specially convened for that purpose.183 Probative Value of Testimony184 As for the probative value of statements by witnesses, in the Nicaragua case the Court had occasion to mention certain criteria of general applicability. In the first place, the part of the statement constituting the personal views of the witness is to be discarded: The Court has not treated as evidence any part of the testimony given which was not a statement of fact, but a mere expression of opinion as to the probability or otherwise of the existence of such facts, not directly known to the witness. Testimony of this kind which may be highly

178  The predecessors of Article 62, para. 1, which were Article 59 of the 1972 Rules and Article 54 of the 1936/1946 Rules, stated that Article 44 would be applied “if need be.” The reasons for the deletion of this proviso are not known (Rosenne’s Procedure, p. 135). For a commentary on Article 44, para. 1 see Ch. Walter, “Article 44”, in Oxford Commentary, MN 4–5, p. 1174. 179  Hudson’s PCIJ, p. 569; Walter, “Article 44”, MN 5, p. 1174. 180  The distinction is clearly spelled out in Article 68 of the Rules. 181  Higgins, “Judicial Determination . . .”, p. 1373. 182  German Interests in Upper Silesia, Order of 22 March 1926, Annex II to Judgment No. 7, 25 May 1926, PCIJ A 7, pp. 96–97. 183  PCIJ C 11, p. 25 ff. See also Guyomar’s Commentaire, p. 409. 184  Benzing, “Evidentiary Issues”, MN 113–130, pp. 1266–1272.

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subjective, cannot take the place of evidence. An opinion expressed by a witness is a mere personal and subjective evaluation of a possibility, which has yet to be shown to correspond to a fact; it may, in conjunction with other material assist the Court in determining a question of fact, but is not proof in itself. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 42, para. 68)

Secondly, testimony that does not correspond to facts or is mere hearsay could be admissible but carries little authority: Nor is testimony of matters not within the direct knowledge of the witness, but known to him only from hearsay, of much weight; as the Court observed in relation to a particular witness in the Corfu Channel case: The statements attributed by the witness . . . to third parties, of which the Court has received no personal and direct confirmation, can be regarded only as allegations falling short of conclusive evidence. (. . .) (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 42, para. 68)

Thirdly, there are certain types of testimony that by their very nature have higher credibility than others. These are the testimony of persons with no direct interests in the case and declarations going against the interests of the party on whose behalf the witness has been called: In the general practice of courts, two forms of testimony which are regarded as prima facie of superior credibility are, first the evidence of a disinterested witness—one who is not a party to the proceedings and stands to gain or lose nothing from its outcome—and secondly so much of the evidence of a party as its against its own interest. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 43, para. 69)

A special class of testimony, the evidentiary value of which the Court has had occasion to consider on a number of occasions, is that of public statements by State authorities given outside the framework of the proceedings. As it was mentioned, the Court has said that this material is highly significant as evidence when it contains admissions of facts or conducts that are detrimental to the State represented by the declaring individual, a kind of evidence that the Court itself has labelled “statements against interest,”185 as noted below: 185  Armed Activities (DRC v. Uganda), Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 206, para. 78.

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[referring to statements by representatives of States, sometimes at the highest political level] The Court takes the view that statements of this kind, emanating from high-ranking official political figures, sometimes indeed of the highest rank, are of particular probative value when they acknowledge facts or conduct unfavourable to the State represented by the person who made them. They may even be construed as a form of admission. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 41, para. 64)186

Statements of this kind are of “particular probative value” when they are taken under “objective circumstances,” for instance before a commission of enquiry or a similar organ.187 However, the Court has pointed out that in handling evidence of this type it must act with caution, taking into account the form and circumstances in which each statement is made: [I]t is natural also that the Court should treat such statements with caution, whether the official statement was made by an authority of the Respondent or of the Applicant. (. . .) The Court must take account of the manner in which the statements were made public; evidently, it cannot treat them as having the same value irrespective of whether the text is to be found in an official national or international publication, or in a book or newspaper. It must also take note whether the text of the official statement in question appeared in the language used by the author or on the basis of a translation (. . .) It may also be relevant whether or not such a statement was brought to the Court’s knowledge by official communications filed in conformity with the relevant requirements of the Statute and Rules of Court. Furthermore, the Court has inevitably had sometimes to interpret the statements, to ascertain precisely to what degree they constituted acknowledgements of a fact. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 41, para. 65)

As it is only natural, context is highly relevant. For instance, in the Burkina Faso/ Mali case a chamber of the Court declared that it would not depart from the firmly established rule adopted by the PCIJ under which “[t]he Court ­cannot take into account declarations, admissions or proposals which the Parties may

186  For a critique see Th. Franck, “Some observations on the ICJ’s Procedural and Substantive Innovations”, AJIL, vol. 81 (1987), p. 118. 187  Armed Activities (DRC v. Uganda), Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 206, para. 78.

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have made during direct negotiations between themselves, when such negotiations have not led to a complete agreement.”188 Furthermore, in the event that the testimony offered by high authorities of the States parties to a case openly contradict each other, the Court will treat these materials with circumspection and will only assign them probative value to the extent that they refer to matters undisputed between the parties or go against the interests of the State represented by those authorities—without this having any implication, it is worth noting, on the veracity or credibility of the persons giving the statement: [Referring to oral and written testimony by officials of both parties of a ministerial level] These declarations at ministerial level on each side were irreconcilable as to their statement of certain facts. In the view of the Court, this evidence is of such a nature as to be placed in a special category. (. . .) A member of the government of a State engaged (. . .) in international litigation (. . .) will probably tend to identify himself with the interests of his country, and to be anxious when giving evidence to say nothing which could prove adverse to its cause. The Court thus considers that it can certainly retain such parts of the evidence given by Ministers, orally or in writing, as may be regarded as contrary to the interests or contentions of the State to which the witness owes allegiance, or as relating to matters not controverted. For the rest, while in no way impugning the honour or veracity of the Ministers of either Party who have given evidence, the Court considers that the special circumstances of this case require it to treat such evidence with great reserve. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 43, paras. 69–70)189

The Court has examined the notarized affidavit of 2002 of the Ugandan Ambassador to the DRC, which refers to documents that allegedly were at the Ugandan Embassy in Kinshasa, showing that “the Sudanese ­government was supplying ADF rebels”. While a notarized affidavit is entitled to a certain respect, the Court must observe that it is provided by

188  Merits, Judgment of 22 Dec. 1986, ICJ Rep. 1986, p. 632, para. 147. The quotation is from Factory at Chorzów, Merits, Judgment No. 13, 13 Sept. 1928, PCIJ A 17, p. 51. See further Benzing, “Evidentiary Issues”, MN 26, p. 1242. 189  This echoes the Asylum case, in which the Court paid virtually no attention to public statements made by high authorities of the parties. The Court found that, since its duty was to apply international law in deciding the case, it could not attach “decisive importance to any of these documents” (  Judgment of 20 Nov. 1950, ICJ Rep. 1950, p. 278).

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a party in the case and provides at best indirect “information” that is unverified. (Armed Activities (DRC v. Uganda), Merits, Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 219, para. 129)

Circumspection is also in order when considering testimony given by private persons—in the form of sworn affidavits by witnesses—when they owe allegiance to one of the States parties. In these situations a pertinent factor would be the time at which the testimony was given for, in general, testimony which is contemporaneous to the events it refers to rates higher than testimony produced at a later stage, for instance with a view to its use in proceedings before the Court.190 In any case, testimony that is in the nature of a personal opinion rather than the knowledge of a fact carries little weight for evidentiary purposes. The Court notes (. . .) that witness statements produced in the form of affidavits should be treated with caution. In assessing such affidavits the Court must take into account a number of factors. These would include whether they were made by State officials or by private persons not interested in the outcome of the proceedings and whether a particular affidavit attests to the existence of facts or represents only an opinion as regards certain events. The Court notes that in some cases evidence which is contemporaneous with the period concerned may be of special value. Affidavits sworn later by a State official for purposes of litigation as to earlier facts will carry less weight than affidavits sworn at the time when the relevant facts occurred. In other circumstances, where there would have been no reason for private persons to offer testimony earlier, affidavits prepared even for the purposes of litigation will be scrutinized by the Court both to see whether what has been testified to has been influenced by those taking the deposition and for the utility of what is said. Thus, the Court will not find it inappropriate as such to receive affidavits produced for the purposes of a litigation if they attest to personal knowledge of facts by a particular individual. The Court will also take into account a witness’s capacity to attest to certain facts, for example, a ­statement of a competent governmental official with regard to the boundary lines may have greater weight than sworn statements of a private person. (Nicaragua v. Honduras, Judgment of 8 Oct. 2007, ICJ Rep. 2007, pp. 731–732, para. 244)

190  Mani’s Adjudication, pp. 215–216.

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It has also been pointed out that the Court, as well as international tribunals in general, lack the power to punish for perjury or contempt and this circumstance in itself tends to limit the value of testimony offered by witnesses.191 In this context, it is useful to remark that as a general rule testimony given by anonymous persons is not—or should not be—admissible. The question arose in the US Nationals in Morocco case, in which one of the parties submitted as an annex to a pleading an affidavit containing hearsay evidence given by persons who did not wish their names to be mentioned. On the initiative of the President, the Court decided not to accept this document and the Registrar was instructed to inform the agent of that party that “the Court considers that this document, which contains reports of conversations with persons unknown, is not admissible as evidence in this case since, in these circumstances, it is not possible to assess the value of the evidence.”192 From the previous considerations, the conclusion that the role played by evidence assuming the form of testimony by witnesses in litigation before the ICJ is at best marginal is inescapable. In a recent report concerning the topic it was stated that: [a]ffidavits constituted, at best, evidence of a secondary nature, which could only be used to confirm facts already sufficiently well established by other means; separately and independently they were, in principle, incapable of proving facts.193 3) Expert Evidence194 The main problem with experts called by the parties according to the rules examined in the previous section is that if the opposing party manages to 191  M.O. Hudson, International Tribunals, Past and future (1944), p. 93. On this see also Alford, “Fact Finding . . .”, p. 73; Watts, “Burden of proof . . .”, p. 298. 192  See letter from Registrar to the Agent of the United States, 5 Aug. 1952, reproduced in ICJ Pleadings, US Nationals in Morocco, vol. 2, p. 480. See also ICJ Yearbook (1952–1953), p. 87 and Mani’s Adjudication, p. 227. For a narrative of the treatment of a similar question in the US Hostages case see T.O. Elias, “Methodological Problems faced by the International Court of Justice in the Application of International Law”, in B. Cheng (Ed.), International Law: Teaching and Practice (1982), pp. 144–145. 193  UNITAR Colloquium II, p. 29. For the treatment of testimonial evidence in the practice of international arbitration tribunals see Cheng, “General Principles . . ., pp. 309–312 (affidavits) and pp. 312–318 (other forms of testimony); Amerasinghe, “Evidence . . .”, pp. 203. 194  Mani’s Adjudication, pp. 234–238; G.M. White, “The Use of Experts by International Tribunals” (1965) and, by the same author, “The Use of Experts by the International Court of Justice”, in Vaughn Lowe & M. Fitzmaurice (Eds.), Fifty Years of the International

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­ roduce an expert of its own their respective testimonies will contradict— p and, eventually neutralize—each other. In addition, a party-appointed expert may provide evidence that, while highly convincing, unavoidably will be perceived as biased.195 An alternative is that the Court commissions proprio motu a report by an expert or a group of experts, an option that is not used very often, despite the fact that it presents obvious advantages from the Court’s standpoint. A reason mentioned for this is that summoning experts to participate in international judicial proceedings usually involve numerous practical difficulties, among which financial constrains should surely be included.196 On the other hand, the increasing number of cases submitted to adjudication and the highly technical nature of the questions to which modern inter-State disputes refer are reasons that militate for a wider use of this device. Under Article 50 of the Statute the Court is entitled “to entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion”,197 the purpose of which would be, in its own words, “to assist the Court in giving judgment upon the issues submitted to it for decision.”198 In the case of individuals, this apparently includes the members of the Court. Related to this, in the Nicaragua case, the Court made the important point that the “body” mentioned in Article 50 of the Statute “could be a group of judges selected from among those sitting in the case.”199 In the Burkina Faso/Mali case the parties requested that the Court appoint experts in order to assist them in the implementation of the judgment. After rendering its decision on the merits the Court duly complied with the request and in the relevant order it took care in pointing out that this was to be distinguished from “an expert opinion within the meaning of Article 50 of the

Court of Justice, Essays in honour of Sir Robert Jennings (1996), p. 528; L. Savadogo, “Le recours des jurisdictions internationals a des experts”, AFDI, vol. 50 (2004), pp. 231–258. See also C.J. Tams, “Article 50”, pp. 1287–1299; Riddell & Plant, “Evidence . . .”, pp. 329–358. 195  Brown, “A Common Law . . .”, pp. 113–114. 196  Evensen, “Evidence . . .”, p. 54. 197  A clear-cut distinction between expert opinions and enquiries may be difficult to draw. For a discussion see Tams, “Article 50”, MN 2–7, pp. 1289–1291. At the time of the PCIJ the term “enquiry” appears to have been understood as having a wider scope (See PCIJ D 2, p. 147 and Hudson’s PCIJ, p. 377, note 2). 198  Application for Revision and Interpretation-Tunisia/Libya Continental Shelf, Judgment of 10 Dec. 1985, ICJ Rep. 1985, p. 228, para. 65. 199  Nicaragua, Merits, Judgment of 27 June 1986, ICJ Reports 1986, p. 40, para. 61. See also Tams, “Article 50”, MN 7, p. 1291, note 25.

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Statute of the Court.” According to this decision, such an expert opinion would have two distinguishing features: (one) It would have the purpose of assisting the Court “in giving judgment upon the issues submitted to it for decision;” and, (two) Any costs involved would be borne by the Court under Article 68 of its Rules.200

Box # 8-12 Use of independent experts: Practice201 There is scarce practice in the use of Article 50 of the Statute. The PCIJ arranged for an expert enquiry on only one occasion and the current Court has appointed experts twice. More frequent are those instances in which it has been proposed—by one of the parties or by a member of the Court—that experts should be appointed and either the Court has declined to do so or has not found occasion to decide on the matter.

i) Cases in Which Experts Have Been Appointed at the Instance of the Court

· In the Chorzów Factory (Indemnity) case, the Permanent Court sought advice

by a committee of experts before fixing the amount of compensation (Order of 13 Sept. 1928, PCIJ A17, pp. 99 ff). Before the work of the experts was completed, the parties reached an agreement on the amount of compensation and following this the Court removed the case from the General List and dissolved the Committee (Order of 25 May 1929, PCIJ A 18/19, pp. 11 ff).202 In the Corfu Channel case the Court made use of committees of experts in two occasions. It first appointed a committee of naval experts in order to establish certain facts pertaining to the merits (Order of 17 Dec. 1948, ICJ Rep. 1948, p. 124 ff.). After the Committee submitted its report, the Court decided that it should proceed to an “enquiry on the spot” and submit a second report, after which some members of the Court put questions to the experts.

·

200  Burkina Faso/Mail, Order of 9 April 1987, ICJ Rep. 1987, p. 8. 201  Guyomar’s Commentaire, pp. 432–439. 202  For an assessment see Foster, “Fact Finding . . .”, p. 165.

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(Decision of 17 Jan. 1949, ICJ Rep. 1949, pp. 9 and 151).203 When the case reached the reparations phase, the Court appointed a new committee of experts in order to receive advice on the assessment of the amount of compensation owed to the UK by Albania (Order of 19 Nov. 1949, ICJ Rep. 1949, p. 238).204 The experts’ report was included as an annex to the judgment on compensation (ICJ Rep. 1949, p. 258 ff).

ii) Cases in Which Experts Have Been Appointed at the Instance of the Parties Apart from the Burkina Faso/Mali case mentioned above, the Court has acceded to requests from the parties in this regard in the following cases:

· In the Gulf of Maine case, the special agreement contained a provision

whereby the parties requested the chamber of the Court dealing with the case to appoint a technical expert nominated jointly by them in order “to assist it in respect of technical matters and, in particular, in preparing the description of the maritime boundary and the charts on which its course has to be indicated” (this being the very first case on maritime delimitation in which the Court was requested to draw the actual line of delimitation). The chamber acceded to this request (Order of 30 March 1984, ICJ Rep. 1984, p. 165). The expert’s report was annexed to the final judgment (ICJ Rep. 1984, p. 265, para. 18; p. 344, para. 242 and pp. 347–352). In the Burkina Faso/Niger case, the special agreement also contained a similar request to that made in Burkina Faso/Mali. In its judgment on the merits the Court declared that it was ready to perform this task but that it would be inappropriate to make the nominations then and there and that it would do that later (Judgment of 16 April 2013, par. 113 and 114 (6)dispositif). The experts were eventually nominated by means of an order (Nomination of Experts, Order of 12 July 2013).

·

203  The two reports are included as an annex to the judgment on the merits (ICJ Reports 1949, pp. 142 and 152). The second report includes the replies to the questions put by some judges. 204  Initially the Court had envisaged that the parties would reach agreement as to both the subject of the expert opinion and the names of the experts (Order of 9 April 1949, ICJ Rep. 1949, p. 172). When Albania refused to participate further in the proceedings the Court proceeded to apply Article 50.

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iii) Cases in Which the Appointment of Experts was Suggested but was Not Endorsed by the Court

· Free Zones (PCIJ A 24, p. 8 and A/B 46, pp. 162–163). · Oscar Chinn (PCIJ A/B 63, pp. 69 and 88; Separate Opinion of Judge Anzilotti, · · · · · · ·

ibid., p. 109; Separate Opinion of Judge van Eysinga, ibid., p. 147; see also PCIJ E 16, pp. 192–193) Phosphates in Morocco (PCIJ C 84, pp. 406, 784–785 and C 85, p. 1173) Société Commerciale de Belgique (PCIJ A/B 78, Separate Opinion of Judge van Eysinga, p. 182) Temple of Preah Vihear (Dissenting Opinion of Judge Wellington Koo, ICJ Rep. 1962, p. 100, para. 55). Application for Revision and Interpretation-Tunisia/Libya Continental Shelf (ICJ Rep. 1985, pp. 227–228, paras. 65–66) Nicaragua (ICJ Rep. 1986, p. 40, para. 61; Dissenting Opinion of Judge Schwebel, ibid., pp. 321–322, para. 132). El Salvador/Honduras (ICJ Rep. 1992, pp. 361–362, para. 22 and p. 400, para. 65) Pulp Mills ( Judgment of 20 April 2010, Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, paras. 8–17; Separate Opinion of Judge Cançado Trindade, paras. 150–151; Declaration of Judge Yusuf, paras. 6–14; Dissenting Opinion of Judge ad hoc Vinuesa, paras. 93–95).

iv) Cases in Which There was a Request to Appoint Experts but the Case Did Not Proceed to the Merits Phase

· Anglo-Iranian Oil Co. (ICJ Pleadings, p. 360, para. 47) · Nottebohm (Second Phase) (ICJ Rep. 1955, p. 9) · Interhandel (ICJ Rep. 1959, p. 12) v) Applicability of Article 50 in Advisory Proceedings There has been discussion of the possibility of applying Article 50 of the Statute in the context of advisory proceedings, under the umbrella provision contained in Article 68 of the Statute. At the time of the PCIJ it appears that this was considered feasible.205 As for the present Court, the question was debated

205  Jurisdiction of the European Commission of the Danube, Advisory Opinion No. 14, 8 Dec. 1927, PCIJ B 14, p. 46; Competence of ILO on Personal Work, PCIJ C 12, pp. 287–288.

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in c­ onnection with the Western Sahara, Namibia and Construction of A Wall cases.206 In the Western Sahara case, judge de Castro voiced the opinion that this was not possible under the Statute (Western Sahara, Advisory Opinion, Separate Opinion of Judge de Castro, ICJ Rep. 1975, p. 138), but this position has been questioned by several commentators.207

The Court has full discretion on the use of this procedural aid, even in cases submitted by special agreement in which a request for the appointment of experts is included in that instrument.208 In a case like this, if the Court chooses to apply this provision it will, after hearing the parties, issue an order in which the following aspects are defined: i) ii)

The subject of the enquiry or expert opinion; The number and mode of appointment of the persons to hold the enquiry or of the experts; and, iii) The procedure to be followed (Rules, Article 67, para. 1).209 When appropriate, the persons mentioned can be required to make a solemn declaration. As stated above, they will be paid out of the funds of the Court (Rules, Article 68).210 The parties will, of course, have the opportunity to comment upon the results of the enquiry or the expert opinion and to that end the relevant documentation will be communicated to them in due time (Rules, Article 67, para. 2). The previous versions of the rule (Article 62, para. 2 of the 1972 Rules and Article 57, para. 2 of the 1946 Rules) only contemplated that the result of the enquiry or the expert opinion should be communicated to the parties. In any

206  Tams, “Article 50”, MN 21–22, p. 1117. 207  Ibid.; White, “The Use of experts . . .” (1996), pp. 539–540. 208  Free Zones, Judgment of 7 June 1932, PCIJ A/B 46, pp. 162–163. 209  See also Article 20 of the Instructions for the Registry. Detailed arrangements for the conduction of an expert enquiry can be found in the two pertinent orders made in the Corfu Channel case (Order of 17 Dec. 1948, ICJ Rep. 1948, p. 124 and Order of 19 Nov. 1949, ICJ Rep. 1949, p. 237). 210  This is in departure from the practice of the PCIJ. As it has been noted, in the Factory at Chorzów case, the Court decided to appoint experts and ordered that they should be paid by the parties. On this, see Tams, “Article 50”, MN 17, p. 1116.

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case, the prevailing view, on the basis of the practice followed in the Corfu Channel case, was that this was implicit in the same provision.211

Box # 8-13 Subject-matter of an enquiry or an expert opinion Although the Statute and the Rules are silent on the subject-matter of expert advice that the Court may see fit to seek, it is generally accepted that the field of application of Article 50 is restricted to “questions of a technical nature” (Corfu Channel, Order of 19 Nov. 1949, ICJ Rep. 1949, p. 238) with which the Court and its members may not be familiar. On the basis of the practice, certain basic parameters may be identified in this regard:

i)

Questions of Fact and Questions of Law

In the Corfu Channel case, after the experts’ report was made available to the parties, Albania objected that they had exceeded the limits of their mandate and had gone on to interpret the Court’s findings on questions of fact. The judgment shows that this criticism was not sound, as it was the Court itself who undertook the task of evaluating and assessing the evidence produced by the experts.212 The findings on questions of law were unquestionably made by the Court, not by the experts.

ii) Questions of International Law As stated above, in the Fisheries Jurisdiction (UK v. Iceland)(Germany v. Iceland) case the Court recalled that it “is deemed to take judicial notice of international law;” that it is therefore required “to consider on its own initiative all rules of international law which may be relevant to the settlement of the dispute;” that it is its duty “to ascertain and apply the relevant law in the given circumstances of the case;” and that “the law lies within the judicial knowledge of the Court.” In light of these sweeping propositions, it would be inconceivable for the Court to appoint experts to assess questions of international law.213

211  Foster, “Fact Finding . . .”, p. 170. 212  White, “The Use of Experts . . .” (1996), pp. 529–530. 213  Tams, “Article 50”, p. 1294, note 46.

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iii) Linguistic Questions From time to time, the Court has had to face the problem of determining the exact meaning of texts drafted in a language with which few—if any—of its members are familiar. The situation may have arisen in cases like the Aegean Sea Continental Shelf, with regard to the Greek language and the Qatar v. Bahrain dispute, with regard to the Arabic language. It has been suggested that in cases like these the Court could seek the assistance of linguistic experts, under the broad provision contained in Article 50 of the Statute.214

While it is clear that the experts’ task is confined to assisting the Court to establish or elucidate the facts of the case, nothing prevents the Court from giving precise guidance to them beforehand. For instance, in the order of the Court organizing an expert opinion on certain aspects of the merits in the Corfu Channel two provisions were included specifying the conditions under which the experts were to carry out their task: VI. The Experts shall bear in mind that their task is not to prepare a scientific or technical statement of the problems involved, but to give to the Court a precise and concrete opinion upon the points submitted to them. VII. The Experts shall not limit themselves to stating their findings; they will also, as far as possible, give the reasons for these findings in order to make their true significance apparent to the Court. If need be, they will mention any doubts or differences of opinion amongst them.215 Judge Yusuf has described in the following manner the most prominent limitations inherent in the experts’ job: In view of the persistent reticence of the Court to use the powers conferred upon it by Article 50 of the Statute, except in two cases, the question arises as to whether there is a risk that the resort to an expert opinion may take away the role of the judge as the arbiter of fact and therefore undermine the Court’s judicial function? My answer is in the negative. First, it is not for the expert to weigh the probative value of the facts,

214  Thirlway’s Law and Procedure, Part 3, BYIL, vol. 62 (1991), pp. 761–72. 215  Corfu Channel, Order of 17 Dec. 1948, ICJ Rep. 1948, pp. 126–127.

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but to elucidate them and to clarify the scientific validity of the methods used to establish certain facts or to collect data. Secondly, the elucidation of facts by the experts is always subject to the assessment of such expertise and the determination of the facts underlying it by the Court. Thirdly, the Court need not entrust the clarification of all the facts submitted to it to experts in a wholesale manner. Rather, it should, in the first instance, identify the areas in which further fact-finding or elucidation of facts is necessary before resorting to the assistance of experts. (Pulp Mills, Merits, Declaration of Judge Yusuf, ICJ Rep. 2010, p. 219, para. 10)216

Box # 8-14 “Ghost Experts” at the ICJ In their dissenting opinion in the Pulp Mills case, judges El-Khasawneh and Simma criticized a practice by the Court that has not attracted too much attention: that of unofficially using experts or technicians during the internal deliberations leading to the adoption of a decision: It would not be sufficient if the Court, in disputes with a complex scientific component, were to continue having recourse to internal “experts fantômes”, as appears to have been the case, inter alia, in certain boundary or maritime delimitation cases: no less an insider than Sir Robert Jennings, a former President of the Court, has claimed that “the Court has not infrequently employed cartographers, hydrographers, geographers, linguists, and even specialised legal experts to assist in the understanding of the issue in a case before it; and has not on the whole felt any need to make this public knowledge or even to apprise the parties” (Sir R. Y. Jennings, “International Lawyers and the Progressive Development of International Law”, in J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzystof Skubiszewski, 1996, p. 416). The Court’s Registrar, Philippe Couvreur, has defined the role of experts retained by the Court for purely internal consultation as that of temporary Registry staff members, entrusted with the giving of internal scientific opinions under the oath of confidentiality demanded of full-time Registry staff. As he explains, their conclusions would never be made public (Ph. Couvreur, “Le règlement juridictionnel”, in SFDI (ed.), Le processus de délimitation maritime : Étude d’un cas fictif : Colloque international de

216  See also Foster, “Fact Finding . . .”, p. 169; White, “The Use of Experts . . .” (1965), p. 165.

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Monaco du 27 au 29 mars 2003, 2004, p. 349, p. 384). While such consultation of “invisible” experts may be pardonable if the input they provide relates to the scientific margins of a case, the situation is quite different in complex scientific disputes, as is the case here. Under circumstances such as in the present case, adopting such a practice would deprive the Court of the above-mentioned advantages of transparency, openness, procedural fairness, and the ability for the Parties to comment upon or otherwise assist the Court in understanding the evidence before it. These are concerns based not purely on abstract principle, but on the good administration of justice (C. Tams, “Article 50”, in A. Zimmermann, C. Tomuschat and K. Oellers-Frahm (eds.), The Statute of the International Court of Justice: A Commentary, 2006, p. 1109, p. 1118). Transparency and procedural fairness are important because they require the Court to assume its overall duty for facilitating the production of evidence and to reach the best representation of the essential facts in a case, in order best to resolve a dispute. (Pulp Mills, Merits, Dissenting Opinion of Judges Al-Khasawneh and Simma, ICJ Rep. 2010, pp. 114–115, para. 14)

As for the evidentiary value attached to expert opinions or enquiries arranged under Article 50, the Statute and the Rules are silent on the matter. Everything tends to suggest that this type of materials will carry more weight than, say, evidence generated by party-appointed experts. In the Corfu Channel case, for instance, the Court recalled that it could not “fail to give great weight to the opinion of the Experts who examined the locality in a manner giving every guarantee of correct and impartial information.”217

Box # 8-15 Assessors Experts appointed by the Court should be distinguished from assessors, a little known category foreseen in the Statute and the Rules that has never been used. Article 30, para. 2 of the Statute does not in itself provide for assessors but anticipates that the Rules may do so and that such persons will “sit with the Court or with any of its chambers, without the right to vote.” In the

217  Corfu Channel, Merits, Judgment of 9 April 1949, ICJ Rep. 1949, p. 21.

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c­ orresponding provisions of the Statute of the PCIJ (Articles 26 and 27) the system of “technical assessors” was applicable only to cases relating to labour or to transit and communications, which were to be dealt with by chambers of the Court.218 The San Francisco Conference decided to extend the system to all types of cases and to the full Court. Article 9 of the Rules, comprising an entire subsection of Section A (“Assessors”) reads: Article 9 1. The Court may, either proprio motu or upon a request made not later than the closure of the written proceedings, decide, for the purpose of a contentious case or request for advisory opinion, to appoint assessors to sit with it without the right to vote. 2. When the Court so decides, the President shall take steps to obtain all the information relevant to the choice of the assessors. 3. The assessors shall be appointed by secret ballot and by a majority of the votes of the judges composing the Court for the case. 4. The same powers shall belong to the chambers provided for by Articles 26 and 29 of the Statute and to the presidents thereof, and may be exercised in the same manner. 5. Before entering upon their duties, assessors shall make the following declaration at a public sitting: “I solemnly declare that I will perform my duties as an assessor honourably, impartially and conscientiously, and that I will faithfully observe all the provisions of the Statute and of the Rules of the Court.”219 The difference between an expert appointed by the Court and an assessor is illustrated by the situation obtaining in the Gulf of Maine case. In the special agreement by which the case was submitted to a chamber of the Court there was provision for requesting the chamber to appoint a “technical expert” to assist the chamber in certain respects. Article II (3) of the agreement provided that the expert would have access to the pleadings, would be present at the

218  For the definition of certain general criteria in this regard adopted by the Court at its first session see PCIJ E 3 (1926–1927), pp. 189–190). 219  For a detailed analysis see Rosenne’s Procedure, pp. 30–33.

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oral proceedings and would be “available for such consultations with the chamber as it may deem necessary for the purposes of this Article” (Gulf of Maine, Judgment of 12 Oct. 1984, ICJ Rep. 1984, p. 253, para. 5). The Court acceded to the request and just before the opening of the oral proceedings it issued an order providing for the appointment of the expert. The language of Article II was carefully followed in the drafting of this order (Gulf of Maine, Appointment of Expert, Order of 30 March 1984, ICJ Rep. 1984, p. 165). It is clear that the Court wanted to make sure that the expert was not to be mistaken for an assessor. On one hand, the only provisions of the Statute mentioned as authority in the qualités of the order were Articles 48 and 50; on the other hand, the order itself contains the text of a solemn declaration that the expert was called to make, which is different from that provided for in Article 9, para. 5 of the Rules (ibid., pp. 166–167, para. 2). Article 9 of the current Rules has never been applied.220 It has been proposed that, as a means to further its evidence-gathering powers, the Court could make better use of the figure of assessors.221

4) Third-Party Evidence This category refers to materials that originate in an entity that is not a party to the case, in particular organs of international organizations and the like, under one of the methods discussed in this section.222 In the first place, it often happens that States parties submit to the Court, as secondary evidence, reports issued by different bodies, both domestic and international. The contents of these documents might be given specific value, depending on a number of factors.223 In the Genocide Convention (Bosnia) case the Court listed some of these factors as follows:

220  See Thirlway, “Article 30”, in Oxford Commentary, MN 40, pp. 528–529. 221  Highet, “Evidence and proof. . . .”, p. 372. A proposal in this direction, within the framework of advisory proceedings, can be found in L. Gross, “The International Court of Justice: Consideration of requirements for enhancing its role in the international legal order”, AJIL, vol. 65 (1971), pp. 277–278. 222  The Statute and the Rules are silent on the possibility of the Court inviting a State that is not a party to a case to bring evidence before it. For the suggestion that this could happen see Foster, “Fact Finding . . .”, p. 175. The only known instance of this happened at the instigation of the third State concerned: see supra note 102. 223  An early example, albeit in the context of advisory proceedings, is the case concerning the Jurisdiction of the European Commission of the Danube, Advisory Opinion No. 14, 8 Dec.

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The Court was also referred to a number of reports, from official or independent bodies, giving accounts of relevant events. Their value depends, among other things, on (1) the source of the item of evidence (for instance partisan, or neutral), (2) the process by which it has been generated (for instance an anonymous press report or the product of a careful court or court-like process), and (3) the quality or character of the item (such as statements against interest, and agreed or uncontested facts). (Genocide Convention (Bosnia), Merits Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 135, para. 227)224

In the same case, the Court drew heavily from a report prepared by the UN Secretary-General at the request of the General Assembly, on which it made the following comment: “[t]he care taken in preparing the report, its comprehensive sources and the independence of those responsible for its preparation all lend considerable authority to it. As will appear later in this Judgment, the Court has gained substantial assistance from this report.”225 By contrast, in the previously decided Armed Activities (RDC v. Uganda) case, the Court had declared that it was prepared to take into consideration evidence contained in certain UN documents but only “to the extent that they are of probative value and are corroborated, if necessary, by other credible sources.”226 On the other hand, in the same case the Court lent substantial credibility to the report of an independent body (the “Porter Commission),” in spite of the Commission’s own recognition that it reflected certain flaws and constraints that affected the fact-finding process carried out by it.227 On the basis of these cases, in particular the DRC v. Uganda case, it has been contended that the Court grants preferential treatment to UN documents, as compared to other sources of secondary evidence.228 This practice would not only have serious adverse consequences for the Court but would also give

1927, PCIJ B 14, p. 46. In that case the PCIJ gave considerable weight to a report made by a special committee of the League and declared that “it must accept the findings of the committee on issues of fact unless in the records submitted to the Court there is evidence to refute them.” 224  See also Teitelbaum, “Recent Developments . . .”, pp. 152 ff. 225  Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 137, para. 230. 226  Armed Activities (RDC v. Uganda), Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 239, para. 205. 227  Ibid., p. 201, para. 61. 228  This has also been criticized, on the basis that it represents the “outsourcing of fact-finding” of the ICJ (Joyce, “Fact-Finding  . . .”, pp. 294–306, esp. at pp. 296–297, 300–305). See also Halink, “All Things . . .”, pp. 13–52.

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undue procedural advantages for the party that can support its claims with a UN document.229 A second method for gathering secondary evidence consists of the Court explicitly relying on findings of other international tribunals on questions of fact. This is to a large extent an unprecedented phenomenon, to a large extent because the proliferation of permanent international tribunals is of relatively recent occurrence in international law. At the merits phase in the Genocide Convention (Bosnia) case, when faced with the contention that genocide had been committed, as an act of State, by the respondent, the Court relied heavily on certain decisions of the International Criminal Tribunal for the Former Yugoslavia bearing a direct relationship with the facts at issue. The Court undertook a careful analysis of the tribunal’s fact-finding processes and decided to base some of its conclusions on the results of those processes, within certain parameters carefully spelled out in the judgment.

Box # 8-16 The probative value of ICTY findings in the Genocide Convention case230 In the Genocide Convention (Bosnia) case the Court undertook a detailed examination of the decision-making processes at work within the International Criminal Tribunal for the former Yugoslavia and gave substantial credence to its decisions containing “findings of fact made by the Tribunal at trial.”231 The following excerpts of the decision are noteworthy: 212. The Court must itself make its own determination of the facts which are relevant to the law which the Applicant claims the Respondent has breached. This case does however have an unusual feature. Many of the allegations before this Court have already been the subject of the ­processes and decisions of the ICTY. The Court considers their significance later in this section of the Judgment.

229  Halink, “All Things Considered . . .”, pp. 26–36, 51. 230  Gattini, “Evidentiary Issues . . .”, pp. 901–903. 231  However, it has been noted that the Court made a selective use of the jurisprudence of the ICTY, an approach that is certainly open to criticism (Teitelbaum, “Recent Developments . . .”, pp. 156–157).

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213. The assessment made by the Court of the weight to be given to a particular item of evidence may lead to the Court rejecting the item as unreliable, or finding it probative, as appears from the practice followed [in several cases] (. . .) 214. The fact-finding process of the ICTY falls within this formulation, as “evidence obtained by examination of persons directly involved”, tested by cross-examination, the credibility of which has not been challenged subsequently. The Court has been referred to extensive documentation arising from the Tribunal’s processes, including indictments by the Prosecutor, various interlocutory decisions by judges and Trial Chambers, oral and written evidence, decisions of the Trial Chambers on guilt or innocence, sentencing judgments following a plea agreement and decisions of the Appeals Chamber. 215. By the end of the oral proceedings the Parties were in a broad measure of agreement on the significance of the ICTY material. The Applicant throughout has given and gives major weight to that material. At the written stage the Respondent had challenged the reliability of the Tribunal’s findings, the adequacy of the legal framework under which it operates, the adequacy of its procedures and its neutrality. At the stage of the oral proceedings, its position had changed in a major way. In its Agent’s words, the Respondent now based itself on the jurisprudence of the Tribunal and had “in effect” distanced itself from the opinions about the Tribunal expressed in its Rejoinder. The Agent was however careful to distinguish between different categories of material: “[W]e do not regard all the material of the Tribunal for the former Yugoslavia as having the same relevance or probative value. We have primarily based ourselves upon the judgments of the Tribunal’s Trial and Appeals Chambers, given that only the judgments can be regarded as establishing the facts about the crimes in a credible way.” And he went on to point out that the Tribunal has not so far, with the exception of Srebrenica, held that genocide was committed in any of the situations cited by the Applicant. He also called attention to the criticisms already made by Respondent’s counsel of the relevant judgment concerning General Krstić who was found guilty of aiding and abetting genocide at Srebrenica.

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216. The Court was referred to actions and decisions taken at various stages of the ICTY processes: (1) (2) (3)

(4) (5) (6)

The Prosecutor’s decision to include or not certain changes in an indictment; The decision of a judge on reviewing the indictment to confirm it and issue an arrest warrant or not; If such warrant is not executed, a decision of a Trial Chamber (of three judges) to issue an international arrest warrant, provided the Chamber is satisfied that there are reasonable grounds for believing that the accused has committed all or any of the crimes charged; The decision of a Trial Chamber on the accused’s motion for acquittal at the end of the prosecution case; The judgment of a Trial Chamber following the full hearings; The sentencing judgment of a Trial Chamber following a guilty plea.

The Court was also referred to certain decisions of the Appeals Chamber. [Here follows a detailed account of each of these stages in the procedural regime of the ICTY] (. . .) 223. In view of the above, the Court concludes that it should in principle accept as highly persuasive relevant findings of fact made by the Tribunal at trial, unless of course they have been upset on appeal. For the same reasons, any evaluation by the Tribunal based on the facts as so found for instance about the existence of the required intent, is also entitled to due weight. 224. There remains for consideration the sixth stage, that of sentencing judgments given following a guilty plea. The process involves a statement of agreed facts and a sentencing judgment. Notwithstanding the guilty plea the Trial Chamber must be satisfied that there is sufficient factual basis for the crime and the accused’s participation in it. It must also be satisfied that the guilty plea has been made voluntarily, is informed and is not equivocal. Accordingly the agreed statement and the sentencing judgment may when relevant be given a certain weight. (Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, pp. 130–134)

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In view of the fact that an overlapping with the activities of international criminal tribunals is likely to arise again, it has been suggested that the Court could consider entering into some type of fact-finding arrangement with those bodies. The issue is closely linked with one of the facets of the question of the proliferation of international tribunals and the ensuing fragmentation of international law.232 Apart from reports by international bodies touching upon the facts relevant to a case and decisions by international tribunals in separate cases, an international organization itself may become a source of direct evidence, in the form of information provided for the benefit of the Court.233 Indeed, one important innovation incorporated in the Statute during the 1945 revision was the introduction of two new paragraphs to Article 34, by virtue of which although an international organization as such cannot become a party to a contentious case—it cannot bring a case as an applicant nor can it be named as respondent—it certainly can participate in certain contentious proceedings between States, where it can “be heard.” Under Article 26 of the Statute of the PCIJ a similar right was granted to the International Labour Office with respect to labour cases. The Washington Committee of Jurists who drafted the current Statute endorsed a proposal by the United States aimed at maintaining this provision and enlarging its scope so as to cover all types of cases and all other international organizations. The Committee’s Report highlights the fact that although the rule that was to become paragraph 2 of Article 34 was a rule of procedure rather than of competence, it was placed in that provision in order to emphasize its importance.234 Under Article 69, para. 1 of the Rules this participation—which has been famously labeled as “the amicus curiae function” of international organizations—235 may take place “at any time prior to the closure of the oral proceedings,” under certain precise conditions. 232  Teitelbaum, “Recent Developments . . .”, p. 135. See also A. Gattini, “Un regard procédural sur la fragmentation du droit international”, RGDIP, vol. 110 (2006), pp. 303 ff. 233  See, in general M. Bedjaoui, “The International Organizations before the International Court of Justice: Appraisal and Future Prospects”, ICJ Yearbook (1994–1995), pp. 215–230; Ph. Couvreur, “Développements récents concernant l’accès des organisations intergouvernementales à la procedure contentieuse devant la Cour international de Justice”, in E. Yakpo & T. Boumedra (Eds.), Liber Amirocum Judge Mohammed Bedjaoui (1999), pp. 293–323. 234  UNCIO, vol. 14, p. 839; Dupuy, “Article 34”, 6–9 pp. 590–592. 235  W. Jenks, The Prospects of International Adjudication (1964), p. 189.

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In the first place, if one of the parties has included the question in the notification concerning proposed evidence (under Article 57 of the Rules) or if the Court has decided proprio motu to authorize it (under Article 69, para. 1), the Court is entitled to request any such organization to “furnish information relevant to a case before it.” The manner in which this information is to be presented (“orally or in writing”) and the relevant time-limits will be decided by the Court, after consulting with the chief administrative officer of the organization concerned. If the organization is a specialized agency of the UN system, it is expected that the provisions of the relationship agreement will be applied. Ordinarily, these agreements contain a provision binding the organization to provide to the Court any information which may be requested by it.236 Secondly, a slightly different procedure is applied when it is the organization itself that “sees fit to furnish, on its own initiative, information relevant to a case before the Court” (Article 69, para. 2). In this event, the organization must file a Memorial “before the closure of the written proceedings,” which means that there is no room for the fixing of any time-limits by the Court. The Court retains the power to request supplementary information, either orally or in writing, “in the form of answers to any questions which it may see fit to formulate,” and also retains the power to authorize the parties to comment, either orally or in writing, on the information thus furnished. Finally, paragraph 3 of Article 69 of the Rules deals with yet another situation involving an international organization, namely the hypothesis foreseen in Article 34, para. 3 of the Statute. This provision is applicable whenever “the constituent instrument of a public international organization or of an international convention adopted thereunder is in question in a case before the Court.” Under that provision, the Registrar is directed to notify the organization concerned of that circumstance and to communicate to it copies of all of the written proceedings. Article 69, para. 3 of the Rules adds that the Court or the President—after consulting the chief administrative officer concerned— will fix a time-limit within which the organization may submit its observations in writing. The organization is also afforded the possibility of taking part in the oral proceedings through one of its representatives, during which the organization’s observations may be discussed by the parties and the said representative.

236  Foster, “Fact Finding . . .”, p. 174.

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Regrettably, these provisions have not been applied often, as the organs of international organizations have always shown a marked reluctance to advance legal arguments before the Court on behalf of the organization.237 It is important to take into consideration that these procedures apply exclusively to “public” international organizations, which are defined in Article 64, para. 4 of the Rules as “international organization[s] of States.” Nongovernmental organizations are thus not covered by these provisions and cannot furnish evidence to the Court in contentious proceedings.238 5) Indirect or Circumstantial Evidence Circumstantial evidence refers in general to situations in which the Court makes an inference on the basis of a chain of facts the existence of which has been established. In the Corfu Channel case, the Court admitted that evidence of this type can be used in situations in which the applicant State is materially precluded from furnishing what it called “direct proof of facts”—as happens in many cases, due to the fact that it is the other State which has exclusive territorial control within its frontiers: [T]he fact of th[e] exclusive territorial control exercised by a State within its frontiers has a bearing upon the methods of proof available to establish the knowledge of that State as to [certain] events. By reason of this exclusive control, the other State, the victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility. Such a State should be allowed a more liberal recourse to inferences of fact (“présomption de fait”) and circumstantial evidence.

237   See, for instance, the refusal of the Secretary-General of the Organization of American States to make observations on the interpretation and application of the 1948 American Treaty on Peaceful Settlement or “Pact of Bogota”, which has been discussed extensively before the Court in at least two major cases (Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment of 20 Dec. 1988, ICJ Rep. 1988, p. 72, para. 7; Nicaragua v. Colombia, Preliminary Objections, Judgment of 13 Dec. 2007, ICJ Rep. 2007, p. 837, para. 3). 238   For a thorough discussion see D. Shelton, “The Participation of Nongovernmental Organizations in International Judicial Proceedings”, AJIL, vol. 88 (1994), pp. 619–628. In one of its recently adopted practice directions, the Court took some measures with regard to the handling of the (ordinarily very copious) documentation that is submitted by international non-governmental organizations in advisory proceedings (Practice Direction XII). See Box # 20–5.

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This indirect evidence is admitted in all systems of law, and its use is recognized by international decisions.239 It must be regarded as of special weight when it is based on a series of facts linked together and leading logically to a single conclusion. (Corfu Channel, Merits, Judgment of 9 April 1949, ICJ Rep. 1949, p. 18)

However, as remarked above, in the same decision the Court warned that this type of evidence must be handled with special care and that the required standard of proof may be higher than in ordinary cases: The proof may be drawn from inferences of fact, provided that they leave no room for reasonable doubt . . .”240 (Corfu Channel, Merits, Judgment of 9 April 1949, ICJ Rep. 1949, p. 18)241

Several decades later, in the El Salvador/Honduras case, it was suggested that the difficulties experienced by a State in collecting certain evidence could have a bearing on the assessment of such evidence (or lack of). The chamber of the Court dealing with the case was careful in ruling out that such circumstances warranted presumptions with regard to the value and even the existence of that evidence: The Chamber fully appreciates the difficulties experienced by El Salvador in collecting its evidence, caused by the interference with governmental action resulting from acts of violence. It cannot however apply a presumption that evidence which is unavailable would, if produced, have supported a particular party’s case; still less a presumption of the existence of evidence which has not been produced. (El Salvador/Honduras, Merits, Judgment of 11 Sept. 1992, ICJ Rep. 1992, p. 399, para. 63)

239  The Court found no need to mention here any of these decisions, which can only be arbitral awards. For a listing see Cheng, “General Principles . . .”, p. 323, note 93. 240  Emphasis in the original. 241  Muller’s Procedural Developments, LPICT, vol. 6 (2007) p. 493.

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Box # 8-17 Circumstantial evidence in international adjudication242 In their opinions appended to the judgment in the Corfu Channel case several dissenting judges referred to the question of the use of circumstantial or indirect evidence by the ICJ. While some of them cautioned on the limits of that use—notably, by drawing heavily from municipal sources—only one (Krylov) expressed a clear opinion against using this type of evidence in international proceedings.

· Judge Badawi Pasha, Dissenting Opinion In a system of evidence which is based upon free appraisal by the judge, as is the case in national criminal legislation and in international law, circumstantial evidence means facts which, while not supplying immediate proof of the charge, yet make the charge probable with the assistance of reasoning. The elements of such circumstantial evidence must be interpreted and associated in order to draw the relevant inferences and reconstruct the data on which the hypothesis of responsibility is founded. In this process of interpretation and association, there is a risk of committing errors of appreciation, of letting the imagination fil1 in the gaps in the evidence, or of reasoning in a specious manner. This method of evidence, which seeks or pretends to arrive at certainty, most often attains only a high degree of probability. The fact remains that under some legislations, circumstantial evidence must be weighty, accurate and concordant. On the other hand, the most reliable doctrine takes the view that “proof by circumstantial evidence is regarded as successfully established only when other solutions would imply circumstances wholly astonishing, unusual and contrary to the way of the world”. These rules must be a constant guide in weighing evidence. (ICJ Rep. 1949, pp. 59–60)

242  Mani’s Adjudication, pp. 207–209. The use of inferences and presumptions by the ICJ and other international tribunals has attracted considerable interest in the past years. See Highet, “Evidence, the Court . . .”, pp. 33–36; C.F. Amerasinghe, “Presumptions and Inferences in Evidence in International Litigation” LPICT, vol. 3 (2004), pp. 395–410; T.M. Franck & P. Prows, “The Role of Presumptions in International Tribunals”, LPICT, vol. 4 (2005), pp. 197–245; Riddell & Plant, “Evidence . . .”, pp. 99–123.

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· Judge Azevedo, Dissenting Opinion: It would be going too far for an international court to insist on direct and visual evidence and to refuse to admit, after reflection, a reasonable amount of human presumptions with a view to reaching that state of moral, human certainty with which, despite the risk of occasional errors, a court of justice must be content. (ICJ Rep. 1949, pp. 90–91)

· Judge ad hoc Ecer, Dissenting Opinion: In regard to the probative value of indications, we must bear in mind: (a) the danger of an indirect proof: this danger arises because the conclusion is reached by reasoning, and this, as experience teaches, is a frequent source of errors; (b) the nature of the indirect proof: this is well described by Taylor, who writes on page 74 of his work, already quoted, A Treatise on the Law of Evidence as administered in England and Ireland, 1920: “They [the jury] must decide, not whether these facts [indications] are consistent with the prisoner’s guilt, but whether they are inconsistent with any other rational conclusion.” Georges Vidal, in his Cours de Droit criminel et de Science pénitentiaire, 1935, discussing conclusions drawn from indications (he calls them presumptions), writes : “Juries and judges should only accept presumptions with extreme prudence and with considerable reserve in order to avoid judicial errors which are too easily made.” After these preliminary remarks, and with the reserve which is proper for a judge when considering indirect evidence, I shall now examine the proofs of Albania’s responsibility, on the basis of cognizance. (ICJ Rep. 1949, p. 120)

Judge Krylov, Dissenting Opinion: In the municipal law of several countries, indirect proof (circumstantial evidence) is sometimes considered adequate. The well-known British

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author Wills has explained this point in regard to “common law” in his book Principles of Circumstantial Evidence (see the combined English and Indian edition, 1936). However, I doubt whether, by founding oneself on indirect evidence, it is possible to conclude that a State is responsible vis-à-vis another State. I do not believe that international justice could be content with indirect evidence of the sort that has been produced in the present case, which affects the honour of a State, a subject of international law, and its position in the community of nations. (ICJ Rep. 1949, p. 69)

More recently, in the Indonesia/Malaysia case, judge ad hoc Franck regretted that the Court had failed to endorse what he called “an interpretative or adjectival principle of evidentiary law” or a “deductive evidentiary principle,” which gave rise to a “legal presumption in favour of the dispositiveness of frontiers defined in a treaty” (ICJ Rep. 2002, pp. 704–705). He went on to defend the use of presumptions in international adjudication, stressing the fact that this finds support in legal literature: Presumptions are necessary and well-established aspects both of common and civil law and cannot but be a part of the fabric of public international law. They capture the common experience of persons everywhere that make inferences an essential part of rational thought and action. As such, they are often captured in legal maxims recognized across diverse legal systems (Henri Roland, Laurent Boyer, Adages du droit français, 3rd ed., 1992, p. 38; and see examples indexed under the title “Présomption” at p. 1009.) As Professor Bin Cheng has pointed out: “Without going so far as to holding them to be true, it is legitimate for a tribunal to presume the truth of certain facts or of a certain state of affairs, leaving it to the party alleging the contrary to establish its contention. These presumptions serve as initial premises of legal reasoning.” (. . .) “In general, it may be said that what is normal, customary or the more probable is presumed, and that anything to the contrary has to be proved by the party alleging it.” (Ibid., p. 306).

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The same point, citing various instances, is made by Professor Thirlway: “presumptions can and do play an important part in directing the reasoning of a tribunal . . . in the delicate operation of ascertainment of the intention of one or more States . . . This results from the fact that direct circumstantial evidence of an intention may be very hard to come by, or may in the nature of things not exist.” (. . .) (Indonesia/Malaysia, Merits, Dissenting Opinion of Judge ad hoc Franck, ICJ Rep. 2002, p. 705, para. 44)

In closing, it should be noted that many observers of the work of the ICJ are in agreement that the rules and methods in use for the gathering of evidence are extremely skeletal and that this is an area in which the Court could follow the cue of other international tribunals and take measures directed at improving its capabilities for “finding the facts.” Not surprisingly, then, a wide array of proposals has been put forward to this end, ranging from those that would require amendments of the Statute or, more often, the Rules, to those that could be adopted by the Court as a matter of policy, for instance by adopting new practice directions. Some could even be simply tested by the Court in the course of the handling of a given case, in a trial-and-error type of exercise. To review or comment upon these proposals would clearly exceed the scope of this work. The reader is referred to the scholarly works in which they can be found.243

243  Valuable suggestions on ways to improve the Court’s capability in evidence-gathering can be found in the following works: Foster, “Fact Finding . . .”, pp. 1990–191; T.M. Franck, “FactFinding in the ICJ”, in R.B. Lillich (Ed.), Fact-Finding Before International Tribunals, (1992), pp. 31–32; K. Highet, “Evidence and Proof . . .”, pp. 370–375 and, by the same author, “Evidence, The Chamber, and the ELSI Case”, in R.B. Lillich (Ed.), Fact-Finding Before International Tribunals (1991), pp. 70–79; S. Rosenne, “Fact-Finding Before the International Court of Justice”, in S. Rosenne, Essays on International Law and Practice (2007), pp. 246–250;UNITAR Colloquium II, p. 30; Riddell & Plant, “Evidence . . .”, pp. 416– 420; Halink, “All Things Considered . . .”, pp. 3649. See also C.N. Brower, “The Anatomy of Fact-Finding before International Tribunals: An Analysis and a Proposal concerning the Evaluation of Evidence”, in R.B. Lillich (Ed.), Fact-Finding Before International Tribunals (1991), p. 147.

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Further Reading

Leading Works



General Works and Treatises on the Court



Articles and Monographs

C.F. Amerasinghe, Evidence in International Litigation (2005) M. Kazazi, Burden of Proof and Related Issues: A Study on Evidence Before International Tribunals (1996) A. Riddell & B. Plant, Evidence before the International Court of Justice (2009) D. Sandifer, Evidence before International Tribunals (rev. ed. 1975)

M. Benzing, “Evidentiary Issues” in Oxford Commentary, pp. 1234–1275 Fitzmaurice’s Law and Procedure, vol. 1, pp. 126–129; vol. 2, pp. 575–578 Guyomar’s Commentaire, pp. 376–392, 407–447 Hudson’s PCIJ, pp. 564–572 Mani’s Adjudication, pp. 187–247 Rosenne’s Law and Practice, vol. 3, pp. 1342–1375 Rosenne’s Procedure, pp. 126–147 Scerni’s La Procédure, pp. 635–640 S. Talmon, “Article 43”, in Oxford Commentary, pp. 1088–1171 C. Tams, “Article 49”, in Oxford Commentary, pp. 1276–1286 C. Tams, “Article 50”, in Oxford Commentary, pp. 1287–1299 C. Tams, “Article 51”, in Oxford Commentary, pp. 1300–1311 H. Thirlway, “Article 30”, in Oxford Commentary, pp. 516–529 S. Torres Bernárdez, “Article 48”, in Oxford Commentary, pp. 1215–1233 UNITAR Colloquium II, pp. 25–31

Address by the President of the Court, Dame Rosalynn Higgins, to the Sixth Committee of the General Assembly, 2 Nov. 2007, ICJ Yearbook (2007–2008), pp. 357–365 Ch. Brown, “Evidence before the International Court of Justice”, LPICT, vol. 10 (2011), pp. 205–210 Y. Chang “Legal Presumptions and Admissibility of Evidence in International Adjudication”, Annals of the Chinese Society of International Law, vol. 3 (1966) pp. 1–17 K. Del Mar, “The International Court of Justice and standards of proof”, in K. Bnnelier, et al. (eds.), The ICJ and the Evolution of International Law, The enduring impact of the Corfu Channel case (2011), pp. 98–123 L. Delbez, Les Principes Generaux du Contentieux Internationaux (1962) H.R. Fabri & J.-M. Sorel, La preuve devant les jurisdictions internationales (2007) L. Ferrari Bravo, La Prova nel processo internazionale (1958)

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C. Foster, Science and the precautionary principle in international courts and tribunals— Expert evidence, burden of proof and finality (2011) G. Guillaume, « Preuves et measures d’instructions devant la juridiction internationale permanente », in G. Guillaume, La Cour internationale de Justice a l’aube du XXIème siècle (2003), pp. 85–110 Sir R. Jennings, “The Role of the International Court of Justice”, BYIL, vol. 68 (1997), pp. 17–19 M. Kamto, “Les moyens de prevue devant la Cour international de Justice à la lumiére de quelques affaires récentes portées devant elle”, German YIL, vol. 49 (2006), pp. 259–292 M. Lachs, « La prevue et la Cour internationale de Justice”, in C. Perelman et al. (eds.), La preuve en droit (1981), pp. 109–112 Lalive, «  Quelques Remarques sur la Preuve devant la Court Permanent et la Cour Internationale de Justice  », Annuaire Suisse de Droit International, vol. 7 (1950), pp. 77–103 R.M. Mosk, “The Role of Facts in International Dispute Resolution”, RC, vol. 304 (2003), pp. 9–179 G. Niyungeko, La Preuve devant les Juridictions Internationales (2005) N.H. Shah, “Discovery by Intervention: The Right of a State to Seize Evidence Located within the Territory of the Respondent State”, AJIL, vol. 53 (1959), pp. 595–612 S. Talmon, “A Primer on ICJ Procedure—A Commentary on Article 43 ICJ Statute”, Bonn Research Papers on Public International Law, Paper No. 2/2012 (2012), MN 130–158 H. Thirlway, “Dilemma or Chimera?-Admissibility of Illegally Obtained Evidence in International Adjudication”, AJIL, vol. 78 (1982), pp. 737–753 J.C. Witenberg, “La théorie des preuves devant les juridictions internationales”, RC, vol. 56 (1936-II), pp. 1–105 J. Witenberg, “Onus probandi devant les juridictions arbitrales”, RGDIP (1951), p. 323 ff.

Part 4 Ending the Litigation

∵

Contentious proceedings before the ICJ can terminate either by action of the Court or at the request of the parties (discontinuance). Termination by action of the Court can occur in one of three ways: i)

By a final decision on the merits that has the force of res judicata under Article 59 of the Statute and ideally puts an end to the dispute once and for all; ii) By an interlocutory decision taken at the end of incidental proceedings, whereby the Court determines not to deal further with the case, whether it is for reasons of lack of jurisdiction, inadmissibility of the application or other. iii) By a decision to the same effect taken in limine, that is, at a very early stage of the proceedings and before the case is argued by the parties, either on jurisdiction or on the merits. In a situation like this, the Court orders the summary dismissal of the case and its removal from the General List. As for termination by the parties themselves, there are two possibilities: a friendly settlement leading to a decision not to proceed with the case (regardless of the form in which proceedings were instituted) and the withdrawal of the claim (only in proceedings instituted by application). Procedurally, both situations lead to discontinuance, whether consensual or unilateral, and the Rules of Court endorse this idea by devoting a chapter of the section governing incidental proceedings to these two different forms of discontinuance, namely, discontinuance by agreement between the parties (Article 88) and discontinuance at the initiative of the applicant (Article 89). Chapter 9 will concentrate on the termination of proceedings by means of summary dismissal and by discontinuance. The decisions of the Court, which in the large majority of cases represent the final destination in the litigation process, will be examined in detail in Chapter 10.

Chapter 9

Modes of Termination a)

Summary Dismissal

Although the Statute and the Rules are silent on the matter, it appears to be established that the Court has the power to dismiss a case in limine litis, that is, at an early stage of the proceedings, adopting an order in which it directs the case to be removed from the General List.1 A decision to dismiss a case in limine litis means a decision that is taken “[w]ithout further entering into the examination of the question whether the Court has jurisdiction under the circumstances.”2 As such, it covers a decision to dismiss taken at the provisional measures phase, when questions of jurisdiction or admissibility have not yet been argued in full by the parties, nor have they been examined by the Court in a definite manner. Apart from several “phony” cases in which there never was jurisdiction—to be discussed below—a first instance of summary dismissal before the present Court may have been the Nuclear Tests cases, in which the respondent, while not appearing before the Court, nonetheless requested the latter to summarily dismiss the cases on the basis of manifest lack of jurisdiction. The Court found that what it called “the procedure of summary removal from the list” would simply not be appropriate in the circumstances of these cases.3 1  Removal from the General List also occurs when the proceedings terminate for any other reason. In the case of discontinuance, for instance, the Court issues an order putting the termination on record and directing the removal of the case from the List. In the case of either a final decision by the Court or an inhibitory decision on jurisdiction or admissibility this will not be mentioned in the judgment, but all the same the case will be removed from the List automatically as of the moment the decision is rendered. 2  Kosovo (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 293, para. 30. 3  Nuclear Tests (Australia v. France) and (New Zealand v. France), Judgments of 20 Dec. 1974, ICJ Rep. 1974, p. 257, para. 14 and p. 461, para. 14. The summary dismissal of the case and its removal from the List was also sought by the respondent in five other cases, in all of them at the provisional measures phase (Aegean Sea, Interim Protection, Order of 11 Sep. 1976, ICJ Rep. 1976, p. 13, para. 46; Nicaragua, Provisional Measures, Order of 10 May 1984, ICJ Rep. 1984, p. 178, para. 21; Arrest Warrant, Provisional Measures, Order of 8 Dec. 2000, p. 202, para. 78; Armed Activities (DRC v. Rwanda), Provisional Measures, Order of 10 July 2002, p. 250, para. 94), and Request for Interpretation-Avena, Provisional Measures, Order of 16 July 2008, ICJ Rep. 2008,

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Subsequently, in the Kosovo cases the Court expressly reaffirmed that such a procedure was available to it: The question has been raised whether there is a procedure open to the Court itself, whereby the Court has ex officio the power to put an end to a case whenever it sees that this is necessary from the viewpoint of the proper administration of justice. Although the Rules of Court do not provide for such a procedure, there is no doubt that in certain circumstances the Court may of its own motion put an end to proceedings in a case. (Kosovo (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 294, para. 32)

The Court also recalled that this power had been exercised in the past in two types of situations, namely, when forum prorogatum was invoked as the sole basis for the Court’s jurisdiction and when the Court made a finding of manifest lack of jurisdiction. In the first group of cases, the situation revolves around what is called in this work “unilateral arraignment,” as discussed more fully in the context of the doctrine of forum prorogatum.4 They are cases submitted to adjudication prior to the 1978 reform of the Rules and the introduction of the new paragraph 5 in Article 38 “in which the application disclosed no subsisting title of jurisdiction, but merely an invitation to the State named as respondent to accept jurisdiction for the purposes of the case.”5 The second group of cases comprises those in which the Court found that it “manifestly lack[ed] jurisdiction,” i.e., cases “[u]pon which it appears certain [that the Court] will not be able to adjudicate on the merits.”6 In eight of the Kosovo litigations, the Court concluded that the cases did not fall into either of these categories and that, for this and other reasons, it could neither remove them from the List, nor make any decision that would put an

p. 326, para. 57). In none of them the Court granted the request. Interestingly, in the first of these cases this decision was not incorporated in the dispositif of the order. 4  See Chapter 2, f ). 5  Kosovo (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 294, para. 32. See also Nicaragua, Provisional Measures, Order of 10 May 1984, ICJ Rep. 1984, p. 178, para. 21 and Aegean Sea, Interim Protection, Order of 11 Sept. 1976, Separate Opinion of Judge Tarazi, ICJ Rep. 1976, p. 32. 6  Kosovo (Serbia and Montenegro v. Spain), Provisional Measures, Order of 2 June 1999, ICJ Rep. 1999, p. 773, para. 35. The concept of manifest lack of jurisdiction is discussed in Chapter 12, c).

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end to them in limine litis.7 The decision left the distinct impression that in the Court’s view those were the only circumstances in which the procedure of dismissal of a case in limine would be available. However, the first of these two categories was abolished outright with the 1978 reform of the Rules. Under Article 38, para. 5 of the Rules in force an application disclosing no valid title of jurisdiction is not longer automatically entered in the General List, and therefore there will be no need for the Court to take action in order to remove it from that List. In these circumstances, one may wonder whether a case of “manifest lack of jurisdiction” is the only extant situation in which the Court is actually empowered to summarily remove a case from its General List. At least two members of the bench that dealt with Kosovo did not believe this to be the case, positing instead that the Court always possesses an “inherent power” to strike a case off of the list, and that this may be an instrument of sound judicial policy.8 Judge Higgins, for instance, remarked: The precedents on removal from the List cited by the Court—where from the outset no subsisting title of jurisdiction has been disclosed, or where the Court manifestly lacked jurisdiction—do not constitute two exclusive categories within which the Court has to fall if it wishes to exercise its inherent powers in the absence of discontinuance. (. . .) [t]he real question is not whether the Applicant has or has not “discontinued” the case, nor whether the present circumstances are exactly identical to the few examples where the Court itself has removed a case from the List (examples which will, in their turn, have been “new” at the relevant time and not falling into any previously established category). The question is

7  Kosovo (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, pp. 297–298, para. 44. Ibid., Kosovo (Serbia and Montenegro v. Canada), ICJ Rep. 2004, p. 447, para. 43; Kosovo (Serbia and Montenegro v. France), ICJ Rep. 2004, p. 593, para. 43; Kosovo (Serbia and Montenegro v. Germany), ICJ Rep. 2004, p. 738, para. 42; Kosovo (Serbia and Montenegro v. Italy), ICJ Rep. 2004, p. 884, para. 43; Kosovo (Serbia and Montenegro v. Netherlands), ICJ Rep. 2004, p. 1029, para. 43; Kosovo (Serbia and Montenegro v. Portugal), ICJ Rep. 2004, p. 1178, para. 43; Kosovo (Serbia and Montenegro v. United Kingdom), ICJ Rep. 2004, p. 1325, para. 42. 8  For the concept of “inherent powers” see P. Gaeta, “Inherent Powers of International Courts and Tribunals”, in L.C. Vohrah et al. (Eds.), Man’s Inhumanity to Man, Essays on International Law in Honour of Antonio Cassese (2003), pp. 353–372; Ch. Brown, “The Inherent Powers of International Courts and Tribunals”, BYIL, vol. 76 (2005), pp. 195–244 and, by the same author, A Common Law of International Adjudication (2007), pp. 55–82.

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whether the circumstances are such that it is reasonable, necessary and appropriate for the Court to strike the case off the List as an exercise of inherent power to protect the integrity of the judicial process. I believe the answer is in the affirmative. (Kosovo (Serbia and Montenegro v. Belgium), Preliminary Objections Separate Opinion of Judge Higgins, ICJ Rep. 2004, pp. 338–339, paras. 9, 12)9

And judge Kooijmans, for his part, stated: The fact that the Rules only speak of removing a case from the List by unilateral action of the applicant (Art. 89) or joint action by the parties (Art. 88) cannot deprive the Court of its inherent power, as master of its own procedure, to strike proprio motu a case from the List. This is also recognized by Rosenne who, in this respect, refers to the general powers of the Court under Articles 36 and 48 of the Statute (. . .). This power is not related to the intention of the parties but to the judicial task of the Court. This is borne out by the Court’s reasoning in the Orders in the cases brought by the Federal Republic of Yugoslavia against Spain and the United States of America (. . .). Such power has to be used sparingly and only as an instrument of judicial policy to safeguard the integrity of the Court’s procedure. (Kosovo (Serbia and Montenegro v. Belgium), Preliminary Objections, Separate Opinion of Judge Kooijmans, ICJ Rep. 2004, pp. 349–350, para. 22)

It is hard to disagree with these views, for it is always possible to envisage different situations in which the Court could come to the conclusion that it is “reasonable, necessary and appropriate” that certain proceedings are terminated and that the case in question must be removed from the General List. An example may be the Nuclear Tests (Request for Examination) case, in which the application was entered into the Court’s General List only to be later removed from it for reasons that were not really connected with jurisdiction, admissibility or propriety.10 The Court itself, in the Arrest Warrant case, emphatically rec9   Judge Higgins also recalled that in the Nuclear Tests cases the judges who jointly dissented did not challenge the existence of such inherent power but merely asserted that its use “must be considered as highly exceptional and a step to be taken only when the most cogent considerations of judicial propriety so require” (ICJ Rep. 2004, p. 339, para. 11). 10  The episode is described in Box 5–10. The classic example of a case terminated by the Court for reasons of propriety is Northern Cameroons (Preliminary Objections, Judgment of 2 Dec. 1963, ICJ Rep. 1963, p. 15). In the Nuclear Tests cases the Court remarked that in

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ognized that “[m]ootness of the Application is one of the grounds which may lead the Court to remove a case from its List without further consideration.”11 Lastly, while it is true that this power should be used sparingly and only when the Court “sees that this is necessary from the viewpoint of the proper administration of justice,” it appears to be established that the relevant action can always be taken by the Court in exercise of its general powers under Article 48 of the Statute. b) Discontinuance Discontinuance (“désistement”)—which is listed in the Rules of Court as a form of incidental proceedings, although it clearly is not—is a procedural device used when the parties to a case decide to terminate the proceedings prior to the Court issuing a final decision disposing of the matter submitted to adjudication. As it is essentially a party action, discontinuance as such cannot take place in advisory proceedings, in which, by definition, there are no parties. The closest to this would be the withdrawal of the request by the requesting body, followed by the removal of the case from the List. This situation has occurred only once in the history of both courts, in which, significantly, no order was made recording the withdrawal.12 Discontinuance has been called an “abandonment of proceedings” or a “voluntary cessation of proceedings”13 and equates to what the Court has aptly described as the “withdrawal (. . .) of the dispute from the Court’s purview.”14 A different situation is that of the partial withdrawal of an application, i.e. when the applicant State simply withdraws one or more of the claims included

that case the failure by the applicants to discontinue the proceedings did not prevent the Court “[f]rom making its own independent finding on the subject” ( Judgments of 20 Dec. 1974, ICJ Rep. 1974, p. 270, para. 54 and p. 476, para. 57). 11  Provisional Measures, Order of 8 Dec. 2000, ICJ Rep. 2000, p. 197, para. 55. 12  Expulsion of the Oecumenical Patriarch, PCIJ C 9/2, p. 10. For a discussion see I. Scobbie, “Discontinuance in the International Court: the Enigma of the Nuclear Tests Cases”, ICLQ, vol. 41 (1992), pp. 824–825. 13  G. Wegen, “Discontinuance of International Proceedings: The Hostages Case,” AJIL, vol. 76 (1082), p. 718. 14  Kosovo (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 294, para. 32. In the French version the expression used is “soustrait les affaires à son examen”.

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in the original application, in which case the mainline proceedings continue and are not terminated.15 This is an aspect of the work of the Court in which the analogy with municipal systems of procedural law is of very little use, given that those systems differ markedly as to the manner in which they regulate the notion of the termination of proceedings by action of the litigants themselves. As judge ad hoc Armand-Ugon put it in his dissent in the Barcelona Traction case: The Rules have laid down the Court’s own system for discontinuance and this is independent of the systems of municipal law, which can neither supplement nor interpret the system of the Rules. (Barcelona Traction, Preliminary Objections, Dissenting Opinion of Judge ArmandUgon, ICJ Rep. 1964, p. 120)16

From the outset, it must be stressed that the decision to discontinue may stem from a variety of reasons, only one of which is the conclusion of an agreement to settle the dispute that is before the Court. An amicable settlement of the dispute that is reached out of court is a common cause for discontinuance but this is by no means the only circumstance that may prompt two States engaged in litigation to decide that they will not continue with the proceedings, or—in cases submitted by application—to induce the applicant State to withdraw the suit. In fact, in the latter situation the withdrawal of a given claim may very well be a pre-requisite to an overall friendly settlement and not the other way around. In a case like this, the general principle that “[t]he judicial settlement of international disputes is simply an alternative to the direct and friendly settlement of such disputes”—as espoused by the Permanent Court in the Free Zones case—17 is overriding and directs that everything should be done to facilitate such a settlement.18 A good example is the Corfu Channel case, in 15  For an example see PCIJ E 6, pp. 289–290. 16  In this section of his opinion, judge Armand-Ugon was discussing the distinction between the “discontinuance of the action” (“désistement d’action”) and the “discontinuance of the proceedings” (“désistement d’instance”), said to exist in the municipal law of certain States. This distinction played a major role in Belgium’s argument rejecting Spain’s first preliminary objections, but the Court refused to incorporate it in its practice (Rosenne’s Law and Practice, vol. 3, pp. 1473–1474). The objection was eventually rejected by the Court on a different basis. 17  Free Zones, Order of 19 August 1929, PCIJ A 22, p. 13. 18  Thirlway’s Law and Procedure, Part 13, BYIL, vol. 74 (2003), p. 102.

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which, after having ruled on the merits of the case, the Court made an order fixing time-limits for the deposit of pleadings concerning the amount of compensation owed by one party to the other and stated in the operative part that this was done “subject to the right of the Parties to avail themselves of Article 68 [current Article 89] of the Rules of Court.”19 When there is agreement between the parties, a basic distinction must be made between an agreement as to the settlement of the dispute and an agreement as to the discontinuance of the proceedings before the Court. The first is an arrangement of a substantive nature and concerns the dispute that was brought for adjudication by the Court. The second is adjectival and refers exclusively to the proceedings before the Court, as distinct from the merits of the dispute that gave origin to them. When two States parties to an ongoing case reach an agreement of the first type, it is unavoidable that they agree also on discontinuing the proceedings, the maintenance of which no longer makes sense for any of those involved. To that extent, it can even be said that an agreement to settle the dispute by bilateral means presupposes and embodies an agreement to discontinue the judicial proceedings concerning that dispute. In addition, the parties may well agree to discontinue the proceedings for reasons not connected with a settlement of the dispute, and in this event the dispute will remain in existence even after the proceedings before the Court are terminated. In other words, while there might be an extant dispute after the parties have decided to terminate the case, there cannot be an ongoing case if the dispute is solved by other means. Another general aspect worthy of clarification is that an agreement as to the discontinuance of the proceedings does not necessarily imply common action in that direction. After such an agreement is reached—with or without the intervention of the Court—one of two things may occur, depending on how the case was submitted. If the case was submitted by special agreement any of the parties is entitled to individually notify the Court of the joint decision not to proceed with the case. If the case was submitted by application, the applicant may simply provide the Court with a notice of discontinuation. In both cases, the role of the Court is purely “ministerial,”20 for, as the Court put it in the Barcelona Traction case,

19  Corfu Channel, Order of 9 April 1949, ICJ Rep. 1949, p. 171. 20  The expression, widely employed now, appears to have been originally used by Wegen, “Discontinuance . . .”, p. 725.

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The role of the Court, there being no objection to the discontinuance, is simply to record [the discontinuance] and to remove the case from its list. In connection with the discontinuance itself, the Court is not called upon to enquire into the motives either of the discontinuing or of the respondent party. (Barcelona Traction, Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964, p. 20)21

The regime embodied in Articles 88 and 89 of the current Rules of Court must be understood in light of the propositions stated above. To begin, Article 88 is focused on the procedural aspects of an agreed discontinuance and therefore places emphasis on the agreement of the second group, i.e. the common will to discontinue the proceedings. In fact, the main subject of both paragraph 1 and paragraph 2 of that Article is the agreement as to the discontinuance of the proceedings and the agreement as to the settlement of the dispute is only mentioned in paragraph 2 in a manner that is definitively accessory, almost cavalier. Indeed, what is determinant under both paragraph 1 and paragraph 2 of this provision is that the parties “have agreed to discontinue the proceedings.” The fact that they might have done so “in consequence of having reached a settlement of the dispute,” as provided in paragraph 2, is entirely circumstantial. These paragraphs definitively place the agreement to settle the dispute in a secondary plane and, as it were, only as the background for the agreement to discontinue the case (and as for the latter, this does not even occur in every instance). As for Article 89, it refers to discontinuance of the proceedings by initiative of the applicant (the withdrawal of the application) and contemplates two modalities of discontinuance, depending on whether the respondent has or has not yet taken “a step in the proceedings” at the time that the Registry receives the notice of discontinuance. In sum, three template situations regarding the discontinuance of proceedings are foreseen in the Rules of Court, namely: i)

Regardless of the form of institution of proceedings, the parties agree to discontinue them and notify the Court accordingly (whether jointly or separately). The Court puts the discontinuance on record (Article 88).

21  Reaffirmed in Kosovo (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 294, para. 32. The PCIJ had said as much in connection with the Losinger case, when it stated that, since no doubt arose as to the intention of the parties to terminate the proceedings, “the removal of the case from the list was more in the nature of an administrative formality than a decision” (PCIJ E 13, p. 154).

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ii)

In cases submitted by application only, the respondent has not yet taken any step in the proceedings and the applicant informs the Court that it intends to discontinue the proceedings. The Court puts the discontinuance on record and notifies the respondent (Article 89, para. 1). iii) In cases submitted by application only, the applicant informs the Court that it intends to discontinue the proceedings and at the date of receipt of this communication the respondent has already taken some step in the proceedings. Prior to putting the discontinuance on record the consent of the respondent must be sought and obtained, albeit not necessarily in an express manner (Article 89, para. 2). 1) Evolution of the Rules Because the discontinuance of proceedings is not mentioned in the Statute, it is a procedural facility that is and always has been governed in its entirety by the Rules of Court and by the interpretation of them contained in the pertinent decisions by the Court, which in this case are mostly orders. For the same reason, some space will be devoted in this section to examine the evolution of the Rules of Court in this regard. In addition, the Rules, by their very nature, can only deal with the procedural aspects of discontinuance, and consequently say nothing about the nature of discontinuance or its effects upon the legal position of the parties in the dispute.22 Nothing exemplifies better the direction that the evolution of the applicable provisions has taken than the successive changes in the title of the pertinent section of the Rules of Court. While in the original 1922 Rules this section was composed of one single provision and it was called “Agreement,” in the 1936/1946/1972 Rules it had grown in order to include two separate provisions and had come to be called “Settlement and discontinuance,” only to end up as “Discontinuance” in the 1978 Rules. The emphasis is now put clearly on the will of the parties to discontinue the proceedings before the Court—which in most cases will manifest itself in a (procedural) agreement to that end—rather than on the actual settlement of the dispute that gave rise to the proceedings in the first place.23

22  This is a point stressed by judge Bustamante in his separate opinion in the Barcelona Traction case (Preliminary Objections, ICJ Rep. 1964, p. 78). 23  For a comment on the import of the heading of this section of the Rules see the declaration by judge Koretsky in the Barcelona Traction case (Preliminary Objections, ICJ Rep. 1964, pp. 48–49).

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The Rules of 192224 Under the heading “Agreement”, the relevant provision of the 1922 Rules read as follows: Article 61 If the parties conclude an agreement regarding the settlement of the dispute and give written notice of such agreement to the Court before the close of the proceedings, the Court shall officially record the conclusion of the agreement. Should the parties by mutual agreement notify the Court in writing that they intend to break off proceedings, the Court shall officially record the fact and proceedings shall be terminated. As it is observed, this article only covered the discontinuance that came about as a result of an agreement between the parties and made no provision for unilateral action to discontinue the proceedings.25 As it happens, the two paragraphs of the article referred to two different types of agreements, the first to a (substantive) “agreement regarding the settlement of the dispute,” and the second to a (procedural) agreement merely “to break off proceedings.” Interestingly, only the latter led to the Court officially putting on record the fact of the discontinuance and terminating the proceedings. What the Court was to put on record under the first paragraph was not so much the discontinuance of the proceedings but “the conclusion of the agreement” itself, probably implying that the termination of the proceedings could be taken for granted once the conditions stipulated in the first sentence obtained. These conditions, in turn, were two, namely: (one) That the parties concluded an agreement settling the dispute; and (two) That they gave written notice of such agreement to the Court before the close of the proceedings. Although these provisions were discussed at length in 1926, in the context of the first revision of the 1922 Rules, the Court eventually decided to introduce no changes. The discussion was inconclusive and centered mainly on the controversial notion of “judgment by consent” (“jugement d’accord”) and

24  For the record of the discussions see PCIJ D 2, pp. 83–84. 25  The point was made by the Registrar in its 1933 Report on the practice under the 1931 Rules (PCIJ, D 2, Add. 3, pp. 829–830).

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the possibility of expressly introducing it in the section of the Rules concerning the termination of proceedings.26 The Rules of 1936/1946/197227 In the revision of 1936 (maintained virtually without changes in 1946 and 1972) the heading of this section became “Settlement and discontinuance” and Article 61 was replaced by two separate articles which read as follows: Article 68/73 If at any time before judgment has been delivered, the parties conclude and agreement as to the settlement of the dispute and so inform the Court in writing, or by mutual agreement inform the Court in writing that they are not going on with the proceedings, the Court will make an order officially recording the conclusion of the settlement or the discontinuance of the proceedings; in either case the order will prescribe the removal of the case from the list. Article 69/74 1. If in the course of proceedings instituted by means of an application the applicant informs the Court in writing that it is not going on with the proceedings, and if, at the date on which this communication is received by the Registry, the respondent has not yet taken any step in the proceedings, the Court will make an order officially recording the discontinuance of the proceedings and directing the removal of the case from the list. A copy of this order shall be sent by the Registrar to the respondent. 2. If, at the time when the notice of discontinuance is received, the respondent has already taken some step in the proceedings, the Court, or the President if the Court is not sitting, shall fix a time-limit within which the respondent must state whether it opposes the discontinuance of the proceedings. If no objection is made to the discontinuance before the expiration of the time-limit,

26  PCIJ D 2, Add., pp. 167–171. For a discussion on the problematic concept of “jugement d’accord” see Scobbie, “Discontinuance . . .”, pp. 819–820. See also Rosenne’s Law and Practice, vol. 3, p. 1471; Guyomar’s Commentaire, pp. 563–564, 566. 27  For the record of the discussions of 1936 see PCIJ D 2, Add. 3, pp. 313–319.

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a­ cquiescence will be presumed and the Court will make an order officially recording the discontinuance of the proceedings and directing the removal of the case from the list. If objection is made, the proceedings shall continue.28 The main innovation introduced in 1936 was of course the addition, as Article 69, of one new provision dealing with the discontinuance by means of unilateral action, in cases submitted by application in which the claimant State wished to put an end to the proceedings, a matter on which the original Rules clearly had a lacunae.29 In the early practice of the Court it was registered that in the absence of an agreement the termination of the proceedings was brought about by a combination of two circumstances, namely the withdrawal of the suit by the applicant and the acquiescence of the respondent.30 This rule foresaw since its inception two different regimes, depending on whether the respondent State had already taken any “step in the proceedings.”31 If this were the case, consent by the respondent became a requirement for the success of the applicant’s action on discontinuance. If not, the withdrawal of the claim by the applicant was immediately recorded and the case was removed from the List. Under the first scenario, interestingly, paragraph 2 empowered the President, if the Court was not sitting, to fix the time-limit for the reaction by the respondent, but he was not so authorized to make the final order concerning the termination of the case. This was corrected in 1946 and preserved in 1972 and 1978.32 As for the action to be taken by the Court, both paragraphs anticipate that the respective order was to embody two decisions, namely: (one) A decision “officially recording the discontinuance of the proceedings;” and (two) A decision directing the removal of the case from the list. This feature has also been preserved in the subsequent versions of the Rules.

28  The only change of note introduced in 1946 was the addition of a sentence in both articles to the effect that the functions of the Court under these provisions could be performed by the President, if the Court was not sitting. To a certain extent that had been foreseen in Article 69, para. 2 of the 1936 Rules. 29  Guyomar’s Commentaire, p. 572. 30  See PCIJ E 10, p. 155. 31  In its 1933 Report the Registrar mentioned that the Court had recognized that these two situations had to be handled differently (PCIJ D2 Add. 3, p. 829). 32  The change was introduced in order to correct the inconveniences produced by the fact that the PCIJ Rules required that the decisions concerning discontinuance were taken by the full Court. See Guyomar’s Commentaire, p. 568.

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The article dealing with discontinuance as a result of agreement by the parties (Article 61 in 1922 and Article 68 in 1936) remained essentially the same (maintaining, for example, the mention to two different types of agreements), although it underwent substantial rearrangements. In the new version, it was left clear that the order to be made by the Court was aimed at officially recording, either “the conclusion of the settlement” or “the discontinuance of the proceedings,” as the case may be, and that, in both cases, the same order should “prescribe the removal of the case from the list.” The time period within which this type of discontinuance could take place was also extended from “before the close of the proceedings” to “at any time before judgment has been delivered.”33 In the Barcelona Traction case, the Court had the opportunity to make some general remarks on the import and role of Articles 68 and 69 of the 1946 Rules. As they remain pertinent today, it is worth quoting in full the corresponding passages of the decision: Both the inherent character of these provisions and their drafting records show that the main object which they have in view is to provide a procedural facility, or rather—since it would in any event never be practicable to compel a claimant State to continue prosecuting its case—to reduce the process of discontinuance to order. But these provisions are concerned solely with the “how”, not with the “why”, of the matter. They impose no conditions as to the basis on which a discontinuance may be effected other than (in cases coming under Article 68) that the parties shall be in agreement about it, or (in those coming under Article 69, paragraph 2) that the respondent party has no objection; for it is clear that there are few limits to the motives that might inspire a discontinuance, and these two Articles are not concerned with that aspect of the matter. One difference between the two provisions is, however, significant. Whereas Article 68 contemplates a discontinuance which not only is (in effect) an agreed one, but also takes the form of an agreed communication to the Court, Article 69 on the other hand contemplates a notification to the Court which, whether it results from an agreed settlement of the dispute or from some other cause, always takes the form of a unilateral communication from the applicant or claimant party (. . .)

33  Bustamante argued that this temporal limitation was out of place, for the parties can arrive at a solution themselves even after the judgment is rendered “whether the Court was willing or not” (Bustamante’s World Court, pp. 231–232).

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Thus, whereas in cases coming under Article 68 the act of discontinuance is to all intents and purposes a joint act, in those coming under Article 69 it is an essentially unilateral act, whatever may underlie it, and even though acquiescence is necessary before it can actually take effect. Under Article 69, any notifications, whether of intention to discontinue, or in acceptance of discontinuance, are notifications made to the Court and not passing between the parties, so that any understandings between them (and such may certainly exist) must precede and be sought for outside the act of discontinuance itself. (Barcelona Traction, Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964, pp. 19–20)34

The Rules of 1978 Finally, the 1978 revision maintained the same structure for this section, changing its heading to “Discontinuance.” It also introduced significant changes in the two provisions of which it was comprised. They read as follows: Article 88 1. If at any time before the final judgment on the merits has been delivered the parties, either jointly or separately, notify the Court in writing that they have agreed to discontinue the proceedings, the Court shall make an order recording the discontinuance and directing that the case be removed from the list. 2. If the parties have agreed to discontinue the proceedings in consequence of having reached a settlement of the dispute and if they so desire, the Court may record this fact in the order for the removal of the case from the list, or indicate in, or annex to, the order, the terms of the settlement. 3. If the Court is not sitting, any order under this Article may be made by the President. Article 89 1. If in the course of proceedings instituted by means of an application, the applicant informs the Court in writing that it is not going

34  In the same case judge Koretsky made the interesting observation that the role of the Court under Article 68 of the 1946 Rules was not identical to that under Article 69 (Preliminary Objections, Declaration of Judge Koretsky, ICJ Rep. 1964, p. 48).

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on with the proceedings, and if, at the date on which this communication is received by the Registry, the respondent has not yet taken any step in the proceedings, the Court shall make an order officially recording the discontinuance of the proceedings and directing the removal of the case from the list.  A copy of this order shall be sent by the Registrar to the respondent. 2. If, at the time when the notice of discontinuance is received, the respondent has already taken some step in the proceedings, the Court shall fix a time-limit within which the respondent may state whether it opposes the discontinuance of the proceedings. If no objection is made to the discontinuance before the expiration of the time-limit, acquiescence will be presumed and the Court shall make an order officially recording the discontinuance of the proceedings and directing the removal of the case from the list. If objection is made, the proceedings shall continue.  3. If the Court is not sitting, its powers under this Article may be exercised by the President. The main changes with regard to the pertinent provisions in the 1972 Rules are the following: a)

Article 88 (Article 73 of the 1972 Rules) – The new provision has three numbered paragraphs. Paragraph 1 covers the case of an agreement to discontinue pure and simple and paragraph 2 refers to the situation in which this agreement is made as a consequence of an agreement to settle the dispute (note that the order of these two scenarios was reversed with regard to the order in which they were mentioned in Article 73 of the 1972 Rules). Paragraph 3 applies to both situations and concerns the powers of the President if the Court is not sitting. In balance, this provision radically modifies the scope of Article 68/73 of the 1946/1972 Rules, by effectively abolishing the distinction, for procedural purposes, between an agreement as to the settlement of the dispute and an agreement as to the discontinuance of proceedings.35

35  Scholarly commentary is unanimous on this appreciation. See Wegen, “Discontinuance . . .”, p. 724 and the sources mentioned thereof. Even in studies that appeared long before the reform, it had been remarked that the distinction present in Article 61 of the 1922 Rules had a very limited significance in practice (Scerni’s La Procédure, p. 660).

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– In paragraph 1, the expression “at any time before the final judgment on the merits has been delivered” replaced “at any time before judgment has been delivered.” The implications of this change are not clear as it would appear to suggest that the procedure of discontinuance is now reserved exclusively for proceedings on the merits, but this would clearly go against the Court’s practice.36 – Also, in paragraph 1 it is now clear that the notification by the parties to the Court can be made “either jointly or separately.” Article 73 of the 1972 Rules only provided that all the notifications to the Court would have to be made in writing by the parties and was silent as to an eventual separate action to that effect. The idea behind this is that if the parties agree to terminate the proceedings before the decision is rendered, any of them is entitled to notify the Court of this fact and no new agreement is necessary for that purpose.37 – The order that the Court is to make under either paragraph of Article 88 will record the fact that the parties agreed to discontinue the proceedings. As explained above, in the 1972 version this was bound to happen only in the case of an agreement to discontinue, as in the other scenario the main purpose of the order was to record “the conclusion of the settlement.” However, the practice of the Court concerning the wording of the operative part of its orders on discontinuance has not been uniform.38 – According to the new rule in paragraph 2—which, notably, will only be applied if the parties “so desire”—the Court may also “indicate in, or annex to, the order, the terms for settlement.” This is entirely new and apparently implies that if the parties do not “so desire,” paragraph 1 of the same Article will be applicable by default and any of them can set the procedure in motion by means of a notification under that provision. Note also that the parties may be in agreement not to disclose the fact that the discontinuance is a consequence of a settlement, much less the terms of this settlement.39 36  See b, 4) below. 37  Practice on this question under the new Article 88 heavily inclines towards favoring joint notification (Aerial Incident (Iran v. USA); Phosphates in Nauru; Lockerbie (Lybia v. USA) and Lockerbie (Lybia v. UK). The only case so far in which there has been a separate notification of an agreement is US Hostages. Involving a situation of lack of appearance by the respondent. 38  See Box # 9-1. 39  See, for instance, in the context of the US Hostages case, the contention of the United States with regard to the Algiers Agreement, in Box # 9-3.

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Article 89 (Article 74 of the 1927 Rules) – The new Article 89 also has three paragraphs, the first and the second following almost word for word paragraphs 1 and 2 of Article 74 of the previous Rules, and paragraph 3 referring to the powers of the President if the Court is not sitting. Interestingly, the formula used here is couched in wider terms than in paragraph 3 of Article 88, which only makes mention to the making of orders under that provision. – The only change calling for an observation is the substitution in paragraph 2 of the verb “may” for “must,” concerning the reaction of the respondent that must be sought and obtained. It is a modification to be welcomed, because, as pointed out by the Court in Barcelona Traction, that State is not obliged to “signify expressly its non-objection” and it might simply remain silent, in which case its “acquiescence will be presumed,” as the following sentence solemnly provides.40

2) Discontinuance by Agreement The procedural aspects of discontinuance as a result of mutual agreement are laid down summarily in Article 88 of the Rules. The general rule under paragraph 1 of this provision is that the parties are entitled to notify the Court—either jointly or separately, but always in writing—that they have agreed to discontinue the proceedings. This notification can be made “at any time before the final judgment on the merits has been delivered” and upon receipt of it the Court, or the President, if the Court is not sitting, makes an order whose purpose is twofold: on the one hand, it records the discontinuance, and on the other it directs that the case should be removed from the General List.

Box # 9-1 Discontinuance by agreement: Practice In the PCIJ there were instances of discontinuance in the following cases (in most of them the discontinuance took place before the 1936 revision to the Rules, in which the notion of unilateral discontinuance was introduced): – Sino-Belgian Treaty (1929); – Factory at Chorzów (1929); – South-Eastern Greenland (1933);

40  Barcelona Traction, Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964, p. 20.

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– Appeals from Judgments of the Hungaro/Czechoslovak Tribunal (1933); – Prince von Pleiss (1933); – Polish Agrarian Reform (1933); – Delimitation between Castellorizo and Anatolia (1933); – Losinger (1936); and, – Borchgrave (1938). Two more cases were discontinued de facto, owing to the outbreak of World War II: Electricity Company (1939) and Gerliczy (1939).41 Before the present Court the following cases have been terminated by discontinuance following agreement between the parties:

• Compagnie de Beyrouth (Order of 31 August 1960: ICJ Rep. 1960, p. 186) • US Hostages-Reparations (Order of 12 May 1981, ICJ Rep. 1981, p. 45) • Phosphates in Nauru (Order of 13 Sept. 1993, ICJ Rep. 1993, p. 322) • Aerial Incident (Iran v. USA)(Order of 22 Feb. 1996, ICJ Rep. 1996, p. 9) • Lockerbie (Lybia v. UK)(Order of 10 Sept. 2003, ICJ Rep. 2003, p. 149) • Lockerbie (Lybia v. USA)(Order of 10 Sept. 2003, ICJ Rep. 2003, p. 152) In all of these cases the order registering the discontinuance of the proceedings and directing the removal of the case from the General List was made under Article 88 of the Rules (or its equivalent, namely, Article 68 of the 1946 Rules).42 In the cases in this group decided under the 1978 Rules the wording of the dispositif of the order is absolutely clear, either by stating that the discontinuance is placed on record “following upon an agreement between the Parties” (US Hostages) or “by agreement of the Parties” (Aerial Incident (Iran v. USA); Lockerbie). The previous practice was more equivocal, possibly under the influence of the formula used in the operative part of the order in Compagnie de Beyrouth, according to which the Court did not place on record the discontinuance but merely “the communications thus received from the Parties to the case.” This language was also used in at least two contemporary cases in which the order on discontinuance was not made under Article 68, but rather under Article 69 of the 1946 Rules (Aerial Incident (USA v. Bulgaria) and Barcelona Traction I). By contrast, in all cases discontinued earlier, under Article 69 of the 1946 Rules,

41  For narratives see Guyomar’s Commentaire, pp. 564–565, 671–572. 42  But note that the US Hostages case may present problems of classification. See Box # 9-3.

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the operative part of the order placed on record the discontinuance of the proceedings by the applicant (French Nationals in Egypt, Electricité de Beyrouth and Aerial Incident (UK v. Bulgaria)).

A special rule applies when the agreement to discontinue the proceedings stems from the fact that the parties have reached a settlement of the dispute, that is, when an extra-judicial or out-of-court arrangement has been achieved. In this event, paragraph 2 of Article 88 provides that the parties may, if they so desire, request the Court to take judicial notice of this fact and either record it in the above mentioned order, or indicate the terms of the settlement in the body of the order or in an annex.43 It has been stated that this provision implies that the Court might take into account, in the case of agreement, of the distinction mentioned above between désistement d’instance and désistement d’action, inasmuch as under the rule in Article 88, para. 2 “[t]he normal désistement is thus of the proceedings only (d’instance), and the recording of a désistement d’action is merely an option available to the parties.”44 3) Discontinuance at the Initiative of the Applicant This situation obtains in cases in which “[t]he claimant State has had reasons, which appeared to it to be of a final character, for not continuing to attempt to prosecute its claim before the Court.”45 In such situations, it is common to talk about the “withdrawal of a claim,” although in ordinary cases it would be more precise to refer to the withdrawal of the application. However, if the termination occurs when the case has reached the reparations phase what is withdrawn is the claim for reparation—which may or may not have been mentioned in the original application. For this reason, the expression “withdrawal of the claim” is more precise and will be used throughout.46

43  There is no practice on this. The closest case has been US Hostages, in which the agreement for the settlement of the dispute was tangentially mentioned in the order on discontinuance. For details see Box 9–4. 44  Thirlway’s Law and Procedure, Part. 13, BYIL, vol. 74 (2003), pp. 106–107. 45  Barcelona Traction, Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964, p. 18. 46  At the time of the PCIJ the expression favored by the Court was the catch-all formula “withdrawal of the suit.”

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The governing provision for unilateral discontinuance is Article 89, which, as it was mentioned, contemplates two different situations, both referring to cases submitted by application. The first is covered by paragraph 1 and refers to cases in which the notice of discontinuance is given by the applicant at a very early stage in the proceedings, at a moment when “the respondent has not yet taken any step in the proceedings.” In these cases the discontinuance is effective immediately and the Court, or its President, if the former is not sitting, simply makes an order putting it on record and directing the removal of the case from the General List.47 Provision is also made for sending a copy of the order to the respondent. The second situation is covered in paragraph 2 of Article 89 and occurs if “[t]he respondent has already taken some step in the proceedings” at the time at which the notice of discontinuance is received in the Registry. In a case like this, the respondent party is held to have a direct interest in the outcome of the proceedings and is therefore asked to state “[w]hether it opposes the discontinuance of the proceedings” and the Court, or the President, if the Court is not sitting, is bound to fix a time-limit for that purpose.48 However, it appears that this would not be necessary if the respondent itself is the party that brings to the Court’s notice the imminent discontinuance of the proceedings.49 In the Guinea-Bissau v. Senegal case, in which the respondent had clearly taken steps in the proceedings, the procedure laid down in Article 89, para. 2 was not followed, since the request for discontinuance was made jointly—albeit verbally—at a meeting of the President of the Court with the agents of the parties. At the request of the former, both parties confirmed this in writing and the Court followed suit making the order on discontinuance.50 If the time-limit expires and no reply has been received from the respondent, it will be presumed that there is no objection (the Rules employ the rather formal expression “acquiescence will be presumed”) and the Court must proceed as in a case covered by paragraph 1. If the respondent objects, the

47  For examples see Status of Diplomatic Envoy (Order of 9 June 2006, ICJ Rep. 2006, p. 108); Diplomatic Relations (Order of 12 May 2010, ICJ Rep. 2010, p. 304). 48  Sir M. Wood, “International Courts and Tribunals, Discontinuance of Cases”, in Max Planck EPIL, MN 15. 49  This, in accordance with the Electricité de Beyrouth precedent (Order of 29 July 1954, ICJ Rep. 1954, p. 108). 50  Guinea-Bissau v. Senegal, Discontinuance, Order of 8 Nov. 1995, ICJ Rep. 1995, pp. 425–426.

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discontinuance would not be effective and “[t]he proceedings shall continue,” a situation that has not yet occurred in the Court’s practice.51 The Court has explained in the following manner the rationale for this rule: Article 69 . . . contemplates a notification to the Court which, whether it results from an agreed settlement of the dispute or from some other cause, always takes the form of a unilateral communication from the applicant or claimant party which is either immediately effective, if the case comes under paragraph 1 of Article 6952 (the respondent party having taken no step in the proceedings), or which (if such a step has been taken) becomes effective in the absence of any objections from the respondent party within the time-limit fixed by the Court. The respondent can of course signify expressly its non-objection, but is in no way obliged to do so. (. . .) The right of objection given to a respondent State which has taken a step in the proceedings is protective, to enable it to insist on the case continuing, with a view to bringing about a situation of res judicata; or in other words (. . .), to enable it to ensure that the matter is finally disposed of for good. (Barcelona Traction, Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964, p. 20)

A different take on the rule embodied in Article 89, para. 2 is that this provision contemplates what is in effect an agreement to terminate the proceedings between the applicant and the respondent, so that as to their legal effect there is no real difference between this provision and Article 88.53

Box # 9-2 Discontinuance at the initiative of the applicant: Practice The following cases before the present Court have been terminated by withdrawal of the application or of the claim:

• French Nationals in Egypt (Order of 29 March 1950, ICJ Rep. 1950, p. 59) 51  For an interesting speculation as to what might happen if the respondent opposes the discontinuation see Thirlway’s Law and Procedure, Part 13, BYIL, vol. 74 (2003), pp. 111–112. 52  It corresponds to Article 89 of the current Rules. 53  This was the view taken by judge ad hoc Armand-Ugon in the same case (Barcelona Traction, Dissenting Opinion of Judge Armand Ugon, ICJ Rep. 1964, pp. 117- 118 and 120).

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• US Nationals in Morocco, Preliminary Objections (Order of 31 Oct. 1951, ICJ Rep. 1951, p. 109) • Electricité de Beyrouth (Order of 29 July, 1954, ICJ Rep. 1954, p. 107) • Aerial Incident (UK v. Bulgaria) (Order of 3 August 1959, ICJ Rep. 1959, p. 264) • Aerial Incident (USA v. Bulgaria) (Order of 30 May 1960, ICJ Rep. 1960, p. 146) • Barcelona Traction I (Order of 10 April 1961, ICJ Rep. 1961, p. 9) • Pakistani POW (Order of 15 Dec. 1973, ICJ Rep. 1973, p. 347) • Armed Actions (Nicaragua v. Costa Rica)(Order of 19 August 1987, ICJ Rep. 1987, p. 182) • Nicaragua-Reparations (Order of 26 Sept. 1991, ICJ Rep. 1991, p. 47) • Armed Actions (Nicaragua v. Honduras)(Order of 27 May 1992, ICJ Rep. 1992, p. 222) • Passage through the Great Belt (Order of 10 September 1992, ICJ Rep. 1992, p. 348) • Guinea-Bissau v. Senegal (Order of 8 Nov. 1995, ICJ Rep. 1995, p. 423) • Vienna Convention (Order of 10 Nov. 1998, ICJ Rep. 1998, p. 426) • Armed Activities (DRC v. Burundi)(Order of 30 Jan. 2001, ICJ Rep. 2001, p. 3) • Armed Activities I (DRC v. Rwanda)(Order of 30 Jan. 2001, ICJ Rep. 2001, p. 6) • Status of Diplomatic Envoy (Order of 9 June 2006, ICJ Rep. 2006, p. 107) • Diplomatic Relations (Order of 12 May 2010, ICJ Rep. 2010, p. 303) • Criminal Proceedings (Order of 16 Nov. 2010, ICJ Rep. 2010, p. 635) • Jurisdiction and Enforcement of Judgments (Order of 5 April 2011, ICJ Rep. 2011, p. 341) • Aerial Herbicide Spraying (Ecuador v. Colombia), Order of 13 Sept. 2013. In these 20 cases the order registering the discontinuance of the proceedings and directing the removal of the case from the General List was made under Article 89 of the Rules (or its equivalent provisions, namely Article 69 of the 1946 Rules and Article 74 of the 1972 Rules). Two cases in this group, Guinea-Bissau v. Senegal and Passage Through the Great Belt, are worth mentioning, because in both of them the Court had included in its pertinent decisions what amounted to a virtual invitation for the parties to reach a negotiated settlement, and this, in turn, eventually led to the discontinuance of the proceedings.54

54  Arbitral Award (Guinea-Bissau v. Senegal), Judgment of 12 Nov. 1991, ICJ Rep. 1991, p. 75, para. 68 and Guinea-Bissau v. Senegal, Discontinuance, Order 8 Nov. 1995, ICJ Rep. 1995, p. 424; Passage through the Great Belt, Order of 10 Sept. 1992, ICJ Rep. 1992, p. 348. The role played

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It is generally agreed that, following the stance taken by the Court in the French Nationals in Egypt case, an act like the appointment of an agent constitutes “a step in the proceedings.”55 The origin of this provision can be traced back to the 1933 report by the Registrar on the practice followed under Article 61 of the 1922 Rules. In that document, it was stated that in the discussions on the subject of discontinuance it had been recognized that a case could be withdrawn by a claimant “so long as the defendant has not entered an appearance,” and that if the latter situation obtained and the withdrawal was attempted by one party it could be validly made “provided that it is formally acquiesced in by the other party.” Interestingly, the expression “has not entered an appearance” was rendered in French as “le défendeur n’a pas fait acte de présence.” Likewise, in the article drafted (only in French) by a coordination commission on the basis of this observation, this sentence was replaced by the formula “la partie défenderesse n’a pas encore fait acte de procédure.”56 This has the consequence that, for a discontinuance to be effective under Article 89, para. 1 the necessary notice must be given shortly after the filing of the application instituting proceedings. An interesting situation may arise in a case in which, from the outset, the respondent State fails to appear before the Court and therefore, almost by definition, it has no interest—nor occasion—to take any such “steps in the proceedings.” India took this stance in the Pakistani POW case, for instance, and when the Court faced a notice of discontinuation by Pakistan it recorded that “[w]hile [the Government of India] has addressed certain communications to the Court through its Ambassador in The Hague, [it] has not yet taken any step in the proceedings.”57 It may be observed that the notice of discontinuance in this case was provided when the proceedings were already well advanced and in fact just one day before the expiry of the time-limit fixed by the Court for the deposit of the applicant’s first written pleading. In a regular case, with both parties appearing, a unilateral discontinuance notified this late in the proceedings would have had to be handled under paragraph 2 and not under paragraph 1 of in these processes by the Court, and especially the Court’s President, is highlighted in R. Donner, “Discontinuance of Proceedings in the International Court of Justice: Six Recent Cases”, Finland YIL, vol. 8 (1997), pp. 246–248. 55  Order of 29 March 1950, ICJ Rep. 1950, p. 60. See also Scerni’s La Procédure, p. 663; Mani’s Adjudication, pp. 66–67; Wegen, “Discontinuance . . .”, p. 733; G. Wegen, “Discontinuance and Withdrawal”, in Oxford Commentary, MN 45–46, pp. 1461–1462. 56  PCIJ D 2, Add. 3, pp. 829 and 877. See also the discussion as to the precise meaning of this expression during the 1936 debates (Ibid., pp. 655–656). 57  Pakistani POW, Order of 15 Dec. 1973, ICJ Rep. 1973, p. 348.

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Article 89, because it is simply inconceivable that a case might have advanced this far without one of the parties taking any “step in the proceedings.”

Box # 9-3 The US Hostages case: Discontinuance by agreement or by unilateral act? The US Hostages case presents several interesting features with regard to the manner in which the President of the Court (Waldock) handled the discontinuance of the proceedings instituted by the United States against Iran on 29 November 1979. The basic facts with regard to the termination of the proceedings are as follows: Iran, the respondent party, decided not to appear at any stage of the proceedings, but this did not preclude the Court from rendering two decisions, an order on the indication of provisional measures (15 December 1979) and a judgment on the merits (24 May 1980), this last one made expressly on the basis of Article 53 of the Statute. In this last decision the Court decided that Iran was under an obligation to make reparations to the US and resolved that the form and amount of such reparation, failing agreement between the parties, should be settled by the Court, reserving for this purpose the subsequent procedure in the case ( Judgment of 24 May 1980, ICJ Rep. 1980, p. 45). After a negotiation carried out with the mediation of Algeria, on 19 January 1981 the parties came to certain agreements, one of which referred to the withdrawal by the United States of “all claims now pending against Iran before the International Court of Justice . . .”58 On the same date the US informed the Secretary-General of the United Nations of the above and requested that this development be communicated to the President of the Court. The US official letter of communication stated that “the United States considers that Iran has complied fully with Security Council resolutions 457 of December 4, 1979 and 461 of December 31, 1979 and with the Judgment of the International Court of Justice of May 24, 1980.”59 On 23 February 1981, the Registrar of the Court addressed a letter to the agent of the United States reminding him that according to the above decision the case remained in the Court’s General List and drawing his attention “to the provisions of the Rules of Court concerning the discontinuance of

58  ICJ Pleadings, US Hostages, p. 524. 59  Ibid., p. 522.

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­ roceedings.” He also requested that the Court be furnished with a certified p copy of the agreement.60 What followed was an attempt by the U.S. to impose upon the Court a form of conditional discontinuance that was rightly rejected by the Court’s President (see Box # 9-4). However, the relevant fact for purposes of the present discussion is that on 1st. May 1981 the US communicated to the Registrar the definite discontinuance of the proceedings against Iran, stating that in its view the applicable provision was Article 88, para. 1 of the Rules. This episode calls for the following observations: In the first place, because the Court was not sitting, all the relevant actions were taken by the President of the Court. Much of the criticism that has been leveled against the relevant decisions suggests that it is possible that the full Court might have approached the question from a different angle. Secondly, the case may present problems of classification, for while it is generally considered as an example of discontinuance by agreement between the parties, there are reasons that support the proposition that it was actually a case of discontinuance by unilateral action. On the one hand, there is no doubt that the notice of discontinuation addressed to the Court by the United States expressly invoked Article 88, para. 1 of the Rules and this fact alone may explain why the order invokes that provision as authority and why the dispositif puts on record the discontinuance of the proceedings “following upon an agreement between the Parties” (Order of 12 May 1981, ICJ Rep. 1981, pp. 45 and 47). Moreover, in additional correspondence the US Agent told the Court in very firm terms that “[t]he United States considers Article 88, para. 1 the appropriate rule under which to seek a discontinuance” (ICJ Pleadings, US Hostages, p. 526). This was duly noted in the order on discontinuance (ICJ Rep. 1981, p. 46). On the other hand, the notice of discontinuance was clearly a unilateral action taken by the US and on the basis of this it may be thought that it amounted to the withdrawal of the case by the applicant, so that the applicable rule was rather Article 89.61 In the Barcelona Traction case, the Court remarked in passing that “[s]ometimes a discontinuance, though in form unilateral, and therefore notified under Article 6962 of the Rules, has been consequent on a settlement of the dispute” (Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964,

60  Ibid., p. 523. 61  Wegen, “Discontinuance . . .”, p. 733. 62  It corresponds to Article 89 of the current Rules.

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p. 18). The order of discontinuance in US Hostages recalls that “[t]he Court has (. . .) been notified separately by one of the Parties of a commitment by that Party, the Applicant in the case, in the context of an agreed settlement arrived at between the two Parties, that all its claims before the Court should be withdrawn” (Order of 12 May 1981, ICJ Rep. 1981, p. 47). It is submitted that, while in this case the withdrawal of the case was no doubt consequent to the settlement embodied in the Algiers Accords, it was nevertheless notified to the Court by unilateral action of the United States (in fact, Iran took no action whatsoever before the Court, persisting in the hostile attitude it had adopted since the institution of proceedings). The President of the Court apparently chose to ignore this last circumstance altogether. Thirdly, the fact that the respondent State was not appearing before the Court only complicated matters further and it has been suggested that the President should have handled the situation more in accordance with the Court’s own practice in cases of non-appearance when discontinuance has occurred, notably the Sino-Belgian Treaty case before the PCIJ and the Pakistani POW case, before the current Court.63 All the same, had the discontinuance been handled under Article 89, it is submitted that the applicable provision would have been paragraph 1, and thus the President could have considered that he was in a position to make an order right then and there, placing on record the discontinuance and ordering the removal of the case from the List. The Court could have followed the precedent in the Pakistani POW case and considered that although Iran had sent to it certain communications through diplomatic channels, it had not yet taken “any step in the proceedings.”64 What the Court chose to do instead was puzzling—and even contradictory—because it transmitted the communications received from the US to the Government of Iran and apparently (and vainly) awaited for some kind of reaction by the latter (the order on discontinuance expressly records this fact twice: it recalls that after transmitting to Iran the letters by the US “[n]o communication has been received from the Government of Iran” and subsequently it mentions with regard to the notification that “[t]he other Party, having been informed of such notification, has not addressed to the Court any observation” (Order of 12 May 1981, ICJ Rep. 1981, p. 47)). Under Article 88 this was entirely superfluous, and while there is nothing in the Rules precluding the Court from informing a party that the other party has taken certain action in a case involving both of them,

63  Wegen, “Discontinuance . . .”, p. 734. 64  Scobbie, “Discontinuance . . .”, p. 821.

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it is not clear why the order on discontinuance had to place on record the fact that Iran did not react upon being informed of the discontinuance by the US. In fact, when reading this part of the order one gets the distinct impression that the discontinuance is being handled under Article 89, para. 2 and not under Article 88 at all. Fourthly, it is possible to conclude that while the President of the Court apparently decided to go along with the US wish to have its discontinuance processed under Article 88, it did not concur that the applicable provision was paragraph 1 and not paragraph 2 of that article. The President apparently did not share the preference of that State with regard to the treatment of the Algiers Agreement in the context of the proceedings, and he decided that this instrument should be object of an express mention in the order on discontinuance. It should be recalled that in correspondence with the Registrar the US Agent had made it very clear that The United States considers Article 88 (1) the appropriate rule under which to seek a discontinuance, where, as here, the parties have concurred in such an action, but where the parties have not agreed that the order for removal of the case from the list should record that the agreement to discontinue is in consequence of having reached a settlement of the underlying dispute and have not agreed to indicate in or annex to the order the terms of such settlement.65 (emphasis added) In open disregard of this, the order goes to great lengths to somehow incorporate the Algiers Agreement—the text of which, it will be recalled, had been furnished to the Court only at its express request—into the discontinuance process, by stating in separate recitals that the commitment by the US concerning the withdrawal of “all claims before the Court” was made “in the context of an agreed settlement arrived at between the two Parties;” that the order was made “[h]aving regard to the adherence by the Parties to the two Declarations of the Government of Algeria dated 19 January 1981;” and that the discontinuance of the proceedings in the case took place “following upon an agreement between the Parties.” In summary, although there were grounds for treating the discontinuance in the US Hostages case as a case of discontinuance by unilateral action, the President of the Court decided to handle it as a case of discontinuance by

65  ICJ Pleadings, US Hostages, p. 526.

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common agreement, even while giving certain indications that the procedure followed was more appropriate for a case of the former type. All the same, the President in his order let it be known that the Court was cognizant of the substantive agreement giving rise to the discontinuance, notwithstanding the parties’ apparent own preference to the contrary.

An important clarification is that the notice of discontinuance is an essential step in this process, and therefore it must be very precise as to its purpose and scope for, in general, an intention to discontinue proceedings will not to be presumed lightly. In this context, the Court has refused to accept that a given attitude by an applicant—such as raising a preliminary objection or failing to rely on a certain basis of jurisdiction asserted previously within the same set of proceedings—can be regarded “as equivalent to a discontinuance”66 or can have “the legal effect of a discontinuance.”67 In general, a party’s will to withdraw a case must be demonstrated “in an unequivocal manner.”68 It is apposite, in this context, to quote a passage in a famous joint dissent by several judges in the Nuclear Tests cases, in which the importance of following the procedures set out in Articles 73 and 74 of the Rules (now Articles 88 and 89) was rightly stressed: If, as the Judgment asserts, all the Applicant’s objectives have been met, it would have been natural for the Applicant to have requested a discontinuance of the proceedings under Article 74 of the Rules. This it has not done. Yet this Article, together with Article 73 on settlement, provides for the orderly regulation of the termination of proceedings once these have been instituted. Both Articles require formal procedural actions by agents, in writing, so as to avoid misunderstandings, protect the interests of each of the two parties and provide the Court with the certainty and security necessary in judicial proceedings. (Nuclear Tests, Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock, ICJ Rep. 1974, p. 324, para. 25)69

66  Monetary Gold (Preliminary Question), Judgment of 15 June 1954, ICJ Rep. 1954, p. 30. 67  Kosovo (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, pp. 293–294. 68  Genocide Convention (Bosnia), Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 54, para. 24. 69  However, the view has been expressed that the precedents mentioned, and especially the Monetary Gold case, do not mean that a discontinuance can never be effected by implica-

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Box # 9-4 “Conditional Discontinuance” and subsequent re-institution of proceedings What happens when, in a case falling under Article 89 of the Rules, the applicant withdraws the case and subsequently experiences a change of heart and tries to re-submit it to the Court? This situation has arisen before the Court on a number of occasions.

i)

Barcelona Traction (1961 and 1962)

This case was submitted in September 1958 by an application filed by Belgium against Spain in a dispute concerning the diplomatic protection of a company. When incidental proceedings on preliminary objections were on their way, Belgium sent to the Court a notice of discontinuance and, after the procedure provided in then Article 69, para. 2 of the Rules was exhausted, the Court ordered the removal of the case from the Court’s list (Order of 10 April 1961, ICJ Rep. 1961, p. 9).70 Interestingly, in the operative part of this order the Court did not put on record the discontinuance itself but rather “[t]he communications thus received from the two Governments Parties to the case” (Ibid., p. 10). On 21 June 1962 Belgium filed another application instituting new proceedings in what essentially was the same case, against the same respondent. This new case bears the same name as the previous one but with the significant addition “New Application: 1962.” Spain then filed preliminary objections anew, and the first of them was based in the contention that the discontinuance was final and prevented Belgium from re-submitting the same case to adjudication by the Court. As summarized by the Court, this objection consisted in that “the discontinuance, under Article 69, paragraph 2, of the Courts Rules, of previous proceedings relative to the same events in Spain, disentitled the Applicant Government from bringing the present proceedings.” (Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964, p. 16). The Court rejected this objection and examined in detail the legal effects of discontinuance under Article 69 of the Rules then in force. It came to the

tion “[w]ithout express recourse to the procedure of Arts. 88 and 89” (Guillaume, quoted in Thirlway’s Law and Procedure, Part 13, BYIL, vol. 74 (2003), p. 113, fn. 401). 70  This phrasing was used in other orders of this kind made under the 1946/1972 Rules, like Aerial Incident (USA v. Bulgaria) (Order of 30 May 1960, ICJ Rep. 1960, p. 148); and Compagnie de Beyrouth (Order of 31 August 1960, ICJ Rep. 1960, p. 187).

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conclusion that there were multiple reasons that could lead a State to withdraw a case (and some of them clearly precluded the subsequent institution of further proceedings); that every case of discontinuance must be examined on its own merits; that the act of discontinuance was purely procedural in its effects; that “[a] discontinuance must be taken to be no bar to further action, unless the contrary clearly appeared or could be established;” and that, in the latter case, the burden of proof lay squarely with the respondent State. [in] the opinion of the Court (. . .) the fact that past discontinuances have in practice proved “final” cannot of itself justify the conclusion that any a priori element of finality inherently attaches to them. (. . .) [t]he evidence of the drafting records of Articles 68 and 69 goes to show that in addition to making provision for what was an evidently necessary procedural faculty, the aim was to facilitate as much as possible the settlement of disputes—or at any rate their non prosecution in cases where the claimant party was for any reason indisposed to discontinue. This aim would scarcely be furthered however, if litigants felt that solely by reason of a discontinuance on their part they would be precluded from returning to the judicial process before the Court, even if they should otherwise be fully in a position to do so. (. . .) [g]iving notice of discontinuance is a procedural and, so to speak, “neutral” act, the real significance of which must be sought in the attendant circumstances, (. . .) the absence of express renunciation of any further right of action is inconclusive, and does not establish in itself that there has not been such a renunciation, or that the discontinuance is not being made in circumstances which must preclude any further proceedings. (. . .) a notice of discontinuance of proceedings cannot both be in itself a purely procedural and “neutral” act, and at the same time be, prima facie and in principle, a renunciation of the claim. (. . .) in view of the reasonable and legitimate circumstances which (. . .) may motivate a discontinuance, without it being possible to question the right of further action, the Court would, if any presumption governed the matter, be obliged to conclude that it was in the opposite sense to that contended for by the Respondent; and that a discontinuance must be taken to be no bar to further action, unless the contrary clearly appeared or could be established. The problem is however incorrectly formulated if it is asked (as it constantly has been in the present case) what the “effect” of a discontinuance is; for the effect of a discontinuance must always and necessarily be the same—to put and end to the current set of proceedings. In this, precisely,

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lies its essentially procedural character. The real question is not what the discontinuance does—which is obvious—but what it implies, results from or is based on. This must be independently established, except in those cases where, because the notice itself gives reasons, or refers to acts or undertakings of the parties, or to other circumstances, its import is clear and apparent. (Barcelona Traction, Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964, pp. 18–22)71

ii) US Hostages (1981) In this case, already subject to comment in Box # 9-3, the United States initial notice of discontinuance, concerning the reparations phase, contained the following paragraph: [i]n accordance with Rule 88 (1), I request, on behalf of the United States of America, that all pending proceedings relating to United States claims against Iran for reparation be discontinued. The United States reserves the right however, to reinstitute such proceedings if the Government of Iran fails to live up to its commitments under the foregoing declarations. Independently of the foregoing, the United States reserves the right to seek redress in the Court if Iran fails to return promptly the premises, property, archives and documents of the United States Embassy in Tehran and of its Consulates in Iran.72 As it is well known, the President of the Court (the latter not sitting) refused to admit such a conditional discontinuance and informed the US Agent accordingly. The order on discontinuance contains a narrative of the exchanges concerning this aspect of the case (Order of 12 May 1981, ICJ Rep. 1981, pp. 46–47). It is of interest to quote in full the response by the U.S. of 1 May 1981, in which an extant “right of action,” was nonetheless expressly reserved: We understand that the effect of a discontinuance is exclusively procedural; that is, a discontinuance ends the current proceedings without affecting any right to institute new proceedings with regard to the same or

71  See also, in the same case, the declaration of judge Koretsy and the dissenting opinion of judge Morelli (ICJ Rep. 1964, p. 49 and pp. 101–109). 72  ICJ Pleadings, US Hostages, p. 524.

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related claims in the future, should circumstances so warrant. Barcelona Traction, Light and Power Co., Limited, Preliminary Objections, Judgment, ICJ Rep. 1964, p. 6. The statement cited in your letter of April 15, 1981, that “The United States reserves the right, however, to reinstitute such proceedings if the Government of Iran fails to live up to its commitments under the foregoing declarations”, was intended to reflect for the record our understanding that the request for discontinuance would neither renounce nor prejudice any further right of action with regard to these claims in the circumstances mentioned in that statement.”73

iii) Armed Actions (DRC v. Rwanda) (2001 and 2002) After the Barcelona Traction case, a discontinuing State has sought to reserve something similar to the right to reinstitute proceedings related to the same matters on only one occasion. In the notice of discontinuation filed on 15 January 2001 by the Democratic Republic of the Congo with regard to two cases bearing the same name against Burundi and Rwanda that were then at the jurisdiction and admissibility phase, the applicant State was careful in stating that it reserve[d] the right to invoke subsequently “new grounds of jurisdiction of the Court” (Order of 30 Jan. 2001, ICJ Rep. 2001, p. 4). Subsequently, the DRC deposited a new application against Rwanda, covering essentially the same grounds and invoking as basis of jurisdiction a large number of treaties and international instruments (including two of the treaties mentioned in the initial application, but adding several more). During the provisional measures phase of this second case—bearing the same name as the first case but with the addition “New Application: 2002,” thus clearly following in this regard the practice in Barcelona Traction—the question of the reintroduction of the case was briefly mentioned by Rwanda, a fact registered by the Court in the following terms: [a]t the hearings (. . .) Rwanda added specifically that the Congo had already had the “opportunity of having the issue of jurisdiction tried” in the first proceedings which it had instituted, but had preferred to withdraw; (. . .) it stated that the Congo’s new Application was merely “a replica of its old Application”; and (. . .) it asserted that this was “an abuse of the

73  ICJ Pleadings, US Hostages, p. 526.

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process of the Court and that the Court should . . . remove the case from its List” (Armed Activities II (DRC v. Rwanda) Provisional Measures, Order of 10 July 2002, ICJ Rep. 2002, pp. 238–239, para. 49)

However, this argument appears not to have been pursued further and was not mentioned by the Court in its order on provisional measures.74 The Court found eventually that it lacked jurisdiction in this case ( Judgment of 3 Feb. 2006, ICJ Rep. 2006, p. 6).

iv) Vienna Convention (1998) and Lockerbie (2003) These cases are worth a mention here because in them the Court used for the first time the term “discontinuance with prejudice,” apparently borrowed from US legal practice.75 The technical expression “discontinuance with prejudice” has been defined as “a final disposition of the case, creating res judicata and preventing the parties from relitigating the same claims or facts.”76 It appears that this concept was first used before the Court by Paraguay, in the Vienna Convention case, because in the notice of discontinuance filed by that State on 2 November 1998, it was stated that “[t]he Agent of Paraguay informed the Court that his Government wished to discontinue the proceedings with prejudice, and accordingly requested that the case be removed from the List” (Order of 10 Nov. 1998, ICJ Rep. 1998, p. 427).77 In the French version of the order the expression used is even more forceful: “L’agent du Paraguay a fait savoir à la Cour que son gouvernement souhaitait se désister de l’instance et renoncer à toute action en l’affaire, et qu’il demandait en conséquence que l’affaire soit rayée du rôle” (ibid.) However, the Court did not use that expression in the operative part of the order, in which it limited to placing on record “[t]he discontinuance by the Republic of Paraguay of the proceedings instituted by the Application filed on 3 April 1998” and to directing the removal of the case from the list (Ibid., p. 427).78

74  Prager’s Procedural Developments, LPICT, vol. 1 (2002), pp. 619–620. 75  H. Thirlway, “The Drafting of International Court of Justice Decisions: Some Personal Recollections and Observations”, Chinese JIL, vol. 5 (2006), p. 27, fn. 6. 76  Prager’s Procedural Developments, LPICT, vol. 2 (2003), p. 557. 77  Emphasis added. 78  See a comment in Thirlway’s Law and Procedure, Part. 13, BYIL, vol. 74 (2003), pp. 109–110.

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In 2003, when he was processing Libya’s discontinuance of the Lockerbie cases against the US and the United Kingdom, the President of the Court (Shi) went a step further. After taking note that “the Libyan Arab Jamahiriya and the United States of America have agreed to discontinue with prejudice the proceedings initiated by the Libyan Application filed on 3 March 1992,” the order adopted on 10 September of that year goes on to place on record “[t]he discontinuance with prejudice, by agreement of the Parties, of the proceedings instituted on 3 March 1992 by the Great Socialist People’s Libyan Arab Jamahiriya against the United States of America.” (Order of 10 Sep. 2003, ICJ Rep. 2003, pp. 150 and 153, emphasis added).79 The reasons for which this question was given a different treatment in these cases are unclear. In any case, it has been contended that discontinuance “with prejudice” must be understood as meaning that if the parties to a case agree to discontinuance on condition that further proceedings will not be brought, it is open to them to do so and the Court’s role will be limited to taking note thereof.80 It is also entirely possible that, as part and parcel of the agreement to discontinue, the parties to a case, or one of them, commit(s) to refrain from making further claims before the ICJ or other international tribunals. This, however, will regularly be done out of Court and will have no influence whatsoever on the manner in which the Court processes the discontinuance. A good example is the Phosphates in Nauru case (an example of discontinuance by agreement), in which the original applicant entered into such a commitment as one of the conditions for the settlement.81

Article 89 of the Rules is entirely silent as to the motivations that may have led the applicant to decide that “it is not going on with the proceedings” and on this basis it may be thought that in discontinuance cases handled under that provision the Court should not concerned itself with those reasons and should limit itself to do what is stated in that provision, namely, to record the 79  An author has seen in this order a departure from the philosophy of the Rules and of the Barcelona Traction decision, insofar as it would mean the embracing by the Court, for the first time, of the distinction between désistement d’instance and désistement d’action. (Thirlway’s Law and Procedure, Part. 13, BYIL, vol. 74 (2003), p. 110). 80  Wood, “International Courts . . .”, MN 20. 81   For a narrative of this episode see Donner, “Discontinuance of Proceedings . . .”, pp. 248–249.

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discontinuance and to direct the removal of the case from the List. Paragraph 2 of Article 88 may even be considered to be lex specialis on the subject, directing as it does that when the discontinuance comes about as a consequence of an agreement between the parties, the Court is authorized to make mention to that agreement only “if they so desire.” However, the Court has on occasion deviated from these strictures and in orders made citing Article 89 as sole authority it has gone into describing the contents of an agreement that gave rise to a unilateral decision to discontinue the proceedings.82 It is submitted that this is a questionable practice, because if the preference of the parties is that this agreement is reflected in some manner in the Court’s decision, it is legitimate to infer that they should rather have moved under Article 88, para. 2 and not under Article 89. 4) Discontinuance of Incidental or Derivative Proceedings As stated above, Article 88, para. 1 provides that discontinuance by agreement between the parties may take place “at any time before the final judgment on the merits has been delivered.” This formula was introduced in the 1978 reform to replace the expression “at any time before judgment has been delivered,” which had featured in Article 68 of the 1936/1946 Rules and Article 73 of the 1972 Rules, and which, in turn, had replaced the more restrictive formula appearing in Article 61 of the 1922 Rules, namely “before the close of the proceedings.” In stark contrast, under Article 89, para. 1 discontinuance by initiative of the applicant can take place “in the course of proceedings,” which must necessarily mean at any time during the course of any proceedings. At first sight, therefore, it would appear that the new wording of Article 88, para. 1 is meant to apply only when the discontinuance by agreement refers to the proceedings on the merits and not to any incidental or derivative proceedings. In any case, in proceedings on provisional measures and counter-claims a trend can be discerned that involves avoiding the use of the terminology concerning discontinuance and a preference for a more neutral term, such as “withdrawal” of the action.83 The following are samples of cases in which discontinuance or withdrawal has taken place with respect to incidental or derivative proceedings 82  Guinea Bissau v. Senegal, Removal of case, Order of 8 Nov. 1995, ICJ Rep. 1995, p. 425; Aerial Herbicide Spraying, Removal of case, Order of 13 Sept. 2013. The latter was made by the President (Tomka). 83  An entirely different take on this question is that of Thirlway, for whom the distinguishing feature of genuine discontinuance appears to be that of not leaving the main proceedings unaffected (Thirlway’s Law and Procedure, Part 13, BYIL, vol. 74 (2003), pp. 102–103).

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c­ oncerning provisional measures, preliminary objections, counter-claims and reparations. No cases of discontinuance or withdrawal have occurred yet with regard to proceedings on intervention, interpretation of judgments or revision of judgments. Provisional Measures Although it has not happened frequently, there have been instances in which the party requesting provisional measures decides later to withdraw its request.84 Since the time of the PCIJ, the practice has not been uniform. The situation arose twice at the PCIJ. In the Prince von Pleiss case, the applicant, prompted by certain actions taken by the respondent, informed the Court that a settlement had been reached on the question that formed the subject of its request for the indication of interim measures. It, therefore, requested from the Court “[a]pplying by an analogy Article 61, para. 1, of the Rules of Court, to take note of the agreement reached.”85 The Court’s reaction was not unambiguous, for while it quoted Article 61 as authority in the qualités of the order, in the operative part it limited itself to noting the agreement of the applicant with regard to the settlement of the question and declared “[t]hat the request for the indication of interim measures of protection . . . has ceased to have any object.”86 This language is not dissimilar to that used by the present Court in the Pakistani POW case, in which, faced with a request by the applicant to postpone its consideration of a request for the indication of provisional measures, it found that, given the condition of urgency, that very fact “[s]ignifies that the Court no longer has before it a request for interim measures which is to be treated as a matter of urgency.”87 As a member of the Court remarked, “[a] request for postponement in relation to interim measures can only have the legal effect of withdrawal.”88

84  A slightly different case is that of a State submitting a request for the indication of provisional measures and later abandoning altogether its claim for interim relief. This happened at the jurisdiction and admissibility phase of the Nicaragua case and was registered in the decision on the merits ( Judgment of 27 June 1986, ICJ Rep. 1986, p. 144, para. 287). 85  Prince von Pleiss, Order of 11 May 1933, PCIJ A/B 54, p. 152. 86  Ibid., pp. 153–154. For an appraisal of this precedent see Scobbie, “Discontinuance . . .”, pp. 815–816. 87  Pakistani POW, Interim Protection, Order of 13 July 1973, ICJ Rep. 1973, p. 330, para. 14. 88  Pakistani POW, Interim Protection, Separate Opinion of Judge Nagendra Singh, Ibid., p. 332. However, note that judge Petren reached exactly the opposite conclusion (Dissenting Opinion, Ibid., p. 336).

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The second case is Electricity Company, in which, upon receiving a communication from one of the parties announcing that it was withdrawing its request for provisional measures, the President of the Court made an order simply “recording the withdrawal.”89 This latter practice may have been followed in the Armed Actions (Nicaragua v. Honduras) case. When the requesting party informed the Court of its withdrawal of the request for provisional measures, the President (Ruda) made an order placing this withdrawal on record and invoking as sole authority the provisions in the Rules concerning provisional measures.90 Interestingly, the President made this decision solely on the basis of the applicant’s request and did not find it necessary to ascertain the view of the respondent.91 Preliminary Objections In the Borchgrave case, which incidentally is the only example of a case submitted by special agreement in which one of the parties subsequently filed preliminary objections, Spain withdrew one of its objections and requested that it be joined to the merits. The Court took note of the withdrawal and placed it “on record.” The Court also remarked that as the withdrawal of the preliminary objection had left nothing of it to be joined to the merits, it was for Spain to present its arguments as a defense on the merits in the regular way.92 In the US Nationals in Morocco case, the respondent filed a preliminary objection and upon receiving certain assurances from the applicant it later decided to withdraw the objection. The judgment recalls the episode in the following manner: On June 21st, 1951, within the time-limit fixed for the deposit of its Counter-Memorial, the Government of the United States of America filed a document entitled “Preliminary Objection”. The proceedings on the merits were thereby suspended. The Preliminary Objection was communicated to the States entitled to appear before the Court as well as to the States which had been notified of the deposit of the Application pursuant to Article 63 of the Statute. The proceedings thus instituted by the Preliminary Objection were terminated following a declaration by 89  Electricity Company, Judgment of 4 April 1939, PCIJ A/B 77, p. 67. 90  Armed Actions (Nicaragua v. Honduras), Provisional Measures, Order of 31 March 1988, ICJ Rep. 1988, p. 9. 91  The same happened in Prince von Pleiss, but in that case the applicant’s decision to withdraw the request originated in some actions executed by the respondent, as recorded in the order of discontinuance. 92  Borchgrave, Preliminary Objections, Judgment of 6 Nov. 1937, PCIJ A/B 72, pp. 169–170.

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the Government of the United States that it was prepared to withdraw its objection, having regard to the explanations and clarifications given on behalf of the French Government, and following a declaration by the French Government that it did not oppose the withdrawal. An Order of October 31st, 1951, placed on record the discontinuance, recorded that the proceedings on the merits were resumed, and fixed new time-limits for the filing of the Counter-Memorial, Reply and Rejoinder. (US Nationals in Morocco, Judgment of 27 August 1952, ICJ Rep. 1952, pp. 178–179)

This is the only example of proceedings on preliminary objections that have been formally discontinued before the Court reached a decision concerning the objections. Nonetheless, the attitude shown by the Court is significant, for in this instance it consciously decided to apply Article 69 of the 1946 Rules— alongside Article 62, governing preliminary objections.93 Its order of 31 October 1951, mentioned in the passage of the judgment quoted above, does not differ in any aspect from other orders of discontinuance. A more recent example of the withdrawal (or, rather, abandonment) of a preliminary objection took place in the Genocide Convention (Bosnia) case. The withdrawal was made during the oral proceedings and the Court limited itself to register this action in the following terms: Bosnia and Herzegovina has principally relied, as a basis for the jurisdiction of the Court in this case, on Article IX of the Genocide Convention. The Court will initially consider the preliminary objections raised by Yugoslavia on this point. It takes note, first, of the withdrawal by Yugoslavia, during the oral proceedings, of its fourth preliminary objection, which therefore need no longer be dealt with. (Genocide Convention (Bosnia), Preliminary Objections, Judgment of 11 July 1996, ICJ Rep. 1996, p. 609, para. 16)

Counter-Claims In the Genocide Convention (Bosnia) case, when the case was at the merits stage the counterclaimant respondent notified the Court of its desire to withdraw a counter-claim that it had previously entered and that had 93  Discontinuance of proceedings on preliminary objections must be distinguished from a discontinuance of the main proceedings when proceedings on questions of jurisdiction and admissibility are still in motion (as it happened in the Barcelona Traction I; Aerial Incident (USA v. Bulgaria); Aerial Incident (Iran v. USA); Pakistani POW; Armed Actions (RDC v. Burundi); Armed Actions I (RDC v. Rwanda) and Jurisdiction and Enforcement cases.

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already been declared admissible by the Court. The Court sought the opinion of the applicant and, upon learning that it did not object, made an order placing the withdrawal on record. Although the procedure employed clearly resembles the rules governing discontinuance, the resulting order invokes as sole authority Article 80 of the Rules, which governs counter-claims but, significantly, is silent as to the withdrawal of them.94 A different situation is that of a case submitted by application in which a counter-claim has been made and declared admissible and the original claim is subsequently discontinued by the applicant. Given the special status that a counter-claim has with regard to the mainline proceedings, it appears established that one such counter-claim cannot survive the dismissal of the original claim and thus becomes defunct if those proceedings are terminated.95 Reparations Some of the most prominent instances of discontinuance before the present Court have taken place after the Court had issued a decision on the merits and when it was dealing with the derivative issue of reparations. This happened in the US Hostages and Nicaragua cases (both under the 1978 Rules), and at no time was the applicability of Articles 88 or 89 of the Rules to those situations questioned.

Box # 9-5 Suspension of proceedings96 The only occasion on which the Rules mention the possibility that proceedings can be suspended is in Article 79, para. 5, dealing with one of the legal consequences of the filing of preliminary objections by one of the parties. This type of suspension concerns the proceedings on the merits and comes to an end when the decision on the preliminary objections is rendered, either because the objections are upheld and proceedings are terminated altogether, or because they are rejected or declared not to possess “an exclusively preliminary character.” In either case, the main proceedings are resumed (Article 79, para. 9). Apart from that situation, the Rules are silent on the suspension of proceedings and there is no example in recent practice of a suspension being formally 94  Genocide Convention (Bosnia),Withdrawal of Counter-claims, Order of 10 Sept. 2001, ICJ Rep. 2001, p. 572; Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, pp. 54–55, paras. 26–27. For a comment see See Prager’s Procedural Developments, LPICT, vol. 1 (2002), p. 205. 95  C. Antonopoulos, Counterclaims before the International Court of Justice (2011), pp. 154–155. 96  Prager’s Procedural Developments, LPICT, vol. 1 (2002), p. 198.

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ordered by the Court. What can be suspended at any time is the oral p ­ roceedings stage in a case, for instance in order to organize urgent hearings concerning a request for provisional measures made in another case.97 In 1927, in the Sino-Belgian Treaty, the Registrar stated in a communication addressed to the Chinese Legation, that “once proceedings had been instituted, they could not be ‘suspended’.” He added: “Failing a formal withdrawal of the document instituting proceedings, the case must follow its normal course— subject, of course, to the Court’s (or President’s) power to extend times previously fixed.” (PCIJ E 3 (1926–1927), p. 185). The 1933 Report by the Registrar recalls that in the 1926 discussions the question arose “whether the parties could not suspend proceedings in virtue of an agreement between themselves, seeing that it was already acknowledged that they could terminate the proceedings in virtue of such an agreement.”98 Apparently, the matter was not pursued further. In 1938, in the Borchgrave case, the parties informed the Court that they had reached an agreement in order to discontinue the proceedings. As Article 68 of the Rules then in force did not grant the President of the Court the power to make the order placing on record the discontinuance of the proceedings—this power was vested on the President only in 1946, on the occasion of the adoption of the first Rules of the present Court—and the Court was then not in session, the President (Guerrero) made an order suspending the written proceedings. In the reasoning section it was registered that this action was taken “[u]ntil such time as the Court meets and can take the requisite formal action upon the communications of the Agents of the Belgian and Spanish Governments” (Order of 4 Jan. 1938, PCIJ C 83, p. 178). This type of situation can hardly present again, as under the current Rules the President is authorized to take all actions concerned with the termination of a case by initiative of the parties. However, quite apart from that, the Court is undoubtedly the master of its own procedure and under Article 48 of the Statute it has been given ample powers for the conduction of the proceedings. In this context, it often happens that the parties—acting either jointly or separately and sometimes because they see a chance to reach a negotiated settlement of the dispute—make known to the Court their preference to have a given time-limit postponed. The Court, or the President if it is not sitting, normally responds favorably and takes the necessary actions to delay the course of the proceedings. Acting at the request

97  For an example see ICJ Yearbook (1983–1984), p. 143. 98  PCIJ D 2, Add. 3, p. 830. Emphasis in the original.

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of the parties the Court can extend time-limits for the deposit of written pleadings as many times as it sees fit and can also delay the organization of the oral proceedings.99 All of these actions correspond, actually, to de facto suspensions of the proceedings.100

Further Reading

General Works, Series and Treatises



Articles and Monographs

Dubisson’s CIJ, pp. 238–239 Guyomar’s Commentaire, pp. 562–578 Hudson’s PCIJ, pp. 545–546 Rosenne’s Law and Practice, vol. 3, pp. 1463–1479 Rosenne’s Procedure, pp. 185–187, 193–200 Scerni’s La Procédure, pp. 658–665 Study Group Report, pp. 61–62 Thirlway’s Law and Procedure, Part. 12, BYIL, vol. 72 (2001), pp. 69–76; Part. 13, BYIL, vol. 74 (2003), pp. 102–114 UNITAR Colloquium, pp. 370–396 G. Wegen, “Discontinuance and Withdrawal”, in Oxford Commentary, pp. 1447–1468

A. Giardina, “Arrangements amiables ed estinzione del processo di fronte alla Corte internazionale di Giustizia”, Com. E Stud., vol. 14 (1975), p. 337 ff. G. Guillaume, “Le désistement devant la Cour internationale de Justice”, in M. Tupamäki (Ed.), Liber Amicorum Bengt Broms (1999), pp. 68–96 M.O. Hudson, International Tribunals—Past and future (1944), pp. 111–126 Sir R. Jennings, “The Role of the International Court of Justice”, BYIL, vol. 68 (1997), pp. 19–35 V.S. Mani, “Audi alteram partem: journey of a principle from the realms of private procedural law to the realms of international procedural law”, Indian YIL, vol. 9 (1969), p. 391 ff.

99  For an instance in which the Court rejected a request to suspend the proceedings on the merits in a different—although closely connected—case but in fact delayed the opening of the oral proceedings see Prager’s Procedural Developments, LPICT, vol. 1, (2002), pp. 214–215. 100  For examples see G. Wegen, “Discontinuance and Withdrawal . . .”, p. 1452, note 28.

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S. Oda, “The International Court of Justice Viewed from the Bench (1976–1993)”, RC, vol. 244 (1993), pp. 123–126 E. Pecourt García, “El Desistimiento en el proceso internacional: A proposito de la doctrina establecida por el Tribunal internacional de Justicia en el caso de la “Barcelona Traction”, REDI, vol. 23 (1970), p. 231 ff.

Chapter 10

The Decision It was stated above that in the context of the termination of proceedings there can be two types of decisions, namely, an interlocutory judgment by which the Court decides not to proceed with the case, or a final judgment on the merits by which the Court end the dispute or replies to the legal questions posed by the parties.1 It may be noted that under Articles 59 and 60 of the Statute both decisions have the full force of res judicata, a point made by the Court in the Nicaragua case.2 In the first case, the decision is as a general rule made at the conclusion of incidental proceedings concerning the questions of jurisdiction or admissibility that may have arisen, whether they are formal proceedings on preliminary objections, under Article 79, para. 1 of the Rules, or separate proceedings concerning jurisdiction and admissibility, under paras. 2 and 3 of the same provision. Since these modalities will be discussed in detail in Chapter 12, in the present context it would suffice to take note that under Article 79, para. 9 of the Rules such proceedings can lead to a decision by the Court producing one of three effects, namely: (i) Upholding the objections and finding that the Court has no jurisdiction to entertain the case or that the application is inadmissible. In this situation, the case is automatically removed from the List.3 (ii) Rejecting the objections and finding that the Court has jurisdiction and that the application is admissible. (iii) Declaring that the objections do not possess, in the circumstances of the case, “an exclusively preliminary character.” In options (ii) and (iii) the proceedings on the merits continue their course. If preliminary objections were filed under paragraph 1 of Article 79, the proceedings are resumed at the point at which they were suspended and a time1  The latter is what is called in the Rules “the final judgment in the case” (Article 76, para. 1). 2  Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 24, para. 27. 3  It may also be the case that an objection to admissibility is not related to the entire application but only to one or some of the claims contained in that document. If the objection is upheld, the proceedings with regard to those claims will be terminated, but they will be continued or resumed with regard to the other claims.

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limit is fixed for the deposit of the next written pleading, which in most cases will be the Counter-Memorial by the respondent. If the procedure used to deal with questions of jurisdiction and admissibility was that provided for in paragraphs 2 and 3 of Article 79, the proceedings on the merits will begin then and there and the initial time-limit to be fixed is that for the filing of the Memorial by the applicant. There is also the possibility that the Court decides not to continue with a case for reasons other than lack of jurisdiction or inadmissibility. In the Northern Cameroons case, for instance, at the conclusion of incidental proceedings on preliminary objections the Court found that it could not “adjudicate upon the merits of the claim,” essentially for reasons connected to the question of judicial propriety, as distinct from questions of jurisdiction or admissibility.4 In the Nuclear Tests cases, the Court found that the claim of both applicants “no longer ha[d] any object and that the Court [wa]s therefore not called upon to give a decision thereon.”5 Likewise, in the unexpected sequel of one of these cases, the Nuclear Tests (Request of Examination) case, the Court found that the request by New Zealand should be dismissed, along with parallel requests for the indication of provisional measures and for third-party intervention.6 What these cases demonstrate is that, in a situation in which the Court has not made a decision as to summary dismissal but it nonetheless has acquired the conviction that the case should not proceed to the merits stage, it has a menu of options at its disposal. In sum, the Court can decide not to go on with a case—thus terminating ipso jure the proceedings—for reasons of lack of jurisdiction, inadmissibility, judicial propriety, mootness or other. The present chapter applies to all decisions of the Court that take the form of a judgment, regardless of whether they are interlocutory or final.7

4  Northern Cameroons, Preliminary Objections, Judgment of 2 Dec. 1963, ICJ Rep. 1963, p. 38. On the concept of propriety and its relevance in contentious cases see Chapter 2, d). 5  Nuclear Tests, Judgments of 20 Dec. 1974, ICJ Rep. 1974, p. 272, para. 62 and p. 478, para. 65. See J. Juste Ruiz, “Mootness in International Adjudication: The Nuclear Tests Cases”, German YIL, vol. 20 (1977), pp. 358–374. 6  Nuclear Tests (Request of Examination),Order of 22 Sep. 1995, ICJ Rep. 1995, p. 307, para. 68. 7  Judgments are used to dispose of incidental or derivative proceedings concerning jurisdiction and admissibility; Article 62 intervention (save in certain cases); reparations; interpretation of judgments and revision of judgments. In all other instances the decisions are embodied in orders of the Court.

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Box # 10-1 Terminology: “decision” v. “judgment” 8 In his dissenting opinion in the South West Africa cases judge Jessup devoted some space to a discussion on the terms used in the instruments governing the Court to refer to its own decisions. His conclusion—supported by legal literature on the subject—is that there is no clear distinction between the terms “decision” and “judgment,” which are simply interchangeable: [o]ne may note that Article 94 (1) of the United Nations Charter uses the word “decision” in English and “decision” in French. In Article 94 (2) the terms are “judgment” and “arrêt”. In Article 63 (2) of the Court’s Statute one finds “judgment” rendered in French as “sentence” and in Article 41 (2) of the Statute, “decision” is “arrêt” in French. In the Rules of Court, No. 64 (6) speaks of a “decision . . . in the form of a judgment” (la Cour statue sur la requête par un arrêt). The same expressions in both languages are found in Article 81 of the Rules. In Rule 62 (5), dealing with preliminary objections, the English text speaks of a “decision” and the French text again uses “statue”. The “decision” (to use the term in Article 26 (5) of the Rules), of 21 December 1962 is labelled a “judgment” and recites at the outset (p. 321) that the Court “delivers the following Judgment” (“arrêt”). This use of the term “judgment” (“arrêt”) is found in every ruling of the Court on a preliminary objection, beginning with the Corfu Channel case (ICJ Rep. 1947–1948, p. 15) down through Barcelona Traction (ICJ Rep. 1964, p. 6). After analysing passages in the Asylum case, Rosenne writes (. . .): “This, it is submitted, leads to the conclusion that the word ‘decision’ (décision) appearing in Article 59 of the Statute is identical in meaning with the word ‘judgment’ (arrêt) appearing in Article 60, and refers not merely to the operative clause (dispositifl of the judgment, but to its reasons as well. This is clearly the case as regards the meaning of the word ‘judgment’ (sentence) appearing in Article 63.” (South West Africa, Second Phase Dissenting Opinion of Judge Jessup ICJ Rep. 1966, pp. 331–332)

8  Hudson’s PCIJ, pp. 583–584. See also K. Oellers-Frahm, “Article 94 UN Charter”, in Oxford Commentary, MN 4–5, pp. 189–190.

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More recently, the Court considered whether the term “decision” used in Article 94 of the Charter referred to every decision of the Court or only to decisions in the form of judgments. After a brief discussion of the possible interpretations of that provision, it largely left the matter unresolved. The Court finally needs to consider whether Article 94 of the United Nations Charter precludes attributing binding effect to orders indicating provisional measures. (. . .) The question arises as to the meaning to be attributed to the words “the decision of the International Court of Justice” in paragraph 1 of this Article. This wording could be understood as referring not merely to the Court’s judgments but to any decision rendered by it, thus including orders indicating provisional measures. It could also be interpreted to mean only judgments rendered by the Court as provided in paragraph 2 of Article 94. In this regard, the fact that in Articles 56 to 60 of the Court’s Statute both the word “decision” and the word “judgment” are used does little to clarify the matter. Under the first interpretation of paragraph 1 of Article 94, the text of the paragraph would confirm the binding nature of provisional measures; whereas the second interpretation would in no way preclude their being accorded binding force under Article 41 of the Statute. The Court accordingly concludes that Article 94 of the Charter does not prevent orders made under Article 41 from having a binding character. (LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, pp. 505–506, para. 108)

a)

The Reading of the Decision

By virtue of Article 58 of the Statute, the judgment must be signed by the President and the Registrar and is read out in open court, “due notice having been given to the agents.”9 The Statute is silent as to the moment at which the judgment becomes binding upon the parties but Article 94, para. 2 of the Rules clearly identifies the pertinent date as that on which the judgment is read, at a public sitting that takes place in the Great Hall of Justice of the Peace Palace, in The Hague.10 This sitting takes place sometime after the internal voting on the adoption of the decision takes place, which allows for the Registry to take

9   This is reiterated by Article 94, para. 1 of the Rules. 10  For a discussion on the rationale for this rule see Scerni’s La Procédure, pp. 668–670.

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certain practical steps such as notifying the agents, communicating the news to the public at large and to the press, and preparing a provisional (mimeograph) edition of the full text of the judgment, which is handed out to interested persons at the end of the sitting.11

Box # 10-2 The making of a decision: Deliberation process within the Court 12 (i) General The internal judicial practice of the Court and the process leading to the adoption of its decisions is governed by a resolution adopted in 1976.13 A salient

11  However, the view has been expressed that the relevant date or the true “moment of decision” is the day on which a vote is taken on the text (H. Thirlway, “Judgments of International Courts and Tribunals”, in Max Planck EPIL, MN 29). The question of the precise date at which a decision by an international tribunal must be considered as rendered was discussed by the Anglo-French Court of Arbitration in the proceedings concerning the interpretation of its original award (Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (interpretation), Decision of 14 March 1978, RIAA, vol. 18, pp. 286–287, paras. 3–5). 12  The Court’s internal practice has been examined in S. Petren, “Forms of Expression of Judicial Activity”, in L. Gross (Ed.), The Future of the International Court of Justice (1976), pp. 447–459; J. Sette Camara, “Behind the World Bench”, in M. Rama-Montaldo (Gen. Ed.), International Law in an Evolving World, Liber Amicorum in Tribute to Professor Eduardo Jiménez de Aréchaga (1994), vol. 2 pp. 1068–1079; S. Schwebel, “The Docket and Decision-making Process of the International Court of Justice”, 13 Suffolk Transnational Law Jorunal, vol. 13 (1989–1990), pp. 543–567; Sir R. Jennings, “The Role of the International Court of Justice ”, BYIL, vol. 68 (1997), pp. 1–63; “The Collegiate Responsibility and Authority of the ICJ”, in Collected Writings of Sir Robert Jennings (1998), vol. 1, pp. 509–521; “The Internal Judicial Practice of the International Court of Justice”, Ibid., pp. 522–542; M. Bedjaoui, “The ‘manufacture’ of Judgments at the International Court of Justice”, ICJ Yearbook (1996–1997), pp. 234–242; G. Griffith, “Modernizing the General Business of the International Court of Justice: A Critical Evaluation”, Australian YIL, vol. 17 (1996), pp.79–83; J.J. Quintana, “Cómo Se Toman las Decisiones de la Corte Internacional de Justicia”, Revista Notas de Diplomacia, No. 5 (1997); R. Ranjeva, “La Genese d’un arret de la Cour internationale de Justice”, in C. Apostolidis (Ed.), Les arrets de la Cour internationale de Justice (2005), pp. 83–91. See also an address by the President of the Court (Shi) to the Sixth Committee of the General Assembly on 28 October 2005 (ICJ Yearbook (2005–2006) pp. 313–323). 13 This document replaced an earlier resolution adopted in 1968, which on its turn was a revision of a 1946 text, virtually identical to a 1936 resolution of the PCIJ. For the text of

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feature of this resolution is its flexibility, resulting in that the Court is auth­ orized to depart from its terms in any given case “if it considers that the circumstances justify that course,” as it is stated in the preamble. It is also important to underline that the resolution governs the procedure for the adoption of the “decisions” by the Court, a term that in principle covers equally a judgment, an advisory opinion14 or a purely procedural order. However, in practice it is only natural that for the adoption of most of its orders concerning “the conduct of the case” (Statute, Article 48) a more expeditious procedure is used, which may consist of a simple exchange of views among the judges after a given issue has been raised—whether by one of the parties or by the Court itself, in the first case making it necessary to gather the views of the other party—, followed by a voting on a text proposed by the President or drafted by the Registrar on the latter’s instructions. In such a case, the order is not read in open court but is simply communicated to the parties under cover of a letter from the Registrar, although its contents may on occasion be described by the President at a public hearing connected to the case.15 In fact, the resolution presupposes that there have been both a stage of written proceedings and a stage of oral proceedings, something that clearly never occurs in the case of many of the procedural orders that the Court is bound to make. The resolution also applies only to decisions made by the Court when it is sitting (for the decisions that the President is authorized to take by delegation from the Court see Box # 3-8).

(ii) Stages in the Process The process leading to the adoption of a decision contemplates four successive stages: a)  Preliminary stage: deliberations held when the proceedings are in motion; b)  Second stage: general deliberations concerning the case, once the proceedings have been closed. the resolution in force see ICJ, Acts and Documents, pp. 165–173; ICJ Yearbook (1975–1976), pp. 119–123. 14 Article 10 of the resolution is explicit in extending the application of its provisions to advisory proceedings. 15 The practice of the Court since the time of the PCIJ is to read in open court only those orders that have been made after hearings have been held, like in the case of proceedings on provisional measures (PCIJ D2 Add. 3, p. 831). See also Guyomar’s Commentaire, pp. 604–605.

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c) Third stage: discussions of substance and preparation of a draft decision; d) Voting. The preliminary stage includes deliberations that take place between the closure of the written proceedings and the opening of the oral proceedings. The judges exchange general impressions and any of them may call the attention of the Court on any points on which it would be advisable to request explanations from the parties during the hearings (Art. 1, para. [i]). If there are two rounds of hearings, an additional deliberation is held after the first round (Ibid., par. [ii]). During the hearings the judges also hold private meetings in order to exchange views on the case and to inform each other about eventual questions to be put to the parties (Ibid., par. [iii]). During the second stage each member of the bench makes known his or her views on each of the questions raised by the case. This includes a first substantive deliberation after the President has drawn a list of questions that in his opinion fall to be decided (Article 3); the preparation of a “Written Note” by each judge, to be circulated (Article 4);16 and a second substantive deliberation, which is held once every member of the bench has had the occasion to study his colleagues’ notes (Article 5). According to Article 4 of the resolution the written notes to be prepared by each judge should indicate inter alia: (a) whether any questions which have been called to notice should be eliminated from further consideration or should not, or need not, be decided by the Court; (b) the precise questions which should be answered by the Court; (c) his tentative opinion as to the answers to be given to the questions in (b) and his reasons therefor; (d) his tentative conclusion as to the correct disposal of the case.17 During the deliberation provided for in Article 5 all the judges must “declare their views” on the case but it is permitted that a judge addresses comments to or asks for further explanations from another judge concerning the latter’s 16  This practice is not used in the case of urgent requests for interim measures of protection. In April 1998 the Court announced that in order to expedite its business it would also proceed without written notes where it considers it necessary, “in suitable cases concerning preliminary phases of the proceedings on the merits (e.g. objections to the jurisdiction of the Court or the admissibility of an Application).” (ICJ Press Release 1998/14, 6 April 1998). 17  On the import and scope of these notes see further ICJ Yearbook (2005–2006), pp. 317–318.

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statement declaring his views. Any judge may also circulate an additional ­question or a reformulation of a question already brought to notice or may ask the Court, through the President, to decide whether a vote shall be taken on any question. The third stage consists of the discussion and approval of the text of the decision (reasoning and operative part), which is carried out on the basis of the above deliberations and the views expounded in the written notes.18 A drafting committee is elected and is tasked with the preparation of a draft decision which, after an initial revision on the basis of written comments by all judges, is read and discussed thoroughly twice. The process concludes with the final voting of the operative part, which takes place after the second reading of the draft decision concludes.19 At this stage of the process, Article 55 of the Statute becomes applicable. This provision establishes in its paragraph 1 the rule that “all questions shall be decided by a majority of the judges present.” By paragraph 2 the President of the Court, or the judge who acts in his or her place, is granted the power to have a casting vote “in the event of an equality of votes,” a situation that only will present itself if the bench for the case or the phase of a case in question is even.20 The voting procedure is carefully regulated in Article 8 of the resolution.

In this sitting the judges that took part in the deliberation and voting of the decision are present, unless any of them is precluded from attending for reasons that appear justified to the President. A quorum of nine is always required. The list of judges present that is included at the beginning of each decision refers to the judges that were present in the private sitting of the Court at which the final voting on the decision took place and not to those physically present during the reading. This explains why, at the beginning of the sitting,

18  The introductory section of the judgment, containing a summary of the steps of the procedure, information on the composition of each party’s delegation and the text of the submissions, is prepared by the Registry and approved by the Court. 19  In exceptional circumstances, a judge may be authorized to record his or her final vote in writing. For an example see ICJ Yearbook (1970–1971), p. 113. 20  B. Fassbender, “Article 55”, in Oxford Commentary, MN 9, p. 1363. The Court has adopted decisions by a casting vote in only three occasions (Lotus, South West Africa and Nuclear Weapons (UNGA). See Ibid., MN 12, p. 1364.

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the President customarily announces if any of the judges who took part in the voting is absent from that reading.21 The sitting is of course concentrated on the reading aloud of the full text of the judgment by the President of the Court, in the presence of the delegations of the parties.22 Theoretically, the decision should be read in the language that is authoritative, but it is customary for the President to do the reading in his or her own mother tongue, or in the language with which he or she is most familiar or feels most comfortable. Under Article 96 of the Rules, if, pursuant to Article 39, para. 1 of the Statute, the parties have agreed that the case is conducted in only one of the official languages, the authoritative text of the judgment is ipso facto the one in that language. Under Article 39, para. 2, absent that agreement the Court decides freely which of the two versions is authoritative and records this decision in the closing part of each judgment.23 Theoretically, the language to be chosen should be the language prevailing within the drafting committee or the working language of the President, but there are reasons supporting the contention that this is not necessarily so. As the composition of this committee is never made public, the matter remains entirely speculative. If the decision is unusually voluminous, the President can skip certain parts, but always announcing this and making a brief summary of the omitted parts. When the reading is well under way, the Registrar hands out a copy of the decision to each of the agents of the parties. These two copies are signed and sealed and constitute, together with a third copy which is kept in the archives of the Court, the only authentic texts of the decision (Rules, Article 95, para. 3). When the reading is over, it is customary for the Registrar to read aloud the operative part in the other official language, and after this the sitting is declared closed by the President. At this point, the Registry issues a press release informing the public at large of the delivery of the decision and attaching a

21  For a reaffirmation of the underlying principle in the context of arbitral proceedings see Arbitral Award (Guinea-Bissau v. Senegal), Judgment of 12 Nov. 1991, ICJ Rep. 1991, p. 63, para. 29. 22  It is customary at this sitting for the agent of each party to be accompanied by the full team of counsel and advocate in charge of the defense. There are, of course, departures from this practice. 23  Although this provision applies only to judgments, in 1948 the Court extended it to orders and advisory opinions (ICJ Yearbook (1947–1948), p. 65). For a comment on the manner in which the Court decides which version is to be the authoritative text see M. Kohen, “Article 39”, in Oxford Commentary, MN 34–35, pp. 918–919.

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non-official but very useful summary (“résumé”) of the decision.24 The text distributed by the Registry on the occasion of the reading is a provisional version of the decision, reproduced by the Court’s own means. The definite printed version, as a fascicle of the yearly series I.C.J. Reports of Judgments, Advisory Opinions and Orders (“C.I.J. Recueil des Arrêts, Avis Consultatifs et Ordonnances”) will only be ready some weeks or months later, when the Registry sends copies to the Secretary-General of the United Nations, to the members of the Organization and to all States entitled to appear before the Court (Rules, Article 95, para. 3). That text is later widely distributed through the public information offices of the UN throughout the world.

Box # 10-3 Anticipated disclosure of the contents of a decision It stands to reason that the contents of a judicial decision cannot be known by the parties or by the public at large before the decision is read in open court. However, there have been exceptions to this rule, including cases in which the confidentiality that surrounds the deliberation process within the Court may have been jeopardized.25

i)

Free Zones

At the PCIJ the most interesting situation in this regard occurred in the Free Zones case, in which the parties explicitly requested to be informed “­unofficially” by the Court of certain aspects of the decision before it was read in open court. The Court complied, albeit in a very official manner, by including in the rea-

24  This is a very concise summary the text of which is embodied in the press release issued by the Registry. It is to be distinguished from a more detailed summary that is issued separately on the same date and also contains summaries of the individual opinions appended by the judges. The Codification Division of the Office of Legal Affairs of the United Nations has published useful compilations of these summaries in all the official languages of the organization. So far, four printed issues have appeared of a collection entitled “Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice” (1948–1991, 1992–1996, 1997–2002 and 2003–2007). As of 1998, these summaries are made available on the website of the division soon after the delivery of each decision (http://www.un.org/law/programmeofassistance). 25  For an innovative proposal related to this and concerning the preparation of decisions by international tribunals see Sir E. Lauterpacht, “Principles of Procedure in International Litigation”, RC, vol. 345 (2009), pp. 523–525.

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soning part of a formal order its findings on the question to which the request referred. Perhaps the best narrative of the events surrounding this episode is that found in the 1929–1930 report of the Court, in the following terms: In the case of the free zones of Upper Savoy and the District of Gex . . . the Court had to decide whether and, if so, in what form, it could give effect to the desire expressed by the Parties in the Special Agreement and Annexes that the result of the Court’s deliberations on a preliminary question of interpretation referred to it should be communicated, unofficially, to their Agents before the rendering of any judgment. This question was decided as follows: It was held that the result of the deliberations on this question might be communicated to the Parties, since the terms of Article 54 of the Statute as regards secrecy referred only to the deliberations themselves, the result reached by the Court being always made public; that this however could not, having regard to the spirit and letter of the Statute (especially Article 54, paragraph 3, and Article 58), be done unofficially, and that the method to be adopted—an order having no “binding” force (Article 59 of the Statute) or “final” effect (Article 60 of the Statute) in deciding the dispute submitted to the Court—would be to embody the result of the Court’s deliberations on the question of interpretation in the grounds of the order fixing the time to be accorded under the second paragraph of Article 1 of the Special Agreement. Though it was thus possible essentially to give effect to the will of the Parties, the terms of the order refer to the irregularity of the Special Agreement and the strictly exceptional character of the construction resorted to.26

ii) Asylum In the Asylum case the Government of Colombia filed a request of interpretation on the same day that the judgment was rendered. The Court rejected this request in a matter of days, and one of the reasons for the rejection was that by the time of the filing of that application there was not—there could not be—in existence a dispute between the parties as to the meaning or scope of the judgment. The Court found as follows:

26   PCIJ E 6, pp. 295, 206–211. See also Order of 19 August 1929 (PCIJ A 22). For a comment see Verzjil’s Jurisprudence, vol. 1, pp. 230–231.

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Article 60 of the Statute provides . . . that interpretation may be asked only if there is a “dispute as to the meaning or scope of the judgment”. Obviously, one cannot treat as a dispute, in the sense of that provision, the mere fact that one Party finds the judgment obscure when the other considers it to be perfectly clear. A dispute requires a divergence of views between the parties on definite points; Article 79, paragraph 2, of the Rules confirms this condition by stating that the application for interpretation “shall specify the precise point or points in dispute”. It is evident that this condition does not exist in the present case. Not only has the existence of a dispute between the Parties not been brought to the attention of the Court, but the very date of the Colombian Government’s request for interpretation shows that such a dispute could not possibly have arisen in any way whatever. (Request for Interpretation-Asylum, Judgment of 27 Nov. 1950, ICJ Rep. 1950, p. 403)

Given the timing involved in the institution of proceedings on interpretation, it was felt in certain circles that the Government of Colombia may have had access to the text of the decision before the reading, thus seriously compromising the confidentiality of the Court’s internal deliberation process.27

iii) Nuclear Tests (Australia v. France) A more mortifying situation for the Court arose in the Nuclear Tests (Australia v. France) case, in which, one day before the reading of an order on the indication of provisional measures, the Prime Minister of Australia issued a statement in which the contents and scope of the decision, as well as the exact majority with which it was to be adopted, were largely anticipated (and welcomed!). The Court clearly felt embarrassed that confidential information had found its way outside the premises of the Peace Palace and organized an investigation directed at finding the origins and source of the leak. The investigation proved inconclusive and the Court adopted a resolution placing this fact on record and containing the following statement:

27  That this decision may have been leaked before the reading is further supported by a commentary on the judicial activity of the Court during that year (M.O. Hudson, “The Twenty-Ninth Year of the World Court”, AJIL, vol. 45 (1951), p. 24).

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[t]he Court has above all been mindful of the need to protect the integrity of the international judicial process as well as the dignity of the principal judicial organ of the United Nations. (. . .) The Court . . . expresses its strong disapproval of the making, circulation or publication of all statements anticipating or purporting to anticipate or forecast the manner in which judges of the Court will cast their votes in a pending case; and reiterates its view that any making, circulation or publication of such statements is incompatible with the fundamental principles governing the good administration of justice.28 When the judgment on the merits was delivered, the President (Lachs) appended a declaration in which he stated the following: Good administration of justice and respect for the Court require that the outcome of its deliberations be kept in strict secrecy and nothing of its decision be published until it is officially rendered. It was therefore regrettable that in the present case, prior to the public reading of the Court’s Order of 22 June 1973, a statement was made and press reports appeared which exceeded what is legally admissible in relation to a case sub judice. The Court was seriously concerned with the matter and an enquiry was ordered in the course of which all possible avenues accessible to the Court were explored. The Court concluded, by a resolution of 21 March 1974, that its investigations had not enabled it to identify any specific source of the statements and reports published. I remain satisfied that the Court had done everything possible in this respect and that it dealt with the matter with all the seriousness for which it called. (Nuclear Tests (Australia v. France), Judgment, Declaration of President Lachs, ICJ Rep. 1974, p. 273)29

28  The text of the resolution of 21 March 1974 (in French) can be found in the Court’s Press Release 74/2 of 26 March 1974. For the English version see ICJ Yearbook 1973–1974, pp. 127–128. See also the Press Release 73/30 of 10 August 1973. 29  See also the declaration by judges Bengzon, Onyeama, Dillard, Jiménez de Aréchaga and Waldock (ICJ Rep. 1974, p. 273) and the separate opinion of judge Gros (ibid., pp. 293–296). For a narrative of this episode see F. Jhabvala, “Declarations by Judges of the International Court of Justice”, AJIL, vol. 72 (1978), p. 850.

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Formal Features and Contents of the Decision30

The judgment is a document drafted in the two official languages of the Court, on opposite pages, with the authoritative version appearing on the left pages.31 In this printing system—usually referred to as en regard format—the left-hand page is known as the “verso” and the right-hand as the “recto.”32 The style used in the drafting tries to be as clear and neutral as possible, deliberately avoiding the use of technical terms belonging to any given legal system, though the use of Latin maxims and terms is not infrequent.33 The text was formerly continuous—although sometimes headings or subheadings were used—but since 1966 the judgment is assembled on the basis of consecutively numbered paragraphs, a device that considerably assists both the cross-references contained in the text itself and the quotation of passages by scholars and commentators.34 As regards its length, an ordinary judgment is between fifty and one hundred and fifty pages long; a short judgment may reach some 100 paragraphs, while a long one can meet or exceed 250. According to the “Bluebook”, the shortest judgment by the Court so far has been 10 pages long and the longest was 271 pages.35 At the end of the decision come the declarations and individual opinions that some judges may see fit to append.

30  M.O. Hudson, International Tribunals, Past and Future (1944) pp. 113–114; Sir R. Jennings, “The Role of the International Court of Justice”, BYIL, vol. 68 (1997), pp. 33–35. 31  The practice of the PCIJ in this matter was different. See on this Chapter 4, d), text to note 105. 32  S. Rosenne, “Publications of the International Court of Justice”, AJIL, vol. 81 (1987) p. 683. Note that when the decisions are printed as part of the I.C.J. Reports series two pagination systems are used, namely a consecutive pagination for each fascicle containing a decision, at the bottom of the page, and a general pagination running continuously through each year volume, at the top of the page. The latter is the one to be used when referring to the page of a given passage of a decision. 33   For a thorough appraisal of the Court’s style in the drafting of judgments see J.A.R. Nafziger, “Some Remarks on the Writing Style of the International Court of Justice”, in T. Buergenthal (Ed.), Contemporary Issues in International Law, Essays in Honor of Louis B. Sohn (1984), pp. 325–345. See also Thirlway, “The Drafting . . .”, pp. 15–28. 34  In the case of orders, only those of certain extension are divided in numbered paragraphs, a practice adopted in 1972 (Guyomar’s Commentaire, p. 605). 35  The International Court of Justice (2004), p. 70.

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Box # 10-4 Importance of the bilingual presentation of the text of the decision In December 1986, the Court had occasion to make comments on a report by the Joint Inspection Unit of the United Nations entitled “Publications of the International Court of Justice.” One of the recommendations contained in this document was directed at challenging, for budgetary reasons, the production of combined English/French texts for the Court’s decisions and other publications. The Court strongly objected to this suggestion and offered very cogent reasons for maintaining the existing system: [i]t must be emphasized that the interplay of the Court’s official two languages, which mirrors that evident in its bilingual Statute, is among th[e] essential characteristics of the Court’s decisions (. . .). The drafting of each decision proceeds in parallel in both official languages, this being a reflection of the equality of the judges in respect of their chosen working language. While each passage of the text will of course originally have been drafted in one language, not all may have been drafted in the same one, and the process of amendment which ensues results normally in an English and a French text of which neither can justly be designated as the sole original or as a translation. The two texts are therefore mutually supportive, a fact which retains its importance for all those concerned to understand the decision, irrespective of the clearly necessary statement which the Court always makes, in accordance with Article 39, paragraph 2, of its Statute, for the purpose of distinguishing the legally authoritative text.36 In this regard, it is interesting to note that Article 39, para. 1 of the Statute is clear in providing that, if the parties agree as to the use of only one language during the proceedings, “the judgment shall be delivered” in that language. Under an a contrario argument, it could be possible to think that this means that in these cases the judgment should not be or need not be delivered in the other language. However, Article 96 of the Rules provides that, when those circumstances obtain and the judgment is to be delivered in the agreed-upon language, “the text of the judgment in that language shall be the authoritative text.” This last sentence presupposes that there is always going to be a text of

36  UN Doc.A/41/591/Add.1 (annex 2), 5 Dec. 1986, p. 12, para. 21.

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the judgment in the other language, even if it can never be authoritative, a solution that is altogether more in accordance with the practice on bilingualism followed since the time of the PCIJ.

With regard to format, judgments differ markedly from orders in two respects. On one hand, with only one exception, the Court has always avoided the use of recitals—“Whereas” or “Considerant” clauses—in its judgments.37 The structure and format of the judgments can be said to follow in general the discursive model used in common law systems, with the necessary adjustments given the international nature of the Court.38 On the other hand, judgments—and advisory opinions, for that matter—are preceded by a “headnote” in italics, containing a useful summary of the essential points addressed by the decision. Orders can thus be easily recognized at a glance of their cover page because instead of a headnote, they begin invariably with a recital of the provisions of the Statute and the Rules that the Court found appropriate to invoke as authority.39 According to Article 56 of the Statute, the judgment shall “state the reasons on which it is based” and “contain the names of the judges who have taken part in the decision.” Article 95, para. 1 of the Rules develops this norm by stating that the judgment shall contain several distinct elements (apart from stating whether it was given by the full Court or by a chamber). These elements are eleven in total and can be grouped in four main sections, located in that order in the text: an introductory part, a reasoning part, the operative part and a closing part. 37  The only judgments of the Court that follow the format of an order were rendered by a chamber of the PCIJ in the Treaty of Neuilly case: the decision on the merits (1924) and the judgment on interpretation of that decision (1925). This is probably connected to the fact that this is also the only contentious case dealt with by a chamber of summary procedure in the history of both courts (PCIJ A 3 and 4). 38  Fachiri’s PCIJ, p. 117; M. Shahabuddeen, “Precedent in the World Court (1996), p. 206. 39  However, there are at least two exceptions to this rule. The Court’s orders directing the joinder of the cases in South West Africa (Ethiopia v. South Africa; Liberia v. South Africa, Order of 20 May 1961, ICJ Rep. 1961, p. 13) and North Sea Continental Shelf (Denmark/Federal Republic of Germany; Federal Republic of Germany/Netherlands, Order of 26 April 1968, ICJ Rep. 1968, p. 9) are both preceded by a headnote, as though they were judgments. In addition, in at least one case the Court did not find it necessary to insert a headnote at the beginning of a judgment, probably because it was a short decision focused on what were essentially technical points (Request for Interpretation-Asylum, Judgment of 27 Nov. 1950, ICJ Rep. 1950, p. 395).

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Section I: Introductory Part This part is fairly short and contains basic factual information concerning the case, including the following: (1) (2) (3) (4) (5) (6)

The date on which the judgment is read; The names of the judges participating in it; The names of the parties; The names of the agents, counsel and advocates of the parties; A chronology or summary of the procedure;40 and A transcription of the submissions of the parties.41

Section II: Reasoning Part or “Grounds” (“les motifs de droit”) This section forms the bulk of the decision and includes: (7) A statement of the facts; and (8) The reasons in point of law. Within this section, in turn, two subsections may be distinguished. In the first a general description of the dispute or the question submitted for adjudication is included, containing historical data as to the evolution of the problem—up to the date on which proceedings were instituted—as well as other general information of technical nature that may be useful, sometimes referred to with the catch-all expression “contextual background.” In cases concerning title to territory or maritime delimitation, for instance, particulars of the geographical context are presented here and often they are accompanied by one or more sketch-maps prepared “for illustrative purposes only.” In the second subsection the Court proceeds to consider every individual aspect of the case before it, in the order in which it sees fit. It often happens that, before entering into the consideration of the substantive aspects of the dispute the Court chooses to deal with questions that it considers to be of a

40  In French this is usually called the “qualités.” This summary contains information related exclusively to the procedural evolution of the case and should not be confused with the summary of the contents of the decision, or headnote, which appears on the first page of each judgment. See below, text to note 61. 41  This includes the submissions made at every step during the written proceedings, as well as the final submissions. If proceedings were instituted unilaterally, the submissions are reproduced after a transcription of the section of the application describing the claim or claims of the party filing it. See Guyomar’s Commentaire, pp. 603–604.

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general or preliminary character, in the sense that only by resolving them first the Court will feel able to deal with the main substantive aspects of the dispute. As for the latter aspects, the pattern is uniform: first, the judgment summarises the views of each of the parties, sometimes illustrating this with direct quotations taken from the pleadings—the Court has abandoned its previous practice of setting out in a comprehensive manner the contentions of the parties on all aspects of the case at the beginning of the judgment—42 and then presents the Court’s take on each matter under discussion, covering its findings on questions of fact and law. At the end of this section, when the arguments submitted by the parties have been dealt with one by one, the Court summarizes the way in which it handled the whole case and then sets out the main conclusions it has drawn, which will find a definite formulation in the operative part. Section III: Operative Part or “dispositif” The ninth and final substantive element of the decision, comprising Section III, is the operative part. This has been defined as “the final, concise statement of the Court’s findings.”43 It is the shortest but probably the most significant part of the judgment, as it embodies what constitutes the “decision” that has “binding force” between the parties and is “final and without appeal” (Articles 59 and 60 of the Statute).44 It contains what Article 95, para. 1 of the Rules calls “the operative provisions of the judgment.” As most of the disputes or requests for opinion put before the Court require the answer to several separate questions, the dispositif is very rarely composed of a single paragraph. In these conditions, and given that each of these paragraphs partakes of the legal condition of a “decision,” they are voted on separately and (since 1978) the names of the judges voting for and against each paragraph are listed right before the respective formulation,45 which are numbered consecutively using Arabic figures and, in some cases, letters.46

42  For a comment see Sir R. Jennings, “The Role . . .”, pp. 34–35 and note 63. 43  D.W. Bowett, “res judicata and the Limits of Rectification of Decisions by International Tribunals”, African Journal of International and Comparative Law, vol. 8 (1996), p. 577. 44  Guyomar’s Commentaire, pp. 601–602. 45  This is what paragraph 1 of article 95 of the rules calls “[t]he number and names of the judges constituting the majority.” 46  Article 8 of the 1976 resolution concerning the internal judicial practice of the Court deals with the procedure governing the voting in those cases “where the decision deals with issues that are separable.”

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Box # 10-5 Can the operative part of the judgment contain obiter dicta? There is general agreement in that obiter dicta are those parts of a decision that are not really necessary for the settlement of the dispute or for the Court’s reaching the decision or any part of it. The Court has stated that the notion of obiter dicta refers to “peripheral or subsidiary matters” that are contained in a decision but are not covered by the force of res judicata (Genocide Convention (Bosnia), Merits, Judgment of 16 Feb. 2007, ICJ Rep. 2007, p. 95, para. 126). In a separate opinion in the Oil Platforms case, judge Kooijmans criticized what he understood to be the inclusion in the dispositif of certain considerations that were not necessary for the decision of the dispute. He was disturbed that this was unprecedented in the practice of both Courts and dangerous for the stability of the res judicata principle: My main reason of concern . . . upon casting my vote was that the operative part does not immediately respond to the claim as formulated by the Applicant, but starts with a finding not essential to the Court’s decision on that claim, thereby creating the impression that it nevertheless was essential for that purpose. I have checked the operative parts of all judgments of this Court and its predecessor, the Permanent Court of International Justice, in contentious cases and none of them starts with a finding that is not determinative for the Court’s disposition of the claim. Although it is not unusual for the dispositif of a judgment to contain elements which do not respond directly to points raised in the claim, such paragraphs either are addressed to both parties (. . .) or are observations by the Court concerning existing rights belonging to or obligations undertaken by one of the parties (. . .). In the Hostages case, paragraph 1 of the dispositif contained a finding (a violation by the Respondent of its obligations under general international law) which did not directly correspond to the Applicant’s claim in the final submission but that claim itself was first upheld in toto (. . .). It is, however, unprecedented in the history of both Courts for a claim against a Respondent to be rejected while earlier in the same paragraph the Respondent is found to have acted unlawfully even though that finding is not—and is not said to be—determinative or even relevant for the dismissal of the claim. This novum can be seen as setting a precedent which in my view is a highly hazardous one since it raises questions about

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the scope of a judgment of the Court, for example, with regard to its res judicata character. (Oil Platforms, Merits, Separate Opinion of Judge Kooijmans, ICJ Rep. 2003, p. 247, para. 3)47

In a similar vein, in the Request for Interpretation-Avena case, judge Abraham criticized the inclusion in the operative part of the decision of what he categorized as “superfluous statements:” It is one thing to include in the reasoning of a judgment legally superfluous comments, observations or propositions apparently beyond the scope proper of the jurisdiction exercised by the Court. This is never particularly advisable, but the Court may on occasion have reasons for doing so by way of explanation. Where done judiciously and in moderation (. . .), this can be acceptable. It is in any case another to include in the operative clause of a judgment observations falling outside the scope of the jurisdiction being exercised by the Court. The reason for this is that, while superabundant elements in the reasoning have no force as res judicata, everything in the operative clause of a judgment is in principle res judicata. Superfluous points in the reasoning may be permissible; superfluous statements in the operative clause are not. It follows that each and every part of the operative clause must fall strictly within the scope of the Court’s jurisdiction. (Request for Interpretation-Avena, Declaration by judge Abraham, ICJ Rep. 2009, p. 28)

Section IV: Closing Part In the last segment of the decision, two important elements are included: (10) The decision, if any, with regard to costs; (11) A statement as to the text of the judgment that is authoritative.

47  See also, in the same opinion, ICJ Rep. 2003, p. 256, para. 33.

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Box # 10-6 Costs According to Article 64 of the Statute, “[u]nless otherwise decided by the Court, each party shall bear its own costs;” under Article 97 of the Rules, “[i]f the Court, under Article 64 of the Statute, decides that all or part of a party’s costs shall be paid by the other party, it may make an order for the purpose of giving effect to that decision.” Interestingly, the PCIJ was of the opinion that Article 64 only required a decision as to which party should bear the costs and not as to the amount of the costs.48 Article 97 is considerable more flexible than the corresponding provisions in the previous Rules (Article 77 of the 1946 Rules and Article 82 of the 1972 Rules), according to which the party in whose favour and order for the payment of costs was made should present its bill of costs within 10 days of the delivery of the judgment and the Court was to “decide any dispute concerning the bill.”49 It does not happen often in litigation before the ICJ that a party makes a request for the reimbursement of costs and so far the Court has had no occasion to apply these provisions.50 A case that comes to mind is Nicaragua, in which the applicant included a request for costs in its Memorial concerning the question of reparations but reserved “[i]ts presentation of the claim for costs until such time as the Court finds it convenient to indicate its views on the precise procedural implications of Nicaragua’s claim for costs” (ICJ Pleadings, Nicaragua, vol. 5, p. 348, paras. 489–490). The case was discontinued before the Court could make a ruling on reparations. As a result, the contention advanced by Hudson in 1943 that “the law with reference to the costs which the Court may award under Article 64 of the Statute is as yet undeveloped,” remains for its most part valid.51 The question of costs has been addressed in a handful of cases by the present Court.52 The first time was in the context of advisory proceedings. In the Review of UNAT Judgment No. 158 case the Court stated as follows:

48  PCIJ E 3, p. 121. 49  For a comment see Rosenne’s Procedure, p. 200. 50  For a list of cases in which a request for an award of costs was included in the act instituting proceedings see Guyomar’s Commentaire, p. 619, note 9. 51  Hudson’s PCIJ, p. 530. Different solutions have been adopted by other international tribunals. See Lauterpacht, “Principles . . .”, p. 487 and note 386. 52  For the practice at the time of the PCIJ see Hudson’s PCIJ, pp. 589–590.

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Account must . . . be taken of the basic principle regarding the question of costs in contentious proceedings before international tribunals, to the effect that each party shall bear its own in the absence of a specific decision of the tribunal awarding costs (cf. Article 64 of the Statute of the Court). An award of costs in derogation of this general principle, and imposing on one of the parties the obligation to reimburse expenses incurred by its adversary, requires not only an express decision, but also a statement of reasons in support. On the other hand, the decision merely to allow the general principle to apply does not necessarily require detailed reasoning, and may even be adopted by implication. Review of UNAT Judgment No. 158 Advisory Opinion of 12 July 1973, ICJ Rep. 1973, p. 212, para. 98)53

In the Request for Interpretation-Cameroon v. Nigeria case, facing a request from Cameroon concerning the payment of “certain additional costs,” the Court merely remarked that it saw “no reason to depart in the present case from the general Rule set forth in Article 64 of the Statute.”54 Finally, in the Diallo-Compensation case, the Court had to deal with a request by the applicant to award costs in its favour “as a result of having been forced to institute the . . . proceedings.” The Court remarked as follows: The Court recalls that Article 64 of the Statute provides that, “[u]nless otherwise decided by the Court, each party shall bear its own costs”. While the general rule has so far always been followed by the Court, Article 64 implies that there may be circumstances which would make it appropriate for the Court to allocate costs in favour of one of the parties. However, the Court does not consider that any such circumstances exist in the present case. Accordingly, each party shall bear its own costs. (Diallo, Compensation, Judgment of 19 June 2012, para. 60)

53  See also the dissenting opinion of judge Ammoun in the same case (ICJ Rep. 1973, pp. 249–250) and the declaration of judge Greenwood in the Judgment 2867 of ILOAT case, Advisory Opinion of 1 Feb. 2012, paras. 5–6. 54  Request for Interpretation-Cameroon v. Nigeria, Judgment of 25 March 1999, ICJ Rep. 1999, p. 40, para. 18. The question is also mentioned in the dispositif (ibid., para. 19).

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In this regard, it is also appropriate to make reference to the Secretary-General’s Trust Fund to assist States engaged in litigation before the ICJ, as discussed in Chapter 4.55

For the sake of completeness, it is useful to mention also some other minor, formal elements appearing in the text of each judgment, despite the fact that they are not mentioned in Article 95, para. 1 of the Rules. They are the following: (11 bis) A list of acronyms and abbreviations used in the text (only in certain cases).56 (11 ter) The official name that the case has been given, included at the beginning of the decision, right after the date on which it is read;57 (11 quar) The folio number that the case has been given in the Court’s General List, appearing on the margin of the same page; (11 quin) The official citation for the decision, which is an abbreviated version of the title of the case58 and appears in page 2, along with data pertaining to the publication of each volume, such as the ISSN and ISBN numbers and the UN sales number; (11 sext) A headnote that appears in Italic characters at the beginning of each judgment—between the names of the parties and the composition of the Court—and constitutes in effect a concise summary of the contents of the decision. (11 sept) On the last page of the judgment the names of those signing the decision—the President of the Court and the Registrar—are mentioned. Immediately after this, the names of any judges appending individual opinions are listed, followed by the initials of the President and the Registrar. The text of these opinions follows that of the decision, starting with those made by members—beginning always with 55  See Box # 4-11. 56  See examples in Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 46; Pulp Mills, Merits, Judgment of 20 April 2010, ICJ Rep. 2010, pp. 16–17. 57  This appears in what amounts to page 4 of each decision. The full name of the case in both official languages (including those of the parties), along with the date of the judgment, appeared already in pages 1 (the cover of each volume) and 3. 58  Yet another abbreviation of the title of each case appears at the top of each page in the printed version of the judgment.

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the President and the Vice-President and then following the order of seniority within the bench—and ending with those made by judges ad hoc. Some of these elements call for a comment. Firstly, the Court has abandoned the practice of attaching to the text of the decisions certain documents that belong more properly to the respective case-file.59 This notwithstanding, certain judgments have included as an appendix the text of a report by a technical expert appointed by the Court or maps and charts included in a pocket at the end of the respective fascicle or inside the back cover of the volume of the respective I.C.J. Reports series.60 Secondly, with regard to element 11 sext, it is worth noting that at the time of the PCIJ headnotes were initially no included in the decisions but in the section of the Court’s annual report dealing with decisions taken during the previous year. The practice of including them in the text of the decision itself started only in 1931.61 As for the present Court, the decision that it was for the Court itself to read and approve the summary contained in the headnote was taken in March 1948.62 Judge Shahabuddeen has remarked that these headnotes are “[i]n the nature of catchwords, designed to facilitate identification of issues. [They] have no authority, but indicative of the precedential value which the Court attaches to its decision is the fact that they are settled by the Court itself, immediately before the final vote is taken.”63 In the Request for Interpretation-Temple of Preah Vihear case, one of the parties relied heavily in a passage of the headnote of the judgment to be construed in order to support one of its arguments. The Court rejected this outright and underlined the limited value that this device has, at least for purposes of the interpretation of the decisions to which they are attached: Under Article 95, paragraph 1, of the Rules of Court (Article 74, paragraph 1, of the Rules of Court of 1946 applicable in 1962), the headnote is not one of the elements of the Judgment and it does not form part thereof. 59  For instances of this see Corfu Channel, Merits (ICJ Rep. 1949, pp. 132–169); Corfu Channel, Compensation (ICJ Rep. 1949, pp. 257–265); Asylum (ICJ Rep. 1950, pp. 382–389) and Interpretation of Peace Treaties (ICJ Rep. 1950, pp. 114–119). 60  Gulf of Maine, ICJ Rep. 1984; Burkina Faso/Mali, ICJ Rep. 1986; El Salvador/Honduras, ICJ Rep. 1992; Qatar v. Bahrain, ICJ Rep. 2001. 61  PCIJ C 7, p. 340. 62  ICJ Yearbook 1947–1948, p. 68. 63  Shahabuddeen, “Precedent . . .”, p. 33.

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Moreover, the purpose of the headnote is only to give the reader a g­ eneral indication of the points examined in a judgment; it does not constitute an authoritative summary of what the Court has actually decided. The Court does not consider that the headnote to the 1962 Judgment assists in resolving the questions of interpretation raised in the present proceedings. (Request for Interpretation-Temple of Preah Vihear, Judgment of 11 Nov. 2013, para. 73)

Also with regard to 11 sext, traditionally judgments contained sections with headings and subheadings in only exceptional cases, but in recent decisions they have been included throughout the text. This has also led to the insertion of a comprehensive table of contents at the beginning of the each decision, either replacing or preceding the traditional headnote.64 With regard to the elements mentioned in 11 sept, it has long been accepted that the signatures by the President and the Registrar serve merely to authenticate the text of the decision.65 Also, since 1998 most of the opinions appended by individual judges have been preceded by their own headnote, drafted by the author of the opinion. Some members of the Court decline to do this, either because the statement is very brief or because, owing to its length, it is accompanied by a detailed table of contents of its own.

Box # 10-7 Format of orders The orders of the Court other than those simply fixing or extending time-limits follow what Rosenne has called “the cartesian dogmatic-syllogistic” style used in certain Continental law systems.66 As to format, the structure of a typical order is as follows:

64  The practice of inserting a table of contents at the beginning of the judgment began in earnest in February 2007, with the decision on the merits in the Genocide Convention (Bosnia) case ( Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 43). With two exceptions (Request for Interpretation-Avena, Judgment of 19 Jan. 2009 and Diallo, Preliminary Objections, Judgment of 24 May 2007) all the judgments and advisory opinions since rendered by the Court contain a table of contents. Starting with the decision in Navigational Rights ( Judgment of 13 July 2009, ICJ Rep. 2009, pp. 213–217), the table of contents has co-existed with the headnote. 65  Hudson, “International Tribunals . . .”, p. 115. 66  S. Rosenne, Practice and Methods of International Law (1984), pp. 94–97.

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Section I: Introduction This part contains the following:

· The date on which the order is made; · The names of the judges participating in it (unless it is an order made by the President, if the Court is not sitting); and · The names of the parties.

Section II: Reasoning Part or “Grounds”

This section forms the bulk of the order and includes two different subsections:

· The

governing provisions cited as authority (articles of the Statute and the Rules of Court). This enumeration is preceded by the formula “Having regard . . .” (“Vu”). The consideranda, i.e. the grounds for the decision embodied in the order. In the case of orders dealing with substantive questions this section used to be composed of unnumbered subparagraphs each of them preceded by the term “Whereas . . .” (“Considérant”), but there is a discernible trend to make orders dealing with substantive aspects and judgments look more alike. Hence, as of 1990 these paragraphs are numbered in Arabic characters and as of 2013 the term “Whereas . . .” appears only once, in the second page of the order—and, naturally, applies to all subsequent considerenda.67 As for contents, this section may include references to steps in the procedure, views expressed by the parties, background facts and legal considerations.

·



Section III: Operative Part or “dispositif”

This is the shortest part of the order and consists of the formulation that the Court chooses to give to its decision. As in the case of judgments, it may contain 67  The first substantive order of the Court in which numbered paragraphs were used appears to be an order concerning the indication of provisional measures in the Arbitral Award (Guinea-Bissau v. Senegal) case (Order of 2 March 1990, ICJ Rep. 1990, p. 64). The first time that the term “Whereas . . .” was included only in page 2 of the order and not at the beginning of each numbered paragraph was in two orders concerning joinder in the cases Activities in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road (Nicaragua v. Costa Rica), both made on 17 April 2013.

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separate paragraphs, each of which will mention the number and names of the judges constituting the majority.68



Section IV: Closing Part

In the last segment of the order a statement as to the language version in which the order is authoritative is included. Additional (formal) elements that can be found in the text of orders are the following: – The name of the case; – The folio number; – The “official citation” for the order and the data pertaining to the publication of each volume, such as the ISSN and ISBN numbers and the UN sales number; and – On the last page of the order, the names of those signing it—the President of the Court and the Registrar—immediately followed by a list of the judges appending individual opinions or declarations, followed then by the initials of the President and the Registrar. The text of these statements follows that of the order.

c)

The Reasoning Section: Aspects of Methodology69

According to Article 56, para. 1 of the Statute “[t]he judgment shall state the reasons on which it is based.” Perusal of the judgments of the Court shows that there are certain forms and methods that are observed in the “manufacturing” of the reasoning section. Among them the following deserve mention.

68  Interestingly, this has no basis in the Rules, for it is exclusively based on Article 95, para. 1, which on its face is only applicable to judgments of the Court. However, as it will be seen presently, practice has been uniform in the opposite direction. 69 See, in general, D. Morin, “La motivation des arrets de la Cour international de Justice”, in C. Apostolidis (Ed.), Les arrets de la Cour internationale de Justice (2005), pp. 93-103; F.M. Palombino, “Judicial Economy and Limitation of the Scope of the Decision in International Adjudication” LJIL, vol. 23 (2010), pp 909-932; L.F. Damrosch, “Article 56”, in Oxford Commentary, MN 1-26, pp. 1367–1375.

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Ordinarily, the Court Bases the Reasoning of Its Decision on the Arguments Put Forward by the Parties In the normal course of things, the Court will dispose of a case by accepting one or more of the contentions put forward by one of the parties and rejecting the corresponding contention or contentions advanced by the opposite party. This has two practical consequences, namely, (1) That the formulation of the dispositif will closely resemble, or even follow verbatim, one or more of the submissions of the parties and (2) That, ordinarily, a point that is not fully argued by the parties and on which none of the parties request a finding should not be decided by the Court.70 However, the Court retains full freedom to decide on other grounds and from time to time it chooses to base its decision on an aspect of the case of which it can be said that was not properly raised or argued by the parties.71 The Court’s first assertion of this power can be found in the judgment in the Guardianship of Infants case, in which it stated: The final submissions of the Government of the Netherlands (. . .) ask it to “declare” certain propositions relating to the effect of protective upbringing and to ordre public. These propositions are, in reality, the essential considerations which, in the view of the Government of the Netherlands, must lead the Court to adjudge and declare that Sweden is in breach of its obligations. (. . .) The Court has to adjudicate upon the subject of the dispute; it is not called upon, as it pointed out in the Fisheries case, to pronounce upon a statement of this kind (. . .). It retains its freedom to select the ground upon which it will base its judgment, and is under no obligation to examine all the considerations advanced by the Parties if other considerations appear to it to be sufficient for its purpose. (Guardianship of Infants Judgment of 28 Nov. 1958, ICJ Rep. 1958, p. 62)72

70  Monetary Gold, Individual Opinion of Judge Read, ICJ Rep. 1954, p. 37. 71  For a proposal to correct this see Lauterpacht, “Principles . . .”, pp. 521–523. 72  For a comprehensive analysis of this dictum and the use that the Court has made of it in subsequent cases see A. Orakhelashvili, “The International Court of Justice and ‘its freedom to select the ground upon which it will base its judgment’”, ICLQ, vol. 56 (2007), pp. 171–184. See also D. Bethlehem, “Submissions on Points of Fact and Law: Written and Oral Pleadings before the International Court of Justice“, in F. Weiss, (Ed.), Improving WTO Dispute Settlement Procedures: Issues and Lessons From the Practice of Other International Courts and Tribunals (2000), pp. 181–182.

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Ordinarily, the Court Does Not Feel Bound to Address in the Reasoning Section All the Arguments Put Forward by the Parties In addition to the last sentence of the dictum just reproduced, in a case submitted by special agreement a chamber of the Court found that it had “a duty to decide the whole of the petitum entrusted to it.”73 However, for reasons of judicial economy it often happens that the Court manages to decide a case on certain grounds and finds that there is no need for it to resolve other aspects, even if they have been the subject of full argument. Therefore, in some cases the Court leaves unanswered certain questions advanced by the parties, because it finds that, for the purposes of the case before it, there is no real need to decide upon them.74 In this regard, it is apposite to recall an observation made by a former President of the Court, in the following terms: [i]n accordance with the principle of judicial propriety, a court of law is required to pronounce upon those issues alone which are so directly involved in the decision-making process as to require detailed scrutiny followed by a regular judgment from the Court. In short, in the proper discharge of its judicial function, a court is not required to pronounce on those aspects of the case which do not call for a decision in the task of accomplishing the adjudication of the dispute. No tribunal could ever undertake an exercise in futility. This particular principle of judicial propriety needs to be emphasized as it should find a rightful place in the Court’s jurisprudence since a tribunal indulging in unnecessary pronouncements, by making them when not legally required to do so, could easily undermine its judicial character. This would particularly apply in the context of administering inter-State law wherein the Court’s observations, despite Article 59 of the Statute, could easily create implications in the relations between States including even those not before the Court. A tribunal has to be ever mindful of that aspect. (Aegean Sea, Jurisdiction, Separate Opinion of Judge Nagendra Singh ICJ Rep. 1978, pp. 46–47)

73  Burkina Faso/Mali, Judgment of 22 Dec. 1986, ICJ Rep. 1986, p. 579, para. 50. 74  For examples see Nicaragua v. Colombia, Preliminary Objections, Judgment of 13 Dec. 2007, ICJ Rep. 2007, pp. 853–854, paras. 58–59; Jurisdictional Immunities, Merits, Judgment of 3 Feb. 2012, para. 108.

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The Court’s Judgments May Contain obiter dicta It also happens from time to time that, for reasons connected with the internal process of deliberation that are never made public, the Court makes findings that, strictly speaking, are not needed to resolve the question before it. The passages of the motifs of the decision in which such findings can be found are then categorized as obiter dicta and the tendency in scholarly comment and in future pleadings is to present them as somehow having less authority than those passages of the judgment that without a doubt constitute the ratio decidendi of a given case. Nevertheless, the practice of adjudication before the ICJ shows that this may be diminished with the passing of time, and it happens often that the Court itself confers additional authority to one of its obiter, by the simple procedure of restating or quoting from the corresponding passage in a future decision. As the Court has stated several times (especially in decisions that are relatively recent): It is true that, in accordance with Article 59, the Court’s judgments bind only the parties to and in respect of a particular case. There can be no question of holding [a State] to decisions reached by the Court in previous cases. The real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases. (Nigeria v. Cameroon, Preliminary Objections, Judgment of 11 June 1998, ICJ Rep. 1998, p. 292, para. 28)75

Evidently, the expression “reasoning and conclusions” used in this passage covers the entire body of the decision and does not make distinctions between obiter dicta and ratio decidendi. In practice, when the Court chooses to base its decision on previous findings of its own, it never pays attention to these fine distinctions.76

75  In the decision on preliminary objections in the Genocide Convention (Croatia) case, the Court resorted to this reasoning on several occasions ( Judgment of 18 Nov. 2008, ICJ Rep. 2008, pp. 428–429, paras. 53–54; p. 437, para. 76; pp. 448–449, para. 104; pp. 464–465, para. 141). Previous, albeit less direct, formulations of this idea can be found in the following cases: South West Africa, Preliminary Objections, Judgment of 21 Dec. 1962, ICJ Rep. 1962, p. 334; Namibia, Advisory Opinion of 21 June 1971, ICJ Rep. 1971, p. 18, para. 9; Review of UNAT Judgment No. 158, Advisory Opinion of 12 July 1973, ICJ Rep. 1973, p. 172, para. 14. See also, from the time of the PCIJ, the Readaptation of the Mavrommatis Concessions case ( Jurisdiction, Judgment No. 10, 10 Oct. 1927, PCIJ A 11, p. 18). 76  See also Chapter 16, text to note 73.

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The Court Retains Considerable Freedom as to the Order in Which It Will Address the Issues before It In the Cameroon v. Nigeria case the respondent filed a preliminary objection related to the manner in which the Court would take up the different aspects of the case. The dispute concerned title to territory and maritime ­delimitation and the objection referred only to this second aspect and consisted in that the Court lacked jurisdiction to deal with the maritime delimitation, inter alia, because it was legally and materially impossible for it to carry out that operation without first having determined title to a portion of disputed territory, namely, the Bakassi peninsula. For Cameroon this did not constitute a genuine objection, either of jurisdiction or of admissibility, inasmuch as it simply had to do with a question of methodology, i.e. the order in which the Court would address the different aspects of the dispute before it. The Court found for the applicant on this aspect and remarked that that question was within its discretion: Nigeria says that (. . .) no determination of a maritime boundary is possible prior to the determination of title in respect of the Bakassi Peninsula. (. . .) Cameroon is of the view that the first argument invoked by Nigeria concerns neither jurisdiction nor the admissibility of its Application, but simply the method whereby the merits of the case are best addressed, a decision which falls within the discretion of the Court. (. . .) (. . .) The Court accepts that it will be difficult if not impossible to determine the delimitation of the maritime boundary between the Parties as long as the title over the Peninsula of Bakassi has not been determined. The Court notes, however, that Cameroon’s Application not only requests the Court “to proceed to prolong the course of its maritime boundary with the Federal Republic of Nigeria up to the limit of the maritime zones which international law places under their respective jurisdictions” (Application of Cameroon of 29 March 1994, p. 15, para. 20 (f)), but also, “to adjudge and declare: (a) that sovereignty over the Peninsula of Bakassi is Cameroonian, by virtue of international law, and that that Peninsula is an integral part of the territory of Cameroon” (ibid., para. 20).

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Since, therefore, both questions are before the Court, it becomes a matter for the Court to arrange the order in which it addresses the issues in such a way that it can deal substantively with each of them. That is a matter which lies within the Court’s discretion and which cannot be the basis of a preliminary objection. This argument therefore has to be dismissed. (Cameroon v. Nigeria, Preliminary Objections, Judgment of 11 June 1998, ICJ Rep. 1998, pp. 319–321, paras. 104–106)

It is interesting to observe that a crucial factor in this reasoning was that at this stage of the case the Court had already found that both aspects of the problem (territorial sovereignty and maritime delimitation) were within the scope of its jurisdiction, as accepted by both parties. One may only wonder if an objection along the same lines could not be successful in circumstances in which, for instance, jurisdiction was from the outset entirely lacking on the territorial aspect of the dispute. It is also interesting to recall a comment by judge Ranjeva, included in his declaration in the Oil Platforms case: The Court’s freedom to determine the order in which questions of law raised in the dispute should be addressed is a discretionary one; that does not imply that the Court is entitled to determine in an arbitrary manner how its reasoning should be structured. The choice of method of reasoning depends directly on the general scheme of the dispute: its subjectmatter, the parties’ claims, their arguments, their overall forensic strategy. It is problematic in practice to rely dogmatically on the dictates of legal or judicial logic, which can be seen on closer examination to be more matters of formal logic. Hence, the way in which a case is to be approached remains unique, and specific to each dispute. (Oil Platforms, Merits, Declaration by Vice-President Ranjeva, ICJ Rep. 2003, p. 220, para. 2)



The Judicial Syllogism at Work: Determination of Facts + Application of the Law to Those Facts Befitting to its nature of a court of law, the method used by the Court in order to settle a dispute may be said to consist in a well-tested three-step process: (first) Determination of the relevant facts of the case (via the rules on evidence and proof of facts); (second) Identification of the applicable rules of international law; and (third) Application of these rules to said facts.

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In the Armed Activities (DRC v. Uganda) case the Court admitted in explicit terms that this is the method it follows “in accordance with its practice,” and stated also that it is concerned only with the determination of those facts that are relevant and necessary for it to be able to respond to the submissions and claims put forward by the parties. It also stressed that it feels at liberty to disregard certain facts and to eliminate from further considerations the evidence supporting them. In accordance with its practice, the Court will first make its own determination of the facts and then apply the relevant rules of international law to the facts which it has found to have existed. The Court will not attempt a determination of the overall factual situation as it applied to the vast territory of the DRC from August 1998 till July 2003. It will make such findings of fact as are necessary for it to be able to respond to the first submission of the DRC, the defences offered by Uganda, and the first submissions of Uganda as regards its counter-claims. It is not the task of the Court to make findings of fact (even if it were in a position to do so) beyond these parameters. (. . .) As it has done in the past, the Court will examine the facts relevant to each of the component elements of the claims advanced by the Parties. In so doing, it will identify the documents relied on and make its own clear assessment of their weight, reliability and value. In accordance with its prior practice, the Court will explain what items it should eliminate from further consideration (. . .). (Armed Activities (DRC v. Uganda), Merits, Judgment of 19 Dec. 2005, ICJ Rep. 2005, pp. 200–201, paras. 57, 59)77

d)

Correction of Errors in a Decision78

The Court’s governing instruments are silent on the procedure to be followed for the correction of errors that may be found in the text of one of its decisions.

77  Reaffirmed (without quoting from this case) in the Pulp Mills case (Judgment of 20 April 2010, ICJ Rep. 2010, pp. 72–73, para. 168). 78  See in general, Bowett, “res judicata . . .”, pp. 579–581; A. Zimmerman & R. Geiss, “Article 61”, in Oxford Commentary, MN 16–18, pp. 1504–1506.

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In stark contrast, Article 75 of the 1922/1931 Rules of the PCIJ contained a provision according to which: The Court, or the President if the Court is not sitting, shall be entitled to correct an error in any order, judgment or opinion, arising from a slip or accidental omission. In 1933, the Registrar reported that this provision had never been applied in practice and hinted that errors of this type could be corrected by administrative action. This led to the deletion of the article in the 1936 reform.79 Apart from the case of purely typographic errors (small clerical errors or “slips of a pen”), which may give rise to the Registry issuing a corrigendum,80 there is the case of a more substantive error in a decision (“erreur matérielle”).81 The first situation that comes to mind is that after the decision is read, printed and distributed, the Court notices a discrepancy between the authoritative text and the version in the other language. This is bound to occur in extremely rare cases, since the Court’s Registry is meticulous in reviewing the text of the decisions in both languages. A good example concerns the Court’s decision in the Fisheries case, in which it was noticed that in one passage of the judgment the English version did not correspond to the French, which was the authoritative text. This circumstance was notified to both parties by the Registrar, along with the following explanation: A study of the files has in fact shown that an amendment to the French text adopted by the Court during its deliberations was incorrectly indicated in the English text given to the printer. In these circumstances, the Court, in order to bring the printed text of the Judgment into line with the English text which was in fact adopted, has decided to issue the following Erratum . . .82 The situation may be different when the discrepancy or erreur matérielle is noticed by one of the parties and brought before the Court as part and p ­ arcel 79  PCIJ D 2, Add. 3, p. 839. 80  For details of the practice followed concerning this see Thirlway’s Law and Procedure, Part. 13, BYIL, vol. 74 (2003), p. 91. 81  This would also be different from the case of an error in law or an “essential error,” which, under certain circumstances, may be invoked as a ground for seeking the revision of a decision. See Box # 17-5. 82  ICJ Yearbook (1956–1957), pp. 125–126, note 1.

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of fresh proceedings.83 This happened in the Tunisia/Libya Continental Shelf case, in which, sometime after the reading of the judgment on the merits, Tunisia filed before the Court an application that contained, among other things, a “request for the correction of an error.” The Court recalled that neither the Statute nor the Rules contains any provision “governing such a request, or the applicable procedure” and stated: Tunisia’s request is presented as one for the correction of an “erreur matérielle”. The Court does of course have the power to correct, in one of its judgments, any mistakes which might be described as “erreurs matérielles”. That power would not normally be exercised by way of a judgment, since the very nature of the correction of such an error excludes any element of contentious procedure (. . .). (Application for Revision and Interpretation—Tunisia/Lybia Continental Shelf, Judgment of 10 Dec. 1985, ICJ Rep. 1985, p. 198, para. 10)

The implications of this dictum are as follows: (one) When a mistake in a judgment that might be described as an erreur materielle is discovered, the Court has the power to correct it; (two) “Normally,” the procedure to handle the situation would not be contentious; and (three) The final decision would not need to be made in the form of a judgment. In the nature of things, however, if the existence of such a situation would be brought to the Court’s attention by one of the parties, it is hard to believe that the Court would feel entitled to introduce any change in the text of one of its decisions without appraising itself first of the views of the other party. A situation may be envisaged then under which, after one party submits to the Court a request or a suggestion for the correction of an error in a decision, the Court appraises itself of the views of the other party—without implying with this “any element of contentious procedure”—and then renders its decision, possibly in the form of an order. The matter is far from clear, for it has not arisen yet. In the Application for Revision and Interpretation-Tunisia/Libya Continental Shelf case, the Court considered Tunisia’s arguments concerning a purported error in the 1982 decision and concluded that “[t]he application of Tunisia proves in this respect to be based upon a misreading of the Judgment, and has thus become without

83  This will often involve the different operation of interpreting the decision (Bowett, “Res Judicata . . .”, pp. 580–581, 585).

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object. There is therefore no need for the Court to examine the wider question of the correction of an error in a judgment.”84 It is generally considered that the power to correct an error in the text of a decision constitutes an inherent power vested upon all international courts. In this context, in a case before an arbitral tribunal in which a contradiction between a passage in the reasoning and the dispositif was brought to the attention of the tribunal, the latter stated: The discrepancy is therefore one which is properly characterized as a “material error”, analogous to one resulting from a “slip of the pen” or from the miscalculation or miscasting of arithmetical figures. The power of a court to rectify such a discrepancy, where in the interests of good administration of justice it is necessary to correct a material error that appears on the face of its decision, is considered by the Court of Arbitration to be generally accepted. (Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (interpretation), Decision of 14 March 1978, UNRIAA, vol. 18, p. 299, para. 36)85

e)

Individual Opinions86

One distinguishing feature of international judicial decisions is that the members of the tribunal who are not in total agreement with the decision, or with the reasons leading to it, are free to append to it a statement of their individual opinions—and sometimes even do so collectively, in the form of a “joint” opinion.87 These statements can be of three types, namely:

84  Judgment of 10 Dec. 1985, ICJ Rep. 1985, p. 221, para. 52. For a comment see Thirlway’s Law and Procedure, Part 13, BYIL, vol. 74 (2003), pp. 90–92. 85  See further ILC Draft Convention, pp. 93–95 and ILC Model Rules, Article 31, pp. 85–86; C. Brown, “The Inherent Powers of International Courts and Tribunals”, BYIL, vol. 76 (2005), pp. 218–219. 86  See a good—although clearly outdated—appraisal in R.P. Anand, “The Role of Individual and Dissenting Opinions in International Adjudication”, ICLQ, vol. 14 (1965), pp. 788–808. 87  On the permissibility of joint opinions see Guyomar’s Commentaire, p. 609, note 34; Shahabuddeen, “Precedent . . .”, pp. 185–186; R. Hofmann & T. Laubner, “Article 57”, in Oxford Commentary, MN 41, p. 1394.

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– A declaration, which has been defined as “a brief statement by a judge, limited to making known which way he casts his vote, but without stating his reasons.” This definition was adopted by the Court on 12 April 1976, reportedly at the proposal of the Rules Committee.88 It does not prejudges the way the vote is cast, thereby allowing for both, “concurring” and “dissenting” declarations. – A concurring opinion—normally called “separate” (“individuelle”)—89 which is an opinion given by a judge who supports the view of the majority and agrees with the operative part, but wants to elaborate on a certain aspect of the case or to add to or modify portions of the reasoning; and, – A dissenting opinion, which is an opinion given by a judge who disagrees with a decision and casts a negative vote. However, this distinction is workable only when there is one single question to be decided by the Court and practice shows that this is the exception rather than the rule: in most cases, the dispositif contains several clauses and it becomes necessary to take separate votes on each one of them. Thus, the same judge might be concurring with regard to some aspects of the decision and dissenting with regard to others.90 It is entirely up to each judge how to label the statement of the opinion that he or she wants to append to the decision and the governing factor appears to be whether he or she concurs with what considers to be the principal operative clause in the decision.91 Article 57 of the Statute of the PCIJ provided that

88  ICJ Yearbook (1978–1979), pp. 126–127. 89  For the view that the French term “opinion individuelle” is superior to the English “separate opinion” see Jennings, “The Role . . .”, p. 29. 90  In what constitutes a first in the history of the Court, the judge ad hoc appointed by Chile in the Peru v. Chile case, concerning maritime delimitation, appended to the judgment “a separate, partly concurring and partly dissenting opinion to the judgment of the Court” (Peru v. Chile, Judgment of 27 January 2014). He also signed a joint dissenting opinion appended to the decision by three members of the Court (ibid., Joint Dissenting Opinion of Judges Xue, Gaja, Bandari and Judge ad hoc Orrego Vicuna). 91  The problem is well described in Sir R. Jennings, “The Collegiate Responsibility and Authority of the International Court of Justice,” in Collected Writings of Sir Robert Jennings, (1998), vol. 1, pp. 514–515. See also F. Jhabvala, “The Scope of Individual Opinions in the World Court,” NYIL, vol. 13 (1982), pp. 46–47; Hofmann & Laubner, “Article 57”, MN 21–22, p. 1389.

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If the judgment does not represent in whole or in part the unanimous opinion of the judges, dissenting judges shall be entitled to deliver a separate opinion. Although the Court’s first attempt at regulating the question covered only dissenting opinions, i.e. opinions whose object was “to show the reasons for which a judge not agree with the majority,”92 concurring judges simply became accustomed to appending individual opinions to the decisions, as well as simple statements recording a point that in their view was deserving of clarification or emphasis, sometimes labeling it with the neutral term “observations.”93 Additionally, after being admitted only on an exceptional basis, the practice of appending dissenting opinions to orders “concerned with important questions of law” soon became the rule, although this was subject to the consent of the Court.94 It is also worth mentioning that in the early times of the PCIJ it was customary for the judges to read their individual opinions in open court, unless they waived that right.95 This practice appears to have been carried on to the ICJ but was later abandoned by the latter. The Yearbook for 1953–1954 contains the following note concerning the practice relevant to Article 74, para. 2 of the 1946 Rules: [1948–1954] The Judges who had written individual or dissenting opinions were invited by the President to state whether they desired to read their opinions at the hearing. The reply was always in the negative.96 The Informal Inter-Allied Committee dealt at length with the question of individual opinions and expressed the view that the system should be maintained and even strengthened, by imposing an obligation on all the judges to express the reasons for their voting, whether for or against the decision. This suggestion was not taken up by the San Francisco Conference, where it was decided to preserve the making of opinions as an entitlement rather than a duty, but a change was introduced in Article 57 with the declared purpose that it 92  Resolution adopted by the Court on 17 February 1928 (PCIJ E 4, p. 291). 93  Hudson’s PCIJ, p. 589. The 1936 resolution concerning the internal judicial practice of the Court confirmed the validity of this practice, as in its Article 8 express reference was made to “separate or dissenting opinions” (emphasis added). 94  PCIJ E 8, p. 267; PCIJ E 16, p. 198. For details see F. Jhabvala, “Individual Opinions under the New Rules of Court”, AJIL, vol. 73, (1979), pp. 665–667. 95  PCIJ E 4, p. 292. Guyomar’s Commentaire, p. 609. 96  ICJ Yearbook (1953–1954), p. 120.

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“[c]onform to the Court’s practice of rendering concurring as well as dissenting opinions”.97 The resulting text for Article 57 of the Statute reads: If the judgment does not represent in whole or in part the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion. The import of this provision, especially when contrasted with that of its predecessor in the PCIJ Statute, is clear: “any” judge—not only a dissenting judge— is entitled to deliver an individual opinion, whether he or she concurs with the decision of the majority (concurring or “separate” opinion) or dissents from it (dissenting opinion).98 Incidentally, keeping the use of the neutral term “separate” in Article 57 is probably explained by a desire of the drafters to change as little as possible from the old Statute, without prejudging the contents of the opinion to which it was to be applied. The 1978 reform of the Rules adopted the following text for what became paragraph 2 of Article 95: Any judge may, if he so desires, attach his individual opinion to the judgment, whether he dissents from the majority or not; a judge who wishes to record his concurrence or dissent without stating his reasons may do so in the form of a declaration.  The same shall also apply to orders made by the Court. With regard to the proposition contained in the last line of this passage, it is worth recalling the Court’s own admission that by longstanding practice it applies only to “[o]rders disposing of substantive issues, such as provisional measures, the constitution of a chamber or the removal of a case from the list”.99 Interestingly, Article 107, para. 3, a clause mirroring Article 95, para. 2 and concerning individual opinions appended to advisory opinions, is silent as to orders made in the context of advisory proceedings. This is awkward, for there is substantial practice on appending individual opinions to these orders. Another major change introduced in the Rules in 1978 was to provide that the judgments must now specify the names of the judges voting for and

97  UNCIO, vol. 14, p. 211. See also M.O. Hudson, “The Twenty-Fourth Year of the World Court”, AJIL, vol. 40 (1946), p. 41. 98  Guyomar’s Commentaire, p. 606. 99  UN Doc.A/41/591/Add.1 (annex 2), p. 7, fn. 1.

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against each of the paragraphs comprising the operative part of the decision. Interestingly, the new provisions in the Rules (Articles 95 and 107) only contemplate that the judgment or the advisory opinion shall contain “[t]he number and names of the judges constituting the majority.” On the first occasion in which the Court applied the new provision it decided “[t]o specify the names not only of the judges in the majority but of those in the minority.”100 The names of all the judges making up the bench for a case are of course listed at the beginning of each decision. Although by its own wording the new rule would be applicable only to judgments and advisory opinions there is a clear trend to extend its application to orders dealing with matters other than the fixing of time-limits.101 To a large extent, this amendment was stimulated by the discussions at the United Nations General Assembly between 1970 and 1974, in which it was expressed that failing to mention the names of the judges comprising up the majority and the minority in each decision ran contrary to the spirit of transparency and publicity that constitute a feature of the activities of all UN organs.102 There was also nothing in the Statute precluding this, and students and followers of the workings of the Court had met with considerable difficulty identifying the stance of a given judge on specific aspects of a judgment, unless his or her position had been developed in a declaration or an individual opinion. It is therefore a change that has been largely welcomed.103

100  ICJ Yearbook (1979–1980), p. 128. See also ICJ Yearbook (1980–1981), pp. 145, 147. 101  In view of this practice, it is certainly puzzling that the 1978 reform did not make provision for this. For a comment and critique see F. Jhabvala, “Individual Opinions . . .”, pp. 667–668. 102  For a comment see Rosenne, “Some Reflections . . .”, pp. 251–252. For a review of the practice prior to the 1978 reform, see R. Higgins, “Non-identification of the majority and minority in the practice of the International Court of Justice”, in G.H. Wilner et al (Eds.), Jus et societas: Essays in tribute to Wolfgang Friedmann (1979), pp. 134 ff. 103  When this reform was adopted, it was felt by some that the practice of appending declarations would be likely to diminish or even disappear (F. Jhabvala, “Declarations . . .”, pp. 852–853; S. Oda, “The International Court of Justice Viewed from the Bench (1976– 1993)”, RC, vol. 244 (1993), p. 124). However, declarations have remained a constant fixture in the practice of the judges (Hofmann & Laubner, “Article 57”, MN 20, pp. 1388–1389).

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Box # 10-8 Individual opinions in the documents governing the Court’s practice i) The 1976 Resolution on Internal Judicial Practice: Separate and Dissenting Opinions and the Drafting of the Decision The drafting of individual opinions is fully integrated into the process leading to the manufacture of the judgments of the Court. The most relevant provision is Article 7 of the 1976 “Resolution Concerning the Internal Judicial Practice of the Court,” which reads as follows: Article 7 (i) A preliminary draft of the decision is circulated to the judges, who may submit amendments in writing. The drafting committee, having considered these amendments, submits a revised draft for discussion by the Court in first reading. (ii) Judges who wish to deliver separate or dissenting opinions make the text thereof available to the Court after the first reading is concluded and within a time-limit fixed by the Court. (iii) The drafting committee circulates an amended draft of the decision for the second reading, at which the President enquires whether any judge wishes to propose further amendments. (iv) Judges who are delivering separate or dissenting opinions may make changes in or additions to their opinions only to the extent that changes have been made in the draft decision. During the second reading they inform the Court of any changes in or additions to their opinions which they propose to make for that reason. A timelimit is fixed by the Court for the filing of the revised texts of separate or dissenting opinions, copies of which are distributed to the Court.104 It will be noted that this text makes reference to “separate or dissenting opinions” only and thus does not apply, on its face, to declarations. This seems sensible, if only because, when it remains within the bounds of a genuine declaration and is not a separate or dissenting opinion in disguise, this type of statement

104  ICJ Acts and Documents, p. 169.

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must be so brief and concise that with regard to it it would not be apt to go through the quasi-deliberative process provided in Article 7 of the Resolution. Concurring and dissenting judges that want to avail themselves of their right to append an opinion are obliged to file with the Court two successive drafts, namely, a first draft, after the first reading of the draft decision produced by the drafting committee, and a “revised text,” after the second reading. It is assumed then that the text of the opinion will be subject to changes or additions during this interval—just as the text of the draft decision might need to be adjusted, precisely in order to take into account some of the concerns expressed by individual judges in their initial draft opinions—but, as provided for in subparagraph (iv), this can be done “only to the extent that changes have been made in the draft decision.”105 What ensues, if these provisions are applied faithfully, is a dialogue of sorts between the drafting committee and the individual judges who are desirous of appending individual opinions.106

ii) The 1976 Recommendation: “Declarations” and the Question of Priority On 12 April 1976 the Court adopted, at the proposal of the Committee for the Revision of the Rules, a recommendation concerning declarations. Its operative part provides the following: Statements of opinion of individual judges entitled ‘Declarations’ by their authors have in the past been accorded a certain priority through being appended immediately after the judgment, and before any opinions entitled by their authors ‘Separate’ or ‘Dissenting’ opinions; and this has been done independently of the nature or length of the particular declaration. The Committee considers that this practice should be changed since in principle all declarations by individual judges are opinions.

105  Interestingly, this will take place after the voting on the decision has been taken (M. Bedjaoui, “The ‘Manufacture’ of Judgments at the International Court of Justice”, ICJ Yearbook (1996–1997), p. 240). 106  The process is well described in Jennings, “The Role . . ., pp. 28–30. On the role of individual opinions in this context see: Petren, “Forms of Expression . . .”, pp. 450–451; R.B. Lillich & G.E. White, “The Deliberative Process of the International Court of Justice: A Preliminary Critique and Some Possible Reforms”, AJIL, vol. 70 (1976), pp. 36–37; Sir R. Jennings, “The Internal Judicial Practice of the International Court of Justice”, in Collected Writings of Sir Robert Jennings, (1998), vol. 1, pp. 536–539; Study Group Report, pp. 61–62.

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The Committee considers that only a brief statement by a judge, limited to making known which way he casts his vote but, without stating his reasons, should be labeled a ‘declaration’, and given priority. Any other statement of opinion which a judge wishes to attach to the decision of the Court should be treated as a separate or dissenting opinion. If a judge expresses his separate or dissenting opinion only by concurring in the views of other judges, such a statement should follow the opinion to which it refers. The Committee considers that it will be inappropriate for a judge to append to a decision both a declaration and an opinion. One form of declaration constitutes a special case falling outside the above recommendation, namely a declaration made by the President, in his capacity as such, and in the discharge of his functions under Article 10 [current Article 12] of the Rules. Should the President, however, wish to express his views on the merits of the case, these should be made known only within the framework of his right to append a separate or dissenting opinion.107 It is unclear whether this recommendation is still in force. Rosenne is very firm in stating that this resolution not only “was never put into practice,” but also “has been superseded by the Rules of Court of 1978.”108 Jhabvala, on the other hand, appears to take the view that the 1976 recommendation and the 1978 Rules can co-exist and be applied side by side, as it were.109 Guyomar is of the view that the recommendation manifestly inspired the drafting of Article 95, para. 2 of the 1978 Rules.110 The main purpose of the recommendation was clearly to discourage the practice of according priority to declarations (in the sense of appending them immediately after the judgment) on the sole basis that they were labeled as such by its author and “independently of the nature or length of the particular declaration.” It appears that the measure suggested in the recommendation (to treat a declaration that did not correspond to the definition therein adopted as a separate or dissenting opinion) was employed only once in practice.111 In any 107  ICJ Yearbook (1978–1979), pp. 126–127. 108  Rosenne’s Law and Practice, vol. 3, p. 1581. 109  “Declarations . . .”, p. 852. 110  Guyomar’s Commentaire, p. 610. 111  In the Aegean Sea Continental Shelf case, the declarations by judges Gros and Morozov, “in view of their contents,” were not given priority and were appended intermingled with other separate opinions (ICJ Yearbook (1978–1979), p. 126).

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event, this question lost all of its significance in 2000, with the adoption of an alternative practice, according to which “[d]eclarations and separate and dissenting opinions (. . .) are no longer presented sequentially, but feature for the first time in the order of precedence of their authors.”112 Also, the recommendation is particularly emphatic in that it would be inappropriate for the same judge to append both a declaration and an opinion. This has been plainly ignored.113 Finally, a special category of declarations to which the recommendation does not apply on its own terms is formed by those declarations that can be made by the President in the discharge of his functions under Article 10 of the 1972 Rules (Article 12 of the 1978 Rules), according to which “[t]he President shall direct the work and administration of the Court; he shall preside at the meetings of the Court.”114 This provision appears sensible, but in the next sentence it is stated that if the President wishes to make known “his views on the merits of the case” he should do so through a separate or dissenting opinion. It is unclear whether this means that under this recommendation the President himself is not entitled to append a declaration, as authorized by both Article 79, para. 2 of the 1972 Rules and 95, para. 2 of the current Rules. If that was the intention of the Rules Committee when adopting the recommendation, the practice of the judges who have exercised the presidency has long overruled it, as several presidents of the Court have appended declarations to judgments and advisory opinions.115

112  The quoted sentence was taken from a press release stating that this was done “[p]ursuant to a recent decision of the Court” (ICJ Press Release 2000/40, 8 December 2000). See also the “Bluebook” prepared by the Registry (The International Court of Justice (2004), p. 74) and Hofmann & Laubner, “Article 57”, MN 23, p. 1390 and MN 40, p. 1394. This method was first employed in the order on provisional measures in the Arrest Warrant case (Order of 8 Dec. 2000, ICJ Rep. 2000, p. 182). 113  For examples see judge Oda in the Jan Mayen and El Salvador/Honduras cases; judges Badawi and Winiarski in the Right of Passage case; judges Higgins, Kooijmans and Elaraby in several of the Kosovo litigations; judges Kooijmans and Elaraby in Armed Activities II (DRC v. Rwanda); judges Ranjeva, Shi and Koroma in Genocide Convention (Bosnia) and judge Ranjeva in Genocide Convention (Croatia). In one singular case, two judges joined two cumulative joint declarations appended to one and the same judgment (judges Bedjaoui and Ranjeva in Lockerbie (Lybia v. UK)). 114  For suggested examples see Jhabvala, “Declarations . . .”, p. 852, fn. 111; Rosenne’s Law and Practice, vol. 3, p. 1581, note 30. 115  For examples see the Court’s decisions on the merits in Gabcikovo-Nagymaros (Schwebel); Nuclear Weapons UNGA (Bedjaoui); LaGrand (Guillaume) and Avena (Shi).

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The judges, both the members of the Court and the judges ad hoc, have considerable freedom as to the format, length and title that they use in the statements that they want to append to the decisions by the Court and there have been cases in which a dissenting opinion is even longer and considerably more complex than the decision by the majority, tantamount to a genuine “alternative judgment.”116 In fact, the only limitation applicable to individual opinions provided for in the governing instruments is that found in Article 7 of the Court’s Resolution concerning its internal practice—already mentioned— according to which the judges desirous of appending an opinion are bound to submit their drafts to the Court twice, with the declared purpose that the drafting committee should be able to take into account, to the extent that it proves possible, the concerns of those judges before it goes on to prepare the definite version of the decision. Appending individual statements of opinion to the decisions has become so standard a practice among the judges that the very first occasion (including proceedings before chambers) in which a judgment has not been accompanied by any declaration or opinion was as late as in 2009.117 Perhaps the most extreme case in this regard was the 1996 Nuclear Weapons UNGA Advisory Opinion, in which all of the 14 members of the bench appended individual statements of opinion to the Court’s decision. In the light of this, the view has been voiced in certain quarters that an uncontrolled extension and proliferation of individual opinions will undermine the authority of the decisions of the Court.118 However, the longstanding practice of both courts shows abundantly that judges of all tendencies and schools have forcefully resisted all attempts to introduce limits to their freedom to express themselves individually with 116  A well-known example is the dissenting opinion of judge Schwebel at the merits phase in the Nicaragua case, running for over 269 pages. A striking example taken from arbitral practice is the dissenting opinion appended by arbitrator M. Bedjaoui to the award of 31 July 1989 in the Guinea-Bissau/Senegal Maritime Boundary case, which is twice as long as the award (the text was submitted as an annex to the Application Instituting Proceedings in the Arbitral Award (Guinea-Bissau v. Senegal) case, filed with the Registry of the Court on 23 Aug. 1989). See a criticism of this practice by judge Mosler (Libya/Malta Continental Shelf, Dissenting Opinion, ICJ Rep. 1985, p. 114; Aegean Sea Continental Shelf, Jurisdiction, Separate Opinion, ICJ Rep. 1978, p. 25). 117  Romania v. Ukraine, Judgment of 3 Feb. 2009, ICJ Rep. 2009, p. 61. The decision was adopted unanimously. 118  Dubisson’s CIJ, p. 245; M. Al-Qahtani, “The Role of the International Court of Justice in the Enforcement of Its Judicial Decisions”, LJIL, vol. 15 (2002), pp. 797–803. For the view that in this regard separate opinions should be treated differently from dissenting opinions see T.O. Elias, “The International Court of Justice: Present Trends and Future Prospects”, in T.O. Elias, New Horizons in International Law (1979), p. 83.

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regard to those aspects of the cases coming before the Court that they consider particularly important. The methodology in existence for the adoption of the Court’s decisions certainly tends also to encourage the proliferation of individual opinions, because Article 4 of the 1976 resolution concerning the internal judicial practice makes it mandatory that as part of this process each judge produces a “written note” expressing his or her views of the case and indicating a number of elements that in many cases must be treated with certain degree of detail.119 Almost by definition these notes tend to be detailed and although they are never made public, it is understandable that they can easily be transformed into individual opinions, whenever a judge has a strong feeling that the judgment does not fully reflect his or her particular views on the case and decides to exercise his or her rights under Article 57 of the Statute.120 In any case, it is submitted that the practice of authorizing appending individual opinions to the decisions of the Court represents an essential guarantee of transparency and freedom of expression and contributes to the good administration of justice. Additionally, it considerably enriches the study of the cases for scholarly purposes, as it assists the reader to have a better understanding of the dialectical process leading to the adoption of the Court’s decisions. Very often, the reading of these opinions and its comparison with the final product by the Court is what allows one to fully understand the meaning and scope of an obscure passage in a decision, or to disentangle what the actual intentions of the Court were when tackling a given aspect of the case. Beyond that, as doctrinal contributions of an exceptional quality given the intellectual stature of their authors, individual opinions of the judges of the ICJ are very valuable for the students of international jurisprudence and of international law in general.121 As judge de Castro eloquently put it:

119  See Box # 10-2. 120  The point was made by judge Buergenthal (“Profile: Thomas Buergenthal”, in D. Terris, C.P.R. Romano & L. Swigart, The International Judge-An Introduction to the Men and Women Who Decide the World’s Cases (2007), p. 98). 121  See the classic study by Sir H. Lauterpacht, The Development of International Law by the International Court (1958), pp. 66–70. More recent analysis can be found in S. Rosenne, “Publications of the International Court of Justice”, AJIL, vol. 81 (1987), pp. 688–689; M. Shahabuddeen, Precedent in the World Court (1996), pp. 177–208; D. Terris et al., “The International Judge . . .”, pp. 123–127 and J. Malenovský, ¨Les opinions séparées et leurs répercussions sur l’independence du juge international¨, Anuario Colombiano de Derecho Internacional, vol. 3 (2010), pp. 27–70.

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[Dissenting and separate] opinions are evidence of the life and of the evolution of legal doctrine. Some dissenting opinions are the law of the future; others are the expression of the resistance of old ideas. Personally, I think separate opinions have their uses: they give judges an opportunity to explain the reasons for their votes. The drafting of a judgment is a very delicate task, for it must, with great prudence, reflect the “consensus” of the majority and it must do so clearly, simply and unambiguously. In these circumstances, if the arguments which a judge regards as conclusive do not find expression in the judgment, a separate opinion makes it possible for them to be stated. Separate opinions provide a means for making known the reasons for the votes of members of the majority and this may be useful for the purposes of critical studies by commentators. (ICAO Council, Separate Opinion of Judge de Castro, ICJ Rep. 1972, p. 116)

An aspect frequently debated concerns the limitations that judges appending individual opinions must observe.122 A first question is whether it is proper or even admissible that one such opinion contains criticisms on the decision adopted by the majority. The PCIJ’s Report for the year 1927 mentions that it was agreed that the object of dissenting opinions was to show the reasons for which a judge could not agree with the majority and that “they were not intended to be a reasoned criticism of the judgment.”123 This rule was generally observed during the time of the Permanent Court, but it clearly was abandoned by members of the current Court. In a scholarly work published when only a handful of decisions by the ICJ had been rendered, professor (and former judge) M.O. Hudson expressed concern for what he perceived as an inadmissible departure of the practice followed at the time of the PCIJ with regard to the contents of statements by individual judges appended to the decisions of the Court. He regretted that this tool was used for leveling open criticism on the decision taken by the majority and warned that “disastrous consequences might follow for a high judicial institution which can command observance of its judgments and opinions only by its prestige and by the persuasion which the statement of its conclusions imparts.”124 The subsequent practice has shown that these fears proved to be fully justified, for there have been d­ issenting opinions that

122  See in general Anand, “The Role . . .”, in passim; Hofmann & Laubner, “Article 57”, MN 24–34, pp. 1390–1393. 123  PCIJ E 4, p. 291 124  M.O. Hudson, “The Twenty-Eighth Year of the World Court”, AJIL, vol. 44 (1950), pp. 20–21.

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concentrate on unabashedly criticizing the attitude adopted by the majority and incorporated in the text of the decision.125 A second important limitation has to do with the connection that an individual opinion should have with the decision to which is appended. In a declaration appended to the infamous 1966 decision of the Court in the second phase of the South West Africa cases, President Spender—who cast the vote that made possible the adoption of the decision—found unacceptable the position of some of his colleagues who decided to append individual opinions to the judgment, dealing with certain aspects of the case that the Court did not tackle and that he found improper as the subject of this form of pronouncement.126 He decided to append a long declaration to the same judgment, in which, basing himself to a large extent in the legislative history of the Statute, he went into certain detail about the limits that the judges have in exercising the right vested upon them by Article 57 of that instrument. It is a celebrated piece of reasoning that leads to the following conclusions: (a)  individual opinions, whether dissenting or merely separate, were, when the Court’s Statute was drafted, regarded as such as were directly connected with and dependent upon the judgment of the Court itself (or in the case of advisory opinions (Statute, Article 68, Rules, Article 84 (2)), its opinion), in the sense of either agreeing or disagreeing with it, or its motivation, or as to the sufficiency of the latter; (b)  the judgment (or opinion) of the Court must be the focal point of the different judicial views expressed on any occasion, since it is the existence and nature of the judgment (or opinion) and their relationship to it that gives individual opinions their judicial character; (c)  in principle such opinions should not purport to deal with matters that fall entirely outside the range of the Court’s decision, or of the decision’s motivation; (d)  there must exist a close direct link between individual opinions and the judgment of the Court. (South West Africa, Second Phase Declaration of President Spender, ICJ Rep. 1966, pp. 51–55)

125  On this see further Shahabuddeen, “Precedent . . .”, pp. 181–186. 126  Spender’s comments appear to have been directed at a separate opinion (by judge ad hoc van Wyck) and a dissenting opinion (by judge Tanaka). For a narrative see Jhavabala, “Declarations . . .”, pp. 848–849. See Ibid., pp. 849–850 for similar declarations in subsequent cases.

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A defense of the idea that the opinion of the majority does not impose any limits upon the opinions of individual judges is found in the very opinion of judge Tanaka that prompted Spender’s criticism.127 In a subsequent opinion, the same judge insisted on the need to embrace a “more liberal attitude” toward the issue of introducing limits to individual opinions other than those “dictated by considerations of decency.”128 It may be noted in passing that Spender’s declaration may itself be guilty of the sin which he was accusing some of his colleagues of committing, as the question of the proper subject-matter of individual opinions and the limits that these opinions might have can hardly be said to be connected with the operative part of the judgment of the Court to which it was appended. More likely, this declaration may be said to fall under the category described in the last paragraph of the 1976 Recommendation, as discussed above. In any case, it seems reasonable that the judges do not enjoy an unfettered right to frame the individual opinions that they wish to append to a decision by the Court, and that a causal link must exist between the operative part of the decision and the arguments developed in those opinions. In a classic scenario, if the Court decides to uphold a preliminary objection and refrains from hearing a case, it would not be judicious for any of the judges to append to that decision an individual opinion dealing with the merits of the dispute, a matter in which the majority resolved, for good or for bad, that the Court should not enter at all.129 An altogether different question is to what extent the President of the Court will be able or willing to indicate to an individual judge that his or her draft opinion exceeds the limits of what is permissible and therefore should be amended. It is a highly delicate matter on which the less said is probably the better.

127  South West Africa, Second Phase, Separate Opinion of Judge Tanaka, ICJ Rep. 1966, p. 262. 128  Barcelona Traction, Separate Opinion of Judge Tanaka, ICJ Rep. 1970, p. 114. 129  For examples of “judicial transgressions” of this kind see Jhabvala, “The Scope . . .,” p. 34. For a more general discussion of the scope of individual opinions in jurisdictional cases see ibid., pp. 48–52. See also the declaration by judge Gros in the Aegean Sea Continental Shelf case (ICJ Rep. 1978, p. 49).

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Box # 10-9 The importance of including individual opinions in the publications of the Court In the above mentioned 1986 Report of the UN Joint Inspection Unit (See Box 10-4 above) a recommendation was included to publish an abridged version of the Court’s decisions, removing the text of the individual opinions appended to each decision. The Court objected because it considered that the resulting product would consist of truncated versions of the judgments. When reasoning this opinion, the Court made a powerful defense of the role that separate and dissenting opinions by individual judges play within its collegiate methods of working: 8. [i]t may be helpful to indicate certain characteristics essential to the texts of [the Court’s] judicial decisions, whether judgments, advisory opinions, or orders disposing of substantive issues. In so doing, the Court must stress that an indissoluble relationship exists between such decisions and any separate opinions, whether concurring or dissenting, appended to them by individual judges. The statutory institution of the separate opinion has been found essential as affording an opportunity for judges to explain their votes. In cases as complex as those generally dealt with by the Court, with operative paragraphs sometimes divided into several interlinked issues upon each of which a vote is taken, the bare affirmative or negative vote of a judge may prompt erroneous conjecture which his statutory right of appending an opinion can enable him to forestall or dispel. To disseminate the Court’s decisions without the appended opinions would therefore give rise to misconceptions affecting individual judges. It should in any case be apparent that the reasoning of a decision simply represents a highest common denominator. Therefore, given the multiplicity of judges dealing with a case, it is likely that some individual judges will feel that one or more of the considerations that determined their votes require more specific treatment; or there may remain points of great legal interest that a judge feels impelled to raise or explain, and such is the interplay of views during the Court’s deliberations that these points will shed light on, or themselves be illuminated by, corresponding passages in the Court’s decision. Thus not only do the appended opinions elaborate or challenge the decision, but the reasoning of the decision itself, reviewed as it finally is with knowledge of the opinions, cannot be fully appreciated in isolations from them. In short, the individual opinions are or may be essential to the full understanding of the Court’s decision.

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9. The foregoing explanations are founded upon Article 56 and 57 of the Statute of the Court. (here follows a transcription of Articles 56 and 57 in English) It must be added that the sense of the English text of Article 57 is illuminated by the French text, which provides: « Si l’arrêt n’exprime pas en tout ou en partie l’opinion unanime des juges, tout juge aura le droit d’y joindre l’exposé de son opinion individuelle. » It is clear that the use of the word « joindre » confirms that the opinions are integrated with the judgment. Any official publication of the judgment without the opinions must represent an abridgment of the judgment—a truncation—to which the judges constituting the membership of the Court at any given time cannot lend authority without compromising the Court in its future decision-making processes. 10. In sum, no text omitting any statement delivered for final inclusion by one or more of the participant judges listed at the head of the decision is the complete an authentic decision of the Court. 11. Even independently of the foregoing conclusions flowing from the Statute and the judicial character and tradition of the institution, the Court feels bound to stress the importance of the element of balance to the impact of its collegiate work. By this element is meant the full and fair presentation in a decision of all the legal opinions on which the Court has exercised its powers of distinction. This presentation will be thrown out of balance if separate and dissenting opinions are removed, especially where decisions taken by a narrow majority are concerned. To take an extreme case, it would not be proper to present a judicial decision adopted by a casting vote of the President without the opinions that could be expected to accompany it. What would the international community have thought if the United Nations had translated and disseminated the Judgment of the Court rejecting the claims of Ethiopia and Liberia in the South West Africa cases while omitting the separate and dissenting opinions which had been joined to it?130

130  UN Doc.A/41/591/Add. 1 (Annex 2), pp. 6–8, paras. 8–11). See also Rosenne, “Publications . . .”, pp. 681–696; Bedjaoui, “The ‘Manufacture’ . . .”, p. 241.

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A good appraisal of the role that individual opinions of the judges play in contemporary litigation before the ICJ is contained in the report of the Study Group convened in 1996 by the British Institute of International and Comparative Law on the procedures and working methods of the Court. The report contains the following commentary: There was a wide measure of agreement with the Study Group’s view that the right of the judges to deliver separate and dissenting opinions was not infrequently taken to excessive lengths. But it was equally acknowledged that it was not practical to legislate against undue length, and that the remedy primarily lay in judicial self-restraint. Underlying the discussion was a difference of emphasis on the court’s role to decide cases and its responsibility for developing the law. The Study Group believes that priority should be given to the former, that the latter is a valuable byproduct, and that the real test for the acceptability of individual opinions is in any event not length, but whether or not they are relevant to the issues raised by the case and appropriate to the judicial disposition of those issues. But the Study Group acknowledges that the other view— of the value of substantial separate and dissenting opinions—is strongly held by some.131

Box # 10-10 Individual opinion v. vote A case that was decided by an arbitral tribunal and then became the subject of proceedings before the ICJ with regard to the validity of the resulting award shows that the position adopted by a member of an international tribunal by voting for or against a given decision is what is determinant, and is not affected by the position, however different, that he or she chooses to express in any individual statement of opinion appended to the decision. In the Arbitral Award (Guinea-Bissau v. Senegal) case the Court had to pronounce on several allegations of lack of existence and nullity by the first of those States with regard to an award rendered by an ad hoc arbitral tribunal charged with the delimitation of certain maritime spaces between the two States. One of the grounds on which Guinea-Bissau challenged the very existence of the award was that the President of the Tribunal (Barberis), had disassociated

131  Study Group Report, 66a Comment, pp. 61–62. See also A. Riddell & B. Plant, Evidence before the International Court of Justice (2009), pp. 31–34.

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himself from the dispositif of the decision, by appending to it an individual “declaration” in which he expressed that he would have replied to the question submitted for adjudication in a different manner than that embodied in the decision. Guinea-Bissau was emphatic in that the President’s declaration “contradicted and invalidated his vote, thus leaving the Award unsupported by a real majority.” (Arbitral Award (Guinea-Bissau v. Senegal), Judgment of 12 Nov. 1991, ICJ Rep. 1991, p. 64, para. 30). The Court found that there was no real contradiction between the vote cast by Mr. Barberis and the opinion expressed in his declaration, but also went on to express, in obiter: [e]ven if there had been any contradiction (. . .) between the view expressed by President Barberis and that stated in the Award, such contradiction could not prevail over the position which President Barberis had taken when voting for the Award. In agreeing to the Award, he definitively agreed to the decisions, which it incorporated, as to the extent of the maritime areas governed by the 1960 Agreement, and as to the Tribunal not being required to answer the second question in view of its answer to the first. As the practice of international tribunals shows, it sometimes happens that a member of a tribunal votes in favour of a decision of the tribunal even though he might individually have been inclined to prefer another solution. The validity of his vote remains unaffected by the expression of any such differences in a declaration or separate opinion of the member concerned, which are therefore without consequence for the decision of the tribunal. (Arbitral Award (Guinea-Bissau v. Senegal), Judgment of 12 Nov. 1991, ICJ Rep. 1991, p. 64, para. 33)132

f)

Legal Effects of the Decision

The decision of the Court represents the terminal point in the litigation process. It has the effect of putting an end to the proceedings and, ideally, to

132  For an analysis of this case see B.A. Ajibola, “Bases for Jurisdiction before the International Court of Justice”, in N. Jasentuliyana (Ed.), Perspectives on International Law (1995), pp. 231–239.

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the dispute that gave rise to them. The most directly relevant provision in the Statute concerning the legal effects of the decision is Article 59, which is to a certain extent supplemented by Article 60. The first is one of the better known provisions of the Statute and states that “[t]he decision of the Court has no binding force except between the parties and in respect of that particular case.” As for Article 60, its opening sentence reinforces this rule by providing that “[t]he judgment is final and without appeal.”133 The closing section of this last provision furnishes the statutory basis for the interpretation of the Court’s judgments. While it is true Article 59 is formulated in a negative manner—a question to be discussed below—it also possesses a positive aspect, namely that “between the parties” and “in respect of that particular case” the decision of the Court does have binding force, i.e. constitutes res judicata or chose jugée. In a landmark decision concerning this question the Court remarked that notwithstanding the negative wording of Article 59, this provision “has at its core the positive statement that the parties are bound by the decision of the Court in respect of the particular case.”134 Additionally, it must not be forgotten that Article 63, para. 2 of the Statute— governing third-party intervention when the construction of a multilateral treaty is at issue in a case before the Court—also has the effect of indirectly attaching binding force to the decisions of the Court, a fact that was recognized by the PCIJ.135 Under that provision, if a third State uses the right to intervene in a case in which the construction of a convention to which it is a party is in question, “the construction given by the judgment will be equally binding upon it.” This can only mean that the construction of a treaty given in a judgment is binding upon the parties and, if a third State intervenes under Article 63, it will be binding upon it as well. Incidentally, since in the nature of things the construction of a treaty is going to appear in the reasoning part of the judgment, this provision anticipates that the binding force of a judgment is not limited to its operative part, a question that will be examined below. In this regard, it is interesting to recall that on the occasion of the intervention by Poland in the Wimbledon case, an authorized commentator of the Court’s case law advanced the rather original contention (recognizing that it could lead to an awkward result) that the limitation in Article 59 referring to the 133   See the dissenting opinion by judge Anzilotti in the Factory at Chorzów case (Interpretation of Judgments Nos. 7 and 8, Judgment No. 11, 16 Dec. 1927, PCIJ A 13, pp. 23–24). 134  Genocide Convention (Bosnia), Merits, Judgment of 27 Feb. 2007, ICJ Rep. 2007, p. 90, para. 115. 135  Free Zones, Order of 6 Dec. 1930, PCIJ A 24, p. 14.

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case in which a decision is given appeared to be applicable only to the parties to the case, so that under Article 63 of the Statute the intervening State would be bound in general terms by the interpretation given by the Court, while the parties would be bound by the same interpretation but only in respect to that case.136 This interpretation is, of course, simply untenable.137 Background of Article 59 of the Statute The legislative history of Article 59 is illustrative with regard to the effect of the Court’s decisions, for it shows that this provision was introduced in the Statute almost as an afterthought and in close connection with the question of thirdparty intervention, i.e. as a rule meant to supplement what were to become articles 62 and 63 of that instrument.138 The original draft-scheme for a Statute of a permanent court of international justice, prepared by an advisory committee of jurists, contained provision for two types of intervention: an intervention by a third State with an interest of a legal nature that may be affected by the decision (Article 60, which became Article 62 of the Statute) and an intervention by a third State that was a party to a multilateral convention being constructed by the Court (Article 61, which became Article 63 of the Statute). However, the draft-scheme was silent on the question of the legal effects of the judgments by the Court, probably because it was considered superfluous to state that said judgments were binding upon the parties to a case. All the same, this is hard to explain, especially if one takes into account that one of the questions laid down for discussion before the committee had been carefully formulated as follows: “[i]s the judgment to take effect with regard only to the present dispute and the present parties or shall it have a wider scope?”139 Later in the discussion, the Secretariat called the attention of the Committee to the circumstance that this question had not been “fully discussed,” apparently to no avail.140 Therefore, the provision that was to become Article 59 was introduced only in the Council of the League, at the instigation of the French delegate, Léon

136  Verzjil’s Jurisprudence, vol. 1, pp. 21–22. See also the 1956 award in the Lighthouses (Greece/ France) case (RIAA, vol. 12, p. 194). 137  See S. Rosenne, “Article 59 of the Statute of the International Court of Justice Revisited”, in S. Rosenne, Essays on International Law and Practice (2007) pp. 131, 151. 138  S. Rosenne’s Intervention in the International Court of Justice (1993), pp. 19–38. See also by the same author “Article 59 . . .”, pp. 129–130. 139  PCIJ, Proces-verbaux, p. 38. 140  Ibid., p. 560.

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Bourgeois, under the reasoning that “[n]o possible disadvantage could ensue from stating directly what Article 61 indirectly admits.”141 The distant forerunners or Article 59 are article 56 of the 1899 Hague Convention on the Pacific Settlement of Disputes and Article 84 of the Convention on the same subject adopted in 1907, two provisions that were concerned, above all, with an eventual intervention by third States that were parties to a multilateral treaty that was at issue in the proceedings, i.e., the matter now governed by Article 63 of the ICJ’s Statute. The opening sentence of Article 56 of the 1899 Convention stated that “[t]he award is only binding on the parties who concluded the compromise,” and the corresponding sentence in Article 84 of the 1907 revised Convention read: “[th]e Award is not binding except on the parties in dispute.” This formula was clearly what the French delegate to the Council of the League had in mind when he proposed to add a new article stating that “the decision of the Court has no binding force except between the parties and in respect of that particular case.”142 Effects for the Parties: The Decision as res judicata Although res judicata is one of the cardinal principles of the law governing the work of the ICJ, it has not featured prominently in its case law. The PCIJ stated, in very general terms and with regard to an arbitral award, that recognition of a decision as res judicata “means nothing else than recognition of the fact that the terms of that award are definitive and obligatory.”143 In the same general vein, the ICJ remarked in the Awards of Administrative Tribunal Advisory Opinion: According to a well-established and generally recognized principle of law, a judgment rendered by [a] judicial body is res judicata and has binding force between the parties to the dispute. (Awards of Administrative Tribunal, Advisory Opinion of 13 July 1954, ICJ Rep. 1954, p. 53)144

The scope and implications of res judicata were apparently discussed within the Court during consideration of the second phase of the South West Africa cases, in which certain members of the bench felt that with its decision 141  PCIJ, Documents, p. 50. 142  Ibid. 143  Société commerciale de Belgique, Judgment of 15 June 1939, PCIJ A/B 78, p. 175. 144  Reaffirmed in Nicaragua v. Colombia, Application to Intervene (Honduras), Judgment of 4 May 2011, ICJ Rep. 2011, p. 443, para. 67.

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in that phase the majority was altering the decision given at the preliminary objections phase in the same case, thus plainly ignoring the definitive effect attached to that decision. Interestingly, in its judgment the Court opted for avoiding the issue altogether and found that it was unnecessary for it to pronounce on, among other questions, “[w]hether a decision on a preliminary objection constitutes a res judicata in the proper sense of that term.”145 Judge Jessup, on the other hand, had the following to say with regard to the res judicata principle: The statement in Article 60 of the Statute that “the judgment is final and without appeal”, taken in conjunction with the reference in Article 59 to “that particular case”, constitutes a practical adoption in the Statute of the rule of res judicata, a rule, or principle, cited in the proceedings of the Commission of Jurists which drafted the Statute of the Permanent Court of International Justice in 1920, as a clear example of “a general principle of law recognized by civilized nations”. It rests upon the maxim interest rei publicae ut sit finis litium, or in an alternate form, interest reipublicae res judicatas non rescindi. Judge Anzilotti, in what has been called “the classic enunciation of the law” (. . .) listed as the essentials for the application of the res judicata principle, identity of parties, identity of cause and identity of object in the subsequent proceedings—“persona, petitum, causa petendi” (. . .). (South West Africa, Second Phase, Dissenting Opinion of Judge Jessup, ICJ Rep. 1966, pp. 332–333)

Given this scarcity of precedents, it is to be welcomed that at the merits phase of the Genocide Convention (Bosnia) case the Court devoted some space to discuss important aspects of the operation of this rule. With regard to the scope and contents of the res judicata principle, the Court remarked: (. . .) The fundamental character of that principle appears from the terms of the Statute of the Court and the Charter of the United Nations. The underlying character and purposes of the principle are reflected in the judicial practice of the Court. That principle signifies that the decisions of the Court are not only binding on the parties, but are final, in the

145  South West Africa, Second Phase, Judgment of 18 July 1966, ICJ Rep. 1966, pp. 36–37, para. 59. The Court returned to the same question in the Nicaragua case and did find that its jurisdictional decisions have the full force of res judicata. See note 2 above.

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sense that they cannot be reopened by the parties as regards the issues that have been determined, save by procedures, of an exceptional nature, specially laid down for that purpose. Two purposes, one general, the other specific, underlie the principle of res judicata, internationally as nationally. First, the stability of legal relations requires that litigation come to an end. The Court’s function, according to Article 38 of its Statute, is to “decide”, that is, to bring to an end, “such disputes as are submitted to it”. Secondly, it is in the interest of each party that an issue which has already been adjudicated in favour of that party be not argued again. Article 60 of the Statute articulates this finality of judgments. Depriving a litigant of the benefit of a judgment it has already obtained must in general be seen as a breach of the principles governing the legal settlement of disputes. (Genocide Convention (Bosnia), Merits, Judgment of 27 Feb. 2007, ICJ Rep. 2007, pp. 90–91, paras. 115–116)

The Court also explored the true meaning of the res judicata principle and remarked in particular that one of its decisions, whether it concerns a question of the merits or a question of jurisdiction, involves the “judicial truth” for the case at hand and as such is definitive not only for the parties to the case but also for the Court itself: (. . .) That principle signifies that once the Court has made a determination, whether on a matter of the merits of a dispute brought before it, or on a question of its own jurisdiction, that determination is definitive both for the parties to the case, in respect of the case (Article 59 of the Statute), and for the Court itself in the context of that case. (. . .) For the Court res judicata pro veritate habetur, and the judicial truth within the context of a case is as the Court has determined it, subject only to the provision in the Statute for revision of judgments. This result is required by the nature of the judicial function, and the universally recognized need for stability of legal relations. (Genocide Convention (Bosnia), Merits, Judgment of 27 Feb. 2007, ICJ Rep. 2007, p. 101, paras. 138–139)

The Court has also considered the scope of res judicata and the effects of its decisions in the context of the procedure for the interpretation of its judgments on the basis of Article 60 of the Statute, which, as already remarked, is intimately related to Article 59. In one of the first instances of interpretation submitted to it, the PCIJ stated:

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The natural inference to be drawn is that the second sentence of Article 60 was inserted in order, if necessary, to enable the Court to make quite clear the points which had been settled with binding force in a judgment, and, on the other hand, that a request which has not that object does not come within the terms of this provision. In order that a difference of opinion should become the subject of a request for an interpretation under Article 60 of the Statute, there must therefore exist a difference of opinion between the parties as to those points in the judgment in question which have been decided with binding force. (Request for Interpretation-Factory at Chorzów, Judgment No. 11, 16 Dec. 1927, PCIJ, Series A, No.13, p. 11)

This poses in a straightforward manner the question of what are the “points in the judgment  . . . which have been decided with binding force,” or, in other words, what is the extent of the res judicata principle when applied to a concrete decision. Indeed, while in Chorzów the Court did not go into which those points were or how they could be singled out, this language implies that in the Court’s view not all of the judgment had such a binding force.146 The answer must be that they are certainly those questions that are mentioned in the operative part (the dispositif ) of the judgment. This has never been doubted and it was confirmed by the Court in the Genocide Convention (Bosnia) case.147 It is also generally admitted that the recitals of the facts of the case or the summary of the arguments put forward by the parties cannot be considered as points being “decided with binding force.”148 On several occasions, however, it has been questioned whether and to what extent the reasoning part of the judgment or the motifs should also be so considered. This is of the outmost importance for the development of international law because the operative part of a judgment, almost by definition, very rarely includes findings on general questions of law. In point of fact, all questions of law relevant for the case are discussed and settled by the Court in the reasoning part and the scope of the operative part, as it was recalled by the Court in a recent decision, “is necessarily bound up with the scope of the dispute before the Court.”149

146  M. Shahabuddeen, Precedent in the World Court (1996), pp. 161–162. 147  Genocide Convention (Bosnia), Merits, Judgment of 27 Feb. 2007, ICJ Rep. 2007, p. 94, para. 123. 148  Bowett, “Res Judicata . . .”, p. 577. 149  Request for Interpretation-Temple of Preah Vihear, Judgment of 11 Nov. 2013, para. 101.

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Box # 10-11 Motifs v. dispositif in international jurisprudence The question of the relationship between the reasoning section of a judgment and the operative part has been engaged on several occasions in international jurisprudence. In the South West Africa case, for instance, judge Koretsky expressed the following: Could it possibly be considered that in a judgment only its operative part but not the reasons for it has a binding force? It could be said that the operative part of a judgment seldom contains points of law. Moreover, the reasons, motives, grounds, for a given judgment may be said to be the “reasons part” of the judgment. The two parts of a judgment-the operative part and the reasons-do not “stand apart” one from another. Each of them is a constituent part of the judgment in its entirety. It will be recalled that Article 56 of the Statute says: “The judgment shall state the reasons on which it is based” (italics added). These words are evidence that the reasons have a binding force as an obligatory part of a judgment and, at the same time, they determine the character of reasons which should have a binding force. They are reasons which substantiate the operative conclusion directly (“on which it is based”). They have sometimes been called “consideranda”. These are reasons which play a role as the grounds of a given decision of the Court—a role such that if these grounds were changed or altered in such a way that this decision in its operative part would be left without grounds on which it was based, the decision would fall to the ground like a building which has lost its foundation. (South West Africa, Second Phase, Dissenting Opinion of Judge Koretsky, ICJ Rep. 1966, p. 241)150

The question discussed above has also arisen before arbitral tribunals. In 1978, for instance, the Anglo-French court of arbitration dealing with the case concerning the delimitation of the continental shelf summed up as follows what it

150  See also Request for Interpretation-Temple of Preah Vihear, Separate Opinion of Judge Cançado Trindade, paras. 43–61.

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called “the generally recognized principles governing the relation between the dispositif and the reasoning of a decision in international proceedings:” The Court of Arbitration considers it to be well settled that in international proceedings the authority of res judicata, that is the binding force of the decision, attaches in principle only to the provisions of its dispositif and not to its reasoning. In the opinion of the Court, it is equally clear that, having regard to the close links that exist between the reasoning of a decision and the provisions of its dispositif, recourse may in principle be had to the reasoning in order to elucidate the meaning and scope of the dispositif. From this it follows that under certain conditions and within certain limits, the reasoning in a decision may properly be invoked as a ground for requesting an interpretation of provisions of its dispositif (. . .). But the subject of a request for interpretation must genuinely be directed to the question of what it is that has been settled with binding force in the decision, that is in the dispositif (. . .); the reasoning cannot therefore be invoked for the purpose of obtaining a ruling on a point not so settled in the dispositif. A request for interpretation may, on the other hand, be directed to obtaining a ruling on the question whether a certain point has or has not been settled with binding force in the decision (. . .); and the reasoning of a decision may accordingly be referred to for this purpose. Furthermore, if findings in the reasoning constitute a condition essential to the decision given in the dispositif, these findings are to be considered as included amongst the points settled with binding force in the decision (. . .). (Court of Arbitration, Anglo-French Continental Shelf, Request for Inter­ pretation, Decision of 14 March 1978, RIAA, vol. 18, p. 295, para. 28)

Along the same lines—and quoting approvingly the 1978 decision—an arbitral tribunal between Argentina and Chile stated the following in the decision concerning the merits of the case: The force of res judicata of an international award applies, primarily, to its operative part, i.e., the part in which the Court rules on the dispute and states the rights and obligations of the parties. The legal precedents have also established that the provisions of the preambular part, which are the logically necessary antecedents of the operative provisions, are equally

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binding (. . .). As argued (. . .), the meaning of the concepts used in an arbitral award are also covered by the res judicata and none of the parties may alter it. (Boundary dispute between Argentina and Chile concerning the frontier line between boundary post 62 and Mount Fitzroy, Decision of 21 Oct. 1994, RIAA, vol. XXII, p. 24, para. 70)151

In the same decision, the tribunal recalled a dictum by the Inter-American Court of Human Rights according to which the interpretation of the operative part of a judgment cannot be divorced from the reasoning part: The interpretation of an award has, moreover, a singular feature, already established in international case law, which has stated: The interpretation of a decision involves not only determination of the meaning of the text of the operative points of the decision but also determination of its scope, meaning and purpose in accordance with its reasoning. (Decision of 21 Oct. 1994, RIAA, vol. XXII, p. 25, para. 74)152

The present Court addressed the matter squarely in the Request for Interpretation-Cameroon v. Nigeria case, in which, after quoting with approval the above passage in the decision of the PCIJ in Request for InterpretationFactory at Chorzów, it concluded the following: [a]ny request for interpretation must relate to the operative part of the judgment and cannot concern the reasons for the judgment except in so far as these are inseparable from the operative part. (Request for Interpretation—Nigeria v. Cameroon, Judgment of 25 March 1999, ICJ Rep. 1999, p. 35, para. 10)153

151  The Tribunal quoted here the cases Factory at Chorzów and Anglo-French Arbitration. 152  The case quoted is Velásquez Rodríguez, Interpretation of the Award of Compensatory Damages, Award of 17 Aug. 1990 (Art. 67 of the Inter-American Convention on Human Rights), I-A Ct HR, Series C, No. 9, para. 26. 153  Reaffirmed in Request for Interpretation-Avena, Provisional Measures, Order of 16 July 2008, ICJ Rep. 2008, p. 323, para. 47.

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It is believed that this is the first time that the International Court of Justice has drawn such a clear-cut distinction between the reasoning and the operative parts of its decisions. While it is true that it is a dictum that has been criticized from various quarters, it is submitted that it has the distinct advantage of warranting the conclusion that hereafter the test will consist of differentiating, within the reasoning part of a judgment, between those motifs that are “inseparable from the operative part” and those which are not.154 While the former will constitute part of the ratio decidendi, the latter will simply be obiter dicta, inasmuch as they do not have a direct connection with the operative part.155 It may also be anticipated that in future litigations a party to a case will attempt to use this distinction to its advantage in order to extract certain legal consequences from a passage in the reasoning of a decision in which it may have a special interest. In a subsequent decision the Court further clarified that when a question arises as to the precise scope of the res judicata attaching to one of its judgments, this “must be determined in each case having regard to the context in which the judgment was given.”156 The Court also noted the following: For this purpose, in respect of a particular judgment it may be necessary to distinguish between, first, the issues which have been decided with the force of res judicata, or which are necessarily entailed in the decision of those issues; secondly any peripheral or subsidiary matters, or obiter dicta; and finally matters which have not been ruled upon at all. Thus an application for interpretation of a judgment under Article 60 of the Statute may well require the Court to settle “[a] difference of opinion [between the parties] as to whether a particular point has or has not been decided with binding force” (. . .). If a matter has not in fact been determined, expressly or by necessary implication, then no force of res judicata attaches to it (. . .) (Genocide Convention (Bosnia), Merits, Judgment of 16 Feb. 2007, ICJ Rep. 2007, p. 95, para. 126)

Thus, res judicata attaches to matters that have been in fact determined in a judgment either “expressly” or “by necessary implication” and extends both to

154  Thirlway’s Law and Procedure, Part 13 (2003), p. 85; S. Rosenne, “Interpretation . . .”, p. 109. 155  Hudson’s PCIJ, p. 592. 156  Genocide Convention (Bosnia), Merits, Judgment of 16 Feb. 2007, ICJ Rep. 2007, p. 95, para. 125.

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the specific issues which have been decided and to the issues “which are necessarily entailed in the decision of those issues”.157 The Court has also endorsed a similar typology, albeit in a different procedural context—that of a request for intervention under Article 62 of the Statute. In the Indonesia/Malaysia case, in which the judgment was delivered at a two years distance from the decision in Request for Interpretation-Nigeria v. Cameroon, the Court stated that the legal interest that must be shown by the State seeking to intervene can go beyond the operative part of its eventual decision: The Court must first consider whether the terms of Article 62 of the Statute preclude, in any event, an “interest of a legal nature” of the State seeking to intervene in anything other than the operative decision of the Court in the existing case in which the intervention is sought. The English text of Article 62 refers in paragraph 1 to “an interest of a legal nature which may be affected by the decision in the case”. The French text for its part refers to “un interet d’ordre juridique . . . en cause” for the State seeking to intervene. The word “decision” in the English version of this provision could be read in a narrower or a broader sense. However, the French version clearly has a broader meaning. Given that a broader reading is the one which would be consistent with both language versions and bearing in mind that this Article of the Statute of the Court was originally drafted in French, the Court concludes that this is the interpretation to be given to this provision. Accordingly, the interest of a legal nature to be shown by a State seeking to intervene under Article 62 is not limited to the dispositif alone of a judgment. It may also relate to the reasons which constitute the necessary steps to the dispositif. (Indonesia/Malaysia, Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep. 2001, p. 596, para. 47)

The notion that certain aspects of the reasoning part of a judgment can—and indeed should—also benefit from the res judicata effect was articulated more clearly by the Court in yet another instance of third-party intervention under Article 62 of the Statute. In the Nicaragua v. Colombia maritime delimitation case, Honduras questioned some findings by the Court included in the reasoning section of a previous judgment in a different case and therefore prompted

157  For a possible exception in the case of decisions concerning questions of jurisdiction see South West Africa, Second Phase, Dissenting Opinion of Judge Tanaka, ICJ Rep. 1966, p. 261.

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the Court to ascertain what was the precise scope of res judicata of that judgment.158 The Court remarked that a given passage in the operative part of that decision “indisputably has the force of res judicata” and went on to observe that the reasoning contained in certain paragraphs of the same “was an essential step leading to the dispositif of that Judgment” and was also unequivocal on the point under discussion.159 The Court explained in the following way the interaction between the relevant sections of the operative and the reasoning part of the judgment, both of which were clearly covered by the force of res judicata: The Court made a clear determination in [certain] paragraphs [of the reasoning section] that the bisector line would extend beyond the 82nd meridian until it reached the area where the rights of a third State may be affected. Before the rights of such third State were ascertained, the endpoint of the bisector line would be left open. Without such reasoning, it may be difficult to understand why the Court did not fix an endpoint in its decision. With this reasoning, the decision made by the Court in its 2007 Judgment leaves no room for any alternative interpretation. (Nicaragua v. Colombia, Application to Intervene (Honduras), Judgment of 4 May 2011, ICJ Rep. 2011, p. 443, para. 70)

On the basis of these passages, it is sensible to think that the “reasons which constitute the necessary steps to the dispositif ” (Indonesia/Malaysia) or an “essential step leading to the dispositif ” (Nicaragua v. Colombia) overlap and merge with those arguments in the reasoning section that “are inseparable from the operative part” (Request for Interpretation-Cameroon v. Nigeria) or with those issues that “are necessarily entailed” in the decision of the issues which have been decided with the force of res judicata (Genocide Convention).160 A good example related to the Court’s own procedure is the pivotal decision concerning the binding effect of orders concerning the indication of provisional measures of protection, contained in the LaGrand judgment of 27 June 2011. As it will be explained in detail in Chapter 11, when this case reached the merits phase one of the final submissions made by Germany concerned lack of compliance by the United States with the provisional measures indicated 158  Nicaragua v. Colombia, Application to Intervene (Honduras), Judgment of 4 May 2011, ICJ Rep. 2011, p. 443, paras. 66–67. 159  Ibid., p. 443, paras. 69–70. 160  For a related discussion on the contrast between ratio decidendi and obiter dicta see Chapter 16, b).

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by means of a previous order of the Court. The Court was thus called to decide this question in the operative part of its judgment and in order to do so it was compelled to make a finding on the general question of law whether under Article 41 of the Statute orders on provisional measures are binding upon the parties to the case. The Court answered in the affirmative but its finding on the matter was included in the reasoning part of the judgment. Nonetheless, this question was clearly decided with binding force because (one) It is one of the reasons which constitute the necessary steps or an essential step leading to that part of the dispositif dealing with the German claim concerning breach of the order on provisional measures; (two) It is inseparable from the relevant passage in the operative part; and (three) It is an issue that is necessarily entailed in what was decided with the force of res judicata, i.e. that the United States had effectively breached the obligation incumbent upon it under the order indicating provisional measures.161

Box # 10-12 Is the decision res judicata for the Court itself? In the highly polemic South West Africa cases several judges felt that with its decision in the second phase of the case the Court had reversed the decision it had taken during the preliminary objections phase, also in the form of a judgment. Some of them even suggested that this involved a de facto revision of the previous decision, without following the requirements and procedures for revision in the Statute and Rules. Two members of the Court, in particular, approached the question from the angle of the scope of the res judicata principle and remarked that this is so strong and definitive that it makes the judgment binding not only upon the parties but also upon the Court itself, a proposition that finds confirmation in the use of the word “final” in Article 60 of the Statute. Judge Koretsky stated: Has the 1962 Judgment of the Court a binding force for the Court itself? The Judgment has not only a binding force between the parties (Article 59 of the Statute), it is final (Article 60 of the Statute). Being final, it is—one may say—final for the Court itself unless revised by the Court under the conditions and in accordance with the procedure prescribed in Article 61 of the Statute and Article 78 of the Rules of Court.

161  LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, p. 516, para. 128 (5).

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In discussing the meaning of the principle of res judicata, and its applicability in international judicial practice, its significance is often limited by the statement that a given judgment could not be considered as binding upon other States or in other disputes. One may sometimes easily fail to take into consideration the fact that res judicata has been said to be not only pro obligatione habetur, but pro veritate as well. And it cannot be said that what today was for the Court a veritas, will tomorrow be a non-veritas. A decision binds not only the parties to a given case, but the Court itself. One cannot forget that the principle of immutability, of the consistency of final judicial decisions, which is so important for national courts, is still more important for international courts. The practice of the Permanent Court and of this Court shows the great attention they pay to former judgments, their reasons and opinions. Consideration must be given even to the question whether an advisory opinion of the Court, which is not binding for the body which requested it, is binding for the Court itself not only vi rationis but ratione vis as well. (South West Africa, Second Phase, Dissenting Opinion of Judge Koretsky, ICJ Rep. 1966, pp. 240–241)

Likewise, judge Jessup remarked: Under Article 60 of the Statute, the Judgment of 21 December 1962 was “final and without appeal” although (under Article 59) it “has no binding force except between the parties and in respect of that particular case”. Within the meaning of Article 59, the present proceedings are in “that particular case”. The words in Article 60 “without appeal” clearly refer only to the parties; if they are dissatisfied with the judgment, they may seek a revision under Article 61 of the Statute if they are able to satisfy the conditions stated in that Article. The word in Article 60, “final”, may have a broader significance and may address itself to the Court as well as to the parties. Since Respondent has not proceeded in accordance with Article 78 ff. of the Rules of Court, and has not avowedly sought a “revision” of the 1962 Judgment I do not consider that there is before the Court a case under Article 61 of the Statute, despite Respondent’s arguments about “new facts.” (South West Africa, Second Phase, Dissenting Opinion of Judge Jessup, ICJ Rep. 1966, p. 332)

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The matter can be said to have been put at rest by the Court with its dictum in the Genocide Convention (Bosnia) case (quoted above) that “once the Court has made a determination (. . .), that determination is definitive both for the parties to the case, (. . .) and for the Court itself in the context of that case.”162



Effects for Third States (I): The Rights of Third States and the Protection Afforded by Article 59 The “negative” aspect of Article 59 means that, as a result of the principle of consent, States that are not parties to a case are not bound by any decision that the Court may give in that case. Thus, one of the main effects of Article 59 is that it provides a protection for third States against any detrimental effects that a decision by the Court may have upon their rights. The Court has had occasion to examine this matter in a number of cases in which the scenario of a third State requesting permission to intervene was either discussed or actually put into practice. This question concerns the jurisdiction of the Court to deal with the main case in the absence of the third State and is examined in detail in the chapter devoted to incidental proceedings on intervention.163 All the same, the most important among the applicable criteria may be summarized here in the following manner: (i) Article 59 has to be read together with Article 62, granting third States the right to request permission to intervene in a case in which they are of the view that they have a legal interest that may be affected by the decision. It is entirely up to those States to exercise this right and if they do so it is entirely discretional for the Court to admit the intervention. All the same, a third State admitted to intervene under that provision does not necessarily become a party to the case. (ii) If a third State refrains from requesting permission to intervene, its legal interests are in any case protected by Article 59 and the Court will always take care not to encroach upon the rights derived from those interests in its decision. The Court will in principle not rule on claims by a party in so far as they might affect rights of a third State who is not a party to the

162  Genocide Convention (Bosnia), Merits, Judgment of 27 Feb. 2007, ICJ Rep. 2007, p. 101, para. 139. 163  See Chapter 14, f ).

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proceedings and will not rule on a given issue when in order to do so the rights of a third party that is not before it have first to be determined. (iii) Nonetheless, the mere fact that there are States whose rights might be affected by the decision of the Court in a given case does not in itself preclude the Court from having jurisdiction over that case. The Court must remain mindful of the limitations on its jurisdiction that such circumstance imposes. (iv) A different situation is that in which the legal interests of a third State would not only be affected by a decision but would form “the very subject-matter of the decision.” In this limit-situation, the Monetary Gold doctrine states that the Court will refrain from exercising jurisdiction. Effects for Third States (II): The Decision as Precedent In the Free Zones case, the PCIJ remarked that the judgments contemplated by Article 58 of the Statute had “binding force” (under Article 59) and “final effect” (under Article 60) “in deciding the dispute brought . . . before the Court.”164 It is true that the scope of Article 59 is somewhat wider than that of Article 60, inasmuch as it speaks of “[t]he decision of the Court” while the latter refers to “[t]he judgment.”165 In any case, as far as judgments are concerned the rule in Article 60 supports the proposition that they have the full force of res judicata, as it means that they not only have “binding force” between the parties to the case and with respect of that particular case, but are also “final and without appeal.” The fact that Article 59 is formulated in negative terms merely stresses that the intention of the drafters was that of ruling out a rigid application of the stare decisis doctrine with regard to the decisions by the Court, a question that was very much in the minds of the drafters of the original Statute. This is also underlined further by the cross-reference to Article 59 that can be found in letter d) of paragraph 1 of Article 38 of the Statute, concerning the role that judicial decisions are to play as part and parcel of the law to be applied by the Court when performing its function of deciding “in accordance with international law such disputes as are submitted to it.” The PCIJ stated as much, when it remarked:

164  Order of 19 August 1929, PCIJ A 22, p. 13. In a subsequent decision in the same case, the Court reaffirmed that “[a]rticles 59 and 60 of the Statute of the Court . . . provide that the judgment is binding and final.” ( Judgment of 7 June 1932, PCIJ A/B 46, p. 161. 165  See Box # 10-1, above.

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The object [of Article 59 of the Statute] is simply to prevent legal principles adopted by the Court in a particular case from being binding upon other States or in other disputes. (Polish Upper Silesia, Merits Judgment No. 7, 25 May 1926, PCIJ A 7, p. 19)

It is submitted that the key word in this passage is “binding,” for it later became clear that decisions of the Court can and do have legal effects upon States not parties to a case, without this necessarily meaning that they are “bound” by it qua decision, i.e. in the same manner as the parties to the case in which they are rendered. The point was made in particularly clear terms by the Informal Inter-Allied Committee charged with reviewing the Statute of the PCIJ: [referring to Article 59 of the Statute of the PCIJ] The effect of this provision has, in our opinion, sometimes been misinterpreted. What it means is not that the decisions of the Court have no effect as precedents for the Court or for international law in general, but that they do not possess the binding force of particular decisions in the relations between the countries who are parties to the Statute. The provision in question in no way prevents the Court from treating its own judgments as precedents, and indeed it follows from Article 38 (. . .) that the Court’s decisions are themselves “subsidiary means for the determination of rules of law.” It is important to maintain the principle that countries are not “bound” in the above sense by decisions in cases to which they were not parties, and we consider accordingly that the provision in question should be retained without alteration.166 In its decisions, the Court has also admitted that its decisions concerning general points of law can have effects beyond the case in the context of which they are issued. A good example is the Aegean Sea Continental Shelf case, in which the question of the continuance in force of the 1928 General Act of Geneva for the Pacific Settlement of Disputes was raised during the proceedings. After noting that the question of the status of the General Act had already been raised, though not decided, in previous cases, the Court went on to observe: Although under Article 59 of the Statute “the decision of the Court has no binding force except between the parties and in respect of that particular 166  Inter-Allied Committee Report, p. 20, para. 63.

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case”, it is evident that any pronouncement of the Court as to the status of the 1928 Act, whether it were found to be a convention in force or to be no longer in force, may have implications in the relations between States other than Greece and Turkey (Aegean Sea Continental Shelf, Jurisdiction, Judgment of 19 Dec. 1978, ICJ Rep. 1978, pp. 16–17, para. 39)

Twenty years later, the Court asserted for the first time in an unequivocal manner that in its practice it follows as a matter of course what it has decided in previous cases, save for those situations in which it finds convincing reasons to depart from “the reasoning and conclusions” of earlier cases. This was made in 1998, at the preliminary objections phase of the Cameroon v. Nigeria case, in which the question of the entry into force of Optional Clause declarations was at issue. The governing precedent was a dictum by the Court in the Right of Passage case, decided as far back as 1957 and Nigeria tried to persuade the Court that this did not constitute a valid precedent and that in any case a new reasoning or a new approach to the matter was in order. The Court maintained its previous standing on the matter and, in a passage that will surely come to be considered as a landmark in the Court’s case law, observed: It is true that, in accordance with Article 59, the Court’s judgments bind only the parties to and in respect of a particular case. There can be no question of holding Nigeria to decisions reached by the Court in previous cases. The real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases. (Cameroon v. Nigeria, Preliminary Objections, Judgment of 11 June 1998, ICJ Rep. 1998, p. 292, para. 28)

Some years later, in the Genocide Convention (Croatia) case, again at the preliminary objections phase, the Court had to consider the weight that several of its previous decisions in other cases, involving other States—the case bearing the same name between Bosnia and Herzegovina and Yugoslavia and the Kosovo proceedings, involving Yugoslavia and not less than 10 different States—could have for the purpose of deciding the matters before it. The Court quoted the above passage from Cameroon v. Nigeria and expanded on the use of its own precedents, as contrasted with the res judicata principle: While some of the facts and the legal issues dealt with in those cases arise also in the present case, none of those decisions were given in proceedings between the two Parties to the present case (Croatia and Serbia), so

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that, as the Parties recognize, no question of res judicata arises (Article 59 of the Statute of the Court). To the extent that the decisions contain findings of law, the Court will treat them as it treats all previous decisions: that is to say that, while those decisions are in no way binding on the Court, it will not depart from its settled jurisprudence unless it finds very particular reasons to do so. (Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 428, para. 53)

Subsequently in the same decision, the Court reiterated that in general it does not choose to depart from “its settled jurisprudence” or “its previous findings”, particularly when similar issues were dealt with in the earlier decisions, “unless it finds very particular reasons to do so.”167 g)

Compliance and Enforcement168

The Statute of the Court is not at all concerned with the post-adjudicative phase of the litigation or with the problems associated with compliance with or enforcement of any of its decisions, the reason being that once it has determined the legal position of the parties involved in the litigation, an international tribunal has no power to supervise the further conduct of their relations 167  ICJ Rep. 2008, p. 449, para. 104. See, in general, J.C. Gardner, “Judicial Precedent in the Making of International Public Law”, 17 Journal of Comparative Legislation and International Law, 3d ser., vol. 17 (1935), pp. 251–259; Lauterpacht, “The Development . . .”, pp. 20–22; J. Barberis, “La Jurisprudencia Internacional como fuente de Derecho de Gentes según la Corte de la Haya”, ZaÖRV, vol. 31 (1971), p. 641 ff.; V. Roben, “Le précédent dans la jurisprudence de la Cour internationale”, German YIL, vol. 32 (1989), pp. 382–407; M. Shahabuddeen, Precedent at the International Court of Justice (1996); I. Scobbie, “Res Judicata, Precedent and the International Court: A Preliminary Sketch”, Australian YIL, vol. 20 (1999), pp. 299–317; G. Acquaviva & F. Pocar, “Stare decisis”, in Max Planck EPIL, MN 10–13, 24–26; M. Shahabuddeen, “Consistency in Holdings by International Tribunals”, in N. Ando et al (Eds.), Liber Amicorum Judge Shigeru Oda (2002), pp. 633–650; M. Balcerzak, “The Doctrine of Precedent in the International Court of Justice and the European Court of Human Rights”, Polish YIL, vol. 27 (2004–2005), pp. 131–144; Lauterpacht, “Principles . . .”, pp. 527–528; G. Guillaume, “The Use of Precedent by International Judges and Arbitrators”, Journal of International Dispute Settlement, vol. 2 (2011), pp. 5–23; V. Lowe, “The Function of Litigation in International Society”, ICLQ, vol. 61 (2012), pp. 212–213. 168  See a thorough study in C. Schulte, Compliance with Decisions of the International Court of Justice (2004).

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and it will not concern itself with the execution of its decision.169 The only exception to this would be when failure to execute a judgment leads to the institution of fresh proceedings, a situation largely anticipated by the PCIJ in the second Mavrommatis litigation.170 In such a case, it is possible to think that the Court would, in principle, be capable of dealing with this second case in a regular manner, provided, of course, that there is a subsisting basis for jurisdiction between the parties to the original litigation.171 Additionally, it must be borne in mind that the Court lacks any means to bring about compliance with its decisions. As a reflection of this, the publications of the Court contain very scant information with regard to the execution of its decisions. Starting in the late sixties, the Yearbook has included a sporadic section entitled “Action pursuant to decisions of the Court,” in which scattered information concerning the implementation of its advisory opinions and judgments is included “without comment.” With regard to the North Sea Continental Shelf cases, for instance, the texts of the treaties concluded by the parties on the basis of the Court’s judgments were reproduced in this section.172 With regard to the Nicaragua case, successive issues of the Yearbook reproduced the resolutions adopted on the subject by the General Assembly, after the Security Council failed to take action under Article 94, para. 2 of the Charter.173 After all, in international law, like in other legal systems, the enforcing of a decision by a tribunal is part of the executive function and not of the jurisdictional function and as such should be entrusted to a body invested with executive powers.174 This is why the Covenant of the League of Nations anticipated a special role for the Council with regard to the execution of arbitral awards or judicial decisions—including those of the PCIJ—, a role that, as

169  M.O. Hudson, International Tribunals-Past and future (1944), p. 127. In sequel-cases like Wimbledon or Haya de la Torre, the Court itself has evidenced a marked reticence to get involved in issues connected with the enforcement of its previous decisions. See Sir R. Jennings, “The Judicial Enforcement of International Obligations”, in Collected Writings of Sir Robert Jennings, vol. 1 (1998), pp. 497–498. 170  Readaptation of the Mavrommatis Concessions ( Jurisdiction), Judgment No. 10, 10 Oct. 1927, PCIJ A 11, p. 14. 171  The need for a valid title of jurisdiction in cases as these is rightly emphasized in Schulte, “Compliance . . .”, p. 38, note 95. 172  ICJ Yearbook (1970–1971), pp. 117–126. 173  ICJ Yearbook (1986–1987), pp. 165–166; ICJ Yearbook (1987–1988), pp. 153–154; ICJ Yearbook (1988–1989), pp. 167–168; ICJ Yearbook (1989–1990), pp. 164–165. 174  Hudson’s PCIJ, p. 128; UNCITRAL Colloquium, pp. 325–326.

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will be explained below, was to a large extent inherited by the United Nations Security Council. Apart from the rule embodied in Article 59, providing that the decision of the Court is binding for the parties, the only provision in the Statute that may be said to have a bearing on this matter is Article 61, para. 2, establishing that “[t]he Court may require previous compliance with the terms of the judgment before it admits proceedings in revision.”175 As it will be explained in more detail in Chapter 17, concerning the procedure applicable to the revision of judgments, this provision is based on the consideration that the continuing obligation of the parties to comply with the judgment and to implement its terms—derived from Articles 59 and 60 of the Statute—is not revoked or even suspended by the mere fact that one of them decides to impeach the decision. This provision empowers the Court to order a recalcitrant State to comply with one of its judgments as a precondition to admit a request for revision and, as such, can be considered as a mechanism for enforcement of sorts.176 However, it only applies to those States who are ready to formally challenge a judgment through the device of revision, who have certainly been only a handful so far. For those States parties to cases who never consider this course of action, the Statute is silent as to the compliance and enforcement of its own decisions. The Charter of the United Nations, on the other hand, deals with these aspects in a single provision, which reads: 1. 2.

Article 94 Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.177

175  Emphasis added. 176  N. Al-Qahtani, “The Role of the International Court of Justice in the Enforcement of Its Judicial Decisions”, Leiden JIL, vol. 15 (2002), pp. 796–797. 177  The convenience of regulating this matter in the Charter rather than in the Statute were advanced both at the Informal Inter-Allied Committee on the Future of the Permanent Court of International Justice and at the United Nations Committee of Jurists to the United Nations Conference on International Organization (see Inter-Allied Committee Report, para. 60; UNCIO, vol. 14, pp. 853, 886).

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Although they are closely interconnected, the rules embodied in these two paragraphs are actually designed to deal with two different matters pertaining to the Court’s decisions, namely, compliance, (paragrah 1) and enforcement (paragraph 2). There are also significant differences of scope between these two paragraphs. On the one hand, while paragraph 1 uses the term “decision of the International Court of Justice,” paragraph 2 refers to “a judgment rendered by the Court.”178 On the other hand, paragraph 1 is directed at the members of the United Nations and paragraph 2, more generally, to those States that are parties to a case, regardless of their status at the UN. The first aspect leads to the conclusion that while the duty of compliance enshrined in paragraph 1 of Article 94 would extend to all types of decisions by the Court, the mechanism for enforcement embodied in paragraph 2 can only be applied to those that are given in the format of judgments.179 The second refers to the well-known fact that there may be situations in which a State that is not a member of the UN is granted access to the Court and becomes a party to a case before it. As it is only natural, the special arrangements crafted at San Francisco to handle those situations were careful in always requiring from those States an express commitment to the obligations derived from the condition of member according to Article 94 of the Charter.180 In addition, in the case of States not parties to the Statute who are granted access to the Court, they must declare, not only that they accept all the obligations of a Member under Article 94 but also that they “undertake to comply in good faith with the decisions of the Court.”181 Although Article 94 of the Charter does not mention good faith as such, this is largely inconclusive, since Article 2, para. 2 already contain a general duty for all members to fulfill in good faith “the obligations assumed by them in accordance with the . . . Charter” and there can be no doubt that Article 94, para. 1 contemplates one such obligation.182 Besides, in the Gabcikovo-Nagymaros case the Court anticipated that when

178  On the relevance of this distinction see Genocide Convention (Bosnia), Provisional Measures II, Separate Opinion of Judge Ajibola, ICJ Rep. 1993, p. 402. 179  For a discussion of the import of Article 94 with regard to the binding force of orders on provisional measures and the manner in which the Court handled this question in the LaGrand case see Chapter 11, f ). See also Box 10-1 and Schulte, “Compliance . . .”, pp. 61–62. 180  See Chapter 1, c). 181  Security Council Resolution 9 (1946), para. 1. 182  Schulte, “Compliance . . .”, p. 20, note 10; P. Couvreur, “The Effectiveness of the International Court of Justice in the Peaceful Settlement of International Disputes”, in A.S. Muller et al. (Eds.), The International Court of Justice-Its Future Role after Fifty Years (1997), p. 109 and note 69.

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negotiations between the parties are necessary in order to give effect to one of its judgments they must be conducted without preconditions and in good faith.183 In any case, it cannot be doubted that paragraph 1 of Article 94 of the Charter is declarative of a principle of customary international law according to which a State that takes part in litigation before an international tribunal is under a positive obligation to comply in good faith with the decisions rendered by that body.184 In the Haya de la Torre case, the Court observed that in its previous judgment in the Asylum case, between the same parties, it had confined itself to defining the legal relations between them and that this decision “did not give any directions to the Parties, and entail[ed] for them only the obligation of compliance therewith.”185 Noticeably, the Court found no need to mention in this context Article 94 of the Charter.186 Subsequently, in the Request for Interpretation-Temple of Preah Vihear case, the Court reaffirmed that good faith is the governing principle concerning the implementation of its decisions. The Court stated: [t]he parties to a case before the Court have an obligation to implement the judgment of the Court in good faith. It is of the essence of that obligation that it does not permit either party to impose a unilateral solution. (Request for Interpretation-Temple of Preah Vihear, Judgment of 11 Nov. 2013, para. 99)

It is also evident that the two paragraphs in Article 94 are closely interconnected: a State party to a case will only feel the need to resort to the mech­ anism provided for in paragraph 2 if the other party fails to abide by the decision, which in turn will entail a breach of the Charter obligation contained in paragraph 1. In other words, questions of enforcement will arise only in situations in which compliance is lacking and in which paragraph 1 of Article 94 of the Charter may be said to have been ignored by a State having the condition of party to a case. It can be said, in general, that the decisions of the ICJ are complied with voluntarily as a matter of course. Empirical evidence shows that, like in the case of the decisions by the PCIJ, in the immense majority of the cases decided by the 183  Gabcikovo-Nagymaros, Judgment of 25 Sept. 1997, ICJ Rep. 1997, p. 79, para. 143. 184  O. Schachter, “The Enforcement of International Judicial and Arbitral Decisions”, AJIL, vol. 54 (1960), pp. 2–3. ILC Draft Convention, pp. 91–93; ILC Model Rules, Article 30, p. 85 185  Haya de la Torre, Judgment of 13 June 1951, ICJ Rep. 1951, p. 79. 186  As noted by G. Guillaume, “Enforcement of Decisions of the International Court of Justice“, in N. Jasentuliyana (Ed.), Perspectives on International Law (1996), p. 277.

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Court the States parties have managed to execute the terms of the decisions and the disputes giving rise to the proceedings have been brought to an end.187 The cases of non-compliance have always been the exception rather than the rule and this in itself explains why there is scarce practice in the application of paragraph 2 of Article 94 of the Charter.188 Conventional wisdom has it that there is a direct relationship between compliance with a decision and the manner in which the jurisdiction was invested on the Court: supposedly, in cases submitted by special agreement under paragraph 1 of Article 36 of the Statute the probability of the resulting decision being readily accepted by the parties and complied with is higher than in cases introduced by application, in particular if the basis for jurisdiction was a pre-existing title of jurisdiction, like a clause in a treaty or a set of declarations under the Optional Clause system.189 However, this may have changed with the increase in the number of cases submitted to the Court and the progressive emergence of what can be called a “culture of litigation” at the ICJ.190 In fact, more recent research shows that in a case submitted by special agreement the parties may very well experience serious difficulties to fully comply with the decision (like it occurred in cases like El Salvador/Honduras, Gabčíkovo-Nagymaros or Libya/Chad), just like it is now relatively common that in cases submitted unilaterally the final decision is executed with no apparent problems (the examples are numerous: Arbitral Award (Guinea-Bissau v. Senegal); Oil Platforms; Genocide Convention (Bosnia); Nicaragua v. Honduras;

187   Hudson, “International Tribunals . . .”, pp. 129–130; Thirlway, “Judgments . . .”, MN 25; M. Bedjaoui, “Certain Problems Relating to Compliance with the Decisions of the International Court of Justice”, ICJ Yearbook (1994–1995), pp. 233–234; Guillaume, “Enforcement . . .”, pp. 278–280; C. Paulson, “Compliance with Final Judgments of the International Court of Justice since 1987”, AJIL, vol. 98 (2004), pp. 434–461; Schulte, “Compliance . . .”, pp. 271–275. In this last work a detailed analysis of all cases decided by the Court up to 2003 can be found. 188  For a list of the factors influencing compliance se Paulson, “Compliance . . .”, pp. 456–460. 189  Schachter, “The Enforcement . . .”, p. 5; J.I. Charney, “Disputes Implicating the Institutional Credibility of the Court: Problems of Non-Appearance, Non-Participation and NonPerformance”, in L.F. Damrosch (Ed.), The International Court of Justice at a Crossroads (1987), p. 297; L. Gross, “Compulsory Jurisdiction under the Optional Claise: History and Practice”, ibid., pp. 45–46. 190  K. Highet, “The Peace Palace Heats Up: The World Court in Business Again?, AJIL, vol. 85 (1991), pp. 645–654; J.J. Quintana,”Letter to the Editor-in-chief”, AJIL, vol. 86 (1992), p. 542.

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Arrest Warrant; Romania v. Ukraine; Navigational Rights; Pulp Mills and Mutual Assistance).191 It is also important to take into account that in many cases compliance with a judgment does not entail the taking of special measures. If the decision is merely declarative of a legal situation or limits itself to reject or to uphold certain specific claims made by one State against another, complying with it will merely entail that the States parties to the case adjust their future behavior to what the Court found to be the correct legal position between them. These are what are often called “self-executing” or “self-enforcing” decisions, to be contrasted with those decision that will be complied with only after one or both of the parties carry out certain actions or take certain measures. A classic example would be a case of diplomatic protection in which the decision favors the complaining party and thus the individual affected becomes entitled to a specific form of remedy, like monetary compensation. Similarly, in a case involving a territorial dispute the losing party may be forced to withdraw any authorities it may have displayed in the portion of territory declared to be under the sovereignty of the other party.192 Therefore, it can be said that while all judgments given by the Court must be complied with as a matter of course, only some of them must be effectively carried out or executed.193 Everything will depend on the factual circumstances of the case and the context in which the decision was rendered.194 If, for instance, the implementation of the decision requires technical expertise, the parties may decide to request assistance from a third party. Thus, in the Burkina Faso/Mali and Burkina Faso/Niger cases the parties secured the participation of the Court itself in the process of appointing experts tasked to assist them in the demarcation of the frontier established in the respective judgments.195 Similarly, in the Libya/Chad case the parties resorted jointly to the Security Council requesting assistance for the implementation of part of the judgment and the Council replied promptly by establishing a UN operation tasked with supervising the

191  A.P. Llamzon, “Jurisdiction and Compliance in Recent Decisions of the International Court of Justice”, EJIL, vol. 18 (2008), pp. 844–846, 852. 192  See J.G. Merrills, “The International Court of Justice and the Adjudication of Territorial and Boundary Disputes”, LJIL, vol. 13 (2000), p. 899. 193  Jennings, “The Judicial Enforcement . . .”, pp. 495–499; Guillaume, “Enforcement . . .”, pp. 277–278; Thirlway, “Judgments . . .”, MN 7–14. 194  Schulte, “Compliance . . .”, pp. 31–32. 195  Burkina Faso/Mali, Nomination of Experts, Order of 9 April 1987, ICJ Rep. 1987, p. 7; Burkina Faso/Niger, Judgment of 16 April 2013, par. 113. See also Box # 8-12.

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withdrawal of Libyan troops and authorities from a territory that the judgment recognized as being under the sovereignty of Chad.196 It is also worth recalling in this regard that the Secretary-General’s Trust Fund to Assist States in the Settlement of Disputes through the ICJ foresees the possibility of providing financial assistance to States for expenses incurred in connection with “the execution of a Judgment of the International Court of Justice.”197 It is believed that the fund has not yet been used for this purpose.

Box # 10-13 Lack of compliance with decisions of the ICJ: Practice At the time of the PCIJ compliance with the Court’s decisions posed no real difficulties and no case arose in which one of the parties refused to carry out one such judgment.198 As for the present court, the only cases in which a judgment of the Court has been openly and willfully disregarded are Corfu Channel (United Kingdom v. Albania); Fisheries Jurisdiction (UK v. Iceland) and (Germany v. Iceland); US Hostages (United States v. Iran) and Nicaragua (Nicaragua v. United States).199 Interestingly, all of these cases were submitted by application and in all of them there was also, at some point, a situation of lack of appearance by the respondent.

(i) Corfu Channel (United Kingdom v. Albania) This case was the object of three successive decisions by the Court: a judgment on preliminary objections, a judgment on the merits and a judgment on compensation. The Government of Albania participated in the jurisdiction and merits phases but failed to appear at the last phase, which concerned the amount of reparation owed to the United Kingdom. For many years Albania

196  United Nations Aouzou Strip Observer Group (UNASOG), established by SC RES 915 (1994). See ICJYB (1993–1994), pp. 218–219. For comments see Paulson, “Compliance . . .”, p. 441; Llamzon, “Jurisdiction . . .”, pp. 830–832. 197  Doc. A/59/372, 21 September 2004, p. 6. Apparently, a provision for this was included in the Terms of Reference of the Fund in the light of the experience acquired by the SecretaryGeneral in the Burkina Faso/Mail case (UNITAR Colloquium, pp. 360–361). See also Box # 4-11. 198  Hudson’s PCIJ, pp. 596–597. 199  Schulte, “Compliance . . .”, pp. 271–272.

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refused to pay the sum awarded by the Court to the UK until in May 1992 the two governments reached agreement on the question.200

(ii) Fisheries Jurisdiction (UK v. Iceland) and (Germany v. Iceland) In these paired cases Iceland openly challenged the authority of the Court and failed to appear at the provisional measures, jurisdiction and merits phases. The Court’s decisions on the merits were never implemented by that State but this may have been connected to the fact that the rulings of the Court with regard to the extension of the latter’s fisheries zones were quickly overtaken by developments in the law of the sea.

(iii) US Hostages (United States v. Iran) Iran failed to appear at the provisional measures, merits and reparations phases. After the Court issued a judgment on the merits but before it could rule on the question of compensation the parties reached a series of agreements that contemplated, among other things, the discontinuance of the proceedings by the applicant. When it gave its notice of discontinuance, the United States declared that Iran had complied fully with the Court’s decision on the merits.201

(iv) Nicaragua The United States participated fully in the provisional measures and jurisdiction and admissibility phases of the litigation, but withdrew from the case after the Court’s decision affirming its jurisdiction and declaring the application admissible. Thus, it failed to appear at the merits and reparations phases. After the Court issued its judgment on the merits, Nicaragua did not succeed in obtaining a decision by the Security Council concerning the execution of the decision but did move the General Assembly to adopt several resolutions concerning the question. Before the Court could rule on the question of reparations the Government of Nicaragua discontinued the proceedings.202

200  ICJ Yearbook (1995–1996), pp. 256–257. See also G. Marston (Ed.), “United Kingdom Materials on International Law”, BYIL, vol. 63 (1992), pp. 781–782. 201  See Box # 9-4. 202  Nicaragua, Removal of case, Order of 26 Sept. 1991, ICJ Rep. 1991, p. 47.

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The mechanism for inducing compliance of international decisions provided for in the Covenant of the League of Nations was slightly different from that found in Article 94 of the UN Charter. The most relevant provision was Article 13, which bound the Members of the League to submit to arbitration or judicial settlement any dispute that could arise between them and “which they recognize to be suitable for submission to arbitration or judicial settlement and which cannot be satisfactorily settled by diplomacy.” In the closing paragraph of this provision the members of the League committed themselves to “carry out in full good faith any award or decision that may be rendered” and to refrain from resorting to war against a member which complied therewith. It was also provided that “[i]n the event of any failure to carry out such an award or decision, the Council shall propose what steps should be taken to give effect thereto.”203 As will be observed, this provision left States at liberty to resort to war against a member which did not comply with an award or decision rendered. This is related to the fact that by the time of the adoption of the Covenant war as an instrument of international relations was not yet proscribed. It would be only in 1928, with the signature of the Pact of Paris, that a formal renunciation of war as a means for the settlement of disputes was adopted by the international community. This provision and the corresponding rule of customary international law that evolved on the matter—and later incorporated in the UN Charter—had the effect of definitively outlawing the taking of measures of force for inducing the execution of a decision by an international tribunal. As a result of this, a State party to a case that is faced with a scenario of non-compliance with a judgment by the other party has essentially two alternatives. On the one hand, it can contend that by refusing to abide by the judgment the other party has committed an internationally wrongful act, which under the Law of State Responsibility entitles it to resort to self-help, in the guise of counter-measures falling short of the use of force.204 The aggrieved State could thus resort to applying diplomatic and economic pressure on the debtor State, attaching property belonging to the latter or carrying out enforcement action through municipal courts.205

203  For a comprehensive analysis see Schulte, “Compliance . . .”, pp. 19–21. The original version of Article 13 only referred to arbitral awards. A major change introduced in the 1924 amendment to the Covenant consisted in the addition of judicial decisions, which was prompted by the setting up of the PCIJ. 204  Guillaume, “Enforcement . . .”, pp. 285–286; UNITAR Colloquium, pp. 333–335; Couvreur, “The Effectiveness . . .”, p. 107. 205  Schachter, “The Enforcement . . .”, pp. 6–14.

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On the other hand, the aggrieved party can also resort to the existing mechanism of institutional enforcement, i.e. enforcement through some political body endowed with authority to take such measures. By design of the drafters of the UN Charter, this body is the Security Council, which under Article 94, para. 2 may, “if it deems necessary, make recommendations or decide upon measures to be taken to give to the judgment.” However, it cannot be doubted that this mechanism is notoriously defective. Firstly, while Article 94, para. 2 of the Charter confers upon the Council a large amount of discretion and extensive powers of appreciation—for it would only step in to give effect to a judgment if it deems it necessary—it is also considerably weaker than the formula included in the Covenant, according to which the Council was under an obligation to act in the event of failure to comply with a decision (“the Council shall propose what steps should be taken”).206 Secondly, the Security Council would only be seised of the matter of the lack of compliance with a judgment by the ICJ if one of the parties to a case brings this question to its attention.207 The wording of Article 94, para. 2, is clear in ruling out ex officio action by the Council, with the result that in the absence of action by one of the parties, the Council would not be authorized to step in.208 Thirdly, for the aggravated party itself resort to the Council is not compulsory but optional and a State may well consider it expedient to avoid taking the route of Article 94, para. 2 and to limit itself to invoking paragraph 1 of the same provision and resorting to the mechanism of counter-measures or to other available means to put pressure on the defaulting party, such as resort to a regional organization of which the two States are members. As a consequence, not only can a State party refrain from resorting to the Council altogether but this body itself is at liberty not to act once it has been seised of the matter.209 On the other hand, the Council’s extensive powers under other provisions of the Charter should not be affected by the separate power conferred upon it 206  L.M. Goodrich, E. Hambro & A.P. Simmons, Charter of the United Nations, Commentary and Documents, 3rd ad revised edition (1969); H. Mosler & K. Oellers-Frahm, “Article 94” in B. Simma et al. (Eds.), The Charter of the United Nations—A Commentary, 2nd. ed. (2002), vol. 2, MN 7–8, pp. 1176–1177; A. Tanzi, “Problems of Enforcement of Decisions of the International Court of Justice and the Law of the United Nations”, EJIL, vol. 6 (1995), pp. 2–4; Schachter, “The Enforcement . . .”, p. 18. 207  Schachter, “The Enforcement . . .”, p. 18; Bedjaoui, “Certain problems . . .”, p. 235. 208  For the opposite view see UNITAR Colloquium, p. 329, note 9. 209  For a list of suggestions for more effective methods of enforcement see UNITAR Colloquium, pp. 344–347.

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by Article 94. Under Chapter VII, for instance, in a given case in which lack of compliance with a judgment gives rise to international tension and this escalates and becomes a threat to international peace and security, the Council may always act—even in the absence of a request by one of the parties to the case—and exercise its functions and powers with regard to that situation.210 In this scenario, however, inducing compliance with the decision by the ICJ would be only one element of a wider picture and would not even have to be the primary trigger for the Council’s action. Similarly, the fact that a State party to a case before the Court declines to resort to Article 94, para. 2 of the Charter cannot have the effect of negating key provisions in Chapter VI, such as Article 34, under which the Council may investigate any dispute or any situation which may lead to international friction or give rise to a dispute, or Article 35, authorizing any member of the United Nations to bring to the attention of the Council or of the General Assembly any such dispute or situation.211 Also, action by a relevant regional organization to induce compliance with a judgment on the basis of a particular treaty cannot be entirely ruled out.

Box # 10-14 Inducing compliance with decisions of the ICJ in regional settings Multilateral treaties providing for the jurisdiction of the ICJ sometimes contain special provisions designed at ensuring compliance with the decision of the Court.212 The most notable examples are the 1948 American Treaty on Pacific Settlement (“Pact of Bogotá”) and the 1957 European Convention for the Peaceful Settlement of Disputes. Article 50 of the Pact of Bogotá states: If one of the High Contracting Parties should fail to carry out the obligations imposed upon it by a decision of the International Court of Justice or by an arbitral award, the other party or parties concerned shall, before resorting to the Security Council of the United Nations, propose a Meeting 210  Goodrich et al., “Charter . . .”, p. 556. In this scenario, other provisions of the Charter would become applicable, such as Article 48, para. 2, involving other UN agencies in the process of implementation of the Council’s decisions (Tanzi, “Problems . . .”, pp. 26–27). 211  Mosler & Oellers-Frahm, “Article 94”, MN 8, p. 1177. 212  The same can be said of certain bilateral treaties. A good example is the 1934 Rio de Janeiro Protocol between Colombia and Peru (Hudson’s PCIJ, p. 596).

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of Consultation of Ministers of Foreign Affairs to agree upon appropriate measures to ensure the fulfillment of the judicial decision or arbitral award. For its part, Article 39 of the European Convention reads: 1. Each of the High Contracting Parties shall comply with the decision of the International Court of Justice or the award of the Arbitral Tribunal in any dispute to which it is a party. 2. If one of the parties to a dispute fails to carry out its obligations under a decision of the International Court of Justice or an award of the Arbitral Tribunal, the other party to the dispute may appeal to the Committee of Ministers of the Council of Europe. Should it deem necessary, the latter, acting by a two-thirds majority of the representatives entitled to sit on the Committee, may make recommendations with a view to ensuring compliance with the said decision or award. There are significant differences between these two systems for enforcement. The first is that resort to the regional mechanism is compulsory under the Pact of Bogotá but voluntary under the European Convention: in the American system the aggrieved States (Article 50 uses the expression “the other party or parties concerned”) are bound to propose a meeting of consultation of the Ministers of Foreign Affairs before resorting to the Security Council. In the European system the other party to the dispute simply may appeal to the Committee of Ministers of the Council of Europe. The second difference is that the European Convention is more detailed about the type of action that the enforcement body may take, by specifying that this may make recommendations “with a view to ensuring compliance with the  . . . decision.” The Pact of Bogotá is more general, as the purpose of the Meeting of Consultation of Ministers is “to agree upon appropriate measures to ensure the fulfillment of the judicial decision.” Finally, while the Pact of Bogota is silent as to the majority required to take any decision at the Meeting of Consultation, the European Convention is clear in that any recommendation to be adopted by the Committee of Ministers requires a two-thirds majority “of the representatives entitled to sit on the Committee.”

There has been some discussion on whether Article 94, para. 2 of the Charter grants to the Council powers autonomous or subordinate to those conferred

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on it under Chapters VI and VII.213 The general understanding appears to be that they are independent powers, inasmuch as the intention of the drafters was to provide some means for giving effect to a judgment even in cases in which lack of compliance would not raise to the level of a threat to international peace and security.214 This question is closely related to the nature of the measures to be taken by the Council, which will be examined below.215 If the Council is regularly seised of a matter under Article 94, para. 2 and it decides that it is necessary to act, there are two courses of action open to it, namely, to make recommendations to give effect to the judgment or to “decide upon measures to be taken” for the same purpose. With regard to recommendations, it is clear that, in principle, these would be addressed to the parties to the case and that the Council can suggest to them all sorts of courses of action in order to facilitate or to expedite the execution of a decision rendered by the Court. These would be recommendations similar—but not necessarily identical—to those that the Council adopts when it exercises its powers in the field of the peaceful settlement of disputes, i.e. within the purview of Chapter VI of the Charter.216 The reference to “measures to be taken” in paragraph 2 of Article 94 is more problematic because it is far from clear to what type of measures this sentence refers.217 Under one view, these measures are those binding measures contemplated in Chapter VII of the Charter, whether they are the provisional measures found in Article 40, the more definite measures not involving the use of armed force provided for in Article 41—sanctions—or even the ultimate measures involving the use of force contemplated in Article 42. However, under Article 39 the application of these provisions is triggered by a separate determination by the Council that a given situation constitutes a threat to international peace and security and without this determination it would prove to be difficult for the Council to legally impose any type of binding measures to the States members. For these reasons, and given that Article 94 is meant to apply in all cases of lack of compliance, irrespective of their gravity or their effects on international peace and security, it is at least debatable whether in 213  Oellers-Frahm, “Article 94 UN Charter”, MN 17–21, pp. 197–198. 214  Schachter, “The Enforcement . . .”, pp. 18–20. 215  Goodrich et al., “Charter . . .”, pp. 557–558; Mosler & Oellers-Frahm, “Article 94”, MN 11, p. 1177; Schulte, ”Compliance . . .”, pp. 39–40. 216  Schachter, “The Enforcement . . .”, pp. 21–22. For examples see Schulte, “Compliance . . .”, p. 45. 217  Oellers-Frahm, “Article 94 UN Charter”, MN 22–24, pp. 199–200.

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applying this provision the Council is entitled to adopt binding decisions entailing action taken under Chapter VII of the Charter.218 However, this is not the end of the story because the binding force of the decisions taken by the Security Council is not confined to action taken under Chapter VII. In the Namibia advisory opinion the Court clearly stated that Article 25 of the Charter—stating that the Members of the United Nations agree to accept and carry out the decisions of the Security Council—is not confined to decisions in regard to enforcement action but applies to all the decisions of the Council that are adopted in accordance with the Charter. The Court also remarked that: The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council. (Namibia, Advisory Opinion of 21 June 1971, ICJ Rep. 1971, p. 53, para. 114)

Therefore, it cannot be entirely ruled out that when the Council acts under Article 94, para. 2 and chooses the route of deciding “upon measures to be taken,” rather than that of adopting recommendations addressed to the parties, it would be in a position to adopt decisions that are binding upon all States and not only upon the States parties to the litigation.219 By following this course of action, the Council could be involving all the States members of the United Nations in the process of inducing compliance with a decision by the Court, a decision that, under Article 59 of the Statute, can itself only have inter partes effects.220 With regard to the scope of the measures, a cogent view is that when acting under Article 94, para. 2 the Council is empowered to decide on measures analogous to those listed in Article 41 (complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means 218  Mosler & Oellers-Frahm, “Article 94”, MN 11. 219  Schachter, “The Enforcement . . .”, p. 22. For the view that, in any case, these measures must be peaceful in nature and would exclude military action see Schulte, “Compliance . . .”, p. 47. 220  Tanzi, “Problems . . .”, p. 26.

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of communication and the severance of diplomatic relations) but is not in any way limited by that provision.221 A virtually unlimited variety of measures would then be available and the only limitation upon the exercise of this power that is apparent from Article 94, para. 2 is that the measures adopted should seek “to give effect to the judgment.”222

Box # 10-15 Practice in the application of Article 94, para. 2 of the Charter 223 The rudimentary machinery for the enforcement of international judicial decisions foreseen in Article 13 of the Covenant was never put into practice.224 As for the present Court, the Security Council has never taken action under Article 94, para. 2 of the Charter. This provision has been expressly invoked in several occasions, but in all of them the Council refrained from acting.225 These situations are described below.

(i) Right of Passage (Portugal v. India) After the Court issued its decision on the merits in this case Portugal filed a complaint before the Security Council. While Portugal contended that India was failing to abide by the judgment, it refrained from invoking Article 94, para. 2 of the Charter. Additionally, the complaint was not accompanied by a request for a Council meeting and apparently was not acted upon.226

(ii) Nicaragua (Nicaragua v. United States) After the Court issued its judgment in the Military and Paramilitary Activities in and against Nicaragua and the United States rejected the decision in its entirety, Nicaragua resorted to the Security Council in two occasions. In the first, no

221  Tanzi, “Problems . . .”, pp. 25–26. 222  UNITAR Colloquium, p. 328. 223  For the practice under Article 94, para. 2 with regard to orders of the Court indicating provisional measures see Box # 11-16. 224  Hudson’s PCIJ, p. 596; Schulte, “Compliance . . .”, p. 21. 225  All the same, resort to the Security Council under Article 94, para. 2 by aggrieved States is far from common. The reasons explaining this attitude are explored in Llamzon, “Jurisdiction . . .”, pp. 847–848. 226  Schulte, “Compliance . . .”, p. 39, note 99.

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reference was made to Article 94, para. 2 in the complaint, which was based on the contention that the existing dispute in regard to which the judgment had been issued constituted a threat to international peace and security. A draft resolution on the matter was vetoed by the United States. Some weeks later Nicaragua filed a second complaint and requested a meeting of the Council in accordance with Article 94, para. 2. Five non-permanent members of the Council tabled a draft resolution in which the Council urgently called “for full and immediate compliance with the judgment of the International Court of Justice of 27 June 1986 . . . in conformity with the relevant provisions of the Charter.” The draft resolution attracted 11 votes in favour, 3 abstentions and a negative vote by the United States and thus failed to be adopted.227 Nicaragua resorted then to the General Assembly, which promptly adopted a resolution along the lines of the draft that had been considered and defeated at the Council.228 In several subsequent sessions the GA adopted similar resolutions on the same question.229

(iii) El Salvador/Honduras On 11 September 1992 a chamber of the Court rendered its decision in this complex litigation, involving land, island and maritime questions. The parties declared that they accepted the verdict but subsequently met with difficulties in implementing it. On January 2002 Honduras filed a formal complaint before the Security Council invoking Article 94, para. 2 of the Charter and requesting this organ to make recommendations to induce El Salvador to comply and, failing this, to adopt measures in order to ensure that the judgment was ­executed.230 No action was taken on the request and on 10 September of the same year El Salvador filed before the Court an application for revision of the judgment, a matter that came to be decided in December 2003.231

227  Mosler & Oellers-Frahm, “Article 94”, MN 13, p. 1178, note 18. 228  A/RES/41/31, 3 November 1986. 229  A/RES/42/18, 12 November 1987; A/RES/43/11, 25 October 1988; A/RES/44/43, 7 December 1989. 230  UN Doc. S/2002/108, 23 January 2002. 231  Application for Revision—El Salvador/Honduras, Judgment of 18 Dec. 2003, ICJ Rep. 2003, p. 392.

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Practice in the application of Article 94, par. 2 of the Charter offer important lessons concerning the activation of the enforcement mechanism provided for in that instrument. In the first place, it would appear that the Council will face the question of taking action under Article 94, para. 2 only if the aggrieved party formally requests a Council meeting to consider the situation of lack of compliance. If a party to a case sends a letter to the President of the Council claiming that the other party is not complaining with a judgment of the Court but falls short of requesting a meeting of the Council to consider the situation, the President will in all likelihood circulate it with no comments among the members of the Council and leave it at that. If the request for a meeting is included in the letter, however, the question will have to be placed in the agenda of the Council and the Council will have to consider inviting the concerned States to participate in the relevant meetings under the rules contained in Articles 31 and 32 of the Charter. Secondly, in most cases the initial action to be taken by the Council would be the adoption of a resolution urging the parties to comply with the judgment of the Court and only if lack of compliance persists—which would involve now lack of compliance with the Council’s own decision—there would be room for further action. It is illustrative in this regard that this was what Nicaragua requested from the Council in its complaint and this was what it obtained later from the General Assembly, after the draft resolution was vetoed by the United States. The third lesson is that it appears to be established that decisions by the Security Council made under Article 94, para. 2 of the Charter are subject to the exercise of the veto by any of the permanent members, even if this State is itself the party refusing to comply with the judgment. Other aspect of interest from the point of view of the procedure of the Security Council that became clear with the Nicaragua episode is that the rule of “obligatory abstention” present in the last sentence of Article 27, para. 3 of the Charter would not be applicable in the case of decisions adopted under Article 94, para. 2.232 Finally, despite the fact that the Charter mentions compliance with judgments of the ICJ only in Article 94, para. 2 of the Charter, the competence of the Council in this matter is not exclusive and under Article 10 an aggrieved

232  On this see a Memorandum from the UN Legal Counsel to the Secretary General of 18 July 1986 (UNJYB (1986), pp. 283–285) and an extensive discussion in Tanzi, “Problems . . .”, pp. 13–24.

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party is entitled to seise the General Assembly of the question.233 Presumably, this can be done either before that State resorts to the Security Council or after it does so and fails to move the Council to act. Further Reading

General Works, Series and Treatises



Articles and Monographs

Dubisson’s CIJ, pp. 241–275 C. Espósito, “Article 64”, in Oxford Commentary, pp. 1598–1604 Guyomar’s Commentaire, pp. 593–619 R. Hofmann & T. Laubner, “Article 57”, in Oxford Commentary, pp. 1383–1400 Hudson’s PCIJ, pp. 545–546 K. Oellers-Frahm, “Article 94 UN Charter”, in Oxford Commentary, pp. 186–203 Rosenne’s Law and Practice, vol. 3, pp. 1463–1479 Rosenne’s Procedure, pp. 185–187, 193–200 Scerni’s La Procédure, pp. 658–665 Study Group Report, pp. 61–62 Thirlway’s Law and Procedure, Part. 12, BYIL, vol. 72 (2001), pp. 69–76; Part. 13, BYIL, vol. 74 (2003), pp. 102–114 UNITAR Colloquium, pp. 324–369

B.A. Ajibola, “Compliance with Judgments of the International Court of Justice”, in M.K. Bullerman & M. Kuijer (Eds.), Compliance with Judgments of International Courts, Essays in Honour of Henry G. Schermers (1996) L. Boisson de Chazournes & A. Angelini, “After “The Court Rises”: The Rise of Diplomatic Means to Implement the Pronouncements of the International Court of Justice”, LPICT, vol. 11 (2012), pp. 1–46 L. Caflisch, “Valeur et effet des declárations faites par des juges ou arbitres internationaux”, in M. Rama-Montaldo (Gen. Ed.), International Law in an Evolving World, Liber Amicorum in Tribute to Professor Eduardo Jiménez de Aréchaga (1994), pp. 159–1180 L.N. Caldeira Brant, “L’autorité des arrêts de la Cour international de Justice”, in C. Apostolidis (Ed.), Les arrêts de la Cour internationale de Justice (2005), pp. 141–167 Favoreu, « Recusation  et administration de la preuve devant la Cour internationale de Justice», AFDI (1965), pp. 233 ff.

233   Schachter, “The Enforcement . . .”, p. 24. For details see Schulte, “Compliance . . .”, pp. 63–68. See also UNITAR Colloquium, pp. 331–332.

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G. Guillaume, «  Les déclaration jointes aux decisions de la Cour Internationale de Justice », in C. Armas Barea et al. (Eds.), Liber Amicorum ‘In Memoriam’ of Judge Jose Maria Ruda (2000), pp. 421–434 I. Hussain, Dissenting and Separate Opinions at the World Court (1984) E. Kerley, “Ensuring Compliance with Judgments of the International Court of Justice”, in L. Gross (Ed.), The Future of the International Court of Justice (1976), pp. 276–286 M. Lachs, M.: “Le juge international à visage découvert (Les opinions et le vote)”, in Estudios de Derecho Internacional: Homenaje al Profesor Miaja de la Muela, vol. 2 (1979), pp. 939, 946 H. Lauterpacht, “Dissenting opinions of national judges and the revision of the Statute of the Permanent Court of International Justice”, in E. Lauterpacht (Ed.), International Law-Being the Collected Papers of Hersch Lauterpacht, (2004), vol. 5, pp. 184–189 V.S. Mani, “Audi alteram partem: journey of a principle from the realms of private procedural law to the realms of international procedural law”, Indian YIL, vol. 9 (1969), p. 391 ff. H. Mosler, “Judgments of International Courts and Tribunals”, in R. Bernhardt (Ed.), Encyclopedia of Public International Law, vol. 3 (1992), pp. 31–38 E.K. Nantwi, The Enforcement of International Judicial Decisions and Arbitral Awards in International Law (1966) A. Oraison, “Quelques reflexions générales sur les opinions separees individuelles et dissidents des Juges de la Cour Internationales de Justice”, RDI, vol. 78 (2000), pp. 167–207 L.V. Prott, “The Style of Judgment in the International Court of Justice”, Australian YIL (1970–1973), pp. 75–90 W.M. Reisman, “The Enforcement of International Judgments”, AJIL, vol. 63 (1969), pp. 1–27 W.M. Reisman, Nullity and Revision: Review and Enforcement of International Judgments and Awards (1971), pp. 637–780 S. Rosenne, “L’Exécution et la mise en vigueur des décisions de la Cour Internationale de Justice”, RGDIP, vol. 57 (1953), pp. 532–583 H. Thierry, “Par la voix prépondérante du Président . . .”, in E. Yakpo & T. Boumedra (Eds.), Liber Amicorum Judge Mohammed Bedjaoui (1999), pp. 525–530 E. Tuncel, L’Exécution des décisions de la Cour Internationale de Justice selon la Charte des Nations Unies (1960) C. Vulcan, “L’exécution des décisions de la Cour Internationale de Justice d’après la Charte des Nations Unies”, RGDIP, vol. 51 (1947), pp. 187–205 J.S. Warioba, “Monitoring Compliance with and Enforcement of Binding Decisions of International Courts”, Max Planck Yearbook of United Nations Law, vol. 41 (2001), pp. 41–52

Part 5 The Litigation Interrupted (Incidental Proceedings)

∵

Part 5 concentrates on those proceedings that refer to matters other than the merits and are conducted before the litigation in the main case has concluded. This section of the work covers several classes of incidental proceedings or “cases within cases,” that take place during the lifespan of a case, that is the period running from the institution of proceedings to the termination of the case, which, as seen above, normally occurs when a decision on the merits has been delivered. Incidental proceedings comprise five different types of collateral proceedings, concerning the following matters:1

· Provisional measures of protection (Chapter 11); · Challenges to the Court’s jurisdiction, frequently assuming the form of preliminary objections (Chapter 12); · Counter-claims (Chapter 13); · Third-party intervention under Article 62 of the Statute (Chapter 14); · Third-party intervention under Article 63 of the Statute (Chapter 15).

1  The Rules of Court address the question of incidental proceedings in Section D of Part III. Two devices that appear there are discussed in other sections of the present work, as they do not qualify as incidental proceedings stricto sensu. They are the institution of “Special reference to the Court”, discussed in Chapter 18, under the heading “Other litigation devices” and “Discontinuance”, which is discussed in Chapter 9, dealing with the termination of proceedings.

CHAPTER 11

Provisional Measures States engaged in litigation before the International Court of Justice, particularly in cases introduced by application, often resort to the technique of requesting the indication of provisional measures of protection. In the French version of the Statute these are called “mesures conservatoires,” an expression that arguably reflects better the proper nature of this legal institution, which corresponds in general terms to what is known in certain legal systems as “injunctive relief.”1 The legal basis for this is Article 41 of the Statute, according to which the Court has the power to indicate, if it considers that circumstances so require, any provisional measures “which ought to be taken to preserve the respective rights of either party.” In marked contrast with the 1972 Rules, which contained a single provision in this regard, the Rules in force devote not less than six separate articles to the incidental proceedings on what it calls, in an interesting departure from the language of the Statute, “Interim Protection” (Subsection 1 of Section D of Part III, Articles 73 to 78). This formula can be traced back to the Rules of the PCIJ and the 1946 Rules of the ICJ, which used the expression “interim measures of protection.” One of the main changes introduced to the Rules in 1978 consisted of bringing the terminology in line with that of the Statute, but clearly this was not done with regard to the heading of Subsection 1, at least in the English version.2 Interestingly, in the abbreviated name of each case adopted for official quotation purposes the orders that the Court makes under Article 41 were formerly labeled in English as “Interim Protection.” Starting in the late 1970s, this formula was replaced with “Provisional Measures.” In French they have always been called “mesures conservatoires.”

1  S. Oda, “Provisional Measures”, in V. Lowe & M. Fitzmaurice, (Eds.), Fifty Years of the International Court of Justice, Essays in Honour of Sir Robert Jennings (1996), p. 541; Sir E. Lauterpacht, “Principles of Procedure in International Litigation”, RC, vol. 345 (2009), p. 507. 2  See Oellers-Frahm, “Article 41”, in Oxford Commentary, MN 14, p. 1032.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004297517_012

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Box # 11-1 The rationale for provisional measures The Advisory Committee of Jurists that prepared the draft-scheme on which the Statute of the PCIJ was based explained in the following manner the need for the provision that became Article 41 of this instrument: At the very outset of the case, circumstances may exist requiring that provisional measures be taken to ensure that the rights of each party are not prejudiced. This is the case in the event of a dispute arising out of an act just performed, for instance, the seizure of an object or the invasion of a territory. If such an act has just been, or is on the point of being, put into execution, it may be highly desirable to undo the consequences for the time being, or to prevent it from taking place if there is still time.3 Article 39 of the draft-Scheme contemplated the power of the Court to “suggest” provisional measures “[i]f the dispute arises out of an act which has already taken place or which is imminent,” a formula borrowed from the 1914 Bryan treaties.4 In the definite version of Article 41 this characterization of the dispute was dropped. The PCIJ remarked that Article 41 is based on a principle of international judicial law formulated as follows: [in reference to Article 41 of the Statute] [t]he above quoted provision of the Statute applies the principle universally accepted by international tribunals and likewise laid down in many conventions . . . to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute. (Electricity Company, Order of 5 Dec. 1939 PCIJ A/B 79, p. 199) The present Court has made reference to this “universally admitted principle” on several instances.5 It has also recalled another general rule of international

3  PCIJ, Procès-verbaux, p. 735. 4  Brown Scott’s Project, pp. 117–118. 5  Right of Passage, Preliminary Objections, Judgment of 26 Nov. 1957, ICJ Rep. 1957, p. 152, LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, p. 503, para. 103.

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adjudication, closely connected to it and already offered by the PCIJ, according to which no action taken by any party to a case after the litigation has started may have effects on its legal position vis-à-vis the other party: [n]o action taken pendente lite by a State engaged in a dispute before the Court with another State “can have any effect whatever as regards the legal situation which the Court is called upon to define” (Legal Status of the South-Eastern Territory of Greenland, PCIJ, Series A/B, No. 48, p. 287), and such action cannot improve its legal position vis-à-vis that other State; (Great Belt, Provisional Measures, Order of 29 July 1991, ICJ Rep. 1991, p. 19, para. 32) Also on a general plane, the Court has referred to its power under Article 41 as “exceptional” (Aegean Sea Continental Shelf, Interim Protection, Order of 11 Sept. 1976, ICJ Rep. 1976, p. 11, para. 32)6 and has underlined the essentially preventive—rather than corrective—nature of provisional measures, by remarking that “[t]he Court, in deciding whether to indicate provisional measures is concerned, not so much with the past as with the present and with the future” (Genocide Convention (Bosnia), Provisional Measures I, Order of 8 April 1993, ICJ Rep. 1993, p. 16, para. 25, p. 22, para. 45).

The Court has a wide measure of discretion as to the exercise of its power under Article 41 of the Statute. In considering a request for provisional relief, the Court takes into account the following factors: (one) The question of its prospective jurisdiction, i.e., the likelihood that it will be able to entertain the case on the merits; (two) Whether the request has a proper object, and in particular whether there is a sufficient nexus between the measures requested and the subject-matter of the dispute; and (three) Whether the conditions for the issuance of provisional measures—developed through its practice and jurisprudence—are met. In addition, the Court has rarely found a need to assert in explicit terms that it has jurisdiction to indicate provisional measures. This was done in the Burkina Faso/Mali case, the only case thus far submitted by special agreement in which incidental proceedings on provisional measures have been

6  Along the same lines, a member of the Court referred to this power as an “extraordinary power of dispensation” (Aegean Sea Continental Shelf, Interim Protection, Separate Opinion of Vice-president Nagendra Singh, ICJ Rep. 1976, p. 17).

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instituted—by means of separate requests made by both parties—and also the first case before an ad hoc chamber in which Article 41 was invoked. This accumulation of circumstances is probably what explains the fact that in its order indicating provisional measures, the chamber went to great lengths to affirm that it possessed the jurisdiction necessary to deal with the requests: (. . .) independently of the requests submitted by the Parties for the indication of provisional measures, the Court or, accordingly, the chamber possesses by virtue of Article 41 of the Statute the power to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that circumstances so require; (. . .) in particular, when two States jointly decide to have recourse to a chamber of the Court, the principal judicial organ of the United Nations, with a view to the peaceful settlement of a dispute, in accordance with Article 2, paragraph 3, and Article 33 of the Charter of the United Nations, 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 indicate, if need be, such provisional measures as may conduce to the due administration of justice; (Burkina Faso/Mali, Provisional Measures, Order of 10 Jan. 1986, ICJ Rep. 1986, paras. 10, 18–19, pp. 8, 9)

Box # 11-2 Provisional measures: A review of the practice7 Before the PCIJ there were six requests for the indication of provisional measures. While in three of them the request was rejected (Factory at Chorzów, Order of 21 Nov. 1927, PCIJ A 12, p. 11; South-Eastern Greenland, Order of 3 August 1932, PCIJ A/B 48, p. 289; and Polish Agrarian Reform, Order of 29 July 1933, PCIJ A/B 58, p. 179), it was granted in two cases (Sino-Belgian Treaty, Order of 8 Jan. 1927, PCIJ A 8, p. 7 and Electricity Company, Order of 5 Dec. 1939, PCIJ A/B 79,

7  A good summary of the Court’s practice on this matter (up to 1993) can be found in a table created by judge Oda and appended to his 1993 lectures at The Hague Academy of International Law (S. Oda, “The International Court of Justice viewed from the Bench (1976–1993)”, RC, vol. 244 (1993–VII), Table 6, pp. 165–167).

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p. 199). In one case, the request was later declared to have “ceased to have any object” (Prince von Pless, Order of 11 May 1933, PCIJ Series A/B 54, p. 154).8 Before the present Court requests for the indication of provisional measures have been submitted in some 38 cases. They can be grouped as follows:

i)   Cases in Which the Request was Denied

· · · · · · · · · · · · · ·

Interhandel (Order of 24 Oct. 1957, ICJ Rep. 1957, p. 105) Aegean Sea Continental Shelf (Order of 11 Sept. 1976, ICJ Rep. 1976, p. 3) Arbitral Award, (Guinea-Bissau v. Senegal) (Order of 2 March 1990, ICJ Rep. 1990, p. 64) Passage through the Great Belt (Order of 29 July 1991, ICJ Rep. 1991, p. 12) Lockerbie (two paired cases) (Orders of 14 April 1992, ICJ Rep. 1992, pp. 3 and 114) Kosovo (Yugoslavia v. United States) (Order of 2 June 1999, ICJ Rep. 1999, p. 916) Kosovo (Yugoslavia v. Spain) (Order of 2 June 1999, ICJ Rep. 1999, p. 761) Kosovo (Yugoslavia v. Belgium); (Yugoslavia v. Canada); (Yugoslavia v. France); (Yugoslavia v. Germany); (Yugoslavia v. Italy); (Yugoslavia v. Netherlands); (Yugoslavia v. Portugal); (Yugoslavia v. United Kingdom) (Orders of 2 June 1999, ICJ Rep. 1999, pp. 124, 259, 363, 422, 481, 542, 656 and 826, respectively) Arrest Warrant (Order of 8 Dec. 2000, ICJ Rep. 2000, p. 182) Armed Activities II (DRC v. Rwanda) (Order of 10 July 2002, ICJ Rep. 2002, p. 219) Criminal Proceedings (Order of 17 June 2003, ICJ Rep. 2003, p. 102) Pulp Mills (twice) (Order of 13 July 2006, ICJ Rep. 2006, p. 113 and Order of 23 Jan. 2007, ICJ Rep. 2007, p. 3) Obligation to Prosecute or Extradite (Order of 28 May 2009, ICJ Rep. 2009, p. 139) Construction of a Road (Nicaragua v. Costa Rica); Activities in the Border Area (Costa Rica v. Nicaragua), Request by Nicaragua, Order of 13 Dec. 2013

8  See Hudson’s PCIJ, pp. 428–430; J.H.W. Verzijl, “Interim Measures of Protection during Proceedings before the Permanent Court of International Justice”, in Verzijl’s Jurisprudence, vol. I, pp. 295–299; E. Dumbauld, “Relief Pendente Lite in the Permanent Court of International Justice”, AJIL, vol. 39 (1945), pp. 391–401.

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ii) Cases in Which the Request was Granted

· · · · · · · · · · · · · · · · ·

9  10 

11 

Anglo-Iranian Oil Co. (Order of 5 July 1951, ICJ Rep. 1951, p. 89) Fisheries Jurisdiction (two cases) (Orders of 17 August 1972, ICJ Rep. 1972, pp. 12, 30)9 Nuclear Tests (two paired cases) (Orders of 22 June 1973, ICJ Rep. 1973, pp. 99, 135) U.S. Hostages (Order of 15 Dec. 1979, ICJ Rep. 1979, p. 7) Burkina Faso/Mali (Order of 10 Jan. 1986, ICJ Rep. 1986, p. 3) Nicaragua (Order of 10 May 1984, ICJ Rep. 1984, p. 169)10 Genocide Convention (Bosnia) (twice) (Order of 3 April 1993, ICJ Rep. 1993, p. 3 and Order of 13 Sept. 1993, ibid., p. 325) Cameroon v. Nigeria (Order of 15 March 1996, ICJ Rep. 1996, p. 13) Vienna Convention (Order of 9 April 1998, ICJ Rep. 1998, p. 248) LaGrand (Order of 3 March 1999, ICJ Rep. 1999, p. 9) Armed Activities (DRC v. Uganda) (Order of 1 July 2000, ICJ Rep. 2000, p. 111) Avena (Order of 5 Feb. 2003, ICJ Rep. 2003, p. 77) Request for Interpretation-Avena (Order of 16 July 2008) CERD (Order of 15 Oct. 2008, ICJ Rep. 2008, p. 353) Activities in the Border Area (Costa Rica v. Nicaragua) (Order of 8 March 2011, ICJ Rep. 2011, p. 6)11 Request for Interpretation-Temple of Preah Vihear (Order of 18 April 2011, ICJ Rep. 2011, p. 537) Activities in the Border Area (Costa Rica v. Nicaragua); Construction of a Road (Nicaragua v. Costa Rica), Request by Costa Rica, Order of 22 Nov. 2013

Measures extended by orders of 12 July 1973 (Fisheries Jurisdiction, ICJ Rep. 1973, pp. 302 and 313). In this case the applicant submitted a fresh request for provisional measures when the case was at the jurisdiction and admissibility phase. After the decision affirming jurisdiction was read, the question was not pressed further (Nicaragua, Merits, ICJ Rep. 1986, p. 144, para. 287). Nicaragua’s application included far-fetched requests to the effect that the Court would effectively deprive the United States from using the Court’s facilities and services. They were considered by the Court to be “unprecedented,” “fundamentally unacceptable” and “impermissible” (ICJ Pleadings, Nicaragua, vol. 5, pp. 382–383 (Doc. 55)). Measures reaffirmed by an order made on 16 July 2013.

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iii) Cases in Which the Court Did Not Need to Rule on the Request

· · a)

Pakistani POW (request lapsed) (Order of 13 July 1973, ICJ Rep. 1973, p. 328) Armed Actions (Nicaragua v. Honduras) (request withdrawn) (Order of 31 March 1988, ICJ Rep. 1988, p. 9

Prospects of Jurisdiction on the Merits12

An important consideration with regard to incidental proceedings on provisional measures is that the indication of such measures has no influence on the separate question of whether or not the Court has jurisdiction to entertain the dispute submitted to it. The power or jurisdiction of the Court to entertain a request for provisional measures and to indicate them exists solely by virtue of Article 41 of the Statute.13 It is also clearly distinct from the Court’s jurisdiction on the merits, which is governed by Articles 36 and 37—two provisions that, according to the Court “[a]re entirely different from the special provisions of Article 41.”14 Therefore, there is no formal or substantive link between the (statutory) power of the Court to indicate provisional measures and its (consensual) jurisdiction to settle the dispute with regard to which the request is made and only the latter must be founded on a valid title of jurisdiction.15 As a reflection of this, in every order of the Court indicating 12 

13 

14  15 

M.H. Mendelson, “Interim Measures of Protection in Cases of Contested Jurisdiction”, BYIL, vol. 46 (1972–1973), pp. 259–322; J.G. Merrills, “Interim Measures of Protection and the Substantive Jurisdiction of the International Court”, Cambridge Law Journal, vol. 36 (1977), pp. 86–109; C. Dominice, « La compétence prima facie de la Cour internationale de Justice aux fins d’indication de mesures conservatoires », in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge Shigeru Oda (2002), vol. 1, pp. 383–395 ; K. Obata, “The relevance of Jurisdiction to Deal with the Merits to the Power to Indicate Interim Measures: A Critique of the Recent Practice of the International Court of Justice”, ibid., pp. 451–462; S. Rosenne, “Provisional Measures and Prima Facie Jurisdiction Revisited”, ibid., pp. 515–544. There is a discernible trend, both in the Court’s case law and in legal literature, to use the term “power” rather than “jurisdiction” to refer to the attributions of the Court under Article 41 of the Statute. Anglo-Iranian Oil Co., Preliminary Objections, Judgment of 22 July 1952, ICJ Rep. 1952, p. 103. For a good explanation on the statutory character of the Court’s power to indicate provisional measures, as part and parcel of its jurisdiction on incidental matters, see the

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provisional measures, a saving clause is included to the effect that its decision on the matter does not prejudge in any sense the questions of the jurisdiction of the Court or the admissibility of the application, and leaves unaffected the right of the parties to submit arguments on those questions.16 However, requests for provisional measures have often been made in cases in which the State named as respondent was either vigorously challenging the existence of jurisdiction on the merits or failing to appear before the Court altogether. In point of fact, in a number of cases in which the respondent did appear and took active part in the incidental proceedings on provisional measures it availed itself of this opportunity to plead before the Court in order to advance arguments against the jurisdiction of the Court on the merits or the admissibility of the application. In the Aegean Sea Continental Shelf case, for example, the Court registered that “[t]here is no provision in the Rules (. . .) which excludes the raising of questions of jurisdiction in written observations submitted in proceedings on the indication of provisional measures” and that one of the very purposes of communications submitted to the Court directly or through diplomatic channels in The Hague “has commonly been to raise questions as to the competence of the Court with respect to the particular case.”17 Hence, the existence (or lack) of jurisdiction in the main case became a relevant factor in the exercise of the Court’s powers under Article 41. By the same token, however, in cases in which the existence of jurisdiction is not at question there would be no need for the Court to enter into this matter at the provisional measures phase. Apart from a regular case submitted by special agreement (like the Burkina Faso/Mali case), this would happen in a case in which a request for provisional measures is made after the Court has made a definite decision on jurisdiction. There are no examples of this yet in practice. In this regard the Court has found that the indication of provisional measures is warranted only in cases in which it can reach a provisional affirmation of jurisdiction over the dispute, because there are actual prospects for the exercise of its jurisdiction on the merits. In other words, the Court has adopted separate opinion of judge Jiménez de Aréchaga in the Aegean Sea Continental Shelf case (Interim Protection, ICJ Rep. 1976, p. 15). 16  In the initial cases before the present Court, this formula applied only to the jurisdiction of the Court stricto sensu. Since the Nuclear Tests cases, admissibility has been expressly mentioned along with the question of jurisdiction. 17  Aegean Sea Continental Shelf, Jurisdiction, Judgment of 19 Dec. 1978, ICJ Rep. 1978, p. 19, para. 44.

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the view that at the stage of provisional measures it does not need to reach a definite and conclusive decision on any questions of jurisdiction that may have arisen or may yet arise, since this is a decision that will be made only after those questions have been the object of full argument, ordinarily in the course of incidental proceedings organized under Article 79 of the Rules.18 Therefore, provisional measures would not be indicated if the Court is not satisfied, provisionally, i.e., “prima facie,” that it might have jurisdiction eventually. This represents a compromise between two extremes, namely the position that at this stage the Court should reach an “absolute ascertainment of its jurisdiction” and the position that Article 41 is in itself sufficient for the indication of provisional measures.19 There are cogent reasons for this, for, as judge Jiménez de Aréchaga noted in a separate opinion appended to the order on provisional measures in the Aegean Sea case: [I]n cases in which there is no reasonable possibility, prima facie ascertained by the Court, of jurisdiction on the merits, it would be devoid of sense to indicate provisional measures to ensure the execution of a judgment the Court will never render. (Aegean Sea Continental Shelf, Interim Protection Separate Opinion of Judge Jiménez de Aréchaga ICJ Rep. 1976, p. 15)

Additionally, as judge Nagendra Singh remarked in even stronger terms in a declaration appended to the Court’s order on the same subject in the Nuclear Tests cases: It is indeed a sine qua non of the exercise of judicial function that a court can be moved only if it has competence. If therefore in the exercise of its inherent powers (as enshrined in Art. 41 of its Statute) the Court grants interim relief, its sole justification to do so is that if it did not, the rights of the parties would get so prejudiced that the judgment of the Court when it came could be rendered meaningless. Thus the possibility of the Court 18  In the Genocide Convention (Bosnia) case the Court clarified that for this very reason a decision concerning jurisdiction embodied in an order on provisional measures cannot have the force of res judicata (Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 86, para. 105). 19  For a description of the different alternatives see T.O. Elias, “Methodological Problems Faced by the International Court of Justice in the Application of International Law”, in B. Cheng, International Law: Teaching and Practice (1982), pp. 140–141.

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being ultimately able to give a judgment on merits should always be present when interim measures are contemplated.

(Nuclear Tests, Interim Protection, Declaration of Judge Nagendra Singh, ICJ Rep. 1973, pp. 109 and 145)20

This is what has come to be called the “test of prima facie jurisdiction” which, with only a few exceptions, has featured in every order indicating provisional measures adopted since 1972, when it first made its appearance in the Court’s jurisprudence, in the Fisheries Jurisdiction cases.21 According to the now firmly established formulation of this test adopted by the Court, [T]he Court may indicate provisional measures only if the provisions relied on by the Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but the Court need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case. (Activities in the Border Area (Costa Rica v. Nicaragua); Construction of a Road (Nicaragua v. Costa Rica), Provisional Measures, Request by Costa Rica, Order of 22 Nov. 2013, para. 21)

In practice, the circumstance that the existence of jurisdiction is put into question by one of the States parties to the case is no bar for the indication of provisional measures, provided that the Court can make a finding that such jurisdiction exists, albeit only prima facie. The Cameroon v. Nigeria case is illustrative in regard to this aspect, because the request for the indication of provisional measures was submitted to the Court after preliminary objections had been filed by the respondent and the proceedings on the merits had been suspended. In the course of the oral proceedings on the request for provisional measures, Nigeria contended that the Court did not have jurisdiction even prima facie. The Court registered this and, as a prelude to a finding that the declarations under the Optional Clause made by both parties did indeed furnished it with prima facie jurisdiction in the case, it added that in its view the preliminary objections raised by that State were not such as to exclude that jurisdiction.22

20  Lauterpacht, “Principles . . .”, p. 508. 21  Fisheries Jurisdiction (United Kingdom v. Iceland), Interim Protection, Order of 17 August 1972, ICJ Rep. 1972, p. 15, para. 15; Fisheries Jurisdiction (Germany v. Iceland), Interim Protection, Order of 17 August 1972, ICJ Rep. 1972, p. 33, para. 16. 22  Cameroon v. Nigeria, Provisional Measures, Order of 15 March 1996, ICJ Rep. 1996, p. 21, para. 31.

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Box # 11-3 Evolution of the test of prima facie jurisdiction The intellectual construction upon which the test of prima facie jurisdiction is premised must be largely credited to Sir Hersch Lauterpacht, who outlined as follows the essence of the concept, several years before the Court adopted it: In deciding whether it is competent to assume jurisdiction with regard to a request made under Article 41 of the Statute the Court need not satisfy itself—either proprio motu or in response to a Preliminary Objection— that it is competent with regard to the merits of the dispute. The Court has stated on a number of occasions that an Order indicating, or refusing to indicate, interim measures of protection is independent of the affirmation of its jurisdiction on the merits and that it does not prejudge the question of the Court’s jurisdiction on the merits (. . .). Any contrary rule would not be in accordance with the nature of the request for measures of interim protection and the factor of urgency inherent in the procedure under Article 41 of the Statute. However, it is one thing to say that action of the Court under Article 41 of the Statute does not in any way prejudge the question of its competence on the merits and that the Court need not at that stage satisfy itself that it has jurisdiction on the merits or even that its jurisdiction is probable; it is another thing to affirm that the Court can act under Article 41 without any regard to the prospects of its jurisdiction on the merits and that the latter question does not arise at all in connection with a request for interim measures of protection. Governments which are Parties to the Statute or which have undertaken in some form or other commitments relating to the obligatory jurisdiction of the Court have the right to expect that the Court will not act under Article 41 in cases in which absence of jurisdiction on the merits is manifest. Governments ought not to be discouraged from undertaking, or continuing to undertake, the obligations of judicial settlement as the result of any justifiable apprehension that by accepting them they may become exposed to the embarrassment, vexation and loss, possibly following upon interim measures, in cases in which there is no reasonable possibility, prima facie ascertained by the Court, of jurisdiction on the merits. Accordingly, the Court cannot, in relation to a request for indication of interim measures, disregard altogether the question of its competence on the merits. The correct principle which emerges from these apparently conflicting considerations and which has been uniformly adopted in international arbitral and judicial practice is as follows: The Court may

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properly act under the terms of Article 41provided that there is in existence an instrument such as a Declaration of Acceptance of the Optional Clause, emanating from the Parties to the dispute, which prima facie confers jurisdiction upon the Court and which incorporates no reservations obviously excluding its jurisdiction. (Interhandel, Interim Protection, Separate Opinion of Judge Lauterpacht, ICJ Rep. 1957, pp. 118–119) In her separate opinion in the Kosovo cases, Judge Higgins included the following survey of the evolution that the Court’s case law has undergone with regard to the test in the context of provisional measures proceedings: 12. It is . . . through its case law that the Court has had to address the jurisdictional problems that arise when a request for the indication of provisional measures is made before the Court has definitively established its jurisdiction in a case. 13. In the Anglo-Iranian Oil Co. case, the Court stated that, because “it cannot be accepted a priori” that the claim “falls completely outside the scope of international jurisdiction” the Court could entertain the request for interim measures of protection (. . .). At the same time, the Court noted that the indication of such measures “in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case and leaves unaffected the right of the Respondent to submit arguments against such jurisdiction” (. . .). 14. This latter statement of the consequences for subsequent phases of an Order for interim measures has remained essentially unchanged over the years. However, the jurisdictional prerequisites for the issuance of interim measures of protection have undergone important developments in the jurisprudence. Indeed, the debate had already been heavily engaged within the Anglo-lranian Oil Co. case itself. In their dissenting opinions, Judges Winiarski and Badawi Pasha viewed the Court as finding that it was competent to indicate interim measures of protection “if prima facie the total lack of jurisdiction of the Court is not patent, that is . . . there is a possibility, however remote, that the Court may be competent” (. . .). But observing that interim measures of protection were in international law even more exceptional than in municipal law, as they were “a scarcely tolerable interference in the affairs of a sovereign State”, they ought not to be indicated unless the Court’s jurisdiction was “reasonably probable”.

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15. In Fisheries Jurisdiction (United Kingdom v. Iceland, the Court refined the formula, stating that when considering a request for the indication of provisional measures, it had no need “finally to 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” (. . .). 16. In the Nuclear Tests case (1973), France insisted that the Court was “manifestly not competent in the case”. The Court, departing in part from the formula it had used the year before in the Fisheries Jurisdiction case, stated that it “need not . . . finally satisfy itself that it has jurisdiction on the merits of the case”, but that it ought not to indicate provisional measures “unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded” (. . .). In none of the next three provisional measures cases (Trial of Pakistani Prisoners of War (. . .); Aegean Sea Continental Shelf (. . .); United States Diplomatic and Consular Staff in Tehran (. . .)) was the question of jurisdiction the main basis for the order. 17. In Military and Paramilitary Activities in and against Nicaragua, Provisional Measures (. . .) the Court came back to the issue, repeating the exact formula of the Nuclear Tests case. That formula is now firmly established (Arbitral Award of 31 July 1989 (. . .); Passage through the Great Belt (Finland v. Denmark) (. . .); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (. . .); Land and Maritime Boundary between Cameroon and Nigeria (. . .); Vienna Convention on Consular Relations (Paraguay v. United States of America) (. . .); and LaGrand (. . .). (Kosovo (Yugoslavia v. Belgium), Provisional Measures, Separate Opinion of Judge Higgins, ICJ Rep. 1999, pp. 164–166)

The only case omitted from this survey was Interhandel, in which the Court found that there was no need to indicate provisional measures. With regard to jurisdiction, the Court recalled in its order on provisional measures that both parties had made declarations under article 36, para. 2 of the Statute and that by its subject-matter the dispute fell “[w]ithin the purview of that paragraph” (Interhandel, Interim Protection, Order of 24 Oct. 1957, ICJ Reports 1957, p. 110). This survey shows that between Fisheries Jurisdiction and Nuclear Tests the Court underwent a radical change of approach with regard to the question of a provisional affirmation of jurisdiction, moving from an essentially negative formulation (“it ought not to act under Article 41 of the Statute if the absence of jurisdiction on the merits is manifest”) to a positive formulation (“it ought not

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to indicate provisional measures unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded”). This latter formula prevailed and has been consistently used by the Court for the last three decades, with only slight alterations that are probably due to the fact that the authoritative text of the order is not always the English version. For instance, in the order of the Court concerning a request for provisional measures made by the respondent in the Pulp Mills case the Court dropped the reference to “[t]he provisions invoked by the applicant” and stated in more general terms that it ought not to indicate the measures “[u]nless there is, prima facie, a basis on which the jurisdiction of the Court might be established.” It also specified the rather obvious point that the test of prima facie jurisdiction applies “[w]hether the request for the indication of provisional measures is made by the applicant or by the respondent in the proceedings on the merits” (Pulp Mills, Provisional Measures II, Order of 23 Jan. 2007, ICJ Rep. 2007, p. 10, para. 24). In the next order on provisional measures that it adopted, the Court quickly reverted to the classical formula (CERD, Provisional Measures, Order of 15 Oct. 2008, ICJ Rep. 2008, p. 377, para. 85).

Since Fisheries Jurisdiction the only cases in which the Court has indicated provisional measures without resorting to the test of prima facie jurisdiction are Burkina Faso/Mali—a special agreement case in which the existence of jurisdiction was not at issue—and two cases concerning the interpretation of judgments, namely, Request for Interpretation-Avena and Request for Interpretation-Temple of Preah Vihear, in both of which the jurisdictional basis for the Court’s entertainment of the request for interpretation of one of its judgments was exclusively Article 60 of the Statute. The relevant factor for the Court having admitted and processed the request for provisional measures in these latter cases was the determination that the request for interpretation was admissible under that provision.23 23 

Request for Interpretation-Avena, Provisional Measures, Order of 16 July 2008, ICJ Rep. 2008, p. 323, para. 45. In the subsequent decision on the merits of the request for interpretation the Court noted that “[i]ts Order of 16 July 2008 on provisional measures was not made on the basis of prima facie jurisdiction ( Judgment of 19 Jan. 2009, ICJ Rep. 2009, p. 9, para. 15). An analogous situation may be present in the Request for InterpretationTemple of Preah Vihear case (Provisional Measures, Order of 18 July 2011, ICJ Rep. 2011, p. 544, para. 32).

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The Court has noted that the test of prima facie jurisdiction is equally applicable to its jurisdiction ratione materiae and ratione personae, even if the latter question will rarely arise in today’s world, in which virtually every State in existence is a member of the United Nations and therefore has unfettered access to the Court.24 What the Court has not said in so many words is that the test also applies to questions of admissibility, but it is only natural that it would; the fact that the “without-prejudice” clause inserted at the closing section of every order on provisional measures does mention jurisdiction and admissibility reinforces this assumption. However, the Court has given indications that this question is not definitively settled. In the Cameroon v. Nigeria case it found that it did not need to rule “[o]n the question whether, faced with a request for the indication of provisional measures, the Court must, before deciding whether or not to indicate such measures, ensure that the Application of which it is seised is admissible prima facie.”25 An aspect that has been highlighted is that, as part and parcel of the test of prima facie jurisdiction the Court might be called to take a position as to the existence of a dispute at a very early stage in the litigation. In the Obligation to Prosecute or Extradite case, in which this was one of the questions disputed by the respondent, the Court came to the conclusion that “it appears prima facie that a dispute (. . .) existed between the Parties on the date the Application was filed”.26 Further, in a subsequent passage of the same decision, the Court found that “[i]t appears that prima facie a dispute (. . .) continues to exist between the Parties, even if the scope of that dispute may have changed since the Application was filed.”27 It is important to stress that, strictly speaking, the test of prima facie jurisdiction is not one of the factual “circumstances” mentioned in Article 41 that must be considered by the Court in order to decide whether or not it exercises

24  Genocide Convention (Bosnia), Provisional Measures I, Order of 8 April 1993, ICJ Rep. 1993, p. 12, para. 14. 25  Cameroon v. Nigeria, Provisional Measures, Order of 15 March 1996, ICJ Rep. 1996, p. 21, para. 33. See the declaration by judge Ranjeva in the same case (ibid., p. 29) and comments in Thirlway’s Law and Procedure, Part 12, BYIL, vol. 72 (2001), p. 86; S. Rosenne, “Provisional Measures and Prima Facie Jurisdiction Revisited”, in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge Shigeru Oda (2002), vol. 1, p. 521. 26  Obligation to Prosecute or Extradite, Provisional Measures, Order of 28 May 2009, ICJ Rep. 2009, pp. 148–148, paras. 46–47. 27  Ibid., p. 149, para. 48.

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its power under that provision. Rather, it is what judge Higgins has called one of the “[j]urisdictional prerequisites for the issuance of interim measures of protection.”28 The Court will examine the request for the indication of provisional measures and enquire into the existence of those circumstances only if and when it is satisfied that the application conforms to the said test.29 This was confirmed in a decision in which the Court remarked the following with regard to one of these circumstances (the nature and extent of the rights for which protection was being sought): [i]n establishing the Court’s prima facie jurisdiction to deal with the merits of the case, the question of the nature and extent of the rights for which protection is being sought in the request for the indication of provisional measures has no bearing (. . .) that latter question will only be addressed once the Court’s prima facie jurisdiction over the merits of the case has been established. (Pulp Mills, Provisional Measures II, Order of 23 Jan. 2007, ICJ Reports 2007, p. 10, para. 25)

Box # 11-4 The test of prima facie jurisdiction in practice30 In the large majority of cases in which requests under Article 41 have been made the Court has found that it does have prima facie jurisdiction over the merits of the dispute and has, on the basis of this finding, indicated provisional measures. Likewise, in the majority of the cases in which it has reached that conclusion, the Court has later on confirmed that it has definite jurisdiction to deal with the merits of the case. The opposite situation, that of the Court indicating provisional measures on the basis of a prima facie assertion of jurisdiction only to come to a subsequent finding that it lacked jurisdiction, has only occurred twice in the history of the Court (Anglo-Iranian Oil Co., Interim Protection, Order of 5 July 1951, ICJ Rep. 1951, p. 89;

28 

29  30 

Kosovo (Serbia and Montenegro v. Belgium), Provisional Measures, Separate Opinion of judge Higgins, ICJ Rep. 1999, pp. 165, para. 14. This proposition had been advanced by judge Mosler in his separate opinion in the Aegean Sea Continental Shelf case (Interim Protection, ICJ Rep. 1976, p. 25). For the opposite view see the separate opinion of judge Jiménez de Aréchaga in the same case (ibid., p.16). Obligation to Prosecute or Extradite, Provisional Measures, Order of 28 May 2009, ICJ Rep. 2009, p. 151, para. 55. For a characteristically thorough survey of the practice see Rosenne, “Provisional Measures . . . Revisited”, pp. 519–540.

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Preliminary Objection, Judgment of 22 July 1952, ICJ Rep. 1952, p. 93 and CERD, Provisional Measures, Order of 15 Oct. 2008, ICJ Rep. 2008, p. 353; Preliminary Objections, Judgment of 1 April 2011, ICJ Rep. 2011, p. 70).31 A finding that from the outset the Court lacked jurisdiction prima facie has been reached in only a handful of cases (Kosovo, Provisional Measures, Orders of 2 June 1999, ICJ Reports 1999, pp. 124, 259, 363, 422, 481, 542, 565 and 826 and Armed Activities (DRC v. Rwanda), Provisional Measures, Order of 10 July 2002, ICJ Reports 2002, p. 219). Other cases of interest in this regard are: – The Nuclear Tests cases, in which the Court indicated provisional measures on the basis of the prima facie test (Interim Protection, Orders of 22 June 1973, ICJ Reports 1973, pp. 99 and 135) but never came to take an actual decision on the matter of jurisdiction. In its decisions declaring the applications moot the Court duly noted that on that date the orders ceased to be operative and that the provisional measures lapsed ( Judgments of 20 Dec. 1974, ICJ Rep. 1974, p. 272, para. 61 and p. 478, para. 64). – The Aegean Sea Continental Shelf case, in which the Court rejected the request acting as if it possessed prima facie jurisdiction (without stating it in so many words in the order on provisional measures) but eventually concluded that it lacked the required jurisdiction (Interim Protection, Order of 11 Sept. 1976, ICJ Reports 1976, p. 3; Jurisdiction of the Court, Judgment of 19 Dec. 1978, ICJ Rep. 1978, p. 3). – Other instances in which the Court declined to indicate provisional measures and found no need to make reference to the prima facie test in the pertinent orders are the two Lockerbie litigations (Provisional Measures, Orders of 14 April 1992, ICJ Reports 1992, p. 15, para. 42 and p. 127, para. 45). – By contrast, in both, the Arbitral Award (Guinea-Bissau v. Senegal) and the Passage through the Great Belt cases, the Court dismissed the request for provisional measures but after having established that it had prima facie jurisdiction (See, respectively, Provisional Measures, Order of 2 March 1990, ICJ Reports 1990, p. 69, para. 22; and Provisional Measures, Order of 29 July 1991, ICJ Reports 1991, p. 15, para. 14). In none of them, on the other hand, a challenge to the Court’s jurisdiction was mounted.32 31 

32 

The Request for Interpretation-Avena case must be added to this list, given that, after indicating certain provisional measures, the Court declined to entertain the request for interpretation of the decision (  Judgment of 19 Jan. 2009, ICJ Rep. 2009, p. 3). At the hearings on provisional measures in the first of these two cases, the respondent, Senegal, entered some reservations with regard to “the substance of the application.” It

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It is also noteworthy that the conception underlying the test of prima facie jurisdiction has influenced the doctrine and the practice of other international tribunals, notably the Law of the Sea Tribunal and arbitral tribunals set up under the ICSID Convention.33

It is apparent that the raison d’ être of the provisional affirmation of jurisdiction implied in the test of prima facie jurisdiction lies in the element of urgency, which, as will be seen, is a distinctive feature of incidental proceedings on provisional measures. Indeed, in cases in which the Court must provide a swift answer to a request for provisional measures and the respondent has indicated that in its view jurisdiction is absent and/or the application is inadmissible, the Court has very little time to give full consideration to all aspects involved and is forced to act summaria cognitio.34 In these circumstances, it is unavoidable that, at a tactical level at least, a finding on the existence of prima facie jurisdiction at this stage of the proceedings would tend to strengthen the position of the applicant. As judge Schwebel aptly put it: It is beyond dispute that the Court may not indicate provisional measures under its Statute where it has no jurisdiction over the merits of the case. Equally, however, considerations of urgency do not or may not permit the Court to establish its jurisdiction definitively before it issues an order of interim protection. Thus the Court has built a body of precedent which affords it the authority to indicate provisional measures if the jurisdiction which has been pleaded appears, prima facie, to afford a basis on which the Court’s jurisdiction might be founded. Whether “might” means “possibly might” or “might well” or “might probably” is a question of some controversy. The nub of the matter appears to be that, while in deciding whether it has jurisdiction on the merits, the Court gives the defendant the benefit of the doubt, in deciding whether it has jurisdiction to

33  34 

refrained, however, from disputing the jurisdiction of the Court with regard to the merits (Arbitral Award (Guinea-Bissau v. Senegal), Provisional Measures, Order of 2 March 1990, ICJ Reports 1990, p. 69, para. 21). At the merits phase this State did not contest the jurisdiction of the Court ( Judgment of 12 Nov. 1991, ICJ Reports 1991, p. 62, para. 24). Ch. Brown, A Common Law of International Adjudication (2009), pp. 137–138. The expression was used by judge Anzilotti in a famous dissent in the Polish Agrarian Reform case (PCIJ A/B 58, p. 181).

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indicate provisional measures, the Court gives the applicant the benefit of the doubt. (Nicaragua, Provisional Measures, Dissenting Opinion of Judge Schwebel, ICJ Rep. 1984, pp. 206–207)

The test of prima facie jurisdiction is also, by its own nature, temporal and, as such, inherently precarious: regardless of the findings that the Court may reach on the existence of prima facie jurisdiction for the purposes of provisional measures, there is a good probability that it will return to the questions of jurisdiction (and/or admissibility) during the next phase of the proceedings. The only exception to this occurs when there is a situation of “manifest lack of jurisdiction” that would compel the Court to order the removal of the case from the General List in limine, terminating the proceedings then and there.35 In the first instance in which this happened the Court explained as follows the rationale for this: [w]ithin a system of consensual jurisdiction, to maintain on the General List a case upon which it appears certain that the Court will not be able to adjudicate on the merits would most assuredly not contribute to the sound administration of justice. (Kosovo (Serbia and Montenegro v. Spain) (Serbia and Montenegro v. USA) Provisional Measures, Orders of 2 June 1999, ICJ Rep. 1999, p. 773, para. 35, p. 925, para. 29)

In these two cases the lack of jurisdiction, even prima facie, was manifest from the very moment the proceedings were introduced. This, in its turn, could have warranted a decision that the cases were not given a name or entered in the General List, under the provisions of Article 38, para. 5 of the Rules. The decisive factor for not following that course of action appears to have been that in both cases the application was accompanied by a request for provisional measures, and thus the Court decided to consider the question of jurisdiction in light of the prima facie test. These cases were discussed above, in the context of the doctrine of forum prorogatum and its relation to the indication of provisional measures.36 Along the same lines, judge Higgins described in a very felicitous manner the different options at the Court’s disposal on the matter of jurisdiction at the provisional measures stage: 35  Mani’s Adjudication, p. 299. For the concept of “manifest lack of jurisdiction” see Chapter 12, c). 36  See Box # 2-16. On the summary dismissal of cases see in general Chapter 9, a).

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The restraint upon the liberty of action of a State that necessarily follows from the indication of provisional measures will not be countenanced unless, prima facie, there is jurisdiction. But an absence of prima facie jurisdiction at this stage and for this purpose does not necessarily mean that jurisdiction may not, in the event, later be established. However, if in considering whether there is jurisdiction prima facie for purposes of Article 41 of the Statute, it is clear beyond doubt that no jurisdiction exists in a particular case, good administration of justice requires that the case be immediately struck off the List in limine. (Kosovo (Serbia and Montenegro v. Spain), Provisional Measures, Separate Opinion of Judge Higgins, ICJ Rep. 1999, p. 806)

Box # 11-5 A negative test of prima facie jurisdiction? In the Obligation to Prosecute or Extradite case, judge ad hoc Sur appended a separate opinion in which a judicious reflection on the question of the prima facie test of jurisdiction and a proposal for a reversal of the Court’s doctrine on the matter were included. In his opinion judge Sur wonders whether it would not be more satisfactory for the Court and parties alike to replace the current practice, based on a positive demonstration of its prima facie jurisdiction and of prima facie admissibility, by a negative demonstration, whereby what has to be shown is that the Court is not manifestly lacking jurisdiction and that the request is not manifestly inadmissible. The following are the pertinent excerpts: 9. It would no doubt be pointless and even risky for the Court to indicate provisional measures when its jurisdiction is clearly lacking, because for example: there is no express basis for it, no unilateral declaration under Article 36, paragraph 2, recognizing the Court’s jurisdiction; or a reservation clearly excludes it; or there is no compromissory clause in a treaty; or a party has rejected such a clause. The Court’s lack of jurisdiction in these cases is manifest, as would be the inadmissibility of an Application founded on a treaty not in force, or brought against a State that is not party to the treaty in question and has not assumed the obligations under it. But the Court could satisfy itself in other situations with a finding that it does not manifestly lack jurisdiction, because there is an express basis of jurisdiction which it can rely on, and that the Application is not

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manifestly inadmissible, to conclude that under these circumstances it is empowered to exercise its independent power, either at the request of a party or on its own motion. In such cases it would focus its examination of the need for provisional measures on the actual substance of the request and on the factors which may make such measures essential, that is to say, urgency, the importance of the rights to be preserved, and the risk of irreparable injury if no such measures are ordered. 10. The Court would thus replace the affirmative showing required by its current practice—that it has prima facie jurisdiction and the Application is prima facie admissible—with a negative showing—that it is not manifestly without jurisdiction and the Application is not manifestly inadmissible. This simplification would not appear to present any drawbacks in cases where the Court holds that provisional measures are not necessary, where, in other words, it rejects a request for them. But what about cases where it decides to order such measures, with the risk that it might later conclude that it lacks jurisdiction or that the Application is inadmissible? The situation would be no different from that now prevailing, because a prima facie examination leading to provisional findings in the affirmative may very well fail to be confirmed subsequently. The resulting drawback would however be less important here, because the Court would have committed itself to a lesser degree and would not run the risk of being seen to have taken inconsistent positions. 11. True, a prima facie examination does not prejudge subsequent questions, as the Court regularly points out—for example, in paragraph 74 of the present Order. But, first, it is not easy—and that much harder for non-specialists—to distinguish between matters within the scope of prima facie examination and those within the scope of in-depth examination. A perception may arise that the line between them is vague, shifting, and dependent on the circumstances, and a two-fold risk thereby ensues: that in fact a presumption of jurisdiction or admissibility is created when these are found prima facie; and that there then arises a sense of inconsistency in the Court’s case law if the Court, having found jurisdiction and admissibility prima facie, then goes on ultimately to deny them. This would be liable to produce, mutatis mutandis, the situation, unfortunate in all regards, in which the Court found itself after the Judgment in the South West Africa case in 1966 (cases concerning South West Africa (. . .). 12. Were it to limit itself to a simple, summary analysis, rejecting the possibility of ordering provisional measures only if it deemed itself

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manifestly without jurisdiction or the Application manifestly inadmissible, the Court would also be able to devote more time and attention to all of the circumstances, legal and factual, which might make such measures essential, thereby fully meeting the requirements of Article 41; it would do so instead of conducting the initial examination of jurisdiction and admissibility, in respect of which the starting-point is clear but the end-point much less so. One might even venture to presuppose that an examination of manifest lack of jurisdiction and manifest inadmissibility would not necessarily differ much from current practice. Yet, by taking a negative instead of affirmative provisional position, the Court would ward off all criticism as to inconsistency in judgment, if not even reversal of position. It would moreover be acting more in keeping with Article 41 of the Statute, and the Rules of Court, which also say nothing about issues of jurisdiction and admissibility in connection with provisional measures (Arts. 73–78 of the Rules of Court). To reach this point, the Court’s jurisprudence would have to evolve—but there have already been significant developments in the law of provisional measures against the backdrop of the growing role played by international courts. (Obligation to Prosecute or Extradite, Provisional Measures, Separate Opinion of Judge Sur, ICJ Rep. 2009, pp. 205–206)

b)

The Proper Object of Provisional Measures37

According to one commentator who was involved in the creation of the PCIJ, what gave rise to the inclusion of a clause on provisional measures in the Statute was the possibility that “[t]he rights of the parties were likely to be affected unless action be taken in their behalf.”38 For that reason, it was necessary to invest the Court with the power to “[a]ssume control of the subjectmatter and to take or suggest measures necessary for its protection pending the trial and disposition of the case.”39 In keeping with this aim, Article 41 states that provisional measures have one defined object: that of preserving “the respective rights of either party” 37  38  39 

J.G. Merrills, “Interim Measures of Protection in the Recent Jurisprudence of the International Court of Justice”, ICLQ, vol. 44 (1995), pp. 100–104. Brown Scott’s Project, p. 117. Ibid.

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pending the final decision.40 In the final analysis, this provision intends to ensure that whatever decision the Court might reach is not be devoid of object, for, as judge Koroma has stated: The purpose of a request for provisional measures is to preserve as well as to safeguard the rights of the parties that are in dispute, especially when such rights or subject-matter of the dispute could be irretrievably or irreparably destroyed thereby rendering the Court’s decision ineffective or without object. (Vienna Convention, Provisional Measures, Declaration of Judge Koroma, ICJ Rep. 1998, p. 263)

More to the point, the Permanent Court asserted in very clear terms that according to Article 41: [t]he essential condition which must necessarily be fulfilled in order to justify a request for the indication of interim measures, should circumstances require them, is that such measures should have the effect of protecting the rights forming the subject of the dispute submitted to the Court. (Polish Agrarian Reform, Interim Measures, Order of 29 July 1933, PCIJ A/B 58, p. 177)

A related aspect refers to whether the prevention of aggravation and extension of the dispute—in the sense in which this expression was originally used by the PCIJ in the Electricity Company of Sofia case—constitutes in itself the proper object of an order on the indication of provisional measures.41 In reference to this dictum, an early commentator expressed the view that the measures under Article 41 could have as their object “not merely the

40  In the French version of the Statute the expression used is remarkably different, namely, “quelles mesures conservatoires du droit de chacun doivent être prises.” For a comment on the difference between this and the English version see the dissenting opinion of judge ad hoc Thierry in the Arbitral Award (Guinea-Bissau v. Senegal) case (Provisional Measures, Order of 2 March 1990, ICJ Rep. 1990, p. 79). 41  See Box # 11-1. In the Right of Passage case Portugal—the applicant State—requested at the preliminary objections phase a declaration by the Court concerning the duty of the parties to conduct in such a way as to avoid “an aggravation or an extension of the dispute.” Noting that Portugal disclaimed any intention to invoke Article 41 of the Statute at this juncture, the Court rejected this request (Preliminary Objections, Judgment of 26 Nov. 1957, ICJ Rep. 1957, p. 152).

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preservation of rights of the parties, but also the prevention of steps capable of aggravating or extending the dispute.”42 In the South Eastern Greenland case the Court recalled in general terms that it had been argued that under Article 41 of the Statute it was competent to indicate interim measures of protection “for the sole purpose of preventing regrettable events and unfortunate incidents” but found no need to take a final stand upon this question.43 A distinction can thus be made between two types of interim measures, namely, protective or preservative measures (those directed at protecting and preserving the rights of the parties to the dispute), and non-aggravation measures (those “designed to avoid aggravating or extending disputes”).44 The latter are measures designed more generally “to prevent a party to a dispute before [the Court] from interfering with or obstructing the judicial proceedings by coercive extrajudicial means, unrelated to the specific rights in dispute, that seek or are calculated to undermine the orderly administration of justice in a pending case.”45 On several occasions the Court has indicated provisional measures that arguably are not directly aimed at preserving the rights of the parties. It has done this by including in the respective order language that calls upon them to refrain from actions that might produce an aggravation or extension of the dispute or render its settlement more difficult.46 In a recent occasion, the Court

42  Dumbauld, “Relief . . .”, p. 405. 43  PCIJ A/B 48, p. 284. 44  LaGrand, Merits, Judgment of 20 June 2001, ICJ Rep. 2001, p. 503, para. 103. 45  Pulp Mills, Provisional Measures II, Declaration by Judge Buergenthal, ICJ Rep. 2005, p. 22, para. 6. This declaration contains a powerful defense of the position that under Article 41 the Court is entitled to indicate stand-alone non-aggravation measures. See also the individual opinions appended to the order on provisional measures in the Lockerbie case (Dissenting Opinion of Judge Weeramantry, ICJ Rep. 1992, p. 70; Dissenting Opinion of Judge Ranjeva, ibid., p. 76, paras. 10–11; Dissenting Opinion of Judge Ajibola, ICJ Rep. 1992, pp. 91–93; Dissenting Opinion of Judge ad hoc El-Kosheri, ibid., p. 112, para. 65). 46  Anglo-Iranian Oil Co., Order of 5 July 1951, ICJ Rep. 1951, p. 93; Nuclear Tests, Interim Protection, Orders of 22 June 1973, ICJ Rep. 1973, pp. 106, 142; US Hostages, Provisional Measures, Order of 15 Dec. 1979, ICJ Rep. 1979, p. 21, para. 47 (B); Burkina Faso/Mali, Provisional Measures, Order of 10 Jan. 1986, ICJ Rep. 1986, pp. 11–12, para. 1 (A); Genocide Convention (Bosnia)), Provisional Measures I, Order of 8 April 1993, ICJ Rep. 1993, p. 24, para. 52 (B); Cameroon v. Nigeria, Provisional Measures, Order of 15 March 1996, ICJ Rep. 1996, p. 24, para. 49 (1); Armed Activities (DRC v. Uganda), Provisional Measures, Order of 3 July 2000, ICJ Rep. 2000, p. 129, para. 47 (1); Activities in the Border Area, Provisional Measures, Order of 8 March 2011, ICJ Rep. 2011, p. 27, para. 86 (3) (dispositif ).

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found it expedient to remark that, in this context, “the actions thus referred to may consist of either acts or omissions.”47 These measures, however, have always been ancillary to preservative measures and in the Aegean Sea Continental Shelf case the Court remarked that it did not need to decide then and there “[t]he question whether Article 41 of the Statute confers upon it the power to indicate interim measures of protection for the sole purpose of preventing the aggravation or extension of a dispute.”48 The question is far from simple, because the case law is not entirely consistent in this respect. In the Burkina Faso/Mali case a chamber of the Court remarked that: [i]ndependently of the requests submitted by the Parties for the indication of provisional measures, the Court or, accordingly, the chamber possesses by virtue of Article 41 of the Statute the power to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that circumstances so require; (Burkina Faso/Mali, Provisional Measures, Order of 10 Jan. 1986, ICJ Rep. 1986, p. 9, para. 18)49

Significantly, in the subsequent cases in which it has reaffirmed this dictum, the Court stated that it had the power to indicate non-aggravation measures “independently of the requests for the indication of provisional measures submitted by the Parties to preserve specific rights.”50 This formulation suggests that, on the one hand, the parties themselves are entitled to make a request for non-aggravation measures and, on the other, the Court is empowered to indicate provisional measures that are not directed to the preservation of specific rights, as long as they are directed at “preventing the aggravation or extension of the dispute,” in general.

47  Activities in the Border Area (Costa Rica v. Nicaragua); Construction of A Road (Nicaragua v. Costa Rica), Provisional Measures, Request for Modification, Order of 16 July 2013, para. 38. 48  Aegean Sea Continental Shelf, Interim Protection, Order of 11 Sept. 1976, ICJ Rep. 1976, p.13, para. 42 (emphasis added). 49  For a subsequent assessment of the significance of this passage see the dissenting opinion of judge Bedjaoui in the Lockerbie cases (ICJ Rep. 1992, p. 48, para. 32). Judge Bedjaoui was the President of the chamber dealing with the Burkina Faso/Mali case. 50  Cameroon v. Nigeria, Provisional Measures, Order of 15 March 1996, ICJ Rep. 1996, pp. 22–23, para. 41 (emphasis added). See also Armed Activities (DRC v. Uganda), Provisional Measures, Order of 1 July 2000, ICJ Rep. 2000, p. 128, para. 44; Criminal Proceedings, Provisional Measure, Order of 17 June 2003, ICJ Rep. 2003, p. 111, para. 39.

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However, there are two main problems connected with the proposition that the Court is entitled to exercise the power to indicate non-aggravation measures exclusively. The first is that under Article 41 of the Statute any provisional measure indicated by the Court must seek “to preserve the respective rights of either party.” As stated by Merrills: [t]he powers of the Court under Article 41 have the specific purpose of preserving the rights in issue in litigation and so it is only in that context that the Court is entitled to act to prevent extension or aggravation of the dispute.51 In order to conclude that an eminently preventive measure aiming in general terms at the non-aggravation of the dispute falls under the category of permissible measures under Article 41 it would be necessary to adopt what the PCIJ called in this context a “broader interpretation” of that provision.52 It could be contended, for instance, that the ultimate purpose of a measure directed at preventing the aggravation of a dispute is always to preserve the rights of the parties to that dispute.53 This, however, is something that the Court has not favored thus far. The second problem is that while the entire jurisprudential construction as to the conditions required for the indication of provisional measures has been predicated upon the premise that the measures to be indicated are protective in nature, there may be disputes which are aggravated without this necessarily entailing putting at risk the rights of the parties. If the Court indicates by means of the same order both preservative and non-aggravation measures—as it has done in several occasions—there is no problem on this account, but if no preservative measures are included there would no longer be any justification to require, for instance, that a risk of imminent and irreparable prejudice to the rights of one of the parties is shown by the other party.54 As judge Buergenthal puts it, the emphasis would then have to be shifted on to the circumstances in which provisional measures are to be indicated, an element that is also present in Article 41:

51  Merrills, “Interim Measures . . .”, p. 123. 52  South Eastern Greenland, Interim Measures, Order of 3 Aug. 1932, PCIJ A/B 48, p. 285. 53  Per contra see Thirlway’s Law and Procedure, Part 12, BYIL, vol. 72 (2001), p. 101, fn. 245. 54  The same could be said of the test of prima facie jurisdiction. See Thirlway’s Law and Procedure, Part. 12, BYIL, vol. 72 (2001), pp. 105–107.

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The fact that the Court (. . .) has in (. . .) prior cases also indicated the first type of provisional measures, does not detract from the wording of Article 41 of the Statute, which makes the decision whether or not to indicate provisional measures dependent upon the “circumstances” that may require it. These circumstances may involve an imminent threat of irreparable prejudice to the rights in dispute. But, independently thereof, no compelling reason has been advanced by the Court why they may not also apply to situations in which one party to the case resorts to extrajudicial coercive measures, unrelated to the subject-matter in dispute, that aggravate a dispute by seeking to undermine or interfere with the rights of the other party in defending its case before the Court. In such situations the test would not be whether there is an imminent threat of irreparable harm to the subject-matter of the dispute, but whether the challenged actions are having a serious adverse effect on the ability of the party seeking the provisional measures to fully protect its rights in the judicial proceedings. (Pulp Mills, Provisional Measures II, Declaration by Judge Buergenthal, ICJ Rep. 2005, pp. 24–25, para. 11)

Commenting upon this question, an author has argued that the order of the Court in Pulp Mills could be interpreted in the sense advocated by judge Buergenthal, stressing the role that the circumstances of the case would be called to play in such a construction. However, he also makes the important point that if the dictum quoted above is interpreted in the light of the specific context of the case in which it was made the inescapable conclusion is to the contrary.55 In a number of subsequent decisions the Court appears to have adopted a rather cautious attitude towards this question. In the Pulp Mills case the Court recalled expressly that whenever it has made use of the power to indicate non-aggravation measures it has also indicated “[p]rovisional measures other than measures directing the parties not to take actions to aggravate or extend the dispute or to render more difficult its settlement.”56 This latter formulation seems to imply that the existence of an independent power to indicate

55  P. Palchetti, “The Power of the International Court of Justice to Indicate Provisional Measures to Prevent the Aggravation of a Dispute”, LJIL, vol. 21 (2008), pp. 635–636. 56  Pulp Mills, Provisional Measures II, Order of 23 Jan. 2007, ICJ Rep. 2007, p. 16, para. 49.

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provisional measures concerned exclusively with the non aggravation or extension of the dispute is still disputed within the Court.57 In the subsequent Activities in the Border Area and Request for InterpretationTemple of Preah Vihear cases the Court followed the same pattern. In the first of these cases the Court did accept a request by Costa Rica for the indication of a non-aggravation measure—extending its scope by addressing the provisional measure to both parties alike—and observed once again that in every occasion in which it has indicated measures of this nature other provisional measures have been also indicated.58 On the other hand, the Court also added: (. . .) the final provisional measure sought by Costa Rica, being very broadly worded, is linked to the rights which form the subject of the case before the Court on the merits, in so far as it is a measure complementing more specific measures protecting those same rights. (Activities in the Border Area, Provisional Measures, Order of 8 March 2011, ICJ Rep. 2011, p. 21, para. 62)

This formulation puts emphasis on the complementary nature of the nonaggravation measure sought by Costa Rica and on the circumstance that this measure was directly linked to the rights which form the subject of the case. In a declaration appended to the order judge Greenwood made the point that non-aggravation measures “are not limited to the protection of rights which might be adjudged to belong to either party but serve a wider purpose” and that, therefore, the State requesting them would not be required to show that the requirements for the indication of provisional measures are satisfied.59

57  On this see in general Thirlway’s Law and Procedure, Part 12, BYIL, vol. 72 (2001), pp. 99–107; Muller’s Procedural Developments, 6 (2007) pp. 227–229; M. Benzing, “Community Interests in the Procedure of International Courts and Tribunals”, LPICT, vol. 5 (2006), pp. 378–381; Brown, “A Common Law . . .”, pp. 129–130; Palchetti, “The Power . . .”, pp. 623–642. For the latter author the cautious attitude that the Court has adopted on this subject in recent years might be linked to the recognition in the LaGrand case that provisional measures (both preservative and non-aggravating) are binding in law (See Box # 11-15). 58  Activities in the Border Area, Provisional Measures, Order of 8 March 2011, ICJ Rep. 2011, p. 21, para. 62. This measure was subsequently reaffirmed by the Court (Order of 16 July 2013, para. 38). 59  Activities in the Border Area, Provisional Measures, Declaration of Judge Greenwood, ICJ Rep. 2011, p. 48, para. 8.

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In the same direction, in the Request for Interpretation-Temple of Preah Vihear case the Court quoted from its decisions in Cameroon v. Nigeria, Armed Activities (DRC v. Uganda) and Activities in the Border Areas cases and remarked: (. . .) when it is indicating provisional measures for the purpose of preserving specific rights, the Court, independently of the parties’ requests, also possesses the power to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that the circumstances so require. (Request for Interpretation-Temple of Preah Vihear, Provisional Measures, Order of 18 July 2011, ICJ Rep. 2011, pp. 551–552, para. 59)

The form of words used in this passage is suggestive, particularly because it may be construed as excluding the possibility of the Court having the power to indicate non-aggravation measures when it is not indicating measures “for the purpose of preserving specific rights.” Apart from the preservation of the rights of the parties and the nonaggravation of the dispute, it has been contended that orders indicating provisional measures by international tribunals may have other immediate purposes, such as maintaining—or reverting to—a status quo, preserving evidence, ensuring the satisfactory conduct of the proceedings or even staying domestic judicial proceedings.60 As far as the ICJ is concerned, however, it is submitted that these are indeed legitimate purposes of provisional measures, but only as long as they are directly connected with the preservation of rights, so as to fall under the provisions of Article 41. One final point concerning the object of provisional measures is that when they are granted the respective order by the Court cannot amount to an interim judgment that would strengthen the position of the requesting party and largely pre-shape the outcome of the case. As it will be seen in the next section, while it is now clear that the plausible existence of the rights to be protected at the provisional measures stage must be proven and that these rights must be linked to the rights that are involved in the merits of the dispute, the measures adopted in order to preserve them should not totally identify with the decision resolving the dispute on the merits.61 This is why every order indicating provisional measures is careful in specifying that that decision “[i]n no way prejudges. . . any questions relating to the . . . merits themselves” and “[l]eaves unaffected the right of the parties to submit 60  Brown, “A Common Law . . .”, pp. 121–123. 61  Merrills, “Interim Measures . . .”, pp. 104–106.

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arguments in respect of those questions.” As judge Oda put it in his declaration in the Vienna Convention case: “[t]he request for provisional measures should not be used by applicants for the purpose of obtaining interim judgments that would affirm their own rights and predetermine the main case.”62 The case most often invoked in this regard is Factory at Chorzów, in which the Permanent Court declined to indicate certain measures on the basis that the request was “[d]esigned to obtain an interim judgment in favour of a part of the claim.”63 However, the present Court has not yet had the occasion to either apply or confirm this precedent and in one case plainly disregarded it. In the US Hostages case the Court found that “[a] request for provisional measures must by its very nature relate to the substance of the case” and remarked that the purpose of the requesting State appeared to be “[n]ot to obtain a judgment, interim or final, on the merits of its claims but to preserve the substance of the rights which it claims pendente lite.”64 On the other hand, in the Arrest Warrant case Belgium argued that the relief sought by the State requesting provisional measures was identical to the main submission contained in the application and invoked for that purpose the Factory at Chorzów precedent. The Court dismissed the request for reasons unconnected to this and found that it was unnecessary for it to examine this argument.65 The point was raised by judge Shahabuddeen in his separate opinion in the Genocide Convention (Bosnia) case. After assessing the relative value of the Chorzów Factory case as a valid precedent, he went on to explain: The idea of a provisional measure of protection which may have the same effect as the main remedy is conceptually distinct from the idea of an interim judgment. The object of the former is the protection of the right in issue pending the final adjudication of the claim; the object of the latter is to give to the plaintiff interim relief by way of advance payment on account of a liability which is admitted or reasonably clear but not yet precisely quantified. Provisions for interim payment exist in some legal 62  Vienna Convention, Provisional Measures, Declaration of Judge Oda, ICJ Rep. 1998, p. 262. Reiterated verbatim in his declaration in LaGrand, Provisional Measures, ICJ Rep. 1999, p. 19. The question of the impropriety of seeking and obtaining an interim judgment was also touched upon by judge Gros in his dissenting opinion in the Nuclear Tests cases (Provisional Measures, ICJ Rep. 1973, pp. 123 and 158). 63  Factory at Chorzów, Order of 21 Nov. 1927, PCIJ A 12, p. 10. For the view that this aspect of the case has been largely misunderstood see Collins, “Provisional and Protective . . .”, pp. 228–229. 64  US Hostages, Provisional Measures, Order of 15 Dec. 1979, ICJ Rep. 1979, p. 16, para. 28. 65  Arrest Warrant, Provisional Measures, Order of 2 Dec. 2000, ICJ Rep. 2000, p. 201, para. 73.

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systems. By contrast, as the Court pointed out in the Factory at Chorzów case, a request which is really for relief by way of interim judgment is “not covered by the terms of the provisions of the Statute and Rules . . .” (. . .) [p]rovided that a measure is truly conservatory of the rights in contest pending judgment, the possibility that it may produce the same effect as the main relief sought (though a discretionary consideration) does not put it out of the power conferred on the Court by Article 41 of the Statute to indicate provisional measures. (Genocide Convention (Bosnia), Provisional Measures II, Separate Opinion of Judge Shahabuddeen, ICJ Rep. 1993, p. 356)

Commentators on the Court’s work have remarked that in certain major cases decided over the last two decades the measures indicated by the Court have so closely resembled the petitum of the party making the request, that when the merits phase arrived the actual matters to be considered had already been the object of full argument at the provisional measures phase.66 The problem is even more acute nowadays, after the Court’s finding that its orders on provisional measures are binding upon the parties, for, as judge Ranjeva remarked: [t]he binding nature of the decision indicating provisional measures obliges the Court to ensure that it cannot be viewed as a provisional judgment capable of prejudging future scrutiny of and findings on the merits. An examination of the effects of the measures is not, in itself, sufficient to prevent such a possibility; that examination must also be supported by an analysis of the very purpose of the measures requested. It is for the Court to compare in limine the purpose of those measures with that sought through the principal proceedings and thus to dismiss direct, or in some cases indirect, requests that would, in reality, result in a provisional judgment. Such an approach will, first, help to clarify the relationship between the incidental proceedings and the principal proceedings so as to ensure that the Court, when ruling on the merits, is not bound by the provisional measures and, secondly, to limit the incidental proceedings to an examination of only the urgent parts of the request. (Pulp Mills, Provisional Measures I, Declaration of Judge Ranjeva, ICJ Rep. 2006, p. 136)

66  Oda, “The International Court . . .”, pp. 73–74; Oda, “Provisional . . .”, pp. 553–554. The cases more often mentioned in this regard are Nuclear Tests, US Hostages, Nicaragua, Genocide Convention (Bosnia), Vienna Convention, LaGrand and Avena.

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It follows that the fact that the measures requested during incidental proceedings on provisional measures may coincide with the submissions on the merits is in itself just a formal aspect that should not be given more weight than that it intrinsically possesses. The crucial element should always be whether the measures requested are indeed necessary to preserve the rights of the parties pendente lite.67

Box # 11-6 The Request for Interpretation-Temple of Preah Vihear case: Establishing a demilitarized zone as a provisional measure On 28 April 2011 Cambodia filed an application against Thailand requesting the interpretation of the Court’s judgment of 15 June 1962 in the Temple of Preah Vihear case and on the same date submitted a request for the indication of provisional measures. On 18 July 2011 the Court made an order indicating certain provisional measures, the most important of which consisted in the establishment of a demilitarized zone in the vicinity of the Temple. After ascertaining that the request for interpretation was admissible and that the conditions for the indication of provisional measures in this case were met, the Court recalled that incidents involving the use of military force had occurred on various occasions between the parties “in the area of the Temple” and that these incidents not only led to fatalities, injuries and the displacement of local populations but also caused harm to “the Temple and to the property associated with it.” (Provisional Measures, Order of 18 July 2011, ICJ Rep. 2011, p. 551, para. 54). The Court then noted that the rights claimed by Cambodia in the area of the Temple under the terms of the judgment to be interpreted might suffer irreparable prejudice resulting from the military activities in that area and that there was urgency, a set of circumstances that made it appropriate for the Court to indicate provisional measures, albeit different from those sought by Cambodia 67 

Oellers-Frahm, “Article 41”, MN 23–24, pp. 1037–1038. See also Collins, “Provisional and Protective . . .”, pp. 231–232. All the same, Rosenne has also remarked that now that it is accepted that provisional measures are binding, if a provisional measure requires a State party to take action similar to what was requested in the original claim, this may have the effect of rendering the continuation of the proceedings redundant (S. Rosenne, “The ICJ: The New form of the operative clause of an order indicating provisional measures”, LJIL, vol. 16 (2003), p. 203).

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and addressed to both parties (ibid., paras. 55–60). The relevant part of the order reads as follows: (. . .) in order to prevent irreparable damage from occurring, all armed forces should be provisionally excluded from a zone around the area of the Temple, without prejudice to the judgment which the Court will render on the request for interpretation submitted by Cambodia; and (. . .), therefore, the Court considers it necessary, in order to protect the rights which are at issue in these proceedings, to define a zone which shall be kept provisionally free of all military personnel, without prejudice to normal administration, including the presence of non-military personnel necessary to ensure the security of persons and property; (. . .) this provisional demilitarized zone shall be delimited by straight lines connecting the following points, the co-ordinates of which are calculated on the basis of the WGS 84 system: point A, situated at latitude 14º 23’ N and longitude 104º 41’ E; point B, situated at latitude 14º 24’ N and longitude 104º 38’ 15” E; point C, situated at latitude 14º 25’ N and longitude 104º 38’ 40” E; and point D, situated at latitude 14º 25’ N and longitude 104º 42’ 20” E (see sketch-map below); (. . .) both Parties, in order to comply with this Order, shall withdraw all military personnel currently present in the zone as thus defined; (. . .) both Parties shall refrain not only from any military presence within that provisional demilitarized zone, but also from any armed activity directed at the said zone; (. . .), in addition, both Parties shall continue the co-operation which they have entered into within ASEAN and, in particular, allow the observers appointed by that organization to have access to the provisional demilitarized zone; (Request for Interpretation-Temple of Preah Vihear, Provisional Measures Order of 18 July 2011, ICJ Rep. 2011, pp. 552–554, paras. 61–64)

Clearly, this provisional measure imposes upon the parties severe restrictions with regard to the exercise of sovereignty and jurisdiction over part of their respective territories. This is the first time that the Court indicates a provisional measure of so serious a nature, as in previous cases involving an intersection of territorial claims with questions related to armed conflict the scope of the measures adopted was certainly more limited (see in particular the solution

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adopted by a chamber of the Court in the Burkina Faso/Mali case, Provisional Measures, Order of 10 Jan. 1986, ICJ Rep. 1986, p. 3). It is likely that the question of the legitimacy and appropriateness of this measure was debated inside the Court, as shown by the fact that the decision to establish the demilitarized zone was taken by 11 votes against 5. The five judges voting against, including the President of the Court and the judge ad hoc appointed by Thailand, appended to the order dissenting opinions in which both, the decision to establish a demilitarized zone, and the manner in which the majority of the Court defined the zone, are subject to serious criticism.68

c)

Conditions for the Indication of Provisional Measures

Article 41 of the Statute refers in general terms to the circumstances that will justify the exercise of the Court’s power to indicate provisional measures. Along the same lines, Practice Direction XI mentions the “criteria for the indication of provisional measures as indicated in the Statute, Rules and jurisprudence of the Court.” A good summary of these criteria was provided by judge Koroma in the following terms: Historically, the Court has established four criteria to be met before it will indicate provisional measures in favour of one or both parties. First, the provisions invoked by the applicant must appear, prima facie, to afford a basis on which the jurisdiction of the Court might be established. Second, (. . .) there must be a link between the alleged rights the Applicant seeks to protect and the subject of the proceedings before the Court on the merits of the case. Third, the Court must be convinced that one or both parties will suffer irreparable prejudice or harm to the rights which are the subject of the dispute on the merits. Fourth, there must be urgency in the sense that there is a real risk that action prejudicial or harmful to

68 

Request for Interpretation-Temple of Preah Vihear, Provisional Measures, Dissenting Opinion of President Owada (ICJ Rep. 2011, p. 557); Dissenting Opinion of Judge Al-Khasawneh (ibid., p. 564); Dissenting Opinion of Judge Xue (ibid., p. 608); Dissenting Opinion of Judge Donoghue (ibid., p. 613) and Dissenting Opinion of Judge ad hoc Cot (ibid., p. 627). For a comment see Bordin’s Procedural Developments, LPICT, vol. 11 (2012), pp. 348–352.

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the right of either party might be taken before the Court has given its final decision. (Activities in the Border Area, Provisional Measures, Separate Opinion of Judge Koroma, ICJ Rep. 2011, pp. 29–30, para. 3)69

This passage calls for two comments. In the first place, it was explained above that the test of prima facie jurisdiction is not really one of the factual circumstances that must be considered by the Court in order to decide whether or not it exercises its power under Article 41 but rather one jurisdictional prerequisite for the issuance of interim measures of protection.70 Secondly, in the very decision to which this opinion of judge Koroma was appended the Court took a bold step with regard to the second of the listed criteria, namely the question of the link between the alleged rights that the requesting party seeks to protect and the subject of the proceedings. The Court invoked a passage in its 2009 order on provisional measures in the Obligation to Prosecute or Extradite case and found that there is another aspect of this question that must now be considered as a true condition for the indication of provisional measures: that since the Court must be concerned to preserve the rights which may subsequently be adjudged to belong to either party, it may exercise this power “only if it is satisfied that the rights asserted by a party are at least plausible”.71 Only then the element of the link that must exist between the rights which form the subject of the proceedings before the Court and the provisional measures being sought comes to be considered. As a result of this development, if we leave aside the questions of jurisdiction on the merits and the proper object of the request, the conditions, circumstances or criteria required for the indication of provisional measures, as developed by the Court’s jurisprudence, are essentially four, namely, (i) Plausible character of the alleged rights; (ii) Link between these rights and the measures requested; (iii) Risk of irreparable prejudice; and (iv) Urgency.72 69  For a different scheme of classification see the declaration by judge Greenwood in the same case (Activities in the Border Area, Provisional Measures, Declaration of Judge Greenwood, ICJ Rep. 2011, pp. 46–47, para. 2). See also the declaration of judge Oda in the Cameroon v. Nigeria case (Provisional Measures, Declaration of Judge Oda, ICJ Rep. 1996, p. 26). 70  See text to note 28. 71  Activities in the Border Area, Order of 8 March 2011, ICJ Rep. 2011, p. 18, para. 53. Emphasis added. 72  This is not to say that there can be no additional factors that the Court may take into account when it considers whether or not to grant a request for provisional measures.

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These will be examined below, although, taking into account that condition (ii) made its appearance in the Court’s jurisprudence at a considerably earlier date than condition (i), these two will be considered in reverse order. It is also useful to register here that these requirements are clearly cumulative, so that “the Court is not always compelled to rule on the satisfaction of each: where any one remains unmet, the Court is relieved of the need to examine the other.”73 First Condition: Link between the Alleged Rights and the Measures Requested The connection or nexus that must exist between the rights to be protected through provisional measures and the measures themselves relates closely to a factor already discussed, i.e. the fact that every request for provisional measures must seek the preservation of the rights belonging to one or both of the parties to the litigation. Thus, as an aspect of the proper object of provisional measures, this matter has always been present in one form or other in the Court’s case law concerning Article 41 of the Statute. All the same, it is only in the last twenty years that it has acquired preeminence, to the point that it has come to be regarded as one of the conditions required for the indication of provisional measures. In this, as in many other aspects concerning its procedure, the Court has built on the doctrine of the PCIJ, in particular on the latter’s classical decisions rejecting requests for provisional measures in the South Eastern Greenland and Polish Agrarian Reform cases. In the first of these, the Court was careful to clarify that “the only rights which might enter into account” with regard to the indication of provisional measures were the rights claimed by Norway over certain territory, in the event that these rights were to be recognized by the Court in its future judgment on the merits.74 Upon examination of the facts of the case, the Court found that no rights the protection of which might require the indication of provisional measures were at issue. From this, it went on to formulate a general proposition according to which:

(. . .) the rights which it might be necessary to protect in connection with the proceedings (. . .) are, accordingly, solely such sovereign rights as the Among these the following have been listed: the prospects of success on the merits; equality of treatment; the intention of the parties; and the need to prevent an aggravation or extension of the dispute (Merrills, “Interim Measures . . .”, pp. 106, 114–125). 73  Pulp Mills, Provisional Measures I, Separate Opinion of Judge Abraham, ICJ Rep. 2006, p. 141). 74  South Eastern Greenland, Interim Measures, Order of 3 August 1932, PCIJ A/B 48, p. 288.

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Court might, in giving judgment on the merits, recognize as appertaining to one or other of the Parties. (South Eastern Greenland, Interim Measures, Order of 3 August 1932, PCIJ A/B 48, p. 288)

In the Polish Agrarian Reform case, for its part, the PCIJ stated as a matter of general principle that the indication of provisional measures would only be justified if the measures had the effect of protecting the rights “forming the subject of the dispute submitted to the Court.”75 The Court also denied the request because it found that the interim measures asked for could not be regarded as solely designed “to protect the subject of the dispute and the actual object of the principal claim, as submitted to the Court.”76 As for the present Court, it was not until 2007, in the context of the second request for provisional measures in the Pulp Mills case, that the question of “the link between the alleged rights the protection of which is the subject of the provisional measures being sought, and the subject of the proceedings before the Court on the merits of the case” was expressly mentioned in a decision made under Article 41 of the Statute. This was done, one may add, in a rather timid way, for all the Court said in this occasion was that that aspect “ha[d] to be examined,” giving the way in which the parties had pleaded their cases concerning interim relief.77 However, this aspect of proceedings on provisional measures had been engaged by the Court in prior occasions, at least in an indirect manner. In the early seventies, in the context of the Fisheries Jurisdiction cases, the Court referred in passing to an argument by one party that “seems to question the connection which must exist under Article 61, paragraph 1, of the Rules between a request for interim measures of protection and the original Application filed with the Court.”78 Interestingly, the Court made reference here to a provision of the Rules (Article 61 of the Rules then in force, corresponding to Article 73, para. 2 of the current Rules) and not to Article 41 of the Statute. Besides, in this passage the connection requirement was not predicated upon the provisional measures requested and the rights to be accorded to the parties by the decision on the merits but upon the instruments concerned, i.e. the request for 75  Polish Agrarian Reform, Interim Measures, Order of 29 July 1933, PCIJ A/B 58, p. 177. 76  Ibid., p. 178. 77  Pulp Mills, Provisional Measures II, Order of 23 Jan. 2007, ICJ Rep. 2007, p. 10, para. 27. For a comment see Muller’s Procedural Developments, LPICT, vol. 6 (2007), pp. 224–227. 78  Fisheries Jurisdiction (United Kingdom v. Iceland) (Germany v. Iceland), Interim Protection, Order of 17 August 1972, ICJ Rep. 1972, p. 15, para. 12 and p. 33, para. 12.

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provisional measures, on one hand, and the application, on the other. Similarly, in the US Hostages case the Court famously remarked that “a request for provisional measures must by its very nature relate to the substance of the case since, as Article 41 expressly states, their object is to preserve the respective rights of either party.”79 In three cases of the early nineties the Court returned this issue, using different formulations. In Arbitral Award the Court came to the conclusion that the alleged rights sought to be made the subject of provisional measures were not the subject of the proceedings before the Court on the merits of the case and declared that accordingly, “any such measures could not be subsumed by the Court’s judgment on the merits.”80 In this case the Court rejected the request for provisional measures on the basis that the substantive claim (the nullity or non-existence of an award) was not related to the relief sought via provisional measures (the prohibition of certain actions in a disputed maritime area).81 Secondly, in the Genocide Convention (Bosnia) case the Court remarked in negative terms that it “ought not to indicate measures for the protection of any disputed rights other than those which might ultimately form the basis of a judgment in the exercise of that jurisdiction.”82 Subsequently, in the Cameroon v. Nigeria case the Court adopted a remarkably general formulation in this regard, one which has been quoted often in subsequent occasions: (. . .) this power to indicate provisional measures has as its object to preserve the respective rights of the Parties, pending a decision of the Court, and presupposes that irreparable prejudice shall not be caused to rights which are the subject of dispute in judicial proceedings; (. . .) it follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent. (Cameroon v. Nigeria, Provisional Measures, Order of 15 March 1996, ICJ Rep. 1996, pp. 21–22, para. 35)

79  US Hostages, Provisional Measures, Order of 15 Dec. 1979, ICJ Rep. 1979, p. 16, para. 28. 80  Arbitral Award (Guinea-Bissau v. Senegal), Provisional Measures, Order of 2 March 1990, ICJ Rep. 1990, p. 70, para. 26. 81  Ibid., pp. 69–70, paras. 25–27. 82  Genocide Convention (Bosnia), Provisional Measures I, Order of 8 April 1993, ICJ Rep. 1993, 19, para. 35.

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As it can be observed, a common thread in these pronouncements is the recognition that the provisional measures requested must be actually connected to the substantive rights of the parties, as these can be recognized later by the Court, when it comes to a decision on the merits. After cautiously admitting in the Pulp Mills case that this question “ha[d] to be examined,” the Court took a definite stance on it in the Request for Interpretation-Avena case, in which it quoted from the Genocide Convention (Bosnia) and Cameroon v. Nigeria decisions, and remarked quite unequivocally that: (. . .) a link must (. . .) be established between the alleged rights the protection of which is the subject of the provisional measures being sought, and the subject of the principal request submitted to the Court.

(Request for Interpretation-Avena, Provisional Measures, Order of 6 July 2008, ICJ Rep. 2008, p. 327, para. 58)

In all its subsequent orders on provisional measures this aspect has been listed as one of the conditions for the indication of provisional measures and in the most recent decisions this has been done using a separate heading that refers specifically to the “Link between the right(s) protected and the measures requested.”83 Finally, this link is also related to the strictly temporary nature of the relief measures provided for in Article 41, because they will lapse once the Court has made a definite finding on the rights in question: [s]uch measures are provisional and indicated “pending the final decision” (Article 41, paragraph 2, of the Statute); and . . . therefore they are to be measures such that they will no longer be required as such once the dispute over those rights has been resolved by the Court’s judgment on the merits of the case. (Passage through the Great Belt, Provisional Measures, Order of 29 July 1991, ICJ Rep. 1991, p. 69, para. 24)

83  Obligation to Prosecute or Extradite, Provisional Measures, Order of 28 May 2009, ICJ Rep. 2009, p. 51, para. 56; Activities in the Border Area, Provisional Measures, Order of 8 March 2011, ICJ Rep. 2011, pp. 18, 20; Request for Interpretation-Temple of Preah Vihear, Provisional Measures, Order of 18 July 2011, ICJ Rep. 2011, p. 545, para. 33 and p. 547, para. 42.

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Box # 11-7 Remedies and provisional measures There are two aspects worth highlighting with regard to the relationship between the indication of provisional measures and the question of remedies.

i)

Provisional Measures as Remedies in Themselves84

In the first place, the indication of provisional measures of protection under Article 41 of the Court’s Statute constitutes in itself a form of remedy, albeit one that is transitory in nature and lacks definitive effects.85 Through the mechanism of provisional measures, a State party is normally able to obtain from the Court a decision containing precisely drafted temporary injunctions or consequential orders, whether positive (demanding the other party to take certain action) or negative (directing the other party to refrain from certain activity). What is more, after the Court decided in 2001 that its orders on provisional measures have binding effects, it is only natural that States engaged in litigation feel encouraged to resort more often to this procedural device with a view to obtaining a double result: to compel the other party to behave in a certain manner and also to gain a certain tactical advantage in the incoming litigation. One interesting issue regarding remedies in the context of incidental proceedings on provisional measures concerns the fact that one of the conditions for the indication of provisional measures, as developed in the Court’s case law, is that there must be an imminent risk of irreparable prejudice being caused to the rights the preservation of which is sought with the provisional measures. In cases in which the requesting party contends that there is a breach of an international obligation by the other party, the Court has interpreted this condition as meaning that if the alleged breach is one that might be “[c]apable of reparation by appropriate means,” then there is no actual risk of an irreparable damage and thus no real need for the indication of provisional measures. In other words, there will be room for granting the transitory relief represented in the indication of provisional measures only if the violations complained of by one party “would not be capable of being remedied at the merits stage of the proceedings.”86 Thus, if there is a chance for the definite remedy of reparations 84  85  86 

This question is analyzed in depth in C. Gray, Judicial Remedies in International Law (1987), pp. 69–77. Merrills, “Interim Measures . . .”, p. 142. The expression was used by the Court in Pulp Mills (Provisional Measures I), Order of 13 July 2006, ICJ Rep. 2006, p. 131, paras. 70–71.

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being granted at the merits stage, there will be no place for granting the same remedy as a provisional measure under Article 41 of the Statute.

ii) Remedies for Lack of Compliance with Orders on Provisional Measures87 The second aspect is also connected with the fact that orders on provisional measures are now recognized as having binding effect on the States parties. As a partial consequence of this pivotal finding in LaGrand, it is now open to all parties to a case to include in their claims for remedies a special request in order to redress injury caused by an alleged lack of compliance with the Court’s order indicating provisional measures. The first instance of this was LaGrand itself, in which Germany included in its submissions a request for a declaration by the Court that the US had failed to comply with the order on provisional measures. The Court found for Germany on this issue and registered in express terms that that government had felt content with submitting only a request for declaratory relief, but anticipated (in obiter) that it could have submitted a claim for indemnification as well: The Court observes . . . that in the third submission Germany requests the Court to adjudge and declare only that the United States violated its international legal obligation to comply with the Order of 3 March 1999: it contains no other request regarding that violation. Moreover, the Court points out that the United States was under great time pressure in this case, due to the circumstances in which Germany had instituted the proceedings. The Court notes moreover that at the time when the United States authorities took their decision the question of the binding character of orders indicating provisional measures had been extensively discussed in the literature, but had not been settled by its jurisprudence. The Court would have taken these factors into consideration had Germany’s submission included a claim for indemnification. (LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, p. 508, para. 116)

87 

See M. Mendelson, “State Responsibility for Breach of Interim Protection Orders of the International Court of Justice”, en M. Fitzmaurice & D. Sarooshi (Eds.), Issues of State Responsibility before International Judicial Institutions (2004), pp. 35–53.

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At the merits phase of the Genocide Convention (Bosnia) case, the applicant included in its submissions a request for what it called “symbolic compensation,” as a remedy for the alleged failure of the respondent to comply with the Court’s order on provisional measures. The Court denied this, on the basis that this question largely merged with that of the remedy for the injury suffered as a result of substantive violations of the Convention (Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, par. 458). All the same, the Court granted a remedy of declaratory relief “by way of satisfaction” to redress this breach, and to that end it included in the operative part of the judgment a clause referring to the lack of compliance with the order: Provisional measures under Article 41 of the Statute are indicated “pending [the] final decision” in the case, and the measures indicated in 1993 will thus lapse on the delivery of the present Judgment (. . .). However, as already observed (paragraph 452 above), orders made by the Court indicating provisional measures under Article 41 of the Statute have binding effect, and their purpose is to protect the rights of either party, pending the final decision in the case. The Court has found above (paragraph 456) that, in respect of the massacres at Srebrenica in July 1995, the Respondent failed to take measures which would have satisfied the requirements of paragraphs 52 (A) (1) and (2) of the Court’s Order of 8 April 1993 (reaffirmed in the Order of 13 September 1993). The Court however considers that, for purposes of reparation, the Respondent’s non-compliance with the provisional measures ordered is an aspect of, or merges with, its breaches of the substantive obligations of prevention and punishment laid upon it by the Convention. The Court does not therefore find it appropriate to give effect to the Applicant’s request for an order for symbolic compensation in this respect. The Court will however include in the operative clause of the present Judgment, by way of satisfaction, a declaration that the Respondent has failed to comply with the Court’s Orders indicating provisional measures. (Genocide Convention (Bosnia) Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 236, paras. 468–469)88

88 

See also, in the same case, Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, pp. 238–239, para. 471 (7) and (9) (dispositif).

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In other cases in which the question has arisen, the response by the Court has been slightly different. In Cameroon v. Nigeria, the Court found that the applicant did not prove that Nigeria had breached its international obligations under the Court’s order on provisional measures (Cameroon v. Nigeria, Merits, Judgment of 10 Oct. 2002, ICJ Rep. 2002, p. 453, paras. 321–322). In Avena, on the other hand, the Court simply observed that the obligations of the United States under the order on provisional measures were replaced by those declared in the judgment, with effect from the date of the latter (Avena, Merits, Judgment of 31 March 2004, ICJ Rep. 2004, p.70, para. 152).

Second Condition: Plausible Character of the Alleged Rights As mentioned above, among the conditions for the indication of provisional measures this is the latest to have made its appearance in the Court’s case law, as it was mentioned for the first time in the decisions on provisional measures made in the years 2009 and 2011. In particular, the order of the Court rejecting Belgium’s request for provisional measures in the Obligation to Prosecute or Extradite case represents a condensation of sorts of the process of jurisprudential development described in the previous subsection. In this decision—which is believed to be the first occasion in which headings were used in the body of an order indicating provisional measures—the question of the link between the rights to be preserved and the measures requested was put on the same foot with the more traditional concepts of “prima facie jurisdiction;” and “risk of irreparable prejudice and urgency.”89 Additionally, in this decision the Court for the first time tackled a problem that had arisen in previous cases and had been singled out by commentators, namely whether a State requesting provisional measures must establish to the Court’s satisfaction and at this stage of the proceedings that the rights to be protected may in fact exist. In other words, whether the requesting State has

89 

Obligation to Prosecute or Extradite, Provisional Measures, Order of 28 May 2009, ICJ Rep. 2009, p. 147, para. 40; p. 151, para. 56; p. 152, para. 62. According to a practice of recent vintage, the headings in these orders make their appearance well into the text, once the details concerning the development of the proceedings and the submission of the parties have been summarized.

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to show a prima facie case on the merits, a question sometimes referred to as fumus boni juris.90 The question of the need to demonstrate the likely existence of the rights to be preserved in the context of proceedings on provisional measures was examined at different times by individual members of the bench. Of note are the separate opinion of judge Shahabuddeen in the Passage through the Great Belt case and the separate opinion of judge Abraham in the Pulp Mills case. Both had occasion to individually elaborate on this aspect and both made a call to the Court to dispel existing doubts concerning its scope. Judge Shahabuddeen stated that the problem was whether it was open to the Court, in proceedings conducted under Article 41 of the Statute, to restrain a State from doing something without having required the requesting State to show that there was at least a possibility of the existence of the right for the preservation of which the measures were sought. Relying heavily in the Court’s decision in the US Hostages case, he was of the opinion that a State requesting interim measures should be required to establish the possible existence of the rights sought to be protected by a summaria cognitio, taking “into account the possibility of the right claimed . . . and the possibility of the danger to which that right was exposed”.91 Judge Shahabuddeen also had the following to say with regard to the risk of prejudgment, which he identified as likely the most common criticism leveled against this view: Possibly the most influential factor contributing to a discernible and perhaps understandable general impression that the Court should not consider whether there is a prima facie case as to the existence of the right claimed is the need to avoid any appearance of prejudgment. (. . .) in measuring the danger of prejudgment, it has to be borne in mind that what the Court is considering is not whether the right sought to be preserved definitively exists, but whether the requesting State has shown 90  See the argument by Counsel for Uruguay in the Pulp Mills case (CR 2006/47, 8 June 2006, p. 38, para. 14) (Condorelli). For a full treatment see L. Collins, “Provisional and Protective Measures in International Litigation”, RC, vol. 234 (1992) 224–228. See also Oellers-Frahm, “Article 41”, MN 35–37, pp. 1042–1044; Mani’s Adjudication, p. 293; H.W.A. Thirlway, “The Indication of Provisional Measures by the International Court of Justice”, in R. Bernhard (ed.), Interim Measures Indicated by International Courts (1993) 23–25; Merrills, “Interim measures . . .”, pp. 114–116. 91  Passage Through the Great Belt, Provisional Measures, Separate Opinion of Judge Shahabuddeen, ICJ Rep. 1991, p. 36. He was quoting here from Judge Anzilotti’s dissent in the Polish Agrarian Reform case (PCIJ, A/B 58, p. 181).

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any possibility of its existence. As general judicial experience shows, that distinction is not artificial; it is real. Certainly, a finding that such a possibility exists clearly falls short of constituting an interim judgment. (Passage Through the Great Belt, Provisional Measures, Separate Opinion of Judge Shahabuddeen, ICJ Rep. 1991, p. 29)

Fifteen years later, Judge Abraham explicitly subscribed to the views of judge Shahabuddeen referred to above and found it pertinent to reinforce the reasoning behind them by making the case for the adoption of the concept of fumus boni juris, as applied by other international jurisdictions in the context of the indication of provisional measures: (. . .) When acting on a request for the indication of provisional measures, the Court is necessarily faced with conflicting rights (or alleged rights), those claimed by the two parties, and it cannot avoid weighing those rights against each other. On one side stands (stand) the right (rights) asserted by the requesting party, which it claims to be under threat and for which it seeks provisional protection, and on the other the right(s) of the opposing party, consisting at a minimum in every case of the fundamental right of each and every sovereign entity to act as it chooses provided that its actions are not in breach of international law. (. . .) I find it unthinkable that the Court should require particular action by a State unless there is reason to believe that the prescribed conduct corresponds to a legal obligation (and one predating the Court’s decision) of that State, or that it should order a State to refrain from a particular action, to hold it in abeyance or to cease and desist from it, unless there is reason to believe that it is, or would be, unlawful. (Pulp Mills, Provisional Measures I, Separate Opinion of Judge Abraham, ICJ Rep. 2006, p. 139)

Judge Abraham was also careful to observe that carrying out “some minimum review,” or giving “some thought to the substance,” of the merits of the dispute obviously does not mean prejudging or arriving at a complete and final view as to them: It is self-evident that it is neither possible nor desirable for the Court to develop a firm opinion about the case, let alone to express one, during the first phase of the proceedings. But, in conducting some review, by nature limited, of the prima facie validity of the requesting party’s case, the Court does not overstep the bounds of its mission as a jurisdiction

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appealed to for interim relief; on the contrary, it is sensibly fulfilling that mission. (Pulp Mills, Provisional Measures I, Separate Opinion of Judge Abraham, ICJ Rep. 2006, p. 140)92

The first time that the majority of the Court addressed this issue, in the Obligation to Prosecute or Extradite case, it apparently took the view advocated by the individual judges just mentioned. Although it did not elaborate, the Court remarked quite clearly that [t]he power of the Court to indicate provisional measures should be exercised only if the Court is satisfied that the rights asserted by a party are at least plausible. (Obligation to Prosecute or Extradite, Provisional Measures, Order of 28 May 2009, ICJ Rep. 2009, p. 151, para. 57)

The Court also placed on record that this was an entirely provisional appraisal, for “[a]t this stage of the proceedings the Court did not need to establish definitively the existence of the rights” claimed by the applicant or to consider the latter’s “capacity to assert such rights before the Court,” it being sufficient that the rights asserted “appear to be plausible”.93 In its subsequent decision in the Activities in the Border Area case, the Court deliberately confirmed the stance it took in this regard in Obligation to Prosecute or Extradite. It reiterated in apparently firm terms that, since the power of the Court to indicate provisional measures under Article 41 of the Statute has as its object the preservation of the respective rights of the parties pending its decision, it follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong to either party. Therefore, the Court may exercise this power “only if 92  See also the declaration by judge Ranjeva in the same case (ICJ Rep. 2006, p. 136) and the separate opinion of judge Bennouna (ibid., p. 143, para. 5 and p. 146, para. 14). To a certain extent, the question had been engaged even earlier by Vice-President Ammoun and judges Forster and Jiménez de Aréchaga in their joint declaration in the two Fisheries Jurisdiction cases (Interim Protection, Orders of 17 August 1972, ICJ Rep. 1972, pp. 18 and 36). 93  Obligation to Prosecute or Extradite, Provisional Measures, Order of 28 May 2009, ICJ Rep. 2009, para. 60 (emphasis added in all the passages quoted). For the view that this does not fully equate to embracing the fumus boni juris criterion see Muller & Ben Mansour’s Procedural Developments, LPICT, vol. 8, 2009, pp. 499–500. This view may have been rendered obsolete by subsequent decisions of the Court.

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it is satisfied that the rights asserted by a party are at least plausible”.94 Only then the element of the link that must exist between the rights which form the subject of the proceedings on the merits and the provisional measures being sought comes to be considered. Perhaps more importantly, the Court deliberately adjusted the structure of its decision on provisional measures with regard to the one it had embraced in Obligation to Prosecute or Extradite, and adopted the following headings, which have been used in all subsequent orders made under Article 41: (1) Prima facie jurisdiction. (2) Plausible character of the rights whose protection is being sought and link between these rights and the measures requested (a) Plausible character of the rights whose protection is being sought (b) Link between the rights whose protection is being sought and the measures requested. (3) Risk of irreparable prejudice and urgency.95 As it is observed, the question of the link between the rights sought to be preserved and the measures requested became somewhat secondary, since it will come to be examined only after the Court has verified the plausible character of those same rights. What was the genus in previous decisions has now become the species.

Box # 11-8 “Plausibility” of the rights to be protected as a new condition for the indication of provisional measures: Some criticism In the Activities in the Border Area case the Court adopted the criteria that the plausible character of the alleged rights must be demonstrated for a request for provisional measures to succeed. This a remarkable development that did not pass unnoticed within the Court, as shown by the fact that four of the 94  95 

Activities in the Border Area, Provisional Measures, Order of 8 March 2011, ICJ Rep. 2011, p. 18, para. 53. Emphasis added. Ibid., pp. 17, 18, 19, 20 and 21. Request for Interpretation-Temple of Preah Vihear, Order of 18 July 2011, ICJ Rep. 2011, pp. 545, 547 and 548. The fact that the Court changed the title for the relevant section and created a new subject heading was noted by judge Koroma (Activities in the Border Area, Provisional Measures, Separate Opinion of Judge Koroma, ICJ Rep. 2011, p. 30, note 7).

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judges appending individual statements to the order referred to it in some detail. Judge Koroma devoted his entire separate opinion to this question and it was discussed also in the separate opinions of judge Sepulveda-Amor and of judge ad hoc Dugard, as well as in the declaration of judge Greenwood. A common concern in these statements is a desire to determine whether the Court was introducing a new requirement or a new condition that needs to be satisfied in order for the Court to indicate provisional measures. Three of the judges addressing this question considered that this was not the case and that the need to demonstrate that the rights to be preserved may exist— not that they do exist—was already implicit in the Court’s case law. Hence, judge Sepúlveda-Amor’s contention that the order of 8 March 2011 “should not be read as introducing a new requirement under Article 41 of the Statute, or interpreted as signalling a departure from the Court’s jurisprudence on provisional measures” but rather “it should be understood as an attempt on the part of the Court to “name” or “label” a requirement already implicit in the Court’s case law” (Order of 8 March 2011, Separate Opinion of Judge SepúlvedaAmor, ICJ Rep. 2011, p. 38, para. 16). This is also the gist of judge Greenwood’s conclusion that in this case the Court adopted a test of “reasonable possibility” with regard to the problem described above and that in doing that “it was not adding a new requirement but simply spelling out the implications of the general principle that provisional measures exist to protect rights which might be adjudged to belong to one of the parties.” (Declaration of Judge Greenwood, ibid., pp. 47–48, para. 5). The British member of the Court, putting on record that he agrees with what was stated by judge Abraham in the Pulp Mills case, went on to state: Since provisional measures are ordered for the purpose of protecting rights which might subsequently be adjudged to belong to one of the parties, it follows that it cannot be sufficient for a party simply to assert that it has a right; it must have some prospect of success. The question is how strong a prospect is required. Clearly it is not necessary for the party concerned to show that it will succeed on the merits. To require it to go that far would convert proceedings on provisional measures into a form of summary trial of the merits (. . .). On the other hand, mere assertion that such a right exists cannot be sufficient, since if that assertion is manifestly unfounded, it cannot be said that the right is one which might subsequently be adjudged to belong to the party making the assertion. What is required is something more than assertion but less than proof; in other

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words, the party must show that there is at least a reasonable possibility that the right which it claims exists as a matter of law and will be adjudged to apply to that party’s case. (Activities in the Border Area, Provisional Measures Declaration of Judge Greenwood, ICJ Rep. 2011, p. 47, para. 4)

For his part, judge ad hoc Dugard referred to the same problem in the following terms: The “plausibility test” is a new feature of the Court’s jurisprudence on provisional measures and owes its origin to the case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), (. . .). Prior to this decision the Court refrained from adopting a clear position on this subject as it was unwilling to do anything that might appear to prejudge the merits. (. . .) Nevertheless, a number of decisions of the Court indicate its support for the view that the applicant State was required to show that it had some prospect of success on the merits of the case or that it had established the existence of the right it sought to have protected on a prima facie basis. In general, it seems that the Court preferred to give implicit rather than express approval to the need for the applicant State to establish the prima facie existence of the right that it sought to protect. In practice it is impossible for the Court to avoid some consideration of the merits in a request for provisional measures. It is insufficient for the applicant State merely to assert its right. It must, in addition, show, on a prima facie basis, that this right exists or that it is, in the new language of the Court, a “plausible right”. Inevitably this requires some consideration of the merits of the case. (Activities in the Border Area, Provisional Measures, Separate Opinion of Judge ad hoc Dugard, ICJ Rep. 2011, pp. 61–62, paras. 2–3)

As for judge Koroma, he criticized heads on the apparent adoption by the Court of what he calls the “plausibility standard,” which not only “seems to have appeared out of nowhere,”96 but would also appear inconsistent with 96 

With respect, this charge appears to be largely unmerited: every time that the Court introduces a new concept in its jurisprudence it can be said that this concept comes “out of nowhere,” and the field of provisional measures furnishes several outstanding examples. See for instance Kosovo (Yugoslavia v. Belgium), Provisional Measures, Separate Opinion of Judge Higgins, ICJ Rep. 1999, p. 164, para. 11.

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the settled jurisprudence of the Court (Separate Opinion of Judge Koroma, ICJ Rep. 2011, pp. 30–31, para. 6). He expressed two concerns with regard to the plausibility standard: its vagueness and ambiguity and the fact that it is unclear whether the standard applies to legal rights, factual claims, or both (Ibid., pp. 31–32, paras. 7–12). However, judge Koroma also acknowledged that the Court has on occasion informally evaluated the legitimacy of a party’s claim when deciding to indicate provisional measures, because very often its analysis of jurisdictional questions or irreparable prejudice also confirms the credibility of a party’s claims (ibid., para. 15). Another theme that features prominently in the individual statements of these judges is that the terminology chosen by the Court may not have been the happiest. In particular, the fact that the term “plausible” has several meanings in the English language was invoked by judges Koroma and SepúlvedaAmor in order to substantiate their contention that the concept to which it refers is “vague,” “ambiguous,” or even “indeterminate.” (Separate Opinion of Judge Koroma, ICJ Rep. 2011, pp. 30–31, paras. 7–8; Separate Opinion of Judge Sepúveda-Amor, ibid., p. 38, para. 14).97 Judges Koroma and Dugard also made the important point that in the English language the word “plausible” has a secondary meaning possessing a clearly negative connotation, as it can be used to refer to a claim that basically sounds truthful but is in reality deceitful, “only partially true, or completely false” or to an argument that is “specious or intended to deceive.” (Separate Opinion of Judge Koroma, ibid., p. 31, para. 7; Separate Opinion of Judge ad hoc Dugard, ibid., pp. 62–63, para. 5). The situation is different in the French language and it must not be forgotten that when the Court used the term for the first time (in its order on provisional measures in the Obligation to Prosecute or Extradite case) the French text was authoritative (Separate Opinion of Judge Koroma, ibid., pp. 31–32, para. 9).

The individual statements appended to the Court’s order in Activities in the Border Area highlight the fact that with its embracing of the plausibility criteria the Court was apparently not really introducing a new element into its case law concerning the application and interpretation of Article 41 of the Statute but was rather giving a clearer formulation to a condition that was

97 

See also the statement by judge Greenwood, asserting that the Court might equally have chosen “arguable,” which is the term more widely used in common law jurisdictions (Declaration of Judge Greenwood, ICJ Rep. 2011, pp. 47–48, para. 5).

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already present, albeit in an implicit form. The fact that in the past the Court never found occasion to refer to this condition in explicit terms may have a simple explanation in the ever present—and understandable—desire on the part of the Court to avoid being dragged into a discussion of the merits during incidental proceedings on provisional measures, which normally (but not always) takes place at a very early stage in the litigation.98 It must be remembered in this regard that one criterion that has always occupied an important place in the regime of provisional measures is the fact that a request for the indication of provisional measures cannot and should not be used to obtain an interim judgment, a question that was discussed in point b) above. This is also the rationale behind Practice Direction XI and its apparently firm instruction to the parties to limit their pleadings in incidental proceedings concerning this question “to what is relevant to the criteria for the indication of provisional measures” and not to enter into the merits of the case “beyond what is strictly necessary for that purpose”.99 Fortunately, the language of this direction is flexible enough to accommodate a development like that of the need to show the plausibility of rights. In any case, its adoption by the Court, as recently as 2004, may be taken as an indication that there will always be a certain tension between the need for the requesting State to state its case on the plausibility of its rights and the need for parties and Court alike to prevent prematurely entering into the merits of the case. In this context, judge Sepúlveda-Amor has issued the following warning: I fear that the imprecision surrounding the “plausibility requirement” and the unwarranted emphasis placed upon that in this Order might ultimately encourage States seeking interim protection to over-address the substance of the dispute at an early stage and, as a result, overburden proceedings under Article 41 of the Statute with matters that should actually be dealt with by the Court when adjudicating on the merits. (Activities in the Border Area, Provisional Measures Separate Opinion of Judge Sepúlveda-Amor, ICJ Rep. 2011, p. 38, para. 15)

One important element that must be factored in when evaluating the fact that the Court appears to have adopted a new attitude towards what in essence is an old problem is that since its decision in the LaGrand case it is clear that orders on provisional measures under Article 41 have binding effects for the 98  On this see Activities in the Border Area, Provisional Measures, Separate Opinion of Judge ad hoc Dugard, ICJ Rep. 2011, p. 61, para. 2. 99  ICJ Press Release 2004/30, 30 July 2004. See also ICJ Yearbook (2004–2005), p. 8.

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States concerned. Evidently, any binding decision by the Court enjoining a State to behave in certain manner, albeit provisionally, entails a restriction on that State’s freedom to act and on the sacrosanct principle of sovereignty.100 As judge ad hoc Dugard put it, “[i]t would be unjust to subject a respondent State to a legally binding order for provisional measures if the applicant State had merely asserted a right, without showing on a prima facie basis that it had some prospect of succeeding on the merits”.101 In the same direction, and in even stronger terms, judge Abraham had stated as follows in the Pulp Mills case: Where a mere suggestion is being made to a State, there is hardly any need to ensure that it is not liable to trespass upon the sovereign rights of the State: the recipient of the recommendation is free to act upon it as it deems appropriate and, in determining its response, can factor in its assessment of the strength of its position and the importance of the interests at stake. (. . .) With the Judgment of 27 June 2001, that ceased to be the case. It is now clear that the Court does not suggest: it orders. Yet, and this is the crucial point, it cannot order a State to conduct itself in a certain way simply because another State claims that such conduct is necessary to preserve its own rights, unless the Court has carried out some minimum review to determine whether the rights thus claimed actually exist and whether they are in danger of being violated—and irreparably so—in the absence of the provisional measures the Court has been asked to prescribe: thus, unless the Court has given some thought to the merits of the case. (Pulp Mills, Provisional Measures I, Separate Opinion of Judge Abraham, ICJ Rep. 2006, pp. 139–140, para. 8)

It may be concluded that with its more recent decisions concerning provisional measures the Court may be sending to States a clear and loud signal that it will not entertain requests made under Article 41 of the Statute lightly and that it will refrain from using its powers under that provision unless it is satisfied that the requesting State has at least a plausible case on the merits.102 100  Kosovo (Yugoslavia v. Belgium), Provisional Measures, Separate Opinion of Judge Higgins, ICJ Rep. 1999, p. 165, para. 14 and p. 169, para. 29. 101  Activities in the Border Area, Provisional Measures, Separate Opinion of Judge ad hoc Dugard, ICJ Rep. 2011, p. 62, para. 4. See also ibid., Separate Opinion of Judge Koroma, p. 31, para. 8. 102  But see the opposite view of judge Koroma, for whom the terminology used by the Court may give the opposite impression that the threshold for the indication of provisional

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Contents of the request for provisional measures: From indicating “the rights to be protected” to specifying “the possible consequences if it is not granted”

Now that the Court has stated that before indicating provisional measures it must satisfy itself at this stage of the proceedings that the rights asserted by a party are at least plausible, it would appear important that a request made under Article 41 should take care to identify from the outset what those rights are. However, the relevant provision in the Rules in force (Article 73, para. 2) is silent in this regard. It simply indicates that a request of this type must specify “the reasons therefor, the possible consequences if it is not granted, and the measures requested.” This formulation was adopted in the 1978 reform of the Rules in order to replace what was then Article 66, para. 1 of the 1972 version. That provision— following the wording of the corresponding provision in the 1946 Rules and the 1936 Rules of the PCIJ—was certainly more explicit in this regard, as it required that a request for provisional measures indicate “the rights to be protected.” While it was in force, it was understood that this provision was aimed at facilitating the identification of the issues at stake when a request for provisional measures was made and at preventing the formulation of unjustified requests.103 Commenting upon this change, an author has indicated that .

This amendment seems to be the consequence of the fact that formalistic definitions are not always helpful and that the Court has to assess the indication of provisional measures from the point of view of the substance of the dispute as a whole.”104 With the new doctrine of the Court regarding the conditions for the indication of provisional measures, however, one may wonder whether the previous formulation in the Rules was not clearer in this regard.

measures has been lowered (Activities in the Border Area, Provisional Measures, Separate Opinion of Judge Koroma, ICJ Rep. 2011, p. 31, para. 7). 103  Guyomar’s Commentaire, p. 470. 104  Oellers-Frahm, “Article 41”, MN 38, p. 939. See also H. Sakai, “New Developments of the Orders on Provisional Measures by the International Court of Justice”, Japanese YIL, vol. 52 (2009), pp. 246–247.

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Third Condition: Risk of Irreparable Prejudice According to Article 41, the purpose of provisional measures is the preservation of the rights that are the subject of the dispute, i.e. the rights that may be subsequently adjudged. As it is clear from the passages reproduced above, for the Court this means that the measures must be directed at preventing irreparable prejudice that may be caused to those rights. This condition is often (inaccurately) referred to as “irreparable prejudice.” On this, it is useful to recall a comment by a former member of the Court to the effect that “[t]he test here is not one of “irreparable prejudice” or “irreparable harm” but the possibility or the risk of such irreparable harm or prejudice.”105 It is also interesting to observe that the notion of “risk of irreparable prejudice” is not present either in the Statute or in the Rules of Court and has therefore an entirely jurisprudential foundation.106 The Court has determined that in order to justify recourse to Article 41 it is insufficient to demonstrate that there is a mere possibility of a prejudice to the rights in issue:107 the party requesting the indication of provisional measures must show, to the Court’s satisfaction, that “there is an imminent risk of irreparable prejudice” to the rights that it is claiming to possess.108 In any event, what needs to be shown is still merely a risk and therefore it does not need to be an inevitable fact: the threat of irreparable prejudice must be “likely,” and does not need to be “certain,” “established” or “beyond doubt.”109 As judge ad hoc De Cara put it: As illustrated by the jurisprudence, in assessing the risk of irreparable prejudice, the Court may be led to consider both the probability and the potential consequences of the occurrence of a fact or event. A future event does not have to be a certainty; it only needs to be probable. (Criminal Proceedings, Provisional Measures Dissenting Opinion of Judge ad hoc De Cara, ICJ Rep. 2003, p. 124)

105  Lockerbie (Libya v. United States), Provisional Measures, Dissenting Opinion of Judge Ajibola, ICJ Rep. 1992, p. 189. See also the dissenting opinion of judge ad hoc Thierry in the Arbitral Award (Guinea-Bissau v. Senegal) case (Provisional Measures, ICJ Rep. 1989, p. 82). 106  As registered by judge Evensen in the Arbitral Award (Guinea-Bissau v. Senegal) case (Provisional Measures, Separate Opinion of Judge Evensen, ICJ Rep. 1990, p. 72). 107  Aegean Sea Continental Shelf, Interim Protection, Order of 11 Sept. 1976, ICJ Rep. 1976, p. 11, para. 32. 108  Pulp Mills, Provisional Measures II, Order of 23 Jan. 2007, ICJ Reports 2007, p. 16, para. 50. 109  Prager’s Procedural Developments, LPICT, vol. 2 (2003), p. 341.

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On the other hand, the prejudice that the measures to be indicated seek to prevent must be truly irreparable, which means that if the damage alleged by the requesting party is “[c]apable of reparation by appropriate means” in the event of a favorable judgment on the merits, the Court will not grant the provisional measures requested.111 It has been suggested that this dictum embodies an unduly narrow interpretation of the notion of “irreparable prejudice” which, if applied generally, “would have the effect of restricting” the scope of interim protection very severely.”112 While it may be true that in certain decisions on provisional measures the Court appeared to embrace a liberal view of this notion,113 in the Pulp Mills case the Court apparently returned to the Aegean Sea Continental Shelf approach and referred in general terms to violations that “[w]ould not be capable of being remedied at the merits stage of the proceedings.”114 Closely related to this, the Permanent Court came close to a definition of “irreparable prejudice” when it stated that an infraction of certain rights recognized in a treaty would be irreparable if it “[c]ould not be made good simply by the payment of an indemnity or by compensation or restitution in some other material form.”115 The Court was referring here to the rights that the nationals of one country enjoyed in the territory of another by virtue of a treaty whose validity and continuance in force was in question, and it considered that in these circumstances they were indeed rights whose preservation demanded the indication of provisional measures. It has been contended that the ICJ, far from endorsing such a narrow definition of irreparable damage—referred to as the criterion of “absolute irreparability in law”—has instead preferred to enlarge the margin of appreciation it enjoys to determine, in light of the circumstances of each case, whether there is such a risk of an irreparable prejudice.116 Under this conception, it is clear that the prejudice must be assessed 111  Aegean Sea Continental Shelf, Interim Protection, Order of 11 Sept. 1976, ICJ Rep. 1976, p. 11, para. 33. In this case the Court rejected the request for provisional measures essentially because it found that the alleged breach by Turkey of rights claimed by Greece over its continental shelf was capable of reparation. For a strong criticism of this solution see T.O. Elias, “Methodological Problems . . .”, p. 142. 112  Merrills, “Interim Measures . . .”, p. 108. 113  In particular in the Burkina Faso/Mali, Nicaragua, Lockerbie, Arbitral Award (GuineaBissau v. Senegal) and Genocide Convention (Bosnia) cases (ibid., pp. 108–110). 114  Pulp Mills, Provisional Measures I, Order of 13 July 2006, ICJ Rep. 2006, p. 131, paras. 70–71. 115  Sino-Belgian Treaty, Order of 8 Jan. 1927, PCIJ A 8, p. 7. 116  Oellers-Frahm, “Article 41”, MN 39–42, pp. 1045–1047. See also the dissenting opinion of judge ad hoc De Cara in the Criminal Proceedings case (Provisional Measure, ICJ Rep. 2003, pp. 127 ff). A good example of a situation that almost by definition would entail a risk

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on the basis that the rights in question can be irreparable not only in law but also in fact.117 Fourth Condition: Urgency Notwithstanding the silence of the Statute, the jurisprudence of the ICJ makes it clear that urgency is very likely the most fundamental requirement, a true sine qua non, for the indication of provisional measures. There can be a risk for an irreparable damage, but if it is not imminent the Court will not accede to a request to indicate interim measures of protection.118 Urgency has both a substantive and a procedural aspect. As one of the substantive conditions for the indication of provisional measures, urgency is directly linked to both the concept of irreparable prejudice and the life-span of the proceedings, because measures of temporary relief are justified only if there is a real risk that some action taken by a party at any time prior to the decision of the case might prejudice the rights that the other party may be found to possess according to that very decision. The indication of provisional measures in order to prevent such a prejudice then becomes urgent, as soon as there are indications that the prejudice is likely to materialize and this situation may obtain at any point in time, for as long as the case remains before the Court.119 This position was articulated by the Court in so many words in the Passage through the Great Belt case, in which it stated: [p]rovisional measures under Article 41 of the Statute are indicated ‘pending the final decision’ of the Court on the merits of the case, and are therefore only justified if there is urgency in the sense that action prejudicial to the rights of either party is likely to be taken before such final decision is given. (Passage through the Great Belt, Provisional Measures, Order of 29 July 1991, ICJ Rep. 1991, p. 17, para. 23)120

of irreparable damage is one in which the death or injury to persons as a direct result of action or inaction by a State are involved (US Hostages, Provisional Measures, Order of 15 Dec. 1979, ICJ Rep. 1979, p. 20, para. 42; Cameroon v. Nigeria, Provisional Measures, Order of 15 March 1996, ICJ Rep. 1996, p. 23, para. 42; Armed Activities (DRC v. Uganda), Provisional Measures, Order of 1 July 2000, ICJ Rep. 2000, pp. 127–128, paras. 40–43). 117  South Eastern Greenland, Interim Measures, Order of 3 August 1932, PCIJ A/B 48, p. 284. 118  The expression used by the Court in the Pulp Mills (Provisional Measures I) case was “imminent threat of irreparable damage” (Order of 13 July 2006, ICJ Rep. 2006, p. 132, para. 73). 119  Prager’s Procedural Developments, LPICT, vol. 2 (2003), p. 341. 120  Reproduced in Avena (Provisional Measures, Order of 5 Feb. 2003, ICJ Rep. 2003, p. 90, para. 50) and CERD (Provisional Measures, Order of 15 Oct. 2008, ICJ Rep. 2008, p. 392,

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Another justification for the requirement of urgency refers to the duration of international judicial proceedings and finds its expression in a legitimate concern by the requesting party to the effect that if no action is taken immediately, those of its rights that are threatened by the risk of irreparable prejudice will not be susceptible of remedy at a subsequent stage of the proceedings. As Lauterpacht observed: [f]rom the point of view of the plaintiff State, an Order “indicating” interim measures may be of such urgency that to postpone it until the Court has finally decided, in proceedings which may take a long time, upon the question of its jurisdiction on the merits may well render the remedy illusory as the result of the destruction of the object of the dispute or for other reasons.121 From the procedural point of view, in the Pakistani POW case the Court admitted that “[i]t is of the essence of a request for interim measures of protection that it asks for a decision by the Court as a matter of urgency, as it is expressly recognized by the Court in Article 66, paragraph 2, of the Rules of Court [currently Article 74].”122 In this case, shortly after the hearings on provisional measures the requesting State, Pakistan, asked the Court to postpone further consideration of the request in order to facilitate negotiations then pending between the parties. The Court interpreted this as meaning that “[t]he Court no longer has before it a request for interim measures which is to be treated as a matter of urgency” and on that basis treated the action by Pakistan as an effective withdrawal of the request.123 Article 74 of the Rules refers twice to the element of urgency, thus underlining its importance: on the one hand, by laying down in paragraph 1 that “a request for the indication of provisional measures shall have priority over all other cases” and on the other by ordering that the Court is to be convened forthwith “for the purpose of proceeding to a decision on the request as a para. 129) and reaffirmed, with a slightly different wording, in Obligation to Prosecute or Extradite (Provisional Measures, Order of 29 May 2009, ICJ Rep. 2009, p. 152, para. 62). In other cases the Court has said, more succinctly, that provisional measures “[a]re justified solely if there is urgency” (Criminal Proceedings, Provisional Measures, Order of 17 June 2003, ICJ Rep. 2003, p. 107, para. 22). 121  H. Lauterpacht, The Development of International Law by the International Court (1958), pp. 110–111. 122  Pakistani POW, Interim Protection, Order of 13 July 1973, ICJ Rep. 1973, p. 330, para. 13. 123  Ibid., para. 14. This was the subject of criticism by judge Petren (Dissenting Opinion of Judge Petren, ICJ Rep. 1973, p. 336.

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matter of urgency.”124 In addition, Article 54, para. 2 of the Rules, dealing with the organization of oral proceedings in ordinary cases, also mentions “the priority required by Article 74.” Also related to the concept of urgency are the powers granted to the President, if the Court is not sitting, to fix the date for the hearing and the fact that proceedings on provisional measures are the only type of incidental proceedings in which no exchange of written pleadings is required by the Rules. The requirement of urgency also makes it highly unlikely that once the date of the hearing has been fixed the Court will accede to a request by one of the parties to have it postponed.125 d)

Modalities of Measures

The following modalities of provisional measures can be found in the Rules and practice of Court: – – – – – –

Urgent appeals by the President; Measures indicated by the Court proprio motu; Measures other than those requested; Fresh measures; Revocation or modification of measures already indicated “Quasi-provisional measures”

Urgent Appeals by the President (“Pre-provisional Measures”) In the interval between the deposit of a request for provisional measures and the convening of the Court to hear the parties, paragraph 4 of Article 74 of the Rules authorizes the President to address to them what might be termed an “urgent appeal.” This is designed to avoid action that may make devoid of purpose any provisional measures that may be indicated at a later stage, or what Hudson aptly called “[m]easures to prevent the Court from being confronted with a fait accompli due to action by a party.”126 Under that provision, the President, at his or her discretion, “[m]ay call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects.” This careful language suggests that all 124  Emphasis added. 125  For an example see Genocide Convention (Bosnia), Provisional Measures I, Order of 8 April 1993, ICJ Rep. 1993, p. 9, para. 7. 126  Hudson’s PCIJ, p. 291.

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that the President is entitled to do at this stage is to address a (non-binding) recommendation to the parties.127 The 1972 version of the Rules granted more extensive powers to the President in this regard, as it empowered him to “take such measures as may appear to him necessary in order to enable the Court to give an effective decision” (Article 66, para. 3). Even more radically, Article 57 of the 1922 Rules gave the President the power to indicate provisional measures himself, in clear departure from the terms of Article 41 of the Statute.128 This was corrected in the 1931 reform, when it was concluded that the previous rule “laid too great a responsibility” on the President.129 In 1936 the current system was adopted, largely on the basis of the practice of the President (Adatci) in the Prince von Pleiss case.130 For a long time, the President of the Court revealed a marked reluctance to exercise these powers, but since the early nineties this trend appears to have been reversed.131 More recent cases in which this provision has been applied include Genocide Convention (Bosnia),132 Vienna Convention,133 LaGrand  134 Armed Activities (DRC v. Uganda135 and CERD.136 The situation presented in the Nuclear Tests (Request for Examination) litigation is interesting in this regard. As is well known, in August 1995 New Zealand introduced proceedings against France with the argument that certain actions proposed by the latter would affect what it called “the basis” of the 1974 judgment in the Nuclear Tests cases. Consistent with its position that 127  Guyomar’s Commentaire, p. 484. On recommendations made by the Court itself see Box # 11-10. 128  This power was exercised by the President (Huber) in the Sino-Belgian Treaty case (Order of 8 Jan. 1927, PCIJ A 8, p. 6). 129  PCIJ E 7, p. 293. For details see Guyomar’s Commentaire, pp. 472–477. 130  PCIJ D 2, Add. 3, p. 827; Hudson’s PCIJ, p. 291. For details of the discussion see E. Dumbauld, “Relief Pendente Lite in the Permanent Court of International Justice”, AJIL, vol. 39 (1945), pp. 402–403. For a call to the return to the old system see Sorel & Poirat, “Les procédures incidents . . .”, pp. 40, 43. 131  An appeal of this kind was made to the Government of Iran in the Anglo-Iranian Oil Co. case, the first in which the present Court had to address the indication of provisional measures (Order of July 5, 1951, ICJ Rep. 1951, p. 91). This power was not used again until the US Hostages (Order of 15 Dec. 1979, ICJ Rep. 1979, p. 10, para. 6). 132  Genocide Convention, (Bosnia), Provisional Measures II, Order of 13 Sept. 1993, ICJ Rep. 1993, pp. 333–334, para. 10. 133  Vienna Convention, Provisional Measures, Order of 9 April 1998, ICJ Rep. 1998, p. 252, para. 12. 134  LaGrand, Provisional Measures, Order of 3 March 1999, ICJ Rep. 1999, p. 13, para. 11. 135  Armed Activities (DRC v. Uganda), Provisional Measures, Order of 1 July 2000, ICJ Rep. 2000, p. 116, para. 15. 136  CERD, Provisional Measures, Order of 15 Oct. 2008, ICJ Rep. 2008, p. 364, para. 37.

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the new proceedings were merely an extension or prolongation of that old case (in which the Court had indicated certain provisional measures), New Zealand filed a “Further Request” for the indication of provisional measures and demanded, on two different occasions, that the President of the Court should exercise his powers under the predecessor of Article 74, para. 4 of the current Rules, i.e., Article 66, para. 3 of the 1972 Rules, which it deemed to be the applicable provision. The Court organized interlocutory proceedings focused exclusively on determining whether it had a case before it and eventually came to the conclusion that this was not the situation and that New Zealand’s request should be dismissed. The order refers to the President’s powers in the following terms: [a]t the opening of the public sitting of 11 September 1995 (afternoon) . . . the President of the Court announced that, on 6 September 1995, he had received a letter from the Prime Minister of New Zealand in which the latter, referring to the nuclear test carried out the previous day at Mururoa by the French Government, reiterated the Requests already made by the New Zealand Government that the President should use the powers conferred upon him by Article 66, paragraph 3, of the 1972 Rules of Court; (. . .) the President stated that he had been fully aware of the import of those Requests, to which he had given his full attention, but that the powers conferred upon him by the above-mentioned provision of the 1972 Rules of Court, as well as by Article 74, paragraph 4, of the Rules now in force, expressly applied to incidental proceedings for the indication of provisional measures, and that it would therefore have been difficult for him to accede to those Requests without necessarily prejudging the issues submitted to the Court; (Nuclear Tests, Request for Examination Order of 22 Sept. 1995, ICJ Rep. 1995, p. 296, para. 29)

It is therefore clear that the powers of the President under Article 74, para. 4 can only be exercised if incidental proceedings on provisional measures are already formally opened.137 In other words, the President cannot make use of those powers if the Court is not actively seised of a case in which a request under Article 41 has been received. On the other hand, the intimation to the parties provided for in Article 74, para. 4 of the Rules can be made orally by the President—for instance during 137  This is also the situation under paragraphs 2 and 5 of Article 38 of the Rules (Rosenne’s Procedure, p. 151).

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the first meeting with the agents of the parties—in which case it will later be confirmed in writing.138 Measures Indicated by the Court proprio motu Taking into account that Article 41 of the Statute does not, on its face, require that a party to a case makes a request for provisional measures, Article 75, para. 1 of the Rules establishes that the Court “may at any time decide to examine proprio motu (“d’office”) whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all of the parties.”139 While authority for this power exists since the epoch of the Permanent Court—it was asserted for the first time in the South-Eastern Greenland case—140 it has never been used.141 A provision to this effect made its appearance in the Rules in 1936 (Article 61, para. 6), although it had a distant forerunner in Article 57, para. 2 of the 1931 Rules. Strictly speaking, proprio motu action entails action taken by the Court when no request for provisional measures has been filed by any of the parties to the case.142 In a recent instance, for example, a party filing is first pleading on the merits requested the Court to give application to Article 75 and to examine “proprio motu whether the circumstances of the case require[d] the indication of provisional measures.” The Court declined.143 In a more generic sense, it can be said that when the Court indicates measures other than those requested by the parties (as expressly empowered by Article 75, para. 2 of the Rules) it is also acting proprio motu.144 Notably, Article 75, para. 1 of the Rules is silent as to the procedure to follow and does not contain the requirement of a hearing, as Article 74, para. 3 does with respect to cases of which the Court is seised at the request of a party. Of note is also the fact that the opening sentence of paragraph 2 of the same Article 75 refers to

138  For an example see ICJ Yearbook (1983–1984), p. 144. 139  According to the PCIJ, this is one of the main differences between an order on provisional measures and a judgment, because the latter could never be issued by the Court acting proprio motu (PCIJ, Series E, No. 9, p. 171). 140  South-Eastern Greenland, Interim Protection, Order of 3 August 1932, PCIJ A/B 48, p. 284. 141  Guyomar’s Commentaire, p. 487. 142  This appears to have been the understanding of the Court, as voiced in the Genocide Convention (Bosnia) case (CR 93/33, Sitting of 25 Aug. 1993, p. 8). 143  Activities in the Border Area (Costa Rica v. Nicaragua); Construction of a Road (Nicaragua v. Costa Rica), Provisional Measures, Request for Modification, Order of 16 July 2013, para. 7. 144  Merrills, “Interim measures . . .”, p. 143.

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the situation that obtains “[w]hen a request for provisional measures has been made . . .” For this reason, it is submitted that paragraph 1 would only be applicable in a situation in which such a request has not been made.145 Notwithstanding the above, Article 75, para. 1 was invoked and applied in the LaGrand case, in which the Court had before it a formal request for the indication of provisional measures regularly made by the applicant. It would appear that the Court invoked its exceptional power under Article 75 not so much to indicate provisional measures of its own, but rather to justify in some manner the exceptional procedure followed in circumstances of extreme urgency, and in particular its decision not to hold the hearing ordered by Article 74, para. 3. The relevant passage of the order reads: (. . .) under Article 75, paragraph 1, of the Rules of Court, the latter “may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all of the parties”; . . . a provision of this kind has substantially featured in the Rules of Court since 1936, and . . ., if the Court has not, to date, made use of the power conferred upon it by this provision, the latter appears nonetheless to be clearly established; . . . the Court may make use of this power, irrespective of whether or not it has been seised by the parties of a request for the indication of provisional measures; . . . in such a case it may, in the event of extreme urgency, proceed without holding oral hearings; and . . . it is for the Court to decide in each case if, in the light of the particular circumstances of the case, it should make use of the said power. (LaGrand, Provisional Measures, Order of 3 March 1999, ICJ Rep. 1999, p. 14, para. 21)

This procedure was subject to heavy criticism by some judges, as it will be examined below, when the procedural aspects of proceedings on provisional measures are discussed.146 Measures Other than Those Requested Under Article 75, para. 2 of the Rules the Court is empowered to “indicate measures that are in whole or in part other than those requested” and it can also indicate measures “that ought to be taken or complied with” by the requesting party. This can be done at the request of the party named as respondent, in which case this would not be interpreted as an implicit acceptance of 145  Oellers-Frahm, “Article 41”, MN 56–57, pp. 1052–1053. 146  See below, text to notes 189 and ff.

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jurisdiction—not even prima facie jurisdiction—over the merits of the case.147 In fact, a State preparing to file a request for the indication of provisional measures should be made aware that by doing so it may provoke an analogous request by the other party to the litigation, in the same way as initiating a litigation can provoke the State named as respondent into filing a counter-claim.148 The first part of this rule appears to authorize a departure from the non ultra petita rule.149 The second part is frequently applied—a circumstance noted by the Court in a recent decision—150 and more often than not at least one of the measures adopted by the Court is addressed to both parties. In the CERD case the Court applied both parts of this Rule, for on the one hand it did not find that, “in the circumstances of the case, the measures to be indicated are to be identical to those requested by [the applicant];” and, on the other, it “consider[ed] it appropriate to indicate measures addressed to both Parties.”151 Fresh Measures This expression refers to two different situations. In the first place, it means that after the Court has rejected a request for provisional measures, the requesting party can make a new request in the same case, on the condition that it is “based on new facts” (Rules, Article 75, para. 3). It may be noted in passing that the opposite party also has an equivalent right, because under Article 73, para. 1 it may submit a request on its own “at any time during the course of the proceedings in the case in connection with which the request is made.” The second situation refers to the somewhat different scenario in which the Court has issued an order indicating provisional measures and for some reason one or both of the parties in the case are not entirely satisfied with them and make a further request for additional measures. Although strictly speaking this situation is not really covered by Article 75, para. 3 of the Rules, the Court

147  Genocide Convention (Bosnia), Provisional Measures II, Order of 13 Sep. 1993, ICJ Rep. 1993, pp. 341–342, para. 34; ibid., Preliminary Objections, Judgment of 11 July 1996, ICJ Rep. 1996, pp. 620–621, para. 40. See also Rosenne’s Provisional Measures, p. 73. 148  Merrills, “Interim Measures . . .”, p. 141. 149  Mani’s Adjudication, pp. 291 and 297–298; R. Kolb,“General Principles of Procedural Law”, in Oxford Commentary, MN 43, p. 899; Brown, “A Common Law . . .”, pp. 150–151. 150  Request for Interpretation-Temple of Preah Vihear, Provisional Measures, Order of 18 July 2011, ICJ Rep. 2011, p. 551, para. 58. 151  CERD, Provisional Measures, Order of 15 Oct. 2008, ICJ Rep. 2008, p. 397, para. 146). For the relevance of this provision with regard to the question of counter-claims in provisional measures proceedings see Chapter 13, b).

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has stated that in cases like these the requirement of showing the existence of “new facts” is also applicable.152 In the Genocide Convention (Bosnia), Provisional Measures II decision, the Court found that the situation demanded, not an indication of further provisional measures but rather the “[i]mmediate and effective implementation” of the measures already indicated by it.153 A similar case is that of a State party that feels that the other party has failed to comply with an order indicating provisional measures and as a reaction to this submits a request for further measures. This happened in the Nicaragua case, at a time when the Court was dealing with the questions of jurisdiction and admissibility, and the President informed the applicant that the second request should await the outcome of the proceedings on jurisdiction that were then pending. After the Court upheld jurisdiction and moved on to the merits of the case, Nicaragua did not revert to this question, a fact noted by the Court in the final decision on the merits. Interestingly, what the Court did in this decision was to “re-emphasize,” in the light of its findings on the merits, what it had indicated in its order on provisional measures.154 Revocation or Modification of Measures Already Indicated At any time before the final decision in the case, any party may request the Court to “revoke or modify any decision concerning provisional measures” that it has taken, provided that in its opinion “some change in the situation justifies such revocation or modification” (Article 76, para. 1). Paragraph 2 of this article requires that any such request (referred to as “application”) “shall specify the change in the situation considered to be relevant” and paragraph 3 orders that before making any decision on it the Court shall take into account the observations of both parties—presumably in writing—on the subject. This provision was adopted in the 1978 Rules, with the purported intention of generalizing the jurisprudence in the Fisheries Jurisdiction cases.155 In these cases, the initial order indicating a provisional measure, issued on 17 August 1972, contained in the dispositif a clause providing that: “[u]nless the Court has meanwhile delivered its final judgment in the case, it shall, at an appropriate time 152  Genocide Convention (Bosnia), Provisional Measures II, Order of 13 Sept. 1993, ICJ Rep. 1993, p. 337, para. 22. 153  Ibid., p. 349, para. 59. Interestingly, the request was based on articles 73, 74 and 75 of the Rules. The Court mentioned these provisions as authority but added Article 76 of the Rules. 154  Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 144, paras. 287–289. 155  Rosenne’s Procedure, p. 155.

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before 15 August 1973, review the matter at the request of either Party in order to decide whether the foregoing measures shall continue or need to be modified or revoked”.156 On 12 July 1973, acting upon separate requests of the two applicants, the Court made a new order confirming that the provisional measures indicated in its 1972 order “[s]hould, subject to the power of revocation or modification conferred on the Court by paragraph 7 of Article 61 of the 1946 Rules, remain operative until the Court has given final judgment in the case.”157 Article 76 was invoked for the first time by both parties in two cases in which the proceedings had already been joined by the Court, in one of which provisional measures had been indicated, namely, Activities in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road (Nicaragua v. Costa Rica).158 After receiving written observations from both parties the Court found that the circumstances were not such as to require the exercise of its power to modify the measures already indicated and described as follows the two conditions set forth on Article 76, para. 1 of the Rules: The Court must . . . first ascertain whether, taking account of the facts now brought to its attention by each of the Parties, there is reason to conclude that the situation which warranted the indication of certain provisional measures in March 2011 has changed since that time. If that is so, then it will have to consider whether such a change justifies a modification by the Court, as sought by the Parties or otherwise, of the measures previously indicated. (Activities in the Border Area (Costa Rica v. Nicaragua) Construction of a Road (Nicaragua v. Costa Rica), Provisional Measures, Request for Modification, Order of 16 July 2013, para. 17)159

156  Fisheries Jurisdiction, Interim Protection I, Orders of 17 August. 1972, ICJ Rep. 1972, pp. 18, 35–36 (emphasis added). 157  Fisheries Jurisdiction, Interim Protection II, Orders of 12 July 1973, ICJ Rep. 1973, pp. 304, 315. The reference to the 1946 Rules was necessary because in the interim the Court had adopted the 1972 amendments to the Rules. Article 61, para. 7 of the 1946 Rules corresponds to Article 66, para. 7 of the 1972 Rules, which in turn became Article 76 of the 1978 Rules. 158  The order on provisional measures was made before the cases were joined and referred only to the Costa Rica v. Nicaragua case (Activities in the Border Area (Costa Rica v. Nicaragua, Provisional Measures, Order of 8 March 2001, ICJ Rep. 2011 (I), p. 6). 159  The Court also reaffirmed the measures already indicated, in particular certain nonaggravation measures (Activities in the Border Area (Costa Rica v. Nicaragua); Construction

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With regard to the second requirement, the Court added that a change in the situation relied on by the party seeking the modification of an order on provisional measures would justify the modification only “if the new situation were, in its turn, to require the indication of provisional measures, i.e., if the general conditions laid down in Article 41 of the Statute of the Court were also to be met in this instance.”160 It has been remarked that, since Article 76, para. 1 is now explicit in that the revocation or modification of decisions concerning measures already indicated requires a request by one of the parties, the Court would not be in a position to do that ex officio.161 However, as the Court retains its general power to act proprio motu under Article 75 and can do so “at any time,” it could certainly indicate new measures, replacing or annulling measures previously indicated.162 “Quasi-provisional Measures” (Recommendations) This term is loosely used to refer to situations in which the Court refrains from indicating provisional measures but finds nonetheless that it is appropriate for it to include in the relevant order an appeal addressed at the parties to the case, in which it reminds them of certain obligations they possess under international law.163 These calls can be equated to recommendations and a trend can be detected in the Court’s recent case law to include them in the body of orders in which requests for the indication of provisional measures are rejected.164 Perhaps the clearer example is the Armed Activities (DRC v. Uganda) II case, in which the Court found that it lacked prima facie jurisdiction and on that basis denied the request for provisional measures made by the applicant. In spite of this, the Court’s order recalls the duties of States to respond for of a Road (Nicaragua v. Costa Rica), Provisional Measures, Request for Modification, Order of 16 July 2013, para. 40 (2) (dispositif   ). 160  Ibid., para. 30. 161  As stated, this was introduced in the 1978 reform. The previous rule, contained in Article 66, para. 7 of the 1972 Rules and Article 61, para. 7 of the 1946 Rules, did not contain this requirement. Guyomar is of the opinion that the question was left open by the 1978 reform (Guyomar’s Commentaire, p. 492). 162  Oellers-Frahm, “Article 41”, MN 58, p. 946. 163  Prager’s Procedural Developments, LPICT, vol. 1 (2002), p. 620. 164  J. D’Aspremont, “The Recommendations Made by the International Court of Justice”, ICLQ, vol. 56 (2007) pp. 185–198; Merrills, “Interim Measures . . .”, pp. 133–137; Sakai, “Provisional Measures . . .”, pp. 270–277. For a more guarded view see H. Thirlway, “Recommendations Made by the International Court of Justice: A Skeptical View”, ICLQ, vol. 58 (2009), pp. 151–161.

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violations of international law and to fulfill their obligations under the UN Charter—mentioning in particular several decisions by the Security Council dealing with aspects of the situation before the Court—and includes the following exhortation in the reasoning part: [t]he Court wishes to stress the necessity for the Parties to these proceedings to use their influence to prevent the repeated grave violations of human rights and international humanitarian law which have been observed even recently. (Armed Activities (DRC v. Rwanda) II, Provisional Measures, Order of 10 July 2002, ICJ Rep. 2002, p. 250, para. 93)165

Likewise, in the joined Activities in the Border Area (Costa Rica v. Nicaragua) and Construction of A Road (Nicaragua v. Costa Rica) cases, the Court rejected parallel requests by both parties directed at modifying certain provisional measures already indicated but put on record that the situation invoked by one of the parties—the presence of organized groups of nationals of the other party in a disputed area “carries the risk of incidents which might aggravate the present dispute,” expressing also “its concerns” in this regard.166

Box # 11-10 Lack of jurisdiction to make recommendations? A strong objection can be made to the Court’s recent practice of including recommendations in its orders rejecting requests for provisional measures, especially in cases in which the reason for denying the request is that the Court lacks prima facie jurisdiction. Two points of principle are involved here: on the one hand, it does not appear to be a function of a court of law to issue mere exhortations to the parties; on the other, a court without jurisdiction in a given case—especially a consent-based court—should refrain itself from making any pronouncements whatsoever with regard to the subject-matter of that case. 165  In paragraphs 54–56 of the same order similar formulations were included. Other cases in which the Court has done the same, also in the context of proceedings on provisional measures, are the Kosovo litigations and Pulp Mills (D’Aspremont, “The Recommendations . . .”, p. 185). 166  Activities in the Border Area (Costa Rica v. Nicaragua); Construction of A Road (Nicaragua v. Costa Rica), Provisional Measures, Request for Modification, Order of 16 July 2013, para. 37. This was criticized by two members of the bench (ibid., Dissenting Opinion of Judge Cançado Trindade, paras. 58, 66, 68; Dissenting Opinion of Judge ad hoc Dugard, para. 14).

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These and other related aspects are eloquently developed in a declaration by judge Buergenthal appended to the Court’s order on provisional measures in the Armed Activities (DRC v. Rwanda) II case, in the following terms: 2. [referring to paragraphs 54–56 and 93 of the order] My objection to these paragraphs is not to the high-minded propositions they express. Instead, I consider that they deal with matters the Court has no jurisdiction to address once it has ruled that it lacks prima facie jurisdiction to issue the requested provisional measures. (. . .) 4. The Court’s function is to pronounce itself on matters within its jurisdiction and not to voice personal sentiments or to make comments, general or specific, which, despite their admittedly “feel-good” qualities, have no legitimate place in this Order. 5. Who, for example, would not be “deeply concerned by the deplorable human tragedy, loss of life, an enormous sufferings in the east of the Democratic Republic of the Congo resulting from the continued fighting there”? (Order, para. 54.) But the expression of this concern in a formal Order of the Court presupposes that the Court has the requisite jurisdiction to deal with that subject-matter. Having determined that it lacks that jurisdiction, it should not pronounce itself with regard to that subject-matter. 6. In paragraph 55, the Court declares that it “is mindful of the purposes and principles of the United Nations Charter and of its own responsibilities in the maintenance of peace and security under the Charter”. Of course, how could it be otherwise? But what is the point of this statement? Is it an apologia for the Court’s lack of jurisdiction to do what it would like to do in this case? If so, I wonder whether it is appropriate. But more importantly, the Court’s own “responsibilities in the maintenance of peace and security under the Charter” are not general. They are strictly limited to the exercise of its judicial functions in cases over which it has jurisdiction. In making the above statement, the Court is not performing these functions because of its lack of jurisdiction. The paragraph reads like a preamble to a resolution of the United Nations General Assembly or Security Council, where it would be entirely appropriate. It is not in this Order. 7. As for paragraph 56, the fact that this statement is even-handed in that it addresses both Parties to the case does not make it any more

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appropriate than it would be if it had been addressed to only one of them. It is inappropriate, first, because the Court has no jurisdiction in this case to call on the States to respect the Geneva Conventions or the other legal instruments and principles mentioned in the paragraph. Second, since the request for preliminary measures by the Democratic Republic of the Congo sought a cessation by Rwanda of activities that might be considered to be violations of the Geneva Conventions, the Court’s pronouncement in paragraph 56 can be deemed to lend some credence to this claim. 8. This latter conclusion is strengthened by the language of paragraph 93, which bears close resemblance to the language the Court would use if it had granted the provisional measures request. The fact that the paragraph is addressed to both Parties is irrelevant, for in comparable circumstances the Court has issued provisional measures formulated in similar language addressed to both Parties although they were requested by only one of them (. . .) besides, the Court lacks jurisdiction in this case to address this appeal to both Parties every bit as much as it would were it to address it to only one of them. 9. Whether intended or not, the Court’s pronouncements in the foregoing paragraphs, particularly in paragraphs 56 and 93, might be deemed to lend credence to the factual allegations submitted by the Party seeking the provisional measures. In the future, they might also encourage States to file provisional measures requests, knowing that, despite the fact that they would be unable to sustain the burden of demonstrating the requisite prima facie jurisdiction, they would obtain from the Court some pronouncements that could be interpreted as supporting their claim against the other Party. 10. The foregoing reasons lead me to conclude that it was not proper as a matter of law for the Court to include the above paragraphs in this Order. (Armed Activities (DRC v. Rwanda) II, Provisional Measures Declaration of Judge Buergenthal, ICJ Rep. 2002, pp. 257–259)167

167  Per contra see the declaration of judge Koroma (ICJ Rep. 2002, pp. 254–255) and the separate opinion of judge ad hoc Dugard (ibid., p. 271).

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In addition, an arbitral tribunal found that the power of an international tribunal to address recommendations to the parties to a dispute “in addition to the formal finding and obligatory decisions contained in the award” had been recognized in previous arbitral decisions (Rainbow Warrior (New Zealand/France), UNRIAA, vol. 20 (1990), p. 274, para. 128).

e) Procedure When a request for the indication of provisional measures is made, incidental proceedings are opened under Articles 73 to 78 of the Rules of Court. They are governed by the following rules: Institution of Proceedings According to Article 73, para. 1 of the Rules, proceedings on provisional measures are introduced by a written document called “request for the indication of provisional measures” (“demande en indication de mesures conservatoires”) that may be filed by a party at any time while the Court is seised of a case. This provision clearly presupposes that when the request is filed there is a case that has made a formal entrance into the Court’s General List (“the case in connection with which the request is made”) and that the State filing the request is a party to it.168 On the other hand, once the case is opened and the main proceedings are in progress, any of the parties can submit a request for provisional measures at any time up to the date on which the proceedings are closed. This notwithstanding, most of these requests are submitted at the outset of the proceedings. There have been cases in which a request for provisional measures has been submitted at the wrong procedural moment and, therefore, the Court has not felt capable of entertaining it, like it happened squarely in the Nicaragua case, as mentioned above.169 Similarly, in the Armed Actions (Nicaragua v. Honduras) case, the applicant made a request for the indication of provisional measures when proceedings on jurisdiction and admissibility were well under way—and the date for the opening of oral proceedings had been postponed

168  PCIJ, A/B 48, pp. 283–284. 169  See note 153 above.

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several times at the request of both parties—only to withdraw it 10 days later, before the Court had had the opportunity to take any action on the request.170 As it happens often that a request for provisional measures is made simultaneously with the filing of an application introducing proceedings, it is unavoidable that, prior to the setting in motion of the incidental proceedings on the request, the Court must make an administrative decision in order to give the case a name and a folio number and to order its entrance into the General List. As it was explained in the context of the discussion of the doctrine of forum prorogatum, this action would not any longer be possible if the only basis of jurisdiction mentioned in the application is Article 38, para. 5 of the Rules.171 The Court has not seen with sympathy attempts to circumvent this procedure and, for instance, it has rejected a request for temporary relief disguised as a submission in a pleading filed in the course of separate proceedings on preliminary objections.172 Therefore, it seems safe to conclude that a State wishing to obtain provisional relief must file a formal request under Article 73, para. 1 so that the Court may become formally seised of the request for the indication of provisional measures.173 With regard to the contents of the request, paragraph 2 of Article 73 provides that three distinct elements must be specified, namely: (i) The reasons therefor; (ii) The possible consequences if the request is not granted (which can be taken as a description of the irreparable prejudice that the rights which are the subject of the main claim might suffer); and (iii) The measures requested.174 This provision also directs the Registrar to transmit a certified copy of the request to the other party. Noticeably, it is not envisaged here that a request for the indication of provisional measures is transmitted to third States, like it happens in the case of applications instituting proceedings. The practice of the Court in this matter has evolved and it appears to have settled for giving to these requests the treatment given to ordinary pieces of procedure.175 This means that the full text of the request will only be known on the occasion of the opening of the hearings related to the request. However, in the press 170  Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment of 20 Dec. 1988, ICJ Rep. 1988, p. 72, para. 10. 171  See Box # 2-16. 172  Right of Passage, Preliminary Objections, Judgment of 26 Nov. 1957, ICJ Rep. 1957, p. 152. 173  Burkina Faso/Mali, Provisional Measures, Order of 10 Jan. 1986, ICJ Rep. 1986, p. 8, para. 10. 174  A request for the indication of provisional measures can also be amended by the State making it, in order to take into account developments in the situation to which the request refers. For a recent example see CERD, Provisional Measures, Order of 15 Oct. 2008, ICJ Rep. 2008, p. 364, para. 41. 175  Guyomar’s Commentaire, p. 470.

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release issued by the Registrar on the occasion of the filing of a request for provisional measures, the contents of the request are summarized and frequently the requested measures are reproduced in its integrity. Conduct of Proceedings The distinguishing feature of proceedings on provisional measures is their expeditiousness, as a (procedural) aspect of the condition of urgency that was already examined. As a reflection of this, the Rules grant to these requests an absolute priority over all other cases, so much so that if the Court is not sitting when the request is made it “shall be convened forthwith for the purpose of proceeding to a decision on the request as a matter of urgency” (paragraph 2 of Article 74), and the President is authorized—if the Court is not sitting—to set in motion the proceedings, which are mainly oral. Article 54, para. 2 is also of import here, because it states that when fixing the date for, or postponing, the opening of the oral proceedings in any given case the Court must take into account, inter alia, “the priority required by Article 74 of these Rules.” It is even possible to suspend hearings in course in a different case in order to handle a request for provisional measures.176 The urgency with which these proceedings take place is also underlined by the fact that paragraph 4 of the same provision expressly authorizes the President, pending the meeting of the Court, to convey to the parties what can be called an “urgent appeal” concerning actions by them that may affect the effectiveness of any eventual decision by the Court on the request. This was explained above, when discussing the different modalities of provisional measures that are envisaged in the Rules.177 As a general rule, there are no written pleadings in provisional measures proceedings, a practice adopted since the time of the PCIJ. In the 1933 Report the Registrar recalled that the President of the Court had interpreted the corresponding provision in the Rules (Article 57, para. 3) “as contemplating a discussion in open Court between the parties, and not the submission of written observations.”178 In the same document, it was mentioned that sometimes the Court asked for “short written summaries” of the oral statements to be filed at the end of the hearings, but this practice appears to have been abandoned.179 However, the Court has registered the fact that “[t]here is no provision in the Rules of Court which excludes the submission of written observations on a 176  For an example involving hearings before a chamber see ICJ Yearbook (1983–1984), p. 143. 177  See text to note 125 and ff. 178  PCIJ D 2, Add. 3, p. 827. 179  Ibid., p. 828.

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request for provisional measures.”180 Hence, while the Rules do not anticipate that the other party—which is normally the State named as respondent in the main proceedings—is to submit written observations on the request, they do establish that the Court is bound to “receive and take into account any observations that may be presented to it before the closure of the oral proceedings” (Article 74, para. 3).181 Therefore, that party has a choice between sending to the Court written observations on the request, or simply waiting until the hearing to convey those views in oral argument. Further, in view of the urgency, the Court does not require this communication to be submitted through a formally appointed agent and has been ready to admit communications and information sent to it “[d]irectly or through the Ambassador in The Hague.”182 The Court had the chance to pronounce on the import of this provision in the Genocide Convention (Bosnia) case, in which the applicant submitted several documents pertaining to the provisional measures requested and the respondent objected to what it called “the unending flood of sometimes heavy documentation” and requested the Court to declare inadmissible part of that documentation. The Court rejected this request and found that: [t]he submission by the Applicant of a series of documents, up to the eve of, and even during, the oral proceedings . . . is difficult to reconcile with an orderly progress of the procedure before the Court, and with respect for the principle of equality of the Parties; (. . .) however Article 74, paragraph 3, of the Rules of Court provides that “The Court shall receive and take into account any observations that may be presented to it before the closure of the oral proceedings”; (. . .) the Court, taking into account the urgency and the other circumstances of the matter, considers it possible to receive the documents in question as being in this case “observations” under that provision to the extent that they relate to the requests for the indication of provisional measures (Genocide Convention (Bosnia), Provisional Measures II, Order of 13 Sept. 1993, ICJ Rep. 1993, pp. 336–337, para. 21)

180  Aegean Sea Continental Shelf, Jurisdiction, Judgment of 19 Dec. 1978, ICJ Rep. 1978, p. 19, para. 44. 181  For a comment see S. Rosenne, “Some Reflections on the 1978 Revised Rules of the ICJ” Columbia Journal of Transnational Law, vol. 19 (1981), pp. 244–245. 182  Aegean Sea Continental Shelf, Jurisdiction, Judgment of 19 Dec. 1978, ICJ Rep. 1978, p. 19, para. 44. Although it will be good to note that in this case the respondent State did not appear and failed to appoint an agent altogether.

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As a consequence of this, the materials pertaining to the case before the Court at this stage are normally the request for the indication of provisional measures and any document that the parties (for the other State has the same right) may have seen fit to produce prior to the hearing.183 On account of the urgency, these documents are generally brief and do not contain elaborate legal argument.184 It is therefore up to the parties to furnish the Court with all kinds of written documents prior to the conclusion of the hearings and there is a high probability that this material will be accepted and taken into consideration by the Court. The parties are at liberty to label these documents as they see fit. In the CERD case, for instance, the applicant, who was also the requesting State, filed a document entitled “Observations on Provisional Measures” and the respondent countered with a “Contribution of the Russian Federation to the hearings on provisional measures.”185

Box # 11-11 Permissible use of evidence in proceedings on provisional measures In their respective separate opinions appended to the second order on provisional measures in the Genocide Convention (Bosnia) case, judge Shahabuddeen and judge ad hoc Lauterpacht explored the question of the handling of evidence in incidental proceedings on provisional measures. Judge Shahabuddeen comments refer to both, the admissibility of evidence and its evaluation and assessment: A major initial question, if a somewhat delicate one, concerns the extent to which the Court can take account of the supporting evidence in judging whether the circumstances require an indication of the measures sought. The problem here is that, while it is reasonably clear from previous cases that the Court does make use of the evidence, it is less clear in what way or to what extent it does so. True, the Court does not at this stage make definitive findings of fact, but beyond this there is little that can be said with assurance. If it does not make definitive findings on the evidence, does it 183  In the Obligation to Prosecute or Extradite case, for instance, both parties transmitted to the Court certain “[d]ocuments on which [they] wished to rely during the hearings” (Provisional Measures, Order of 28 May 2009, ICJ Rep. 2009, p. 143, para. 19). 184  Guyomar’s Commentaire, p. 485. 185  CERD, Provisional Measures, Order of 15 Oct. 2008, ICJ Rep. 2008, p. 367, para. 49.

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make provisional ones? The lack of elucidation is, I think, attributable to some apprehension that any use made by the Court of the evidence might lead to unwarranted inferences of prejudgment. And yet the evidence is presented by the Parties to be used by the Court and is used by it. It seems to me that apprehensions of unwarranted inferences of prejudgment are less substantial than the danger deriving from uncertainty as to the way in which, or the extent to which, the Court makes use of the material. The settled principle that the Court cannot at this stage make definitive findings on the merits is recalled in paragraph 48 of the Order. To say that the Court can make such findings, subject to subsequent alteration or amendment in the final judgment, is in effect to put the Court at the merits stage in the position of a court of appeal, sitting on review of its own previous judgment. The obvious unacceptability of that position does not, however, have the consequence that the Court must at this stage mechanically indicate measures so long as some supporting material is before it and regardless of its evidential quality. A court which does that may claim the virtue of avoiding all risk of prejudgment, but it is a virtue bought at the price of placing both parties on an artificial basis of evidential equality in circumstances in which the evidence on one side may be patently weak. A preliminary appraisal of the quality of the evidence avoids payment of that price; in so far as it may be thought to involve some risk of prejudgment, the craft of the judge accustoms him to make such an appraisal for the limited purposes of interlocutory proceedings without incurring a risk of prejudgment of the merits. Provisional measures (whether legally binding or not) are expected to be implemented and can be immediately productive of important practical consequences. They are not indicated by the Court unthinkingly. Under Article 41, paragraph 1, of its Statute, the Court has power to indicate provisional measures “if it considers that circumstances so require”. The Court cannot know what are the circumstances without having to consider the evidence produced in proof of the circumstances. This the Court must do if Judge Anzilotti was correct in speaking of “the possibility of the right claimed . . . and the possibility of the danger to which that right was exposed” (. . .). If that is the test, as I respectfully think it is, then the Court is called upon at this stage to make a decision as to whether there is on the evidence a possibility of the rights claimed by Yugoslavia and a possibility of danger to those rights; it cannot do that without considering the quality of the material before it.

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This conclusion accords with the position taken by Yugoslavia in its written observations of 1 April 1993 on Bosnia-Herzegovina’s first request for provisional measures, in paragraph 5 of which it submitted that “[t]he assertions on the basis of which the Court is requested to grant these provisional measures are not true, i.e. they are inconsistent with facts”. That submission necessarily implied that the Court, even at the interlocutory stage, can competently consider questions of credibility. As to the standard applicable, some help may be had from Dumbauld, who wrote: “In view of the need for rapidity and the provisional nature of the order, absolutely convincing proof, such as would be necessary in forming the Court’s opinion on final judgment, is not necessary. The Court’s decision must be based on the evidence before it, however, and not upon mere speculation. Substantial credibility rather than formally impregnable accuracy should be sought.” (Dr. E. Dumbauld, Interim Measures of Protection in International Controversies, 1932, p. 161.) Thus, although it is not necessary to produce “absolutely convincing proof”, “substantial credibility” is required. That, I would think, is the test to be applied in making an evaluation of the quality of the material before the Court. (Genocide Convention (Bosnia), Provisional Measures II, Separate Opinion of Judge Shahabuddeen, ICJ Rep. 1993, pp. 359–360)

For his part, judge ad hoc Lauterpacht observed in the same case: 39. (. . .) attention must be given to the nature of the evidence which the Court may properly take into account at this stage of the proceedings. 40. In most of the previous requests for provisional measures there has been relatively little disagreement about the facts, the principal issue (the question of jurisdiction apart) being whether, on the facts as known, an indication of such measures was required. Questions of evidence were, therefore, not in the forefront of the discussion. In the present case, Bosnia-Herzegovina has produced much evidence of the events which it alleges, all of it in writing and most of it in secondary form. Yugoslavia has produced no evidence to rebut it.

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41. The question is how much account should be taken of this evidence. There is no fundamental legal difference in the rules of evidence applicable to the consideration of the merits of a case and those applicable in proceedings relating to provisional measures. There is, however, a practical difference in that in the latter there may be less time for the applicant to prepare its evidence in the most cogent form, or for critical scrutiny of that evidence by the respondent and the Court, than there is in the extended merits stage of a case. But it does not follow that evidence produced at the provisional measures stage is a priori to be treated as less adequate or less acceptable than evidence produced at the merits stage or that it is incapable of sustaining more than the most generalized findings of fact. (. . .) 47. To refrain from confronting the facts simply because the proceedings are ones for provisional measures would suggest a degree of formalism inconsistent with one of the tasks of the international judicial process in circumstances so unusual as those involved here. In the present case, so public are the facts and so urgent is the need which they occasion that, to all intents and purposes, no clear line can be drawn between the grant of provisional measures and the grant of the remedy sought in the main action. A denial of sufficient provisional measures now may well, in practice, be tantamount to a negation of the rights claimed in the main action. If, as has been said, the grant of interim measures should not prejudice the outcome of the consideration of the merits, so equally it must be recognized that the denial of interim measures also should not prejudice the outcome of the consideration of the merits. It is, therefore, a matter of necessity to examine the facts to which the measures ordered by the Court relate. (Genocide Convention (Bosnia), Provisional Measures II, Separate Opinion of Judge Lauterpacht, ICJ Rep. 1993, pp. 422–424)

It follows that proceedings on provisional measures are predominantly oral, as they basically consist of a series of hearings at the seat of the Court that are scheduled soon after a request is made. The Court or the President will normally act “forthwith” upon a request made under Article 41, but paragraph 3 of Article 74 does contain the mandatory requirement that the parties are afforded “an opportunity of being represented” at the hearing. The date of the opening of the hearing is fixed by a decision that is not incorporated in an

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Figure 2

order and is taken either by the Court or by the President, if the Court is not sitting. Nowhere in this subsection of the Rules it is said that prior to the adoption of this decision the President shall take into account the views of the parties with regard to questions of procedure, but it is only natural to assume that those views will be ascertained beforehand, if necessary by resorting to the general provisions of Article 31. It may be noted that hearings on provisional measures are scheduled within very tight time-limits (literally, in a matter of weeks, or even days) and thanks to the conditions resulting from modern communication there have been cases in which, on account of the urgency of the situation that the requesting party was claiming to exist, the hearing took place within barely one or two weeks from the date of the decision by the Court or by the President, which in turn was done within a few days of the introduction of the request. Litigation on provisional measures before the ICJ is thus a markedly hasty business.

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Box # 11-12 Lenght of proceedings on provisional measures The following table shows that the time elapsed between the filing of a request for provisional measures and the making of the Court’s order deciding upon it is markedly brief. Case

Date of Date of Date of request hearings order

Anglo-Iranian Oil Co. Interhandel Fisheries Jurisdiction (UK v. Iceland) Fisheries Jurisdiction (Germany v.  Iceland) Nuclear Tests (Australia v. France) Nuclear Tests (New Zealand v.  France) Aegean Sea Continental Shelf U.S. Hostages Nicaragua Burkina Faso/Mali Arbitral Award, (Guinea-Bissau v.  Senegal) Passage through the Great Belt Lockerbie (two paired cases) Genocide Convention (Bosnia) I Genocide Convention (Bosnia) II Cameroon v. Nigeria Vienna Convention LaGrand Kosovo (10 cases) Armed Activities (DRC v. Uganda) Arrest Warrant Armed Activities II (DRC v. Rwanda) Avena

22 June 1951 3 Oct. 1957 19 July 1972

30 June 1951 12–14 Oct. 1957 1 Aug. 1972

5 July 1951 24 Oct. 1957 17 Aug. 1972

21 July 1972 9 May 1973

2 Aug. 1972 21–25 May 1973

17 Aug. 1972 22 June 1973

14 May 1973 10 Aug. 1976 29 Nov. 1979 9 April 1984 2/6 Jan. 1986186

24–25 May 1973 25–27 Aug. 1976 10 Dec. 1979 25–27 April 1984 9 Jan. 1986

22 June 1973 11 Sept. 1976 15 Dec. 1979 10 May 1984 10 Jan. 1986

18 Jan. 1990 22 May 1991 3 March 1992 20 March 1993 27 July 1993 12 Feb. 1996 3 April 1998 2 March 1999 29 April 1999 19 June 2000 17 Oct. 2000 28 May 2002 9 Jan. 2003

12 Feb. 1990 1–5 July 1991 26–28 March 1992 1–2 April 1993 25–26 Aug. 1993 5–8 March 1996 7 April 1998 No hearings held 10–12 May 1999 26–28 June 2000 20–23 Nov. 2000 13–14 June 2002 21 Jan. 2003

2 March 1990 29 July 1991 14 April 1992 3 April 1993 13 Sept. 1993 15 March 1996 9 April 1998 3 March 1999 2 June 1999 1 July 2000 8 Dec. 2000 10 July 2002 5 Feb. 2003

186  Separate requests made by each party.

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(cont.) Case

Date of Date of Date of request hearings order

Criminal Proceedings Pulp Mills I Pulp Mills II Request for Interpretation-Avena CERD Convention Obligation to Prosecute or Extradite Activities in the Border Area Request for Interpretation-Temple  of Preah Vihear Activities in the Border Area (Costa Rica v. Nicaragua); Construction of a Road (Nicaragua v. Costa Rica), Request by Costa Rica

8 April 2003187 4 May 2006 29 Nov. 2006 5 June 2008 14 Aug. 2008 19 Feb. 2009 18 Nov. 2010

28–29 April 2003 8–9 June 2006 18–19 Dec. 2006 19–20 June 2008 8–10 Sept. 2008 6–8 April 2009 11–13 Jan. 2011

17 June 2003 13 July 2006 23 Jan. 2007 16 July 2008 15 Oct. 2008 28 May 2009 8 Mar. 2011

28 April 2011

30–31 May 2011

18 July 2011

24 Sept. 2013

14–17 Oct. 2013

22 Nov. 2013

It must be noted also that the oral proceedings can be omitted altogether if, at the discretion of the Court, the exceptional circumstances of the case and particularly a situation of extreme urgency requires it. There are certain precedents from the time of the PCIJ that support this.188 At the present Court this happened for the first time—and only thus far—in the LaGrand case, in which the Court, without holding a hearing, expressly invoked the exceptional power granted to it by Article 75 of the Rules and, just one day after the request was made, decided to indicate provisional measures “[a]s a matter of the greatest urgency and without any other

187  Date on which the State named as respondent in the application expressed its consent to the Court’s jurisdiction in this case, in which the sole title of jurisdiction was Article 38, para. 5 of the Rules. For details see Chapter 2, f ). 188  No hearings were held in either the Denunciation of the Sino-Belgian Treaty (Order of 8 Jan. 1927, PCIJ A 8, p. 6) or the Prince von Pless (Order of 11 May 1933, PCIJ A/B 54, p. 152) case. However, the first of these cases was decided under the 1926 Rules, in which there was no provision for a hearing. In the second, the concerned State waived its right to a hearing, as afforded by para. 3 of Article 57 of the 1931 Rules.      

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proceedings.”189 The procedure used by the Court in this case was strongly criticized by judge Schwebel—then the President of the Court, although not acting as such in this case—on the basis that Article 75 of the Rules was not the applicable provision, because the Court was actually not acting proprio motu, as it had already been seised of a request for the indication of provisional measures made by the applicant. For him, in a case like this, once the request was made, the Court was bound to apply the requirements contained in Article 74 of the Rules and in particular there was no excuse for not holding a hearing at which the respondent could have been heard.190 Judge Schwebel also leveled strongly worded criticism on the attitude of the applicant in that case, who waited until the very last minute to file the request for provisional measures and thus contributed to the creation of a fait accompli in which the fate of a human being, as judge Oda phrased it, was put “[i]n the hands of the Court.”191 It is noteworthy that both of these judges voted in favor of the order but expressed their hope that this case would not become a precedent in the practice of the Court. It is submitted that this summary procedure will be used only in cases of the most extreme urgency. Prior to the LaGrand case the Court itself had conveyed to a party, in an apparently firm manner, the general proposition that in its view its powers under Article 75, para. 1 “[d]o not in any event extend to indicating measures without affording both Parties the opportunity of being heard.”192 At the subsequent merits phase in the same case the question arose again in a collateral way because Germany included in its submission a request for a judicial declaration to the effect that, by not complying with the order on provisional measures, the United States had breached an international legal obligation. Judge Buergenthal voted against the section of the dispositif in which that submission by Germany was declared admissible, because of what he considered to be an improper conduct on the part of the applicant in this case, pretty much along the lines of the position taken by President Schwebel at the provisional measures stage.193 Interestingly, this did not prevent judge 189  LaGrand, Provisional Measures, Order of 3 March 1999, ICJ Rep. 1999, p. 15, para. 26. The circumstances of this case were discussed above, in the context of the measures indicated by the Court proprio motu. 190  LaGrand, Provisional Measures, Separate Opinion of President Schwebel, ICJ Rep. 1999, pp. 21–22. See also Sir R. Jennings, “The LaGrand Case”, LPICT, vol. 1, No. 1 (2002), pp. 50, 52; S. Rosenne, “Controlling Interlocutory Aspects of Proceedings in the International Court of Justice”, in S. Rosenne, Essays on International Law and Practice (2007), p. 255. 191  LaGrand, Provisional Measures, Declaration of Judge Oda, ICJ Rep. 1999, p. 18. 192  Genocide Convention (Bosnia), Provisional Measures II, Order of 13 Sept. 1993, ICJ Rep. 1993, p. 334, para. 13. 193  LaGrand, Merits, Dissenting Opinion of Judge Buergenthal, ICJ Rep. 2001, pp. 548 ff.

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Buergenthal from voting in favor of the section of the dispositif dealing, at least by implication, with the binding force of the Court’s orders on provisional measures.194

Box # 11-13 Contents of argument on provisional measures: Practice Direction XI An important point on the conduction of proceedings on provisional measures is that the oral argument submitted at the hearing must conform, as to their contents, to one of the Practice Directions recently adopted by the Court. It reads as follows: Practice Direction XI In the oral pleadings on requests for the indication of provisional measures parties should limit themselves to what is relevant to the criteria for the indication of provisional measures as indicated in the Statute, Rules and jurisprudence of the Court. They should not enter into the merits of the case beyond what is strictly necessary for that purpose. This Direction was amended on 13 December 2006. The previous version included a reference to “an increasing tendency of parties to request the indication of provisional measures,” but this was deleted altogether. The change is welcome, since it is actually inaccurate to speak of a “tendency” to refer to the circumstance that States resort to a procedural device that under the Statute is always available to them. This is a sensible provision, as it is aimed at doing for provisional measures proceedings essentially what paragraph 7 of Article 79 of the Rules does with regard to proceedings on preliminary objections. Under the terms of this provision, the pleadings in incidental proceedings on provisional measures should only address “what is relevant to the criteria for the indication of provisional measures as indicated in the Statute, Rules and jurisprudence of the Court.” On the basis of the considerations reviewed above, this should include the following aspects: (one) The Court’s prima facie jurisdiction with regard to the merits of the case; (two) The plausibility of the rights to be protected (three) The link between the measures requested and the rights to be protected (four) The imminent risk of irreparable prejudice to

194  LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, p. 516, para. 128 (5).

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rights which are the subject of the dispute; and (five) The urgency justifying the indication of provisional measures.195 Although under its own terms Practice Direction XI applies only to the oral pleadings, it should also apply a fortiori in the event that any written documents are submitted prior to the hearings.

Decision on the Request Generally speaking, the Court has two options when dealing with a request for the indication of provisional measures: it can either grant the request and indicate some measures “pending its final decision in the proceedings,” or it can decline to grant it. In the latter situation, it will be noted that the straight rejection of a request is not common, for in the large majority of cases the Court has preferred to use a somewhat milder formula in the dispositif of the order.196 According to the latter, the Court finds that “[t]he circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.”197 This appears to suggest that if there was a change in these circumstances the Court would be inclined to consider more favorably a further request for provisional measures or, even, to consider indicating such measures on its own. It can also happen that the Court is not called to make a decision on a request, either because of the effect of some action taken by the requesting party (as in the Pakistani POW case) or because the latter simply withdraws the request (as in the Armed Actions (Nicaragua v. Honduras) case).

195  Muller’s Procedural Developments, LPICT, vol. 3 (2004) pp. 577–578. 196  The Court has either “dismissed” or “rejected” requests for the indication of provisional measures in Arbitral Award (Guinea-Bissau v. Senegal); in the Kosovo cases, between Yugoslavia and ten member States of NATO; and in the Armed Activities (DRC v. Rwanda) cases. In all but the first of these cases the reason for the dismissal was lack of prima facie jurisdiction. 197  This formulation was employed in Aegean Sea Continental Shelf; Passage Through the Great Belt; the two Lockerbie cases; Arrest Warrant; Criminal Proceedings; the two orders in Pulp Mills and Obligation to Prosecute or Extradite. The first occasion in which the present Court denied a request (Interhandel) can also be included here, as the Court’s finding was to the effect that “[t]here is no need to indicate interim measures of protection” (Order of 24 Oct. 1957, ICJ Rep. 1957, p. 112). For a comment on this expression see Rosenne, “Provisional Measures . . . Revisited”, p. 540.

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Lack of Appearance It has happened often that requests for provisional measures were made in cases in which the respondent was not appearing: Sino-Belgian Treaty, Electricity Company, Anglo-Iranian Oil Co., Fisheries Jurisdiction, Nuclear Tests, Pakistani POW, Aegean Sea Continental Shelf and US Hostages. In these cases, the authorities of the non-appearing party refrained from appointing an agent and did not take part in the oral proceedings but nevertheless sent to the Court, by diplomatic channels, informal documents stating their position and views on the case, including objections to the request for provisional measures. As far as the provisional measures are concerned, this situation may be considered to be covered by the provisions of Article 74, para. 3 of the Rules, if only because a State that is in default remains, legally and technically, a party to the case. The Court referred to default in this context in the Fisheries Jurisdiction cases, when it noted that [a]ccording to the jurisprudence of the Court and of the Permanent Court of International Justice the non-appearance of one of the parties cannot by itself constitute an obstacle to the indication of provisional measures, provided the parties have been given an opportunity of presenting their observations on the subject. (Fisheries Jurisdiction, Interim Protection, Orders of 17 August 1972, ICJ Rep. 1972, p. 15, para. 11 and pp. 32–33, para. 11)198

The reason for this, as stated by Fitzmaurice, is that the very nature of proceedings on provisional measures requires that it not be permitted to be frustrated by the defendant State’s non-appearance.199 However, it is unclear whether Article 53 of the Statute—the provision dealing with cases of non-appearance or default—is applicable as such to proceedings on provisional measures. The question will be examined in detail in the chapter dealing with the lack of appearance in contentious proceedings.200

198  This passage was also included in the orders on provisional measures issued in the cases Aegean Sea Continental Shelf (Interim Protection, Order of 11 Sept. 1976, ICJ Rep. 1976, p. 6, para. 13) and US Hostages (Order of 15 Dec. 1979, ICJ Rep. 1979, p. 13, para. 13). Interestingly, in both of these cases reference is made to “one of the States concerned,” rather than to “one of the parties.” 199  Sir G. Fitzmaurice, “The Problem of the ‘Non-Appearing’ Defendant Government”, BYIL, vol. 51 (1980), p. 90, note 2. 200  Chapter 18 (ii).

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Judges ad hoc As a matter of principle, the provisions of Article 31 of the Statute, dealing with the figure of the judge ad hoc, are fully applicable in proceedings on provisional measures. This means that if the bench does not include a judge of the nationality of any of the parties to the case they are at liberty to appoint a judge ad hoc. However, the requirement of urgency is paramount also here. Since the South-Eastern Greenland case, before the Permanent Court, the governing criteria has been that the need for the presence of judges ad hoc in this type of proceedings must not be inconsistent “[w]ith the urgent nature of interim measures of protection”.201 In the 1936 Rules of Court, provision was even made for the judges ad hoc to be convened “if their presence can be assured at the date fixed by the President for hearing the parties.”202 The accepted interpretation of this rule was that it was so flexible that it assumed that in some cases the Court could proceed without even summoning judges ad hoc.203 In the Factory at Chorzów (Indemnities) case, the Court had already indicated that it was entitled to indicate provisional measures “as normally composed” and “without specially obtaining the assistance of national judges.”204 In the Pakistani POW case, India had a judge of its nationality on the bench and the judge ad hoc appointed by Pakistan resigned shortly before the Court adopted its decision on the request for provisional measures. This did not prevent the Court from acting on the request, sitting without the new judge ad hoc.205 This practice shows that the appointment of a judge ad hoc by one or both of the parties is entirely dependant upon the contingency that he can be chosen and sworn in with the outmost celerity, because the hearings will not be delayed only on account of this question. A certain lack of balance between the parties can be detected here because if none of the parties has a judge of its nationality on the bench, it is in the nature of things that the State making the request will be in a position to take the necessary steps in advance and to inform the Court of its appointment of a judge ad hoc shortly after making the request. The respondent, however, who has had less or virtually no time to prepare for the accelerated litigation involved in provisional measures proceedings, 201  South-Eastern Greenland, Interim Protection, Order of 3 August 1932, PCIJ A/B 48 (1932), p. 280. 202  Article 61, para. 9 of the 1936 Rules. This was deleted in 1946. 203  Hudson’s PCIJ, pp. 291–292. 204  Factory at Chorzów (Indemnities), Provisional Measures, Order of 21 Nov. 1927, PCIJ A 12, p. 10. 205  Pakistani POW, Provisional Measures, Order of 13 July 1973, ICJ Rep. 1973, p. 329, para. 4.

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can encounter serious practical difficulties to do the same. The same type of situation will occur if the requesting State has a judge of its nationality on the bench, a case in which the other party would clearly be put in a disadvantageous position from the very outset. As for the current practice, there is no doubt that the cases in which one or both parties appoint a judge ad hoc during the provisional measures phase largely exceed those in which no such judge is appointed, for whatever reason.206 Duration With regard to the duration of the provisional measures, since the Court ritually indicates them “pending its final decision in the proceedings,” it is reasonable to think that they remain in place for as long as the proceedings in the main case are open.207 By the same token, these measures lapse as soon as proceedings are terminated, whether this happens by discontinuance, by a final decision on the merits or by an inhibitory decision, and whether in this last case the decision is based on lack of jurisdiction or on other grounds.208 In the first case before the present Court in which provisional measures were indicated, the Court found subsequently that it lacked jurisdiction to deal with the case and the relevant decision included a proviso according to which: In its above-mentioned Order of July 5th, 1951, the Court stated that the provisional measures were indicated “pending its final decision in the proceedings (. . .)”. It follows that this Order ceases to be operative upon the delivery of this Judgment and that the Provisional Measures lapse at the same time. (Anglo-Iranian Oil Co., Jurisdiction, Judgment of 22 July 1952, ICJ Rep. 1952, p. 114)

An analogous clause has featured in ulterior decisions by which the Court has refused to deal with a case altogether, for whatever the reason.209 Significantly, such a clause was missing in an order placing on record the discontinuance of a case in which provisional measures had been indicated, notwithstanding the 206  The latest cases to date in which no judges ad hoc were appointed are Nicaragua, Genocide Convention I, Vienna Convention (Bosnia), Armed Activities (DRC v. Uganda) and Avena. There are of course cases in which there is no room at all to appoint any judge ad hoc, if for instance each party has a judge of its nationality in the bench. 207  These words are lifted from Article 41, para. 2 of the Statute. 208  Mani’s Adjudication, p. 284; Guyomar’s Commentaire, p. 489. 209  Nuclear Tests, Judgments of 20 Dec. 1974, ICJ Rep. 1974, pp. 272, para. 61 and 477, para. 64; CERD, Preliminary Objections, Judgment of 1 April 2011, ICJ Rep. 2011, p. 140, para. 186. Interestingly, it was not included in the final decision in Request for Interpretation-Avena ( Judgment of 19 Jan. 2009, ICJ Rep. 2009, p. 6, para. 3).

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fact that the measures themselves were mentioned in one of the recitals of the order.210 As for cases in which provisional measures were indicated and the Court ended up adjudicating upon the merits of the dispute brought before it, the practice has not been uniform, for while in some cases the judgment has included an express clause recording the essence of the formula used in the Anglo-Iranian Oil Co. case,211 in others this has not been mentioned at all in the final decision.212 In one other case the Court took note that the obligations of the party against whom the provisional measures had been indicated were replaced by those declared in the judgment, with effect from the date of the latter.213 f)

Legal Effects of Provisional Measures214

Decisions on requests for provisional measures have always been incorporated in orders similar to those that the Court is empowered to make under Article 48 of the Statute on purely procedural matters.215 The PCIJ gave the following reason for this: The reason of the Court’s decision to employ the form of an order appears to be that measures of protection are essentially provisional in character, whereas judgments are final decisions; again, measures of protection may be indicated by the Court propio motu, whereas this would not be possible in the case of a judgment.216 210  Vienna Convention, Removal of Case, Order of 10 Nov. 1998, ICJ Rep. 1998, pp. 426–427. 211  Burkina Faso/Mali, Merits, Judgment of 22 Dec. 1986, ICJ Rep. 1986, p. 649, para. 177; Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 236, para. 468. 212  In the Nicaragua case, the final decision on the merits did not include this clause but this had been anticipated in the judgment on jurisdiction and admissibility ( Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 442, para. 112). Other cases in which there were provisional measures orders in force at the time of the delivery of the final decision and the latter does not mention the lapsing of the measures upon the date of its reading include Fisheries Jurisdiction, U.S. Hostages, LaGrand, Cameroon v. Nigeria, Armed Actions (DRC v. Uganda) and Request for Interpretation-Temple of Preah Vihear. 213  Avena, Merits, Judgment of 31 March 2004, ICJ Rep. 2004, p. 70, para. 152. 214  Lauterpacht, “Principles . . .”, pp. 512–517. 215  See a comment in J.-M. Sorel & F. Poirat (Eds.), Les procédures incidents devant la Cour internationale de Justice: exercice ou abus de droits? (2001), p. 41. 216  PCIJ E 9, p. 171. Implicit in the fact that orders are not final decisions is the proposition that they cannot have the force of res judicata. See Mani’s Adjudication, pp. 285–286.

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The fact that provisional measures under Article 41 are enshrined in orders and not in judgments is one of the reasons for the controversy that for a long time surrounded the institution of provisional measures, referring to the binding force of these orders. Legal literature was sharply divided between those who believed that orders indicating provisional measures did not constitute “decisions” of the Court in the sense of the Charter and the Statute and therefore were not legally binding; and those who emphasized that it did not make any sense to organize and to conduct judicial proceedings before a court of law in order to come to a decision that was merely hortatory.217 The Statute limited itself to provide that notice of the measures “suggested”—admittedly, a verb that is considerably weak and is hard to reconcile with the idea of binding measures—218 should be given to the Security Council (Article 41, para. 2).219 As for the Rules, the only place in them where the legal effects of these orders are mentioned is the oblique reference in Article 78 (introduced in 1978), providing that “The Court may request information from the parties on any matter connected with the implementation of any provisional measures it has indicated.” This amendment clearly reversed the previous attitude of the Court on the matter. In the 1922 Rules Article 52, second para. provided that refusals by the parties to conform to provisional measures should be “placed on record.” In the 1931 revision, the PCIJ debated the possibility of maintaining a provision “concerning the course to be taken if the Parties did not conform to the Court’s indications.” The Report for that year records that “[i]t was held inexpedient . . . to make this addition: the Court’s role was simply to indicate measures of protection and to notify its decision to the Council of the League.”220 The Court itself avoided making definitive findings on the question for a long time and the furthest it had gone was to remind the States parties to a case that when the situation requires that measures of this kind should be taken, “[i]t is incumbent on each party to take the Court’s indications seriously into

217  Particularly energetic—and well argued—cases for the binding nature of provisional measures can be found in the separate opinions by judges Weeramantry and Ajibola appended to the Court’s order on the (second) request for provisional measures in the Genocide Convention (Bosnia) case (ICJ Rep. 1993, pp. 374 ff. and pp. 397 ff.). A good discussion of the different positions on this matter can be found in Collins, “Provisional and Protective . . .”, pp. 216–220. 218  The French version of this provision is stronger. See the analysis by the Court in its judgment in the LaGrand case (Merits, ICJ Rep. 2001, p. 505, para. 106). 219  Repeated and expanded in Article 77 of the Rules. 220  PCIJ E 7, p. 293. For the opinion that Article 78 has essentially remained dead letter see Sorel & Poirat, “Les procedures incidentes . . .”, p. 44.

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account, and not to direct its conduct solely by reference to what it believes to be its rights.”221 In the subsequent Genocide Convention (Bosnia) case, the Court had to deal with two successive requests for the indication of provisional measures, the moving party (the applicant) having contended that the measures indicated by the first order had not been complied with by the other party. In its order concerning this second request the Court simply took note that the measures indicated in its first order had not been complied with and remarked somewhat diplomatically that it was not satisfied “that all that might have been done ha[d] been done” to implement the order.222

Box # 11-14 Binding force of provisional measures by the ICJ in certain multilateral treaties Independently of the Court’s Statute, there are multilateral treaties concerning the peaceful settlement of disputes that include clauses providing that provisional measures have binding effects for the States parties. The best examples are the 1929/1949 General Act of Geneva, the 1957 European Convention for the Peaceful Settlement of Disputes and the 1982 Convention on the Law of the Sea. In all three cases the duty of States to abide by provisional measures indicated by international tribunals extends to measures indicated by the ICJ, a circumstance that in itself suggests that the drafters of those instruments believed that such a duty was not contemplated as such in the Statute. The relevant provisions are: Article 33, para. 1 of the General Act: Article 33 1. In all cases where a dispute forms the object of arbitration or judicial proceedings, and particularly if the question on which the parties differ arises out of acts already committed or on the point of being committed, the International Court of Justice, acting in accordance with Article 41 of its Statute, or the Arbitral Tribunal, shall lay down within the shortest possible time the provisional measures to be adopted. The parties to the dispute shall be bound to accept such measures.

221  Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 144, para. 289. 222  Genocide Convention (Bosnia), Provisional Measures, Order of 13 Sep. 1993, ICJ Rep. 1993, pp. 348–349, para. 57.

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This provision has been invoked in several occasions, notably by Australia and New Zealand in the Nuclear Tests cases and by Greece in the Aegean Sea Continental Shelf case. In both cases, however, the Court refused at that stage of the proceedings to enter into the question of the application of the General Act between the parties and preferred to “[e]xamine the request for the indication of interim measures only in the context of Article 41 of the Statute;” (Nuclear Tests, Interim Protection, Orders of 22 June 1973, ICJ Reports 1973, p. 103, para. 19 and p. 139, para. 20; Aegean Sea Continental Shelf, Interim Protection, Order of 11 Sept. 1976, ICJ Reports 1976, p. 8, paras. 19–21). Article 31, para. 1 of the European Convention contains exactly the same language. For its part, Article 290 of the LOS Convention reads as follows: Article 290 Provisional measures 1. If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision. (. . .) 6. The parties to the dispute shall comply promptly with any provisional measures prescribed under this article. This provision applies not only to the ICJ but also to other judicial bodies. In the case of the International Tribunal for the Law of the Sea, it has been interpreted as meaning that its orders on provisional measures are legally binding on the parties.223

The discussion outlined above was set at rest in 2001 by the Court’s decision at the merits phase in the LaGrand case. The Court had to deal with a submission by the applicant to the effect that the respondent had not complied with

223  Th. A. Mensah, “Provisional Measures in the International Tribunal for the Law of the Sea (ITLOS)”, ZaÖRV, vol. 62 (2002), pp. 43–54.

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the Court’s previous order indicating certain provisional measures, thereby breaching an international legal obligation. The Court undertook in a very thorough manner the exercise of interpretation of Article 41 of the Statute and came to the conclusion that orders on provisional measures are not “a mere exhortation” and that, by being adopted pursuant to Article 41 of the Statute, they are “binding in character and creat[e] a legal obligation” for the State to which they are addressed.224 In construing Article 41 using the canons of interpretation provided for in the 1969 Vienna Convention on the Law of Treaties, the Court clearly attached a lot of importance to the object and purpose of the Statute and concluded in this regard: It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. (LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, p. 503, para. 102)

As it is only natural, the conclusion that orders on provisional measures are binding for States appears in the reasoning part of the judgment, but there is a section in the dispositif that is clearly based on this conclusion.225 The later was adopted by 13 votes to 2.226

Box # 11-15 Binding force of orders on provisional measures227 The essence of the reasoning in LaGrand leading the Court to the conclusion that its orders indicating provisional measures have binding effects—included,

224  LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, p. 506, para. 110. 225  LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, p. 516, para. 128 (5). 226  Judges Oda and Parra-Aranguren voted against this section of the operative part. The first criticized the position taken by the Court on this point (Dissenting Opinion of Judge Oda, ICJ Rep. 2001, pp. 537–539). Judge Parra-Aranguren dissented because in his opinion the Court lacked jurisdiction to entertain the matter (ibid., Separate Opinion of Judge ParraAranguren, p. 547). Of the judges concurring, judge Koroma also referred to this in his separate opinion (ibid., p. 53). 227  For a good assessment, including the handling of the question by other international tribunals, see Brown, “A Common Law . . .”, pp. 146–150.

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it may be noted, in a judgment, not in an order—can be found in the following passages:228 Neither the Permanent Court of International Justice, nor the present Court to date, has been called upon to determine the legal effects of orders made under Article 41 of the Statute. As Germany’s third submission refers expressly to an international legal obligation “to comply with the Order on Provisional Measures issued by the Court on 3 March 1999”, and as the United States disputes the existence of such an obligation, the Court is now called upon to rule expressly on this question. The dispute which exists between the Parties with regard to this point essentially concerns the interpretation of Article 41, which is worded in identical terms in the Statute of each Court (apart from the respective references to the Council of the League of Nations and the Security Council). This interpretation has been the subject of extensive controversy in the literature. The Court will therefore now proceed to the interpretation of Article 41 of the Statute. It will do so in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties. According to paragraph 1 of Article 31, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the treaty’s object and purpose. The French text of Article 41 reads as follows: “1. La Cour a le pouvoir d’indiquer, si elle estime que les circonstances l’exigent, quelles mesures conservatoires du droit de chacun doivent être prises à titre provisoire. 2. En attendant l’arrêt définitif, l’indication de ces mesures est immédiatement notifiée aux parties et au Conseil de sécurité.”  (Emphasis added.) In this text, the terms “indiquer” and “l’indication” may be deemed to be neutral as to the mandatory character of the measure concerned; by contrast the words “doivent être prises” have an imperative character.

228  At the political level, it has been suggested that the Court’s motivation behind this decision may have had to do with the fact that in other international tribunals available to States—most notably, the International Tribunal for the Law of the Sea—provisional measures are unambiguously binding (C. Romano, “The Price of International Justice”, LPICT, vol. 4 (2005), p. 288).

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For its part, the English version of Article 41 reads as follows: “1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. 2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.” (Emphasis added.) According to the United States, the use in the English version of “indicate” instead of “order”, of “ought” instead of “must” or “shall”, and of “suggested” instead of “ordered”, is to be understood as implying that decisions under Article 41 lack mandatory effect. It might however be argued, having regard to the fact that in 1920 the French text was the original version, that such terms as “indicate” and “ought” have a meaning equivalent to “order” and “must” or “shall”. Finding itself faced with two texts which are not in total harmony, the Court will first of all note that according to Article 92 of the Charter, the Statute “forms an integral part of the present Charter”. Under Article 111 of the Charter, the French and English texts of the latter are “equally authentic”. The same is equally true of the Statute. In cases of divergence between the equally authentic versions of the Statute, neither it nor the Charter indicates how to proceed. In the absence of agreement between the parties in this respect, it is appropriate to refer to paragraph 4 of Article 33 of the Vienna Convention on the Law of Treaties, which in the view of the Court again reflects customary international law. This provision reads “when a comparison of the authentic texts discloses a difference of meaning which the application of Articles 31 and 32 does not remove the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted”. The Court will therefore now consider the object and purpose of the Statute together with the context of Article 41. The object and purpose of the Statute is to enable the Court to fulfill the functions provided for therein, and, in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. (. . .) The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article.

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A related reason which points to the binding character of orders made under Article 41 and to which the Court attaches importance is the existence of a principle which has already been recognized by the Permanent Court of International Justice when it spoke of “the principle universally accepted by international tribunals and likewise laid down in many conventions . . . to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given, and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute” (Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, P.C.I.J, Series A/B, No. 79, p. 199). Furthermore measures designed to avoid aggravating or extending disputes have frequently been indicated by the Court. They were indicated with the purpose of being implemented (. . .) (. . .) The preparatory work of Article 41 shows that the preference given in the French text to “indiquer” over “ordonner” was motivated by the consideration that the Court did not have the means to assure the execution of its decisions. However, the lack of means of execution and the lack of binding force are two different matters. Hence, the fact that the Court does not itself have the means to ensure the execution of orders made pursuant to Article 41 is not an argument against the binding nature of such orders. (. . .) In short, it is clear that none of the sources of interpretation referred to in the relevant Articles of the Vienna Convention on the Law of Treaties, including the preparatory work, contradict the conclusions drawn from the terms of Article 41 read in their context and in the light of the object and purpose of the Statute. Thus, the Court has reached the conclusion that orders on provisional measures under Article 41 have binding effect. (LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, pp. 501–506, paras. 98–109)

Thus, after an in-depth examination of the general question of the binding nature of orders on provisional measures, the Court concluded that the order of 3 March 1999 was binding and created a legal obligation for the United States.

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Commenting on this passage of the decision, a former member of the Court has inferred that not every order made under Article 41 of the Statute is per force legally binding: Having settled the question of the binding nature of provisional measures orders in general terms, the Court went on to examine the order actually made in this case. By proceeding in this way the Court precluded itself, presumably intentionally, from taking a view that some such orders might be binding and others not. So by the time the Court turns to the order in the present case its legal status has already been decided. This is confirmed in the first paragraph of this section (para. 110): “This Order was not a mere exhortation. It had been adopted pursuant to Article 41 of the Statute. This Order was consequently binding in character and created a legal obligation for the United States.” This observation perhaps leaves open the possibility that, even given the general decision that orders made pursuant to Article 41 are binding, the Court might in a future case carefully word an order made under that article in such a way as to make it, if not a mere exhortation, at any rate not one intended to be in all respects legally binding.229 Interestingly, in most orders on provisional measures the controlling verb used in the English version has not been “ought” but “should.” An important exception is the order in the Armed Activities (DRC v. Uganda) case, in which the stronger term “must” (“doivent”) was used, apparently for the first time (Provisional Measures, Order of 1 July 2000, ICJ Rep. 2000, p. 129, para. 47—the French text is authoritative). This may be taken as meaning that, even before the pronouncement in LaGrand, the Court was ready to take steps toward recognizing that its orders on provisional measures had binding effects.230

This calls for a number of comments. Firstly, this decision has been confirmed and refined on several occasions. In its judgment on the merits in the Armed Activities (DRC v. Uganda) case, the Court stated that its order in the same case indicating certain provisional measures “created legal obligations which both 229  Jennings, “The LaGrand . . .”, p. 35 and pp. 53–54. A similar thesis was advanced when the Statute was being prepared (J. Hostie, “The Statute of the Permanent Court of International Justice”, AJIL, vol. 38 (1944), p. 428). 230  H. Sakai, “New Developments of the Orders on Provisional Measures by the International Court of Justice”, Japanese YIL, vol. 52 (2009), p. 235, note 12.

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Parties were required to comply with”231 and in subsequent cases the finding in paragraph 109 of the LaGrand judgment that orders indicating provisional measures do have a binding effect has been quoted with approval.232 As for the orders themselves, in the first order indicating provisional measures made after LaGrand—in the Avena case—the drafting of the operative part already reflected a change in the perception of these orders as entailing decisions binding on States parties.233 After some hesitation, it has now become common practice to include in the closing section of each order a recital recalling the Court’s jurisprudence on the binding effect of their provisions.234 The Court has even gone further, pointing out that this applies also to orders issued before it reached that conclusion:235 The Court observes that its “orders on provisional measures under Article 41 [of the Statute] have binding effect” (. . .). Although the Court only had occasion to make such a finding in a judgment subsequent to the Orders that it made in the present dispute, this does not affect the binding nature of those Orders, since in the Judgment referred to the Court did no more than give the provisions of the Statute the meaning and scope that they had possessed from the outset. It notes that provisional measures are aimed at preserving the rights of each of the parties pending the final decision of the Court. The Court’s Orders of 8 April and 13 September 1993 indicating provisional measures created legal obligations which both Parties were required to satisfy. (Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 230, para. 452)

231  Armed Activities (DRC v. Uganda), Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 258, para. 263. 232  Cameroon v. Nigeria, Merits, Judgment of 10 October 2002, ICJ Rep. 2002, p. 453, para. 321. 233  On this see Rosenne, “The ICJ: The New form . . .”, pp. 201–202. 234  CERD, Provisional Measures, Order of 15 Oct. 2008, ICJ Rep. 2008, p. 397, para. 147; Activities in the Border Area, Provisional Measures, Order of 8 March 2011, ICJ Rep. 2011, pp. 26–27, para. 84; Request for Interpretation-Temple of Preah Vihear, Provisional Measures, Order of 18 July 2011, ICJ Rep. 2011, p. 554, para. 67; Activities in the Border Area (Costa Rica v. Nicaragua); Construction of A Road (Nicaragua v. Costa Rica), Provisional Measures, Request for Modification, Order of 16 July 2013, para. 38. The orders made in Avena and Request for Interpretation-Avena, although made after the decision in LaGrand, did not make mention of the binding effect of orders made under Article 41 of the Statute. 235  Connected to this, judge Koroma had warned that the Court’s decision on the binding effects of provisional measures should not be interpreted as unwittingly casting doubts on the efficacy of previous orders by the Court (LaGrand, Merits, Sepatate Opinion of Judge Koroma, ICJ Rep. 2001, p. 543, para. 7).

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In the second place, after the adoption of this decision, a commentator has warned that as States will probably feel more inclined to seek (binding) provisional remedies from the Court, it will be necessary for it to exercise more caution in the handling of requests under Article 41, in particular with regard to the jurisdictional aspects involved: As a consequence of this decision, provisional measures will assume a greater importance than before and there will be a greater incentive on the part of States to request such measures. In these circumstances, the Court should be cautious in making Orders for provisional measures where there are serious doubts about the basis for jurisdiction and strict in its response to requests for provisional measures where the jurisdictional basis for the claim is manifestly unfounded. If it fails to adopt such an approach, the Court will be inundated with requests for provisional measures. (Armed Activities (DRC v. Rwanda), Provisional Measures Separate Opinion of Judge ad hoc Dugard, ICJ Rep. 2002, p. 265)236

Thirdly, another, little noticed, aspect of the binding effect of orders on provisional measures refers to the event that, after having indicated measures, the Court ultimately finds that it lacks jurisdiction to deal with the merits of the case, as it has happened in a number of occasions.237 The question arose in the Passage through the Great Belt case—although jurisdiction was not in issue there—and was briefly mentioned by judge Shahabuddeen in the following terms: The exceptional character of interim measures (. . .) assumes added significance when it is recalled that it is not settled whether the jurisprudence of the Court allows for compensating a party for any injury suffered in complying with an interim measure should the latter be eventually

236  This is also connected with the relationship of provisional measures with the question of remedies. See Box # 11-7 above. For the implications of this dictum with regard to the question of compliance with orders on provisional measures see C. Schulte, Compliance with Decisions of the International Court of Justice (2004), pp. 12–13. 237  Anglo-Iranian Oil Co., Judgment of 22 July 1952, Preliminary Objection, ICJ Rep. 1952, p. 93; Request for Interpretation-Avena, Judgment of 19 Jan. 2009, ICJ Rep. 2009, p. 3; CERD, Preliminary Objections, Judgment of 1 April 2011, ICJ Rep. 2011, p. 70.

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found to have been unjustified; that point, raised in this case, did not fall for decision and remains undecided.

(Passage Through the Great Belt, Provisional Measures, Separate Opinion of Judge Shahabuddeen, ICJ Rep. 1991, p. 29)238

If the order indicating provisional measures is followed by a definitive affirmation of jurisdiction and a decision on the merits there would be no problem in this regard, for the obligations derived from the order are subsequently replaced by those embodied in the judgment.239 But if the situation in cases like Anglo-Iranian Oil Co. and CERD were to occur again, the legal basis for the obligations embodied in the order indicating binding provisional measures would come into question. In this regard, a well-known scholar and an authority on the Court has criticized the judgment in LaGrand in particularly strong terms, underlining inter alia that it fails to provide an answer for the problem of the effects of an order on provisional measures made in a case in which it is subsequently established that there was no jurisdiction.240 Forthly, the judgment in LaGrand also left open whether Article 94, para. 1 of the United Nations Charter applies to orders on provisional measures. In the same manner as Article 59 of the Statute—but unlike Article 60 or even Article 94, para. 2 of the Charter itself—that provision speaks of “the decision of the International Court of Justice” (emphasis added) and thus can be taken either as including orders on provisional measures or as referring exclusively to judgments.241 In that case the Court noticed this particularity of Article 94 but decided to leave the question largely unanswered, limiting itself to remark in this regard that “[A]rticle 94 of the Charter does not prevent orders made under Article 41 from having a binding character.”242 As it was mentioned in Chapter 10, concerning the decisions of the Court, the better view appears to be that the term “decision” has a wider scope than “judgment,” so that the two paragraphs of Article 94 refer to essentially two different matters, namely, compliance, (paragrah 1) and enforcement (paragraph 2): the former would 238  See also Collins, “Provisional and Protective . . .”, pp. 229–231. 239  Avena, Merits, Judgment of 31 March 2004, ICJ Rep. 2004, p. 70, para. 152. 240  Thirlway’s Law and Procedure, Part 12, BYIL, vol. 72 (2001), pp. 125–126. For this author the decision in LaGrand with regard to the legal effects of orders on provisional measures represents nothing less that “a disaster” for the system of international judicial jurisdiction. 241  The question is discussed in Schulte, “Compliance . . .”, pp. 32–33. 242  LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, p. 506, para. 108. See on this an early comment in V.S. Mani, “Interim Measures of Protection: Article 41 of the Statute and Article 94 of the UN Charter”, Indian JIL, vol. 10 (1970), pp. 359–372.

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apply to all types of decisions by the Court and the latter only to those that are given in the format of judgments.243 Of interest is also the question of the legal effects of provisional measures for third parties. In the Genocide Convention (Bosnia) case the question arose because the second request for provisional measures made by the applicant included “certain measures (. . .) which would be addressed to States or entities not parties to the proceedings”. The Court relied on Article 59 of the Statute and on the fact that the ultimate purpose of provisional measures is the preservation of the rights that may be adjudged by the Court and remarked: [t]he Applicant has explained that it is not asking for an Order binding upon any State other than the Parties, but for a clarification of the Applicant’s rights “which can be used in the Security Council and the General Assembly and elsewhere”; (. . .) the judgment in a particular case by which disputed rights may be adjudged by the Court to belong to the Applicant or to the Respondent has, in accordance with Article 59 of the Statute of the Court, “no binding force except between the parties”; (. . .) accordingly the Court may, for the preservation of those rights, indicate provisional measures to be taken by the parties, but not by third States or other entities who would not be bound by the eventual judgment to recognize and respect those rights; (. . .) consequently the Court cannot, in the exercise of its power to indicate provisional measures, indicate by way of “clarification” that those States or entities should take, or refrain from, specific action in relation to the acts of genocide which the Applicant alleges are being committed in Bosnia-Herzegovina; (Genocide Convention (Bosnia) Provisional Measures II, Order of 13 Sept. 1993, ICJ Rep. 1993, p. 344, para. 40)

But perhaps the most important consequence of the Court’s finding in LaGrand relates to the attitude of the litigant States themselves towards the nowconfirmed binding effect of orders under Article 41 of the Statute. If provisional measures are legally binding the logical consequence is that the State that fails to comply with them is in breach of the Statute and therefore incurs in international responsibility. Accordingly, the other State party becomes entitled to put a further claim before the Court, in addition to the substantive claims that formed its original case and, eventually, to ask for remedies.

243  For the practice on the application of Article 94, para. 2 of the Charter to orders on provisional measures see Box 11-16.

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This is precisely what Germany did in LaGrand, acting under the assumption that the Court’s order indicating provisional measures was binding upon the parties, and it saw its position eventually vindicated, because the Court included in the dispositif of its judgment on the merits a paragraph putting on record that, by failing to take certain measures pending the final decision in the case, the United States “breached the obligation incumbent upon it under the Order indicating provisional measures issued by the Court on 3 March 1999.”244 Interestingly, and in marked contrast with what Paraguay had done in the preceding Vienna Convention case, Germany limited its request for remedies to a declaration of violation of the order on provisional measures and did not ask for anything in the nature of reparations. In any case, in its judgment the Court clearly suggested that Germany’s submissions in this regard could have included “a claim for indemnification”.245 Other States have followed Germany’s example, with mixed results.246 For the purposes of the present discussion, it suffices to note that when a State party to a case fails to comply with a provisional measure indicated by the Court the other party is now entitled to petition the Court, as part and parcel of its submissions on the merits, for a formal declaration of violation of the order. If the latter wins the day at court, such a declaration would be included in the dispositif of the judgment and would constitute in itself a measure of reparation in the form of satisfaction for the injured State. In addition, depending upon the circumstances of the case, this declaration could be supplemented by other forms of remedy—such as an indemnification—as additional reparation for the breach. With its decision in LaGrand the Court thus established a practical mech­ anism to ensure an effective sanction for lack of compliance with its orders on provisional measures.247 It is submitted that here lies the more durable impact that this key decision will have for the future of adjudication before the ICJ. g)

Compliance and Enforcement

Concerning the question of compliance with orders indicating provisional measures, it will be recalled that the reform to the Rules carried out in 1978 244  LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, p. 516, par. 128 (5). 245  Ibid., p. 508, para. 116. On this see M. Al-Qahtani, “The Role of the International Court of Justice in the Enforcement of Its Judicial Decisions”, LJIL, vol. 15 (2002), pp. 787–788. 246  See Box # 11-7 above. 247  Schulte, “Compliance . . .”, pp. 379, 382 and 430–435.

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incorporated—with no apparent basis in the Statute—Article 78, a new provision that arguably imposes on the parties the duty to comply with requests by the Court for information “on any matter connected with the implementation of any provisional measures it has indicated.” An interesting development not unrelated to this took place in one of the first cases heard under the new Rules: the US Hostages case—in which the respondent was not appearing and the measures indicated by the Court affected the safety and freedom of a sizeable group of persons. In its order indicating provisional measures the Court included for the first time in the dispositif what has been called a “supervisory clause,”248 couched in the following terms (and, it may be noted, adopted unanimously): THE COURT (. . .) Decides that, until the Court delivers its final judgment in the present case, it will keep the matters covered by this Order continuously under review. (US Hostages, Provisional Measures Order of 15 Dec. 1979, ICJ Rep. 1979, p. 21, para. 47(2))

This formulation appears to imply that the intention of the Court was to remain seised of the case on provisional measures, at least until the final decision was read. Indeed, this is the approach taken by a chamber of the Court a few years later in the Burkina Faso/Mali case, in which this section of the dispositif was drafted more conclusively: THE CHAMBER (. . .) Decides that, pending its final judgment, and without prejudice to the application of Article 76 of the Rules, the Chamber will remain seised of the questions covered by the present Order. (Burkina Faso/Mali, Provisional Measures, Order of 10 Jan. 1986, ICJ Rep. 1986, p. 12, para. 32, section 3)

248  Rosenne, “Provisional Measures in International Law . . .”, p. 104.

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The formulation introduced in US Hostages was also used in the Nicaragua case.249 For its part, the variation of it used for the first time in the Burkina Faso/Mali case has featured in a number of subsequent cases.250 In some of these cases the Court also included in the dispostif a clause that echoes the language of Article 78 (albeit without mentioning it as authority in the reasoning section) ordering that either one of the parties or both of them “[s]hould inform the Court of all the measures (. . .) taken in implementation of this order”251 or “should inform the Court as to its compliance with the above provisional measures.”252 On the other hand, empirical studies of the attitude of States parties towards provisional measures indicated by the Court show that, in general, the record of compliance with the relevant orders is far from satisfactory and, in particular, is considerably lower than that of final decisions.253 However, the fact that up to 2001 States could legitimately contend that they were not under a legal obligation to abide by those orders cannot be ignored. In this regard, the significance of the Court’s dictum in LaGrand as to the binding force of provisional measures cannot be exaggerated and, as explained above, recent cases show that litigant States are now ready to place before the Court claims for remedies for the breach of orders on provisional measures. The real test will thus be the 249  Nicaragua, Provisional Measures, Order of 10 May 1984, ICJ Rep. 1984, p. 187, para. 41, 4, C. 250  Vienna Convention, Provisional Measures, Order of 9 April1998, ICJ Rep. 1998, p. 258, para. 41, II; LaGrand, Provisional Measures, Order of 3 March 1999, ICJ Rep. 1999, p. 16, para. 29, II; Avena, Provisional Measures, Order of 5 Feb. 2003, ICJ. Rep. 2003, p. 92, para. 59, II; Request for Interpretation-Avena, Provisional Measures, Order of 16 July 2008, ICJ Rep. 2008, p. 332, para. 80, III; Request for Interpretation-Temple of Preah Vihear, Provisional Measures, Order of 18 July 2011, ICJ Rep. 2011, p. 556, para. 69 (D). Significantly, none of these formulas was included in the orders indicating provisional measures in the Cameroon v. Nigeria, Genocide Convention I and II, Armed Activities II (DRC v. Uganda), CERD or Activities in the Border Area cases. 251  This formulation was used in the Vienna Convention, LaGrand, Avena and Request for Interpretation-Avena cases. See respectively ICJ Rep. 1998, p. 258, para. 41, I; ICJ Rep. 1999, p. 16, para. 29, I, (a); ICJ. Rep. 2003, p. 92, para. 59, I, (b); and ICJ Rep. 2008, p. 332, para. 80, II (b). 252  Thus far, this formulation has been used three times by the Court. See respectively, CERD, Provisional Measures, Order of 15 Oct. 2008, ICJ Rep. 2008, p. 399, para. 149, D; Activities in the Border Area, Provisional Measures, Order of 8 March 2011, ICJ Rep. 2011, p. 28, para. 86 (4); Request for Interpretation, Temple of Preah Vihear, Provisional Measures, Order of 18 July 2011, ICJ Rep. 2011, p. 556, para. 69, (C). For details on the manner in which States have responded to this intimation by the Court see Rosenne, “Provisional Measures . . .”, pp. 178–179. 253  See a comprehensive study of the practice in Schulte, “Compliance . . .”, pp. 275–402.

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manner in which the States parties comply with what the Court may decide in future cases in regard to those claims.

Box # 11-16 Invocation of Article 94, para. 2 of the Charter with regard to orders on provisional measures: Practice There have been several situations in which a complaint concerning lack of compliance with an order of the Court indicating provisional measures has been filed before the Security Council but without it being supplemented by an express request for a Council meeting and in consequence no action was taken. This happened in US Hostages, Nicaragua, Cameroon v. Nigeria and Armed Activities (DRC v. Uganda).254 Apart from those occasions, lack of compliance with provisional measures indicated by the ICJ has been brought before the Security Council in the following cases:

(i) Anglo-Iranian Oil Company (United Kingdom v. Iran) In September 1951, the United Kingdom submitted to the Security Council a complaint concerning the failure by Iran to comply with an order of the Court indicating certain provisional measures (Interim Protection, Order of 5 July 1951, ICJ Rep. 1951, p. 89). The case was at that time at the jurisdictional phase, because Iran had filed preliminary objections. This circumstance provided an easy way out for the Council, which simply decided to adjourn its debate on the matter until the Court ruled on its own competence. Eventually, the Court declined to exercise jurisdiction in the case and, as a consequence, the order on provisional measures simply lapsed (Preliminary Objection, Judgment of 22 July 1952, ICJ Rep. 1952, p. 93). The discussion within the Council, largely inconclusive, concentrated on whether or not an order for the indication of provisional measures was covered by Article 94, para. 2 of the Charter. Interestingly, the moving party in this case (the United Kingdom) did not invoke Article 94 of the Charter as a formal basis for its submissions but rather Articles 34 and 35, and put special emphasis in that orders on provisional measures are communicated to the Council by the Court as a matter of course (Article 41, para. 2 of the Statute and Article 77 of the Rules).255 254  For details see Schulte, “Compliance . . .”, p. 39. 255   For narratives see Goodrich et al, “Charter . . .”, pp. 557–558; Tanzi, “Problems . . .”, pp. 28–29.

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(ii) Genocide Convention (Bosnia and Herzegovina v. Yugoslavia) After the Court indicated certain provisional measures by means of an order made on 8 April 1993 (ICJ Rep. 1993, p. 3), Bosnia and Herzegovina submitted a complaint to the Security Council contending that certain actions attributable to Yugoslavia constituted a direct violation of the order. While Bosnia stated that its complaint was made pursuant to Article 94, para. 2 of the Charter, it also requested the Council to take measures under Chapter VII “to enforce the Order of the International Court of Justice.”256 The Council responded promptly by adopting a resolution under Chapter VII in which it directed the parties to take certain measures with regard to the situation. In this resolution the Council took note of the order of the Court but, significantly, made no mention to Article 94, para. 2 of the Charter.257 It is to be noted that the dispute between Bosnia and Herzegovina and Yugoslavia was just a component of a larger and rather complex situation that at that time was already in the agenda of the Council, which had taken action—including enforcement action—in several occasions. The lesson to learn from these cases appears to be that despite that fact that paragraph 2 of Article 94 refers only to “a judgment rendered by the Court” and clearly leaves out orders of the Court—including orders on the indication of provisional measures—affected States have not hesitated to ignore this circumstance and have gone to the Security Council looking for remedial measures for lack of compliance with such orders. The Council—or the Court, for that matter—is far from having taken a definitive stand on the question whether Article 94, para. 2 is applicable to orders on provisional measures.37 However, the last time thus far when this took place the Court had not yet taken a firm stand on the question of the binding effects of its orders on provisional measures, which are now not materially different from judgments with regard to their immediate effect upon the parties to the case. For this reason, it cannot be ruled out that this question may arise anew in future cases.



256  Tanzi, “Problems . . .”, pp. 29–30. 257  S/RES/819 (1993), 16 April 1993.

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Further Reading

Key Works



General Works and Treatises on the Court



Articles and Monographs

S. Rosenne, Provisional Measures in International Law, the International Court of Justice and the International Tribunal for the Law of the Sea (2005) J. Sztucki, Interim Measures in The Hague Court, An Attempt at a Scrutiny (1983)

Dubisson’s CIJ, pp. 223–230 Guyomar’s Commentaire, pp. 468–496 Hudson’s PCIJ, pp. 424–430 Mani’s Adjudication, pp. 276–309 K. Oellers-Frahm, “Article 41”, in Oxford Commentary, pp. 1026–1077 Rosenne’s Law and Practice, vol. 3, pp. 1419–1462 Rosenne’s Procedure, pp. 149–157 Thirlway’s Law and Procedure, Part 12, BYIL, vol. 72 (2001), pp. 77–128

Ch.F. Amerasinghe, Jurisdiction of Specific International Tribunals (2009), pp. 144–163 B. Atkinson Wortley, “Interim Reflections on Procedures for Interim Measures of Protection in the International Court of Justice”, Comunicazioni e studi (1975), pp. 1009–1019 J. Chappez, “Les mesures conservatoires devant la Cour international de Justice”, in C. Apostolidis (Ed.), Les arrets de la Cour internationale de Justice (2005), pp. 45–61 A. Cocatre-Zilgein, “Les measures conservatoires decides par le juge ou par l’arbitre international”, RGDIP, vol. 70 (1966), pp. 5–48 C.H. Crockett, “The Effects of Interim Measures of Protection in the International Court of Justice”, California Western ILJ, vol. 7 (1977), pp. 348–384 E. Dumbauld, Interim Measures of Protection in International Controversies (1932) T.O. Elias, “The International Court of Justice and the Indication of Provisional Measures of Protection”, in Alexandre de Gusmao Foundation-Ministry of External Relations of Brazil, Gilberto Amado Memorial Lectures (1998), pp. 123–146 J. Elkind, Interim Protection , A Functional Approach (1981) P. Gaeta, La giustizia cautelare nel diritto internazionale (2000) P. J. Goldsworthy, “Interim Measures of Protection in the International Court of Justice”, AJIL, vol. 68 (1974), pp. 258–277 L. Gross, “Some Observations on Provisional Measures”, in Y. Dinstein (Ed.), International Law at a Time of Perplexity-Essays in honour of Shabtai Rosenne (1989), pp. 307–323

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P. Guggenheim, “Les mesures conservatoires dans la procédure arbitrale et judiciaire”, RC, vol. 40 (1932), pp. 649–761. E. Hambro, “The Binding Character of Provisional Measures Indicated by the International Court of Justice”, in Festschrift fÜr Hans Wehburg (1956), pp. R. Higgins, “Interim Measures for the Protection of Human Rights”, Columbia Journal of Transnational Law, vol. 36 (1997), pp. 9 ff. Y. Iwamoto, “The Protection of Human Life Through Provisional Measures Indicated by the International Court of Justice”, LJIL, vol. 15 (2002), pp. 345–366 J. Kammerhofer, “The Binding Nature of Provisional Measures of the International Court of Justice: the ‘Settlement’of the Issue in the LaGrand Case”, LJIL, vol. 16 (2003), pp. 67–83 R. Kolb, “Note on New International Case-law Concerning the Binding Character of Provisional Measures”, Nordic JIL, vol. 74 (2005), pp. 117–130 V.S. Mani, “On Interim Measures of Protection: ICJ Practice”, Indian JIL, vol. 13 (1973), pp. 262–272 M. Manouvel, “Metamorphose de l’article 41 du Statut de la CIJ”, RGDIP, vol. 106 (2002), pp. 103–135 J.G. Merrills, “Reflections on the Incidental Jurisdiction of the International Court of Justice”, in M.D. Evans (Ed.), Remedies in International Law: The Institutional Dilemma, 1998, pp. 52–58 S. Oda, “The International Court of Justice viewed from the Bench (1976–1993)”, RC, vol. 244 (1993–VII), pp. 63–75 S. Oda, “Provisional Measures”, in V. Lowe & M. Fitzmaurice, (Eds.), Fifty Years of the International Court of Justice—Essays in Honour of Sir Robert Jennings (1996), pp. 541–556 K. Oellers-Frahm, “Interim Measures of Protection”, in R. Bernhardt (Ed.), Encyclopedia of Public International Law, vol. 2 (1992), pp. 1027–1034 B. H. Oxman, “Jurisdiction and the Power to Indicate Provisional Measures”, in L.F. Damrosch, et al., The International Court of Justice At A Crossroads (1987), pp. 323–354 P. Pescatore, “Les measures conservatoires et les référés”, Société Francaise pour le Droit International, Colloque de Lyon, La Juridiction internationale permanente (1987), pp. 315–362 R. Ranjeva, “La prescription par la Cour international de justice de measures conservatoires a portée militaire”, in E. Yakpo & T. Boumedra (Eds.), Liber Amicorum Judge Mohammed Bedjaoui (1999), pp. 449–460 E. Szabo, “Provisional Measures in the World Court: Binding or Bound to Be Ineffective?”, Leiden JIL, vol. 10 (1997), pp. 475–489 G. Tesauro, “Le misure cautelari della Corte internazionale di Giustizia”, Comunicazioni e studi, vol. 14 (1975), p. 873 ff.

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T. Treves, “The Political Use of Unilateral Applications and Provisional Measures Proceedings”, in J.A. Frowein et al. (Eds.), Verhandeln fur den Frieden, Negotiating for Peace. Liber Amicorum Tono Eitel (2003), p. 463 ff. A.Tzanakopoulos, “Provisional Measures Indicated by International Courts: Emergence of a General Principle of International Law”, RHDI, vol. 57 (2004), pp. 53–84 N.J. Udombana, “Interim Measures: A Comparative Study of Selected International Judicial Institutions”, Indian JIL, vol. 43 (2003), pp. 479–532 K.C. Wellens, “Reflections on some Recent Incidental Proceedings before the International Court of Justice”, in E. Denters & N. Schrijver (Eds.), Reflections on International Law from the Low Countries in Honour of Paul de Waart (1998), pp. 419–429 G. Zyberi, “Provisional Measures of the International Court of Justice in Armed Conflict Situations”, LJIL, vol. 23 (2010), pp. 571–584.

Chapter 12

Challenges to the Court’s Jurisdiction (Preliminary Objections) Since the jurisdiction of the ICJ is entirely consensual, on every occasion that a case is referred to it any of the parties have the option to challenge either the existence of the title of jurisdiction invoked by the other party or its applicability to the case in question. As a general rule this challenge takes the form of preliminary objections field by the respondent, which have to be dealt with after a case has been opened but before the Court has had the chance to deal with the merits of the dispute. There are alternative ways to challenge the Court’s jurisdiction or the admissibility of the suit—either before proceedings on the merits have formally begun or within the framework of the merits themselves—but in most cases such challenges give rise to incidental proceedings concerning preliminary objections. Challenges to the Court’s jurisdiction by the respondent arise often—but not always—when the title of jurisdiction invoked by the applicant is a provision of a treaty or a set of declarations under the Optional Clause.1 This is only natural since general commitments of this type, entered into in advance, are likely to generate a heated debate on the existence of real consent to jurisdiction. In the “brutal” way that a scholar and former member of the Court put it: [w]hat happens is that States subscribe to a treaty, or general jurisdictional instrument or provision (. . .) (probably more out of a, no doubt, praiseworthy desire to be, or to appear to be, good international citizens, than out of any real love for recourse to law), but then, when, in respect to a concrete case, it comes to implementing the obligations thus assumed, they find it inconvenient to do so and seek ways of avoidance.2 Thus, when a State avails itself of an ante hoc title of jurisdiction and resorts to the Court unilaterally, assuming the role of applicant, the respondent is always entitled to mount a challenge either to the jurisdiction of the Court to 1  Challenges to jurisdiction can also be made when the title of jurisdiction is ad hoc or post hoc, but those instances are less likely to occur. 2  Sir G. Fitzmaurice, “The Problem of the ‘Non-Appearing’ Defendant Government”, BYIL, vol. 51 (1980), p. 100.

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entertain the dispute or to the admissibility of the application.3 This assumes that, at the very least, the State interested in challenging the existence of jurisdiction will be ready to plead its case on jurisdiction before the Court and will abide by its decision on that matter. In extreme cases, if the authorities of the party concerned simply do not have confidence in the Court or for political reasons want to show their displeasure at being sued, they might decide to refrain from appearing in the case altogether, thus triggering the application of Article 53 of the Statute.4 The present chapter will examine the ways in which States frame these challenges before the Court. This course of action is often adopted in litigation before the ICJ because, since the Court’s jurisdiction is entirely voluntary, it is to be expected that in most cases the State named as respondent will find convincing arguments to advance the thesis that its consent is lacking or that it exists but is not applicable to the case at hand. This is precisely what challenging the Court’s jurisdiction entails and the result of the frequency of these challenges is that a considerable portion of the Court’s work must be allotted to examining objections to its own jurisdiction rather than addressing the serious problems at issue in the cases that are brought before it.5 It is important to stress that in the matter of procedures concerning jurisdiction international litigation is markedly different from domestic tribunals, since the very structure of the legal orders involved differs greatly. In the words of an authority, writing with respect to the PCIJ: Whereas, for example, in the municipal legal order in cases of contention between private persons (or private and public bodies put on the same footing with them in this connection), by virtue of the sovereign will of the legislature, the jurisdiction of the courts is the rule and their lack of jurisdiction a rare exception, under present circumstances, alas, in the international order lack of jurisdiction is still the rule and jurisdiction a comparatively rare exception. It goes without saying that it is this latter characteristic of the international legal order which above all greatly affects the problem of judicial competence: experience proves that a defendant State will, if it sees the slightest possibility, raise the objection 3  For a perceptive discussion of the role of consent with regard to the method of seisin see the dissenting opinion of judge Shahabuddeen in the Qatar v. Bahrain case (Jurisdiction and Admissibility II, Judgment of 15 Feb. 1995, ICJ Rep. 1995, pp. 59–62). 4  See Chapter 18 (ii). 5  R. Higgins, “Jurisdiction at the International Court of Justice,” in R. Higgins, Themes and Theories—Selected Essays, Speeches, and Writings in International Law (2009), p. 1387.

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of lack of jurisdiction in the Court, and time and again the Court is compelled first of all and in limine litis to inquire into how far that defence is tenable.6 Thus, challenging the Court’s jurisdiction is an entirely legitimate course of action for a State who is named as respondent in a case before the Court and is convinced that it has not given its real consent with regard to a specific dispute. There is nothing inherently reproachable in adopting this course of conduct and efforts to escape an unwanted litigation before a court whose jurisdiction is entirely consensual should not be the subject of criticism, provided of course that the State involved is not attempting to evade a consent already expressed.7 Not for nothing the Court has remarked that “[a] Respondent’s right to raise preliminary objections objections, that is to say, objections which the Court is required to rule on before the debate on the merits begins, is a fundamental procedural right.”8 For that matter, one might rather reproach the attitude of a State who tries at all costs to bring another State, against its will, before the Court. When a State has given its consent, it should be prepared to appear before the Court if proceedings are introduced against it; when it has not given it, however, no such proceedings should ever be commenced. In the latter circumstance it is entirely proper for the respondent State to make use of the instruments that the Court’s law and practice place at its disposal in order to block the Court’s involvement in matters that are essentially alien to it and that should never become the subject of international adjudication. In this context, it may be recalled that on occasion applicant States have submitted to the Court the proposition that the respondent is abusing its rights under the Statute or the Rules by advancing certain jurisdictional objections. In a recent case in which this contention was exposed, the Court dismissed it in particularly strong terms and stated that the filing of objections can in itself be helpful for the Court’s exercise of its judicial functions. According to the Court, The Court has taken note of the withdrawal of the fourth preliminary objection of Yugoslavia and has rejected the other preliminary objections. In conclusion, the Court emphasizes that in so doing it does not 6  J.H.W. Verzijl, “Preliminary Objections in the Law of Inter-State Procedure”, in Verzijl’s Jurisprudence, vol. 1, p. 533. 7  Rosenne’s Law and Practice, vol. 2, pp. 862–863. 8  Diallo, Merits, Judgment of 30 Nov. 2010, ICJ Rep. 2010, p. 658, para. 44.

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consider that Yugoslavia has, in presenting those objections, abused its rights to do so under Article 36, paragraph 6, of the Statute of the Court and Article 79 of the Rules of Court. The Court rejects the request made to that end by Bosnia and Herzegovina in its final submissions. The Court must, in each case submitted to it, verify whether it has jurisdiction to deal with the case, and, if necessary, whether the Application is admissible, and such objections as are raised by the Respondent may be useful to clarify the legal situation. As matters now stand, the preliminary objections presented by Yugoslavia have served that purpose. (Genocide Convention (Bosnia), Preliminary Objections, Judgment of 11 July 1996, ICJ Rep. 1996, p. 622, para. 46)

An entirely different situation obtains when a State files an application against a State who has not yet consented to the Court’s jurisdiction and invites it to do so with regard to the dispute at hand, on an entirely post hoc basis. This “unilateral arraignment” technique was examined above in the context of the discussion on the doctrine of forum prorogatum.9 Similarly, it is also interesting to register the legal consequences that a decision by a respondent State not to challenge the Court’s jurisdiction might entail. If it belongs to the group of States who have accepted the Court’s jurisdiction either by treaty or by a declaration under the Optional Clause, the inevitable conclusion would be that the authorities of that State have decided to participate in the litigation and to organize its defense before the Court. However, if it is a State that has never consented to the Court’s jurisdiction with regard to the applicant State, it can always submit itself to the Court then and there by tacitly accepting the jurisdiction through the performance of one or more “conclusive acts” from which an intention to appear before the Court can be inferred (forum prorogatum). Under established case law, a crucial factor for the Court’s ability to affirm jurisdiction on this basis is the refrainment of the State named as respondent from challenging the Court’s jurisdiction, since from this it can be inferred that that party might “be held to have acquiesced in the jurisdiction of the Court.”10

9  See Chapter 2, f ). 10  ICAO Council, Judgment of 18 August 1972, ICJ Rep. 1972, p. 52, para. 13.

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The Principle

The legal basis for any challenge to the Court’s jurisdiction can be found in paragraph 6 of Article 36 of the Statute. This provision embodies in the following terms a general rule that is a well-established principle of international judicial law, generally referred to as the “jurisdiction as to jurisdiction” principle (“compétence de la compétence” or “Kompetenz-Kompetenz”): 6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.

Box # 12-1

Origins of Article 36, para. 6 of the Statute

The draft-scheme for a statute prepared by the advisory committee of jurists contemplated in Article 34 that the future Court would possess binding jurisdiction, in the sense that the States ratifying or acceding to the Statute would submit themselves to the Court’s jurisdiction over disputes concerning the matters listed therein (a list lifted from Article 13 of the Covenant, with one small addition11). The draft also contained a clause conferring upon the Court the power to settle any eventual dispute as to a given case falling within those categories. It read as follows: In the event of a dispute as to whether a certain case comes within any of the categories above mentioned, the matter shall be settled by the decision of the Court.12 When this text was considered by the Council of the League, the concept of binding jurisdiction was quickly abandoned and replaced by an entirely voluntary jurisdiction. At the Assembly of the League, two major changes were introduced. On the one hand, the Optional Clause system was adopted, as a compromise between obligatory and voluntary jurisdiction; on the other, the last clause of the article was redrafted in order to considerably enlarge its scope, 11  The addition related to cases concerning “the interpretation of a sentence passed by the Court.” This was really unnecessary, as a separate provision in the draft-scheme provided for the Court’s jurisdiction to interpret its own judgments (Article 58). Surely, this is why the addition was subsequently deleted. 12  PCIJ, Procès-verbaux, p. 680.

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extending it to cover all aspects concerning the existence of jurisdiction. The new formula became the fourth (unnumbered) paragraph of Article 36 of the 1920 Statute, reading as follows: In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court. This wording was adopted without changes at the San Francisco Conference.13 Interestingly, in the French version of the Statute paragraph 6 of Article 36 uses the term “contestation” instead of “différend,” which is the word used in paragraph 2 or in Article 38. The same discrepancy can be observed in the Spanish version, for in Article 36, para. 6 “disputa” is used, while Article 38 talks about “controversias.” This, however, appears not to have had so far any repercussions on the interpretation of those provisions. With this background, it is interesting to recall that in the Nottebohm case Guatemala attempted a construction of Article 36, para. 6 which resembled the formula put forward by the Committee of Jurists. The Court had no difficulty in quickly rejecting this restrictive interpretation. The Government of Guatemala . . . considers that paragraph 6 of Article 36 only relates to disputes concerning jurisdiction in respect of the application of paragraph 2 of that Article, and that it is therefore confined to disputes for the solution of which it is necessary to ascertain whether the claim falls within one of the categories enumerated under letters a, b, c and d of that paragraph. (. . .) Paragraph 6 of Article 36 is drafted in the broadest terms; there is nothing in it to indicate the restriction which the Government of Guatemala seeks to introduce by means of an interpretation. (Nottebohm, Preliminary Objection, Judgment of 18 Nov. 1953, ICJ Rep. 1953, p. 119)

It follows that one of the ordinary functions of the Court is that of deciding whether it has jurisdiction in a case that has been submitted to it, a question that as a general rule will come before it because one of the States parties to 13  For a comment see R.P. Anand, Compulsory Jurisdiction of the International Court of Justice (Rev. 2nd. Ed., 2008), pp. 258–259.

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a case decides to raise it.14 Indeed, the Court has explained that for the rule in paragraph 6 of Article 36 to be applied the only condition to be met is the existence of a dispute concerning the existence of jurisdiction: The Court considers that where the contentions of the parties disclose a “dispute as to whether the Court has jurisdiction”, in accordance with Article 36, paragraph 6, of the Statute, “the matter shall be settled by the decision of the Court”, that is to say by a judicial decision stating the reasons on which it is based and rendered after fully hearing the parties. (Nicaragua, Provisional Measures, Order of 10 May 1984, ICJ Rep. 1984, p. 178, para. 21)

The Court’s jurisdiction to decide as to its own jurisdiction is a special power that has a statutory nature, as far as it has been conferred to it by all of the States parties to that instrument—and also, under certain conditions, by other States entitled to appear before the Court—and no additional consent by the States engaged in litigation is required. This is reinforced by the provisions of Article 53, which provides that whenever one of the parties does not appear before the Court, or fails to defend its case, the Court must satisfy itself “that it has jurisdiction in accordance with Articles 36 and 37.” In reference to this, during the discussions on the revision of the Rules of the PCIJ, judge Huber made the important observation that “[a]ll States which had ratified the Statute had recognised the Court’s right to decide, even in their absence, whether Articles 36 and 37 of the Statute were aplicable in a given case.”15 This is also a jurisdiction of an incidental nature, because when it is activated separate (and often preliminary) proceedings on the questions of jurisdicition and admissibility are opened. This is true even in cases in which the Court is called upon to deal with questions of jurisdiction along with the merits of the case. In those instances, as will be explained below, any decision on questions of the merits must be preceded by an affirmative decision on jurisdiction and admissibility. However, the compétence de la compétence principle has a deeper foundation in international law and its ultimate raison d’être lies in the fact that, because the jurisdiction of the Court is entirely voluntary, no State is bound to appear before it unless and until its jurisdiction is duly established. The Court stated as much in the ICAO Council case, in which it found that in cases in which the 14  On the consideration of jurisdictional questions ex officio by the Court see b) below. 15  PCIJ D 2 (1922), p. 201.

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existence of jurisdiction was at issue, an “essential point of legal principle” was involved, namely, “[t]hat a party should not have to give an account of itself on issues of merits before a tribunal which lacks jurisdiction in the matter, or whose jurisdiction has not yet been established.”16

Box # 12-2

“ Compétence de la compétence” in the Court’s case law17

In the Interpretation of the Greco-Turkish Agreement case, the PCIJ referred to “[t]he principle that, as a general rule, any body possessing jurisdictional powers has the right in the first place to determine itself the extent of its jurisdiction” (Advisory Opinion No. 16, 28 August 1928, PCIJ B 16, p. 20). Further, in the Nottebohm case, the present Court explained in the following terms the essence of this rule, underlining its relevance with regard to international tribunals of a permanent nature: Paragraph 6 of Article 36 merely adopted, in respect of the Court, a rule consistently accepted by general international law in the matter of international arbitration. Since the Alabama case, it has been generally recognized, following the earlier precedents, that, in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction.18 This principle 16  ICAO Council, Judgment of 18 August 1972, ICJ Rep. 1972, p. 56, para. 18. 17  See in general G. Berlia, « Jurisprudence des tribunaux internationaux en ce qui concerne leur compétence », RC, vol. 88 (1955), pp. 109–157; I.F.F. Shihata, The Power of the International Court to determine its own jurisdiction-Compétence de la compétence (1965). For recent appraisals see Ch. Brown, “The Inherent Powers of International Courts and Tribunals,” BYIL, vol. 76 (2005), pp. 212–215; E. Wyler, “La determination par la Cour de sa proper compétence”, in C. Apostolidis (Ed.), Les arrets de la Cour internationale de Justice (2005), pp. 21–43; Ch.F. Amerasinghe, Jurisdiction of Specific International Tribunals (2009), pp. 22–32; C. Tomuschat, “Article 36”, in Oxford Commentary, MN 109–141, pp. 694–710. 18  The invocation of the Alabama precedent in this context has been criticized as unnecessary (because of the presence of paragraph 6 of Article 36 of the Court’s Statute) and inapposite (because the award of the tribunal does not actually contain a finding on the self-determination of jurisdiction). See Scharzenberger’s Judicial Law, pp. 50–56; Shihata, “The Power. . .”, pp. 18–19. It also appears that the first distinct formulation of the compétence de la compétence principle in arbitral practice was not made in that case but by a

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was expressly recognized in Articles 48 and 73 of the Hague Conventions of July 29th, 1899, and October 18th, 1907, for the Pacific Settlement of International Disputes (. . .). The Rapporteur of the Convention of 1899 had emphasized the necessity of this principle, presented by him as being “of the very essence of the arbitral function and one of the inherent requirements for the exercise of this function”. This principle has been frequently applied and at times expressly stated. This principle, which is accepted by general international law in the matter of arbitration, assumes particular force when the international tribunal is no longer an arbitral tribunal constituted by virtue of a special agreement between the parties for the purpose of adjudicating on a particular dispute, but is an institution which has been pre-established by an international instrument defining its jurisdiction and regulating its operation, and is, in the present case, the principal judicial organ of the United Nations. (. . .) Article 36, paragraph 6, suffices to invest the Court with power to adjudicate on its jurisdiction in the present case. But even if this were not the case, the Court, “whose function is to decide in accordance with international law such disputes as are submitted to it” (Article 38, paragraph 1, of the Statute), should follow in this connection what is laid down by general international law. The judicial character of the Court and the rule of general international law referred to above are sufficient to establish that the Court is competent to adjudicate on its own jurisdiction in the present case. (Nottebohm, Preliminary Objection, Judgment of 18 Nov. 1953, ICJ Rep. 1953, pp. 119–120)19

In the Nicaragua case, the Court recalled that the decisions it makes under Article 36, para. 6 of its Statute have the force of res judicata provided for in Articles 59 and 60 of the Statute.

Mixed Commission set up under the Jay Treaty of 1794 between Great Britan and the US in the Betsey case (ILC Draft Convention, p. 45). 19  Reaffirmed verbatim in the Arbitral Award (Guinea-Bissau v. Senegal) case (Merits, Judgment of 12 Nov. 1991, ICJ Rep. 1991, p. 53, para. 46).

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Under Article 36, paragraph 6, of its Statute, the Court has jurisdiction to determine any dispute as to its own jurisdiction, and its judgment on that matter, as on the merits, is final and binding on the parties under Articles 59 and 60 of the Statute. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 24, para. 27)20

On the other hand, the compétence de la compétence principle—especially when applied to arbitral proceedings—is not unlimited, for, as judge Shahabuddeen stated in his separate opinion in the Arbitral Award (Guinea Bissau v. Senegal) case: The foundation of the Court’s approach lies in the concept of la compétence de la compétence. Certain aspects of the scope and basis of this power may be briefly noticed for present purposes. First, as to the scope of the power. This is indeed wide. But, wide as is the power, its exercise is, of course, limited by the consideration that its purpose is to ensure that the mission authorized by the compromis does not fail for want of power to interpret the latter, as historically it was once feared possible; the purpose is not to permit the Tribunal, through possible misinterpretations, to endow itself with an original jurisdiction materially different from that contemplated by the Parties. This, if it happened, would be minous to the older and even more fundamental principle extra compromissum arbiter nihil facere potest. As observed by one commentator, recalling the position taken by the United States commissioner in The Betsey, « La règle de la compétence de la compétence et l’excès de pouvoir ne se concevaient pas l’un sans l’autre: mieux ils s’expliquaient l’un par l’autre  » (Georges Berlia, «  Jurisprudence des tribunaux internationaux en ce qui concerne leur compétence  », Collected Courses of the Hague Academy of International Law, Vol. 88, p. 109, at p. 129). In the words of another, « si l’arbitre est juge de sa compétence, il n’en est pas le maître » (Charles Rousseau, Droit international public, Vol. 5, 1983, p. 326, para. 312). That the two principles referred to are in tension has been noticed in the literature (R.Y. Jennings, “Nullity and Effectiveness in International Law”,

20  To a large extent, this question had been left open by the Court in the South West Africa decision (Second Phase, Judgment of 18 July 1966, ICJ Rep. 1966, pp. 36–37, para. 59).

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in Cambridge Essays in International Law, Essays in Honour of Lord McNair, 1965, p. 64, at p. 83). In the present case, that general tension surfaces as a specific legal problem needing to be addressed and resolved by the Court. In short, la compétence de la compétence being not absolute but qualified, the question here, as in all cases, is not whether the Tribunal has exercised the competence simpliciter, but whether the Tribunal has exercised it within the bounds to which it is always and necessarily subject. (Arbitral Award (Guinea-Bissau v. Senegal), Merits, Separate Opinion of Judge Shahabuddeen, ICJ Rep. 1991, p. 108)

In the Genocide Convention (Croatia) case, the Court faced the contention that because the matter in dispute concerned the question of access and not that of jurisdiction proper, paragraph 6 of Article 36 was not applicable and the Court lacked the power to decide. The Court rejected this assertion and concluded rather boldy that “[t]he Court always posseses the compétence de la compétence” (emphasis added). The Court also made the point that, even if irregularly seised, it must have the power to decide whether it was properly seised: [t]he Court cannot endorse the radical interpretation advanced by Serbia, namely that whenever it is seised by a State which does not fulfil the conditions of access under Article 35, or seised of a case brought against a State which does not fulfil those conditions, the Court does not even have the compétence de la compétence, the competence to decide whether or not it has jurisdiction. Nothing of the sort is to be found in the 2004 Judgments cited by Serbia during the hearings. In those Judgments, the Court did no more than indicate that the question of access to the Court was a “fundamental one” which needed to be examined before the others, and that if the Applicant did not fulfil the Article 35 conditions the Court had to deduce from that fact that it had not been “properly seised”. Not being “properly seised” does not mean that the Court lacks the competence necessary to decide on its own jurisdiction, in other words to decide whether it has been properly seised and whether the conditions necessary to allow it to hear the case on the merits have been satisfied. That is true where it is the applicant which, as in the Legality of Use of Force cases, does not fulfil the conditions for access to the Court. It is true a fortiori when it is the respondent which allegedly does not meet those conditions since in such circumstances the act of seising the Court, performed by a State which does have access to the Court, is not at issue: that is the case

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in the present proceedings. The Court always possesses the compétence de la compétence (see Article 36, paragraph 6, of the Statute). (Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, pp. 441–442, para. 86)21

In the Rules of Court, challenges to the Court’s jurisdiction are envisioned as one modality of incidental proceedings which are governed in detail by the provisions of Article 79. The Rules in force were adopted in 1978 and in December 2000 the Court introduced significant changes to some key provisions, including Article 79. An important difference is that while Article 36, para. 6 of the Statute addresses only jurisdiction, Article 79 of the Rules explicitly mentions both jurisdiction and admissibility.22 This notwithstanding, it has been recognized that there is no reason to doubt that Article 36, para. 6 is applicable equally to questions of admissibility.23 Lastly, challenges to the Court’s jurisdiction are also mentioned in two of the Practice Directions adopted by the Court on October 2001 and amended on July 2004 (Practice Directions V and VI).

Box # 12-3 Preliminary objections in the Rules of Court: Evolution24 The 1922 Rules of Court were silent on the question of preliminary objections, and it was only in 1926 that a new Article 38 was added dealing with this matter, on the basis of the practice followed in the Mavrommatis and Polish Upper Silesia cases. Article 38 was replaced in 1936 by Article 62, placed in Subsection II (“Occasional Rules”) of Section I (“Procedures before the full Court”) which contained a more systematic attempt at regulating this

21  The Court also remarked: “In any event the Court notes that Serbia asks it in its principal submission to decide by a judgment that it lacked jurisdiction to entertain Croatia’s Application.” (ICJ Rep. 2008, p. 442, para. 86). 22  J. Crawford & A. Pellet, “Anglo Saxon and Continental Approaches to Pleading Before the ICJ”, in I. Buffard et al (Eds.), International Law between Universalism and Fragmentation, Festschrift in Honour of Gerhard Hafner (2008), p. 834). On the difference of objections to jurisdiction and objections to admissibility see Box 12-11 below. 23  Tomuschat, “Article 36”, MN 119, p. 698. 24  For a detailed narrative see Rosenne’s Law and Practice, vol. 2, pp. 872–889.

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procedure. Noticeably, this provision contemplated for the first time in express terms that, as an alternative to giving its decision on this matter at the preliminary objections phase, the Court could always join the objections to the merits (paragraph 5).25 In 1946 this provision was subject to minor but significant changes and in 1972 it was amended and became Article 67. The 1972 text was left unchanged in the reform of 1978 but was renumbered as Article 79 and placed in a new subsection 2 of Section d (“Incidental Proceedings”) of Part III (“Proceedings in Contentious Cases”). On 5 December 2000 two new paragraphs were added to Article 79. The most significant amendments are those of 1972 and 2000.26 First of all, the 1972 reform did away with the power that the Court had to join an objection to the merits, as an alternative to deciding upon it, i.e. accepting it or overruling it. The pertinent provision was the first sentence of paragraph 5 of Article 62 of the 1946 Rules, which read as follows: After hearing the parties the Court shall give its decision on the objection or shall join the objection to the merits. The new formula, introduced in 1972, reads as follows: After hearing the parties, the Court shall give its decision in the form of a judgment, by which it shall either uphold the objection, reject it, or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character. Secondly, a new paragraph was introduced (paragraph 6, which was renumbered as 8 in the 2000 amendment) empowering the Court to “request the

25  Interestingly, under this rule the joining of an objection to the merits was invariably made by means of an order (Hudson’s PCIJ, p. 292). This was done in four occasions, namely: Prince von Pless, Order of 4 Feb. 1933, PCIJ A/B 52; Pajzs, Csáky, Esterházy, Order of 23 May 1936, PCIJ A/B 66; Losinger, Order of 27 July 1936, PCIJ A/B 67; and Panevezys-Saldutiskis Railway, Order of 30 June 1938, PCIJ A/B 75. 26  For comprehensive studies see E. Jiménez de Aréchaga, “The Amendment to the Rules of Procedure of the International Court of Justice,” AJIL, vol. 67 (1973), pp. 1–22; S. Rosenne, “The 1972 Revision of the Rules of the ICJ”, Israel Law Review, vol. 8 (1973), pp. 197–253; U. Villani, “Preliminary Objections in the New Rules of the International Court of Justice,” Italian YIL, vol. 1 (1975), pp. 206–221; D.W. Prager, “The 2001 Amendments to the Rules of Procedure of the ICJ,” LPICT, vol. 1 (2002), pp. 155–187.

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parties to argue all questions of law and fact, and to adduce all evidence” which bear on the issue of jurisdiction. This was done with the declared aim of enabling the Court to determine its jurisdiction at the preliminary stage of the proceedings. In the third place, paragraph 1 of then Article 67 represents the first attempt by the Court at cathegorizing the pleas that can be raised as preliminary objections. It distinguishes between objections to the jurisdiction of the Court, objections to the admissibility of the application and any other objections “the decision upon which is requested before any further proceedings on the merits.” Lastly, a new paragraph 8 (later renumbered as 10) was added in order to authorize the Court to give effect to any agreement of the parties that a preliminary objection be heard and determined within the framework of the merits. This provision simply codifies previous practice that has never given rise to difficulties. As for the 2000 amendement, it covered two main questions. First, a strict time-limit was introduced for the filing of preliminary objections, replacing the corresponding sentence in Article 79, para. 1 of the 1978 Rules (allowing for objections to be made “within the time-limit fixed for the delivery of the Counter-Memorial”) with a new one requiring that they be made “as soon as possible, and not later than three months after the delivery of the Memorial.” Second, two new paragraphs were added to what is now Article 79 of the Rules, intended to govern the situation arising when the method for challenging the jurisdiction of the Court or the admissibility of the application is not the classical one of filing preliminary objections but rather the different procedure of devoting the first round of pleadings to any questions of jurisdiction or admissibility that may arise before the first pleadings on the merits are exchanged. The text of the new provisions is as follows: 2. Notwithstanding paragraph 1 above, following the submission of the application and after the President has met and consulted with the parties, the Court may decide that any questions of jurisdiction and admissibility shall be determined separately. 3. Where the Court so decides, the parties shall submit any pleadings as to jurisdiction and admissibility within the time-limits fixed by the Court and in the order determined by it, notwithstanding Article  45, paragraph 1. The impact of these changes upon the regime of the challenges to the Court’s jurisdiction will be discussed below.

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Ex officio Consideration of Jurisdictional Matters

As a matter of principle, the Court cannot entertain the merits of a case brought before it without having determined that it is entitled to do so.27 This means that the Court always has to satisfy itself as to the existence of jurisdiction, an operation about which the Court has stated that “[it] is . . . not a question of fact, but a question of law to be resolved in the light of the relevant facts.”28 What sometimes has been doubted is whether the Court has the power to examine such a question proprio motu in circumstances in which the parties themselves have not raised it as such. In this context, it has been pointed out that Article 36, para. 6 is applicable only “In the event of a dispute as to whether the Court has jurisdiction,” a wording that strongly suggests that the Court would be called to resolve jurisdictional issues only is they are raised by a party.29 The legislative history of the Statute is illustrative in this respect, because in the draft scheme for the Statute of the PCIJ adopted by the 1920 Advisory Committee of Jurists provision was made for the Court to “first of all” decide whether the conditions for the existence of jurisdiction contemplated in then Article 33—the existence of a dispute, the exhaustion of diplomatic negotiations with regard to it and the failure by the parties to agree on resort to another jurisdiction—had been complied with. Referring to this clause, Brown Scott remarked: As the Permanent Court of International Justice is a court of limited jurisdiction, it naturally follows that it must, itself, determine its power to hear and determine a cause, even though the parties to it should not contest its jurisdiction. For without jurisdiction its action is a nullity, and its judgment void.30 However, as it was already mentioned, this provision was not retained in the Statute, having been abandoned when the Council of the League studied the draft scheme.31

27  Tomuschat, “Article 36”, Oxford Commentary, MN 30, p. 654. 28  Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment of 20 Dec. 1988, ICJ Rep. 1988, p. 76, para. 16. 29  H. von Mangoldt & A. Zimmermann, “Article 53”, Oxford Commentary, MN 54, pp. 1344–1345. 30  Brown Scott’s Project, p. 97. 31  PCIJ Documents, pp. 44, 47.

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Several individual statements by members of the Court can be quoted in this regard. Firstly, the observations by judge Kellog in the Free Zones case, in which he remarked that “[t]he question of jurisdiction can always be raised at any stage of the proceeding. It is not even necessary that it be raised by one of the litigant Parties. It may and should be raised by the Court on its own initiative, as was done in the Eastern Carelia case.”32 Secondly, the dissenting opinion of judge Urrutia in the Electricity Company case, in which he stated in particularly clear terms: “It is not only the right, but the duty of the Court ex officio to make sure of its jurisdiction, that is of its power to take cognizance of a case in accordance with the texts governing the said jurisdiction.”33 Thirdly, the separate opinion by judge McNair in the Anglo-Iranian Oil Co. case, in which he stated unambiguously that an international tribunal cannot consider a question of jurisdiction as solely a question inter partes, and that therefore the Court must assure itself that any State that has been brought before it by virtue of its acceptance of the Court’s jurisdiction has effectively consented to that jurisdiction.34 The only provision in the Statute covering this situation is Article 53, para. 2, dealing with the situation of lack of appearance, where it is provided that in those cases “The Court must . . . satisfy itself . . . that it has jurisdiction in accordance with Articles 36 and 37.” The Court has stated in the following terms the manner in which it conceives its task under Article 53: [i]n accordance with its settled jurisprudence, the Court, in applying Article 53 of its Statute, must first take up, proprio motu, any preliminary question, whether of admissibility or of jurisdiction, that appears from the information before it to arise in the case and the decision of which might constitute a bar to any further examination of the merits of the Applicant’s case. (US Hostages, Merits, Judgment of 24 May 1980, ICJ Rep. 1980, p. 18, para. 33)35

The Permanent Court considered ex officio preliminary questions of jurisdiction and admissibility on a few occasions.36 More importantly, in the case 32  PCIJ A 24, p. 43. 33  Electricity Company, Preliminary Objection, PCIJ A/B 77, pp. 102–103. 34  Anglo/Iranian Oil Co., Preliminary Objection, Individual Opinion of President McNair, ICJ Rep. 1952, p. 116. 35  Interestingly, the Court mentioned here its “settled jurisprudence” but did not quote any case as authority. 36  Cases concerning the Prince von Pless Administration (Order of 4 Feb. 1933, PCIJ A/B 52, p. 15) and, less clearly, Peter Pázmány University (PCIJ C 73, p. 1415; Judgment of 15 Dec. 1933,

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concerning the Factory at Chorzów it suggested that it felt authorized to consider these questions ex officio, when it remarked that “[t]he Court will, in the event of an objection—or when it has automatically to consider the question— only affirm its jurisdiction provided that the force of the arguments militating in favour of it is preponderant.”37 On the basis of this dictum, the view was expressed that the Court might feel bound to examine its own jurisdiction and could be forced to refuse jurisdiction “[o]n its own behalf and on its own initiative.”38 In the present Court the cases in which this question has been addressed warrant the conclusion that the Court possesses an inherent right to consider jurisdictional questions motu proprio. The existence of this broad power was recognized in passing by the Court in the ICAO Council case, when it stated that: [T]he Court must . . . always be satisfied that it has jurisdiction, and must if necessary go into that matter proprio motu. (ICAO Council, Judgment of 18 Aug. 1972, ICJ Rep. 1972, p. 52, para. 13)39

Along the same lines, in its parallel decisions on jurisdiction in the two Fisheries Jurisdiction cases, handed out just a few months after the ICAO Council case, the Court referred to this as “its settled jurisprudence” and stated that its duty “to make this examination on its own initiative” was reinforced by the terms of Article 53 of the Statute of the Court.40 This wording suggests that the Court considers that it has a duty in this regard in all cases that are submitted to it and that this duty is simply reinforced in cases of non-appearance by virtue of the express provisions of Article 53.

PCIJ A/B, p. 220). For a comment in this context see Rosenne’s Law and Practice, vol. 2, pp. 930. 37  Jurisdiction, Judgment No. 8, 26 July 1927, PCIJ A 9, p. 32 (emphasis added). 38  E. Hambro, “The Jurisdiction of the International Court of Justice”, RC, vol. 76 (1950-I), p. 213. Per contra, in the Minority Schools case judge Huber was quite firm in expressing the view that the Court was not called upon ex officio to consider whether it has jurisdiction, save for cases in which Article 53 was applicable (Dissenting Opinion of Judge Huber, PCIJ A 15, p. 53). 39  Reaffirmed in Aegean Sea Continental Shelf, Jurisdiction, Judgment of 19 Dec. 1978, ICJ Rep. 1978, p. 8, para. 15 and again in Jurisdictional Immunities, Merits, Judgment of 3 Feb. 2012, para. 40. 40  Fisheries Jurisdiction (United Kingdom v. Iceland)(Germany v. Iceland), Jurisdiction of the Court, Judgments of 2 Feb. 1973, ICJ Rep. 1973, p. 7, para. 12 and p. 54, para. 13.

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Further, in the Genocide Convention (Bosnia) case the Court recognized that “[t]he Court must, in each case submitted to it, verify whether it has jurisdiction to deal with the case, and, if necessary, whether the Application is admissible”;41 and in the Arrest Warrant case it confirmed that “[i]t is in any event for the Court to ascertain in each case whether it has jurisdiction.”42 The Court has also recognized that it is bound to examine ex officio the question of access, as a precondition for the exercise of jurisdiction.43 Likewise, it has said as much as to the subsistence of a real dispute at the time that the decision is rendered: [i]t is for the Court to satisfy itself, whether at the instance of a party or proprio motu, that a dispute has not become devoid of purpose since the filing of the Application and that there remains reason to adjudicate that dispute. (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction, Judgment of 4 Dec. 1998, ICJ Rep. 1998, p. 468, para. 88)

c)

“Manifest Lack of Jurisdiction”

As was already discussed in a previous chapter, the Court has adopted the position that in order to be able to grant a request for provisional measures the requesting party must show that it has “prima facie jurisdiction.”44 However, in several cases in which such a request has been made the respondent argued that, in addition to rejecting the request for provisional measures, the Court must remove the case from the General List because, not only that test is not satisfied but there is “manifest lack of jurisdiction” (“incompétence manifeste de la Cour en l’espèce”).45 The Court has faced this question in a number of cases. To begin, the Nuclear Tests cases may have been the first in which a State named as respondent claimed that “[t]he Court was manifestly not competent” and, while 41  Genocide Convention (Bosnia), Preliminary Objections, Judgment of 11 July 1996, ICJ Rep. 1996, p. 622, para. 46. 42  Arrest Warrant, Provisional Measures, Order of 8 Dec. 2000, ICJ Rep. 2000, p. 199, para. 63. 43  Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 94, para. 122. 44  See Chapter 11, a). 45  This question is also discussed with regard to the notion of the summary dismissal of proceedings. See Chapter 9, a).

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adopting the stance of not appearing in the proceedings, requested the Court to summarily remove the case from its General List.46 In its decision declaring the applications without object the Court found that in the circumstances of these cases what it called “the procedure of summary removal from the list” would not be appropriate.47 Interestingly enough, in the previous Fisheries Jurisdiction cases the (non-appearing) respondent did not invoke a “manifest lack of jurisdiction” as such, but the Court based its order on the indication of provisional measures on its belief that “[i]t ought not to act under Article 41 of the Statute if the absence of jurisdiction on the merits is manifest”.48 This is, of course, the genesis of the prima facie test of jurisdiction applicable in proceedings on provisional measures, but, starting with the following year’s orders in the Nuclear Tests cases, the formula coined by the Court dropped the expression quoted in italics.49 In two of the Kosovo cases, those against Spain and the United States, the Court dismissed the request for provisional measures submitted by the applicant and found that it “manifestly lack[ed] jurisdiction to entertain Yugoslavia’s application.” The Court added what may be construed as the rationale for removing a case from the List in cases of this kind: [w]ithin a system of consensual jurisdiction, to maintain on the General List a case upon which it appears certain that the Court will not be able to adjudicate on the merits would most assuredly not contribute to the sound administration of justice. (Kosovo, (Serbia and Montenegro v. Spain)(Serbia and Montenegro v. USA), Orders of 2 June 1999, ICJ Rep. 1999, p. 73, para. 35 and p. 925, para. 29)50

From this dictum it could be concluded that “manifest lack of jurisdiction” exists wherever there is a case “[u]pon which it appears certain that the Court will not be able to adjudicate on the merits,” something that represents a fairly 46  Nuclear Tests, Interim Protection, Order of 22 June 1973, ICJ Rep. 1973, p. 100, para. 6. 47  Nuclear Tests, Judgments of 25 July 1974, ICJ Rep. 1974, p. 257, para. 14 and p. 461, para. 14. In the 1995 sequel to this (Nuclear Tests (Request for Examination) case), France argued again before the Court that “[t]he Court manifestly lacked jurisdiction” (Provisional Measures, Order of 22 Sept. 1995, ICJ Rep. 1995, p. 293, para. 13). For the procedure used in that case, which defies any attempt at classification, see Box # 5-10. 48  Interim Protection, Order of 17 August 1972, ICJ Rep. 1972, p. 15, para. 15 and p. 33, para. 16, emphasis added. 49  See Box # 11-3. 50  This had been anticipated, quite accurately and using the very expression “manifest lack of jurisdiction,” in Mani’s Adjudication, p. 89.

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high threshold.51 It is important to distinguish a situation of “manifest lack of jurisdiction” from that of unilateral arraignment under Article 38, para. 5 of the Rules. In the latter, since the application discloses no subsisting title of jurisdiction, but merely an invitation to the State named as respondent to accept jurisdiction for the purposes of the case, it is not entered in the General List.52 In the former, since the application discloses one or more titles of jurisdiction, it is entered in the List immediately upon receipt by the Registrar. Once the Court makes a finding on the existence of manifest lack of jurisdiction, it orders the removal of the case from the List. Prior to the 1978 reform a situation of unilateral arraignment led, unavoidably, to a decision by the Court based on a manifest lack of jurisdiction. It may be noted that in other cases of the same group (for instance Yugoslavia v. Italy) the Court found that although it lacked prima facie jurisdiction it could not accede to the respondent’s request that the case be removed from the List because its findings on provisional measures “[i]n no way prejudge the question of the jurisdiction of the Court to deal with the merits of the case under Article IX of the Genocide Convention, or any questions relating to the admissibility of the Application, or relating to the merits themselves; and (. . .) they leave unaffected the right of the Governments of Yugoslavia and Italy to submit arguments in respect of those questions.”53 This latter formulation is of course a regular feature of every order concerning requests for provisional measures and shows that the Court has always been reluctant to make definitive findings on jurisdictional matters at the phase of provisional measures. In the Armed Activities II (DRC v. Rwanda) case, the Court found that, since it lacked the necessary prima facie jurisdiction it could not grant the request for the indication of provisional measures but, once again, it refused to entertain a request from the respondent to dismiss the case and remove it from the List.54 After inserting the traditional “no prejudice” clause concerning “the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application, or relating to the merits themselves,” the Court found that

51  Prager’s Procedural Developments, LPICT, vol. 1 (2002), p. 618. 52  For details see Chapter 2, f ). 53  Kosovo (Yugoslavia v. Italy), Provisional Measures, Orders of 2 June 1999, ICJ Rep. 1999, p. 373, para. 33 and p. 492, para. 33. 54  This happened also in the subsequent Request for Interpreation-Avena case (Order of 16 July 2008, ICJ Rep. 2008, p. 331, para. 80).

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(. . .) in the absence of a manifest lack of jurisdiction, the Court cannot grant Rwanda’s request that the case be removed from the List.”

(Armed Activities II (DRC v. Rwanda), Provisional Measures, Order of 10 July 2002, ICJ Rep. 2002, p. 249, para. 91)

At a subsequent phase of the same case, the Court elaborated as follows on the scope and purpose of this determination: The Court observes that, given the urgency which, ex hypothesi, characterizes the consideration of requests for the indication of provisional measures, it does not normally at that stage take a definitive decision on its jurisdiction. It does so only if it is apparent from the outset that there is no basis on which jurisdiction could lie, and that it therefore cannot entertain the case. Where the Court finds such a manifest lack of jurisdiction, considerations of the sound administration of justice dictate that it remove the case in question from the List (. . .). Where, on the other hand, the Court is unable to conclude that it manifestly lacks jurisdiction, it retains the case on the List and reserves the right subsequently to consider further the question of jurisdiction, making it clear, as it did in its Order of 10 July 2002, that “the findings reached by [it] in the present proceedings in no way prejudge the question of [its] jurisdiction . . . to deal with the merits of the case or any questions relating to the admissibility of the Application, or relating to the merits themselves” (. . .). The fact that in its Order of 10 July 2002 the Court did not conclude that it manifestly lacked jurisdiction cannot therefore amount to an acknowledgement that it has jurisdiction. On the contrary, from the outset the Court had serious doubts regarding its jurisdiction to entertain the DRC’s Application, for in that same Order it justified its refusal to indicate provisional measures by the lack of prima facie jurisdiction. In declining Rwanda’s request to remove the case from the List, the Court simply reserved the right fully to examine further the issue of its jurisdiction at a later stage. It is precisely such a further examination which is the object of the present phase of the proceedings. (Armed Activities II (DRC v. Rwanda), Jurisdiction and Admissibility, Judg­ment of 3 Feb. 2006, ICJ Rep. 2006, p. 20, par. 25)

In this passage the Court made a number of important findings. To begin, the Court will take a definitive—and negative—decision on its jurisdiction at the provisional measures phase only if it is satisfied that there is a manifest lack of jurisdiction. When it is not so satisfied, the case is retained in the General

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List until the questions of jurisdiction are resolved at the proper phase after fully examining the matter. A finding that no such manifest lack of jurisdiction exists is also provisional and does not amount to an acknowledgment that jurisdiction exists. On the other hand, when the Court faces a request for provisional measures and comes to the conclusion that a manifest lack of jurisdiction is absent, the applicable test is again that of prima facie jurisdiction. If the Court finds that it has prima facie jurisdiction it will be in a position to indicate the requested measures, but if it finds that it lacks prima facie jurisdiction, it will nonetheless refrain itself from dismissing the case, until the questions of jurisdiction are argued in full in subsequent proceedings. Finally, it may be noted that this entire construction is predicated only with regard to cases in which the applicant also files a request for the indication of provisional measures. In a case in which no such request is made the manner in which the concept of “manifest lack of jurisdiction” could play a role is far from clear. Let us suppose, for instance, that in the Kosovo cases Yugoslavia’s applications filed against the United States and Spain had not been accompanied by a request for provisional measures. In as much as they mentioned not one but two different titles of jurisdiction, the Registrar would surely have felt bound to enter them in the Court’s General List and would have handled them as ordinary applications. However, a simple perusal of those titles of jurisdiction shows that the lack of jurisdiction was clearly manifest.55 In these circumstances, should the question of the existence of jurisdiction be the subject of full argument in proceedings devoted to those matters? Would the respondents be forced to participate in incidental proceedings on jurisdiction and admissibility (as they had to do with regard to provisional measures in the actual cases) when it was apparent that the basis for jurisdiction invoked by the applicant was clearly defective?56

55  If no provisional measures are requested and the lack of jurisdiction is not manifest, the case will follow its normal course and the party desirous to challenge the jurisdiction will have to choose among one of the methods discussed below. For proceedings of this kind in which the respondent contended from the outset that the absence of jurisdiction was manifest see the Fisheries Jurisdiction (Spain v. Canada) case (Jurisdiction, Judgment of 4 Dec. 1998, ICJ Rep. 1998, p. 435, paras. 3–4). 56  In this regard, see a bold proposal for a change in the Rules in S. Yee, “A Proposal for Formalizing the “No Case Exists” Objections Procedure at the International Court of Justice,” Chinese JIL, vol. 4, 2005, pp. 393–416. This proposal is not restricted to cases in which a request for provisional measures has been made.

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Box # 12-4 Manifest lack of jurisdiction v. a “test of reasonableness” Unavoidably, the test concerning the existence of “manifest lack of jurisdiction” involves a large measure of discretion for the Court in assessing the legal significance of the titles of jurisdiction invoked by the applicant, a matter that has been approached by some members of the Court. A useful review of these views can be found in the separate opinion appended by judge ad hoc Dugard in the Armed Activities (DRC v. Rwanda) II case, in which he claims that the Court should use a higher threshold in the handling of the concept of “manifest lack of jurisdiction,” which would entail what he calls “a test of reasonableness”. The following are the pertinent excerpts of this opinion: 4. The jurisprudence of the Court is less clear on the action it should take, if any, where the Applicant requesting provisional measures has failed to establish, prima facie, a basis for jurisdiction. No doubt this is because before the cases concerning the Legality of Use of Force between Yugoslavia and ten NATO States in 1999, there was no case in which the Applicant requesting provisional measures had failed to establish a prima facie basis for jurisdiction. In these cases the Court addressed the question of what to do in such circumstances and held that two of the ten Applications, those brought by Yugoslavia against Spain and the United States, should be removed from the List of cases before the Court. In these two cases the Court held that where it “manifestly” lacked jurisdiction, by reason, inter alia, of the reservations by Spain and the United States of America to the Genocide Convention excluding the jurisdiction of the Court, the cases should be removed from the List (. . .). 5. It is not my intention to explore the reasoning of the Court on this matter. Suffice it to say that the Court reached its decision in these cases on the circumstances of these cases without attempting to expound any general test for deciding when it “manifestly” lacked jurisdiction. Several formulations which give greater guidance were, however, advanced by individual judges in these cases. Judge Higgins stated that where “it is clear beyond doubt that no jurisdiction exists in a particular case, good administration of justice requires that the case be immediately struck off the List in limine” (. . .).

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Judge Gaja, in considering “the situation in which the Applicant invokes a jurisdictional clause in a treaty, but has not shown that a reasonable connection exists between the dispute submitted to the Court and the treaty including the clause”, maintained that in such circumstances the case should be struck off the List “only if no such connection could be established at subsequent stages of the proceedings” (. . .). He continued by stating that “When on the contrary a reasonable connection may conceivably appear in the future, it would be too drastic a solution to remove the case from the List. The applicant State should therefore be given an opportunity to develop its position in a memorial—whether or not its arguments are meritorious.” (Ibid.) Judge Oda, in holding that all ten of Yugoslavia’s Applications against NATO States should be struck off the List, reasoned that where the Court finds in an Application for provisional measures that “there is not even a prima facie basis of jurisdiction”, this “should be interpreted as a ruling that it has no jurisdiction whatsoever to entertain the Applications, without leaving any room to retain these cases and to deal with the issue of jurisdiction in the future” (. . .). 6. Judge Oda’s suggestion that once the Court has found that there is no prima facie basis for jurisdiction in an Application for provisional measures the case should automatically be struck off the List is probably too drastic a response as it fails to allow for a consideration of the circumstances of individual cases. It seems wiser therefore to adopt guidelines for the interpretation of the test of “manifest lack of jurisdiction” which would enable the Court to consider the factors such as the history of the Application, the likelihood that the Applicant will be able to show in future that there exists a reasonable connection between the dispute and the treaty invoked to found jurisdiction (as suggested by Judge Gaja) and the prospects of any preconditions for the establishment of jurisdiction being met. Such guidelines might be subsumed in a test of reasonableness; a case should be removed from the List where there is no reasonable possibility, based on the facts and circumstances of the unsuccessful Application, that the Applicant will at some future date be

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able to establish the jurisdiction of the Court on the instruments invoked for jurisdiction in the Application for provisional measures. 7. In the present case the Court has rightly held that the instruments invoked by the Applicant, prima facie, provide no basis for jurisdiction. It does not, however, go so far as to hold that there is a “manifest lack of jurisdiction” warranting the removal of the Application from the List (Order, para. 91). The Court gives no clear reason for this finding, but suggests that the failure of the Applicant to meet preconditions for the establishment of jurisdiction or to show a connection between the dispute before the Court and the treaties relied upon for jurisdiction “at this stage in the proceedings” (Order, paras. 79, 82 and 88) might be remedied at a later stage of the proceedings (Order, para. 90). In my view, such a finding sets too low a threshold for “manifest lack of jurisdiction” in the circumstances of the present case, and sets a dangerous precedent for the Court. (. . .) (Armed Activities (DRC v. Rwanda) II, Provisiona1 Measures, Separate Opinion of Judge ad hoc Dugard, ICJ Rep. 2002, pp. 265–271)

d)

Methods for Challenging the Court’s Јurisdiction

The State seeking to prevent the Court from hearing a case submitted by another State must resort to challenging the Court’s jurisdiction or the admissibility of the application. As a general rule, this situation will obtain when the case has been introduced unilaterally, by means of an application filed under Article 38 of the Rules. After all, when a case is introduced by the notification of a special agreement it is highly unlikely that one of the parties to this agreement will subsequently take the step of raising doubts as to the existence of jurisdiction.57 57  However, this is exactly what happened in the Borchgrave case before the Permanent Court (Preliminary Objections, Judgment of 6 Nov. 1937, PCIJ A/B 72, pp. 157 ff.). For a narrative of this episode see Verzijl, “Preliminary Objections. . .”, pp. 538–539. Before the present Court, the Monetary Gold case may also be mentioned in this context (Preliminary Question, Judgment of 15 June 1954, ICJ Reports 1954, p. 19). After the 1972 amendment to the Rules of Court, it is clear that in cases submitted by special agreement challenges to the jurisdiction of the Court can be made by any party to such agreement (Jiménez de Aréchaga, “The Amendment. . .”, pp. 10–20).

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However, an ulterior debate concerning the precise scope of the jurisdiction foreseen in that agreement might very well take place and it will involve what in essence is a dispute as to the interpretation of its provisions. In his 1933 Report the Registrar made a note concerning objections raised in a case submitted by special agreement and stated that “[i]n cases of this sort the objection will normally entail the interpretation of the terms of the special agreements and of the Statute.”58 The same is true, of course, of cases submitted to arbitration. There are no less than four modalities in the Court’s procedures for challenging its jurisdiction. First of all, there is the classical technique of filing formal preliminary objections once proceedings on the merits are under way, as provided for in paragraph 1 of Article 79 of the Rules. Secondly, there is the more modern method of prompting a preliminary discussion of questions pertaining to jurisdiction and admissibility before any pleadings on the merits have been filed. This possibility of organizing a preliminary phase of the proceedings, developed by the Court’s practice since the mid 1970s, found its way into the Rules in the 2000 amendment, in which it features in (new) paragraphs 2 and 3 of Article 79. Thirdly, it is always possible that the States parties agree from the outset that any objections on jurisdiction or admissibility are to be heard together with the merits of the case, a possibility foreseen in paragraph 10 of Article 79, which prior to the 2000 amendement was paragraph 8. Finally, an objection can also be lodged by the respondent at the merits phase, as a plea in bar.59 The Arrest Warrant case suggests that once one of these mechanisms has been set in motion, the Court would require sound reasons to authorize a departure from it. In this case, in which the parties had reached agreement on using the third of the methods listed—for them to plead the questions of jurisdiction and admissibility together with the merits of the dispute—subsequent developments moved the State challenging the jurisdiction to request leave from the Court in order to depart from that procedure and to be authorized to file preliminary objections anew, thus derogating from an order previously adopted. Having registered strong objections from the applicant, the Court 58  PCIJ D 2, Add.3 (1936), p. 820. For a good discussion on this, albeit a little outdated, see G. Abi-Saab, Les exceptions préliminaires dans le procédure de la Cour internationale,” (1967), pp. 19 ff. See also Scerni’s La Procédure, pp. 641–642. 59  Alternatives three and four in this listing are both covered by a formulation recently used by the Court, according to which “[c]hallenges either to jurisdiction or to admissibility are sometimes in fact presented along with arguments on the merits, and argued and determined at that stage” (Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 456, para. 120).

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rejected this request in a very straightforward manner and put on record that it saw “[n]o compelling reason for departing from the agreed procedure.”60 The Тraditional Method: Filing of Preliminary Objections Since the amendment of 2000, paragraph 1 of Article 79 (formerly Article 62) of the Rules of Court establishes a relatively short time-limit for the State wishing to challenge the Court’s jurisdiction through the filing of formal preliminary objections: any such objection “shall be made in writing as soon as possible, and not later than three months after the delivery of the Memorial.” Under the 1972/1978 Rules the objections could be made “within the time limit fixed for the delivery of the Counter-Memorial.” During the 1972 amendment process the possibility of introducing a time-limit for the filing of preliminary objections was discussed and rejected because it was felt that it “might affect the right of defence of the respondent.”61 This consideration, obviously, ceased to be a concern within the Court in 2000. It must also be remembered that under Article 45, paragraph 1 of the same Rules, in cases introduced by application the Counter-Memorial is in principle the only written pleading that the respondent party is to file on the merits in response to the applicant’s Memorial. Nevertheless, in paragraph 2 of the same provision the possibility that the Court authorizes the filing of further pleadings is preserved “if the parties are so agreed, or if the Court decides, proprio motu or at the request of one of the parties, that these pleadings are necessary.” As discussed above, practice shows that on rare occasions the States engaged in litigation before the ICJ conform with a single round of written pleadings.62 The declared purpose of this reform was to accelerate the handling of preliminary objections and to counter what had been perceived as an undue prolongation of cases in which these incidental proceedings take place.63 While in the epoch of the Permanent Court proceedings on preliminary objections usually took a few months or even weeks, in the cases heard by the present Court they have lasted as much as three, four or even six years. Regrettably, the reform may have failed in this respect because in a number of cases in which preliminary objections have been filed within the new three-month 60  Arrest Warrant, Order of 27 June 2001, ICJ Rep. 2001, p. 4. This was also mentioned in the decision on the merits in the same case (Judgment of 14 Feb. 2002, ICJ Rep. 2002, pp. 6–7, para. 6). For a comment see Prager’s Procedural Developments, LPICT, vol. 1 (2002), pp. 202–203. 61  Jiménez de Aréchaga, “The Amendments. . .”, p. 19. 62  See Chapter 7, a). 63  Higgins, “Jurisdiction. . .”, p. 1388.

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time-limit, several years have elapsed before the Court has been able to hold hearings. All the same, it must be admitted that this may be related to external factors such as an increase in the Court’s docket or the complexity of some of the cases submitted to it.

Box # 12-5

Filing of formal preliminary objections: Practice

The following are the cases in which formal preliminary objections have been filed at the ICJ:64

• Corfu Channel ( Judgment of 25 March 1948, ICJ Rep. 1948, p. 15) • US Nationals in Morocco ( Judgment of 27 August 1952, ICJ Rep. 1952, p. 176)65 • Ambatielos ( Judgment of 1 Juy. 1952, ICJ Rep. 1952, p. 28) • Anglo-Iranian Oil Co. ( Judgment of 22 Juy. 1952, ICJ Rep. 1952, p. 93) • Nottebohm ( Judgment of 18 Nov. 1953, ICJ Rep. 1953, p. 111)* • Monetary Gold ( Judgment of 15 June 1954, ICJ Rep. 1954, p. 19) • Right of Passage ( Judgment of 26 Nov. 1957, ICJ Rep. 1957, p. 125) • Interhandel ( Judgment of 21 March 1959, ICJ Rep. 1959, p. 6) • Aerial Incident (Israel v. Bulgaria) ( Judgment of 26 May 1959, ICJ Rep. 1959, p. 127) • Barcelona Traction I (Order of 10 July 1961, ICJ Rep. 1961, p. 9)** • Temple of Preah Vihear ( Judgment of 26 May 1961, ICJ Rep. 1961, p. 17) • Aerial Incident (USA v. Bulgaria) (Order of 30 May 1960, ICJ Rep. 1960, p. 146)** • Barcelona Traction II ( Judgment of 24 July 1964, ICJ Rep. 1964, p. 6) • Compagnie de Beyrouth (Order of 31 August 1960, ICJ Rep. 1960, p. 186)** • South-West Africa ( Judgment of 21 Dec. 1962, ICJ Rep. 1962, p. 319) • Northern Cameroons ( Judgment of 2 Dec. 1963, ICJ Rep. 1963, p. 15) • Aerial Incident (Iran v. United States) (Order of 22 Feb. 1996, I.C.J Rep. 1996, p. 9)**

64  Before the PCIJ preliminary objections were filed in the following cases: Mavrommatis; Polish Upper Silesia; Factory at Chorzów; Readaptation of the Mavrommatis Concessions; Interpretation of the Statute of Memel; Prince von Pless; Appeals from Judgments of the Hungaro/Czechoslovak Tribunal (two cases); Pajzs, Csaky, Esterhazy; Losinger; Borchgrave; Panevezys-Saldutiskis Railway; Phosphates in Morocco and Electricity Company. See Hudson’s PCIJ, pp. 417–418; Verzijl, “Preliminary Objections. . .”, pp. 529–540. 65  The proceedings on the preliminary objection were later discontinued and the case proceeded to the merits stage (Judgment of 27 August 1952, ICJ Rep. 1952, p. 179). See also Chapter 9, texto to note 93.

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• Phosphates Lands in Nauru ( Judgment of 26 June 1992, ICJ Rep. 1992, p. 240) • Lockerbie (Libya v. United Kingdom) (Libya v. United States) ( Judgments of 27 Feb. 1998, ICJ Rep. 1998, pp. 9 and 115) • Oil Platforms ( Judgment of 12 Dec. 1996, ICJ Rep. 1996, p. 803) • Genocide Convention (Bosnia) (Judgment of 11 July 1996, ICJ Rep. 1996, p. 595)* • Cameroon v. Nigeria ( Judgment of 11 June 1998, ICJ Rep. 1998, p. 275) • Kosovo (Yugoslavia v. Belgium, Yugoslavia v. Canada, Yugoslavia v. Italy,

Yugoslavia v. Netherlands, Yugoslavia v. Portugal, Yugoslavia v. Germany, Yugoslavia v. France and Yugoslavia v. United Kingdom) ( Judgments of 15 Dec. 2004, ICJ Rep. 2004, pp. 279, 429, 575,720, 865, 1011, 1160,1307) Certain Property ( Judgment of 10 Feb. 2005, ICJ Rep. 2005, p. 6) Diallo ( Judgment of 24 May 2007, ICJ Rep. 2007, p. 582) Nicaragua v. Colombia ( Judgment of 13 Dec. 2007, ICJ Rep. 2007, p. 832)* Genocide Convention (Croatia v. Serbia)( Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 412) CERD ( Judgment of 1 April 2011, ICJ Rep. 2011, p. 70) Jurisdiction and Enforcement (Belgium v. Switzerland) (Order of 5 April 2011, ICJ Rep. 2011, p. 341)**

• • • • • •

*   Cases in which further objections were filed as a plea in bar. ** Cases in which the proceedings on the merits were discontinued before the Court had the chance to pronounce on the preliminary objections filed by the respondent.

In principle, it is for the respondent State to challenge the Court’s jurisdiction, for, as the Court has stated that “[i]t is indeed unusual that a State which has submitted a claim by the filing of an Application should subsequently challenge the jurisdiction of the Court to which of its own accord it has applied.”66 However, there have been cases in which it is the applicant itself who has resorted to that technique, and paragraph 1 of Article 79 foresees that objections may be made “by a party other than the respondent.” The Court itself has admitted that this language “[i]s couched in tems which do not limit to the Respondent the right to present preliminary objections.”67 It may be added that in cases like these the objections should be made “within the time-limit 66  Monetary Gold, Preliminary Question, Judgment of 15 June 1954, ICJ Rep. 1954, p. 28. 67  Ibid., p. 29.

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fixed for the delivery of that party’s first pleading,” which under paragraph 1 of Article 45 will be the Memorial on the merits. In most cases, then, it will be the respondent who files preliminary objections, and while it normally will wait until the applicant has filed the Memorial and thus it has had the chance to learn more about the precise nature and scope of the claim and the arguments supporting it, it must accomplish the filing of preliminary objections before the lapsing of the three-month period. It may also happen that, acting only on the basis of the application, the respondent is willing to litigate on the merits of the case but, when learning of the contents of the Memorial it has a change of heart and feels more inclined to challange the Court’s jurisdiction or the admissibility of the application. It is important to consider that this is by no means a fixed date, for under Article 48 of the Rules the Court determines the time-limit for the delivery of the pleadings, always indicating a definite date, but it is for the party filing that pleading to set the exact date of its delivery. Thus, in the event that the applicant manages to complete the drafting of the Memorial before the expiration of the time-limit fixed by the Court, it is entitled to deliver it at an early stage and the date on which it takes this action will be the both the material date for the pleading (Rules, Article 52, para. 2) and the governing date for the purposes of the lapse of the three-month period provided for in Article 79, para. 1. If, on the contrary, the applicant is unable to comply with the fixed time-limit and requests and obtains from the Court an extension of that date, the threemonth limit will be extended accordingly. It is also important to recall that third-States are not informed of the actual filing of preliminary objections and will not learn about this action until the Court issues an order recording the suspension of the proceedings on the merits and fixing a time-limit for the filing of a written statement by the applicant State.68 On the other hand, the Court’s case law is clear in that the respondent is entitled to submit its preliminary objections before the filing of the applicant’s Memorial, that is, exclusively on the basis of the information contained in the 68  This was not always so. In the first cases before the present Court in which preliminary objections were raised the States entitled to appear before the Court were informed of the deposit of the objections, a fact that was included in the recitals of the judgment, sometimes coupled with a reference to Article 63 of the Statute (Corfu Channel, Preliminary Objection, Judgment of 25 March 1948, ICJ Rep. 1948, p. 23; Anglo-Iranian Oil Co., Jurisdiction, Judgment of 22 July 1952, ICJ Rep. 1952, p. 96; Ambatielos, Jurisdiction, Judgment of 1 July 1952, ICJ Rep. 1952, p. 31). This practice appears to have been abandoned after this last case. A similar process had occurred at the time of the PCIJ (Hudson’s PCIJ, pp. 542–543).

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application, which is bound to be a very succinct document in conformity with the provisions of paragraph 2 of Article 38 of the Rules. The situation arose in the Aerial Incident (Iran v. United States) case, in which at a very early stage the respondent informed the Court that it had the intention of filing preliminary objections and that it was ready to do so even before the applicant had submitted its Memorial.69 Faced with a strong opposition from Iran, the Court gathered the views of both parties and made an order in which it concluded (in obiter) that, while it is clear that the respondent State has the right to know, prior to the filing of preliminary objections, the contents and scope of the other party’s position, as they are embodied in the Memorial, that State is free to waive such right and to produce its objections exclusively on the basis of the text of the application.70 The question was examined in certain detail in the separate opinions by judges Schwebel and Shahabuddeen, the latter from a critical perspective.71 The truth is that, as judge Shahabuddeen eloquently argues, the Court‘s practice on this matter has changed over time. As early as 1933, for instance, the Registrar had stated quite emphatically that “An essential feature of Article 38 [of the 1926 Rules] is that preliminary objections are not presented in limine litis, but only after the filing of the claimant’s first Memorial.”72 However, this was clearly reversed in Article 62, para. 1 of the 1936 Rules, in which the requirement that the objections be filed only after the respondent had filed its Memorial was dropped in its entirety. During the discussions leading to the 1972 amendment the possibility of allowing a party to file a preliminary objection as soon as it received the application was discussed briefly. It was rejected, however, because “it was felt that a respondent had a right to wait for the full development of the applicant’s case in the Memorial, before feeling obliged to file its objection.”73

69  The Court had to face a similar situation in the Interhandel case, but on that occasion it was not called upon to take a decision on the procedural aspects involved (Interhandel, Interim Protection, Order of 24 Oct. 1957, ICJ Rep. 1957, p. 107). For a narrative see Thirlway’s Law and Procedure, Part 12, BYIL, vol. 72 (2001), pp. 133–134. 70  Aerial Incident (Iran v. United States), Order of 13 Dec. 1989, ICJ Rep. 1989, p. 132. 71  Ibid., pp. 136 (Schwebel), and 145 (Shahabuddeen). 72  PCIJ D 2, Add.3 (1936), p. 819. 73  Jiménez de Aréchaga, “The Amendments. . .”, p. 19. For a thorough review of the legislative history of the relevant provisions of the Rules see the above mentioned opinion by judge Shahabuddeen (ICJ Rep. 1989, pp. 146–149).

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Additionally, there is now another reason recommending to allow the respondent to file preliminary objections exclusively on the basis of the application, namely that this is precisely what happens when the method chosen to challenge the jurisdiction of the Court or the admissibility of the application is that of isolating those questions and forcing the Court to discuss them in advance to any consideration of the merits of the case. Under this method— now codified in paragraphs 2 and 3 of Article 79 of the Rules—if the party mounting a challenge to jurisdiction or admissibility is authorized to do it before the filing of the first written pleading on the merits, there is no reason not to allow for the same procedure when this challenge assumes the form of traditional preliminary objections. A different situation that may occur is one in which the State filing an application reserves for itself a right to subsequently amend or enlarge it and in a later pleading exercises this right by, for instance, introducing a new title of jurisdiction. In the event that the respondent chooses to submit preliminary objections on the basis of this further title, such objections could only be filed after the deposit of the Memorial. Something akin to this happened in the Nicaragua case, although the challenge to the Court’s jurisdiction in this case did not follow the traditional method of filing preliminary objections but rather the alternative procedure that will be described below. In its Memorial Nicaragua invoked as a title of jurisdiction a treaty that had not been mentioned at all in the application but this was the Memorial on questions of jurisdiction and admissibility. In this circumstance, the Court had little difficulty in accepting this late invocation of an additional basis for jurisdiction, and it proceeded to examine whether it had jurisdiction on the basis of the treaty in question as well.74 In a purely procedural sense, the formulation of preliminary objections has two important consequences. On the one hand, the filing of preliminary objections brings about an automatic suspension of the proceedings on the merits, followed by the opening of incidental proceedings concerning the questions of jurisdiction and admissibility raised by the objections (Rules of Court, Article 79, para. 5). In the Barcelona Traction case the Court remarked that this is a powerful tool that the Rules make available to respondent States, since [m]erely by labelling and filing a plea as a preliminary objection they automatically bring about the suspension of the proceedings on the merits (paragraph 3 of Article 62). This assures the respondent State that 74  Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, pp. 426– 429, paras. 77–83.

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the Court will give consideration to its objection before requiring it to respond on the merits; the Court takes no further step until after hearing the parties. (Barcelona Traction, Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964, p. 43)75

Several years later, in Avena, the Court noted that bringing about the suspension of proceedings on the merits can be construed as a right of the State filing preliminary objections and that, as such, it can be forfeited by that State. Once the suspension is in effect, the proceedings on the merits are resumed only after these ancillary proceedings—which under paragraphs 4–6 and 9 of Article 79 also consist of a written pleadings stage and an oral hearings stage and conclude with a judgment by the Court—are completed.76 The second consequence is that, when incidental proceedings on preliminary objections are opened at the respondent’s motion—as it happens in most cases—the procedural roles are reversed and this State is called to plead first, both in writing and orally, following the rule exceptione reus sit actor. The applicant State then moves on to a more passive role, consisting of filing a “Written Statement” in response to the preliminary objections and taking part in the hearings in order to counter the arguments put forward by the respondent in the main case.77 If the objections are rejected, totally or partially, the two States return to their natural roles of applicant/claimant and respondent/ defendant and they remain in that condition while participating in the proceedings—written and oral—that may still be necessary. Another consequence of choosing the traditional procedure of filing formal preliminary objections is that by doing so the respondent State—who theoretically is of the opinion that the Court should not deal with the case at all— essentially allows the Court to be appraised with the essence of its opponent’s case on the merits, as developed in the Memorial. Thus, when the Court comes 75  The suspension of the proceedings on the merits has consequences also with regard to any new claims that may be put forward during the proceedings on the preliminary objections. On this see Chapter 5, c). 76  On the automatic suspension effect of preliminary objections see Villani, “Preliminary Objections. . .”, p. 210. Only the making of formal preliminary objections has the effect of producing the suspension of the proceedings. For an occasion in which the Court refused to order such a suspension as a consequence of a different procedural action see Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, pp. 54–55, para. 26 and p. 56, para. 35. 77  This was articulated for the first time by the PCIJ in 1925, in the context of the German Interests in Polish Upper Silesia case (PCIJ E 3, p. 207).

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to make a decision on jurisdiction and admissibility it has already been in contact with the substance of the case, something that will never happen when questions of jurisdiction and admissibility are considered before proceedings on the merits have started.78 With regard to the publicity of the proceedings, it is also important to register that in cases in which preliminary objections are made the written pleadings are confidential only up to the opening of the oral hearings stage concerning the objections. On that date it is customary for the Court to make available to the public the contents of the totality of the pleadings exchanged up to that point, and these include not only the pleadings on jurisdiction and admissibility but also the Memorial on the merits, which in all likehood was filed by the applicant before the objections were raised. By contrast, if the challenge to the jurisdiction or the admissibility fails and proceedings on the merits are resumed, the Counter-Memorial by the respondent and any other additional pleadings on the merits exchanged by the parties will remain confidential up to the date of the opening of the oral hearings stage concerning the merits. Although this produces a certain lack of balance between the parties, it appears to be unavoidable.

Box # 12-6 Preliminary objections and appointment of judges ad hoc As in any other case or phase of a case, under Article 31 of the Statute and Articles 35–37 of the Rules the parties in cases concerning the jurisdiction of the Court or the admissibility of the application who do not have one of their nationals at the Court at any given moment are entitled to appoint a judge ad hoc. An interesting question arises as to the opportunity to notify the Court of the particulars (name, nationality and biographical details) of the individual chosen, a question governed by Article 35, para. 1, according to which that information must be supplied by both parties “not later than two months before the time-limit fixed for the filing of the Counter-Memorial.”

78  This will not happen either, of course, if the responden manages to present its preliminary objections before the filing of the Memorial by the applicant, in which case the proceedings in the merits will be suspended then and there. This has not been tried so far before the present Court.

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A commentator and former member of the Court has accurately remarked that this time-limit does not coincide with the time-limit foreseen in Article 79, para. 1 of the Rules for the filing of preliminary objections, which, as already mentioned, should be “not later than three months after the delivery of the Memorial.”79 As the latter time-limit was introduced in the 2000 amendment, this commentator is of the view that the existing procedural arrangements for the appointment of a judge ad hoc in cases of this type have been slightly obscured.80 His suggestion is that Article 35, para. 1 of the Rules should be modified so that it is brought in line with the new Article 79, para. 1, by providing that in proceedings on preliminary objections the information concerning the name and nationality of the person chosen as judge ad hoc should be indicated to the Court not later than three months after the time limit fixed for the delivery of the Memorial. In his view, This would reflect the idea that the issue of the composition of the Court is of a pre-preliminary character and should be determined before the Court deals with matters relating to the adjudication of the case.81 This proposal calls for two observations. On the one hand, it would not make the two time-limits coincide exactly, for while Article 79, para. 1 speaks of three months after the delivery of the Memorial, the modification suggested would refer to three months after the time fixed for the delivery of the Memorial. As it was already said, nothing prevents a State from filing its Memorial before the expiration of the time-limit fixed by the Court and in this case the time-limit for making preliminary objections is brought back in time accordingly. If the motivation for introducing this change in the rules is warranted, it would be better to have language that matches the two provisions word for word, so as to dispel any possible source of confusion. In the second place, the modification suggested appears sensible, in as much as its effects, as anticipated by Kooijmans, would give effect to a dictum by the Court in the Namibia case, according to which:

79  P. Kooijmans, “Article 31”, in Oxford Commentary, MN 12, p. 534. 80  Mention should also be made in this context of Practice Direction V, according to which the time-limit for the presentation of the written statement by the other party in response to the preliminary objections “shall generally not exceed four months from the date of the filing of the preliminary objections.” 81  Ibid.

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[t]he question whether a judge ad hoc should be appointed is of course a matter concerning the composition of the Bench and possesses (. . .) absolute logical priority. It has to be settled prior to the opening of the oral proceedings, and indeed before any further issues, even of procedure, can be decided. Until it is disposed of the Court cannot proceed with the case. It is thus a logical necessity that any request for the appointment of a judge ad hoc must be treated as a preliminary matter on the basis of a prima facie appreciation of the facts and the law. This cannot be construed as meaning that the Court’s decision thereon may involve the irrevocable disposal of a point of substance or of one related to the Court’s competence. Thus, in a contentious case, when preliminary objections have been raised, the appointment of judges ad hoc must be decided before the hearing of those objections. That decision, however, does not prejudge the Court’s competence if, for instance, it is claimed that no dispute exists. Conversely, to assert that the question of the judge ad hoc could not be validly settled until the Court had been able to analyse substantive issues is tantamount to suggesting that the composition of the Court could be left in suspense, and thus the validity of its proceedings left in doubt, until an advanced stage in the case. (Namibia, Advisory Opinion of 21 June 1971, ICJ Rep. 1971, p. 25, para. 36)



The Αlternative Μethod: Separate Discussion of Questions of Jurisdiction and Admissibility82 There is an altogether different procedure available to a State who wishes to persuade the Court to refrain from dealing with a case in which it has been named as a party: it consists of making known to the Court at a very early stage—for instance, during the first meeting of the President with the agents of the parties83—that in its view the Court lacks jurisdiction or the application is inadmissible and that the first round of pleadings should be devoted to these issues, so that the Court is able to determine them separately. If the other party—usually the applicant—does not object, the Court then proceeds to adopt an order deciding that all questions on jurisdiction and admissibility 82  For a discussion see Thirlway’s Law and Procedure, Part 12, BYIL, vol. 72 (2001), pp. 137–140. 83  The purpose of this meeting, foreseen in Article 31 of the Rules, is to ascertain the views of the parties on questions of procedure, starting with the time-limits to be fixed for the first round of written pleadings. For details see Chapter 5, f ).

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are to be decided separately “before any proceedings on the merits,” which implies that the first round of pleadings in the case, both written and oral, will be devoted to those preliminary questions (Rules of Court, paragraph 2 of Article 79). In the same decision the Court would normally fix the order and the time-limits for the deposit of these initial written pleadings which, save in exceptional circumstances, will be a Memorial, followede by a CounterMemorial (Rules, paragraph 3 of Article 79). In cases like these, it is said that these self-contained proceedings on questions of jurisdiction and admissibility, as distinct from a genuine preliminary exceptions phase, are opened by the Court itself and not by one of the parties.84 Indeed, in such an event there is no room for the respondent to make proper preliminary objections, but rather for devoting its first pleading to questions of jurisdiction and admissibility.

Box # 12-7 Separate discussion of questions of jurisdiction and admissibility: Practice85 The following are the cases in which jurisdictional objections were raised and handled before the proceedings on the merits had started:

• Fisheries Jurisdiction (UK v. Iceland and Germany v. Iceland) (Orders of 18 August 1972, ICJ Rep. 1972, pp. 181, 188)* Nucler Tests (Australia v. France and New Zealand v. France) (Orders of 22 June • 1973, ICJ Rep. 1973, pp. 99, 135)* • Pakistani POW (Order of 13 July 1973, ICJ Rep. 1973, p. 330)* • Aegean Sea Continental Shelf (Order of 11 September 1976, ICJ Rep. 1976, p. 3)* • Nicaragua (Provisional Measures, Order of 10 May 1984, ICJ Rep. 1984, p. 187; Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 395, para. 4) • Armed Actions (Nicaragua v. Honduras) (Order of 22 Oct. 1986, ICJ Rep. 1986, p. 551; Judgment of 20 Dec. 1988, ICJ Rep. 1988, p. 71, paras. 3–4) Qatar • v. Bahrain (Order of 11 Oct. 1991, ICJ Rep. 1991, p. 50; Judgment of 1 July 1994, ICJ Rep. 1994, p. 114, paras. 4–6)

84  S. Torres Bernárdez, “La modification des articles du reglement de la Cour international de Justice relatives aux exceptions preliminaries et aux demandes reconventionnelles”, AFDI, vol. 49 (2003), pp. 215–216. 85  For an overview of this practice, including the instances of lack of appearance in which it was inaugurated see Torres Bernárdez, ibid., pp. 219–227.

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• Fisheries Jurisdiction (Spain v. Canada) (Order of 2 May 1995, ICJ Rep. 1995, p. 87; Judgment of 4 Dec. 1998, ICJ Rep. 1998, pp. 435–436, para. 4)  • Armed Activities I (DRC v. Rwanda) (Order of 21 Oct. 1999, ICJ Rep. 1999, p. 1026)** • Armed Activities (DRC v. Burundi) (Order of 21 Oct. 1999, ICJ Rep. 1999, p. 1019)** • Aerial Incident (Pakistan v. India)(Order of 19 Nov. 1999, ICJ Rep. 1999, p. 1038; Judgment of 21 June 2000, ICJ Rep. 2000, p. 16, para. 4) • Armed Activities II (DRC v. Rwanda) (Order of 18 Sept. 2002, ICJ Rep. 2002, p. 299; Judgment of 3 Feb. 2006, ICJ Rep. 2006, p. 13, para. 6)

*   Cases of lack of appearance by the respondent ** Cases in which the proceedings on the merits were discontinued before the Court had the chance to pronounce on the questions of jurisdiction or admissibility raised by the respondent.

This method was being used as a matter of course in cases of lack of appearance by the respondent State, in which Article 53 of the Statute imposes upon the Court the duty to “satisfy itself (. . .) that it has jurisdiction in accordance with Articles 36 and 37.”86 However, starting in the mid 1980s it began to be used also in ordinary cases in which the respondent was from the outset inclined to raise questions of jurisdiction or admissibility and both parties to the case were in agreement that the first round of pleadings was to be devoted to those questions. In the Nicaragua case the Court registered in an express manner that this practice should be governed, by analogy, by the provisions of Article 79.87 Hence the reform to that Article introduced in 2000, consisting in the addition of two new paragraphs (now paragraphs 2 and 3) simply codified a procedure that was already firmly established in the practice of the Court. It is always possible that the applicant objects to this procedure and insists that at this stage the Court should limit itself to the task of fixing the dates for 86  This practice was inaugurated by the Court in the Fisheries Jurisdiction (Germany v. Iceland)(UK v. Iceland) cases and it was also used in Nuclear Tests, Pakistani POW and Aegean Sea Continental Shelf (but not in US Hostages). For the handling of the question of jurisdiction in cases of lack of appearance see Chapter 18 (ii), a). For the suggestion that the Court could have used the method employed in the Nottebohm case see H. Thirlway, “Preliminary Objections”, in Max Planck EPIL, MN 25. 87  Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 425, para. 76.

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the first round of pleadings on the merits, it being understood that the respondent is in any case entitled to formally invoke paragraph 1 of Article 79, filing preliminary objections under the classical method. If this happens, it is likely that the Court will feel bound to proceed under that provision, closing the door to resorting to the alternative method, if only because the latter only makes full sense when the parties are in agreement as to the first round of pleadings being devoted to questions of jurisdiction and admissibility.88 It is worth noticing that paragraph 2 of Article 79 states that the Court “may decide,” a formula that underlines the fact that it retains a wide discretion on this matter and could always go another way, even if the parties are in agreement. Note, for instance, the contrast between this provision and paragraph 10 of the same Article 79, under which if there is agreement between the parties that an objection should be heard and determined within the framework of the merits, such agreement “shall be given effect by the Court.” On the other hand, according to some commentators, under this rule the Court would have the power to determine all questions of jurisdiction and admissibility before the case enters the merits phase even if one of the parties is opposed.89 Another author has stated that after the 2000 amendment to Article 79 of the Rules the situation in Kosovo could not arise again, for the Court is now empowered to order the opening of separate proceedings on jurisdiction and admissibility even when agreement by the parties is lacking. For this author, the Court could also refuse to do that, even if both parties are in agreement.90 With respect, even if that reading of paragraph 2 of Article 79 is correct and the Court retains ultimate authority on the matter, it is highly doubtful that it would be ready to ignore so blatantly the will of the parties with regard to questions of procedure of such a basic nature. Besides, in all but one of the cases in which this method for airing questions of jurisdiction and admissibility has been used, the Court recorded that the parties were in agreement as to devoting the first round of written pleadings to questions of jurisdiction and admissibility. The exception is the Nicaragua case, the very first example of the use of this procedure in a case in which both parties were appearing before the Court. The Court’s decision to devote the first round of pleadings to questions of jurisdiction and admissibility—included in the order indicating 88  This happened in several of the Kosovo litigations. See the orders of 30 June 1999 in the cases against Belgium, Canada, France, Germany, Italy, The Netherlands, Portugal and the United Kingdom (ICJ Rep. 1999, pp. 988, 991, 994, 997, 1000, 1003, 1006 and 1009, respectively). 89  D.W. Prager, “The 2001 Amendments to the Rules of Procedure of the International Court of Justice”, LPICT, vol. 1 (2002), p. 168. 90  Torres Bernárdez, “La modification. . .”, pp. 222–224.

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provisional measures—was prompted by the respondent’s vigorous challenge to the Court’s jurisdiction during the provisional measures phase, which included a request for the immediate removal of the case from the General List.91 In the subsequent Aerial Incident (Pakistan v. India) case, consent to this “agreement to the procedure” was given ad referendum and was later confirmed through the appropriate channels.92 In the only case so far in which this device has been tried after the 2000 amendment of the Rules, the respondent proposed resort to paragraphs 2 and 3 of Article 79 and the applicant simply voiced no objection and limited itself to stating “[t]hat it would leave the decision in this regard to the Court.”93 If this alternative procedure is used the proceedings on the merits are not suspended because they have not really started yet, and the only document before the Court at this stage is the application that set the case in motion, a document that is generally considered not to form, as such, part of the written proceedings.94 Therefore, in strictly procedural terms the most important consequence of choosing this method is that the pleading containing a challenge to the Court’s jurisdiction or the admissibility of the claim must be prepared exclusively on the basis of the scant information contained in the application. It has been said that this procedure of organizing a preliminary phase concerned exclusively with questions of jurisdiction and/or admissibility has important advantages for the Court because it allows it to consider all questions of jurisdicition and admissibility before the first exchange of written pleadings on the merits, which in turn may be helpful in accelerating proceedings and saving resources.95 A commentator has stated that this mechanism is also useful for the parties themselves, because

91  Nicaragua, Provisional Measures, Order of 10 May 1984, ICJ Rep. 1984, p. 187. 92  Aerial Incident (Pakistan v. India), Jurisdiction, Judgment of 21 June 2000, ICJ Rep. 2000, p. 16, para. 4. 93  Armed Activities II (DRC v. Rwanda), Order of 18 Sep. 2002, ICJ Rep. 2002, p. 300. In the previous case of the same name (under the 1978 version of Article 79 of the Rules), the same procedure had been used, following agreement between the parties (Armed Activities I (DRC v. Rwanda), Order of 21 Oct. 1999, ICJ Rep. 1999, p. 1026). This latter case was discontinued by the applicant before a decision was given on the questions of jurisdiction and admissibility. 94  See on this Chapter 6, text to note 4. Nevertheless, in the Armed Actions (Nicaragua v. Honduras) case the President of the Court (Ruda) apparently took the position that the proceedings on the merits were effectively suspended while the separate proceedings on jurisdiction and admissibility ran their course (Order of 21 April 1989, ICJ Rep. 1989, p. 6). It is respectfully suggested that this was not entirely correct. 95  Torres Bernárdez, “La modification. . .”, p. 225.

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[I]f the respondent prevails on preliminary objections and the Court dismisses the case, the applicant will have saved considerable costs, since it was not required to file a full-blown Memorial on the merits of the case. Also, the respondent is then absolved from the possible political implications of having the factual and legal claims made against it substantiated in a Memorial. If, on the other hand, the applicant prevails, all jurisdictional hurdles are cleared at the outset of the proceedings and the parties can concentrate on the merits of the case.96 This is essentially correct, but the situation must be considered also from the point of view of the respondent State, who in all probability has been brought before the Court against its immediate wishes. It is possible that for that State resorting to the classical procedure of filing preliminary objections is more atractive, because this allows its authorities to get acquainted with a more precise scope of the claims of the other party, at least to the extent that they are developed in the Memorial. By setting in motion that procedure the State who brought the case to the Court is thus forced to “show its hand” to a large extent. As a bonus, in the event that the other State feels that there is a good chance that the decision on jurisdiction and admissibility will be adverse to it, this will at least considerably enlarge the time available to it for the preparation of its Counter-Memorial on the merits, because it will be able to make use of, at least partially, the time that the incidental proceedings on preliminary objections consume. When this alternative procedure is used it will be possible to depart from Article 45 of the Rules, which provides that the order of the written pleadings shall consist of a Memorial by the applicant and a Counter-Memorial by the respondent. Indeed, paragraph 3 of Article 79 lays down the special rule that when questions of jurisdiction and admissibility are to be discussed separately the Court will determine the order in which the written pleadings are to be filed, without any indication as to which of the two parties is to plead first.97 Disregarding the early cases of non-appearance—in which, evidently, the first (and only) pleading on jurisdiction was filed by the applicant—the practice developed by the Court with regard to the order of pleadings in this type of cases is split evenly, because in four out of eight cases the applicant was ordered to file a Memorial and the respondent a Counter-Memorial, both of

96  Prager, “The 2001 amendments. . .”, p. 167. 97  See a comment in Torres Bernárdez, “La modification. . .”, p. 227.

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them devoted to questions of jurisdiction and admissibility, and in four other it was the respondent who was required to plead first.98 The situation in which the applicant in the main case is to plead first at the jurisdictional phase may be slightly unfair for that State because—unless there have been previous exchanges on the subject, such as a cursory discussion on jurisdictional matters during a provisional measures phase—it will have no means of appraising itself of the arguments upon which the respondent bases its case on the lack of jurisdiction or the inadmissibility of the claim and yet it is bound to draft its Memorial on precisely those matters. For this reason it would be more reasonable for the initial pleading to be submitted by the respondent in all cases, which is what happens when preliminary objections are lodged.99

Box # 12-8 Separate proceedings on jurisdiction and admissibility: Who pleads first? The question of the order and number of pleadings to be filed when questions of jurisdiction are to be determined separately arose in the Fisheries Jurisdiction (Spain v. Canada) case. To begin, after the parties had agreed that the first round of written pleadings was to be devoted to the questions of jurisdiction raised by Canada, the Court decided that the applicant, Spain, was to plead first, by filing a Memorial. Spain later suggested that, for its benefit as well as the Court’s, Canada should be directed to file a “summary statement” outlining the contents and scope of its objections to the Court’s jurisdiction, but this was not accepted by Canada, nor was it taken up by the Court. Canada also suggested that there were further questions of admissibility at play, and devoted some space in its Counter-Memorial to elaborate upon them. Spain requested a second round of written pleadings but Canada opposed this and the Court refused the request,

98  The cases in which the applicant pleaded first include Nicaragua; Qatar v. Bahrain (followed by a second round of pleadings, in the same order); Fisheries Jurisdiction (Spain v. Canada); and Aerial Incident (Pakistan v. India). The cases in which it was decided that the Memorial on jurisdiction and admissibility had to be filed by the respondent include Armed Actions (Nicaragua v. Honduras); Armed Activities (DRC v. Burundi); Armed Activities I (DRC v. Rwanda) and Armed Activities II (DRC v. Rwanda) (the latter under new paragraphs 2 and 3 of Article 79). 99  On this see Prager, “The 2001 Amendments. . .” pp. 168 ff. For what appears to be an opposite view see S. Rosenne, “The ICJ: Revision of Articles 79 and 80 of the Rules of Court”, LJIL, vol. 14 (2001), p. 81.

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finding that it was sufficiently informed of the positions of the parties with regard to the question of its jurisdiction. It is also important to recall that in this case there was a sharp disagreement as to the characterization of the dispute, to the point that a key point of contention between the parties was whether the respondent was entitled to influence in any way the contours of the dispute brought before the Court.100 Some of these problems feature in the dissenting opinion appended to the judgment by the judge ad hoc appointed by Spain, S. Torres Bernárdez, who complained bitterly about the position in which the applicant was left in as a consequence of the Court’s decision that it was to plead first during the jurisdictional phase: 6. The Order of 2 May 1995 states that “it was agreed that the question of the jurisdiction of the Court in this case should be separately determined before any proceedings on the merits”, and that “at that meeting agreement was also reached on time-limits for the filing of written pleadings on that question”. Taking into account that agreement, the Order accordingly fixed time-limits for the filing of a Memorial by Spain and a CounterMemorial by Canada on the question of the Court’s jurisdiction. (. . .) 9. (. . .) Spain prepared its Memorial without knowledge of the con­ siderations of fact and law supporting Canada’s objection to the Court’s jurisdiction. All that it had at its disposa1 was Canada’s letter of 21 April 1995 (one page), in which the Respondent stated that the Court manifestly lacked jurisdiction, quoting the terms of subparagraph (d) of paragraph 2 of the reservation to its declaration of 10 May 1994. The Spanish Memorial therefore proceeded on the basis of suppositions with regard to the grounds of Canada’s objection, whereas, for it, applicant State, the Canadian declaration of 10 May 1994 did not raise an issue of jurisdiction, given its terms and the subject-matter of the dispute submitted to the Court by the Spanish Application. In its Memorial Spain was also obliged (. . .) to deal with possible questions that might be raised with regard to the admissibility of the Application. By contrast, Canada was able to prepare its Counter-Memorial whilst having available to it two formal procedural instruments filed by Spain, namely the Application and the Memorial on jurisdiction.(. . .)

100  On this see Chapter 5, c), text to note 73.

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11. Furthermore, in its Counter-Memorial, Canada raised a new objection founded on admissibility (“mootness” according to the Court’s very latest terminology), of which there was no mention either in its letter of 21 April 1995, or in the President’s Order of 2 May 1995, or in Canada’s letter of 15 May 1995. Thus Canada devoted an entire chapter of its CounterMemorial, Chapter IV, to “drawing the attention” of the Court to the contention that the dispute had been settled since the filing of the Spanish Application on the ground that it had become devoid of purpose as a result of the agreement concluded on 20 April 1995 between Canada and the European Union. (. . .) 12. Canada subsequently opposed Spain’s request for a second round of written pleadings (Reply and Rejoinder). And the Court’s decision (Order of 8 May 1996) not to order a second round of written pleadings did nothing to make good these flaws in the operation of the adversarial principle at the written stage. 13. It was therefore necessary to await the oral stage before the Parties’ respective positions could be properly compared, and the beneficial effects of the adversarial principle on the conduct of the proceedings could thus make themselves fully felt. However, Article 43 of the Court’s Statute requires that this should occur at both the oral and the written stage of the proceedings. (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction, Dissenting Opinion of Judge Torres Bernárdez, ICJ Rep. 1998, pp. 584–589)

Agreement to Join the Objections to the Merits A third procedural option for challenging the jurisdiction of the Court or the admissibility of the application is for the parties to the case to agree among themselves that any such objection is to be heard and resolved “within the framework of the merits” of the case. This is governed by paragraph 10 of Article 79, introduced in the 1972 amendment with the purpose of codifying a practice that was used for the first time in the Norwegian Loans case in 1957. This provision imposes upon the Court an unequivocal duty to “give effect” to any such agreement between the parties, apparently not leaving room for any other decision. Strictly speaking, this is exactly the situation provided for in Article 101 of the Rules (Article 31 when the 1972 reform was adopted), according to which the parties to a case may jointly propose particular modifications or additions to the rules, which may be applied by the Court if it considers them to

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be appropriate in the circumstances of the case. Under that provision, which has been present in the Rules since 1922, the parties could always agree that an objection should be heard and determined along with the merits, and they could jointly propose this to the Court, as a particular addition to the Rules on preliminary objections. It may be contended that the new rule in para. 10 of Article 79 is just a concrete application of that mechanism, although it is worth noting that by its terms the Court is not given any latitude or discretion to apply such an agreement, as it is simply directed to “give effect” to it.

Box # 12-9 Joinder of objections to the merits by agreement of the parties: Practice The following are the cases in which objections of jurisdiction or admissibility have been considered together with the merits, by agreement of the parties:

• Norwegian Loans ( Judgment of 6 July 1957, ICJ Rep. 1957, p. 12) • Elettronica Sicula ( Judgment of 20 July 1989, ICJ Rep. 1989, p. 18, para. 5) • East Timor ( Judgment of 30 June 1995, ICJ Rep. 1995, p. 92, para. 4) • Arrest Warrant ( Judgment of 14 Feb. 2002, ICJ Rep. 2002, p. 6, para. 5) It must be noted that by its own wording paragraph 10 of Article 79 would seem to apply only to “an objection submitted under paragraph 1 of this Article,” that is, when a genuine preliminary objection has been formally filed within the three-month time-limit that is now provided for in that paragraph and, consequently, the respondent has decided not to file its Counter-Memorial for the time being. On its face, this provision would not be applicable when the respondent announces its intention to raise questions of jurisdiction and/ or admissibility at a later moment—when filing the Counter-Memorial, for instance—and the other party does not object, nor when that party includes such objections in the Counter-Memorial. However, this is precisely what has happened in two cases, althought it is noteworthy that in the decisions in which the Court “gave effect” to the agreement between the parties and fixed the time-limits for further pleadings—due to refer to both the objections and the merits—paragraph 10 of Article 79 was not mentioned as authority.101 101  East Timor, Judgment of 30 June 1995, ICJ Rep. 1995, p. 92, para. 4 and p. 98, para. 19 and Arrest Warrant, Order of 13 Dec. 2000, ICJ Rep. 2000, p. 236. The previous Elettronica Siccula case is believed to be the only case in which paragraph 10 (formerly paragraph 8) of

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This provision uses a language that is remarkably ample, authorizing that the “agreement between the parties” is reached at any moment. However— and notwithstanding the practice followed under the previous paragraph 8 of Article 79—since the new version of paragraph 1 of the same Article lays down an inescapable period of three months from the date of the delivery of the Memorial for the filing of “any” preliminary objections, it would be advisable for the party considering to propose to the other party to enter into an agreement of the sort mentioned in paragraph 10 to act before that period elapses. In theory, it is also possible that the parties reach agreement to have the objections joined to the merits after the proceedings on the merits have been suspended under paragraph 5 of Article 79 of the Rules. In such a case, they would be resumed when the Court takes action to give effect to that agreement.102 In any case, as it will be seen in the next sub-section, recent decisions by the Court have sanctioned the notion that a State can still raise (non-preliminary) objections to jurisdiction and/or admissibility as a plea in bar at the merits phase, something for which the consent of the other party is not required—or sought after—at all. A consequence of resorting to this method for presenting objections of jurisdiction or admissibility is that when the Court comes to decide the case on the merits it will consider the objection joined to the merits “at the outset” and only after rejecting the objection will it proceed to consider the substantive claims of the parties.103 Objections Presented as a Plea in Bar Objections to the Court’s jurisdiction or to the admissibility of the claim can also be filed as a plea in bar (“moyen d’irrecevabilité”) during the merits phase, not as preliminary objections stricto sensu, but rather as an alternative to a defence on the merits.104 This has happened in a number of cases.

Article 79 has been duly invoked and applied (Order of 17 Nov. 1987, ICJ Rep. 1987, p. 185 and Merits, Judgment of 20 July 1989, ICJ Rep. 1989, p. 18, para. 5). 102  Rosenne’s Law and Practice, vol. 2, p. 901. 103  Elettronica Sicula, Judgment of 20 July 1989, ICJ Rep. 1989, p. 42, para. 49; ICJ Yearbook (1988– 1989), p. 161. 104  As the Court has remarked, an objection of this type will still be preliminary, but only “in the sense that, if it is upheld, the Court will not proceed to determine the merits” (Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 79, para. 86). See also Rossene’s Law and Practice, vol. 2, p. 854.

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Box # 12-10 Objections of jurisdiction or admissibility presented as a plea in bar: Practice The following are the cases in which objections of jurisdiction or admissibility have been presented in the course of the procedings on the merits:

• Nottebohm ( Judgment of 6 April 1955, ICJ Rep. 1955, p. 12)* • ICAO Council (Judgment of 18 August 1972, ICJ Rep. 1972, p. 52, para. 13) • LaGrand (Judgment of 27 June 2001, ICJ Rep. 2001, p. 480, paras. 35–36) • Avena (Judgment of 31 March 2004, ICJ Rep. 2004, pp. 28–29, paras. 22–25) • Armed Activities (DRC v. Uganda) ( Judgment of 19 Dec. 2005, ICJ Rep. 2005, pp. 236–238, paras. 196–204). • Genocide Convention (Bosnia) (Judgment of 26 Feb. 2007, ICJ Rep. 2007, pp. 77–78, para. 82; p. 79, para. 86)* Mutual Assistance ( Judgment of 4 June 2008, ICJ Rep. 2008, pp. 198–213, paras. • 39–95) Interim Accord (Order of 12 March 2010, ICJ Rep. 2010, p. 12; Merits, Judgment of • 5 Dec. 2011, paras. 6, 25) • Obligation to Prosecute or Extradite ( Judgment of 20 July 2012, paras. 43, 64) • Nicaragua v. Colombia ( Judgment of 19 Nov. 2012, ICJ Rep. 2012, pp. 662–65, paras. 104–112)*

* Cases in which this was in addition to formal preliminary objections considered and decided before the merits phase.

At the present Court this practice was inaugurated by Guatemala in the Nottebohm case.105 That State, named as respondent in an application filed by Liechtenstein, made a preliminary objection to jurisdiction that was rejected by the Court and later, in its Counter-Memorial on the merits, filed anew objections to the admissibility of the application, a matter recorded by the Court without any comment.106 To be precise, Guatemala did not actually enter an appearance at the preliminary objection phase, for it refrained from appointing an agent and was not represented at the hearing. What it did very early into the proceedings was to send to the Court a communication challenging the 105  At the time of the PCIJ this occurred in the Minority Schools case (Judgment No. 12, 26 April 1928, PCIJ A 15, pp. 8, 20–26). See also PCIJ E 5 (1928–1929), pp. 253–254. 106  Nottebohm, Second Phase, Judgment of 6 April 1955, ICJ Rep. 1955, p. 12.

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jurisdiction, and the Court chose to treat this as a preliminary objection eather than as an instance of lack of appearance.107 Interestingly, in its final submissions Guatemala characterized its objections as “pleas of non-admissibility of the claim.”108 At the hearings, the applicant voiced reservations as to the use of this procedure but the Court did not find it necessary to address these arguments in the judgment. An authorized contemporary comment states that the latter’s reservation were without merit, since a State is always entitled to raise jurisdictional objections along with the merits.109 The question arose briefly in the ICAO Council case, in which no preliminary objections had been filed and the applicant contested the right of the respndent to advance objections in the pleadings on the merits, because the said objections had not been put forward at an earlier stage of the proceedings as preliminary objections under then Article 62 of the Court’s Rules. The Court remarked that “[i]t is certainly to be desired that objections to the jurisdiction of the Court should be put forward as preliminary objections for separate decision in advance of the proceedings on the merits.” However, it chose to dispose of the matter by simply recalling that “[t]he Court must however always be satisfied that it has jurisdiction, and must if necessary go into that matter proprio motu.”110 Several years later, the Court explicitly recognized in the Avena case that there may be objections on jurisdiction or admissibility that are not preliminary in character. In that case, the respondent included in its CounterMemorial several submissions that it labelled as “objections” related both to the jurisdiction of the Court and the admissibility of the application.111 Mexico, the applicant, contended that these claims were inadmissible because they were made after the appropriate time for doing so had passed, as the United States had not invoked Article 79 when it had the chance to do so nor had it seen fit to submit a proposal to Mexico to conclude an agreement of 107  See Chapter 18 (ii), text to notes 47–49. 108  Nottebohm, Second Phase, Judgment of 6 April 1955, ICJ Rep. 1955, p. 8. 109  Verzijl’s Jurisprudence, vol. 2, pp. 211–212. See also M. Iwanejko, “The Jurisdiction of the International Court of Justice: The Plea to the Admissibility”, Polish YIL, vol. 1 (1966/67), pp. 175–176. 110  ICAO Council, Judgment of 18 August 1972, ICJ Rep. 1972, p. 52, para. 13. 111  Esentially the same situation had arisen in the previous LaGrand case, but with the significant difference that the applicant in that case did not object to the respondent raising objections on jurisdiction and admissibility in its pleadings on the merits. In its judgment the Court simply took note that those questions had arisen and that it was bound to deal with them “[a]s a preliminary matter” (Merits, Judgment of 27 June 2001, ICJ Rep. 2001, pp. 480, para. 35).

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the type provided for in paragraph 10 of the same provision. From these circumstances, Mexico argued, it should be presumed that the respondent had waived its right to submit objections to the Court’s jurisdiction or to the admissibility of the application and therefore was simply bound to plead its case on the merits. The Court rejected this line of reasoning and upheld the United States’ right to submit (non-preliminary) objections at the merits phase, in a passage that is worth quoting in its entirety: (. . .) The Court notes. . . that Article 79 of the Rules applies only to preliminary objections, as is indicated by the title of the subsection of the Rules which it constitutes. As the Court observed in the Lockerbie cases, “if it is to be covered by Article 79, an objection must . . . possess a ‘preliminary’ character”, and “Paragraph 1 of Articlc 79 of the Rules of Court characterizes as ‘preliminary’ an objection ‘the decision upon which is requested before any further proceedings’” (. . .); and the effect of the timely presentation of such an objection is that the proceedings on the merits are suspended (paragraph 5 or Article 79). An objection that is not presented as a preliminary objection in accordance with paragraph 1 of Article 79 does not thereby become inadmissible. There are of course circumstances in which the party failing to put forward an objection to jurisdiction might be held to have acquiesced in jurisdiction (Appeal Relating to the Jurisdiction of the ICAO Council, Judgment, ICJ Rep. 1972, p. 52, para. 13). However, apart from such circumstances, a party failing to avail itself of the Article 79 procedure may forfeit the right to bring about a suspension of the proceedings on the merits, but can still argue the objection along with the merits. That is indeed what the United States has done in this case; and, for reasons to be indicated below, many of its objections are of such a nature that they would in any event probably have had to be heard along with the merits. The Court concludes that it should not exclude from consideration the objections of the United States to jurisdiction and admissibility by reason of the fact that they were not presented within three months from the date of filing of the Memorial. (Avena, Merits, Judgment of 31 March 2004, ICJ Rep. 2004, p. 29, para. 24)112

112  Of the judges who appended individual opinions, only judges Parra Aranguren and judge ad hoc Sepúlveda made reference to this aspect of the case, in both instances laying criticism on the way the Court approached the subject. (Avena, Merits, Separate Opinion of Judge Parra Aranguren, ICJ Reports 2004, pp. 84–85, paras. 2–4; Separate Opinion of Judge ad hoc Sepúlveda, ibid., pp. 100–101, paras. 3–4). The notion that non-preliminary objections to jurisdiction need not be entered at an early stage of the proceedings had been

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On the basis of this, it might be concluded that the sole added value of resorting to any of the formal procedures laid down in paragraphs 1 to 3 of Article 79 is that of sidestepping the proceedings on the merits, at least until the jurisdictional questions are settled by the Court. Under paragraph 1 this would be done by bringing about the automatic suspension of such proceedings— a result that is obtained by the mere filing of preliminary objections—and under paragraphs 2 and 3 it would be done by preempting the start of any proceedings on the merits, propitiating rather a previous and separate discussion of all questions of jurisdiction and admissibility. If from the outset the respondent does not object to having the arguments on the merits aired before the Court, it can simply ignore the provisions of Article 79 altogether—including paragraph 10—and submit objections at the time of filing its first written pleading on the merits. Nevertheless, this sweeping proposition calls for several comments. In the first place, in the Avena case there were incidental proceedings on provisional measures and during these proceedings the United States advanced in very clear terms that it intended to raise jurisdictional questions “at the appropriate stage later in the case.”113 This circumstance, duly noted by the Court, shows that to a certain extent, when the respondent submitted its late objections it was in fact exercising a right that it had expressly reserved for itself and that the applicant was fully aware of this and thus could not claim to have been taken by surprise. In the second place, and perhaps more importantly, in Avena the United States chose from the very beginning to forfeit its right to resort to the procedures provided for in Article 79 of the Rules. The (non-preliminary) objections included in the Counter-Memorial were then the only objections that the respondent decided to file in this case. Given the language used in the passage quoted above one would be justified in thinking that the conclusion drawn by the Court applies only when a party to a case chooses not to make use of Article 79 at all and would not be applicable in the very different situation in which a State has invoked that provision and has resorted from the very beginning to the formulation of preliminary objections. In other words, it may seem hard to reconcile with a good administration of justice that in one and the same case there may be room for two subsequent rounds of objections advanced by the PCIJ in the Minority Schools case (Judgment No. 12, 26 Apr. 1928, PCIJ A 15, p. 22). 113  Provisional Measures, Order of 5 Feb. 2003, ICJ Rep. 2003, p. 87, para. 41. In the decision on the merits the Court also recalled this fact (Judgment of 31 March 2004, ICJ Rep. 2004, p. 28, para. 24).

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on jurisdiction and admissibility, i.e. a first round consisting of preliminary objections as such, under Article 79 of the Rules, and a second round including fresh non-preliminary objections during the merits phase, under the Avena precedent. And yet, this is exactly what happened in the Genocide Convention (Bosnia) case, which was the object of a final decision by the Court in February 2007. At the initial stages of this case the respondent duly invoked paragraph 1 of Article 79 and filed certain preliminary objections, which were rejected by the Court in due course. Then, when the case came to the merits phase that State submitted fresh objections to jurisdiction, an attitude that prompted a strong reaction by the applicant. The Court invoked the Avena precedent and settled the question in favor of the respondent in the following terms: The first contention, as to the alleged consequences of the fact that Serbia did not raise the question of access to the Court under Article 35 at the preliminary objection phase, can be dealt with succinctly. Bosnia and Herzegovina has argued that to uphold the Respondent’s objection “would mean that a respondent, after having asserted one or more preliminary objections, could still raise others, to the detriment of the effective administration of justice, the smooth conduct of proceedings, and, in the present case, the doctrine of res judicata”. It should however be noted that if a party to proceedings before the Court chooses not to raise an issue of jurisdiction by way of the preliminary objection procedure under Article 79 of the Rules, that party is not necessarily thereby debarred from raising such issue during the proceedings on the merits of the case. (Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 84, para. 101)

In a different passage of the same decision, the Court remarked that when in one of its judgments concerning questions of jurisdiction there is a finding that “the Court has jurisdiction,” along with the rejection of specific preliminary objections, this “does not necessarily prevent subsequent examination of any jurisdictional issues later arising that have not been resolved, with the force of res judicata, by such judgment.”114

114  Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 95, para. 127.

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It may be safely concluded then that a State challenging the Court’s jurisdiction who is defeated at the preliminary objections phase can still raise fresh questions of jurisdiction, as a plea in bar, at the merits phase.115 The same would apply if fresh questions of admissibility arise after the decision on preliminary objections is given, as it is illustrated by the Nicaragua v. Colombia precedent. In this case, the applicant drastically changed one of its claims when it filed its Reply, well after the Court decided on the preliminary objections made by the respondent—holding that it had jurisdiction to entertain some (but not all) of the claims submitted in the application. In its Rejoinder the respondent challenged the admissibility of that claim, contending that it was a “new claim” and that it had to be declared inadmissible for that reason. The Court rejected this allegation and pronounced the claim to be admissible and went on to consider its merits, after which it rejected it altogether.116 In the third place, the caveat included by the Court referring to its dictum in the ICAO Council case—already quoted in this section—implies that the doctrine of forum prorogatum imposes a limit to the possibility of the respondent filing jurisdictional objections when filing its Counter-Memorial on the merits. The latter option simply does not exist in cases in which from the outset there are doubts as to the existence of consent by that State to the Court’s jurisdiction and it has already performed conclusive acts from which that consent can be inferred, one of which being, of course, that it refrains from raising questions of jurisdiction.117 Clearly, this never happened with the United States in the Avena case, just as it had not happened either with regard to Pakistan in the ICAO Council case.118 Fourthly, it appears that the Court’s readiness to entertain jurisdictional objections raised by the respondent in the body of its first written pleading on the merits would have the potential to render useless the special procedure 115  Evidently, the principle of res judicata imposes limitations to the contents of thes second set of objections. For a comment on the question of successive objections (made before the judgments in Avena and Genocide Convention) see Rosenne’s Law and Practice, vol. 2, pp. 898–900. 116  Nicaragua v. Colombia, Merits, Jugment of 19 Nov. 2012, pars. 104–112. Judge Owada dissented, on the basis that the claim made for the first time in Nicaragua’s Reply was materially different from the any of the claims made in the application (Ibid., Dissenting Opinion of Judge Owada). On the subject of new claims see Chapter 5, c). 117  Muller’s Procedural Developments, LPICT, vol. 3 (2004) pp. 558–560. This had been anticipated, to a large extent, by Hudson (Hudson’s PCIJ, p. 417 and fn 57). 118  The Court explained this situation in very clear terms in its decision in the second of the cases mentioned (ICAO Council, Judgment of 18 Aug. 1972, ICJ Rep. 1972, p. 52, para. 13).

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provided for in paragraph 10 of Article 79, according to which the parties might agree that the objections should be “heard and determined within the framework of the merits.” Indeed, a State wishing to challenge the jurisdiction of the Court or the admissibility of the claim would have little—if any—encouragment to seek an agreement with the other party of the type provided for in paragraph 10, if it feels entitled to submit objections entirely on its own motion when the merits phase is reached. Lastly, it is worth noting the main difference between challenging the Court’s jurisdiction through one of the mechanisms provided for in Article 79 and doing so by filing objections in the body of the Counter-Memorial, in terms of the degree of elaboration of the arguments of the parties on jurisdictional matters. In the former case the questions of jurisdiction and admissibility are the subject of a full round of pleadings and hearings devoted exclusively to them. In the latter, as the applicant will ascertain the contents of the objections only when reading the Counter-Memorial, the only occasion it will have to responde to them—unless there is a second round of written pleadings—119 is during the oral proceedings, a large part of which will be devoted to the merits. Here again, the decisive factor would be the attitude of the respondent State: if its authorities are agreeable to handling the questions of jurisdiction in the summary way described above, then there is nothing to prevent them from using that procedure and forfeiting, at the initial stages of the case, their right to invoke Article 79;120 if, on the other hand, they feel more comfortable with full proceedings in which the questions of jurisdiction and admissibility are argued in depth, both in the written pleadings and oral argument, they may make use of that provision and resort to one of the procedures laid down there, which were described above. e)

Characterizing Preliminary Objections

According to the standard definition, provided by the Permanent Court in 1939, a preliminary objection is “[a]ny objection of which the effect will be, if the objection is upheld, to interrupt further proceedings in the case, and which it will therefore be appropriate for the Court to deal with before enquiring into the merits.”121 While this remains essentially valid, the present Court has added 119  As it happened in the Interim Accord case (Order of 12 March 2010, ICJ Rep. 2010, p. 12). 120  Obviously, in cases in which pararaph 10 of Article 79 is applicable the option of dealing with the questions of jurisdiction within the framework of the merits must respond to the wishes of both parties. 121  Panevezys-Saldutiskis Railway, Judgment of 28 Feb. 1939, PCIJ A/B 76, p. 16.

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that preliminary objections are those objections “which the Court is required to rule on before the debate on the merits begins”122 and that the main object of a preliminary objection is to avoid “[n]ot merely a decision on, but even any discussion of the merits.”123 Within this framework, under paragraph 1 of Article 79 three separate categories of preliminary objections may be envisaged, namely: (i) Objections to the Court’s jurisdiction; (ii) Objections to the admissibility of the application or, alternatively, to the admissibility of a claim included in the application;124 and, (iii) A residual category, encompassing “other objection[s] the decision upon which is requested before any further proceedings on the merits.”125 An objection to the Court’s jurisdiction usually consists of an argument directed to show that the Court lacks the competence to deal with the case altogether. For its part, an objection to the admissibility (sometimes also called “receivability” or “fin de non recervoir”) has a more limited scope because it seeks to show that, even if jurisdiction exists in principle, the claim advanced by the other party is inadmissible on its own merits.126 In the Oil Platforms case, the Court remarked that questions of admissibility are “[a]ppropriate to be enquired into before any examination of the merits,” and added the following: Objections to admissibility normally take the form of an assertion that, even if the Court has jurisdiction and the facts stated by the applicant State are assumed to be correct, nonetheless there are reasons why the Court should not proceed to an examination of the merits. (Oil Platforms, Merits, Judgment of 6 Nov. 2003, ICJ Rep. 2003, p. 177, para. 29)

122  Diallo, Judgment of 30 Nov. 2010, ICJ Rep. 2010, p. 658, para. 44. See also Lockerbie (Libya v. UK), Preliminary Objections, Judgment of 27 Feb. 1998, ICJ Rep. 1998, p. 26, para. 47. 123  Barcelona Traction, Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964, p. 44. 124  An example of the latter is the objection raised by Australia to one of the claims of Nauru in the Phosphates in Nauru case. In its judgment on preliminary objections in this case the Court rejected the objections related to the jurisdiction of the Court and the admissibility of the application but upheld an objection that was, in the words of the Registry, “related only to one specific head of claim” (ICJ Yearbook (1991–1992), p. 199). 125   For examples of preliminary objections actually employed by States see Verzijl, “Preliminary Objections. . .”, pp. 536–537. 126  V. Heiskanen, “Jurisdiction v. Competence: Revisiting a Frequently Neglected Distinction”, Finnish YIL, vol. 5 (1994), p. 23, fn 25.

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Questions of jurisdiction refer to State consent, to the Court’s general power to adjudicate on the dispute, and to the legal ties between the Court and the parties to the case, particularly the legal instrument or instruments invoked as a title of jurisdiction in the case at hand. As such, they may refer to the States parties (jurisdiction ratione personae), to the subject-matter of the litigation (jurisdiction ratione materiae), or even to the time-frame of the dispute or of the facts giving rise to the dispute and their interplay with the element of consent (jurisdiction ratione temporis).127 Questions of admissibility, on the other hand, refer to the claims of the other party as they are expounded in the act instituting proceedings.128

Box # 12-11 Objections to jurisdiction and objections to admissibility129 Until recently, the Court had resisted the temptation to indulge in theoretical approaches to the fine distinction between objections to jurisdiction and objections to admissibility (and the consequences thereof). The Court has always managed to avoid taking a definite stance on this question. In one case, it merely stated that an objection framed as an objection to the jurisdiction was actually an objection against the admissibility of the application (Interhandel, Judgment of 21 March 1959, ICJ Rep. 1959, p. 26);130 in another case, it remarked that, when the consent to the Court’s jurisdiction is expressed in a compromisory clause in a treaty, “[a]ny conditions to which such consent 127  The Court has stated on a number of occasions that “[w]hen its jurisdiction is challenged on diverse grounds, ‘[it] is free to base its decision on the ground which in its judgment is more direct and conclusive’” (Norwegian Loans, Judgment of 6 July 1957, ICJ Rep. 1957, p. 25. Reaffirmed in Aerial Inident (Pakistan v. India), Jurisdiction, Judgment of 21 June 2000, ICJ Rep. 2000, p. 24, para. 26). 128  For listings of objections employed by States in litigation before the Court, either as objections to jurisdiction or as objections to admissibility, see Thirlway, “Preliminary. . .”, MN 18–19. 129  See good analysis in Thirlway’s Law and Procedure, Part 11, BYIL, vol. 71 (2000), pp. 73–83; Crawford & Pellet, “Anglo Saxon and Continental Approaches. . .”, pp. 832–842; G. Herczegh, “Les Exceptions Préliminaires a la lumière de la jurisprudence de la Cour internationale de Justice (1994–2000)”, in L.C. Vohrah et al (Eds.), Man’s Inhumanity to Man—Essays on International Law in Honour of Antonio Cassese (2003), p. 404; Sir E. Lauterpacht, “Principles of Procedure in International Litigation”, RC, vol. 345 (2009), pp. 502–505. 130  See also the dissenting opinion of judge Armand-Ugon in this case (ICJ Reports 1959, p. 85).

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is subject must be regarded as constituting the limits thereon” and, accordingly, “the examination of such conditions relates to its jurisdiction and not to the admissibility of the application” (Armed Activities II (DRC v. Rwanda), Jurisdic­ tion and Admissibility, Judgment of 3 Feb. 2006, ICJ Rep. 2006, p. 39, para. 88). In the Mutual Assistance case the Court reaffirmed this (Judgment of 4 June 2008, ICJ Rep. 2008, p. 200, para. 48) and it also extended the application of the rule to cases in which consent was expressed through “[t]wo separate and successive acts”, i.e., on the basis of the forum prorogatum doctrine. The Court concluded with apparent firmness that “[t]he conditions under which the Parties expressed their consent in the present case are a matter of jurisdiction and not of the admissibility of the Application or any claims formulated therein.” (ibid., para. 49) To a certain extent, this changed with the decision on preliminary objections in the Genocide Convention (Croatia) case, in which the Court, for the first time, made excursions into the categorization of preliminary objections. The Court stated the following: The Court. . . now turns to the second preliminary objection as stated in Serbia’s final submission 2 (a), namely the objection that “claims based on acts and omissions which took place prior to 27 April 1992”, that is to say prior to the formal establishment of the “Federal Republic of Yugoslavia (Serbia and Montenegro)”, the name by which the present Serbia was formerly known, “are beyond the jurisdiction of this Court and inadmissible”. The preliminary objection is thus presented as, at one and the same time, an objection to jurisdiction and one going to the admissibility of the claims. A distinction between these two kinds of objections is well recognized in the practice of the Court. In either case, the effect of a preliminary objection to a particular claim is that, if upheld, it brings the proceedings in respect of that claim to an end; so that the Court will not go on to consider the merits of the claim. If the objection is a jurisdictional objection, then since the jurisdiction of the Court derives from the consent of the parties, this will most usually be because it has been shown that no such consent has been given by the objecting State to the settlement by the Court of the particular dispute. A preliminary objection to admissibility covers a more disparate range of possibilities.(. . .) Essentially such an objection consists in the contention that there exists a legal reason, even when there is jurisdiction, why the Court should decline to hear the case, or more usually, a specific claim therein. Such a

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reason is often of such a nature that the matter should be resolved in limine litis, for example where without examination of the merits it may be seen that there has been a failure to comply with the rules as to nationality of claims; failure to exhaust local remedies; the agreement of the parties to use another method of pacific settlement; or mootness of the claim. (Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 456, para. 120)

Prior to these decisions, the matter had also been discussed in the individual opinions of some members of the Court. Of note are the separate opinion of judge Erich in the Electricity Company case, before the PCIJ (PCIJ A/B 77, pp. 140–141) and the separate opinion of judge Fitzmaurice in the Northern Cameroons case (Preliminary Objections, ICJ Rep. 1963, pp. 102–106).

As for the third category of objections found in paragraph 1 of Article 79, the Court said the following in the Lockerbie case: The Court must satisfy itself that such an objection does indeed fall within the provisions of Article 79 of the Rules, relied upon by the Respondent. In paragraph 1, this Article refers to “Any objection . . . to the jurisdiction of the Court or to the admissibility of the application, or other objection” (emphasis added); its field of application ratione materiae is thus not limited solely to objections regarding jurisdiction or admissibility. (Lockerbie, Preliminary Objections, Judgments of 27 Feb. 1998, ICJ Rep. 1998, p. 26, para. 47; p. 131, para. 46)131

This formulation was introduced in the 1972 amendment to the Rules with the declared purpose of enlarging the scope of preliminary objections, so that States would not feel bound to display too much effort in order to make the objections that they were going to submit fit into the rigid categories of objections to jurisdiction or to admissibility.132 The Court probably took this 131  It is suggested that an objection grounded in the concept of judicial propriety could be a viable example of an objection of this type. See Thirlway’s Law and Procedure, Part 12, BYIL, vol. 72 (2001), p. 129. On the concdept of propriety see Chapter 2, d). 132  E. Jiménez de Aréchaga, “The Amendments. . .”, p. 19; Villani, “Preliminary Objections. . .”, p. 208, fn 5; Rosenne, “The 1972 Revision. . .”, pp. 238–241.

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into consideration when it faced the Nuclear Tests cases, in which, after directing the applicants to plead their cases on jurisdiction and admissibility—the respondent having failed to enter an appearance—it decided to refrain from dealing with the merits on the basis of the mootness of the claim. In its decision, the Court remarked: The scope of the present phase of the proceedings was defined by the Court’s Order of 22 June 1973, by which the Parties were called upon to argue, in the first instance, questions of the jurisdiction of the Court and the admissibility of the Application. For this reason, as already indicated, not only the Parties but also the Court itself must refrain from entering into the merits of the claim. However, while examining these questions of a preliminary character, the Court is entitled, and in some circumstances may be required, to go into other questions which may not be strictly capable of classification as matters of jurisdiction or admissibility but are of such a nature as to require examination in priority to those matters. (Nuclear Tests, Judgments of 20 Dec. 1974, ICJ Rep 1974, p. 259, para. 22 and p. 463, para. 22)133

As a result, States now have a broad range of options with regard to the way in wich they frame their pleadings on preliminary objections and neither they nor the Court are compelled to label them in any form, it being enough that they are anchored to the broad formula contained in paragraph 1 of Article 79. It appears that there is no legal priority among the three types of objections mentioned in that provision. The constant practice of the Court is to first consider objections to its jurisdiction, and to enter into the examination of questions on admissibility only if it has rejected all of the former and it has affirmed its jurisdiction. In a recent case the Court referred to this as “[i]ts established jurisprudence.”134 Further, in a case in which it was dealing with a request for permission to intervene under Article 62, the Court said of a certain question that although 133  Quoted with approval in Nicaragua v. Colombia, Preliminary Objections, Judgment of 13 Dec. 2007, ICJ Rep. 2007, p. 851, para. 49. 134  Armed Activities II (DRC v. Rwanda), Judgment of 3 Feb. 2006, ICJ Rep. 2006, p.17, para. 18. On this see Iwanejko, “The Jurisdiction. . .”, pp. 167–168; Sir R. Jennings, “The LaGrand Case”, LPICT, vol. 1 (2002), p. 22. For the argument that this is not necessarily so in all cases see the dissenting opinion of President Winiarski in the South West Africa cases (Preliminary Objections, ICJ Rep. 1962, p. 449). Per contra, see the declaration by judge Koretski in the Northern Cameroons case (ICJ Rep. 1963, pp. 39–40).

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it was one of the Court’s jurisdiction “[i]t has no priority of the kind which attaches to a jurisdictional objection stricto sensu, and need not be examined in advance of the other contentions put forward by the Parties either as objections to the admissibility of the Application, or as grounds for refusing it.”135 It is therefore expected that this methodology will remain in use and that if there is ever a case in which objetions of the three types are filed, the Court will consider any objections of the third kind only after dismissing altogether the objections on jurisdiction and admissibility. f)

Handling of Objections by the Court

Until the amendment of 1972, the Court had three alternatives when deciding on challenges to its jurisdiction that assumed the form of preliminary objections: upholding the objections, rejecting them or joining them to the merits. This is connected with the basic notion that in an interlocutory decision concerning questions of jurisdiction, questions of admissibility and the like, the Court cannot resolve any question pertaining to the merits of the case. In reference to a decision on preliminary objections, the Court confirmed very tersely this in the South West Africa case, when it stated that “[d]ecisions of an interlocutory character cannot pre-judge questions of merits.”136 In a subsequent case, the Court remarked that “[a] decision on jurisdiction can never directly decide any question of merits.”137 It gave the following reasons for this: The essential point is that a decision on a preliminary objection can never be preclusive of a matter appertaining to the merits, whether or not it has in fact been dealt with in connection with the preliminary objection. When preliminary objections are entered by the defendant party in a case, the proceedings on the merits are, by virtue of Article 62, paragraph 3, of the Court’s Rules, suspended. Thereafter, and until the proceedings on 135  Malta/Lybia Continental Shelf, Application to Intervene, Judgment of 21 March 1984, ICJ Rep. 1984, p. 8, para. 11. Quoted with approval in a later case, also in the context of proceedings on intervention under Article 62 (El Salvador/Honduras, Application to Intervene, Judgment of 13 Sep. 1990, ICJ Rep. 1990, p. 111, para. 44). 136  South West Africa, Second Phase, Judgment of 18 July 1966, ICJ Rep. 1966, p. 38, para. 61. 137  ICAO Council, Judgment of 18 August 1972, ICJ Rep. 1972, p. 56, para. 18. See also Mavrommatis, Jurisdiction, Judgment No. 2, 30 August 1924, PCIJ A 2, p. 10; Polish Upper Silesia, Jurisdiction, Judgment No. 6, 25 August 1925, PCIJ A 6, p. 15; Barcelona Traction, Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964, p. 43.

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the merits are resumed, the preliminary objections having been rejected, there can be no decision finally determining or pre-judging any issue of merits. It may occur that a judgment on a preliminary objection touches on a point of merits, but this it can do only in a provisional way, to the extent necessary for deciding the question raised by the preliminary objection. Any finding on the point of merits therefore, ranks simply as part of the motivation of the decision on the preliminary objection, and not as the object of that decision. It cannot rank as a final decision on the point of merits involved. (South West Africa, Second Phase, Judgment of 18 July 1966, ICJ Rep. 1966, p. 37, para. 59)138

In its first two decades of existence the Court resorted quite liberally to the technique of joining preliminary objections to the merits, a situation that was perceived as causing an unnecessary extension of the length and duration of proceedings. Indeed, in one of the “big”—and controversial—cases handled by the Court at that time, Barcelona Traction (1962–1970), the Court resorted to the technique of joinder and eventually declined to exercise jurisdiction altogether, after several years of protracted and exhausting litigation.139 Apart from this case, the Court joined preliminary objections to the merits in the Norwegian Loans and Right of Passage cases, but the first of these is largely irrelevant for the present discussion, as the joinder took effect as a result of an agreement by the parties. In the controverted South West Africa case, the Court did not resort to joinder as such, but the result was very similar to that in Barcelona Traction, for in its initial decision on questions of jurisdiction the Court rejected the preliminary objections made by the respondent and affirmed its jurisdiction, only to reverse that decision several years later, in the “second phase” of the case, on highly technical grounds.140

138  See also the dissenting opinion of judge Jessup (ICJ Rep. 1966, p. 334) and the separate opinion of judge Morelli (ibid., p. 59). See also the dissenting opinion of judge Read in the Anglo-Iranian Oil Co., Preliminary Objection (ICJ Rep. 1952, p. 149). For a reasoned criticism of the Court’s stance on this question see W. M. Reisman, “Revision of the South West Africa cases”, Virginia JIL, vol. 7 (1966), pp. 68–70. 139  Barcelona Traction, Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964, p. 6; Second Phase, Judgment of 5 Feb. 1970, ICJ Rep. 1970, p. 3. The first of these decisions contains a survey of the case law of both courts with regard to the joinder of objections to the merits (ICJ Rep. 1964, pp. 41–44). 140  Barcelona Traction, Preliminary Objections, Judgment of 21 Dec. 1962, ICJ Rep. 1962, p. 319; Barcelona Traction, Second Phase, Judgment of 18 July 1966, ICJ Rep. 1966, p. 6.

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By the mid-sixties and early seventies a negative impression with regard to this aspect of the Court´s procedure was apparent among the States forming the Court’s cliéntele. It was perceived in some quarters that the Court was not being efficient and that it was helping the interests of a small number of States and overlooking the higher interests of mankind and international justice. The lowest point in this period was probably the year 1972, when the Court did not have one single contentious case before it. As a partial reaction to this, the General Assembly of the United Nations conducted a thorough discussion on the work of the Court that extended through several periods of sessions.141 The Court, in turn, was very receptive to the opinions voiced by concerned governments at the Sixth Committee, and it duly adopted several measures directed at speeding up and simplifying proceedings, thus making them less onerous for States. The first and foremost of these measures took place in 1972 and consisted of the adoption of partial amendments to the Rules of Court, which were preserved when a more comprehensive reform was approved, in 1978.142 One of those amendments sought to do away with the possibility of joining one or more preliminary objections to the merits, replacing it with the power of a more general nature of declaring “[t]hat the objection does not possess, in the circumstances of the case, an exclusively preliminary character” (paragraph 7 of Article 79, later renumbered as paragraph 9). This formula may have originated in a dictum in Barcelona Traction, in which, after reviewing its practice and that of the PCIJ on the matter of the joinder of preliminary objections to the merits, the Court stated: Paragraph 5 of Article [62 of the 1946 Rules] simply provides that, after the hearing, “the Court shall give its decision on the objection or shall join the objection to the merits”. In reaching its conclusion, the Court may decide that the objection does not in fact have a preliminary character, and that therefore, without prejudice to the right of the respondent State to raise the same question at another stage of the proceedings, if such there be, the objection cannot be entertained as a “preliminary objection”. (Barcelona Traction, Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964, p. 43)143

141  See the sources mentioned in Chapter 3, note 67. 142  For comments see Villani, “Preliminary Objections. . .”, pp. 215–221. 143  In the Electricity Company case, the PCIJ had found that a plea of lack of jurisdiction could not be regarded “as preliminary in character.” The Court rejected the objection but

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The difference is certainly subtle and essentially consists of the fact that, while the Court is now bound to take a decision on the objections at the preliminary stage, under the equivalent provision of the 1946 Rules the joinder to the merits was conceived as an alternative to actually having to decide on the objection. If the Court does not feel capable of deciding on the objections at the preliminary stage, it must in any case identify the reasons for this, i.e. the grounds on which the objection can be said not to possess “an exclusively preliminary character.”144 In practice, the result is probably the same—particularly from the point of view of the State challenging the jurisdiction—since the objection survives the jurisdictional phase and comes to be heard and determined within the framework of the merits.145 Nevertheless, it is generally admitted that the new Rule brought about a severe restriction of the Court’s power to defer the consideration of any preliminary objection for the merits phase by forcing it to evaluate every such objection from the point of view of its intrinsic nature. The Court is now bound to weigh carefully whether or not every objection filed possesses a truly “exclusively preliminary character” and to do this always taking into consideration “the circumstances of the case.”146 As explained by two former judges: When the Court, in 1972, adopted the text which later became Article 79, it did so for reasons of procedural economy and of sound administration of justice. Court and parties were called upon to clear away preliminary questions of jurisdiction and admissibility as well as other anticipated that “the Parties remain free to take it up again in support of their case on the merits.” (Preliminary Objection, Judgment of 4 April 1939, PCIJ A/B 77, p. 83). 144  Curiously enough, the first time that this new formulation was used in an international decision it was not by the Court but by an arbitral tribunal (Anglo-French Continental Shelf—Request for Interpretation, Decision of 14 March 1978, RIAA, vol. 18, p. 291, para. 16). 145  For the view that there is no real difference between joinder to the merits and a finding under paragraph 9 of Article 79 of the Rules see Thirlway, “Preliminary. . .”, MN 12–13. Throrough discussions on the import and consequences of the 1972 reform can be found in Jiménez de Arechaga, “The Amendments. . .”, pp. 16–18; Thirlway’s Law and Procedure, Part 12, BYIL, vol. 72 (2001), pp. 140–157, especially at p.147; and Rosenne’s Law and Practice, vol. 2, pp. 922–928. 146  For a discussion of the scope of the amendments which is contemporaneous with them see Jiménez de Aréchaga, “The Amendment. . .”, pp.1 ff. The question of the differences between the old and the new system is also discussed in the separate opinion of judge Petren in the Nuclear Tests case (ICJ Rep. 1974, pp. 304–305) and in the separate opinion of judge Shahabuddeen in the Nauru case (ICJ Reports 1992, pp. 271–273).

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preliminary objections before entering into lengthy and costly proceedings on the merits of a case. (Lockerbie, Preliminary Objections, Joint Declaration by Judges Guillaume and Fleischauer ICJ Rep. 1998, p. 49)

The first application of the new Rule in paragraph 7 of Article 79 took place in the Nicaragua case, in which the Court decided that an objection by the United States based on the so-called “multilateral treaty reservation” present in that country’s Optional Clause declaration did not have an exclusively preliminary character. It is rather paradoxical that the very first time that the Court applied paragraph 7 of Article 79 was in a case in which no preliminary objections proper had been raised. In Nicaragua, questions of jurisdiction and admissibility were discussed separately from the merits following the alternative procedure for handling challenges to the Court’s jurisdiction now governed by paras. 2 and 3 of Article 79 of the Rules and the Court found it proper to consider those questions “in the light of the procedural provisions” for classic preliminary objections. The Court also stated that when an objection is declared not to possess an exclusively preliminary character the effect is that it ceases to “[c]onstitute an obstacle for the Court to entertain the proceedings.”147 When this case reached the merits phase the Court entered into a detailed review of its previous practice on this matter, and it went on to explain the reasons for the 1972 amendment and the scope of the new rule: Under the Rules of Court dating back to 1936 (which on this point reflected still earlier practice), the Court had the power to join an objection to the merits “whenever the interests of the good administration of justice require it” (. . .), and in particular where the Court, if it were to decide on the objection, “would run the risk of adjudicating on questions which appertain to the merits of the case or of prejudging their solution” (ibid.). If this power was exercised, there was always a risk, namely that the Court would ultimately decide the case on the preliminary objection, after requiring the parties fully to plead the merits,—and this did in fact occur (. . .). The result was regarded in some quarters as an unnecessary prolongation of an expensive and time-consuming procedure.

147  Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 425, para. 76.

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Taking into account the wide range of issues which might be presented as preliminary objections, the question which the Court faced was whether to revise the Rules so as to exclude for the future the possibility of joinder to the merits, so that every objection would have to be resolved at the preliminary stage, or to seek a solution which would be more flexible. The solution of considering all preliminary objections immediately and rejecting all possibility of a joinder to the merits had many advocates and presented many advantages. In the Panevezys-Saldutiskis Railway case, the Permanent Court defined a preliminary objection as one “submitted for the purpose of excluding an examination by the Court of the merits of the case, and being one upon which the Court can give a decision without in any way adjudicating upon the merits” (PCIJ, Series A/B, No. 76, p. 22). If this view is accepted then of course every preliminary objection should be dealt with immediately without touching the merits, or involving parties in argument of the merits of the case. To find out, for instance, whether there is a dispute between the parties or whether the Court has jurisdiction, does not normally require an analysis of the merits of the case. However that does not solve all questions of preliminary objections, which may, as experience has shown, be to some extent bound up with the merits. The final solution adopted in 1972, and maintained in the 1978 Rules, concerning preliminary objections is the following: the Court is to give its decision “by which it shall either uphold the objection, reject it, or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character. If the Court rejects the objection, or declares that it does not possess an exclusively preliminary character, it shall fix time-limits for the further proceedings.” (Art. 79, para. 7.)148 While the variety of issues raised by preliminary objections cannot possibly be foreseen, practice has shown that there are certain kinds of preliminary objections which can be disposed of by the Court at an early stage without examination of the merits. Above all, it is clear that a question of jurisdiction is one which requires decision at the preliminary stage of the proceedings. The new rule (. . .) thus presents one clear advantage: that it qualifies certain objections as preliminary, making it quite clear that when they are exclusively of that character they will have to be decided upon immediately, but if they are not, especially when the character of the objections is not exclusively preliminary because 148  This corresponds to current para. 9 of Article 79.

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they contain both preliminary aspects and other aspects relating to the merits, they will have to be dealt with at the stage of the merits.149 This approach also tends to discourage the unnecessary prolongation of proceedings at the jurisdictional stage.

(Nicaragua, Merits, Judgmen of 27 Jun. 1986, ICJ Rep. 1986, pp. 29–31, paras. 38–41, paras. 39–41)

Further, in the Lockerbie cases the Court remarked that “The solution adopted in 1972 was ultimately not to exclude the power to examine a preliminary objection in the merits phase, but to limit the exercise of that power, by laying down the conditions more strictly.”150 On the other hand, the subject-matter of an objection that is dealt with and rejected by the Court on the basis of its having a non-exclusively preliminary character can be raised anew as a defense on the merits. This was stated in particularly felicitous terms by judge Hudson in the Panevezys-Saldutiskis Railway case, in which the Court joined an objection to the merits. He stated: The purpose of the joinder effected by the Court’s Order of June 30th, 1938, was stated to be to enable the Court to “adjudicate in one and the same judgment upon the objections and, if need be, on the merits”. If either of the objections has preliminary character, it is now for the Court to adjudge whether it is well-founded. If either objection does not have preliminary character, it should be rejected by the Court; but as the Court recognized at least implicitly in the Borchgrave case (. . .), the rejection of an objection will not prevent the same question from being raised as a defense to the merits of the case. (Panevezys-Saldutiskis Railway, Merits, Dissenting Opinion of Mr. Hudson, PCIJ A/B 76 (1939), p. 43)151

149  Reaffirmed in Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 461, para. 132. 150  Lockerbie, Preliminary Objections, Judgments of 27 Feb. 1998, ICJ Rep. 1998, p. 28, para. 49 and p. 133, para. 48. 151  The Court has admitted this explicitly in several occasions. See for instance Electricity Company (Preliminary Objection, Judgment of 4 April 1939, PCIJ A/B 77, p. 83) and Barcelona Traction (Preliminary Objections, Judgment of 24 July 1964, ICJ Rep. 1964, p. 43).

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Box # 12-12 Objections not possessing “an exclusively preliminary character” in the Court’s case law An objection that is raised as a preliminary objection but that is so closely connected with the merits of the claim that it can be decided only together with them corresponds to what is known in French law as a “fins de non-recevoir.” Although the term was on occasion used by the PCIJ, it steadily refused to embrace it as a concept relevant to international litigation (Mavrommatis Concessions ( Jurisdiction), Judgment No. 2, 30 August 1924, PCIJ A 2, p. 10; Polish Upper Silesia (Merits), Judgment No. 7, 25 August 1925, PCIJ A 6, pp. 18–19).152 As for the present Court, starting with the Anglo-Iranian Oil Co. case, it has had to deal with contentions that certain objections to its jurisdiction belonged to the merits and therefore could not be adjudicated upon at the jurisdictional phase.153 In the ICAO Council case, the Court made the following general observation in this regard: [m]any cases before the Court have shown that although a decision on jurisdiction can never directly decide any question of merits, the issues involved may be by no means divorced from the merits. A jurisdictional decision may often have to touch upon the latter or at least involve some consideration of them. This illustrates the importance of the jurisdictional stage of a case, and the influence it may have on the eventual decision on the merits, if these are reached—a factor well known to parties in litigation. (ICAO Council, Judgment of 18 August 1972, ICJ Rep. 1972, p. 56, para. 18)154

After the 1972 amendment and the deletion of the possibility of joining an objection to the merits, the question refers rather to determining whether or not a given objection possesses “an exclusively preliminary character.” Apart from Nicaragua, which was discussed above, this question has arisen in the Lockerbie and Genocide Convention (Croatia) cases, in which the Court had the opportunity to pronounce on the meaning of several aspects of Article 79, para. 9 of the Rules.

152  See further on this Heiskanen, “Jurisdiction v. Competence. . .”, pp. 22–28. 153  Anglo-Iranian Oil Co., Jurisdiction, Judgment of 22 July 1952, ICJ Rep. 1952, p. 111. 154  On the interplay of questions of jurisdiction and questions of the merits see Verzijl, “Preliminary Objections. . .”, p. 533.

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i) Lockerbie In this paired cases the Court was required to pronounce on a preliminary objection presented by the respondents seeking to show that a decision by the Security Council issued after the filing of the application had had the consequence of rendering the case moot. The Court quoted extensively from the decisions in Nicaragua—as well as its previous case law, dating back from the time of the PCIJ—and found that this objection did not possess an exclusively preliminary character: [i]f it is to be covered by Article 79, an objection must. . . possess a “preliminary” character. Paragraph 1 of Article 79 of the Rules of Court characterizes as “preliminary” an objection “the decision upon which is requested before any further proceedings”. (. . .) In so far as the purpose of the objection raised by the United Kingdom [and the United States] that there is no ground for proceeding to judgment on the merits is, effectively, to prevent, in limine, any consideration of the case on the merits, so that its “effect [would] be, if the objection is upheld, to interrupt further proceedings in the case”, and “it [would] therefore be appropriate for the Court to deal with [it] before enquiring into the merits” (. . .), this objection possesses a preliminary character and does indeed fall within the provisions of Article 79 of the Rules of Court.(. . .) (. . .) it is on the question of the “exclusively” or “non-exclusively” preliminary character of the objection here considered that the Parties are divided and on which the Court must now make a determination. (. . .) The Court must therefore ascertain whether, in the present case, the United Kingdom’s objection based on the Security Council decisions contains “both preliminary aspects and other aspects relating to the merits” or not. That objection relates to many aspects of the dispute. By maintaining that Security Council resolutions 748 (1992) and 883 (1993) have rendered the Libyan claims without object, the United Kingdom seeks to obtain from the Court a decision not to proceed to judgment on the merits, which would immediately terminate the proceedings. However, by requesting such a decision, the United Kingdom is requesting, in reality, at least two others which the decision not to proceed to judgment on the merits would necessarily postulate (. . .) The Court therefore has no doubt that Libya’s rights on the merits would not only be affected by a decision, at this stage of the proceedings, not to proceed to judgment on the merits, but would constitute, in many respects, the very subject-matter of that

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decision. The objection raised by the United Kingdom on that point has the character of a defense on the merits. In the view of the Court, this objection does much more than “touch(ing) upon subjects belonging to the merits of the case” (. . .); it is “inextricably interwoven” with the merits (. . .). The Court notes furthermore that the United Kingdom itself broached many substantive problems in its written and oral pleadings in this phase, and pointed out that those problems had been the subject of exhaustive exchanges before the Court; the United Kingdom Government thus implicitly acknowledged that the objection raised and the merits of the case were “closely interconnected” (. . .). If the Court were to rule on that objection, it would therefore inevitably be ruling on the merits; in relying on the provisions of Article 79 of the Rules of Court, the Respondent has set in motion a procedure the precise aim of which is to prevent the Court from doing so. (Lockerbie, Preliminary Objections, Judgment of 27 Feb. 1998, ICJ Rep. 1998, pp. 26–29, paras. 47–50)155

ii) Genocide Convention (Croatia) With regard to an objection submitted by the respondent that referred to both, the Court’s jurisdiction and the admissibility of the case, the Court reaffirmed its dictum in Nicaragua as to the purpose of the 1972 reform to Article 79 of the Rules and concluded that it could not rule on the objection without having “more elements before it:” In the view of the Court, the questions of jurisdiction and admissibility raised by Serbia’s preliminary objection ratione temporis constitute two inseparable issues in the present case. The first issue is that of the Court’s jurisdiction to determine whether breaches of the Genocide Convention were committed in the light of the facts that occurred prior to the date on which the FRY came into existence as a separate State, capable of being a party in its own right to the Convention; this may be regarded as a question of the applicability of the obligations under the Genocide Convention to the FRY before 27 April 1992. The second issue, that of admissibility of 155  Also of interest are the individual opinions of several members of the Court who parted ways with the Court on the interpretation given to paragraph 7 of Article 79 and the actual object and purpose of the 1972 reform to the Rules. See the joint declaration by judges Guillaume and Fleischhauer (ICJ Rep. 1998, pp. 47–50) and the dissenting opinion of judges Schwebel (ibid., pp. 72–73) and Jennings (ibid., pp. 105–107).

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the claim in relation to those facts, and involving questions of attribution, concerns the consequences to be drawn with regard to the responsibility of the FRY for those same facts under the general rules of State responsibility. In order to be in a position to make any findings on each of these issues, the Court will need to have more elements before it. In view of the above, the Court concludes that Serbia’s preliminary objection ratione temporis does not possess, in the circumstances of the case, an exclusively preliminary character. (Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, pp. 459–460, paras. 129–130)

Another aspect of interest of this decision is that the Court’s approach to certain objections made by the respondent suggests that when a question submitted to it in the guise of a preliminary objection does not refer at all to a preliminary point and pertains exclusively to the merits, the proper course of action for the Court is to reject the objection outright. Declaring that the objection “does not possess, in the circumstances of the case, an exclusively preliminary character” (thereby deferring its consideration as an objection for the merits phase) is not an option here, since Article 79, para. 9 of the Rules is applicable only when an objection possesses at least some preliminary character. In the case just mentioned, the Court ruled as follows on one of the objections submitted by Serbia and, incidentally, made the important point that a request for remedies “is not a matter that may be the proper subject of a preliminary objection:” (. . .) The Court understands the first basis of Serbia’s submission to be essentially a matter of admissibility: it amounts to an assertion that, on the facts of the case as they now stand, the claim is moot, in the sense that Croatia has not shown that there are at the present time any persons charged with genocide, either by the ICTY or by the courts of Croatia, who are on the territory or within the control of Serbia. Whether that is correct will be a matter for the Court to determine when it examines the claims of Croatia on the merits. The Court therefore rejects the objection and sees no remaining issue of admissibility. (. . .) However, the question what remedies might appropriately be ordered by the Court in the exercise of its jurisdiction under Article IX of the Convention is one which is necessarily dependent upon the findings that the Court may in due course make of breaches of the Convention by the

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Respondent. As a matter which is essentially one of the merits, and one dependent upon the principal question of responsibility raised by the claim, this is not a matter that may be the proper subject of a preliminary objection. This conclusion is reinforced by the consideration that, in this particular case, in order to decide whether an order in the terms of Croatian submission 2 (b) would be an appropriate remedy, the Court would have to enquire into disputed matters of fact. This it would have to do in order to establish whether or not, and in what circumstances, the co-operation as to the provision of information between the two States mentioned by Serbia has taken place, and whether this remedy might be held as resulting from the establishment of responsibility for breaches of the Convention. These issues are for the merits, and the Court concludes that the preliminary objection submitted by Serbia, so far as it relates to Croatian submission 2 (b), must be rejected.(. . .) However, as the Court has noted above, the question what remedies might appropriately be ordered by the Court is one which is necessarily dependent upon the findings that the Court may in due course make of breaches of the Genocide Convention by the Respondent; it is not a matter that may be the proper subject of a preliminary objection. As in the case of submission 2 (b), this conclusion is reinforced by the consideration that in order to decide whether an order in the terms of Croatian submission 2 (c) would be an appropriate remedy, the Court would have to enquire into disputed matters of fact, to establish whether or not a breach of an obligation deriving from the Genocide Convention had been established, and if so in what respects. The Court concludes that the preliminary objection submitted by Serbia so far as it relates to Croatian submission 2 (c) must be rejected. (Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, pp. 462–465, paras. 136, 139, 143)156

156  In the Cameroon v. Nigeria case the Court found that one of the preliminary objections made by the respondent did not possess an exclusively preliminary character, but did not elaborate upon the point (Preliminary Objections, Judgment of 11 June 1998, ICJ Rep. 1998, 324–325, paras. 116–117). The Nicaragua v. Colombia case could also be included in this list, since the parties disputed fiercely whether the questions raised by the first of Colombia’s preliminary objections could be resolved at the preliminary objections phase or should be deferred to the merits phase. The Court simply upheld some of the objections and rejected others.

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g) Procedure The procedure for dealing with challenges to the Court’s jurisdiction is governed by the provisions of paragraphs 3 to 8 of Article 79 of the Rules and is essentially the same, regardless of which mechanism is chosen by the parties. Article 79 corresponds to Article 62 of the 1972 Rules. It is worth noting that in at least two early cases the present Court deliberately circumvented the special procedure provided in it. In both the US Nationals in Morocco and the Monetary Gold cases, the Court chose to deal with a preliminary objection raised by one of the parties by simply requesting from the agents “[t]o produce any document or to supply any explanations,” under the terms of Article 49 of the Statute. This provision is concerned with the production of evidence but in these two instances the Court used it in order to handle preliminary questions in an expeditious manner. It is believed that in both cases the parties consented to this unorthodox procedure.157 In this regard, the main difference between the traditional method of raising preliminary objections and the alternative method of separately discussing all questions of jurisdiction and admissibility is that in the former genuine incidental proceedings are open and they are conducted independently of the ordinary proceedings on the merits, which under paragraph 5 of Article 79 are interrupted or, more accurately, suspended upon the making of the objections. In the latter case proceedings on jurisdiction and admissibility are instead preliminary proceedings because the proceedings on the merits will be commenced only after the Court has disposed of those questions by means of a judgment. As for the third and fourth methods available to the State challenging the jurisdiction—when paragraph 10 of Article 79 is resorted to or when fresh non-preliminary objections are made as a plea in bar—all procedural matters involved are governed by the rules governing proceedings on the merits.

157  US Citizens in Morocco, Pleadings, Vol. 4, pp. 431–432; Monetary Gold, Order of 3 Nov. 1953, ICJ Rep. 1953, p. 44.

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Box # 12-13 Entering proceedings on preliminary objections in the General List: Practice i)

Practice of the PCIJ

At the time of the PCIJ, when a State party to a case which had been entered into the General List raised questions of jurisdiction in the form of preliminary objections, the Registrar opened a separate entry in the List. This resulted in that there were two separate entries in each case, one dealing with the merits and the other dealing with the questions of jurisdiction. Interestingly, this was never done with regard to other incidental proceedings, such as interim measures of protection or third-party intervention. Also, since the governing date for purposes of the entry into the General List is always the date of instituting proceedings, the proceedings on jurisdiction in each case were given a folio number higher than that assigned to the proceedings on the merits. This was done in the following cases: – Mavrommatis (Folios 10 and 12) – German Interests in Polish Upper Silesia (Folios 18 and 19) – Factory at Chorzów (Folios 25 and 26) – Readaptation of the Mavrommatis Concessions (Folios 27 and 28) – Interpretation of the Statute of Memel (Folios 47 and 50) – Prince von Pless (Folios 49 and 55) – Appeal against two judgments by the Hungaro-Czechoslovak Mixed Arbitral Tribunal (Dec. 21st, 1931) (Folios 51 and 56) – Appeal against a judgment by the Hungaro-Czechoslovak Mixed Arbitral Tribunal (Apr. 13th, 1931) (Folios 54 and 57) – Losinger (Folios 64 y 67) – Pajzs, Csáky, Esterházy (Folios 65 and 66) – Phosphates in Morocco (Folios 68 and 71) – Borchgrave (Folios 72 and 73) – Panevezys-Saldutiskis Railway (Folios 74 and 76) – Electricity Company (Folios 75 and 78)158

158  The definite version of the Permanent Court’s General List was reproduced in the last annual report of the Court, covering the period between June 1939 and December 1945 (PCIJ E 16, pp. 92–148).

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In his dissenting opinion in the Panevezys-Saldutiskis Railway case, judge Hudson offered the following comment on this practice: [the Court] is bound to consider the consequences which its own system of procedure would attach to a determination that an objection is preliminary. Not all of these consequences are set forth in Article 62 of the Rules of Court. The filing of a preliminary objection has the effect of suspending the normal course of the procedure in a case, and for the normal procedure it substitutes at least temporarily a special procedure relating to the objection only. In a sense, it may be said that the proceeding on the preliminary objection is independent of the proceeding which for the time being it replaces. A new entry of it is made in the “General List of cases submitted to the Court” provided for in Article 20 of the Rules (. . .). In the new proceeding, the State which has presented the objection occupies a position in some respects equivalent to that of an applicant. (. . .) Under the practice and procedure now prevailing, unless a preliminary objection is sustained, the parties thus have to bear the burden of an expenditure of time, effort and money for what is, in fact, a double appearance before the Court. (Panevezys-Saldutiskis Railway, Merits, Judgment of 28 Feb. 1939, PCIJ A/B 76, pp. 44–45)

ii) Practice of the ICJ Until 1952, the Court followed the PCIJ practice and treated proceedings on formal preliminary objections as a separate case. Only one case, however, received this treatment, namely, the Corfu Channel case, in which the procedings on the merits were given Folio number 1 in the General List and the proceedings on a preliminary objection made by the respondent were given Folio number 2.159 In that year, in the wake of the Ambatielos case,160 the Court decided that “[i]n future, these proceedings would be treated as an incident of proceedings on the merits and not as a separate case,” thus giving rise to what is commonly 159  Yet another entry was made in this case for derivative proceedings concerning the assessment of compensation, under Folio number 1-A. The General List of the ICJ was reproduced for the last time in the Court’s Yearbook corresponding to the year 1963–1964 (ICJ Yearbook (1963–1964), pp. 53–93). For details see Chapter 5, f ). 160  The only case before Ambatielos in which a preliminary objection was made was US Nationals in Morocco, but it was later withdrawn by the party making it.

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known as a “preliminary objections phase” or a “jurisdiction and admissibility phase.”161 The Registry carefully laid down the procedural consequences of that decision, which were (and remain) as follows: (1) the document by which the preliminary objection is lodged is to be filed in as many copies as other documents in the proceedings and not in one copy, as in the case of an application; (2) that document will be treated as a pleading and will not be distributed to all States parties, given that “[it] often deals with matters closely affecting the merits of the case”;162 (3) preliminary objections will not be entered in the General List as a separate case; and (4) judges ad hoc appointed to hear cases on the merits have no need to make a new solemn declaration for the hearing on preliminary objections (unless, of course, thay have not had the chance to make it earlier).163

Thus, there will always be an exchange of written pleadings—in principle a single round of pleadings164—and an oral hearings stage. In the case of formal preliminary objections, the single pleading of the party submitting the objections consists of the objections themselves, which, according to paragraph 1, “shall be made in writing,” and the pleading by the applicant in the main case is called “written statement.”

161  ICJ Yearbook (1952–1953), p. 89. 162  In the Borchgrave case the PCIJ departed from its previous practice in this regard but on an antirely ad hoc basis. Shortly after, it decided to abandone this procedure altogether. (PCIJ E 14, pp. 142–143). 163  ICJ Yearbook (1952–1953), p. 89. 164  The only case thus far before the present Court in which there has been a second round of written pleadings on questions of jurisdiction and admissibility is Qatar v. Bahrain, in which the alternative method was used and the Court made the finding that “[t]he filing of further pleadings by the Parties is necessary”(Order of 26 June 1992, ICJ Rep. 1992, p. 238). In the Fisheries Jurisdiction (Spain v. Canada) case—also under the alternative procedure—the Court denied a request by Spain to file a second pleading (Order of 8 May 1996, ICJ Rep. 1996, p. 58). The judge ad hoc appointed by Spain, Torres Bernárdez, appended a dissenting opinion criticizing this stance by the Court (ibid., p. 61).

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Figure 3a

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Institution of Proceedings In the French version of paragraph 5 the pleading filed by the party making the objection is called “l’acte introductif de l’exception”. In the (non-official) Spanish version of the Rules the term used is even more explicit, namely: “[e]l escrito planteando la excepción preliminar”. Of interest in this regard is the Nottebohm case, in which the respondent sent to the Court a communication that failed to convey that it was a preliminary objection. The applicant stated that it was for the Court to treat this communication either as a preliminary objection or as a notice of lack of appearance that triggered the application of Article 53 of the Statute. The Court opted for the first course and in its decision on jurisdiction remarked: “By challenging, in its communication of September 9th, 1952, the jurisdiction of the Court to deal with the claim which was the subject of the Application filed by the Government of Liechtenstein and by refraining in consequence from presenting a Counter-Memorial, the Government of Guatemala has raised a Preliminary Objection.”165 As for the contents of these pleadings, paragraph 4 of Article 79 lays down the rule that this pleading shall set out the following elements: – – – –

the facts and the law on which the objection is based; the submissions; a list of the documents in support; mention to any evidence which the party may desire to produce.166

Further, “copies of the supporting documents shall be attached” to the preliminary objections. As for the other party, it may present a written statement of its observations and submissions. In this document “evidence which it is proposed to produce shall be mentioned” and “documents in support shall be attached.” Paragraph 5 of Article 79 is silent on the time-limit that the other party has for the presentation of this written statement and limits itself to authorizing the Court, or the President if the Court is not sitting, to fix that time-limit. Practice Direction No. V, adopted in 2001 (and amended in 2004) lays down that as a general rule this time-limit “shall generally not exceed four months from the date of the 165  Nottebohm, Preliminary Objection, Judgment of 18 Nov. 1953, ICJ Rep. 1953, p. 118. 166  In the Fisheries Jurisdiction (United Kingdom v. Iceland) (Germany v. Iceland) cases, the Court registered that by failing to appear in the case, the respondent had not observed this provision, which was embodied in then Article 62, para. 2 of the Rules ( Jurisdiction, Judgments of 2 Feb. 1973, ICJ Rep. 1973, p. 7–8, para. 12; p. 54, para. 13).

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filing of the preliminary objections,” a rule that was adopted with the declared purpose of “accelerating proceedings on preliminary objections.”167 Conduction of Proceedings It is evident that the Court or its President must act promptly once preliminary objections have been filed. This is so because the fixing of a time-limit for the filing of the applicant’s written statement on the preliminary objections is subject to the issuance of an order, and some time may elapse between the actual filing of the preliminary objections and the making of that order. This time will be an added bonus for the applicant State, who presumably will be informed of the filing of the objections as soon as this happens and will then be put on notice as to the need to prepare a written pleading in response to the objections. It is worth noting that, after living comfortably for many years with a remarkably flexible regime on preliminary objections, under which there were no fixed time-limits either for the filing of the pleading containing the objections or for the presentation of the written statement by the other party, in 2000 and 2001 the Court decided to introduce a peremptory limit of three months for the first of these actions, and one of four months for the second, both with the declared purpose of accelerating proceedings on matters of jurisdiction and admissibility. These new provisions should be deemed to fall under the purview of Article 48 of the Rules, according to which all time-limits “shall be as short as the character of the case permits.” On the other hand, proceedings on preliminary objections or, more generally, on questions of jurisdiction and admissibility, do not enjoy any kind of priority within the Court’s programme of work. This was different during the first epoch of the PCIJ, for under Article 38 of the 1926 Rules some of the provisions concerning summary proceedings were applicable to proceedings on preliminary objections. Practice in application of this provision evolved, and in his 1933 Report the Registrar observed that while the Court recognized that the decision in those cases “must be conducted expeditiously,” this did not mean that they possessed any kind of priority.168

167  This provision has been criticized with the argument that it appears to be directed to the parties rather than to the Court, which has complete discretion to fix the timelimit for the presentation of the written statement on the objections (Prager, “The 2001 Amendments. . .”, p. 176). 168  PCIJ D 2, Add. 3 (1936), p. 820; see also PCIJ E 9, p. 164.

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As for the written pleadings stage in alternative proceedings under paragraphs 2 and 3 of Article 79, the Rules only mention in paragraph 3 the “pleadings as to jurisdiction and admissibility” that each party is to file, according to what the Court has decided with regard to their number and order, as well as the time-limits for their submision. As previously mentioned, in practice these pleadings are consecutive (a Memorial and a Counter-Memorial) and it will be for the Court to decide which of the parties is to play the active role and plead first. Although the Rules do not say so, when the Court fixes the timelimits for the filing of these pleadings it would presumably take into account the rules just described governing the written stage on proceedings on preliminary objections. Likewise, it is only natural that the contents of these pleadings should be essentially the same as that of the preliminary objections and the written statement, just as the Rule in paragraph 7, according to which the statements of facts and law in the pleadings and the statements and evidence presented at the hearings “shall be confined to those matters that are relevant to the objection,” will be applicable by analogy. As for the oral stage, paragraph 6 of Article 79 only provides that a hearing will take place “unless otherwise decided by the Court.” There is no case yet in which the Court has so decided.

Box # 12-14 Brevity of the oral statements: Practice Direction VI Practice Direction VI, issued in October 2001 and revised in January 2009, contains a renvoi to Article 60, para. 1 of the Rules, concerning the required brevity and succinctness required of the statements to be made by counsel during the hearings on preliminary objections. It lays down—rather tautologically—that, Where objections of lack of jurisdiction or of inadmissibility are being considered, oral proceedings are to be limited to statements on the objections.169

169  For examples of cases in which the Court interrupted counsel during a hearing in order to request that the argument be confined to jurisdictional issues see Fitzmaurice’s Law and Procedure, vol. 2, p. 581.

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Interestingly, while Article 79, para. 1 of the Rules is not confined to objections on jurisdiction and inadmissibility, this Practice Direction makes no reference to other types of objections. Evidently, this is no obstacle for applying the same rule to all of the objections that a party may make. Even if the objections do not refer to lack of jurisdiction or to inadmissibility, the oral proceedings must be limited to statements on those objections.

Further, in the absence of specific rules on other aspects of procedure, the general rules governing oral proceedings in ordinary cases, found in Articles 54 to 72 of the Ruls of Court, would be applicable by analogy. These rules refer to questions such as: – – – – – – – – –

The fixing of the dates for the hearings; The presentation of further documents and evidence; The determination of the order for the presentation of argument; The posing of questions to the parties; The presentation of witnesses and experts; The organization of an enquiry by the Court; Requests for information to international organizations; The determination of the languages to be used; and, The keeping of records of the sessions.

Practice shows that in most cases oral hearings on jurisdiction and admissibility are relatively short and compact, since in cases of this kind the questions addressed by the parties normally concern technical points of law and very rarely involve questions of fact for which sophisticated means of evidence would be required. Nevertheless, paragraph 8 of Article 79 anticipates that when questions of jurisdiction are at stake—which appears to imply that the case is different when the objections refer to admissibility or to other matters170—the Court is authorized to exercise a higher degree of control over the development of the case. Under that provision

170  It has been noted, however, that this interpretation is not compatible with the tenor of article 79 as a whole, which is or should be applicable to all types of preliminary objections (Rosenne’s Law and Practice, vol. 2, p. 887).

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In order to enable the Court to determine its jurisdiction at the preliminary stage of the proceedings, the Court, whenever necessary, may request the parties to argue all questions of law and fact, and to adduce all evidence, which bear on the issue.171 In practice, this could translate into the Court ordering the parties to address a certain specific question or questions, either in their pleadings or during the hearing, or even to file additional pleadings. It is believed that this power has not yet been used by the Court.172 There is no example yet of a case on jurisdiction or admissibility in which the oral proceedings have been omitted. There have been cases in which the parties have requested the Court to authorize foregoing a hearing but for various reasons the Court has never found it fit to condone such a radical departure from the rules governing contentious proceedings.173 The Decision Incidental proceedings under Article 79 of the Rules can lead to a decision by the Court—which under paragraph 9 of that provision must be in the form of a judgment174—producing one of three effects, namely: (i) Upholding the objections. In this situation, the case is automatically removed from the List. (ii) Rejecting the objections. (iii) Declaring that the objections do not possess, in the circumstances of the case, “an exclusively preliminary character.”

171  This provision was introduced in the 1972 amendment to the Rules. According to one of the drafters, this intended to discourage further resort to the joinder of preliminary objections to the merits (Jiménez de Aréchaga, “The Amendments. . .”, pp. 12–13). 172  For a case in which the Court addressed to the parties a request that may be construed as grounded in para. 8 of Article 79 see Box # 7-1. 173  For examples of the parties declaring their intention to waive the oral hearings stage see Haya de la Torre (ICJ Yearbook (1950–1951), p. 106) and US Nationals in Morocco (ICJ Yearbook (1951–1952), p. 99). 174  This happened also at the time of the PCIJ, when proceedings concerning preliminary objections were treated as entirely separate cases (See Box # 12-13). A notable exception was that of decisions ordering the joinder of an objection to the merits, which were invariably adopted in the form of orders. For discussions on this question see PCIJ E 9, p. 171; PCIJ E 12, p. 195.

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In scenarios (ii) and (iii) the proceedings on the merits continue. If preliminary objections were filed under paragraph 1 of Article 79, the proceedings are resumed at the point at which they were suspended and a time-limit is fixed for the deposit of the next written pleading, which would normally be the Counter-Memorial of the respondent. If the procedure used to deal with questions of jurisdiction and admissibility was that provided for in paragraphs 2 and 3 of Article 79, the proceedings on the merits begin then and there and the Court is to fix the time-limit for the first round of substantive pleadings. It is also important to stress that, like in the case of proceedings on the merits, incidental proceedings under Article 79 of the Rules can terminate for reasons other than the rendering of a decision. In particular, despite the silence of Article 79 on this question, if the traditional method for challenging the Court’s jurisdiction has been used, the party making preliminary objections is always entitled to withdraw them. If the withdrawal affects only some of the objectiones filed, the incidental proceedings continue with regard to the ramaining objections, but if it affects all of them a discontinuance of the entire preliminary proceedings will be deemed to have taken place.175 Preliminary proceedings on questions of jurisdiction and admissibnility will terminate also if the proceeedings in the main case are terminated before the Court reaches a decision on those questions, by discontinuance or otherwise, as it has happened in a number of ocassions.176 In its case law the Court has had ocassion to refer to the effects of its judgments on questions of jurisdiction. In the first place, in a case concerned with an appeal against a decision by other organ of international adjudication, the Court rejected an attempty by one of the parties to draw a distinction between decisions on jurisdiction and decisions on the merits, and remarked that they have the same import: Although a jurisdictional decision does not determine the “ultimate merits” of the case, it is a decision of a substantive character, inasmuch as it may decide the whole affair by bringing it to an end, if the finding is against the assumption of jurisdiction. A decision which can have that 175  See Chapter # 9, b), 4). 176  Barcelona Traction I, Aerial Incident (USA v. Bulgaria), Compagnie de Beyrouth, Pakistani POW, Aerial Incident (Iran v. USA), Armed Activities (RDC v. Burundi), Armed Activities I (RDC v. Rwanda) and Jurisdiction and Enforcement (Belgium v. Switzerland). Another possibility is the abandonment of an objection during the proceedings themselves (for an example see Norwegian Loans, Judgment of 6 July 1957, ICJ Reports 1957, p. 22).

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effect is of scarcely less importance than a decision on the merits, which it either rules out entirely or, alternatively, permits by endorsing the existence of the jurisdictional basis which must form the indispensable foundation of any decision on the merits. A jurisdictional decision is therefore unquestionably a constituent part of the case, viewed as a whole, and should, in principle, be regarded as being on a par with decisions on the merits as regards any right of appeal that may be given. (ICAO Council, Judgment of 18 August 1972, ICJ Rep. 1972, p. 56, para. 18)

In the second place, the Court has stated in unambiguous terms that a judgment on questions of jurisdiction “as on the meris, is final and binding on the parties under Articles 59 and 60 of the Statute.”177 Thirdly, the Court has stressed that the scope of one of its jurisdictional decisions is by necessity inherently limited, inasmuch as it should confine itself to the case at hand and refrain from addressing any “controverted issue of a general nature:” The function of a decision of the Court on its jurisdiction in a particular case is solely to determine whether or not the Court may entertain that case on the merits, and not to engage in a clarification of a controverted issue of a general nature. A decision of the Court should have, in the words of the Judgment in the Northern Cameroons case, “some practical consequence in the sense that it can affect existing legal rights or obligations of the parties, thus removing uncertainty from their legal relations” (ICJ Rep. 1963, p. 34; emphasis added); and that will be the proper consequence of the Court’s decision on its jurisdiction in the present case. (Kosovo (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of Dec. 2004, ICJ Rep. 2004, pp. 295–296, para. 38)178

177  Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 24, para. 27. In the Corfu Channel case the Court had stated that a question decided by a judgment concerning jurisdiction was res judicata (Corfu Channel, Compensation, Judgment of 15 Dec. 1949, ICJ Rep. 1949, p. 248). 178  In the same direction, in the Interhandel case judge Basdevant had remarked that “[t]he anticipated effect of a judgment on a preliminary objection is to determine whether the proceedings on the merits will or will not be resumed” (ICJ Reports 1959, p. 31). See also see South West Africa, Second Phase, Dissenting Opinion of Judge Tanaka, ICJ Rep. 1966, p. 261.

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Further Reading

Leading Works



General Works and Treatises on the Court



Articles and Monographs

G. Abi-Saab, Les Exceptions preliminaries dans la procédure de la Court internationale, Étude des notions fondamentales de procédure et des moyens de leur mise en oeuvre (1967) E. Grisel, Les exceptions d’incompétence et d’irrecevabilité dans la procédure de la Cour international de Justice (1968)

Dubisson’s CIJ, pp. 230–235 Fitzmaurice’s Law and Procedure, vol. 2, pp. 451–491 Guyomar’s Commentaire, pp. 496–518 Hudson’s PCIJ, pp. 416–418 Rosenne’s Procedure, pp. 158–170 Rosenne’s Law and Practice, vol. 2, pp. 837–932 Scerni’s la Procédure, pp. 640–644 S. Talmon, “Article 43”, in Oxford Commentary, MN 171–202, pp. 1158–1170 Thirlway’s Law and Procedure, Part 12, BYIL, vol. 72 (2001), pp. 128–157 C. Tomuschat, “Article 36”, in Oxford Commentary, MN 109–141, pp. 694–710

Ch.F. Amerasinghe, Jurisdiction of Specific International Tribunals (2009), pp. 22–32 M. Bothe, “The WHO request”, in L. Boisson de Chazournes & P. Sands (Eds.), International Law, the International Court of Justice and Nuclear Weapons (1999), pp. 103–111 R. Giuffrida, La ricevibilita generale nella Giurisprudenza della Corte Internazionale di Giustizia (1995) G. Griffith & Ch. Staker, “The jurisdiction and merits phases distinguished”, in L. Boisson de Chazournes & P. Sands (Eds.), International Law, the International Court of Justice and Nuclear Weapons (1999), pp. 59–77 E. Hambro, “The Jurisdiction of the International Court of Justice”, RC, vol. 76 (1950-I), pp. 208–213 G. Herczegh, “Les Exceptions Preliminaires a la lumière de la jurisprudence de la Cour internationale de Justice (1994–2000)”, in L.C. Vohrah et al. (Eds.), Man’s Inhumanity to Man—Essays on International Law in Honour of Antonio Cassese (2003), pp. 399–422 R. Higgins, “Jurisdiction at the International Court of Justice”, in R. Higgins, Themes and Theories—Selected Essays, Speeches, and Writings in International Law (2009), pp. 1387–1394

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M. Iwanejko, “The Jurisdiction of the International Court of Justice: The Plea to the Admissibility”, Polish YIL, vol. 1 (1966/67), pp. 164–182 E. Jiménez de Aréchaga, “The Amendments to the Rules of Procedure of the International Court of Justice”, AJIL, vol. 67 (1973), pp. 1–22 Sir E. Lauterpacht, “Principles of Procedure in International Litigation”, RC, vol. 345 (2009), pp. 502–507 M. Mabrouk, Les exceptions de procedure devant las jurisdictions internationals (1966) F.L. Morrison, “Treaties as a Source of Jurisdiction, Especially in U.S. Practice”, in L.F. Damrosch, et al., The International Court of Justice At A Crossroads (1987), pp. 58–81 S. Oda, “The International Court of Justice viewed from the Bench (1976–1993)”, RC, vol. 244 (1993-VII), pp. 47–54 J.J. Quintana, “La Impugnación de la Competencia en Asuntos Contenciosos ante la Corte Internacional de Justicia”, Anuario Colombiano de Derecho Internacional, vol. 1 (2008), pp. 12–48 S. Rosenne, “The Reconceptualization of Objections in the International Court of Justice”, in S. Rosenne, An International Law Miscellany (1993), pp. 133–160 S. Rosenne, “International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State Applications”, in Max Planck EPIL P. Sabourin, La contestation de la compétence de la C.I.J. (1985) I. Shihata, The power of the International Court to determine its own jurisdiction— Compéténce de la Compéténce (1965) J.-M. Sorel & F. Poirat (Eds.), Les procédures incidents devant la Cour internationale de Justice: exercice ou abus de droits? (2001), pp.52–57, 109–128 S. Talmon, “A Primer on ICJ Procedure: A Commentary on Article 43 ICJ Statute”, Bonn Research Papers on Public International Law, Paper No. 2/2012, 2 Feb. 2012, MN 171–202 H. Thirlway, “Preliminary Objections”, in Max Planck EPIL S. Torres Bernárdez, “La modification des articles du règlement de la Cour international de Justice relatives aux exceptions preliminaries et aux demandes reconventionnelles”, AFDI, vol. 49 (2003), pp. 207–247 U. Villani, “Preliminary Objections in the New Rules of the International Court of Justice”, Italian YIL, vol. 1 (1975), pp. 206–221

Chapter 13

Counter-Claims The quintessentially procedural institute of counter-claims is not foreseen in the Statute and has been used very sparsely by States in the practice of litigation before the ICJ. Counter-claims have been filed only on nine occasions before the present Court, most of which occurred during the last two decades. The legal basis for this procedural device is found in Article 80 of the Rules of Court, a provision that was amended in December 2000, when the Court had had the occasion to benefit from the lessons learned in those cases.1 Counter-claims are known to all systems of law. In order to define what a counter-claim is—and what is not—resort can be had to the United Nations Secretariat’s commentary to the ILC’s Draft Convention on Arbitral Procedure, in which it was stated: [t]here is a common element in the idea of a counter-claim in all legislation in which counter-claims are recognized, even though the concrete rules on the subject may differ. This common element lies in the fact that in a counter-claim the defendant aims at obtaining in the same proceedings as those instituted by the plaintiff something more than a mere rejection of the plaintiff’s claim, and more than a mere statement of the legal grounds upon which such a rejection is based.2

1  For details on the 2000 reform see D.W. Prager, “The 2001 Amendments to the Rules of Procedure of the International Court of Justice”, LPICT, vol. 1 (2002), pp. 178–187. See also S. Rosenne, “The International Court of Justice: Revision of Articles 79 and 80 of the Rules of Court”, LJIL, vol. 14 (2001), pp. 77–87; S. Torres Bernárdez, “La modification des articles du règlement de la Cour international de Justice relatives aux exceptions préliminaries et aux demandes reconventionnelles”, AFDI, vol. 49 (2003), pp. 228–247. 2   ILC Draft Convention, p. 71. The relevant provision in this draft was Article 16, which applied to “any incidental or additional claims or counter-claims.” In the subsequent Draft Model Rules adopted by the ILC in 1958 the language was simplified to refer in general to “ancillary claims” (Article 19). For an explanation see ILC Model Rules, p. 87.

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Box # 13-1

On the meaning of the technical term “counter-claim” 3

In his dissenting opinion appended to the Court’s decision on counterclaims in the Genocide Convention (Bosnia) case, then Vice-president Weeramantry included a thorough analysis on the precise contours of the legal notion of counter-claims: To my mind, a counter-claim is what its name implies—that it is a legal claim or factual situation alleged by the respondent that counters the claim set up by the applicant. The mere fact that it is a claim made by the respondent in the same proceedings is not enough. The mere fact that it pays back the plaintiff in the same coin, so to speak, does not make it a counter-claim. The juristic concept of a counter-claim has more to it than mere parallelism or reciprocity. There must be some point of intersection between the claims, which makes one exert an in��uence upon the judicial consequence of the other. The ordinary meaning of the expression “counter-claim” lends support to this view. The Concise Oxford Dictionary gives two meanings to the expression. The first is “a claim made against another claim”. Under this definition, the two claims in question should, in principle, be capable of being opposable to each other—whether by way of diminution of responsibility, or by monetary set-off, or in any other legally recognized manner. Failing this, one cannot be a counter-claim to the other. The other meaning given to “counter-claim” is that it is “a claim made by a defendant in a suit against the plaintiff”. This meaning emphasizes another aspect, namely, that such claims are envisaged only in civil proceedings, for these expressions—“plaintiff”, “defendant” and “suit”—are quite clearly set in the context of civil claims. Crimes, by their very nature, do not fit within this definition. Black’s Law Dictionary, on the same lines, gives a short definition of a counter-claim for the Anglo-American system as: A claim presented by a defendant in opposition to or deduction from the claim of the plaintiff. Fed. R. Civil P. 13. If established, such will defeat or diminish the plaintiff’s claim. 3  See further C. Antonopoulos, Counterclaims before the International Court of Justice (2011), pp. 50–72.

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(. . .) Another aspect of counter-claims, stressed by various writers on the subject, is that their object goes beyond the mere dismissal of the principal claim, to obtain something more. This suggests that while the essential character of a counter-claim is to impinge on the original claim and thus weaken or destroy it, it may even go further. The attack upon the original claim would appear, however, to be one of its basic characteristics. (Genocide Convention (Bosnia), Counter-claims, Dissenting Opinion of Vicepresident Weeramantry, ICJ Rep. 1997, pp. 289–291)4

The subject of counter-claims was also discussed extensively by the PCIJ in the context of the 1936 revision of the Rules. For a detailed record of the discussions see PCIJ D 2, 4th Add (1934, 1935, 1936), pp. 261–268.

As for what a counter-claim is not, in the Genocide Convention (Bosnia) case, the Court listed certain general criteria that are useful for the characterization of counter-claims and their differentiation from defences on the merits: [i]t is established that a counter-claim has a dual character in relation to the claim of the other party; . . . a counter-claim is independent of the principal claim in so far as it constitutes a separate “claim”, that is to say an autonomous legal act the object of which is to submit a new claim to the Court, and, . . . at the same time, it is linked to the principal claim, in so far as, formulated as a “counter” claim, it reacts to it: . . . the thrust of a counter-claim is thus to widen the original subject-matter of the dispute

4  Good theoretical discussions on the legal concept of counter-claims can also be found in the declaration by judge ad hoc Kreca in the same case (ICJ Rep. 1997, pp. 262–265) and in the dissenting opinion of judge Cançado Trindade in the Jurisdictional Immunities case (Counterclaims, Order of 6 July 2010, Dissenting Opinion of Judge Cançado Trindade, ICJ Rep. 2010, pp. 332–340, paras. 4–27). See also Thirlway’s Law and Procedure, Part 12, BYIL, vol. 72 (2001), pp. 176–181. A study of the institution of counter-claims in certain domestic law systems, including the law of the European Communities, can be found in the dissenting opinion of judge ad hoc Rigaux in the Oil Platforms case (Counter-claims, ICJ Rep. 1998, pp. 230–233).

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by pursuing objectives other than the mere dismissal of the claim of the Applicant in the main proceedings—for example, that a finding be made against the Applicant; and . . . in this respect, the counter-claim is distinguishable from a defence on the merits. (Genocide Convention (Bosnia), Counter-claims, Order of 17 Dec. 1997, ICJ Rep. 1997, p. 256, para. 27)

It follows that in order to draw the boundary line between a counter-claim under Article 80 of the Rules of Court and a regular claim presented as a defence on the merits one must ascertain whether the relief sought with it goes beyond the mere rejection of the claims of the other party: [t]he inclusion of Article 80 in Section D (“Incidental Proceedings”) of Part III (“Proceedings in Contentious Cases”) of the Rules of Court, and the provisions set out in that Article show that it does not apply to mere defences on the merits which the Court must hear in the normal exercise of its functions to decide the Applicant’s claims; . . . [i]n the present case, although Submissions 1 and 2 in the Counter-Memorial of Yugoslavia relate exclusively to the dismissal of the claims of Bosnia and Herzegovina, Submissions 3 to 6, on the contrary, set out separate claims seeking relief beyond the dismissal of the claims of Bosnia and Herzegovina; . . . such claims constitute “counterclaims” within the meaning of Article 80 of the Rules of Court. (Genocide Convention (Bosnia), Counter-claims, Order of 17 Dec. 1997, ICJ Rep. 1997, p. 257, paras. 28–29)5

Judge Cançado Trindade has also called attention to the fact that counterclaims go further than defences in that they are often aimed at “establishing,— just like the original claims, and in the same process,—State responsibility.”6

5  On the purposes of a counter-claim see further Prager’s Procedural Developments, LPICT, vol. 1 (2002), p. 419. 6   Jurisdictional Immunities, Counter-claims, Dissenting Opinion of Judge Cançado Trindade, ICJ Rep. 2010, p. 335, para. 14.

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Box # 13-2

Counter-claims: A review of the practice7

Before the PCIJ counter-claims were filed in only three cases: Factory at Chorzów (1928), Diversion of Water from the Meuse (1937) and Panevezys-Saldutiskis Railway (1938).8 The cases in which counter-claims have been submitted before the present Court are the following:

· · · · · · · · ·

Asylum ( Judgment of 20 Nov. 1950, ICJ Rep. 1950, p. 266) US Nationals in Morocco ( Judgment of 27 August 1952, ICJ Rep. 1952, p. 176) Genocide Convention (Bosnia) (Counter-claims, Order of 17 Dec. 1997, ICJ Rep. 1997, p. 243) Oil Platforms (Counter-claims, Order of 10 March 1998, ICJ Rep. 1998, p. 190) Cameroon v. Nigeria (Counter-claims, Order of 30 June 1999, ICJ Rep. 1999, p. 983) Armed Activities (DRC v. Uganda) (Counter-claims, Order of 29 Nov. 2001, ICJ Rep. 2001, p. 660) Genocide Convention (Croatia) (Counter-claims, Order of 4 Feb. 2010, ICJ Rep. 2010, p. 39 Jurisdictional Immunities (Counter-claims, Order of 6 July 2010, ICJ Rep. 2010, p. 31010 Certain Activities (Costa Rica v. Nicaragua) and Construction of a Road (Nicaragua v. Costa Rica)11 (Counter-claims, Order of 18 April 2013)

In the Armed Actions (Nicaragua v. Costa Rica), the respondent announced its intention to file a counter-claim (ICJYB (1986–1987), p. 161; ICJ Pleadings, p. 128, Doc. # 5) but the case was later discontinued. In the Navigational Rights there was some discussion between the parties on the question whether a certain claim presented by the respondent was in effect

7   For a review of these decisions see Torres Bernárdez, “La modification . . .”, pp. 237–240. Useful surveys of this case law, up to 1998, can also be found in some of the individual opinions appended to the order of the Court on counter-claims in the Oil Platforms case (Separate Opinion of Judge Oda, ICJ Rep. 1998, pp. 211–214; Dissenting Opinion of Judge ad hoc Rigaux, ibid., pp. 227–230). 8   For details see Hudson’s PCIJ, p. 430; Torres Bernárdez, “La modification . . .”, pp. 235–237. 9   For a comment see Quintana’s Procedural Developments, LPICT, vol. 9 (2010), pp. 387–389. 10  For a comment see Quintana’s Procedural Developments, LPICT, vol. 9 (2010), pp. 170–178. 11  Cases formally joined by decision of the Court (Order of 17 April 2013).

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a counter-claim. The Court made a passing mention to this in the decision on the merits but clearly did not consider it a major point of contention ( Judgment of 13 July 2009, ICJ Rep. 2009, p. 269, para. 155). Essentially the same situation arose in the subsequent Pulp Mills case (Merits, Judgment of 20 April 2010, ICJ Rep. 2010, p. 105, paras. 279–280).12

It follows that the neat effect of a counter-claim, if declared admissible, is that of enlarging the scope of the dispute before the Court.13 In other words, by entering a counter-claim the respondent will be bringing to adjudication another dispute, albeit one that should be directly connected with the original dispute. This is why in its order on the admissibility of Italy’s counter-claim in the Jurisdictional Immunities case, the Court referred consistently to “the dispute that Italy intends to bring before the Court by way of its counter-claim”.14 On the other hand, there are also certain limits on the use of counter-claims, directed at avoiding the impairment of the rights of the applicant party: [t]he Respondent cannot use a counter-claim as a means of referring to an international court claims which exceed the limits of its jurisdiction as recognized by the parties; and . . . the Respondent cannot use that means either to impose on the Applicant any claim it chooses, at the risk of infringing the Applicant’s rights and of compromising the proper administration of justice; . . . it is for that reason that paragraph 1 of Article 80 of the Rules of Court requires that the counter-claim “comes within the jurisdiction of the Court” and “that it is directly connected with the subject-matter of the claim of the other party”. (Genocide Convention (Bosnia), Counter-claims, Order of 17 Dec. 1997, ICJ Rep. 1997, pp. 257–258, para. 31)15

12  13  14  15 

For a comment see Quintana’s Procedural Developments, LPICT, vol. 9 (2010), pp. 384–387. Torres Bernárdez, “La modification . . .”, p. 229. See also Jurisdictional Immunities, Counterclaims, Dissenting Opinion of Judge Cançado Trindade, ICJ Rep. 2010, p. 335, para. 15. Jurisdictional Immunities, Counter-claims, Order of 6 July 2010, ICJ Rep. 2010, p. 317, paras. 19–20, pp. 317–318, 22–23 and p. 320, para. 30. For a critique of this reasoning see H. Thirlway, “Counterclaims before the International Court of Justice: the Genocide Convention and Oil Platforms Decisions”, LJIL, vol. 12, (1999), pp. 215–217.

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a) Admissibility16 Under paragraph 1 of Article 80 of the Rules, any of the parties can file a counterclaim, provided that two requirements are satisfied, namely, jurisdiction (“if it comes within the jurisdiction of the Court”) and direct connection to the principal claim (“[if it] . . . is directly connected with the subject-matter of the claim of the other party”). According to the Court, “[t]he admissibility of a counterclaim as such is contingent on those conditions.”17 It follows that if one of them is missing there is no need to address the question whether the other is present.18 The connection requirement was added in the 1936 revision to the Rules, in an effort to accommodate a ruling made by the Court in 1928 in the Factory of Chorzów case.19 Significantly, as the Court was then of the view that counterclaims were only possible in cases submitted by application, the rule predicated that the counter-claim should be “directly connected with the subject of the Application”.20 It was only in the 1978 reform that the connection was defined more generally by reference to “the subject-matter of the claim of the other party.”21 These are the material conditions required by the Rules concerning a counter-claim. As for the formal conditions, under Article 80, para. 2 there are only two, namely, that the counter-claim is made in the Counter-Memorial and that it appears “as part of the submissions contained therein.” Paragraph 3 of the same article 80, as amended in 2000, provides the following: 3. Where an objection is raised concerning the application of paragraph 1 or whenever the Court deems necessary, the Court shall take its decision thereon after hearing the parties.

16  Antonopoulos, “Counterclaims . . .”, pp. 73–134; Murphy, “Counter-Claims”, in Oxford Commentary, MN 13–18, pp. 1004–1006. 17  Oil Platforms, Counter-claim, Order of 10 March 1998, ICJ Rep. 1998, p. 203, para. 33. Interestingly, the 2000 amendment altered the order in which these two elements appear in Article 80, for in the previous versions the element of connection came first. For a comment see Torres Bernárdez, “La modification . . .”, p. 242. 18  Jurisdictional Immunities, Counter-claims, Order of 6 July 2010, ICJ Rep. 2010, p. 321, para. 32. 19  For a thorough discussion see Antonopoulos, “Counterclaims . . .”, pp. 42–47. 20  On this see also below, text to note 39. 21  Torres Bernárdez, “La modification . . .”, p. 238. For the evolution of the Rules in this regard see Antonopoulos, “Counterclaims . . .”, pp. 37–50.

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By referring in general terms to any objection concerning “the application of paragraph 1,” this provision clarifies that it is for the Court to decide whether both conditions listed there—jurisdiction and direct connection—are met in each specific case. This is a welcome change, because Article 80, para. 3 of the 1978 Rules only mentioned in this regard “the connection between the question presented by way of counter-claim and the subject-matter of the claim of the other party,” a formulation that raised legitimate doubts as to the competence of the Court to deal with objections concerning the other element—that is, potential lack of jurisdiction.22 It is clear that the silence of the previous rule on the matter of jurisdiction did not affect the Court’s general power to decide on all questions pertaining to its jurisdiction under Article 36, para. 6 of the Statute, but it could be interpreted as opening the door for separate proceedings on this matter when they arose in the context of the filing of a counterclaim.23 This is prevented by the new language in paragraph 3 of Article 80. Likewise, the new wording of this provision dispels any doubts that may have existed as to the power of the Court to decide ex officio on the fulfillment of these two conditions: under the new rule the Court will address all matters concerning the application of paragraph 1 not only when an objection is raised by the other party, but also “whenever the Court deems [it] necessary.” As for objections by one of the parties, the one raised most often concerns the lack of “direct connection” of the counter-claim with the principal claim. An objection concerning lack of jurisdiction has been tried—successfully, as it happened—only once thus far.24 It is important to register that, from the standpoint of the party making the counter-claim, the practical consequences of a lack of compliance with either of these requirements are considerably different. If the Court finds that it has jurisdiction and the counter-claim is declared inadmissible because of lack of connection with the principal claim, nothing prevents that State from bringing separate proceedings against the original applicant, thus becoming an 22  This lack of consistency between paragraph 1 and paragraph 3 of the former version of Article 80 was registered by judge Higgins in her separate opinion in the Oil Platforms case (Counter-Claim, ICJ. Rep. 1998, p. 222). 23  On this see Prager, “The 2001 Amendments . . .”, p. 185. Iran raised the matter in the Oil Platform case (Counter-claim, Order of 10 March 1998, ICJ Rep. 1998, pp. 198–199, para. 19). The Court did not rule directly on it, but indicated that it fell to the Court to determine whether both requirements in Article 80, para. 1 were met in that particular case (ibid., p. 203, para. 32). The new language of paragraph 3 clearly confirms this position. 24  Jurisdictional Immunities, Counter-claims, Order of 6 July 2010, ICJ Rep. 2010, p. 310. See the dissenting opinion of judge Cançado Trindade in the same case, ibid., p. 340, para. 27.

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applicant in its own right.25 But if the reason for declaring the counter-claim inadmissible is that it does not come within the jurisdiction of the Court, as it happened in the Jurisdictional Immunities case, the respondent is effectively precluded from bringing before the Court the question raised by the counterclaim, unless it manages to find a different basis for jurisdiction. It might even be submitted that a finding by the Court as to lack of jurisdiction under the instrument or instruments invoked in the original application qualifies as res judicata and makes it virtually impossible for the concerned State to bring fresh proceedings regarding the same question.26 The judge ad hoc appointed by Italy in the case just mentioned stressed this aspect, when referring to the impact that a decision on jurisdiction has in the context of counter-claims proceedings: In case of a denial of jurisdiction, the defendant State would be effectively prevented from bringing to the Court the inadmissible counterclaim as a separate claim.

( Jurisdictional Immunities, Counter-claims, Declaration of Judge ad hoc Gaja, ICJ Rep. 2010, p. 398)

It is to be recalled that paragraph 1 of Article 80 also lays down the notion that if these two requirements are fulfilled the Court “may entertain a counter-claim.” The use of the verb “may” instead of “shall” (as it was provided for in the previous versions of the rule) seems to indicate that the Court now enjoys a large discretion in this matter, taking into account the circumstances of each case. By virtue of the 2000 amendment, the formula “[a] counter-claim may be presented . . .” in paragraph 1 of Article 80 was replaced by “[t]he Court may entertain a counter-claim . . .” Indeed, even under the former rule the opinion had been expressed that the Court enjoyed “undoubted discretion” in the matter.27 Writing before the 2000 amendment, an author voiced the opinion that under the 1978 Rules the Court 25  This had been foreseen in Article 63 of the 1936 Rules of the PCIJ. See below, text to notes 64–65. 26  The question of the applicability of the res judicata principle to decisions concerning jurisdiction has arisen several times before the Court. Today it appears established that those decisions do benefit from that authority. See in particular Nicaragua, Merits, Judg­ ment of 27 June 1986, ICJ Rep. 1986, p. 24, para. 27; Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, pp. 91–93, paras. 117–120; Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 434, para. 69. 27  Genocide Convention (Bosnia), Counter-claims, Dissenting Opinion of Vice-President Weeramantry, ICJ Rep. 1997, p. 288.

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was not really given discretion in the matter and that it was desirable that a revised text would include “[s]ome element of discretion of the Court to admit or deny admission to a counter-claim.”28 It is suggested that this was achieved to a large extent with the 2000 change. Prior to the 2000 reform, the Court had asserted such a discretion in particularly forceful terms, but solely with regard to the second element present in paragraph 1, that is, the direct connection of the counter-claim to the principal claim: [t]he Rules of Court do not define what is meant by “directly connected”; . . . it is for the Court, in its sole discretion, to assess whether the counter-claim is sufficiently connected to the principal claim, taking account of the particular aspects of each case. (Genocide Convention (Bosnia), Counter-claims, Order of 17 Dec. 1997, ICJ Rep. 1997, p. 258, para. 33)29

Box # 13-3 Scope of the jurisdictional requirement in Article 80, para. 1 of the rules Article 80, para. 1 of the Rules requires that the counter-claim must come “within the jurisdiction of the Court.” It has been disputed whether this refers to the jurisdiction that the Court might have in general as between the parties to the case, or rather to the limited jurisdiction it may possess in the case and on the main claim put before the Court, as it may have already been defined by the Court itself.30 The Court appears to have inclined itself toward the latter in the Oil Platforms case, in which, prior to its decision on the counter-claims it had found that it had jurisdiction under a bilateral treaty, but only within very precise limits (Counter-claims, Order of 10 March 1998, ICJ Rep. 1998, p. 204, para. 36). This is also the position of Rosenne, who, referring to paragraph 1 of Article 80 of the Rules (after the 2000 amendment) has stated the following:

28  29 

30 

Thirlway, “Counterclaims . . .”, pp. 221–223 and 229. Reaffirmed verbatim in the Oil Platform case (Counter-claims, Order of 10 March 1998, ICJ Rep. 1998, pp. 204–205, para. 37). For a good discussion on the scope and limits of the concept of “direct connection” with the main claim see the declaration by judge ad hoc Kreca in the Genocide Convention (Bosnia) case (Counter-claims, ICJ Rep. 1997, pp. 267 ff.). Prager, “The 2001 Amendments . . .”, p. 181; Murphy, “Counter-Claims”, MN 24–31, pp. 1007–1010.

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Prima facie, the Court’s general jurisdiction in the case (as in the former Rule) will mean its jurisdiction as established in any proceedings that took place before the filing of the counter-memorial.31 However, the opposite position was eloquently defended by judge Higgins in her separate opinion in the same case, in the following terms: [t]he inarticulate assumption that the jurisdictional basis established for a claim necessarily is the only jurisdictional basis for, and sets the limits to, a counter-claim, is open to challenge. In both civil and common law domestic systems, as in the Rules of the Court, a defendant seeking to bring a counter-claim must show that the Court has jurisdiction to pronounce upon them. But it is not essential that the basis of jurisdiction in the claim and in the counter-claim be identical. It is sufficient that there is jurisdiction. (Indeed, were it otherwise, counterclaims in, for example, tort could never be brought, as they routinely are, to actions initiated in contract.) There is nothing in the Rules or practice of the Court to suggest that the very identical jurisdictional nexus must be established by a counterclaimant. The travaux préparatoires to the various formulations of what is now Article 80 of the Rules of Court contain no suggestion whatever that this was thought of as a requirement. The rule on counter-claims has gone through successive changes. But neither in the discussions of 1922, nor of 1934, 1935, 1936, nor again of 1946, 1968, 1970, 1972, does this thought anywhere appear. Attention was focused on the one hand on the required “connection” and on the other on certain matters relating to jurisdiction, notably (in 1922) whether counter-claims were limited to compulsory jurisdiction cases and whether objections to counter-claim jurisdiction would be allowed. At no stage was it even proposed, much less accepted, that the jurisdictional basis for the claim and counter-claim must be identical. Nor does the wording of Article 80, paragraph 1, suggest this. It requires that a counter-claim “comes within the jurisdiction of the Court”, not that it “was within the jurisdiction established by the Court in respect of the claims of the applicant”. Of course, the very requirement of a direct connection with the subject-matter of the claim is likely to bring a counter-claimant into

31 

Rosenne, “The ICJ: Revision . . .”, p. 85.

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the same general jurisdictional area, i.e., the same treaty may well form the basis of the claimed jurisdiction for the bringing of a counterclaim. But that is all. The view of the Committee for the Revision of the Rules, when deciding to retain the phrase “and that it comes within the jurisdiction of the Court” from the old Rule, was that the phrase meant that a counterclaimant could not introduce a matter which the Court would not have had jurisdiction to deal with had it been the subject of an ordinary application to the Court. And that remains the position under Article 80 of the present Rules of Court, which continues simply to require that a counter-claim “comes within the jurisdiction of the Court”. The correct and necessary procedure in the present case would have been for the Court to enquire whether it would have had jurisdiction to deal with the claims of the United States, as they related to Article X, paragraphs 2 to 5, had they “been the subject of an ordinary application to the Court”. (. . .) If, arguendo, the treaty provisions of Article X, paragraphs 2 to 5, would have founded jurisdiction in an initial claim then presumably the United States could still bring a claim de novo even if it is not allowed to do so as a counter-claim under the Court’s Order. Such a result is hardly consistent with the stated purpose of counter-claims, namely, convenience of court management. It underlines that what is required under Article 80, paragraph 1, of the Rules is that a counter-claim “comes within the jurisdiction of the Court” by reference to the normal jurisdictional principles rather than by reference to the particular basis of jurisdiction that the initial claimant happens to have relied on in relation to its own particular facts. (Oil Platforms, Counter-Claim, Separate Opinion of Judge Higgins, ICJ Rep. 1998, pp. 218–221)32

With regard to the element of connection, the Court pointed out in 1997 that “[a]s a general rule, the degree of connection between the claims must be assessed both in fact and in law.”33 In general, with regard to the former, the 32  33 

On this see also Torres Bernárdez, “La modification . . .”, pp. 231–232. Genocide Convention (Bosnia), Counter-claims, Order of 17 Dec. 1997, ICJ Rep. 1997, p. 258, para. 33. While this has become a ritual formula in orders concerning the admissibility of counter-claims, it was not included in the order in the Cameroon v. Nigeria case, probably because in this case the applicant refrained from challenging the admissibility of the counter-claim.

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Court has required that the relevant facts “arise out of the ‘same factual complex’, which has loosely been said to consist of facts of the same nature arising at the same place and time.”34 As for the direct connection in law, the test is to determine whether the respective claims pursue “the same legal aim.”35 Apart from that, the Court has been ��exible in this regard. In the Armed Activities (DRC v. Uganda) case, for instance, it recalled one of its findings in the Cameroon v. Nigeria case—in the different context of preliminary objections proceedings—and remarked that “[c]ounter-claims do not have to rely on identical instruments to meet the connection test of Article 80.”36

Box # 13-4

The connection test: Further thoughts

In the Armed Activities (DRC v. Uganda) case, judge ad hoc Verhoeven offered an interesting analysis of the scope and limits of the condition that the counter-claim must be directly connected with the subject-matter of the claim of the other party. He advocates for extra rigor on the part of the Court when dealing with this aspect of its procedure and calls attention to the negative consequences that to adopt a too liberal approach in this regard would have for international adjudication: The connection which counter-claims are required to have with the principal claim in order for them to be admissible must, it seems to me, be considered in the light of their purpose. That purpose is not always entirely clear. Judged by reference to national practices, the importance of counter-claims would appear to be twofold: on the one hand, they enable the court to gain a more thorough and precise understanding of the dispute of which it is seised and, on the other hand, they avoid the risk of incompatible—or even downright contradictory—rulings. These are the sole circumstances in which recourse to a counter-claim can effectively enable additional proceedings to be dispensed with. That is a reasonable explanation. Should it be otherwise in the case of international courts? I see no reason why. That being the case, the criteria of connection emphasized to date by the Court for the purpose of

34  35  36 

Pragers’s Procedural Developments, LPICT, vol. 1 (2002), p. 420. Ibid., pp. 419–420. See also Murphy, “Counter-Claims”, MN 1010–1016. Armed Activities (DRC v. Uganda), Merits, Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 275, para. 326.

Counter-Claims

declaring counter-claims admissible (facts of the same nature, same overall factual situation, same legal objectives) must accordingly be understood in light of the above-mentioned aims. However, it would seem to me to be wrong to apply those criteria in a purely “mechanical” manner, losing sight of the reasons which essentially explain why a court should entertain the respondent’s claim without obliging it to institute new proceedings. Too rigid an application could result in an excessive reduction in the number of claims that might effectively be submitted by way of counter-claim; it could also be to disregard the fact, underlined by the Court, that the principal claim and the counter-claim are independent of one another, which necessarily implies that they need have neither the same subject-matter nor the same legal basis; finally, it cannot be precluded that other criteria may be judged relevant, under other circumstances, for the purpose of ruling on the admissibility of a counter-claim. The important point is always that the Court should be in the “best” position to pass judgment, and that the credibility of its judgments should not be jeopardized by inconsistent rulings. That said, it is a specific feature of the International Court of Justice that its jurisdiction has to date been purely voluntary. That jurisdiction exists only because and in so far as the parties have so desired. There is thus a possibility that the Court, absent agreement, might not be able to assume jurisdiction tomorrow in respect of a claim of which it is seised today by way of counter-claim. Are we accordingly to conclude that the Court should adopt a particularly “liberal” approach when ruling on the admissibility of a counter-claim and, in particular, on the requirement that the counter-claim be directly connected to the subject-matter of the principal claim? I seriously doubt it. It is true that the peaceful settlement of disputes could be enhanced by such an approach. However, the risk is that it would encourage States to avoid a court which springs too many “surprises” on them, rather than submit to its jurisdiction. Further, the internal logic of a system of voluntary jurisdiction undoubtedly requires—irrespective of any considerations of jurisdictional policy—particular rigour in regard to evaluation of the connection which the counter-claim must have with the principal claim if it is not to be ruled inadmissible. (Armed Activities (DRC v. Uganda), Counter-claims, Declaration by Judge ad hoc Verhoeven, ICJ Rep. 2001, pp. 684–685)

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b) Procedure37 Making a Counter-Claim The Court has underlined that counter-claims are a typical class of incidental proceedings the use of which responds essentially to notions of procedural economy: [a] claim should normally be made before the Court by means of an application instituting proceedings; . . . although it is permitted for certain types of claim to be set out as incidental proceedings, that is to say, within the context of a case which is already in progress, this is merely in order to ensure better administration of justice, given the specific nature of the claims in question; . . . as far as counter-claims are concerned, the idea is essentially to achieve a procedural economy whilst enabling the Court to have an overview of the respective claims of the parties and to decide them more consistently. (Genocide Convention (Bosnia), Counter-claims, Order of 17 Dec. 1997, ICJ Rep. 1997, p. 257, para. 30)

In the Rules of 1972 (following in this regard previous versions of the Rules), the possibility of filing a counter-claim was reserved for cases “[w]hen proceedings have been instituted by means of an application.” The amendment of 1978 deleted this restrictive provision, presumably because there is nothing to prevent the filing of a counter-claim in cases submitted by special agreement, in which, for instance, the parties agree that any of them can file an application thereafter. An example of this circumstance occurred squarely in the Asylum case, in which a counter-claim was indeed filed by the respondent. In these cases, there will be room for a counter-claim only if the notification of the special agreement is followed by an application instituting proceedings filed by one of the parties and if there are consecutive written pleadings under Article 45, para. 1 of the Rules. When these two circumstances obtain, the other party might choose to include a counter-claim in its Counter-Memorial. On the contrary, when the special agreement does not foresee that it will be supplemented by an application—and in all likelihood there will be simultaneous written pleadings under Article 46, para. 2—it is hard to imagine that one of the parties will be in a position to enter a counter-claim.38 37  Antonopoulos, “Counterclaims . . .”, pp. 135–155. 38  In the discussions on the revision of the Rules concerning counter-claims within the PCIJ it was undisputed that this device was applicable solely in cases submitted by application

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On the timing for making a counter-claim, paragraph 2 of Article 80 is peremptory: the counter-claim “shall be made in the Counter-Memorial and shall appear as part of the submissions contained therein.”39 It will be recalled that under Article 45, para. 1 (and unless otherwise decided by the Court), the Counter-Memorial is in principle the only written pleading to be filed by the respondent in cases begun by means of an application, which, as seen, are the cases where counter-claims are ordinarily made. But even if there is room for a second or a third round of pleadings—as it happens more or less regularly—the time requirement in Article 80, para. 2 is imperative, with the result that if no counter-claims are included in the Counter-Memorial, it may be presumed that the respondent has forfeited its right to use this device. Therefore, a claim that is presented as a counter-claim in an additional pleading will be extemporaneous and inadmissible as such.40 A different situation is that of a State including a counter-claim in the Counter-Memorial and presenting and addition to it at a later stage, whether in a subsequent pleading or in the final submissions presented at the end of the oral stage of proceedings. This happened squarely in Asylum and the applicant strongly objected both to the jurisdiction of the Court to entertain the addition and to the admissibility of the modified counter-claim. The Court found a way to avoid dealing with these questions.41 On the other hand, it is important to remark that no counter-claim can be made before the case has arrived at the merits stage, for instance at the provisional measures or at the preliminary objections phases. By its very nature a counter-claim is always related to the claimant party’s main claim or claims on the merits and when Article 80, para. 1 of the Rules mentions “[t]he subject-matter of the claim of the other party” and “[t]he Counter-Memorial” it is clearly referring to the merits of the case and to the first substantive pleading that the respondent is to file on that matter, under Article 45, para. 1. The same can be said of the question of remedies, which essentially belong to the realm of the merits.42 However, the notion of “a counter-claim for the indication of provi­­sional measures” appears to have been entertained at some point. At the (PCIJ D 2 (1922), pp. 139–140; PCIJ D 2, Add. 3 (1936), pp. 781, 848, 871). For a different take on this question see Thirlway, “Counterclaims . . .”, pp. 201–202. 39  Murphy, “Counter-Claims”, MN 55–57, pp. 1016–1017. 40  See, for a full treatment of this question, Antonopoulos, “Counterclaims . . .”, pp. 135–142. 41  Asylum, Judgment of 20 Nov. 1950, ICJ Rep. 1950, p. 288. 42  Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 463, para. 139.

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provisional measures phase in the Cameroon v. Nigeria case judge Guillaume asked Nigeria whether a communication that it had addressed to the Court with regard to the request for provisional measures made by Cameroon was in the nature of such a counter-claim.43 At the hearings, Cameroon emphatically stated that this was the case but Nigeria denied it, without further arguing the point, and the order limits itself to laconically recall Nigeria’s position on the matter.44 With respect, it is submitted that there is no real need to import the device of counter-claims into proceedings on provisional measures: once the Court has been seised of a request under Article 41 of the Statute, the other party is free to invoke Article 75, para. 2 of the Rules asking the Court to indicate either “measures that are in whole or in part other than those requested” or measures “that ought to be taken or complied with by the party which has itself made the request.” The Court admitted as much when it remarked in the US Hostages case that “[a]s it has recognized in Article 75 of its Rules, [the Court] must at all times be alert to protect the rights of both the parties in proceedings before it and, in indicating provisional measures, has not infrequently done so with reference to both the parties.”45 A little discussed aspect concerning the making of counter-claims is that, in contradistinction with the principal claims contained in the act instituting proceedings, they are not transmitted to other States entitled to appear before the Court under Articles 40 of the Statute and 42 of the Rules. Since the time of the PCIJ, it has been remarked that this may go against the principle of publicity and may also curtail the rights that third States possess under Articles 62 and 63 of the Statute.46 However, those rights would be at risk of being affected only if and when the counter-claim is declared admissible and this explains why in the pertinent orders the Court always takes care of including an instruction to the Registrar to transmit a copy of the order to “[t]hird States entitled to appear before the Court.”47 Given that this order contains basic 43  CR 96/3, Sitting of 6 March 1996, pp. 71–72. 44  CR 96/4, Sitting of 8 March 1996, pp. 25–27 [Kamto]; Ibid., p. 109 [Akinjide]. See also Cameroon v. Nigeria, Provisional Measures, Order of 15 March 1996, ICJ Rep. 1996, p. 20, para. 26. 45  US Hostages, Provisional Measures, Order of 15 Dec. 1979, ICJ Rep. 1979, p. 17, para. 29. See also S. Rosenne, Provisional Measures in International Law, the International Court of Justice and the International Tribunal for the Law of the Sea (2005), p. 151. 46  Scerni’s La Procédure, pp. 647–648. 47  Genocide Convention (Bosnia), Counter-claims, Order of 17 Dec. 1997, ICJ Rep. 1997, p. 259, para. 39; Oil Platforms, Counter-claim, Order of 10 March 1998, ICJ Rep. 1998, p. 205, para. 42; Cameroon v. Nigeria, Counter-claims, Order of 30 June 1999, ICJ Rep. 1999, p. 986; Armed

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825

information concerning the counter-claim and in all likelihood reproduces the submissions of the party making it, a third State’s right to be informed about the nature and scope of the subject-matter of a case—as enlarged by means of a counter-claim—in which it may have an interest of a legal nature is effectively protected by this device. Questions of Admissibility Prior to the actual consideration of a counter-claim by the Court, there is the question of its admissibility to consider. On the question of admissibility, the procedure to be followed by the Court when seised of a counter-claim will depend essentially on the attitude of the applicant State in the main case and in particular on whether this State raises objections to the admissibility of the counter-claim. Incidentally, it may be noted that the State making a counterclaim may be conveniently called the “counterclaimant” respondent or party, because, like it happens in the case of preliminary objections, the respondent in the main case becomes the applicant/claimant in the incidental proceedings concerning the admissibility of the counter-claim.48 The language used in Article 80, para. 3 of the rules is deliberately general in stating that “[w]here an objection is raised concerning the application of paragraph 1 (. . .) the Court shall take its decision.” This formula covers both objections on the ground of lack of jurisdiction and objections on the ground of inadmissibility stricto sensu. When the Court has handled objections to counter-claims it has referred in general to the admissibility of a counter-claim under Article 80 and has clarified that “‘admissibility’ in this context must be understood broadly to encompass both the jurisdictional requirement and the direct-connection requirement.”49 If the other party objects to the filing of the counter-claim and makes this view known to the Court, Article 80, para. 3 directs that the Court is to decide on the admissibility of the counter-claim “after hearing the parties,” which would

Activities (DRC v. Uganda), Counter-claims, Order of 29 Nov. 2001, ICJ Rep. 2001, p. 681, para. 47. This was not done in either the Asylum or the US Nationals in Morocco cases. For a comment see Thirlway, “Counterclaims . . .”, p. 227. Interestingly, it was done in the Genocide Convention (Croatia) case, in which the Court registered that certain counterclaims had been filed but refrained from deciding on the admissibility therein when it adopted an order fixing time-limits for the second round of pleadings (Counter-claims, Order of 4 Feb. 2010, ICJ Rep. 2010, p. 6). 48  ICJ Yearbook (1953–1954), p. 114. 49  Jurisdictional Immunities, Counter-claims, Order of 6 July 2010, ICJ Rep. 2010, p. 316, para. 14.

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normally mean an exchange of written observations and a hearing. The previous version of the Rules used the vague expression “after due examination.” In all the cases to date in which the admissibility of a counter-claim has been disputed the parties have exchanged written observations devoted to the questions of the admissibility of the counter-claim. However, in none of them the Court has held a hearing because it considered itself to be sufficiently informed of the position of the parties in that regard.50 In the Genocide Convention (Bosnia) case, this was criticized by several judges, some of whom considered that in case of doubt about the connection element, holding a hearing should be mandatory.51 The same procedure of dispensing with a hearing has been followed in all subsequent cases in which counter-claims have been filed.52

Box # 13-5

Holding a hearing on the admissibility of a counter-claim

Apart from the fact that the expression “hearing the parties,” as used in Article 80, para. 3 of the Rules, may be taken to imply a hearing, there are cogent reasons for suggesting that a hearing should take place in every case in which a party objects to the admissibility of a counter-claim.53 In the Jurisdictional Immunities case, judge Cançado Trindade, dissenting, listed some of these reasons: In any case, as the Court’s majority decided summarily to discard the counter-claim as “inadmissible as such”,—with my firm dissent,—it should at least have instructed itself properly by holding, first, public hearings to obtain further clarifications from the contending parties. It should not have taken the present decision without first having heard the

50 

51 

52 

53 

For critical assessments see S. Rosenne, “Controlling Interlocutory Aspects of Proceedings”, in Essays on International Law and Practice (2007), pp. 253–254; Thirlway, “Counterclaims . . .”, pp. 224–227. Genocide Convention (Bosnia), Counter-claims, Declaration of Judge ad hoc Kreca, ICJ Rep. 1997, p. 267; Separate Opinion of Judge Koroma, ibid., p. 276; Separate Opinion of Judge ad hoc Lauterpacht, ibid., pp. 278–279. Armed Activities (DRC v. Uganda) and Jurisdictional Immunities. In the first of these cases the applicant filed sua sponte a second written statement, commenting on the written observations made by the respondent. The Court decided not to take into account this document, which was totally uncalled for (Counter-claims, Order of 29 Nov. 2001, ICJ Rep. 2001, pp. 675–676, paras. 25–26). On this see Box # 4–2.

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contending parties in a public sitting, for five reasons, namely: a) first, as a basic requirement ensuing from the principle of international procedural law of the sound administration of justice (la bonne administration de la justice); b) secondly, because counter-claims are ontologically endowed with autonomy, and ought to be treated on the same footing as the original claims, that they intend to neutralize (supra); c) thirdly, claims and counter-claims, “directly connected” as they ought to be, require a strict observance of the principe du contradictoire in their handling altogether; d) fourthly, only with the faithful observance of the principe du contradictoire can the procedural equality of the parties (applicant and respondent, rendered respondent and applicant by the counter-claim) be secured; and fifthly, and e) last but not least, the issues raised by the original claim and the counter-claim before the Court are far too important—for the settlement of the case as well as for the present and the future of International Law,—to have been dealt with by the Court in the way it did, summarily rejecting the counter-claim. ( Jurisdictional Immunities, Counter-claims, Dissenting Opinion of Judge Cançado Trindade, ICJ Rep. 2010, p. 342, para. 30)54

At the end of these interlocutory proceedings the Court will decide, by means of an order, whether the counter-claim is admissible under Article 80 of the Rules.55 One distinguishing feature or incidental proceedings concerning the admissibility of counter-claims is that when they are opened the proceedings on the merits are not suspended. They may be delayed, in the nature of things, but they continue uninterrupted without being automatically affected by the mere raising of objections to the counter-claim. As a result, as soon as the Court takes a decision concerning the admissibility of the counter-claims it will also take a decision concerning the subsequent steps of the procedure on the merits. If there is room for further written pleadings—as it usually happens—this will entail fixing the relevant time-limits, normally by means of the same order in which the counter-claims were declared admissible.

54 

55 

The judge ad hoc appointed by Italy in this case was also of the opinion that a hearing should have been held ( Jurisdictional Immunities, Counter-claims, Declaration of Judge ad hoc Gaja, ICJ Rep. 2010, p. 398). See Torres Bernárdez, “La modification . . .”, p. 246.

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However, it may be thought that the Court also has the power to determine that the counter-claim is so closely interwoven with the principal claim that a decision on admissibility under Article 80, para. 1 can only be made at the merits stage, after hearing full arguments by the parties on all of the aspects involved. This situation is analogous to that foreseen in Article 79, para. 9 of the Rules in the case of preliminary objections, a provision that authorizes the Court to declare that one such objection “does not possess, in the circumstances of the case, an exclusively preliminary character,” thus implying that the substance of the objection will have to be considered at the merits stage.56 In the first two instances of counter-claims before the present Court, the Asylum and US Nationals in Morocco cases, all aspects concerning the counterclaims were considered and resolved along with the merits, although this was not the subject of an express procedural decision by the Court. Additionally, if the other party does not raise objections to the counterclaim, the Court issues what in principle should be a purely procedural order, fixing the time-limits for the subsequent pieces of procedure, if any. In the two cases thus far in which this has happened (Cameroon v. Nigeria and Genocide Convention (Croatia)), the Court did not proceed in a uniform manner. In Cameroon v. Nigeria it made a decision on admissibility in limine litis and for that purpose ascertained ex officio that the conditions for entertaining the counter-claim were met. In order to arrive at that decision, the Court verified three elements in particular, namely: (i) whether the claim constituted a genuine counter-claim; (ii) whether it met the requirement of jurisdiction in paragraph 2 of Article 80; and (iii) whether it met the requirement of connection to the main claim also present in paragraph 2 of Article 80.57 It will be noted that in cases in which objections were filed by the applicant the Court has employed essentially the same methodology in order to consider the pertinent aspects of a counter-claim—albeit with more detail, as is only natural. Incidentally, it is worth mentioning that an additional aspect that may have to be considered at this stage is whether, formally, the counter-claims do not “deviate from the requirements of Article 80, paragraph 2, of the Rules of Court to such an extent that they should be held inadmissible on that basis.”58 The

56  For a favorable view see Prager, “The 2001 Amendment . . .”, p. 187. See also the views of judge Oda in the Oil Platforms case (Counter-claim, Separate Opinion of Judge Oda, ICJ Rep. 1998, p. 215). 57  Cameroon v. Nigeria, Counter-claims, Order of 30 June 1999, ICJ Rep. 1999, p. 985. 58  Armed Activities (DRC v. Uganda), Counter-Claims, Order of 29 Nov. 2001, ICJ Rep. 2001, p. 677, para. 33.

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Court was referring here to a contention that a counter-claim was not sufficiently clear and was “perfunctory and incomplete.”59 By contrast, in the Genocide Convention (Croatia) the Court deliberately avoided taking a decision on the admissibility of the counter-claim at this stage and laconically remarked that, taking account of the lack of objections by the applicant “. . . the Court does not consider that it is required to rule definitively at this stage on the question of whether the said claims fulfill the conditions set forth in Article 80, paragraph 1, of the Rules of Court.”60 This means that the Court forced itself to take up the question of the admissibility of the counterclaims along with the merits, following the model of US Nationals in Morocco. No reasons were given for adopting this course of conduct. It was observed by Dr Rosenne that the Rules are silent on the procedure to follow in the event that the Court finds that the requirement of direct connection with the subject-matter of the main case is not met.61 In theory, in such a case the party making the counter-claim would still retain the possibility of filing a fresh application introducing a separate case against the same State, providing, of course, that its subject-matter falls under the jurisdiction of the Court as accepted by both States. However, as seen above this would not happen in the event of a finding that the Court lacks jurisdiction to entertain the counter-claim: if the counter-claim is declared to fall outside of the Court’s jurisdiction this is dispositive of the matter and the claim can not be entertained either as an independent claim.62 In a later work, the same author suggested that the Court could also decide on its own motion to enter the counter-claim in the General List as a separate case and “let it take its course.”63 Article 63 of the 1936 Rules of the PCIJ did provide an answer to this, for it contained the following rule: Any claim which is not directly connected with the subject of the original application must be put forward by means of a separate application and may form the subject of distinct proceedings or be joined by the Court to the original proceedings.

59  For a discussion see Prager’s Procedural Developments, LPICT, vol. 1 (2002), pp. 416–417. 60  Genocide Convention (Croatia v. Serbia), Counter-claims, Order of 4 Feb. 2010, ICJ Rep. 2010, p. 6. 61  Rosenne’s Procedure, p. 171. 62  This is connected with the problem of the scope of the jurisdictional requirement in Article 80, para. 1 of the Rules, as discussed in Box # 13–3. 63  Rosenne, “The ICJ: Revision . . .”, p. 87.

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Nevertheless, when the present Court adopted its first Rules in 1946 this was replaced by a general authorization for the Court to decide in the event of doubt as to the connection element, a matter that is now governed by paragraph 3 of Article 80. Additionally, since the amendment of 2000 this power is also applicable to the jurisdiction requirement. The reasons for the change introduced in 1946 are not known. The only reference to this that can be found in the Court’s publications is a mention in a listing of some “changes of substance” that were introduced to the draft based on the 1936 Rules of the PCIJ. With regard to Article 63, it was reported that the change made referred to the “joinder of counter-claims to original proceedings.”64 On the other hand, fresh questions of jurisdiction or admissibility of the counter-claim can be raised anew at the merits stage, because a decision by the Court along the lines just described is confined to verifying the existence of the basic conditions of Article 80, para. 1. This question arose in both the Oil Platforms and the Armed Activities (DRC v. Uganda) cases, and the Court settled the point as follows: The Court notes that in the Oil Platforms case it was called upon to resolve the same issue now raised by Uganda. In that case, the Court concluded that Iran was entitled to challenge the admissibility of the United States counter-claim in general, even though the counter-claim had previously been found admissible under Article 80 of the Rules (Oil Platforms, Judgment, ICJ Rep. 2003, p. 210, para. 105). Discussing its prior Order, the Court declared: When in that Order the Court ruled on the ‘admissibility’ of the counter-claim, the task of the Court at that stage was only to verify whether or not the requirements laid down by Article 80 of the Rules of Court were satisfied, namely, that there was a direct connection of the counter-claim with the subject-matter of the [principal] claims (. . .) (Armed Activities (DRC v. Uganda), Merits, Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 261, para. 271)

However, it must be noted that this passage refers only to questions of admissibility. The Court’s judgment on the merits in the Oil Platforms case is explicit in also covering questions of jurisdiction and goes on to say: “[t]he Order of

64  ICJ Yearbook (1946–1947), p. 103.

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10 March 1998 therefore does not address any other question relating to jurisdiction and admissibility, not directly linked to Article 80 of the Rules.”65 The Court emphasized that the circumstances in this case compelled the same conclusion reached in the Oil Platforms case and recalled that in its previous order on the admissibility of the counter-claim it had been careful to include a proviso according to which “[a] decision given on the admissibility of a counter-claim taking account of the requirements of Article 80 of the Rules of Court in no way prejudges any question with which the Court would have to deal during the remainder of the proceedings.”66 It then added the following: The enquiry under Article 80 as to admissibility is only in regard to the question whether a counter-claim is directly connected with the subjectmatter of the principal claim; it is not an over-arching test of admissibility. Thus the Court, in its Order of 29 November 2001, intended only to settle the question of a “direct connection” within the meaning of Article 80. At that point in time it had before it only an objection to admissibility founded on the absence of such a connection. (Armed Activities (DRC v. Uganda), Merits, Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 261, para. 273)

Finally, the Court also made it abundantly clear that the procedure established in Article 79 of the Rules for the handling of preliminary objections is not applicable to an objection to a counter-claim that has already been joined to the case on the merits: With regard to Uganda’s contention that the preliminary objections of the DRC are inadmissible because they failed to conform to Article 79 of the Rules of Court, the Court would observe that Article 79 concerns the case of an “objection by the respondent to the jurisdiction of the Court or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits”. It is inapplicable to the case of an objection to counter-claims which have been joined to the original proceedings (. . .). (Armed Activities (DRC v. Uganda), Merits, Judgment of 19 Dec. 2005, ICJ Rep. 2005, pp. 261–262, para. 274)67

65  Oil Platforms, Judgment of 6 Nov. 2003, ICJ Rep. 2003, p. 210, para. 105. For a comment see Prager’s Procedural Developments, LPICT, vol. 3 (2004), pp. 133–134. 66  Armed Activities (DRC v. Uganda), Counter-claims, Order of 29 Nov. 2001, ICJ Rep. 2001, p. 681, para. 46. 67  See a comment in Muller’s Procedural Developments, LPICT, vol. 5 (2006), pp. 208–209.

CHAPTER 13

Figure 4

832

833

Counter-Claims

Box # 13-6

Counter-claims and new claims

The Court’s attitude towards the issue of enlarging the scope of a counter-claim has evolved through time. Initially, the Court showed certain ��exibility and, for instance, in the Asylum case, faced with the respondent having added at the hearing “a further point” to its counter-claim initially raised in the CounterMemorial, it simply stated that if the agent of the applicant (the respondent as regards the counter-claim) “desired to have the last word on the additional point, he was entitled to have it.” (ICJ Yearbook (1950–1951), p. 115). In more recent cases, the Court has stated that the well established rule according to which the parties to a case cannot in the course of proceedings transform the dispute brought before it into a dispute that would be of a different nature also applies in the case of counter-claims. Therefore, if the party presenting a counter-claim introduces a new claim and by entertaining this claim the subject of the original dispute would be transformed, the Court will be bound to dismiss such a new claim. Iran presents one final argument against the admissibility of the United States counter-claim, which however it concedes relates only to part of the counter-claim. Iran contends that the United States has broadened the subject-matter of its claim beyond the submissions set out in its counterclaim by having, belatedly, added complaints relating to freedom of navigation to its complaints relating to freedom of commerce, and by having added new examples of breaches of freedom of maritime commerce in its Rejoinder in addition to the incidents already referred to in the counterclaim presented with the Counter-Memorial. The issue raised by Iran is whether the United States is presenting a new claim. The Court is thus faced with identifying what is “a new claim” and what is merely “additional evidence relating to the original claim”. It is well established in the Court’s jurisprudence that the parties to a case cannot in the course of proceedings “transform the dispute brought before the Court into a dispute that would be of a different nature” (. . .). In other words: “the liberty accorded to the parties to amend their submissions up to the end of the oral proceedings must be construed reasonably and without infringing the terms of Article 40 of the Statute and Article 32, paragraph 2, of the [1936] Rules which provide that the Application

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must indicate the subject of the dispute” (Société commerciale de Belgique, Judgment, 1939, I.C.J., Series A/B, No. 78, p. 173). A fortiori, the same applies to the case of counter-claims, having regard to the provisions of Article 80 of the Rules of Court, and in particular taking into account the fact that it is on the basis of the counter-claim as originally submitted that the Court determines whether it is “directly connected with the subject-matter of the claim”, and as such admissible under that text. If it is the case, as contended by Iran, that the Court has before it something that “constitutes . . . a new claim, [so that] the subject of the dispute originally submitted to the Court would be transformed if it entertained that claim” (. . .), then the Court will be bound to dismiss such new claim. (Oil Platforms, Merits, Judgment of 6 Nov. 2003, ICJ Rep. 2003, pp. 213–214, paras. 116–117)68

Entertaining a Counter-Claim Once a counter-claim has been declared admissible, the principle of equality of arms demands that the other party should be given the right to present its views on the substance of the counter-claim. This has posed problems in the past, given that, under Article 45, para. 1 of the Rules, the Counter-Memorial by the respondent (in which the counter-claim must be included) is or should be the only piece of the written proceedings to be filed by the respondent.69 If there were no room for additional pieces, there would be no justification in depriving the applicant from a right to submit its views in writing prior to the opening of the oral proceedings on the merits, filing for that purpose an additional pleading.70 By the same token, if, in application of paragraph 2 of 68  69 

70 

See Prager’s Procedural Developments, LPICT, vol. 3 (2004), pp. 134–135. On the problem of “new claims” in general, see Chapter 5, c), text to note 60 and ff. Note that before the 1972 amendment to the Rules the general norm was to have two rounds of written pleadings (Article 41, para. 2 of the 1946 Rules, following in this regard the 1936 Rules of the PCIJ). Article 63 of the 1946 Rules provided that a counter-claim should be presented in the submissions of the Counter-Memorial, which was then only the first pleading to be filed by the respondent. On this see the dissenting opinion of Vice-president Weeramantry in the Genocide Convention (Bosnia), Counter-claims, ICJ Rep. 1997, p. 296). See also Prager’s Procedural Developments, LPICT, vol. 1 (2002), pp. 203–204.

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Article 45, the Court authorizes the submission of a second round of pleadings, the arguments by the applicant concerning the counter-claim could very well be included in the Reply but the State making the counter-claim would automatically be given a second opportunity to argue the matter in its Rejoinder. The Court has acted along very strict lines in this regard, and has put a lot of emphasis on the need to ensure strict equality between the Parties in this procedural context.71 According to it, this requirement translates in an unqualified right of the applicant to submit its views on the counter-claim in writing, even after the filing of a second pleading by each party. A second round of written pleadings was authorized in all the cases containing a counter-claim dealt with by the Court in the last decades, and in all of them the Court included in the order fixing time-limits for the second pleadings a provision directed to preserve the right of the other party to submit an additional pleading, dealing only with the merits of the counter-claim.72 A recent case suggests that a similar arrangement might be in order also for the oral stage of proceedings.73 The amendment of 2000 attempts to cover this situation, by providing in paragraph 2 of Article 80 that The right of the other party to present its views in writing on the counterclaim, in an additional pleading, shall be preserved, irrespective of any decision of the Court, in accordance with Article 45, paragraph 2, of these Rules, concerning the filing of further written pleadings.74 Thus, an additional pleading by the applicant (neatly called “additional pleading” and relating solely to the counter-claims) was duly authorized by the Court in the Oil Platforms, Cameroons v. Nigeria, Armed Activities (DRC v. Uganda) and Genocide Convention (Croatia) cases. In the Genocide Convention (Bosnia) case the counter-claims were withdrawn before the closing of the written

71  The question arose at the time of the PCIJ (PCIJ E 15, p. 114). Murphy, “Counter-Claims”, MN 60–62, pp. 1017–1018. 72  In one of these cases, the Court quoted with approval the pertinent passages of its orders in the previous three cases, in what it now appears to consider as its settled jurisprudence on the matter (Armed Activities (DRC v. Uganda), Counter-claims, Order of 29 Nov. 2001, ICJ Rep. 2001, p. 681, para. 50). 73  Prager’s Procedural Developments, LPICT, vol. 1 (2002), p. 425. 74  In the opinion of an author, this change is to be welcomed because it reveals that, for the first time, the Court has concerned itself with balancing the procedural rights of both parties in the context of counter-claims (Torres Bernárdez, “La modification . . .”, p. 241).

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proceedings, but in any case by that time the applicant had indicated that it did not intend to submit an additional pleading on them.75 Finally, counter-claims can be withdrawn at any time by the State making them.76 If they are not withdrawn they will be disposed of just as any other claim belonging to the merits, i.e. they will be either upheld or rejected by decision of the Court. An extant possibility at this stage is that the applicant submits objections of jurisdiction or admissibility concerning the counterclaim—which, as seen above, may be fresh objections other than those made under Article 80, para. 3 of the Rules—and that the Court upholds one or more of them.77

Further Reading



Leading Work



General Works and Treatises on the Court



Articles and Monographs

C. Antonopoulos, Counterclaims before the International Court of Justice (2011)

Guyomar’s Commentaire, pp. 519–525 Hudson’s PCIJ, pp. 292–293, 430 Mani’s Adjudication, pp. 134–137 S. Murphy, “Counter-Claims”, in Oxford Commentary, pp. 1000–1025 Rosenne’s Law and Practice, vol. 3, pp. 1272–1277 Rosenne’s Procedure, pp. 171–172 Scerni’s La Procédure, pp. 644–648 Thirlway’s Law and Procedure, Part 12, BYIL, vol. 72 (2001), pp. 174–181

D. Anzilotti, “La demande reconventionelle en procédure internationale”, JDI, vol. 57 (1930), pp. 857–877

75  Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 52, para. 17, pp. 54–55, paras. 26–27. 76  The withdrawal of a counter-claim was discussed in Chapter 9, b), 4), in the section concerning the discontinuance of incidental and derivative proceedings. See also Murphy, “Counter-Claims”, MN 70–71, p. 1021. 77  This was done by Iran in the Oil Platforms case. The Court rejected the objections one by one but in the end rejected as well the US counter-claim and a counter-claim for reparation that was contingent to it (Merits, Judgment of 6 Nov. 2003, ICJ Rep. 2003, pp. 214, paras. 119 and 218, paras. 124 and 125 (2) (dispositif )).

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R. Genet, « Les demandes reconventionelles et la procédure de la Cour Permanente de Justice Internationale », Revue de Droit international et de legislation comparée, vol. 19 (1938) ILC Draft Convention, pp. 68–71 Y. Kerbrat, « De quelques spects des procédures incidentes devant la Cor internationale de Justice : les ordonnances des 29 novembre 2001 et 10 juillet 2002 dans les affaires des Activités armées sur la territoire du Congo », AFDI, vol. 48 (2002), pp. 343–361 O. Lopes Pegna, “Counter-claims and Obligations Erga Omnes before the International Court of Justice”, European JIL, vol. 9 (1998), pp. 724–736 A. Miaja de la Muela, “La Reconvención ante el Tribunal Internacional de Justicia”, in Estudios de Derecho Procesal en Honor de Niceto Alcalá-Zamora y Castillo, Boletín Mejicano de Derecho Comparado, vol. 8, No. 24 (1975) S.D. Murphy, “Amplifying the World Court’s Jurisdiction through Counter-Claims and Third-Party Intervention”, George Washington ILR, vol. 33 (2000–2001), pp. 5–30 Y. Nouvel, “La recevabilité des demandes reconventionnelles devant la Cour internationale de Justice a la lumière de deux ordonnances recentes”, AFDI, vol. 44 (1998), pp. 324–336 F. Rigaux, « Les demandes reconventionelles devant la Cour internationale de Justice », in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge Shigeru Oda (2002), vol. 2, pp. 935–945 S. Rosenne, “Counter-Claims in the International Court of Justice Revisited”, in S. Rosenne, Essays on International Law and Practice (2007), pp. 267–293 F. Salerno, “La demande reconventionnelle dans la procédure de la Cour Internationale de Justice”, RGDIP, vol. 103 (1999), pp. 371–37 J.-M. Sorel & F. Poirat (Eds.), Les procédures incidents devant la Cour internationale de Justice: exercice ou abus de droits? (2001), pp. 48–52, 99–105

Chapter 14

Intervention under Article 62 of the Statute The judicial settlement of international disputes in general, and litigation before the ICJ in particular, have always been considered to involve two States. Save for a few exceptional cases, the immense majority of disputes submitted to arbitration or to the ICJ are strictly bilateral disputes in which third-party States have no role to play.1 However, it is unavoidable that in certain circumstances a third State may become involved in a dispute between two States and it may feel that it is entitled to some kind of participation in the process of resolving the dispute by application of the rules of international law.2 It is in these circumstances that the legal institution or “procedural faculty”3 of intervention plays a role. Third-party intervention is a procedural device known to most legal systems. As judge Sette-Camara recalled in 1984: When the founding fathers of the Statute of the old Court decided to find a place in the draft prepared by the Hague Advisory Committee of Jurists for the institution of intervention, they were not innovating in any way. They did nothing but introduce in the basic document of the Court a procedural remedy known and recognized by all the legal systems of the world as a legitimate means by which third parties, extraneous to a legal dispute, have the right to come into the proceedings to defend their legal rights or interests which might be impaired or threatened by the course of the contentious proceedings. (. . .)

1  M. Benzing, “Community Interests in the Procedure of International Courts and Tribunals”, LPICT, vol. 5 (2006), pp. 374, 375–377. 2  The procedure of third-party intervention appears to be confined to contentious proceedings. In the Acquisition of Polish Nationality advisory proceedings, Romania requested a hearing citing Articles 62 and 63 of the Statute and the Court promptly replied that “Articles 62 and 63 of the Statute and the corresponding articles of the Rules only related to contentious procedure.” All the same, the Court was willing to give Romania a hearing under the terms of Article 73 of the Rules then in force (the direct ancestor of Article 66 of the current Statute) (PCIJ E 3, pp. 225, 220). 3  The expression was used by the Court (Malta/Libya Continental Shelf, Application to Intervene, Judgment of 21 March 1984, ICJ Rep. 1984, p. 28, para. 46). It was rendered into French as “faculté procedural.”

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The Advisory Committee of Jurists of 1920 could not ignore a procedural institution which is present in all systems of law. As an indispensable instrument for the defence of the legal interests and rights of third parties in contentious proceedings it constitutes an important stage of procedural law in internal legal orders and it could not be set aside in the procedural structure which was being constructed as the first experiment of a permanent judicial body in international law. (Malta/Libya Continental Shelf, Application to Intervene, Dissenting Opinion of VicePresident Sette-Camara, ICJ Rep. 1984, p. 71)

The Statute of the Court foresees two different modalities of intervention of third States in contentious proceedings: the frequently-labeled “discretional intervention” or “intervention by leave of the Court,” under Article 62, and intervention “as of right,” under Article 63. The Court has clarified that there are important differences between these two modalities, beginning with the fact that only Article 63 may be said to confer a right exercisable by third States: In contrast to Article 63 of the Statute, a third State does not have a right to intervene under Article 62. It is not sufficient for that State to consider that it has an interest of a legal nature which may be affected by the Court’s decision in the main proceedings in order to have, ipso facto, a right to intervene in those proceedings. Indeed, Article 62, paragraph 2, clearly recognizes the Court’s prerogative to decide on a request for permission to intervene, on the basis of the elements which are submitted to it. (. . .) Article 62, paragraph 2, according to which “[it] shall be for the Court to decide upon this request”, is markedly different from Article 63, paragraph 2, which clearly gives certain States “the right to intervene in the proceedings” in respect of the interpretation of a convention to which they are parties. (Nicaragua v. Colombia, Application to Intervene (Honduras) Judgment of 4 May 2011, ICJ Rep. 2011, pp. 433–434, paras. 35–36)4

In any case, Article 62 and Article 63 have in common that they refer to the active aspect of intervention, i.e. when third States takes step in order to take part in a case that is already before the Court. The Court has also had occasion 4  Per contra, see the dissenting opinion of judge Abraham in the same case, ICJ Rep. 2011, pp. 447–451, paras. 5–14.

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to deal with the legal consequences of the passive aspect of intervention, that is, when a third State with some sort of connection to the case decides not to intervene. A former President of the Court referred as follows to these situations when commenting upon a preliminary objection that was based on the legal position of third-States that were not taking part in the proceedings: This preliminary objection raises an important issue concerning the consensual basis of the Court’s jurisdiction where the legal interests of third States are involved in a case. Articles 62 and 63 of the Court’s Statute, which allow for intervention, show that the parties to a case may have their claims adjudicated by the Court, even when the legal interests of third States may be affected by the Court’s decision. There is, however, a limit to the exercise of jurisdiction in a case affecting the legal interests of a third State, and that limit is where, according to the well-known formula of the case of the Monetary Gold Removed from Rome in 1943 (Preliminary Question), the third State’s “legal interests would not only be affected by a decision, but would form the very subject-matter of the decision”. (Phosphates in Nauru, Preliminary Objections, Dissenting Opinion of Judge Jennings, ICJ Rep. 1992, p. 301)

As for the Rules, no fewer than six articles are devoted to the procedural institution of intervention: Articles 81 to 86, found in Section D (“Incidental Proceedings”), Subsection 4 (“Intervention”) and articles 83 and 84 containing procedural rules common to both forms of intervention. For methodological reasons, it is advisable to consider these two modalities separately, starting with intervention under Article 62 (Chapter 14), which is by far the most popular among the States entitled to appear before the Court, and following with intervention under Article 63 (Chapter 15).5 The situation of a third State refraining itself from involving in the proceedings (the “Monetary Gold” doctrine) is examined at the end of the present chapter.

5  There have also been cases in which third States sent communications to the Court with regard to proceedings in course in which they considered to have some type of interest. By and large, these communications were ineffective and were met with a courtly response by the Registrar calling the attention of the concerned Government to the provisions of Articles 62 and 63 of the Statute. For a list see P. Palchetti, “Opening the International Court of Justice to Third States: Intervention and Beyond”, Max Planck Yearbook of United Nations Law, vol. 6 (2002), pp. 163, 166–167, note 67.

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Intervention in domestic and international law

A thorough survey of the legal institution of intervention as it is contemplated in domestic systems of law and its contrast with international law can be found in the separate opinion of judge Weeramantry in the Indonesia/Malaysia case. In this case, decided in 2001, judge Weeramantry acted as judge ad hoc for Malaysia, having left the bench in 2000. COMPARISONS AND CONTRASTS BETWEEN DOMESTIC AND INTER­ NATIONAL INTERVENTION (. . .) 17. Intervention procedure both in domestic and international law is based, inter alia, on the need for the avoidance of repetitive litigation as well as the need for harmony of principle, for a multiplicity of cases involving the same subject-matter could result in contradictory determinations which obscure rather than clarify the applicable law. 18. It is an interesting question whether the principles relating to intervention, mutatis mutandis, are part of the general principles imported into the corpus of international law by Article 38 (i) (c) of the Statute. If so, those general principles can be invoked for clarifying the terms of Article 62, which by common agreement is neither a comprehensive nor a clearly formulated provision. Such considerations constitute an additional reason for a study of the principles of intervention in domestic law. International law would disregard the insights obtainable from domestic law in this sphere only at cost to itself. (. . .) C. Differences between Domestic and International Intervention Procedures 22. The differences between domestic and international procedures include the following: – First of all it needs to be observed that domestic intervention law allows of two forms of intervention—compulsory and voluntary. The former, based as it is on the domestic court’s compulsory jurisdiction over its subjects, does not have its counterpart in international law. – International relations are so complex and far-reaching that even though a particular judgment may not be binding upon a State it may still have repercussions on its immediate interests, as where nuclear testing may affect neighbouring States.

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– If a requirement of a jurisdictional link be imposed, States which will obviously be affected would not necessarily have the capacity to intervene, which would be almost taken for granted in a corresponding domestic situation. Since the question of a jurisdictional link does not arise in the case of domestic litigation in view of its compulsory nature, there is here a hiatus in the fabric of international justice. This can have repercussions of varying degrees of intensity, depending upon the closeness of another dispute to the issues determined by the case in hand. – If a requirement of a jurisdictional link be imposed, numerous situations could arise where a State would be prevented from asserting its position on matters important to itself, for example the interpretation of a treaty to which it is not a Party, which interpretation once given by the International Court would tend to be followed even in disputes between other parties. – The pre-eminent position of the International Court, situated as it is at the apex of the international judicial structure, attracts special recognition to its pronouncements, even in matters indirectly related to the particular dispute before the Court. This situation does not arise to the same degree in domestic litigation. – In international litigation, where a certain confidentiality attaches to the pleadings of the original parties, the prospective intervener is under a handicap in relation to formulating its intervention. This is a provision that can operate harshly against such an intervener who to some extent has to work in the dark. Domestic law does not in general impose such a limitation, as the pleadings of both parties would be easily obtainable. This aspect assumes special importance in a case such as the present. – The question of a consensual link does, of course, arise in arbitration proceedings but an important distinction must be made here between determinations of the International Court and arbitral awards. The latter are totally without effect upon non-parties while the former, despite the inter-parties rule, do affect non-parties owing to the weight and authority attaching to decisions of the Court, especially on matters of law. – As already observed, the role of the International Court necessarily comprises not merely the settlement of the immediate dispute before it, but also the development and clarification of international law. This

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responsibility weighs particularly heavily on the International Court. This is to some extent offset by the principle that a “legal interest” under Article 62 does not cover an interest merely in clarifying or developing the law. Yet, while resolving the immediate dispute before it, the International Court needs also to take a somewhat wider perspective than a domestic court. – A possible (though debatable) further difference is that domestic courts can view the disputes before them through narrow lenses focused exclusively on the two parties and the immediate dispute, excluding a vision of the wider landscape beyond. An international court cannot afford to do this, least of all the International Court of Justice. As already observed, the International Court of Justice is obliged, while adjudicating upon the rights of the two immediate parties, to have regard to the rights of other States even though they may not be parties to the dispute. In the Monetary Gold case for example, a third party’s—Albania’s—rights needed to be protected even though that State was not a party and did not request to intervene in litigation to which several other States—Italy, United States of America, France, the United Kingdom—were parties. In such a case in domestic litigation, the court would perhaps have compulsorily joined Albania. In that case, the Court had necessarily to protect Albania’s interests which were the very subject of the litigation. – Another important difference is that the International Court does not merely resolve the immediate dispute in hand but plays a role in preventive diplomacy and comprehensive conflict resolution. Sir Robert Jennings as President of the Court stressed this role of the Court in his report to the General Assembly on 8 November 1991, when he observed that the procedure of the Court was “beginning to be seen as a resort to be employed in a closer relationship with normal diplomatic negotiation. No longer is resort to the International Court of Justice seen, to use the traditional phrase, as a ‘last resort’ when all negotiation has finally failed. Rather, it is sometimes now to be seen as a recourse that might usefully be employed at an earlier stage of the dispute.” This can well have repercussions on its procedure and the interpretation of its procedural rules, especially in regard to intervention.

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23. These are some of the background factors that lie behind the exercise by the Court of its discretion under Article 62. The exercise of this extremely wide discretion involves the delicate balance of a series of considerations which are not always articulated and assume varying degrees of importance in the context of each particular case. Their enumeration could be of assistance both in the evaluation of particular cases and in the general development of this important branch of law. (Indonesia/Malaysia), Application to Intervene, Separate Opinion of Judge Weeramantry, ICJ Rep. 2001, pp. 635–643)

a)

Discretional Intervention

Article 62 of the Statute grants a State who is not a party to a case the right to submit a request to the Court for permission to intervene, provided that it possesses the subjective conviction “that it has an interest of a legal nature which may be affected by the decision in the case.” It is for the Court to decide upon the request, and as the Statute sets no limits on this power it is often said that intervention under Article 62 is entirely “discretional” as far as the Court is concerned. The Court itself, however, has stated that it enjoys limited powers of appreciation in this regard and, in particular, that it lacks a “general discretion” to accept or reject those requests solely on the basis of policy, [u]nder paragraph 2 of Article 62 it is for the Court itself to decide upon any request for permission to intervene under that Article. The Court, at the same time, emphasizes that it does not consider paragraph 2 to confer upon it any general discretion to accept or reject a request for permission to intervene for reasons simply of policy. On the contrary, in the view of the Court the task entrusted to it by that paragraph is to determine the admissibility or otherwise of the request by reference to the relevant provisions of the Statute. (Tunisia/Libya Continental Shelf, Application to Intervene, Judgment of 14 April 1981, ICJ Rep. 1981, p. 12, para. 17)6

6   Quoted with approval in the subsequent decision in Malta/Libya Continental Shelf, Application to Intervene, Judgment of 21 March 1984, ICJ Rep. 1984, pp. 8–9, para. 12.

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Article 62: Legislative history

Article 62 intervention was introduced in the Statute of the PCIJ in 1920 and, unlike the case of intervention under Article 63, it has no equivalent in the law governing inter-State arbitration. A useful historical outline of the drafting of Article 62 can be found in the dissenting opinion of judge Oda in the Malta/ Libya Continental Shelf case, in the following terms: 11. The concept of intervention under Article 62 of the Statute was introduced for the first time in 1920, when the Statute of the Permanent Court of International Justice was prepared by the Advisory Committee of Jurists (chaired by Baron Descamps of Belgium) appointed by the Council of the League of Nations. Prior to this Committee meeting, certain projects prepared with an eye to the future plan of the League of Nations suggested a type of intervention in international judicial proceedings borrowed from municipal law. While the draft prepared in advance by the drafting group of the Advisory Committee of Jurists did not contain such a concept, some members of the Committee suggested the insertion of a new concept of intervention along the lines proposed in the projects submitted prior to the meeting as mentioned above, though, as far as we can gather from the procès-verbaux, hardly any substantive discussions were held among the members of this concept. 12. The draft suggested by the President, Baron Descamps, was adopted, and the text read as follows: “[Article 62 as finally adopted]—Lorsqu’un État estime que dans un différend un intérêt d’ordre juridique est pour lui en cause, il peut adresser à la Cour une requête, à fin d’intervention. La Cour décide.” (Permanent Court of International Justice, Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee, p. 669.) (English text: “Should a State consider that it has an interest of a legal nature in a certain case, it may submit a request to the Court to be permitted to appear as a third party. The Court shall decide.”) The English version, “it may submit a request to the Court to be permitted to appear as a third party” simply as a translation of the French text, “il peut adresser à la Cour une requête, à fin d’intervention”, led to a great

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deal of confusion in understanding the true sense of intervention under Article 62. The use, in particular, of the expression in the English text “as a third party”, which did not find any corresponding concept in the original French text, was a case of misconception with regard to the mode of the intervener’s participation in the principal case.7 13. In the Council of the League of Nations at its tenth session in October in Brussels, Léon Bourgeois, as the French delegate, praised the merits of this type of intervention under Article 62: “The Hague Jurists . . . have, indeed, given to non-litigant States the right to intervene in a case where any interest of a judicial nature which may concern them is involved.” (Permanent Court of Inter­ national Justice, Documents concerning the Action Taken by the Council of the League of Nations under Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent Court, p. 50.) This statement followed a passage in which, being fully aware of the strong objections of many member States to making the Court’s jurisdiction compulsory, he suggested the complete revision of the provisions relating to the jurisdiction of the Court. Thus it cannot properly be argued that the provision of Article 62 was carelessly retained by the drafters of the Statute in the face of the change in the nature of that jurisdiction. 14. When the new Statute of the International Court of Justice was being prepared by the Committee of Jurists, convened in Washington in 1945, there was practically no discussion of Article 62 and the French text did not undergo any change. A change was made only in the English text to eliminate the words “as a third party” without involving any change in the sense of the article, as stated in the report of the Committee (Documents of the United Nations Conference on International Organiza­ tion, 1945, Vol. XIV, p. 676). As suggested above, the reference to “as a third party” in the English text of the Statute of the Permanent Court of International Justice was from the outset misleading, particularly in view of the fact that in 1920 the French text could be seen as more authoritative.

7  See on this Wolfrum, “Intervention . . .”, p. 166.

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15. Apart from some judgments either of the Permanent Court of International Justice or of the International Court of Justice in which the scope of intervention was only referred to in passing, and from the work of the present Court in 1978 leading to the revision of the Rules of Court of draft Article 81 as it stands, there was only one occasion on which the subject of intervention was substantially examined by the Court, in 1922 when the Rules of Court were being prepared. The discussions which took place among the Judges of the Permanent Court of International Justice are correctly summarized in the Judgment of the Court in 1981, and this summary is repeated in part in the present Judgment: “The outcome of the discussion was that it was agreed not to try to resolve in the Rules of Court the various questions which had been raised, but to leave them to be decided as and when they occurred in practice and in the light of the circumstances of each particular case.” (Judgment, para. 44.) 16. As I observed in my opinion in the previous case, it is important, however, to note too that the President of the Court, Judge Loder, ruled at the end of the discussion that he: “could not take a vote upon a proposal the effect of which would be to limit the right of intervention (as prescribed in Article 62) to such States as had accepted compulsory jurisdiction. If a proposal in this sense were adopted, it would be contrary to the Statute.” (ICJ Rep. 1981, p. 26, para. 7.) It is also interesting to note a memorandum submitted by Judge Beichmann summarizing the discussions of the Court as follows: “Article 62 of the Statute lays down that the question shall be decided in each particular case as it arises; there is therefore no need to adopt any decision at the moment either with regard to the interpretation of the words ‘interest of a legal nature which may be affected by the decision’, or with regard to the question whether the right of intervention is subject to other conditions of a legal nature, for example, the acceptance of the compulsory jurisdiction of the Court by the original

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parties and the party desiring to intervene, or the consent of the original parties. The question whether, when the right to intervene has been admitted and exercised, the intervening State is to be bound by the judgment, as well as the original parties, must also remain open.” (ICJ Rep. 1981, p. 26, para. 8.) (Continental Shelf (Libya/Malta), Application to Intervene, Dissenting Opinion of Judge Oda, ICJ Rep. 1984, pp. 95–97, paras. 11–16)

A chamber of the Court has stated in general terms that the function of intervention (“le rôle de l’intervention”) is “something wholly different from the determination of a further dispute between the State seeking to intervene and one or both of the parties.”8 The Court was here replying to the contention of one of the parties to the El Salvador/Honduras case who, in opposing the request to intervene made by Nicaragua, argued that there had been no discussions between the third State and the original parties to the case regarding the questions which formed the subject of the requested intervention and that, therefore, no dispute had matured yet between them through the process of negotiation. The chamber of the Court dealing with the case quickly disposed of this argument and found that there is no requirement for the definition of a dispute in prior negotiations before an application can be made for permission to intervene, and added the remark quoted above concerning the proper role of intervention under the Statute. Since the role of the Court in admitting an intervention is not to settle any dispute between the potential intervenor and any of the main parties to the case, it would therefore “be inappropriate to require, as a condition of intervention, the existence of such a dispute, defined by prior negotiations.”9

8  El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, pp. 113–114, para. 51. 9  Ibid., p. 114, para. 51.

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Box # 14-3 Intervention under Article 62: A review of the practice No intervention under Article 62 took place at the time of the Permanent Court.10 Before the present Court, Article 62 has been invoked in 10 instances. The Court rejected the request in five of these cases and admitted it in three cases.11 In the remaining two cases the Court found no need to pronounce on the merit of the requests. The cases in which a third State has been admitted to intervene under Article 62 are:

• Nicaragua in El Salvador/Honduras (Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, p. 92)   • Equatorial Guinea in Cameroon v. Nigeria (Application to Intervene, Order of 21 Oct. 1999, ICJ Rep. 1999, p. 1029) • Greece in Jurisdictional Immunities (Germany v. Italy) (Application to Intervene, Order of 4 July 2011)

The cases in which the request for intervention was not granted are:

• Tunisia/Libya Continental Shelf, request by Malta (Application to Intervene, Judgment of 14 April 1981, ICJ Rep. 1981, p. 3)   • Malta/Libya Continental Shelf, request by Italy (Application to Intervene, Judgment of 21 March 1984, ICJ Rep. 1984, p. 3)

10  For the Wimbledon case, in which intervention was requested under Article 62 but came to be authorized under Article 63, see Box # 15-1. 11  It is worth noting that most of the relevant case law on the matter of Article 62 intervention has been produced in the context of maritime delimitation cases, which are typical bilateral disputes. This has probably influenced to a large extent the Court’s cautious approach to this procedural institution. After a comprehensive analysis of the cases, one author has concluded that “[m]aritime delimitation cases probably provide the worst possible background for the development of the jurisprudence relating to intervention under Article 62” (M.D. Evans, “Intervention, the International Court of Justice and the Law of the Sea”, RHDI, Vol. 48 (1995) p. 94). See also C. Chinkin, “Intervention before the International Court of Justice”, in F. Weiss, (Ed.), Improving WTO Dispute Settlement Procedures: Issues and Lessons From the Practice of Other International Courts and Tribunals (2000), p. 112.

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• Indonesia/Malaysia, request by The Philippines (Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep. 2001, p. 575)   • Nicaragua v. Colombia, request by Costa Rica (Application to Intervene, Judgment of 4 May 2011, ICJ Rep. 2011, p. 348) • Nicaragua v. Colombia, request by Honduras (Application to Intervene, Judgment of 4 May 2011, ICJ Rep. 2011, p. 420)

Finally, the cases in which no decision was made on the requests for permission to intervene concerned the requests by Fiji in the two Nuclear Tests cases (Application to Intervene, Orders of 12 July 1973, ICJ Rep. 1973, pp. 320 and 324) and the requests by the Solomon Islands, the Federated States of Micronesia, the Marshall Islands, Samoa and Australia in the belated sequel of the same case, i.e. the Nuclear Tests (Request for Examination) case (Order of 22 Sept. 1995, ICJ Rep. 1995, p. 288).12 Some of these cases are noteworthy. Fiji’s attempted intervention in the Nuclear Tests cases, for instance, had so wide a scope that it was considered by some as a veiled attempt to institute separate proceedings between the third State and France, rather than a genuine intervention under Article 62.13 The requests eventually lapsed, given that the Court found that the applications by Australia and New Zealand became moot, but as a consequence of Fiji’s attitude the Court itself may have felt the need to adopt a stricter approach towards intervention, a position that eventually found its way into the 1978 reform to the Rules of Court.14 The Court’s treatment of Fiji’s request clearly underlines the incidental nature of the procedure of intervention.15 The two Continental Shelf cases that took place at the start of the 1980s share important features, apart from the fact that the requests for permission to intervene, by Malta in the Tunisia/Libya case and by Italy in the subsequent Malta/ Libya case, were objected to by the main parties in the case and were eventually denied by the Court. On the one hand, in both of these cases the problem of the “valid link of jurisdiction” between the third State and the main parties featured 12  With the exception of Australia, these States also filed declarations of intervention under Article 63. 13  See the declaration by judge Gros in Nuclear Tests (Australia v. France), Application to Intervene, ICJ Rep. 1974, p. 531. See also the dissenting opinion of judge Ago in the Malta/ Libya Continental Shelf case (Application to Intervene, ICJ Rep. 1984, pp. 120–121, para. 11). 14  Ibid., pp. 116–118, paras. 5–6. See also R. Riquelme Cortado, La Intervención de Terceros Estados en el Proceso Internacional (1993), pp. 110–111. 15  C. Chinkin, “Article 62”, in Oxford Commentary, MN 19, p. 1538.

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in a prominent form throughout the entire incidental proceedings on intervention and in both of them the Court managed to resolve on the request without making a definite finding on that subject. On the other hand, especially in the second of these cases, the Court’s rejection of the request relied to a large extent on the Court’s finding that the object of the intervention requested was not a proper one; it paid considerably less attention to the interest of a legal nature of the third State that may be affected by the decision of the Court. This is remarkable because as will be seen, only the latter features in Article 62 of the Statute, and the object of the intervention as an element to be mentioned in every application for permission to intervene made its appearance in the regime of the Court only in the 1978 Rules. The El Salvador/Honduras case brought to the limelight the scope of the competence of chambers of the Court on incidental matters, including that of intervention under Article 62, and this may have been magnified by the fact that several members of the chamber had been in the minority when the Court resolved upon the requests for permission to intervene presented in the second of the Continental Shelf cases, already mentioned. In particular, the manner in which the chamber approached the question of the jurisdictional link is proof for some that the result of this judicial decision was heavily influenced by the composition of the body that rendered it. For its part, the Cameroon v. Nigeria case was the first time that incidental proceedings on intervention arose in regard to a case brought by application, and this fact may have been influential in the handling of the request by the Court. Indeed, the respondent in this case objected forcefully to the Court’s jurisdiction and the admissibility of the application, and one of the objections put forward to that end referred to the absence of third States located in the area in which the maritime delimitation had to be carried out. In its judgment on preliminary objections the Court found that this objection did not have, in the circumstances of the case, an exclusively preliminary character, and therefore deferred consideration of the same for the merits phase. However, in the same decision the Court explicitly registered that third States in the region had available the mechanism of intervention under the Statute and this might have influenced one of those States, Equatorial Guinea, who duly filed a request for permission to intervene when the case reached the stage of the merits.16 In the absence of objections by any of the parties to the case there was no need for a

16  Cameroon v. Nigeria, Preliminary Objections, Judgment of 11 June 1998, ICJ Rep. 1998, p. 324, para. 116.

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hearing and the Court had no problems in admitting the intervention and found also that it could do this by a simple order, following a quick exchange of views in writing. As for the failed intervention by the Philippines in Indonesia/Malaysia, perhaps the most important feature of the case from a procedural point of view is the link between proceedings on intervention and Article 53, para. 1 of the Rules, which allows the Court to authorize the communication of copies of the written pleadings to third States who so request it, provided that the parties do not object. Finally, the attempt by Honduras to intervene in the Nicaragua v. Colombia case represents the first occasion in the Court’s practice in which a third State requested to be admitted to intervene as a party. Honduras’ request contained both a request to intervene as a party and, alternatively, a traditional request to intervene as a non-party. Both requests were denied by the Court.

b)

Jurisdiction and Аdmissibility

The jurisdiction of the Court to entertain a request to intervene has never posed any problems, it being part and parcel of the Court’s competence on incidental matters that is firmly anchored in the Statute, in this case in its Article 62.17 The only aspect worth mentioning in this regard refers to the ratione personae scope of this jurisdiction because, as in the case of Article 63, the Statute apparently grants the right to request permission to intervene to any State who considers that it has an interest of a legal nature that may be affected by one of its decisions, and it does not require this State to be a party to the Statute or to otherwise have been granted access to the Court. In theory, then, a State lacking access to the Court under the special rules contained in Articles 34 and 35 of the Statute could still participate in a contentious case, in the condition of intervening State. However, the view has been expressed that in a case like this the third State should in any event comply with the requirements of Article 35 of the Statute

17  Malta/Libya Continental Shelf, Application to Intervene, Judgment of 21 March 1984, ICJ Rep. 1984, p. 8, para. 11.

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and Article 41 of the Rules.18 The latter provision regulates the institution of proceedings by a State who is not a party to the Statute but has been granted access under Article 35, para. 2 of the Statute. The point of departure of this argument appears to be that the expression “institution of proceedings” in Article 41 would cover the filing of a request of intervention under Article 62 or of a declaration under Article 63. In any case, the situation is unlikely to occur in this day and age, when virtually every existing State is a member of the United Nations and therefore has full and unfettered access to the Court. When a request for intervention is submitted under Article 62, the task of the Court is essentially to verify compliance with the conditions there mentioned and, in the event this is so, to declare the request admissible. In this context, admissibility has two aspects. The first is what the Court has called the “formal admissibility” of what is technically called an “Application for Permission to Intervene,” since a purely formal defect in the application (for instance, lack of compliance with the requirements laid down in Article 81, para. 2 of the Rules, concerning the contents of the request) can render it inadmissible.19 Independently from an application’s formal admissibility, the Court must also determine whether the material conditions provided for in Article 62 are effectively fulfilled by the State requesting permission to intervene. The latter can be termed “substantive admissibility,” and is to be determined by the Court in each case after interlocutory proceedings. Both of these aspects of admissibility are covered by Article 62, para. 2 of the Statute. According to the latter, the only substantive condition that must be fulfilled by a third State wishing to intervene in a case before the Court is that it possesses “an interest of a legal nature which may be affected by the decision in the case.” The expression used in the French version (“un intéret d’ordre juridique est pour lui en cause”) is not entirely equivalent and this prompted a chamber of the Court to take the unusual step of quoting the text using both versions of the Article in the same passage, albeit without commenting upon this discrepancy:

18  S. Rosenne, Intervention in the International Court of Justice (1993), pp. 81–82. Along the same lines, Scerni was of the opinion that for a State to be authorized to invoke Article 62 before the Permanent Court it had to be a subject with “capacité procédurale” (Scerni’s La Procédure, p. 650). 19  Malta/Lybia Continental Shelf, Application to Intervene, Judgment of 21 March 1984, ICJ Rep. 1984, p. 8, para. 10.

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As the Court has made clear in previous cases (. . .), in order to obtain permission to intervene under Article 62 of the Statute, a State has to show an interest of a legal nature which may be affected by the Court’s decision in the case, or that un intérêt d’ordre juridique est pour lui en cause—the criterion stated in Article 62. (El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, p. 114, para. 52)

And, in the French version of the judgment: Ainsi que la Cour l’a précisé dans d’autres affaires (. . .), pour être autorisé à intervenir en vertu de l’article 62 du Statut, un État doit établir qu’il a an interest of a legal nature which may be affected by the Court’s decision in the case ou qu’un intérêt d’ordre juridique est pour lui en cause; tel est le critère énoncé à l’article 62.20 The Court has tried to temper the subjectivity implicit in this formulation by asserting that the intention of the drafters was to treat this as a genuine requirement for intervention, the existence of which would depend on an objective assessment: Article 62 of the Statute begins by setting the condition that “should a State consider that it has an interest of a legal nature which may be affected by the decision in the case . . .”. Taken literally, this is no more than an indication of the reasons which may impel a State to seek to intervene; but it is clear that the intention of the text is that the existence of such an interest is, objectively, a requirement for intervention. (Malta/Libya Continental Shelf, Application to Intervene, Judgment of 21 March 1984, ICJ Rep. 1984, p. 9, para. 13)

The Court has also embraced the idea that the requirement of the existence of a legal interest that may be affected by the decision does not operate in a vacuum, and it has been careful in establishing a strong link between that 20  In the Tunisia/Libya Continental Shelf case the Court found that the formula “est pour lui en cause” referred to “an interest which is in issue in the proceedings” (Application to Intervene, Judgment of 14 April 1981, ICJ Rep. 1981, p. 14, para. 22). In the Nicaragua v. Colombia case the Court remarked that this was “expressed more explicitly in the English text than in the French” (Nicaragua v. Colombia, Application to Intervene (Honduras), Judgment of 4 May 2011, ICJ Rep. 2011, p. 433, para. 33).

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interest and the conceptually different element of the object or purpose of the intervention requested, so that the former can only be determined by assessing the latter: [i]n order to determine whether the Italian request is justified, the Court should consider the interest of a legal nature which, it is claimed, may be affected. However, it must do this by assessing the object of the Application and the way in which that object corresponds to what is contemplated by the Statute. Article 62 of the Statute provides for intervention by a State which considers that it has an interest of a legal nature which “may be affected by the decision in the case” or which is “en cause”, and thus envisages that the object of the intervening State will be to ensure the protection or safeguarding of its “interest of a legal nature”, by preventing it from being “affected” by the decision. The Court has therefore to consider whether or not the object of the intervention is such protection or safeguarding. (Malta/Libya Continental Shelf, Application to Intervene, Judgment of 21 March 1984, ICJ Rep. 1984, p. 18, para. 28)21

And, even more to the point: Normally, the scope of a decision of the Court is defined by the claims or submissions of the parties before it: and in the case of an intervention it is thus by reference to the definition of its interest of a legal nature and the object indicated by the State seeking to intervene that the Court should judge whether or not the intervention is admissible. (Malta/Libya Continental Shelf, Application to Intervene, Judgment of 21 March 1984, ICJ Rep. 1984, p. 19, para. 29)

This approach is also evident in the current Rules of Court, for under Article 81, para. 1—introduced in the 1978 reform—the request by the third State shall set out three separate elements, namely: (a) The interest of a legal nature that the State applying to intervene considers may be affected by the decision in that case; (b) The precise object of the intervention; and

21  Reaffirmed in the El Salvador/Honduras case (Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, p. 128, para. 85).

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(c) Any basis of jurisdiction that is claimed to exist as between the State applying to intervene and the parties to the case.22 The practice of the Court shows that the elements described in letters (a) and (b) have become true “constituent elements” or conditions sine qua non for the success of any intervention under Article 62.23 The situation is now different with regard to the element mentioned in letter (c), as it will be explained in detail in Box # 14-7. Finally, as stated above, the chamber of the Court deciding the El Salvador/ Honduras case rejected the contention that there is a requirement for the definition of a dispute in prior negotiations before an application can be made for permission to intervene.24

Box # 14-4 The object of the intervention: Article 62 of the Statute v. Article 81 of the Rules The only material condition present in Article 62 of the Statute is that the State wishing to intervene considers “that it has an interest of a legal nature which may be affected by the decision in the case.” Article 81, para. 2 of the Rules duly orders this to be “set out” in any application for permission to intervene (letter (a)), but adds also “the precise object of the intervention” (letter (b)). In this regard, it is interesting to recall what some members of the Court have had to say on the apparent discrepancy between Article 62 of the Statute and Article 81 of the Rules.25

22  The 1972 Rules, following in this regard the 1936/1946 Rules, contained less stringent requirements concerning the contents of an application for permission to intervene. All that such application had to include was “a description of the case” and “a statement of law and fact justifying intervention” (Article 69). 23  Nicaragua v. Colombia, Application to Intervene (Costa Rica), Judgment of 4 May 2011, ICJ Rep. 2011, pp. 357–358, para. 22; Ibid., Application to Intervene (Honduras), Judgment of 4 May 2011, ICJ Rep. 2011, p. 430, para. 21. 24  El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, pp. 113–114, para. 51). This had been anticipated, to a certain extent, by judge Sir Robert Jennings in the Malta/Libya Continental Shelf case (Application to intervene, Dissenting Opinion, ICJ Rep. 1984, pp. 152–153, paras. 15–17). 25  Chinkin, “Intervention . . .”, p. 115.

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In the first place, judge Sette-Camara referred in detail to the object of the intervention, taking as a point of departure the evolution of the Rules of Court on the matter: 27. [Article 69 of the 1972 Rules] was completely reshuffled in the revision of 1978. Article 69 of the 1972 Rules became Article 81 of the 1978 Rules. (. . .) [T]he most meaningful modifications were those of paragraph 2 of Article 81, which establishes the contents of the request (. . .). 28. This new formulation undoubtedly goes beyond the very terse and concise wording of Article 62 of the Statute, according to which the only requirement justifying intervention is the existence of an interest of a legal nature which may be affected by the decision on the principal case. (. . .) 32. The new formulation of the Rules embodies a few far-reaching novelties. I concede that the precise object of the intervention could possibly be included in the new text. It is an understandable requirement and it could be admitted as implicit in the wording of Article 62. (. . .) 52. The Judgment, as it seems to establish a link between the object of the intervention and the interest of a legal nature involved therein treats the problem of the interest of a legal nature and the question of the object of the intervention as if they were one and the same question. I beg to disagree with such an approach. The interest of a legal nature that a third State considers that it has in the principal case, and the fact that it may be affected by the decision of the Court are the only bases for intervention according to Article 62 of the Statute. It is the main requirement to be considered by the Court in entertaining an application for intervention under Article 62. The provision of the Statute does not mention anything about the object of the intervention, which is established by the very nature of the institution of intervention, as the protection of the intervener’s rights. It is not the Statute, but Rule 81, paragraph 2 (b), which includes the “precise object” of the intervention among the prerequisites to be ascertained by the Court. The two problems are different and they diverge in their meaning and in their importance regarding the Court’s decision. 53. I believe that the Court should examine the two questions separately, starting with the interest of a legal nature (. . .) and keeping apart the problem of the object, which can in no way be confused with the former.

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54. The Judgment, in paragraph 28, describes as follows the method it would follow in its reasoning: “The Court will confine itself to those considerations which are in its view necessary to the decision which it has to give. On that basis, in order to determine whether the Italian request is justified, the Court should consider the interest of a legal nature which, it is claimed, may be affected. However, it must do this by assessing the object of the Application and the way in which that object corresponds to what is contemplated by the Statute.” 55. It is curious that in indicating the general line of the reasoning, the Court subordinates the consideration of the problem of the interest of a legal nature on the part of the State applying to intervene, to the extent it “corresponds” to the object of the intervention. The interest of a legal nature is the main requirement of Article 62 of the Statute which has to be prima facie substantiated as has the possibility of the said interest being affected by the future decision of the Court. The decision of the Court in the first stage of the procedure of intervention, namely the decision under paragraph 2 of Article 62, should be on this specific point, more than anything else. 56. It is therefore surprising that in spite of the numerous pages devoted to the subject of the interest of a legal nature in the introduction as well as in the recount of the positions of the Parties, the Court, apart from some short references in passing, did not dwell at length on the problem whether Italy has an interest of a legal nature which might be affected by the future decision on the main case. (Malta/Lybia Continental Shelf, Application to Intervene, Dissenting Opinion of Judge Sette-Camara, ICJ Rep. 1984, pp. 76 and 81)

In the second place, judge Sir Robert Jennings stated the following on Article 81, para. 2 of the 1978 Rules of Court: 12. Article 62 of the Statute requires only that a State requesting permission to intervene consider that is has an interest of a legal nature which may be affected by the decision in the case; but Article 81 of the 1978 version of the Rules adds two further requirements, namely:

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“(b) the precise object of the intervention; (c) any basis of jurisdiction which is claimed to exist as between the State applying to intervene and the parties to the case”. Since the Rules cannot add to or modify the effect of the Statute, it has to be assumed that these additional items of information are required only to enable the Court more effectively to appreciate whether the statutory requirements of intervention are fulfilled. (. . .) 14. As to the “precise object of the intervention”, this is presumably to enable the Court to assure itself how far the object is indeed the safeguarding of legal rights which may be affected by the decision, and how far other purposes might be involved. There has been no suggestion that the Italian application in the present case has any object other than to protect what it believes to be its rights of a legal nature that may be affected by the decision. Nevertheless, there is something more to this question of “the precise object”. For the Court has to consider, besides the existence of interests of the kind referred to in Article 62, what the intervening State proposes to ask the Court to do about them. If, for example, it were allowed to intervene, in what ways might it be asking the Court to modify the decision it has to make in the main case? Or are there other ways in which the Court might be asked to assist the intervening State? Obviously, therefore, this kind of information is relevant to the Court’s consideration whether or not the intervention should be permitted. (Malta/Lybia Continental Shelf, Application to Intervene, Dissenting Opinion of Sir Robert Jennings, ICJ Rep. 1984, p. 152)

The Interest of a Legal Nature26 With regard to the interest of a legal nature, the Court’s case law has identified certain basic criteria that must be satisfied; the chief among these are outlined below.

26  E. Doussis, “L’intéret juridique comme condition de l’intervention devant la Cour internationale de justice”, RHDI, vol. 52 (1999), pp. 281 ff.; S. Torres Bernárdez, “L’intervention dans la procédure de la Cour Internationale de Justice”, RC, vol. 256 (1995-IV), pp. 288–295.

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An interest, whether general or particular, on the rules and principles of international law to be applied by the Court is not enough to justify an intervention. The legal interest capable of being affected can only be ascertained by the Court in relation to all of the circumstances of each particular case: The Chamber does not . . . consider that an interest of a third State in the general legal rules and principles likely to be applied by the decision can justify an intervention. Even when (. . .) the State seeking to intervene “does not base its request for permission to intervene simply on an interest in the Court’s pronouncements in the case regarding the applicable general principles and rules of international law”, but “bases its request on quite specific elements” in the case (. . .), the interest invoked cannot be regarded as one which “may be affected by the decision in the case” (. . .) As observed above . . . an interest in the application of general legal rules and principles is not the kind of interest which will justify an application for permission to intervene. (El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, p. 124, para. 76 and p. 126, para. 82)27

Whatever the nature of the claimed “interest of a legal nature” that a State seeking to intervene considers itself to have (and provided that it is not simply general in nature) the Court can only judge it “in concreto and in relation to all the circumstances of a particular case” (. . .).

(Indonesia/Malaysia, Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep. 2001, pp. 597–598, para. 55)28

27  However, as rightly remarked by judge Gaja, “. . . the only opportunity provided by the Statute and Rules for a State which is not a party to the proceedings to express its views on an issue of general international law is to intervene under Article 62 of the Statute and address the issue if it is relevant to the intervention” ( Jurisdictional Immunities, Application to Intervene, Declaration of Judge Gaja, ICJ Rep. 2011, p. 531, para. 1). 28  As stated by judge Mbaye in the Malta/Libya Continental Shelf case, the interest of a legal nature asserted by the third State “must be an individual direct and specific interest” (Application to Intervene, Separate Opinion of Judge Mbaye, ICJ Rep. 1984, p. 35). See also K. Mbaye, « L’intérêt pour agir devant la Cour internationale de Justice », RC, vol. 209 (1988-II), p. 292.

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As a corollary, the third State must show not only that it has such an interest, but also that this interest is directly connected to the decision that the Court may eventually make in the case and that this decision is capable of affecting such interest: [t]he Court observes that, as provided for in the Statute and the Rules of Court, the State seeking to intervene shall set out its own interest of a legal nature in the main proceedings, and a link between that interest and the decision that might be taken by the Court at the end of those proceedings.

(Nicaragua v. Colombia, Application to Intervene (Honduras), Judgment of 4 May 2011, ICJ Rep. 2011, p. 433, para. 33)

(. . .) Costa Rica has indicated the maritime area in which it considers it has an interest of a legal nature which may be affected by the decision of the Court in the main proceedings (. . .). The indication of this maritime area is however not sufficient in itself for the Court to grant Costa Rica’s Application for permission to intervene. Under Article 62 of the Statute, it is not sufficient for a State applying to intervene to show that it has an interest of a legal nature which is the object of a claim based on law, in the maritime area in question; it must also demonstrate that this interest may be affected by the decision in the main proceedings (. . .). (Nicaragua v. Colombia, Application to Intervene (Costa Rica), Judgment of 4 May 2011, ICJ Rep. 2011, pp. 367–368, paras. 66–67)

iii) An “interest of legal nature” does not necessarily correspond to a subjective right. The would-be intervener has to show that it possesses an interest of a legal nature that may be affected: it does not have to establish that one of its rights may be affected. Further, in intervention proceedings under Article 62 an interest of a legal nature operates in an essentially different plane from a right proper: [i]n order to be permitted to intervene, a State does not have to show that it has rights which need to be protected, but merely an interest of a legal nature which may be affected by the decision in the case.

(El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Reports, 1990, p. 129, para. 87)

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The Court observes that, whereas the parties to the main proceedings are asking it to recognize certain of their rights in the case at hand, a State seeking to intervene is, by contrast, contending, on the basis of Article 62 of the Statute, that the decision on the merits could affect its interests of a legal nature. The State seeking to intervene as a non-party therefore does not have to establish that one of its rights may be affected; it is sufficient for that State to establish that its interest of a legal nature may be affected. (. . .) an interest of a legal nature within the meaning of Article 62 does not benefit from the same protection as an established right and is not subject to the same requirements in terms of proof. (Nicaragua v. Colombia, Application to Intervene (Costa Rica), Judgment of 4 May 2011, ICJ Rep. 2011, p. 358, para. 26)29

iv) All the same, the third State’s interest of a legal nature must translate itself into a legal claim, i.e. a claim that is based on the law: Article 62 requires the interest relied upon by the State seeking to intervene to be of a legal nature, in the sense that this interest has to be the object of a real and concrete claim of that State, based on law, as opposed to a claim of a purely political, economic or strategic nature. (Nicaragua v. Colombia, Application to Intervene (Costa Rica), Judgment of 4 May 2011, ICJ Rep. 2011, p. 358, para. 26)30

29  See also Nicaragua v. Colombia, Application to Intervene (Honduras), Judgment of 4 May 2011, ICJ Rep. 2011, p. 434, para. 37; reiterated in Jurisdictional Immunities, Application to Intervene (Greece), Order of 4 July 2011, ICJ Rep. 2011, p. 501, para. 24. For a comment see Quintana’s Procedural Developments, LPCIT, vol. 10 (2011), pp. 577–578. This aspect was touched upon by some of the judges appending individual opinions. See Judgment of 4 May 2011 (Request by Costa Rica), Dissenting Opinion of Judge Al-Khasawneh, ICJ Rep. 2011, pp. 379–383, paras. 18–29; Dissenting Opinion of Judge Abraham, ibid., p. 385, para. 6; Dissenting Opinion of Judges Cançado Trindade and Yusuf, ibid., pp. 405–407, paras. 9–14 and Declaration of Judge Keith, ibid., pp. 394–400, paras. 6–12; Judgment of 4 May 2011 (Request by Honduras), Declaration of Judge Al-Khasawneh, ICJ Rep. 2011, p. 446; Declaration of Judge Keith, ibid., pp. 459–465, paras. 6–12 and Declaration of Judges Cançado Trindade and Yusuf, ibid., p. 467–468, para. 7. 30  See also Nicaragua v. Colombia, Application to Intervene (Honduras), Judgment of 4 May 2011, ICJ Rep. 2011, p. 434, para. 37. For a different view see the dissenting opinion of judge Donoghue in the same case (ibid., p. 476, para. 15, note 1).

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v) The interest of a legal nature must be clearly identified to the Court’s satisfaction: [t]here needs finally to be clear identification of any legal interests that may be affected by the decision on the merits. A general apprehension is not enough. The Chamber needs to be told what interests of a legal nature might be affected by its eventual decision on the merits.

(El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, p. 118, para. 62) 31

vi) The interest of a legal nature does not need to refer to the whole of the dispute before the Court and it may concern only one aspect of the subject-matter of that dispute. It is always for the Court to determine “the scope of any permitted intervention:” Article 62 of the Statute contemplates intervention on the basis of an interest of a legal nature “which may be affected by the decision in the case”. In the present case however, what is requested of the Chamber by the Special Agreement is not a decision on a single circumscribed issue, but several decisions on various aspects of the overall dispute between the Parties (. . .). The Chamber has to consider the possible effect on legal interests asserted by Nicaragua of its eventual decision on each of the different issues which might fall to be determined, in order to define the scope of any intervention which may be found to be justified under Article 62 of the Statute. If a State can satisfy the Court that it has an interest of a legal nature which may be affected by the decision in the case, it may be permitted to intervene in respect of that interest. But that does not mean that the intervening State is then also permitted to make excursions into other aspects of the case.(. . .) the scope of any permitted intervention has to be determined. (El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, p. 116, pars. 57–58)

31  For the distinction between an interest that may be affected and a right that is infringed upon in the context of diplomatic protection see Barcelona Traction, Second Phase, Judgment of 5 Feb. 1970, ICJ Rep. 1970, p. 36, para. 46.

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Where the Court permits intervention, it may limit the scope thereof and allow intervention for only one aspect of the subject-matter of the application which is before it. As the Chamber of the Court formed to deal with the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) noted: “[t]he scope of the intervention in this particular case, in relation to the scope of the case as a whole, necessarily involves limitations of the right of the intervener to be heard” (. . .). (Nicaragua v. Colombia, Application to Intervene (Costa Rica), Judgment of 4 May 2011, ICJ Rep. 2011, p. 361, para. 42)32

vii) Although the burden of proof with regard to the existence of the interest of a legal nature clearly falls upon the State applying to intervene, all that such a State must demonstrate, apart from the actual existence of that interest, is that it “may” be affected, not that it “will” or “must” be affected.33 In the Chamber’s opinion (. . .) it is clear, first, that it is for a State seeking to intervene to demonstrate convincingly what it asserts, and thus to bear the burden of proof; and, second, that it has only to show that its interest “may” be affected, not that it will or must be affected. What needs to be shown by a State seeking permission to intervene can only be judged in concreto and in relation to all the circumstances of a particular case. It is for the State seeking to intervene to identify the interest of a legal nature which it considers may be affected by the decision in the case, and to show in what way that interest may be affected; it is not for the Court itself—or in the present case the Chamber—to substitute itself for the State in that respect. (El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, pp. 117–118, para. 61)34

32  Reiterated in Jurisdictional Immunities, Application to Intervene, Order of 4 July 2011, ICJ Rep. 2011, p. 503, para. 32. 33  On the burden of proof and the manner in which it may vary according to the connection between the interest of a legal nature alleged by the third State and the subjectmatter of the dispute see the views of judge Weeramantry in the Indonesia/Malaysia case (Application to Intervene, Separate Opinion, ICJ Rep. 2001, p. 648, para. 31). See also Tunisia/ Libya Continental Shelf, Application to Intervene, Separate Opinion of Judge Schwebel, ICJ Rep. 1981, p. 36. 34  Along the same lines, see the dissenting opinion of Vice-President Sette-Camara in the Malta/Libya Continental Shelf case (Application to Intervene, ICJ Rep. 1984, p. 74, para. 17). This reveals that the procedure of intervention is essentially pre-emptive and protec-

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viii) Additionally, if the alleged interest of a legal nature does not refer directly to the subject-matter of the main dispute, this burden is even heavier: The Court would add that a State which, as in this case, relies on an interest of a legal nature other than in the subject-matter of the case itself necessarily bears the burden of showing with a particular clarity the existence of the interest of a legal nature which it claims to have. (Indonesia/Malaysia, Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep. 2001, p. 598, para. 59)

ix) The State seeking to intervene is free to choose whatever tools it wishes in order to discharge its burden of proof: [T]he Court considers . . . that the choice of the means whereby the State wishing to intervene seeks to prove its assertions lies in the latter’s sole discretion. (Indonesia/Malaysia, Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep. 2001, p. 587, para. 29)

x) The term “decision” in Article 62 includes not only the operative part of the judgment of the Court, but also “the reasons which constitute the necessary steps” to it.35 Accordingly, the third State’s interest of a legal nature is not limited to the dispositif of the judgment but may also refer to part of the reasoning section, provided that the “legal claims” advanced by that State might effectively be affected: The Court must first consider whether the terms of Article 62 of the Statute preclude, in any event, an “interest of a legal nature” of the State seeking to intervene in anything other than the operative decision of the Court in the existing case in which the intervention is sought. The tive (Chinkin, “Intervention. . .”, p. 115). In the Nicaragua v. Colombia case the Court stated that, since the decision of the Court granting permission to intervene is aimed at allowing the intervening State to take part in the main proceedings in order to protect an interest of a legal nature which risks being affected in those proceedings, it can be understood as a preventive one (Application to Intervene (Costa Rica), Judgment of 4 May 2011, ICJ Rep. 2011, p. 359, par. 27; Application to Intervene (Honduras), Judgment of 4 May 2011, ICJ Rep. 2011, p. 434, par. 38). 35  For the opposite view, see the separate opinion of judge Koroma and the declaration by judge Parra-Aranguren in the Indonesia/Malaysia case (Application to Intervene, ICJ Rep. 2001, p. 622 ff., p. 625).

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English text of Article 62 refers in paragraph 1 to “an interest of a legal nature which may be affected by the decision in the case”. The French text for its part refers to “un intérêt d’ordre juridique . . . en cause” for the State seeking to intervene. The word “decision” in the English version of this provision could be read in a narrower or a broader sense. However, the French version clearly has a broader meaning. Given that a broader reading is the one which would be consistent with both language versions and bearing in mind that this Article of the Statute of the Court was originally drafted in French, the Court concludes that this is the interpretation to be given to this provision. Accordingly, the interest of a legal nature to be shown by a State seeking to intervene under Article 62 is not limited to the dispositif alone of a judgment. It may also relate to the reasons which constitute the necessary steps to the dispositif.36 Whether a stated interest in the reasoning of the Court and any interpretations it might give is an interest of a legal nature for purposes of Article 62 of the Statute can only be examined by testing whether the legal claims which the State seeking to intervene has outlined might be thus affected. (Indonesia/Malaysia, Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep. 2001, p. 596, para. 47 and p. 597, para. 55)

Box # 14-5

The legal interest: What it is not37

In his separate opinion in the Indonesia/Malaysia case, judge ad hoc Weeramantry stressed the difficulties in apprehending the exact scope of the concept of the “interest of a legal nature” under Article 62 of the Statute. He included an interesting list of guidelines as to what that interest is not or need not be that may be useful for the analysis:

36  This was also anticipated, to some degree, by judge Schwebel since the attempted intervention by Malta in the Tunisia/Libya Continental Shelf case (Application to Intervene, Separate Opinion, ICJ Rep. 1981, p. 36). 37  See also Article 10 of the 1999 Resolution of the Institute of International Law. For the text see Box # 14-9.

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THE PROBLEM OF AN INTEREST OF A LEGAL NATURE 30. This is another important grey area in the field of international intervention procedure, and attracted the comment from the first writer on intervention before the PCIJ that it was “an almost indefinable monster” (W. Farag, L’intervention devant la Cour permanente de Justice internationale (Articles 62 et 63 du Statut de la Cour, Paris, 1927). While it defies definition as to what it is, guidelines are evolving as to what it is not. It must not be – a merely general interest but one which may be affected by the decision in this case; – a merely political or social interest; – an interest in the general development of the law; – “an interest in the Court’s pronouncements in the case regarding the applicable general principles and rules of international law” (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for permission to intervene, Judgment, ICJ Rep. 1981, p. 17, para. 30) – an interest in particular points of law that “concerned it, simply because they were in issue before the Court in proceedings between other States” (See D. W. Greig. “Third Party Rights and the ICJ”, 32 Virginia Journal of International Law, pp. 285–299). Further, it need not be – an interest in the actual subject-matter of the case. While not directly within the subject-matter it is sufficient if it will be affected by the decision; – an interest which will be affected. It is sufficient to show that it is an interest which may be affected by the decision. (Indonesia/Malaysia), Application to Intervene, Separate Opinion of Judge Weeramantry, ICJ Rep. 2001, pp. 647–648)

The Object of the Intervention The second element that is now a condition for a successful intervention is that the intervention must have a proper object. As is only natural, this element can be assessed only in regard to the circumstances of each case and it is hard

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to make generalizations in this respect, beyond recalling the observation of a chamber of the Court that “The nature of the competence . . . created by Article 62 of the Statute is definable by reference to the object and purpose of intervention, as this appears from Article 62 of the Statute.”38 The role that the object of the intervention plays in this context is that of enabling the Court to assess the connection that must exist between the case and the request for intervention, a connection that must be sufficiently close and should refer to both the petitum and the causa petendi.39 For its part, the purpose of assessing the connection between the precise object of the intervention and the subject of the dispute “is to enable the Court to ensure that a third State is actually seeking to protect its legal interests which may be affected by the future judgment.”40 The only relevant criteria identified by the Court thus far on this aspect are that an intervention whose purpose is (one) To inform the Court of the nature of the subjective rights involved; and (two) To protect those rights, will be considered as falling within the purview of Article 62.41 On the informative role of the intervention requested, a chamber of the Court stated the following: So far as the object of Nicaragua’s intervention is “to inform the Court of the nature of the legal rights of Nicaragua which are in issue in the dispute”, it cannot be said that this object is not a proper one: it seems indeed to accord with the function of intervention. (. . .) It seems to the Chamber . . . that it is perfectly proper, and indeed the purpose of intervention, for an intervener to inform the Chamber of what it regards as its rights or interests,42 in order to ensure that no legal interest may be “affected” without the intervener being heard (. . .). Nor can the Chamber 38  El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, p. 133, para. 96. 39  Wolfrum, “Intervention. . .”, p. 165. 40  Nicaragua v. Colombia, Application to Intervene (Honduras), Judgment of 11 May 2011, ICJ Rep. 2011, p. 436, par. 48. 41  A considerably more complex question is whether a third State is entitled to intervene in order to claim some form of remedy. The problem is examined thoroughly in H. Thirlway, “Injured and Non-Injured States before the International Court of Justice”, in M. Ragazzi (Ed.), International Responsibility Today—Essays in Memory of Oscar Schachter (2005), pp. 319–322. 42  Observe that the chamber uses here the expression “rights or interests,” in spite of the finding that it had made in a previous passage of the same decision according to which the State interested in intervening does not need to show that it has rights that need to be

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disregard in this connection the indication by the Agent of Nicaragua (. . .) that Nicaragua seeks to protect its legal interest solely in such way as the Statute allows. (El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, pp. 130–131, para. 90)

In subsequent cases the Court quoted with approval this passage of the chamber’s judgment and decided that an informative object effectively accords with the function of intervention under Article 62.43 As for the protective role of the intervention, the chamber concluded: Secondly, as to the other aspect of the dilemma alleged by El Salvador, it does not seem to the Chamber to follow that for a State to seek by intervention “to protect its claims by all legal means” necessarily involves the inclusion in such means of “that of seeking a favourable judicial pronouncement” on its own claims. (. . .) [i]t appears to the Chamber that the object stated first in Nicaragua’s Application, namely “generally to protect the legal rights of the Republic of Nicaragua in the Gulf of Fonseca and the adjacent maritime areas by all legal means available”, is not to be interpreted as involving the seeking of a judicial pronouncement on Nicaragua’s own claims. The “legal means available” must be those afforded by the institution of intervention for the protection of a third State’s legal interests. So understood, that object cannot be regarded as improper. (El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, p. 131, paras. 91–92)

If one takes into account the fact that with regard to the object of the intervention the Court has only sanctioned interventions aimed at informing the Court of the third State’s rights and interests and, by these means, generally protecting those rights, one might be justified in thinking that these goals are achieved, to a large measure, with the mere participation in the incidental proceedings concerning the admissibility of the request. As judge Nagendra Singh protected, but merely an interest of a legal nature (El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, p. 129, para. 87). 43  Cameroon v. Nigeria, Application to Intervene, Order of 21 Oct. 1999, ICJ Rep. 1999, p. 1034, para. 14; Nicaragua v. Colombia, Application to Intervene (Costa Rica), Judgment of 4 May 2011, ICJ Rep. 2011, p. 360, para. 34; Jurisdictional Immunities, Application to Intervene, Order of 4 July 2011, ICJ Rep. 2011, p. 502, para. 29.

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noted with regard to Italy’s failed intervention in the Malta/Libya Continental Shelf case: If the intention was . . . to apprise the Court of the areas of Italian concern of which the Court should be cautioned and warned, so that the Judgment does not trench on the sovereign rights and claims of Italy, it would appear that such a purpose has been effectively served by the exercise which the Court has undertaken under Article 62 of the Statute by giving a hearing not only to Italy but also to the Parties to the dispute. There can be no doubt that the Court has now been made fully aware of Italian interests and where they lie so that there should be no possibility of it even inadvertently encroaching upon or undermining Italian claims and interests in this case. (. . .) When the would-be intervener is not permitted to be present before the Court, it becomes the bounden duty of the tribunal to safeguard its rights and on no account to allow them to be downtrodden in the adjudication of the dispute between the parties before the Court. While pointing out this aspect, it is felt that the object of Italy in cautioning the Court in this case has already been achieved inasmuch as the Court has been warned how far to proceed in its delimitation. (Malta/Libya, Application to Intervene, Separate Opinion of Judge Nagendra Singh, ICJ Rep. 1984, pp. 31–32)

Box # 14-6 Beyond a “purely informative” intervention? When the Court considered the request to intervene by Costa Rica in the Nicaragua v. Colombia case, it found that the object of that intervention was in conformity with the requirements of the Statute and the Rules, “since Costa Rica seeks to inform the Court of its interest of a legal nature which may be affected by the decision in the case, in order to allow that interest to be protected.”44 When it was discussing the question of evidence in the same case, the Court made a related comment that implies that the simple filing of a request of intervention, even if it is not granted, may go a long way in fulfilling the expectations of the State making it, as it will allow that State to furnish the Court with

44  Nicaragua v. Colombia, Application to Intervene (Costa Rica), Judgment of 11 May 2011, ICJ Rep. 2011, p. 360, para. 35.

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information that it would, in certain circumstances, be ready to take into account when rendering its decision on the merits: [i]t is for the State seeking to intervene to produce all the evidence it has available in order to secure the decision of the Court on [the existence of an interest of a legal nature which may be affected by the decision of the Court]. (. . .) This does not prevent the Court, if it rejects the application for permission to intervene, from taking note of the information provided to it at this stage of the proceedings. As the Court has already stated, “[it] will, in its future judgment in the case, take account, as a fact, of the existence of other States having claims in the region.” (Nicaragua v. Colombia, Application to Intervene (Costa Rica), Judgment of 11 May 2011, ICJ Rep. 2011, p. 363, paras. 50–51)

Since the Court has sanctioned interventions aimed at informing the Court of the third State’s legal interests and, by these means, generally protecting those interests, one might be justified in thinking that these goals are achieved, to a large measure, with the mere participation in the incidental proceedings concerning the admissibility of the request. To this extent, the view that even in cases of unsuccessful intervention Article 62 plays a remedial function for the third State is certainly justified.45 In this regard, the judge ad hoc appointed by Nicaragua criticized the decision with regard to the request by Costa Rica, because it would lead to the paradoxical result that “in a case of maritime delimitation, the only way for a third State to submit information about its interest of a legal nature which may be affected by a decision of the Court would be to make an application that the Court considers inadmissible.” (Nicaragua v. Colombia, Application to Intervene (Costa Rica), Declaration of Judge ad hoc Gaja, ICJ Rep. 2011, p. 417, par. 4.) In order to counter this, judge Gaja made a concrete suggestion directed at the modernization of the Court’s procedure on the matter of intervention: [i]f one accepts the approach taken by the majority of the Court in the present Judgment, it would seem that the Court should establish a new procedural mechanism short of intervention that would allow third States

45  J.G. Merrills, “Reflections on the Incidental Jurisdiction of the International Court of Justice”, in M.D. Evans (Ed.), Remedies in International Law: The Institutional Dilemma (1998), p. 61.

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to submit information which they consider useful in order to protect their interests of a legal nature. (Nicaragua v. Colombia, Application to Intervene (Costa Rica), Declaration of Judge ad hoc Gaja, ICJ Rep. 2011, pp. 417–418, par. 5)

Judge Donoghue followed an analogous track in the dissenting opinion she appended to the decision with regard to the separate request to intervene by Honduras in the same case. She also found that the state of affairs with regard to cases in which an intervention request is rejected is unsatisfactory: [t]he Court today has reaffirmed that, even when it rejects an application for intervention, it may take account of the information submitted by the failed intervenor when it renders its judgment. I agree that the Court is not barred from considering that information, but find this to be a very unsatisfactory outcome. If the Court takes account of the third State’s submissions in delimiting the boundary, then it seems inescapable that the Court perceives that the third State’s interest of a legal nature “may be affected” by its decision. A decision to reject an application but nonetheless to use the information submitted by the third State gives rise to a de facto means of third-State participation that is not currently a feature of the Statute or the Rules of Court (. . .). (Nicaragua v. Colombia, Application to Intervene (Honduras), Dissenting Opinion of Judge Donoghue, ICJ Rep. 2011, p. 491, par. 57)

Judge Donoghue concluded her examination of the question of intervention with a proposal that the Court should consider adopting new mechanisms, short of intervention, in order to consider the views of non-party third States and to do this in a more transparent and efficient manner. She suggests that the Court could, for instance, streamline the procedures for considering applications for non-party intervention; limit the procedural rights given to non-party interveners—thus taking account of a third State’s “interest of a legal nature” in situations in which the third State would not be bound by the judgment, reserving the more onerous procedures for applications for intervention as a party; and, alternatively, develop new mechanisms for the submission of third-State views (Nicaragua v. Colombia, Application to Intervene (Honduras), Dissenting Opinion of Judge Donoghue, ICJ Rep. 2011, pp. 491–492, par. 59. See also ibid., p. 484, para. 35).

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The Jurisdictional Link Under Article 81, para. 2 of the Rules, an application for permission to intervene shall specify, apart from the interest of a legal nature that may be affected by the decision and the object of the intervention, “any basis of jurisdiction which is claimed to exist as between the State applying to intervene and the parties to the case.” This provision was introduced in the Rules in the 1978 reform, and this was done “[i]n order to ensure that, when the question did arise in a concrete case, [the Court] would be in possession of all the elements which might be necessary for its decision.”46 This refers to one of the more complex issues concerning intervention under Article 62 of the Statue, what the Court itself referred to as “the vexed question of the ‘valid link of jurisdiction’,”47 consisting of determining whether a need exists for the intervenor to establish a jurisdictional link between itself and the principal parties to the case. Cogent arguments have been developed for and against the proposition that the existence of a valid jurisdictional link was required for an intervention to succeed, and a profound division of thought on this matter was noticeable for a long time in the international legal community, including within the Court itself. The majority of the Court, acting with the procedural economy that is a feature of most of its decisions, managed to elude the question for a number of years, until 1990, when the task of resolving the point once and for all fell upon a five-member chamber of the Court. The chamber that was constituted to deal with the El Salvador/Honduras case had to handle a request for permission to intervene made by Nicaragua, a State with whom the parties to the case did not have a valid jurisdictional link in existence. After the chamber found that Nicaragua had shown to its satisfaction that it possessed an interest of a legal nature in some aspects of the decision to be made in the case and that the object of the intervention was a proper one, the chamber was forced to deal with the thorny issue of the jurisdictional link. The chamber came to the conclusion that the existence of a valid link of jurisdiction does not constitute a requirement for the acceptance of an 46  Tunisia/Libya Continental Shelf, Application to Intervene, Judgment of 14 April 1981, ICJ Rep. 1981, p. 16, para. 27. See also M. Lachs, “The Revised Procedure of the International Court of Justice”, in F. Kalshoven, et al. (Eds.), Essays on the Development of the International Legal Order in Memory of Haro F. van Panhuys (1980), pp. 39–40. 47  Malta/Lybia Continental Shelf, Application to Intervene, Judgment of 21 March 1984, ICJ Rep. 1984, p. 28, para. 45.

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intervention under Article 62, but it also found that the State who is permitted to intervene does not become, by that mere fact, a party to the case.48 These two propositions are inextricably linked in the chamber’s reasoning, as can be seen in the following box.

Box # 14-7 i)

The question of the “jurisdictional link”

The Problem

In the Tunisia/Libya Continental Shelf case the Court described in the following way the question of the “valid link of jurisdiction” in intervention proceedings, a matter that arose for the first time in connection with Fiji’s attempt to intervene in the Nuclear Tests cases:49 When the Permanent Court began, in 1922, to consider its rules of procedure for applying Article 62 of the Statute, it became apparent that different views were held as to the object and form of the intervention allowed under that Article, and also as to the need for a basis of jurisdiction vis-àvis the parties to the case. Some Members of the Permanent Court took the view that only an interest of a legal nature in the actual subject of the dispute itself would justify the intervention under Article 62; others considered that it would be enough for the State seeking to intervene to show that its interests might be affected by the position adopted by the Court in the particular case. Similarly, while some Members of the Court regarded the existence of a link of jurisdiction with the parties to the case as a further necessary condition for intervention under Article 62, others 48  This may have influenced the International Tribunal for the Law of the Sea when drafting its Rules of Procedure, in which the requirement for the intending intervenor to specify a jurisdictional link was omitted altogether. See R. Wolfrum, “Intervention in the Proceedings before the International Court of Justice and the International Tribunal for the Law of the Sea”, in P.Ch. Rao & R. Khan (Eds.), The International Tribunal for the Law of the Sea (2001), pp. 171–172. 49  The Court issued two orders concerning the request of intervention by Fiji, one on 12 July 1973 and one on 20 December 1974. The question of the jurisdictional link was mentioned in the declarations appended to the first order by judges Onyeama (ICJ Rep. 1973, p. 322) and Ignacio Pinto (ibid.); and was also discussed in the declarations appended to the second order by judges Onyeama (ICJ Rep. 1974, pp. 531–532), Dillard and Waldock (ibid., p. 532), Jiménez de Aréchaga (ibid., pp. 532–533) and Barwick (ibid., p. 533). The question had been discussed—and left unresolved—by the PCIJ in 1922 (PCIJ D 2, pp. 86–97).

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thought that it would be enough simply to establish the existence of an interest of a legal nature which might be affected by the Court’s decision in the case. The outcome of the discussion was that it was agreed not to try to resolve in the Rules of Court the various questions which had been raised, but to leave them to be decided as and when they occurred in practice and in the light of the circumstances of each particular case. [w]hen the Permanent Court revised its Rules it had not had any real experience of the operation of Article 62 in practice; and in consequence its further debates on the Rules do not throw a great deal of new light on the problems involved in the application of that Article. For present purposes it is enough to say that in these debates the differences of view as to the precise object or objects of intervention contemplated by Article 62 and as to the need for a jurisdictional link with the parties to the case still remained to be decided. In 1974 one of the fundamental questions raised in connection with Article 62—the question whether or not a link of jurisdiction with the parties to the case is necessary—was directly raised when Fiji applied for permission to intervene in the Nuclear Tests cases. These cases having become moot, the Court did not itself make any pronouncement on that aspect of Fiji’s application for permission to intervene under Article 62. A number of Judges, on the other hand, drew attention to it in declarations appended to the Court’s Orders in the matter (ICJ Rep. 1974, pp. 530, 535) emphasizing its importance. Afterwards, on the completion in 1978 of the revision of the Rules, the Court introduced, in Article 81, paragraph 2, thereof, a new subparagraph (c) requiring an application for permission to intervene under Article 62 of the Statute to specify: “any basis of jurisdiction which is claimed to exist as between the State applying to intervene and the parties to the case”. This it did in order to ensure that, when the question did arise in a concrete case, it would be in possession of all the elements which might be necessary for its decision. At the same time the Court left any question with which it might in future be confronted in regard to intervention to be decided on the basis of the Statute and in the light of the particular circumstances of each case. (Tunisia/Libya Continental Shelf, Application to Intervene, Judgment of 14 April 1981, ICJ Rep. 1981, pp. 14–16, paras. 23–27)

Some years later, in the Malta/Libya Continental Shelf case, the Court further recalled the following:

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The Court observes that from the 1922 discussions up to and including the hearings in the present proceedings the arguments on this point have not advanced beyond the stage they had reached 62 years ago. Since the Court finds it possible, as stated above, to reach a decision on the present Application without generally resolving the vexed question of the “valid link of jurisdiction”, no more need be said than that the Court is convinced of the wisdom of the conclusion reached by its predecessor in 1922, that it should not attempt to resolve in the Rules of Court the various questions which have been raised, but leave them to be decided as and when they occur in practice and in the light of the circumstances of each particular case. (Malta/Libya Continental Shelf Application to Intervene, Judgment of 21 March 1984, ICJ Rep. 1984, pp. 27–28, para. 45)

ii) The Solution The chamber of the Court formed to deal with the El Salvador/Honduras case took a firm stance with regard to the problem of the jurisdictional link. Relying heavily on the principle of consent and the incidental nature of every intervention, the chamber found unanimously that such a link was not a necessary condition for the success of a request of intervention under Article 62 of the Statute.50 The chamber’s reasoning was as follows: The question is whether the existence of a valid link of jurisdiction with the parties to the case—in the sense of a basis of jurisdiction which could be invoked, by a State seeking to intervene, in order to institute proceedings against either or both of the parties—is an essential condition for the granting of permission to intervene under Article 62 of the Statute. In what follows, therefore, the expression “jurisdictional link” or “link of

50  J.J. Quintana: “The Intervention by Nicaragua in the Case between El Salvador and Honduras before an ad hoc Chamber of the ICJ”, NILR, vol. 38 (1991), p. 206; Seifi, “Nicaragua Granted Permission to Intervene in the (El Salvador/Honduras) Land, Island and Maritime Frontier Case”, International Journal of Estuarine and Coastal Law, vol. 6 (1991), p. 253. See also E. Lauterpacht, Aspects of the Administration of International Justice (1991), pp. 26–30.

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jurisdiction” is used in this sense. The question has been raised in previous cases before the Court in which permission has been sought to intervene under Article 62. (. . .) Since in the present case the Chamber has reached the conclusion that Nicaragua has shown the existence of an interest of a legal nature which may be affected by the decision, and that the intervention of Nicaragua has a proper object, the only remaining question is whether a jurisdictional link is required; and since it is conceded that no such link exists, the Chamber is obliged to decide the point. In order to do so, it must consider the general principle of consensual jurisdiction in its relation with the institution of intervention. There can be no doubt of the importance of this general principle, upon which the State seeking to intervene has itself, in its Application, laid considerable emphasis. As the Permanent Court of International Justice expressed it, the Court operates “bearing in mind the fact that its jurisdiction is limited, that it is invariably based on the consent of the respondent and only exists in so far as this consent has been given” (. . .). Thus the pattern of international judicial settlement under the Statute is that two or more States agree that the Court shall hear and determine a particular dispute. Such agreement may be given ad hoc, by Special Agreement or otherwise, or may result from the invocation, in relation to the particular dispute, of a compromissory clause of a treaty or of the mechanism of Article 36, paragraph 2, of the Court’s Statute. Those States are the “parties” to the proceedings, and are bound by the Court’s eventual decision because they have agreed to confer jurisdiction on the Court to decide the case, the decision of the Court having binding force as provided for in Article 59 of the Statute. Normally, therefore, no other State may involve itself in the proceedings without the consent of the original parties. Nevertheless, procedures for a “third” State to intervene in a case are provided in Articles 62 and 63 of the Court’s Statute. The competence of the Court in this matter of intervention is not, like its competence to hear and determine the dispute referred to it, derived from the consent of the parties to the case, but from the consent given by them, in becoming

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parties to the Court’s Statute, to the Court’s exercise of its powers conferred by the Statute. There is no need to interpret the reference in Article 36, paragraph 1, of the Statute to “treaties in force” to include the Statute itself; acceptance of the Statute entails acceptance of the competence conferred on the Court by Article 62. Thus the Court has the competence to permit an intervention even though it be opposed by one or both of the parties to the case; as the Court stated in 1984, “the opposition [to an intervention] of the parties to a case is, though very important, no more than one element to be taken into account by the Court” (. . .). The nature of the competence thus created by Article 62 of the Statute is definable by reference to the object and purpose of intervention, as this appears from Article 62 of the Statute (. . .) As the Court observed in 1984, “There is nothing in Article 62 to suggest that it was intended as an alternative means of bringing an additional dispute as a case before the Court—a matter dealt with in Article 40 of the Statute—or as a method of asserting the individual rights of a State not a party to the case.” (. . .) It is noteworthy that intervention is dealt with in Chapter III of the Court’s Statute, which is headed “Procedure”. This approach was adopted by the Court also when it drew up and revised its Rules of Court, where intervention appears in Section D of the Rules, headed “Incidental Proceedings”. Incidental proceedings by definition must be those which are incidental to a case which is already before the Court or Chamber. An incidental proceeding cannot be one which transforms that case into a different case with different parties. 99. Intervention cannot have been intended to be employed as a substitute for contentious proceedings. Acceptance of the Statute by a State does not of itself create jurisdiction to entertain a particular case: the specific consent of the parties is necessary for that. If an intervener were held to become a party to a case merely as a consequence of being permitted to intervene in it, this would be a very considerable departure from this principle of consensual jurisdiction. That the incidental jurisdiction conferred by Article 62 of the Statute is circumscribed by the general

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principle of consensual jurisdiction over particular disputes was stated by the Court in its Judgment on the Italian Application to intervene in the case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), when the Court was careful not to adopt a position in which “it would be admitting that the procedure of intervention under Article 62 would constitute an exception to the fundamental principles underlying its jurisdiction; primarily the principle of consent, but also the principles of reciprocity and equality of States. The Court considers that an exception of this kind could not be admitted unless it were very clearly expressed.” (. . .) It is therefore clear that a State which is allowed to intervene in a case, does not, by reason only of being an intervener, become also a party to the case. It is true, conversely, that, provided that there be the necessary consent by the parties to the case, the intervener is not prevented by reason of that status from itself becoming a party to the case. (. . .) It thus follows also from the juridical nature and from the purposes of intervention that the existence of a valid link of jurisdiction between the would-be intervener and the parties is not a requirement for the success of the application. On the contrary, the procedure of intervention is to ensure that a State with possibly affected interests may be permitted to intervene even though there is no jurisdictional link and it therefore cannot become a party. Article 81, paragraph 2 (c), of the Rules of Court states that an application under Article 62 of the Statute shall set out “any basis of jurisdiction which is claimed to exist as between the State applying to intervene and the parties to the case”; the use of the words “any basis” (and in French the formula “toute base de compétence qui . . . existerait”) shows that a valid link of jurisdiction is not treated as a sine qua non for intervention (. . .). The Chamber therefore concludes that the absence of a jurisdictional link between Nicaragua and the Parties to this case is no bar to permission being given for intervention. (El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, pp. 132–135, paras. 94–101)

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This decision appears to have set at rest the heated scholarly dispute with regard to the need for a jurisdictional link in intervention proceedings under Article 62 of the Statute. However, several observations should be made. In the first place, the point was settled not by the full Court but by a fivemember chamber set up according to the provisions of Article 26, para. 2 of the Statute, of which only two judges were members of the Court at the time at which the decision was rendered.51 Additionally, in this case it happened that three of the five members of the chamber had previously had the occasion to make known their views on this problem, via separate or dissenting opinions appended to the judgments of the Court in the two Continental Shelf cases of the early 1980s.52 In point of fact, the three judges in question—Oda, Sir Robert Jennings and Sette-Camara, the last of whom had left the Court by the time the decision on intervention was read—had been very vocal in arguing that a valid link of jurisdiction was not a requirement for the success of an intervention under Article 62. To a large extent, then, the treatment of this issue by the chamber was foreseeable from the outset.53 It must also be kept in mind that originally Nicaragua submitted its request for permission to intervene to the full Court and not to the chamber, but the former found that, as a class of incidental proceedings, the body competent to deal with the request was the body dealing with the main case.54 It can thus be said that with that procedural decision the Court indirectly—and perhaps inadvertently—ensured that, were the chamber to find that the Nicaraguan request fulfilled the conditions in Article 62, the question of the jurisdictional link would be found not to be one of those conditions. 51  K.C. Wellens, “Reflections on some Recent Incidental Proceedings before the International Court of Justice”, in E. Denters & N. Schrijver (Eds.), Reflections on International Law from the Low Countries in Honour of Paul de Waart (1998), p. 437. 52  See the separate opinion of judge Oda in the Tunisia/Libya Continental Shelf case (Application to Intervene, ICJ Rep. 1981, p. 23), the same judge’s dissenting opinion in the Malta/Libya Continental Shelf case (Application to Intervene, ICJ Rep. 1984, p. 90) and the dissenting opinions of judges Sette-Camara and Jennings in the latter case (ibid., pp. 71 and 148). 53  See, for instance, in the Malta/Libya Continental Shelf case the importance that judge Sette-Camara, then Vice-President of the Court and later to be the President of the chamber, attached to the fact that intervention is an incidental procedure, which is always “grafted” on an existing case, an argument that clearly played a crucial role in the chamber’s analysis of the problem of the jurisdictional link (Application to Intervene, Dissenting Opinion, ICJ Rep. 1984, p. 86, para. 76). 54  El Salvador/Honduras, Application to Intervene, Order of 28 Feb. 1990, ICJ Rep. 1990, p. 3. See also Box # 19-8.

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In the second place, in paragraph 94 of the judgment the chamber delineates what can be considered to be the basic methodology to be followed in future cases of resort to Article 62 (with or without objections from the main parties). This methodology owes much to the provisions of Article 81, para. 2 of the Rules: after taking note of the position of the main parties toward the request, the Court will first ascertain whether the would-be intervener has shown the existence of an interest of a legal nature that may be affected by the decision, and then will enquire if the intervention requested has a proper object. Since it is now clear that the third element mentioned in that provision (the jurisdictional link) is not legally required in all cases, the Court or chamber can stop then and there and grant or reject the request exclusively on the basis of these two elements. On the first occasion in which the Court dealt with a request for intervention after the 1990 decision of the chamber, it acted exactly as described, for after disposing of the questions of the interest of a legal nature and the object of the intervention, it went on to quote the 1990 judgment as a definite authority on the lack of a requirement concerning the existence of a valid link of jurisdiction.55 Additionally, in the next case in which a request for intervention was considered, it outlined its methodological approach to the case in the following terms: The Court will now consider the arguments that the Application to intervene cannot be granted for the reasons, first, that the Philippines has not established the existence of an “interest of a legal nature” justifying the intervention sought, and, secondly, that the object of the intervention would be inappropriate. (Indonesia/Malaysia, Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep. 2001, p. 589, para. 37)

On the basis of this, one may wonder whether the reference to a valid title of jurisdiction in Article 81, para. 2 (c) of the Rules still has any role to play in intervention proceedings under Article 62, at least with regard to non-party intervention. In the Jurisdictional Immunities case, for instance, after dealing with the requirements in letters (a) and (b) of paragraph 2 of Article 81 of the Rules, the Court referred to the requirement in letter (c) of that provision as follows:

55  Cameroon v. Nigeria, Application to Intervene, Order of 21 Oct. 1999, ICJ Rep. 1999, pp. 1034– 1035, paras. 13–15.

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[t]he Court observes that it is not necessary to establish the existence of a basis of jurisdiction between the parties to the proceedings and the State which is seeking to intervene as a non-party (. . .) since Greece has made clear that it seeks to intervene as a non-party, it is not necessary for such a basis of jurisdiction to be established in the present case. ( Jurisdictional Immunities, Application to Intervene, Order of 4 July 2011, ICJ Rep. 2011, pp. 502–503, para. 31)

In the third place, there is no doubt that the chamber’s approach to the question of the jurisdictional link was heavily influenced by its finding that a third State who is admitted to intervene under Article 62 does not by that mere fact become a party to the case (paragraph 99 of the judgment).56 In other words, the intervention that was sanctioned by the chamber, without need for a jurisdictional link, was a non-party intervention, and one may wonder what came first, posing a chicken-and-egg sort of question: Did the chamber come to the conclusion that the third State did not become a party to the case because it was already convinced that the existence of a jurisdictional link was not a requirement for the success of the intervention, or did it find that the link of jurisdiction was not required because, in any case, the third State would not become a party to the proceedings?57 c)

Intervention as a Party

The chamber’s conclusions in the El Salvador/Honduras case that “If an intervener were held to become a party to a case merely as a consequence of being permitted to intervene in it, this would be a very considerable departure from th[e] principle of consensual jurisdiction” and that “a State which is allowed to intervene in a case, does not, by reason only of being an intervener, become also 56  This type of intervention was not completely unheard of prior to the chamber’s decision. Hints in that direction can be seen in, as it happens, the separate opinions of judges Oda and Schwebel in the Tunisia/Lybia Continental Shelf case (Application to intervene, ICJ Rep. 1981, p. 27, para. 9 and p. 35) and in the separate opinion of judge Mbaye and the dissenting opinion of judge Jennings in the Malta/Lybia Continental Shelf case (Application to Intervene, ICJ Rep. 1984, p. 149, para. 5 and p. 38). 57  S. Oda, “The International Court of Justice viewed from the Bench (1976–1993)”, RC, vol. 244 (1993-VII), pp. 83–84. For an analysis from the point of view of the compatibility of Article 81, para. 1 (c) of the Rules with the Statute see Thirlway, “Article 30”, in Oxford Commentary, MN 36–38, pp. 527–528.

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a party to the case” clearly imply that the intervention granted to Nicaragua in that case was a non-party intervention. The chamber went on to state: Intervention under Article 62 of the Statute is for the purpose of protecting a State’s “interest of a legal nature” that might be affected by a decision in an existing case already established between other States, namely the parties to the case. It is not intended to enable a third State to tack on a new case, to become a new party, and so have its own claims adjudicated by the Court. A case with a new party, and new issues to be decided, would be a new case. The difference between intervention under Article 62, and the joining of a new party to a case, is not only a difference in degree; it is a difference in kind. (El Salvador/Honduras Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, pp. 133–134, para. 97)

However, in the same decision the chamber was careful to leave the door open to a different alternative, that of a third State being admitted to intervene as a party to the case, in the following terms: It is true, conversely, that, provided that there be the necessary consent by the parties to the case, the intervener is not prevented by reason of that status from itself becoming a party to the case. That the competence given to the Court in Article 62 of the Statute is not extendable to making an intervener a party to the case unless the parties to the case have consented to the change appears also to be the view of Nicaragua, which stated during the oral proceedings that “Article 62 is a part of the incidental jurisdiction and there is no compelling logic requiring its provisions to be seen as an ‘exception’ to the principle of consent”. There is furthermore in international law no process for joinder of a new party, or parties, whether as appellant or respondent, by move of the Court itself. The Court referred in 1984 to “the absence in the Court’s procedures of any system of compulsory intervention, whereby a third State could be cited by the Court to come in as party . . .” (. . .) and again to the fact that the Court does not possess the power “to direct that a third State be made a party to proceedings” (. . .). (El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, p. 135, para. 99)58

58  See also Phosphates in Nauru, Preliminary Objections, Judgment of 26 June 1992, ICJ Rep. 1992, p. 260, para. 53.

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This is exactly the situation foreseen in a perceptive piece by a well-known international lawyer and practitioner, who, commenting on the chamber’s decision on this point ventured the following opinion in a work published in 1991: It is, therefore, possible that in future cases a distinction may be drawn between the case in which the applicant State is allowed to intervene other than as a party (in which case a jurisdictional link is not required) and the case in which the applicant State is allowed to become a party (in which case a jurisdictional link may be required)—“may” because Article 62 does not distinguish between the two situations and it would be strange if it required a jurisdictional link in one and not in the other of the two situations.59 The only comment to this reasoning is that the jurisprudence has made clear that, even if Article 62 does not distinguish between intervention as a non-party and intervention as a party, in the latter case the principle of consent would seem to prevail and make the existence of a jurisdictional link an authentic requirement for the intervention to be admitted. Under this consideration, the “may” in the last sentence just quoted would certainly become a “must” as it was confirmed by the Court in its decision rejecting Honduras’ request to intervene as a party in the Nicaragua v. Colombia case.60 The Study Group convened in 1996 by the British Institute of International and Comparative Law clearly welcomed the distinction made by the chamber between cases in which the intervenor becomes a party—in which no jurisdictional link is required—and cases in which the intervention is designed to safeguard a State’s legal interests.61 It also saw advantage in spelling out this distinction in the Court’s constitutive instruments, by requiring the third State to specify in which capacity it seeks to intervene, “so that existing parties know what they are asked to consent to.”62 Accordingly, a proposed amendment to the Rules would be directed at “Requiring a State wishing to intervene to specify whether it seeks to intervene as a party or simply to safeguard its legal 59  Lauterpacht, “Aspects . . .”, p. 29. 60  Nicaragua v. Colombia, Application to Intervene (Honduras), Judgment of 4 May 2011, para. 28. For a comment see Quintana’s Procedural Developments, LPICT, vol. 10 (2011), pp. 569–570. 61  Study Group Report, p. 65, para. 77. 62  Ibid., para. 78.

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interests.”63 No action in this direction has been taken yet, but it is noteworthy that in virtually all the instances in which intervention requests have been made since the El Salvador/Honduras case the third State has made clear in the application for permission to intervene that it did not intend to become a party to the proceedings.64 The exception is the request by Honduras to intervene in the Nicaragua v. Colombia case, in which the third State sought to intervene as a party and, in the alternative, as a non-party.65 On the other hand, at the merits phase of the same pivotal case, the chamber stated the following: [I]n the Chamber’s Judgment of 13 September 1990, emphasis was laid on the need, if an intervener is to become a party, for the consent of the existing parties to the case, either consent ad hoc or in the form of a pre-existing link of jurisdiction.” (El Salvador/Honduras, Merits, Judgment of 11 Sept. 1992, ICJ Rep. 1992, p. 610, para. 424) 66

Subsequently, in the Indonesia/Malaysia case, the Court recalled this dictum of the chamber and went a step further, drawing the following conclusion: (. . .) a jurisdictional link between the intervening State and the Parties to the case is required only if the State seeking to intervene is desirous of “itself becoming a party to the case” (. . .).

63  Ibid., p. 73, para. 104 (1). The Study Group also made specific proposals connected with the question of access to the pleadings by the would-be intervener. See Box # 14-8. 64  Cameroon v. Nigeria, Application to Intervene, Order of 21 Oct. 1999, ICJ Rep. 1999, p. 1031, para. 2; Indonesia/Malaysia, Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep. 2001, p. 580, para. 7; Nicaragua v. Colombia, Application for Permission to Intervene by Costa Rica, filed at the Registry on 25 February 2010. 65  Nicaragua v. Colombia, Application for Permission to Intervene by Honduras, filed at the Registry on 10 June 2010. 66  The 1990 decision could be read as meaning that for the chamber the presence of a jurisdictional link was not sufficient to admit a party intervention and that ad hoc consent by the parties would be in any case necessary (Palchetti, “Opening. . .”, p. 153, note 36). The 1992 decision may have gone a long way in clarifying this question. On this, see A.J.J. De Hoogh, “Intervention under Article 62 of the Statute and the Quest for Incidental Jurisdiction without the Consent of the Principal Parties”, LJIL, vol. 6 (1993), pp. 39–40.

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That is not the situation here. The Philippines is seeking to intervene in the case as a non-party. Hence the absence of a jurisdictional link between the Philippines and the Parties to the main proceedings does not present a bar to the Philippine intervention. (Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep, 2001, p. 589, paras. 35–36)67

These decisions anticipate that there may be room for an intervention as a party under Article 62, and both rightly stress the importance of the principle of consent as manifested in the existence of a jurisdictional link. There is a slight difference in approach between the two, however, for while the chamber in its 1990 decision referred to the consent of the original parties (“provided that there be the necessary consent by the parties to the case” the intervener may become a party to the case and “making an intervener a party to the case” is possible if “the parties to the case have consented to the change”), the full Court in 2001 apparently put the emphasis on the wishes of the intervener (“a jurisdictional link between the intervening State and the Parties to the case is required only if the State seeking to intervene is desirous of ‘itself becoming a party to the case’”). This may be important because, while it now seems established that when Article 62 is invoked and there is a jurisdictional link in existence between the two parties to the case and the intervener State the latter may become a party, two different situations may be envisaged within the same factual context. On one hand there is the case in which all the States involved—the main parties to the case and the intervener—are in agreement that this change of status is warranted, and therefore there is nothing to prevent the intrusion of the latter in the case, which would thus become a trilateral dispute. On the other hand, there is the case in which only the third State “is desirous of itself becoming a party to the case,” as the Court put it. In this latter instance, one of the original parties to the case (or, for that matter, both of them) could object to this forceful “multilateralization” of their dispute, via Article 62. The third State would then surely contend that, since a valid title of jurisdiction exists between itself and the main parties, they must be deemed to have given their consent in advance as it happens every time proceedings 67  At the oral hearings, Counsel for Malaysia contended that in this case the jurisdictional link was “twice lacking,” as there was no treaty or Optional Declaration applicable and the parties to the case were actively opposing the intervention (CR 2001/2, 26 June 2001, para. 4 (Cot); see also ICJ Rep. 2001, p. 588, para. 32).

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are instituted in a case involving an ante hoc title of jurisdiction. Furthermore, as the three States would have accepted the Court’s jurisdiction in this scenario, there would be nothing to prevent the third State from filing a fresh application against the other two, except that to require it to do so would be an excess in formalism, something that the Court has been keen to reject in prior cases in which a similar situation arose.68 However, the parties to the case could counter contending that the “specific consent of the parties” required under the chamber’s decision in El Salvador/ Honduras must necessarily be a concrete consent, tied to the case at hand and not an abstract consent given in advance when submitting to the Court’s jurisdiction.69 After all, the Court has established a clear distinction between the seisin of the Court (governed by Article 40 of the Statute) and intervention (governed by Article 62): There is nothing in Article 62 to suggest that it was intended as an alternative means of bringing an additional dispute as a case before the Court—a matter dealt with in Article 40 of the Statute—or as a method of asserting the individual rights of a State not a party to the case. Malta/Libya Continental Shelf, Application to Intervene, Judgment of 21 March 1984, ICJ Rep. 1984, p. 23, para. 37

The original parties could also argue that, if the third State is interested in having its claims vis-à-vis any of them, or both, adjudicated by the Court, the Statute requires it to take the step of filing an application instituting fresh proceedings, instead of attempting to use the procedure of intervention to introduce a new case before the Court “through the backdoor,” as it were.

68  Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, pp. 428– 429, para. 83. See also Genocide Convention (Croatia v. Serbia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, pp. 438–443, paras. 81–89. In the Nicaragua v. Colombia case the Court also remarked—albeit in the context of non-party intervention—that the possibility available to a State of bringing principal proceedings before the Court in no way removes its right under Article 62 to apply to the Court for permission to intervene (Application to Intervene (Costa Rica), Judgment of 4 May 2011, ICJ Rep. 2011, p. 361, par. 42). 69  El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, p. 134, para. 99.

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If circumstances like these obtain, one might wonder whether the Court would feel entitled to authorize the third State to become a party to the case.70 One last aspect of intervention as a party that was touched upon by the Court in the Nicaragua v. Colombia case is that the raison d’être of the procedure of intervention is that, if admitted, the third State is authorized to participate in the main case in order to protect its legal interest that may be affected by an eventual decision of the Court.71 This does not entail, however, an author­ ization to introduce a new case or to submit claims that are unrelated to the subject-matter of that case. The Court stated: The Court notes that a State requesting permission to intervene may not, under the cover of intervention, seek to introduce a new case alongside the main proceedings. While it is true that a State which has been permitted to intervene as a party may submit claims of its own to the Court for decision, these have to be linked to the subject of the main dispute. The fact that a State is permitted to intervene does not mean that it can alter the nature of the main proceedings, since intervention “cannot be [a proceeding] which transforms [a] case into a different case with different parties” (. . .). (Nicaragua v. Colombia, Application to Intervene (Honduras), Judgment of 11 May 2011, ICJ Rep. 2011, p. 436, par. 47)

d)

Procedure

Institution of Proceedings Article 81 of the Rules sets out the formal conditions for instituting proceedings on intervention. First of all, as to the question of timing, the application for permission to intervene (“requête à fin d’intervention”)—which, like any other application, must be duly signed, in the manner provided for in Article 38, para. 3—should be filed “as soon as possible, and not later than the closure of the written proceedings,” although in exceptional circumstances the Court may admit an application submitted at a later stage. In the former version of the Rules this time-limit was more generous, as the said document could be 70   See the dissenting opinion of judge Abraham in the Nicaragua v. Colombia case (Application to Intervene (Honduras), ICJ Rep. 2011, p. 452, par. 20). See also Quintana’s Procedural Developments, LPICT, vol. 10 (2011), pp. 571–574. 71  Nicaragua v. Colombia, Application to Intervene (Honduras), Judgment of 11 May 2011, ICJ Rep. 2011, p. 436, par. 46.

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filed up to the date of the opening of the oral proceedings, as it is now the case for a declaration of intervention under Article 63.72 There are two aspects of this temporal rule that call for a comment. The first concerns the expression “as soon as possible” and the second has to do with the reference to the date of the closing of the written proceedings as the deadline for the submission of the application for intervention. With regard to the first aspect, the Court has had the occasion to explain the rationale of what it called the “stipulation of a general character” contained in Article 81, para. 2 of the Rules. It stated as follows: [t]he time chosen for the filing of the Application by the Philippines can hardly be seen as meeting the requirement that it be filed “as soon as possible” as contemplated in Article 81, paragraph 1, of the Rules of Court. This requirement which, although when taken on its own might be regarded as not sufficiently specific, is nevertheless essential for an orderly and expeditious progress of the procedure before the Court. In view of the incidental character of intervention proceedings, it emphasizes the need to intervene before the principal proceedings have reached too advanced a stage. In one of the recent cases, dealing with another type of incidental proceedings the Court observed that: “the sound administration of justice requires that a request for the indication of provisional measures . . . be submitted in good time” (. . .). The same applies to an application for permission to intervene, and indeed even more so, given that an express provision to that effect is included in Article 81, paragraph 1, of the Rules of Court. (Indonesia/Malaysia, Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep. 2001, p. 585, para. 21)

As for the date of the closing of the written proceedings, in the section concerning the written pleadings stage it was explained that in some cases it is far from easy to determine this date precisely.73 This type of situation has been duly noted by the Court in several cases concerning intervention.74

72  1936/1946 Rules, Article 64; 1972 Rules, Article 69, para. 1. 73  See Chapter 6, e). 74  Tunisia/Lybia Continental Shelf, Application to Intervene, Judgment of 14 April 1981, ICJ Rep. 1981, p. 6, para. 5; El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, p. 98, para. 12; Indonesia/Malaysia, Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep. 2001, pp. 585–586, paras. 23–25.

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Box # 14-8 Access to the written pleadings and intervention75 Article 53, para. 1 of the Rules, which appears in the section concerning the written proceedings, states the following: The Court, or the President if the Court is not sitting, may at any time decide, after ascertaining the views of the parties, that copies of the pleadings and documents annexed shall be made available to a State entitled to appear before it which has asked to be furnished with such copies. This provision is often used by States and in practice the Court defers to the wishes of the parties, notwithstanding the fact that under the Rule just reproduced it appears to have unfettered discretion in that regard. When either of the main parties, or both, object sharing the contents of the written pleadings with third States, the Court normally decides that it is not appropriate to grant the request, thus preserving the strict confidentiality that is a feature of the written stage of proceedings before the ICJ.76 From the point of view of a third State who learns about the institution of proceedings when notified by the Registry under Article 40 of the Statute, invoking Article 53, para. 1 of the Rules makes perfect sense with a view to give due consideration to an eventual intervention under Article 62, and particularly in order to ascertain whether it can reasonably contend that it possesses an interest of a legal nature that may be affected by the decision. However, in cases in which the request is denied, that State will be forced to make this assessment solely on the basis of the very concise information disclosed in the act of institution of proceedings, either an application or a special agreement. For these reasons, the 1996 Study Group recommended an amendment of the Rules of Court along the following lines:

75  For a good discussion see Ch. Chinkin, “Article 62”, in Oxford Commentary, MN 25–30, pp. 1539–1541. See also Riquelme Cortado, “La intervención. . .”, pp. 65–66; Prager’s Procedural Developments, LPICT, vol. 1 (2002), pp. 199–200. 76  For details see Chapter 6, g).

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Allowing a State which can establish prima facie that it has an interest in the case to have sight of the memorials and annexed documents in the case, and requiring a State wishing to intervene to do so within a reasonable time after it has seen the initial memorials.77 In both of the Continental Shelf cases a request of this kind was made by the State that later decided to file an application for permission to intervene and in both of them it was denied by the Court, because one of the parties raised an objection.78 This situation presented again in the Indonesia/Malaysia case and the third State, the Philippines, argued that because it was denied access to the pleadings, it had serious difficulties in framing its intervention request and it was even precluded from filing this at an early date. The Court rejected the notion that there is an inextricable link between the procedure provided for in Article 53, para. 1 of the Rules and the procedure of intervention and also rejected the proposition that “the requirement of the timeliness of the Application for permission to intervene may be made conditional on whether or not the State seeking to intervene is granted access to the pleadings.” (Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep. 2001, p. 585, para. 22). Judge Weeramantry devoted part of his separate opinion in this case to this aspect, under the heading “Tension between the principle of confidentiality of pleadings and the principle of intervention,” in the following terms: 44. Although, as Rosenne points out, the Court has so far refrained from exercising this power, it has the discretion under Article 53, paragraph 1, of the Rules to make pleadings available to interveners in appropriate circumstances and an intervener is entitled to explore this possibility. There is a tension here between the principle of intervention and the principle of confidentiality, for the latter may in certain cases shut out a legitimate intervention by denying the intending intervener the information necessary for it to formulate its intervention. The discretion of the Court must therefore be very carefully exercised, especially when the lack 77  Study Group Report, p. 73, para. 104 (2). For the rationale of this proposal see ibid., pp. 65–66. 78  This put the would-be intervener in a difficult position, as registered by judge Schwebel with regard to Malta in the Tunisia/Libya case (Application to Intervene, Separate Opinion, ICJ Rep. 1981, p. 35) and by judge Nagendra Singh with regard to Italy in the Malta/Libya case (Application to Intervene, Separate Opinion, ICJ Rep. 1984, p. 33). See also Rosenne’s Procedure, p. 119, note 2.

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of knowledge of the parties’ pleadings is offered as an excuse for what might be a belated intervention. An intervener’s actual pleadings could in certain cases be heavily dependent upon a knowledge of the pleadings of the parties. The mere publication of the special agreement would not give the intervenient the full information it might require. 45. As Rosenne observes, the tension already referred to between the principle of intervention and the principle of confidentiality can even amount to a denial of justice in particular cases, and will perhaps need to be reviewed in the future. Indeed, he points out in his treatise on intervention that the availability to a prospective intervener of the written proceedings to date is important both when it is considering whether it has an interest of a legal nature and even more so after that State has decided to submit an application. I believe this procedural aspect needs careful review by the Court, for there can well be cases where a denial of the documents to a prospective intervener could for practical purposes defeat that intervener’s statutory right to make an application for intervention. The present is not such a case but there may well be cases where this is so. (Indonesia/Malaysia, Application to Intervene, Separate Opinion of Judge Weeramantry, ICJ Rep. 2001, pp. 650–651)

Interestingly enough, in two of the cases in which a third State has been granted permission to intervene—El Salvador/Honduras and Cameroon v. Nigeria—the principal parties did not object to the pleadings being made available to that State and the Court duly complied.

Conduction of Proceedings As soon as the Registry receives the application it transmits a certified copy to the main parties to the case, who are then invited to furnish their observations in writing within a time-limit fixed by the Court or by the President, if the Court is not sitting (Rules, Article 83, para. 1, a provision that is common to both types of intervention).79 Under paragraph 2 of the same provision, the Registrar also transmits ex officio a copy of the application to the SecretaryGeneral of the United Nations and to the States entitled to appear before the

79  These observations are not treated as a pleading proper and therefore are submitted by means of a letter that the agent addresses to the Registrar of the Court. They are not printed and do not have to be submitted in several copies.

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Court. Nowadays, the text of the application is also uploaded to the Court’s website. Article 84, para. 1 of the Rules—also common to both types of intervention— assigns to the requests for intervention a certain priority within the Court’s program of work, but not the absolute priority afforded to requests for the indication of provisional measures. In particular, under this provision the decision as to the admissibility of the request will be taken “as a matter of priority,” but with the important qualification that the Court can always decide otherwise “in view of the circumstances of the case.” If any of the parties files an objection to the intervention this automatically triggers the need for an oral hearing, in which all the States involved—the original parties to the case and the third State wishing to intervene—are to take part (Art. 84, para. 2). It is interesting to register that States parties have sometimes chosen to use non-committal language when reacting to an Application for Permission to Intervene, which has forced the Court to take a decision as to whether an actual objection had been made. In the Nicaragua v. Colombia case, for instance, Nicaragua reacted to the application made by Costa Rica by informing the Court that in its view this application “failed to comply with the Statute and the Rules of Court” but refrained from stating expressly that it was objecting to the request for intervention—as it did unequivocally with regard to the parallel request made by Honduras in the same case.80 The Court took note of this and went on to put on record that it considered “that Nicaragua had objected to the Application.”81 In the subsequent Jurisdictional Immunities case the Court mentioned in the recitals of its order that while Germany drew the Court’s attention to “certain considerations which would indicate that Greece’s Application for permission to intervene did not meet the criteria set out in Article 62, paragraph 1, of the Statute,” it expressly stated that it did not formally object to the application being granted and that “it left it to the Court to assess the admissibility thereof as it saw fit.”82 As a member of the Court rightly put it, the situation consisted 80  Nicaragua v. Colombia, Application to Intervene (Costa Rica), Judgment of 4 May 2011, ICJ Rep. 2011, pp. 354–355, para. 13; Nicaragua v. Colombia, Application to Intervene (Honduras), Judgment of 4 May 2011, ICJ Rep. 2011, p. 427, para. 13. See also a question put to Nicaragua by judge Donoghue at the hearings concerning the request by Costa Rica (Nicaragua v. Colombia, Application to Intervene (Costa Rica), CR 2010/17, sitting of 15 Oct. 2010, p. 27) 81  Nicaragua v. Colombia, Application to Intervene (Costa Rica), Judgment of 4 May 2011, ICJ Rep. 2011, pp. 354–355, para. 13. 82  Jurisdictional Immunities, Application to Intervene, Order of 4 July 2011, ICJ Rep. 2011, p. 496, para. 5 and p. 500, para. 20.

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here in that “Germany submitted that it did not formally object to [Greece’s Application], but it substantially contradicted the grounds of Greece’s purported intervention under Article 62 of the ICJ Statute.”83 If there are no objections no hearing is organized and the Court takes its decision exclusively on the basis of the application and the written communications made by the parties. It is worth noting that the number of written pieces to be submitted is changeable. In the Cameroon v. Nigeria case the parties filed written observations within a time-limit fixed by the Court and subsequently sent communications to the Court sua sponte.84 In the Jurisdictional Immunities case the Court itself, after deciding that no hearings were needed, nevertheless directed the would be intervener to comment on the observations of the parties and the latter to submit additional written observations.85 The Decision It is important to note that the absence of objections by the parties does not necessarily mean that the request will be admitted, for the question remains subject to the extensive discretionary power that the Court possesses in the matter of the admissibility of an intervention under Article 62.86 The Court’s practice points to two specific aspects in this regard: (one) The opposition of the parties to the requested intervention is not determinative, because it is only one of the elements that the Court will take into account: [w]hile the Court attaches great importance to the element of the will of States, expressed in a special agreement or other instrument creative of jurisdiction, to define the extent of a dispute before the Court, it is worth recalling that under paragraph 2 of Article 62, “it shall be for the Court to decide” upon a request for permission to intervene, and the opposition of the parties to a case is, though very important, no more than one element to be taken into account by the Court. (Malta/Libya, Application to Intervene, Judgment of 21 March 1984, ICJ Rep. 1984, p. 28, para. 46)

83  Ibid., Separate Opinion of Judge Cançado Trindade, ICJ Rep. 2011, pp. 506–507, para. 3. 84  Cameroon v. Nigeria, Application to Intervene, Order of 21 Oct. 1999, ICJ Rep. 1999, pp. 1033, paras. 7–8 and 1034, para. 11. 85  Jurisdictional Immunities, Application to Intervene, Order of 4 July 2011, ICJ Rep. 2011, p. 496, para. 6. 86  S. Rosenne, “Some Reflections on Intervention in the International Court of Justice”, NILR, vol. 34 (1987), p. 83.

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(two) Even if both parties are opposed to the intervention, the Court may find that it is admissible: [a]cceptance of the Statute entails acceptance of the competence conferred on the Court by Article 62. Thus the Court has the competence to permit an intervention even though it be opposed by one or both of the parties to the case. (El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, p. 133, para. 96)87

On the other hand, it has been suggested that the decision that the Court makes under Article 62 must be directed to either admitting or rejecting the request for permission to intervene and could not, for instance, join this incident to the merits of the case.88 As for the form of the decision, paragraph 2 of Article 62 only establishes that it shall be for the Court “to decide” upon the request. In the previous version of the Rules (Article 64, para. 1 of the 1946 Rules, maintained without changes until the 1978 comprehensive reform) it was provided that “[t]he Court will give its decision on the application [for permission to intervene] in the form of a judgment,” but this formal requirement was deleted in the latter year, probably with the aim of allowing a free hand to the Court in the matter.89 In the first cases in which it was called to give a decision on a request of intervention under the new Rules, the Court included its decision, either rejecting or accepting the intervention, in a judgment.90 However, in both the Cameroon v. Nigeria and the Jurisdictional Immunities cases the decision granting a third State permission to intervene took the form of an order. It is convenient to recall that in its decision on preliminary objections in the first of these cases the Court practically had extended an open invitation to intervene to at least two States having presence in the area in which it was called to carry out a

87  See also the dissenting opinion of judge Donoghue in the Nicaragua v. Colombia case (Application to Intervene (Honduras), Judgment of 4 May 2011, ICJ Rep. 2011, p. 483, par. 32). 88  Scerni’s La Procédure, p. 652. 89  In the two Nuclear Tests cases, all the decisions concerning the requests for intervention by Fiji were made in the form of orders. 90  It has been said that this judgment is not merely declarative, but has a constitutive character, inasmuch as it is what makes the third State a true intervening State (Scerni’s La Procédure, p. 650). However, this may be related to the view that, if admitted to intervene, the third State automatically became a party to the proceedings (ibid., p. 652), a notion that, as discussed above, was later disavowed by the Court.

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Figure 5

maritime delimitation.91 The circumstance also obtained that this was the first case in which none of the main parties to the case objected to the intervention. There is one interesting aspect on which this order differs from the judgment of the chamber admitting Nicaragua’s intervention in the El Salvador/ Honduras case. In the order of 21 October 1999 the dispositif is drafted as follows: “[t]he Republic of Equatorial Guinea is permitted to intervene in the case, pursuant to Article 62 of the Statute, to the extent, in the manner and for the purposes set out in its Application for permission to intervene”.92 In the chamber’s judgment of 13 September 1990, the dispositif reads as follows: “[t]he Republic of Nicaragua is permitted to intervene in the case, pursuant to Article 62 of the Statute, to the extent, in the manner and for the purposes set out in the present Judgment, but not further or otherwise”.93 The Court’s order 91  As recalled by the Court itself in the Nicaragua v. Colombia case (Application to Intervene (Honduras), Judgment of 4 May 2011, ICJ Rep. 2011, p. 433, para. 34). 92  Cameroon v. Nigeria, Application to Intervene, Order of 15 March 1996, ICJ Rep. 1999, p. 1035, emphasis added. 93  El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, p. 137.

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admitting Greece’s intervention in the Jurisdictional Immunities case follows in this regard the model of the 1990 judgment.94 The fundamental circumstance here appears to have been that neither of the parties objected to the application for intervention being granted and that, therefore, under the procedural rule contained in Article 84, para. 2, there was no need for a hearing. Therefore, it can be anticipated that if objections are voiced—in which case a hearing will be mandatory—the decision will be in the form of a judgment. Subsequent Procedure if the Intervention is Admitted According to the Court, Article 85 of the Rules “[d]eals with the procedural consequences of a decision to accede to an application for permission to intervene under Article 62.”95 Therefore, if the third State is admitted to intervene it acquires what a chamber of the Court has called “a right to be heard,” which is regulated by that provision. In order to exercise this right, the intervener is first of all furnished with copies of the pleadings and the annexed documents (Article 85, para. 1), although this will be excused if that State has previously been granted access to those documents under the procedure laid down in Article 53, para. 1 of the Rules.96 The Court can also place limitations upon the exercise of that right. This was done in the El Salvador/Honduras case, given that Nicaragua’s request for intervention referred only to certain aspects of the case. For instance, the intervenor was not to make arguments concerning the interpretation of the special agreement by which the dispute was submitted to adjudication, which it was declared to be res inter alios acta for the third State.97 At the stage of the merits, Nicaragua apparently did not observe these limitations and made “excursions into other aspects of the case,” a fact that was clearly resented by one of the parties to the case. The chamber, however, paid no heed to the complaints voiced in this regard.98

94  Jurisdictional Immunities (Germany v. Italy), Application to Intervene, Order of 4 July 2011, ICJ Rep. 2011, p. 503, para. 34 (1) (dispositif). 95  Indonesia/Malaysia, Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep. 2001, p. 607, para. 92. 96  See Box # 14-8. 97  El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, p. 136, para. 103. 98  El Salvador/Honduras; Nicaragua intervening, Merits, Judgment of 11 Sept. 1992, ICJ Rep. 1992, pp. 580–582, paras. 370–371). See also J.G. Merrills, “Reflections on the Incidental Jurisdiction of the International Court of Justice”, in M.D. Evans (Ed.), Remedies in International Law: The Institutional Dilemma (1998), pp. 59–60; Wellens, “Reflections. . .”, pp. 438–439.

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In the second place, the Court, or its President if the Court is not sitting, is to fix time-limits for what can be considered as an “extension” of the written pleadings stage in the main case, which must take place “prior to the oral proceedings” and consists in the submission of a written statement by the intervening State, followed by written observations on that statement by the parties (Article 85, para. 1). With the aim of interfering as little as possible with the normal conduction of the proceedings in the main case, Article 85, para. 2 requires that both of these time-limits “shall, as far as possible, coincide with those already fixed for the pleadings in the case.”99 There are no formalities prescribed for this written statement, and in particular there is no requirement that it contains submissions. In the first intervention admitted by the present Court, in the El Salvador/Honduras case, Nicaragua included at the end of its statement a set of “conclusions” but this practice was not followed by Equatorial Guinea in the Cameroon v. Nigeria case, nor by Greece in Jurisdictional Immunities.100 Further, in the latter case one of the parties waived its right to file written observations.101 Lastly, the intervening State is also entitled to participate in the oral proceedings and to address the Court “with respect to the subject-matter of the intervention” (Article 85, para. 3). This formula is ample enough to cover all of the substantive aspects concerning the intervention, as they were understood by the Court when admitting the application. Under to the usual practice, the order and number of statements to be made during the oral phase will be determined by the Court, following consultations with the three States involved. Although it is a matter that might be related to the fact that in the three instances of intervention that have taken place so far before the Court the intervention referred only to part of the dispute between the parties, in all cases the intervening State has been called to plead last.

99  Article 53, para. 2 of the Rules (concerning the publicity of the written pleadings as of the date of the opening of the oral proceedings) is now applied as a matter of course to the pleadings exchanged after the intervention is admitted. The Court does this after consulting the three States involved (Cameroon v. Nigeria, Merits, Judgment of 10 Oct 2002, ICJ Rep. 2002, pp. 315–316, para. 23; Jurisdictional Immunities, Merits, Judgment of 3 Feb. 2012, para. 12). 100  El Salvador/Honduras; Nicaragua intervening, Merits, Judgment of 11 Sept. 1992, ICJ Rep. 1992, p. 378, para. 25; Cameroons v. Nigeria; Equatorial Guinea intervening, Merits, Judgment of 10 Oct. 2002, ICJ Rep. 2002, p. 329, para. 28; Jurisdictional Immunities; Greece intervening, Merits, Judgment of 3 Feb. 2012, para. 18). 101  Jurisdictional Immunities; Greece intervening, Merits, Judgment of 3 Feb. 2012, para. 11.

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Legal Effects of the Intervention

A final aspect of the procedural institution of intervention is the effect—if any—of the Court’s decision on the merits upon the State admitted to intervene. A distinction must be made here between intervention as a non-party and intervention as a party. Non-party Intervention First of all, as it was already advanced, the chamber of the Court that first admitted an intervention under Article 62 was emphatic in that the mere fact that a third State is accorded permission to intervene does not make this State a party to the case and that such a State “[d]oes not acquire the rights, or become subject to the obligations, which attach to the status of a party, under the Statute and Rules of Court, or the general principles of procedural law.”102 In its decision on the merits, the chamber reaffirmed this finding in the following terms: The Chamber recalls that this case is the first in the history of the Court and its predecessor in which a third State has been permitted to intervene in accordance with Article 62 of the Statute. (. . .) [a]t the present stage, it appears appropriate for the Chamber to make some observations on the effect of the present Judgment for the intervening State. The terms on which intervention was granted, as stated in paragraph 102 of the 1990 Judgment, were that Nicaragua would not, as intervening State, become party to the proceedings. The binding force of the present Judgment for the Parties, as contemplated by Article 59 of the Statute of the Court, does not therefore extend also to Nicaragua as intervener. (. . .) The Chamber considers that it is correct that a State permitted to intervene under Article 62 of the Statute, but which does not acquire the status of party to the case, is not bound by the Judgment given in the proceedings in which it has intervened. (El Salvador/Honduras: Nicaragua intervening, Merits, Judgment of 11 Sept. 1992, ICJ Rep. 1992, p. 609, paras. 421, 423)

It is significant that two of the five members of the chamber criticized this finding. Judge Oda appended a declaration stating that in his view Nicaragua 102  El Salvador/Honduras, Application to Intervene, Judgment, ICJ Rep. 1990, pp. 135–136, para. 102.

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would certainly be bound by those parts of the judgment concerning the matters on which it was admitted to intervene and judge ad hoc Torres Bernárdez, appended a separate opinion in which he contended that there cannot be rights without correlative obligations, establishing a parallel to the legal consequences of intervention under Article 63.103 In the second place, the chamber mentioned the “[p]rocedural rights acquired by the intervening State as a result of that permission,” but confined these to one single right, i.e., the “right to be heard” that was already mentioned—a right which, in turn, was subject to certain limitations in that case, given that the intervention did not relate to the whole subject-matter of the proceedings. In its decision on the merits, the chamber further underlined that for the intervening State this right “[d]oes not carry with it the obligation of being bound by the decision.”104 As a result of these decisions, the chamber might have significantly narrowed the scope of non-party intervention under Article 62 of the Statute, to the point that it has been said that the position of an intervener is now practically the same of an amicus curiae.105 It is noteworthy that in that case the position of the third State with regard to its status under the judgment to be given by the chamber underwent an important change. In the original application, Nicaragua stated its intention to be bound by the decision but after the chamber’s decision admitting it to intervene only as a non-party to the case, that government declared that it understood that the judgment would not be res judicata for it. The chamber’s decision on the merits referred to this fact but did not extract any significant consequences from it, merely reaffirming its previous findings on the nonbinding effect of the judgment for the intervening State: In its Application for permission to intervene (para. 6) Nicaragua stated that it “intends to subject itself to the binding effect of the decision to be given”, that is to say the decision in the main proceedings, and in its Judgment authorizing the intervention the Chamber formally took note of that statement (ICJ Rep. 1990, p. 109, para. 38). However, in its written statement, presented to the Chamber in its capacity as intervening State, Nicaragua stated its position as follows: 103  El Salvador/Honduras; Nicaragua intervening, Merits, ICJ Rep. 1992, p. 620; ibid., pp. 730–731, para. 208. Judge Oda had also anticipated this posture since the failed intervention by Malta in the Tunisia/Libya Continental Shelf case (Application to Intervene, ICJ Rep. 1981, p. 27, para. 9). 104  El Salvador/Honduras: Nicaragua intervening, Merits, Judgment of 11 Sept. 1992, ICJ Rep. 1992, p. 610, para. 423. 105  Wolfrum, “Intervention. . .”, p. 169.

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“It is the understanding of Nicaragua that as a non-party in this case, it cannot be affected by the decision of the Chamber on the merits. As a non-party Nicaragua is under the protection of Article 59 of the Statute of the Court and the right it has acquired by having its Application admitted is fundamentally the right to be heard by the Chamber. With respect to Nicaragua, the decision to be rendered by the Chamber on the merits will remain res inter alios acta. Nicaragua understands that this is the clear meaning of paragraph 102 of the Judgment of 13 September 1990. . .” (Para. 37.) Nicaragua thus does not now regard itself as obligated to treat the Judgment as binding upon it. The question (. . .) remains of the effect, if any, to be given to the statement made in Nicaragua’s Application for permission to intervene that it “intends to submit itself to the binding effect of the decision to be given”. In the Chamber’s Judgment of 13 September 1990, emphasis was laid on the need, if an intervener is to become a party, for the consent of the existing parties to the case, either consent ad hoc or in the form of a pre-existing link of jurisdiction. This is essential because the force of res judicata does not operate in one direction only: if an intervener becomes a party, and is thus bound by the judgment, it becomes entitled equally to assert the binding force of the judgment against the other parties. A non-party to a case before the Court, whether or not admitted to intervene, cannot by its own unilateral act place itself in the position of a party, and claim to be entitled to rely on the judgment against the original parties. In the present case, El Salvador requested the Chamber to deny the permission to intervene sought by Nicaragua; and neither Party has given any indication of consent to Nicaragua’s being recognized to have any status which would enable it to rely on the Judgment. The Chamber therefore concludes that in the circumstances of the present case, this Judgment is not res judicata for Nicaragua. (El Salvador/Honduras: Nicaragua intervening, Merits, Judgment of 11 Sept. 1992, ICJ Rep. 1992, pp. 609–610, paras. 422, 424)

One right that an intervening State certainly does not acquire is the right to appoint a judge ad hoc in the event that it does not have a judge of its nationality on the bench, under the conditions set out in Article 31 of the Statute.106 In the Tunisia/Libya Continental Shelf case the question arose with regard to 106  For the discussions concerning this question when the first Rules of the PCIJ were drafted see PCIJ 2, pp. 177, 215.

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the first stage in the proceedings on intervention, i.e. the interlocutory proceedings on the admissibility of the request, as a consequence of Malta’s communication to the Court that it not only intended to appoint a judge ad hoc but also that in its view the main parties to the case appeared to be “in the same interest” for the purposes of applying Article 31, para. 5 of the Statute. The Registrar informed Malta in a laconic manner that the Court decided the question as follows: The Court, sitting without the participation of the judges ad hoc, decided on 7 March 1981 that, on their face, the matters which were the subject of the letter of 2 March 1981 did not at that time fall within the ambit of Article 31 of the Statute of the Court; that a State which seeks to intervene under Article 62 of the Statute has no other right than to submit a request to be permitted to intervene, and has yet to establish any status in relation to the case; that pending consideration of and decision on a request for permission to intervene, the conditions under which Article 31 of the Statute may become applicable do not exist; and therefore that the letter of 2 March 1981 being in the circumstances premature, the matters to which it referred could not be taken under consideration by the Court at that stage of the proceedings. (Tunisia/Libya Continental Shelf, Application to Intervene, Judgment of 14 April 1981, ICJ Rep. 1981, p. 6, para. 8)

In the El Salvador/Honduras case, the question of the appointment of a judge ad hoc was further complicated by the fact that the case was being dealt with by an ad hoc chamber of the Court. After the Court decided that it was for the chamber to deal with the request for intervention, Nicaragua clearly put on hold its initial requests concerning participation in the decision-making leading to the composition of the chamber, which could very well have included a hypothetical right to appoint a judge ad hoc. However, after the chamber decided that by being admitted to intervene Nicaragua would not become a party to the case, the question became clearly moot. Interestingly, in the first occasion in which a third State requested for permission to intervene as a party, it reserved its right to appoint a judge ad hoc.107 The question became devoid of purpose when the request was denied.

107  Requête a fin d’intervention du Gouvernment de la République du Honduras dans l’Affaire du Differénd Territorial et Maritime (Nicaragua c. Colombie), 10 juin 2010, para. 37.

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With regard to the second stage, that is, the merits stage at which the third State takes part in the proceedings in the conditions set out in Article 85 of the Rules, the chamber’s conclusion that the intervening State “[d]oes not acquire the rights . . . which attach to the status of a party, under the Statute and Rules of Court, or the general principles of procedural law” clearly disposes of the question, at least as far as non-party intervention is concerned. Were the Court to authorize in the future an intervention as a party, the issue of applying the provisions of Article 31 could easily arise. It remains to be seen how the Court will handle this question.108 What can be concluded from this survey concerning the legal effects of Article 62 intervention? First, that a State who is admitted to intervene as a non-party acquires “a right to be heard” within the limits set by the Court when authorizing the intervention, but that this is the full extent of the rights that it can derive from that situation. Second, that this right does not comport any obligation of the intervening State to abide by the judgment, which thus does not have the force of res judicata for it. It would appear, then, that with regard to the final decision the intervening State would be in essentially the same position as any non-intervening State, in that under Article 59 of the Statute it would be entitled to consider the decision as res inter alios acta. This is a questionable proposition, at the very least, because the notion that a State may derive rights from a judicial decision without assuming any corresponding obligations is difficult to grasp. The chamber of the Court that was called to rule for the first time on the legal effects of the admission of an intervention under Article 62 appears to have moved between two opposite extremes, that of considering the intervening State as a new party to the case—therefore bound by the decision in exactly the same conditions as the main parties—and that of considering it as a non-party—therefore not bound by any part of the decision. However, it ignored a third possibility altogether, accurately noted in judge Oda’s early dissents on the matter of intervention: that the intervening State, without becoming a full party to the case, cannot escape the binding force of the judgment, which should apply to it to the extent that its intervention has been allowed.109 In this fashion, the situation of a third State admitted to intervene 108  All the same, it has been suggested that the Court should amend its Rules in order to enlarge the scope of the procedural rights which are attached to the status of an intervener, given that the 1978 reform took place when there was still uncertainty as to the precise function of intervention under Article 62 (Palchetti, “Opening. . ., p. 155). 109  Tunisia/Libya Continental Shelf, Application to Intervene (Separate Opinion of Judge Oda, ICJ Rep. 1981, p. 27, para. 9) and Malta/Libya Continental Shelf, Application to Intervene

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under Article 62 would come close to that of a third State intervening under Article 63, upon whom “[t]he construction given by the judgment will be equally binding,” without it becoming party to the case by virtue of this fact.110 In light of the above, when assessing the connection that States possess with a given case that comes before the Court one could distinguish among different circles of States for whom, under Article 59 of the Statute, the judgment is res inter alios acta, given that it will be res judicata exclusively for the parties to the case: – The third States who request and are granted permission to intervene as non-party interveners. Under Article 62 they are given the right to present to the Court their views with regard to the protection of their interests of a legal nature that may be affected by the decision but under the Court’s case law they are not bound by the decision; – The third States who request permission to intervene but whose request is denied by the Court. In this cases, the Court will “remain cognizant” of the position of the third State, as stated before it during the incidental proceedings on the admissibility of the intervention.111 – The third States who refrain altogether from intervening under Article 62, whether their legal interests are or are not affected by the decision.112 If this is so, as things stand today the only material difference between intervening and refraining from intervening in a case would consist in that the (Dissenting Opinion of Judge Oda, ICJ Rep. 1984, p. 108, para. 35). See also S. Oda, “The International Court of Justice viewed from the Bench (1976–1993)”, RC, vol. 244 (1993-VII), pp. 84–85. This was essentially the position of Nicaragua prior to the 1990 decision by the chamber authorizing the intervention. See on this Riquelme Cortado, “La intervencion. . .”, p. 128. 110  This is the solution adopted for the International Tribunal for the Law of the Sea. See Article 31, para. 3 of the Statute of this organ and a comment in R. Wolfrum, “Intervention in the Proceedings. . .”, pp. 170–171. For other examples see M. Al-Qahtani, “The Status of Would-Be Intervening States before the International Court of Justice and the Application of Res Judicata”, LPICT, vol. 2 (2003), pp. 280–281. See also Article 17 of the 1999 Resolution of the Institute of International Law, transcribed in Box # 14-9. 111  Indonesia/Malaysia, Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep. 2001, p. 607, para. 94. Similar findings were included in the decisions rejecting the requests for intervention by Malta (ICJ Rep. 1981, p. 20, para. 35) and by Italy (ICJ Rep. 1984, pp. 26–27, para. 43) in the Continental Shelf litigations. 112  To this we may add a fourth circle of States: those who refrain from intervening and by doing so prevent the Court from exercising jurisdiction in the case, given that their legal interests “would not only be affected by a decision, but would form the very subjectmatter of the decision.” See below, 14, e).

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intervening State is given the chance to make its views known to the Court in the course of the proceedings. In contrast, the non-intervening State would simply remain as a distant spectator of the drama enacted before the Court, much as it happens with most States in regard to virtually all of the contentious cases handled by the Court.113 Rather paradoxically, it follows that, as a result of the evolution of the Court’s case law and practice under Article 62 of the Statute, from the point of view of the would-be intervener the institution of intervention can be considered to be more attractive today than it once was, inasmuch as it is far less risky than the intervention that was envisaged before the decisions made by a chamber and by the Court from the early 1990s. Indeed, in the event that a third State feels concerned that it has certain interests of a legal nature that may be affected by a decision in a case to which it is not a party, it may avail itself of the opportunity afforded to it by Article 62 in order to inform the Court of the contents and scope of those interests and even if the request is not entertained, its main purpose of furnishing the Court with detailed information concerning its take on the case will to a large extent have been achieved.114 On the other hand, if the application succeeds and the third State is granted the right to intervene in the proceedings, it will be heard further by the Court without acquiring any obligations vis-à-vis the main parties to the case and without assuming any commitment of being bound by the decision of the Court. This State’s legal situation with regard to the Court’s judgment will be essentially the same as that of those States who refrained from intervening altogether, with the significant difference that they were never afforded the opportunity to plead their cases before the Court. Intervention as a Party In its judgment with regard to the Honduran request to intervene in the Nicaragua v. Colombia case the Court noted that with its application for permission to intervene Honduras “primarily sought to be permitted to intervene in the pending case as a party, and that if the Court did not accede to that request, it wished, in the alternative, to be permitted to intervene as a non-party.”115 113  It has been suggested as an alternative that the Court could adopt a procedure for allowing third States to submit amicus curiae briefs, as it happens in other international tribunals (Palchetti, “Opening. . .”, pp. 165–181). Arguably, there is no real need for this, given that the limited effects accorded to intervention under Article 62 in the El Salvador/Honduras case have already turned it into an amicus of sorts (Jennings, “The Role. . .”, p. 8). 114  Rosenne, “Some Reflections. . .”, p. 81; Merrills, “Reflections. . .”, pp. 61–62. 115  Nicaragua v. Colombia, Application to Intervene (Honduras), Judgment of 4 May 2011, ICJ Rep. 2011, p. 429, para. 18.

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The Court also put on record that the object of the intervention differed markedly according to which of these two situations might obtain: if Honduras were to be admitted as a party, that object would be “to settle the maritime boundary between itself and the two States parties to the case.”116 If it were admitted only as a non-party, however, the object of Honduras’s intervention would be merely “to protect its rights and legal interests and to inform the Court of the nature of these, so that they are not affected by the future maritime delimitation between Nicaragua and Colombia.”117 This aspect of the case was examined by judge Donoghue in the dissenting opinion she appended to the judgment, in which she remarked in general terms that with regard to the object of an intervention request there were fundamental differences between intervention as a non-party and intervention as a party. She stated in this regard: [t]he object of . . . non-party intervention is in sharp contrast to intervention as a party, in which an object of the would-be intervenor must . . . be to bind itself to the decision in the main case and to bind the original parties to it and thus to affect its interest of a legal nature quite directly. (. . .) One object of intervention that is unacceptable is that of introducing a new dispute into the case. (. . .) If a third State considers that it has a dispute that is closely related to the case in chief, it can file a separate case, which could then potentially be joined to the original case as a matter of procedure, pursuant to Article 47 of the Rules of Court. (. . .) The bar on the introduction of a new dispute would seem to have little bearing on an application for intervention as a non-party. Even if an applicant for non-party intervention seeks to apprise the Court of interests that may not otherwise be before the Court, the non-party intervenor is not in a position to ask the Court to decide on its related but distinct interest and thus is not adding a new dispute to a case. By contrast, an applicant to intervene as a party would be bound by the resulting Judgment (at least as to some parts of it), so there is more reason in the context of proposed intervention as a party to look closely at whether the would-be intervenor seeks to introduce a new dispute. (Nicaragua v. Colombia, Application to Intervene (Honduras), Dissenting Opinion of Judge Donoghue ICJ Rep. 2011, p. 482, paras. 27–29)

116  Ibid. 117  Ibid.

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Judge Donoghue also made a persuasive case for the possibility that in the future the Rules of Court give a differential treatment to the two types of intervention, providing for more flexibility as regards procedure in the case of nonparty intervention.118 It will be recalled that one of the main aspects of the dispute between Nicaragua and Colombia referred to the delimitation of maritime spaces between these two countries. The Court recalled that Honduras was seeking permission to intervene as a party “in order to achieve a final settlement of the dispute between itself and Nicaragua, including the determination of the tripoint with Colombia.”119 This gave it an excuse to elaborate on the legal effects of a decision admitting a third State to intervene as a party: [i]f it is permitted by the Court to become a party to the proceedings, the intervening State may ask for rights of its own to be recognized by the Court in its future decision, which would be binding for that State in respect of those aspects for which intervention was granted, pursuant to Article 59 of the Statute.

(Nicaragua v. Colombia, Application to Intervene (Honduras), Judgment of 4 May 2011, ICJ Rep. 2011, p. 432, para. 29)

The State admitted to intervene as a party thus becomes bound by the judgment but not in its entirety, which means that the decision will be binding upon it according to different conditions than those applicable to the main parties: the decision will bind the intervening party solely “in respect of those aspects for which intervention was granted.” Judge Donoghue was more guarded about this question. She underlined the very different ways in which the two forms of intervention affect the legal rights and obligations of the original parties and pointed out that, while a party-intervener is bound by the decision, “it is not clear to what extent the intervener would be bound, that is, whether to the entire decision or only to a part thereof that pertains especially to its interests.”120

118  Nicaragua v. Colombia, Application to Intervene (Honduras), Dissenting Opinion of Judge Donoghue, ICJ Rep. 2011, p. 484, paras. 34–35. 119  Nicaragua v. Colombia, Application to Intervene (Honduras), Judgment of 4 May 2011, ICJ Rep. 2011, p. 430, para. 22. 120  Nicaragua v. Colombia, Application to Intervene (Honduras), Dissenting Opinion of Judge Donoghue, ICJ Rep. 2011, p. 483, para. 30, in fine.

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This is in keeping with the view of the chamber in the El Salvador/Honduras case that a request for intervention does not need to refer to the case in its entirety and can affect only parts of it.121 In confirming this stance, the Court added in its decision concerning the request by Costa Rica to intervene as a non-party that “[w]here the Court permits intervention, it may limit the scope thereof and allow intervention for only one aspect of the subject-matter of the application which is before it.”122 The conclusion is then that when the final judgment is given it will create three separate regimes or sets of rights and obligations, namely, (i) Rights and obligations between the original parties; (ii) Rights and obligations between party A and the intervening party; and (iii) Rights and obligations between party B and the intervening party.

Box # 14-9 The 1999 Resolution of the Institute of International Law (I) At its 1999 session of Berlin, the Institut de Droit international discussed the question of “Judicial and Arbitral Settlement of International Disputes Involving More Than Two States,” on the basis of a report presented by the Rapporteur of the Eleventh Commission, Rudolph Bernhardt. The Institute adopted a resolution on the topic in which a special section was included on the question of intervention. The provisions in this section directly concerned with Article 62 intervention read as follows: III. Intervention (. . .) 8. Intervention by a third State does not mean that this State becomes a full party to the proceedings. Parties and interveners have different positions and functions which cannot be combined without special agreements. (. . .) 10. Intervention under Article 62 of the Statute of the International Court of Justice and similar texts in other statutes requires the existence

121  El Salvador/Honduras), Application to Intervene, Judgment of 13 Sep. 1990, ICJ Rep. 1990, p. 116, para. 58 and p. 135, para. 102. 122  Nicaragua v. Colombia, Application to Intervene (Costa Rica), Judgment of 4 May 2011, ICJ Rep. 2011, pp. 361–362, paras. 42–43.

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of an interest of a legal nature on the part of the intervening State. That means that rights or obligations of this State under public international law can be affected by the decision. Whether the State can claim such an interest and whether it may be affected by the decision of the court or tribunal has to be determined by the court or tribunal according to the specific features of each case. When the court or tribunal has found a legal interest to exist, the State applying for intervention should be admitted as intervener. 11. Intervention does not require the existence of a jurisdictional link between the parties to the dispute and the third State beyond the provisions of the Statute of the International Court of Justice and similar provisions in other relevant texts allowing intervention. 12. A State may apply to intervene on the merits as well as in proceedings confined to matters of jurisdiction and admissibility; in exceptional cases, it may also apply to intervene in other incidental proceedings. 13. When a State considers intervening, it may request the court or tribunal to provide it with copies of the pleadings. The court or tribunal shall decide after consulting the parties. 14. Should the relevant instrument provide for the appointment of a judge ad hoc, this does not apply to an intervening State. 15. The decision concerning the admissibility of the intervention is binding on the parties and the intervening State. 16. The intervening State has the right to take part in the written and oral proceedings. The extent of such participation depends on the relevant rules of the court or tribunal and on the need to conduct the proceedings in an effective and equitable manner. 17. The decision of the court or tribunal is binding on the intervening State to the extent of the admitted intervention. To the same extent, the decision is binding on the principal parties in their relations with the intervening State. 18. With the consent of all parties to the case, an intervening State may become a full party to the proceedings with the corresponding rights and obligations.123

123  Text in IDI Annuaire, vol. 68-II (1998), pp. 376 ff. See also R. Bernhardt, “Judicial and Arbitral Settlement of International Disputes Involving more than Two States, ReportFinal Version”, ibid., vol. I. pp. 60 ff.

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In general, this resolution confirms the findings by the Court on several aspects of the institution of intervention. The following aspects, on which it apparently goes beyond those findings, deserve mention: In the first place, in paragraph 10 of the Resolution an effort is made to give some content to the vague notion of “interest of a legal nature” present in Article 62 of the Statute. By providing that “rights or obligations of th[e third] State under public international law can be affected by the decision,” the Resolution stresses that only one interest that is truly juridical—in the sense that involves rights and obligations under international law—warrants a request for permission to intervene. This may be difficult to reconcile with the chamber’s dictum that “[I]n order to be permitted to intervene, a State does not have to show that it has rights which need to be protected, but merely an interest of a legal nature which may be affected by the decision in the case.” (El Salvador/Honduras, Application to Intervene, Judgment of 13 Sep. 1990, ICJ Rep. 1990, p. 129, para. 87). Paragraph 10 also states that if the third State is successful in showing the existence of a legal interest its intervention “should be admitted.” This is perhaps too extreme, for it is entirely possible that the Court finds that, even in the presence of such an interest, a request for intervention lacks a proper object, and it would be entirely justified in rejecting it. Secondly, paragraph 12 endorses the idea that intervention under Article 62 is not confined to the merits of a case but extends also to proceedings on jurisdiction and admissibility and, in exceptional cases, to other incidental proceedings. This is still entirely theoretical because all the attempted interventions thus far have been related to the merits, which explains that most of the Court’s findings as to the existence of a legal interest have been made by reference to the decision on the merits.124 Finally, in paragraph 17 the Institut is clearly parting ways with the Court with regard to the question of the effects of a judgment on the intervening State. By agreeing that “The decision of the court or tribunal is binding on the intervening State to the extent of the admitted intervention,” its members appear to have embraced the “third way” advocated by Judge Oda that has so far eluded the Court.125 Significantly, although it is a truism to say that a decision

124  El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, p. 118, para. 62. 125  See text to note 110 above.

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by the Court is binding upon the parties to the case, this provision underlines that if a third party is admitted to intervene the binding force of the decision for the principal parties extends also to “their relations with the intervening State.”

f)

Cases of Non-intervention: The Monetary Gold Doctrine126

In addition to situations in which a third State invokes Article 62 and requests to be admitted to intervene, it is also possible for a dispute to be of such a nature that without the participation of that State the Court feels incapable of exercising its jurisdiction. Put in this way the question relates to the Court’s jurisdiction but concerns not so much the existence of such jurisdiction as the conditions for its exercise. Judge Jennings aptly noted that where third States’ rights are directly involved in the very issues submitted to the Court by the parties, the problem of the latter’s competence with regard to the merits arises not when the concerned State intervenes but when it does not.127 This has sometimes been called by commentators the “essential party doctrine,” developed after the Court’s decision in the Monetary Gold case, a complex litigation that was brought to the Court in 1953 by Italy against France, the United Kingdom and the United States. 126  J. Dugard, “1966 and All That. The South West Africa Judgment Revisited in the East Timor Case”, African Journal of International and Comparative Law, vol. 8 (1996), pp. 555–563; S. Torres Bernárdez, “The new theory of “Indispensable Parties” under the Statute of the International Court of Justice”, in K Wellens (Ed.), International Law: Theory and Practice, Essays in Honour of Eric Suy (1998), pp. 737–749; B. Ajibola, “The International Court of Justice and Absent Third States”, African YIL, vol. 4 (1997), pp. 85 ff.; C. Espaliú Berdud, Desarrollos Jurisprudenciales y Práctica Reciente en la Jurisdicción Contenciosa de la Corte Internacional de Justicia (2000), pp. 45–62; C. Jiménez Piernas, “Fundamento, concepto y naturaleza jurídica de la doctrina del oro amonedado (tercero indispensable) en la jurisprudencia internacional”, in E. Pérez Vera, A.P. Abarca Junco et al (eds.) Soberanía del Estado y Derecho Internacional: Homenaje al Profesor Juan Antonio Carrillo Salcedo (2005), vol. 2, pp. 733–756; Sir E. Lauterpacht, “Principles of Procedure in International Litigation”, RC, vol. 345 (2009), pp. 465–479; A. Orakhelashvili, “The Competence of the International Court of Justice and the Doctrine of the Indispensable Party: from Monetary Gold to East Timor and beyond”, Journal of International Dispute Settlement, vol. 2 (2011), pp. 373 ff. 127  Malta/Lybia Continental Shelf, Application to Intervene, Dissenting Opinion of Judge Jennings, ICJ Rep. 1984, p. 156, para. 24.

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In that case one of the parties objected to the jurisdiction of the Court on the grounds that a State absent from the proceedings, Albania, was directly interested, because in the application the Court was essentially invited to pass upon the international responsibility of Albania. According to the objection, as long as Albania abstained from taking part in the proceedings the Court could not adjudicate upon the dispute. The Court upheld the objection, basing itself on the principle of consent, because it found that part of the dispute that it was called to settle did effectively involve Albania, a State that had not accepted the Court’s jurisdiction in this case “either expressly or by implication.” The Court found as follows: The first Submission in the Application centres around a claim by Italy against Albania, a claim to indemnification for an alleged wrong. Italy believes that she possesses a right against Albania for the redress of an international wrong which, according to Italy, Albania has committed against her. In order, therefore, to determine whether Italy is entitled to receive the gold, it is necessary to determine whether Albania has committed any international wrong against Italy, and whether she is under an obligation to pay compensation to her; and, if so, to determine also the amount of compensation. In order to decide such questions, it is necessary to determine whether the Albanian law of January 9th, 1945, was contrary to international law. In the determination of these questions—questions which relate to the lawful or unlawful character of certain actions of Albania vis-à-vis Italy—only two States, Italy and Albania, are directly interested. To go into the merits of such questions would be to decide a dispute between Italy and Albania. The Court cannot decide such a dispute without the consent of Albania. But it is not contended by any Party that Albania has given her consent in this case either expressly or by implication. To adjudicate upon the international responsibility of Albania without her consent would run counter to a well-established principle of international law embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its consent. (Monetary Gold, Preliminary Question, Judgment of 15 June 1954, ICJ Rep. 1954, p. 32)

However, the Court was also called upon to examine the “interests of a legal nature” that Albania might possess in the case, given that during the proceedings it was argued that that government could have intervened under Article 62 and decided not to do so. The Court answered by stating that this was not exactly the case contemplated in Article 62, in which a third State merely

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considers that it possesses “an interest of a legal nature which may be affected by the decision in the case,” but clearly represented a limit-situation in which the legal interests of the third State “[w]ould not only be affected by a decision, but would form the very subject-matter of the decision.”128 In cases of this nature, the principle of consent prevails, and overrides every other consideration, including those derived from the rule on the relative effects of the Court’s decisions, embodied in Article 59 of the Statute: It has been suggested that Albania might have intervened. The provisions of Article 62 of the Statute give to a third State, which considers that it “has an interest of a legal nature which may be affected by the decision in the case”, the right to request permission to intervene. It has been contended that the inclusion of the provisions for intervention indicate that the Statute contemplates that proceedings may continue, notwithstanding that a third State may have an interest of a legal nature which might enable it to intervene. It is argued that the fact that a third State, in this case Albania, may not choose to intervene should not make it impossible for the Court to give judgment on rights as between the Parties. Albania has not submitted a request to the Court to be permitted to intervene. In the present case, Albania’s legal interests would not only be affected by a decision, but would form the very subject-matter of the decision. In such a case, the Statute cannot be regarded, by implication, as authorizing proceedings to be continued in the absence of Albania. It is also contended that any decision of the Court on the questions submitted by Italy in her Application will be binding only upon Italy and the three respondent States, and not upon Albania. It is true that, under Article 59 of the Statute, the decision of the Court in a given case only binds the parties to it and in respect of that particular case. This rule, however, rests on the assumption that the Court is at least able to render a binding decision. Where, as in the present case, the vital issue to be settled concerns the international responsibility of a third State, the Court cannot, without the consent of that third State, give a decision on that issue binding upon any State, either the third State, or any of the parties before it. The Court accordingly finds that, although Italy and the three respondent States

128  However, the view has been expressed that in the circumstances of this case it would have been more accurate to hold that the Court would have been obliged to settle a dispute additional to the one before the Court, and on account of which no jurisdiction existed (Hoogh, “Intervention. . .”, p. 37, note 107).

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have conferred jurisdiction upon the Court, it cannot exercise this jurisdiction to adjudicate on the first claim submitted by Italy.

(Monetary Gold, Preliminary Question, Judgment of 15 June 1954, ICJ Rep. 1954, pp. 32–33)

In a subsequent case the Court summarized this doctrine with a one-sentence formula: “[t]he Court will not rule on an issue when in order to do so the rights of a third party that is not before it, have first to be determined.”129 In light of ulterior developments in the case law concerning the scope and effects of Article 62, it is interesting to note that, had Albania filed a request for permission to intervene, it is unlikely that the jurisdictional obstacle just described would have been removed, because merely by being granted permission to intervene Albania would not have become a party to the case. The core of the essential party doctrine is that, in order to adjudicate a dispute in which the legal interests of a third State meet the test of forming “the very subjectmatter of the decision,” the consent of that State is required, but this surely means consent to become a party to the case, and not merely a willingness to intervene as a non-party. The rationale behind the Monetary Gold doctrine is connected with the fact that the Court lacks the power to summon a State before it, for, as it was explained in particularly precise terms by judge Shahabuddeen: Reflecting a view generally held in municipal law, Article 59 of the Statute of the Court provides that “[tlhe decision of the Court has no binding force except between the parties and in respect of that particular case”. But it does not follow that the Court is free to determine a dispute between parties in entire disregard of the implications of the decision for the legal position of a non-party. Under one form or another of an “indispensable parties” rule, the problem involved is solved in domestic legal systems through an appropriate exercise of the power of joinder. The Court lacks that power; and the right of intervention, or to institute separate legal proceedings where possible, is not always a sufficient safeguard. Hence, when situations arise in which the requested judgment would in fact, even though not in law, amount to a determination of the rights and obligations of a non-party, the Court is being asked to exercise jurisdiction over a State without its consent. Monetary Gold Removed from Rome in 1943 says it cannot do that. (East Timor, Separate Opinion of Judge Shahabuddeen, ICJ Rep. 1996, p. 119)

129  Nicaragua v. Honduras, Judgment of 8 Oct. 2007, ICJ Rep. 2007, p. 756, para. 312.

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The concept of the “essential party”—that of a third State who, by not taking part in a case as a party, precludes the Court from exercising a jurisdiction that it may otherwise posses with regard to a given dispute between two other States—has been invoked, unsuccessfully, as a ground for objecting to the jurisdiction of the Court in a number of cases. In Nicaragua, for instance, the United States argued that the Court could not exercise jurisdiction in the absence of several States who were not parties to the case. In answering this contention, the Court stated that it could not find in its Statute traces of any “indispensable parties” rule, and concluded that “[t]he circumstances of the Monetary Gold case probably represent the limit of the power of the Court to refuse to exercise its jurisdiction.”130 The Court remarked that an “indispensable parties” rule “[w]ould only be conceivable in parallel to a power, which the Court does not possess, to direct that a third State be made a party to proceedings.”131 This dictum is a piece in a chain of reasoning that includes two additional elements, namely, (one) That there is no doubt that in appropriate circumstances the Court will apply the Monetary Gold precedent; and (two) That “[o]ther States which consider that they may be affected are free to institute separate proceedings, or to employ the procedure of intervention.”132 Nicaragua itself invoked the Monetary Gold precedent in connection with its own request to intervene in the El Salvador/Honduras case. The chamber dealing with the case remarked that Article 62 lays down “[a] less stringent criterion” than that doctrine and eventually found that Nicaragua complied with the requirements in Article 62 but that the Monetary Gold standard was not applicable.133 130  Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 431, para. 88. 131  Ibid. The notion that the Court lacks the power to enjoin third States to come before it can also be found in Malta/Libya Continental Shelf (Application to Intervene, Judgment of 21 March 1984, ICJ Rep. 1984, p. 25, para. 40) and Phosphates in Nauru (Preliminary Objections, Judgment of 26 June 1992, ICJ Rep. 1992, p. 53, para. 260). 132  Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 431, para. 88. 133  El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, pp. 114–116, paras. 52–56 and p. 122, para. 73. A good discussion of the Nicaragua and El Salvador/Honduras cases in the context of third-party rights can be found in the dissenting opinion by judge Schwebel in the Phosphates in Nauru case (Preliminary Objections, ICJ Rep. 1992, pp. 332–337). Another possible case of relevance in this context is Pakistani POW, between Pakistan and India, in which one of the judges expressed the view that the Court could not exercise jurisdiction in the absence of Bangladesh (Interim Protection, Separate Opinion of Judge Nagendra Singh, ICJ Rep. 1973, p. 332).

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In any case, the doctrine has been applied by the Court in only one occasion since its inception: in the East Timor case the Court refrained from entertaining an application filed by Portugal against Australia because of the absence of Indonesia, and declared that this approach was valid even if the alleged breaches concerned rights erga omnes: The Court has carefully considered the argument advanced by Portugal which seeks to separate Australia’s behaviour from that of Indonesia. However, in the view of the Court, Australia’s behaviour cannot be assessed without first entering into the question why it is that Indonesia could not lawfully have concluded the 1989 Treaty, while Portugal allegedly could have done so; the very subject-matter of the Court’s decision would necessarily be a determination whether, having regard to the circumstances in which Indonesia entered and remained in East Timor, it could or could not have acquired the power to enter into treaties on behalf of East Timor relating to the resources of its continental shelf. The Court could not make such a determination in the absence of the consent of Indonesia. However, Portugal (. . .) maintains, in effect, that the rights which Australia allegedly breached were rights erga omnes and that accordingly Portugal could require it, individually, to respect them regardless of whether or not another State had conducted itself in a similarly unlawful manner. In the Court’s view, Portugal’s assertion that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable. (. . .) However, the Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature of the obligations invoked, the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case. Where this is so, the Court cannot act, even if the right in question is a right erga omnes. (East Timor, Judgment of 30 June 1995, ICJ Rep. 1995, p. 102, paras. 28–29)134

134  The question of the rights of third States absent from a litigation is discussed at length in several of the individual opinions appended to the judgment. See the separate opinions of judges Shahabuddeen (ICJ Rep. 1996, pp. 119–127) and Ranjeva (ibid., pp. 129–132) and the dissenting opinions of judge Weeramantry (ibid., pp. 156–169) and judge ad hoc Skubiszewski (ibid., pp. 237–245).

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Box # 14-10 The 1999 Resolution of the Institute of International Law (II) The resolution adopted by the Institut de Droit international in 1999 mentioned in the previous box contains also a section on what it calls “Indispensable Parties.” It reads as follows: 19. If the rights or obligations of a third State are the very subject-matter of a dispute submitted by other States to a court or tribunal and if a decision on that dispute is not possible without deciding on the rights or obligations of the third State, the court or tribunal cannot take such a decision unless that third State becomes a party to the proceedings. This third State is an “indispensable party” to the proceedings. 20. If the rights or obligations of the parties to the proceedings can be separated from those of a third State, the court or tribunal may decide on that part of the dispute relating to these rights or obligations. 21. All the States involved may agree that the “indispensable party” becomes a full party to the proceedings with the corresponding rights and obligations, in order to enable the court or tribunal to decide the entire dispute. In this part of its 1999 resolution the Institut expounds the essence of the Monetary Gold doctrine and attempts to give a few pointers as to the manner to put it into practice. In paragraph 19, for instance, two conditions are identified for the doctrine to apply, namely: (one) That the rights or obligations of a third State are the very subject-matter of a dispute submitted to the Court by other States (the Monetary Gold formula verbatim); and (two) That a decision on that dispute is not possible without deciding on the rights or obligations of the third State. When these two circumstances obtain, the consequence is that the Court cannot take a decision “unless that third State becomes a party to the proceedings.” Significantly, the resolution states very firmly that the third State will then be an “indispensable party” to the proceedings, in apparent disregard to the Court’s equally firm dictum that “There is no trace, either in the Statute or in the practice of international tribunals, of an “indispensable parties” rule.” (Nicaragua, Jurisdiction and Admissibility, Judgment of 26 Nov. 1984, ICJ Rep. 1984, p. 431, para. 88).

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Paragraph 21 refers to the possibility that “[a]ll the States involved” agree that the third State becomes a full party to the proceedings, in order to enable the Court to decide the entire dispute. That expression should, evidently, include the third State, without whom the Court cannot decide the dispute.

The decision of the Court in the East Timor case also brought clarity on another possible scenario of non-intervention, in which there are indeed interests of a legal nature of third States that may be affected in the case (as foreseen in Article 62) but they do not go so far as constituting “the very subject-matter of the decision” (the Monetary Gold standard). In these cases, the absence of any third party is not necessarily an obstacle for the Court’s exercise of jurisdiction, because the third State’s interests may be protected by other means, i.e. by the application of Article 59 of the Statute and by the caution that the Court itself will show when disposing of the claims of the parties. By the same token, it appears that the Court on its own may find, in a given set of circumstances, that those means of protection are not sufficient and that it must refrain from exercising jurisdiction. This first occasion on which the jurisprudence referred to this more limited aspect of the rule was in the Burkina Faso/Mali case, in which a chamber of the Court dealing with the drawing of a land boundary line admitted in general terms the possibility of a finding according to which “[c]onsiderations related to the need to safeguard the interests of the third State concerned require it to refrain from exercising its jurisdiction to determine the whole course of the line.”135 In the event, the chamber found that this situation did not obtain in the case at hand and proceeded to exercise its jurisdiction with no limitations derived from the presence of a third State. The passage quoted suggests, however, that it cannot be entirely ruled out that in some cases the Court may find cogent reasons for refraining from exercising its jurisdiction on the basis of the role to be played by the interests of a State who is absent from the proceedings. That this is not always so, however, was articulated in the Phosphates in Nauru case, and was reiterated in forceful terms in the East Timor case, to distinguish a situation in which the Court is entitled to act because the interests of a third State which is not a party to the case are sufficiently protected by Article 59 of the Statute of the Court, from proceedings in which the “essential 135  Burkina Faso/Mali, Merits, Judgment of 22 Dec. 1986, ICJ Rep. 1986, p. 578, para. 48 (emphasis added).

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party” principle is applicable. In Nauru the Court discarded the application of the Monetary Gold doctrine and remarked that “[a] finding by the Court regarding the existence or the content of the responsibility attributed to Australia by Nauru might well have implications for the legal situation of the two other States concerned, but no finding in respect of that legal situation will be needed as a basis for the Court’s decision on Nauru’s claims against Australia.”136 In East Timor, for its part, although the Court did apply the Monetary Gold doctrine, it found expedient to underline also another aspect of the problem: The Court emphasizes that it is not necessarily prevented from adjudicating when the judgment it is asked to give might affect the legal interests of a State which is not a party to the case. (East Timor, Judgment of 30 June 1995, ICJ Rep. 1995, pp. 104–105, para. 34)137

Subsequently, in the Cameroon v. Nigeria case, the Court applied the same rule with regard to the legal interests of two States who were not parties to the case: Equatorial Guinea, who eventually requested and was granted the status of non-party intervener, and Sao Tome and Prince, who abstained altogether from intervening and thus remained entirely alien to the proceedings. The Court first referred to this point in its judgment on preliminary objections, in which it found the following: [T]he Court recalls that it has always acknowledged as one of the fundamental principles of its Statute that no dispute between States can be decided without their consent to its jurisdiction (. . .) Nevertheless, the Court has also emphasized that it is not necessarily prevented from adjudicating when the judgment it is asked to give might affect the legal interests of a State which is not a party to the case; and the Court has 136  Phosphates in Nauru, Preliminary Objections, Judgment of 26 June 1992, ICJ Rep. 1992, pp. 261–262, para. 55. This was reaffirmed in the Armed Activities (DRC v. Uganda) case, in which the Court made an express finding that this jurisprudence was applicable (Merits, Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 238, para. 204). This has been interpreted as the Court “retreating” from the Monetary Gold principle and instead relying on Nauru (Armed Activities II (DRC v. Rwanda), Jurisdiction and admissibility, Separate Opinion of Judge ad hoc Dugard, ICJ Rep. 2006, p. 90, para. 11). See also Muller’s Procedural Developments, LPICT, vol. 5 (2006) 198–200. 137  Emphasis added.

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only declined to exercise jurisdiction when the interests of the third State “constitute the very subject-matter of the judgment to be rendered on the merits”. (. . .) [T]he Court cannot therefore, in the present case, give a decision on the eighth preliminary objection as a preliminary matter. (. . .) At the same time, the Court cannot rule out the possibility that the impact of the judgment required by Cameroon on the rights and interests of the third States could be such that the Court would be prevented from rendering it in the absence of these States, and that consequently Nigeria’s eighth preliminary objection would have to be upheld at least in part. Whether such third States would choose to exercise their rights to intervene in these proceedings pursuant to the Statute remains to be seen. (Cameroon v. Nigeria, Preliminary Objections, Judgment of 11 June 1998, ICJ Rep. 1998, p. 312, para. 79 and p. 324, para. 116)

In its decision on the merits the Court returned to the issue, applying the essence of the rule laid out in the Phosphates in Nauru and East Timor cases.138 In light of this decision, it can be concluded that in certain types of cases—disputes on maritime delimitation, at any rate—the presence of third States in the geographical area in which the decision will have effects imposes certain limitations on the Court’s jurisdiction.139 The Court has declared that it will always be “mindful” of them: The jurisdiction of the Court is founded on the consent of the parties. The Court cannot therefore decide upon legal rights of third States not parties to the proceedings. In the present case there are States other than the parties to these proceedings whose rights might be affected, namely Equatorial Guinea and Sao Tome and Principe. Those rights cannot be determined by decision of the Court unless Equatorial Guinea and Sao Tome and Principe have become parties to the proceedings. Equatorial Guinea has indeed requested—and has been granted—permission to intervene, but as a non-party intervener only. Sao Tome and Principe has chosen not to intervene on any basis. The Court considers that, in 138  In contrast, in the Armed Activities (DRC v. Uganda) case, the Court declined to apply this rule (Merits, Judgment of 19 Dec. 2005, ICJ Rep. 2005, pp. 237–238, paras. 203–204). See also Interim Accord, Judgment of 5 Dec. 2011, ICJ Rep. 2011, pp. 659–661, paras. 39–44 and a comment in Bordin’s Procedural Developments, LPICT, vol. 11 (2012), pp. 332–335. 139  Evans, “Intervention. . .”, in passim.

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particular in the case of maritime delimitations where the maritime areas of several States are involved, the protection afforded by Article 59 of the Statute may not always be sufficient. In the present case, Article 59 may not sufficiently protect Equatorial Guinea or Sao Tome and Principe from the effects—even if only indirect—of a judgment affecting their legal rights. (. . .) It follows that, in fixing the maritime boundary between Cameroon and Nigeria, the Court must ensure that it does not adopt any position which might affect the rights of Equatorial Guinea and Sao Tome and Principe. (. . .) In view of the foregoing, the Court concludes that it cannot rule on Cameroon’s claims in so far as they might affect rights of Equatorial Guinea and Sao Tome and Principe. Nonetheless, the mere presence of those two States, whose rights might be affected by the decision of the Court, does not in itself preclude the Court from having jurisdiction over a maritime delimitation between the Parties to the case before it, namely Cameroon and Nigeria, although it must remain mindful, as always in situations of this kind, of the limitations on its jurisdiction that such presence imposes. (Cameroon v. Nigeria: Equatorial Guinea intervening), Merits, Judgment of 10 Oct. 2002, ICJ Rep. 2002, pp. 420–421, para. 238)140

Box # 14-11 Inadequacy of protection under Article 59: A new requirement for Article 62 intervention? With regard to the request to intervene by Costa Rica in the Nicaragua v. Colombia case, Nicaragua opposed the request and contended essentially that Costa Rica was sufficiently protected by Article 59 of the Statute and by the practice of the Court in maritime delimitation cases in that third States’ interests are left unaffected (Nicaragua v. Colombia, Application to Intervene (Costa Rica), Judgment of 11 May 2011, ICJ Rep. 2011, p. 370, para. 78). Colombia, for its part, argued that Article 62 coexists in the Statute with Articles 59 and 63 and that each of these provisions has its own role to play, and underlined that, while

140  The question of the rights of third States in a maritime delimitation case arose also in the cases Nicaragua v. Honduras (Judgment of 8 Oct. 2007, ICJ Rep. 2007, pp. 756–759, paras. 312–319) and Nicaragua v. Colombia (Judgment of 19 Nov. 2012, paras. 160–165 and 224–228).

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it agreed that Article 59 affords some protection, it believed that States that comply with the requirements of Article 62 should be allowed to intervene.141 The Court found that in cases of this nature a third State’s interest will, as a matter of principle, be protected by the Court, even if it does not define with specificity the geographical limits of the area where that interest may come into play. It emphasized that in the Cameroon v. Nigeria case judgment it “had occasion to indicate the existence of a certain relationship between Articles 62 and 59 of the Statute” and that this protection is to be accorded to any third State, whether intervening or not, stressing also that this was exactly the case with regard to that judgment, in which Article 59 offered protection to the legal interests not only of Equatorial Guinea, which had intervened as a non-party, but also of São Tomé and Príncipe, which had not ( Judgment of 11 May 2011, ICJ Rep. 2011, p. 372, paras. 86–87, quoting from Cameroon v. Nigeria, Merits, Judgment of 10 Oct. 2002, ICJ Rep. 2002, p. 421, para. 238). As a condensation of sorts of these developments, the Court found that: [t]o succeed with its request, Costa Rica must show that its interest of a legal nature in the maritime area bordering the area in dispute between Nicaragua and Colombia needs a protection that is not provided by the relative effect of decisions of the Court under Article 59 of the Statute, i.e., Costa Rica must fulfil the requirement of Article 62, paragraph 1, by showing that an interest of a legal nature which it has in the area “may be affected” by the decision in the case. (Nicaragua v. Colombia, Application to Intervene (Costa Rica), Judgment of 11 May 2011, ICJ Rep. 2011, p. 372, para. 87)

This aspect of the decision was criticized by several members of the Court. Judge Al-Khasawneh, for instance, remarked that in maritime delimitation cases it was commendable that the Court declared itself to be ready to shield the interests/rights of third States by stopping its delimitation short of those areas where third States have rights, but emphasized that this was proper only in cases where no request to intervene by potentially affected States has been made. In cases in which a request to intervene is made, however, “there is no justification for falling back on the argument that as a matter of principle the Court will protect the interests of third States even if the area where they come

141  Nicaragua v. Colombia, Application to Intervene (Costa Rica), Judgment of 11 May 2011, ICJ Rep. 2011, p. 370, para. 84.

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into play is only roughly indicated.” (Dissenting Opinion of Judge Al-Khasawneh, ICJ Rep. 2011, p. 377, para. 10). He added: [t]he conflation of the protection under Article 59—which can, at the utmost, shield third States from the effects of res judicata—and the protection under Article 62—which operates before the merits and hopes to give the potentially affected State a fair hearing so as to best ensure that its interests are protected—has been responsible above any other factor for the limited scope and impact of the institution of intervention. This is regrettable, for the protection under Article 59 cannot substitute for protection under Article 62. The protection under Article 62 is not just quantitatively different from that afforded by Article 59: it is of a different nature and operates in a different manner, giving the Court powers of an essentially procedural and preventative nature. (Nicaragua v. Colombia, Application to Intervene (Costa Rica), Dissenting Opinion of Judge Al-Khasawneh, ICJ Rep. 2011, p. 377, para. 11)

Judge Al-Khasawneh also found unpersuasive and having “no foundation in law or in logic” the Court’s argument that a would-be intervener must show that its interest of a legal nature needs protection beyond and above that provided under Article 59. He added that it was “somewhat ironic” that the judgment argues in paragraph 26 for a less stringent test for what constitutes an interest of a legal nature—as opposed to a right proper—but then in effect requires a higher standard of proof than that based on the adequacy of the protection provided under Article 59 (Ibid., p. 378, paras. 14–15).142 Similarly, judges Cançado Trindade and Yusuf, jointly dissenting, expressed strong views concerning this question: [w]e cannot agree with the view of the Court that the aims which Article 62 of the Statute was established to achieve can be attained through the exercise of some kind of “judicial due diligence” with respect to thirdparty interests of a legal nature, without affording a hearing to the wouldbe intervenor in the proceedings on the merits (paragraph 89 of the Judgment). Such an approach voids Article 62 of its object and substance, which is to enable the intervenor, if granted permission, to inform the

142  This last point is also developed in the joint dissenting opinion of judges Cançado Trindade and Yusuf (ICJ Rep. 2011, p. 406, para. 13).

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Court of what it considers as its interests of a legal nature so that they may not be affected without a hearing. By affirming that it is able to protect the interests of a legal nature of would-be intervenors without affording them a hearing in the proceedings on the merits, the Court is closing the door to future applications for intervention, especially in territorial and maritime delimitations, and depriving Article 62 of its purpose. (Nicaragua v. Colombia, Application to Intervene (Costa Rica), Dissenting Opinion of Judges Cançado Trindade and Yusuf, ICJ Rep. 2011, pp. 401–402, para. 2)143

These judges also criticized what they consider to be the introduction of a new standard of proof envisaged in paragraph 87 of the judgment, which they find to be entirely alien to Article 62: [w]e consider it important to emphasize here that the requirement of a standard of proof based on the adequacy of the protection provided by “the relative effect of decisions of the Court under Article 59 of the Statute” cannot be founded in the wording of Article 62(1) of the Statute. This does not only constitute a new, and hitherto unheard of, requirement under Article 62(1) of the Statute or Article 81(2) of the Rules, but it also appears to contradict the statement by the Court in paragraph 27 of the Judgment that “[t]he decision of the Court granting permission to intervene can be understood as a preventive one, since it is aimed at allowing the intervening State to take part in the main proceedings in order to protect an interest of a legal nature which risks being affected in those proceedings”. (Nicaragua v. Colombia, Application to Intervene (Costa Rica), Dissenting Opinion of Judges Cançado Trindade and Yusuf, ICJ Rep. 2011, p. 410, para. 21)

Further Reading

Leading Works

C. Chinkin, Third Parties in International Law (1993) R.M. Riquelme Cortado, La Intervención de Terceros Estados en el Proceso Internacional (1993) S. Rosenne, Intervention in the International Court of Justice (1993) 143  See also, in the same dissenting opinion, pp. 403–404, paras. 5–7 and pp. 411–412, paras. 24–28.

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General Works and Treatises on the Court



Articles and Monographs

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C. Chinkin, “Article 62”, in Oxford Commentary, pp. 1529–1572 Fitzmaurice’s Law and Procedure, vol. 2, pp. 550–554 Guyomar’s Commentaire, pp. 526–556 Hudson’s PCIJ, pp. 419–424, 543 Mani’s Adjudication, pp. 249–275 Rosenne’s Law and Practice, vol. 3, pp. 1481–1555 Rosenne’s Procedure, pp. 173–182 Scerni’s La Procédure, pp. 648–652 Thirlway’s Law and Procedure, Part 11, BYIL, vol. 71 (2000), pp. 83–90; Part 13, ibid., vol. 74 (2003), pp. 30–78

Ch.F. Amerasinghe, Jurisdiction of Specific International Tribunals (2009), pp. 131–143 B.I. Bonafé, “Interests of a Legal Nature Justifying intervention before the ICJ”, LJIL, vol. 25 (2012), pp. 739–757 G. Cellamare, “Intervento in causa davanti alla Corte internazionale di Giustizia e ‘lien juridictionnel’ tra interveniente e parti originaire del processo”, RDI, vol. 66 (1983), pp. 291–305 C. Chinkin, “Third-party Intervention before the International Court of Justice”, AJIL, vol. 80 (1986), pp. 495–531 L.F. Damrosch, “Multilateral Disputes”, in L.F. Damrosch, et al. (Eds.), The International Court of Justice At A Crossroads (1987), pp. 376–400 E. Decaux, “L’intervention”, in Société Française pour le Droit International, Colloque de Lyon, La Juridiction internationale permanente (1987), pp. 219–255 T.O. Elias, “The Limits of the Right of Intervention in a Case before the International Court of Justice”, in Festschrift fur Hermann Mosler (1983), pp. 159–172 W.M. Farag, L’intervention devant la Cour permanente de Justice internationale (articles 62 et 63 du Statut de la Cour) (1927) D.W. Greig, “Third Party Rights and Intervention before the International Court”, Virginia JIL, vol. 32 (1991–1992), pp. 285–376 Y. Iwasawa, “Third Parties Before International Tribunals: The ICJ and the WTO”, in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge Shigeru Oda, vol. 2 (2002), pp. 871–892 Ph. C. Jessup, “Intervention in the International Court”, AJIL, vol. 75 (1981), pp. 903–909 E. Jiménez de Aréchaga, “Intervention under Article 62 of the Statute of the International Court of Justice”, in Festschrift fur Hermann Mosler (1983), pp. 453–465 T. Licari, “Intervention under Article 62 of the Statute of the International Court of Justice”, Brooklyn JIL, vol. 8 (1982), pp. 267–287

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R. St. Macdonald & V. Hughes, “Intervention before the International Court of Justice”, African Journal of International and Comparative Law, vol. 5 (1993), pp. 1 ff. A.Madakou, Intervention before the International Court of Justice (1988) J.T. Miller, “Intervention on Proceedings before the International Court of Justice”, in L. Gross, (Ed.) The Future of the International Court of Justice, vol. 2 (1976), pp. 550–571 G. Morelli, “Fonction et object de l’intervention dans le process international”, in Essays in International Law in Honour of Judge Manfred Lachs (1984), pp. 403–408 S.D. Murphy, “Amplifying the World Court’s Jurisdiction through Counter-Claims and Third-Party Intervention”, George Washington ILR, vol. 33 (2000–2001), pp. 5–30 S. Oda, “Intervention in the International Court of Justice: Articles 62 and 63 of the Statute”, in Festschrift fur Hermann Mosler (1983), pp. 639–648 J.M. Ruda, “Intervention before the International Court of Justice”, in V. Lowe & M. Fitzmaurice (Eds.), Fifty Years of the International Court of Justice—Essays in Honour of Sir Robert Jennings (1996), pp. 487–502 J.-M. Sorel & F. Poirat (Eds.), Les procédures incidents devant la Cour internationale de Justice: exercice ou abus de droits? (2001), pp. 45–48, 87–95 G. Sperdutti, “Note sur l’intervention dans le Proces International”, AFDI, vol. 30 (1984), pp. 273–281 G. Sperdutti, “L’intervention de l’Êtat tiers dans le proces international: une orientation nouvelle”, AFDI, vol. 31 (1985), pp. 286–293 J. Stanczyk, “Permissibility of Intervention under Article 62 of the Statute of the International Court of Justice”, Polish YIL, vol. 16 (1987), pp. 121 ff. S. Torres Bernárdez, “Bilateral, Plural and Multipartite Elements in International Judicial Settlement”, in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge Shigeru Oda, vol. 2 (2002), pp. 995–1008

Chapter 15

Intervention under Article 63 of the Statute According to the Court, “intervention based on Article 63 of the Statute is an incidental proceeding that constitutes the exercise of a right.”1 This form of intervention has its roots in The Hague Conventions for the Pacific Settlement of International Disputes and its direct forerunners are Articles 56 of the 1899 Convention and 84 of the 1907 Convention.2 It is premised on the objective fact that the third State is a party to a multilateral convention that is also binding on the principal parties to the case and the interpretation of which is at stake in the proceedings and not—like in the case of intervention under Article 62 of the Statute—on a third State’s subjective belief that it possesses a legal interest that might be affected by a decision of the Court. In the final analysis this is a difference in degree and not in kind, because, as noted by Hudson, Article 63 could be regarded as a special application of the general rule laid down in Article 62, since the fact that a State is a party to a convention to be construed may be regarded as establishing ipso facto that State’s legal interest.3 Sir Robert Jennings, for his part, expressed the following thoughts on the matter: Article 63, of course, gives a right of intervention, without the need of any permission from the Court, to any States parties to a convention the construction of which “is in question” in a case. (. . .) The party to a convention the construction of which “is in question” in a case, so clearly has an “interest of a legal nature which may be affected by the decision in the case”, that a right of intervention is given by the Statute itself without need of a special decision by the Court. (Malta/Libya Continental Shelf, Application to Intervene, Dissenting Opinion of Judge Jennings, ICJ Rep. 1984, p. 156, paras. 25, 26)

1  Whaling in the Antarctic, Declaration of Intervention, Order of 6 Feb. 2013, par. 7. 2  For a detailed historical outline of the drafting of Article 63 see the dissenting opinion of judge Oda in the Malta/Libya Continental Shelf case (Application to Intervene, ICJ Rep. 1984, pp. 100–102, paras. 22–26). 3  Hudson’s PCIJ, p. 422.

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In the same line of thought judge Mbaye pointed out that in the case of intervention under Article 63 the third State’s interest of a legal nature is presumed, by virtue of it being a party to the multilateral treaty in question.4 An early commentator of the practice of the PCIJ went on to state that this is a legal presumption juris et de jure that constitutes the most important feature of intervention under Article 63.5 Therefore, in cases coming under the purview of Article 63, all of the States parties to the convention the construction of which may be at issue possess ipso facto the right to intervene in the proceedings. As the Permanent Court put it: [w]hen the object of the suit before the Court is the interpretation of an international convention, any State which is a party to this convention has, under Article 63 of the Statute, the right to intervene in the proceedings instituted by others. (SS “Wimbledon”, Intervention, Judgment of 28 June 1923, PCIJ A 1, p. 12)

The Court clarified that, in accordance with the terms of Article 63, the object of this intervention is necessarily limited as it consists of allowing the third State to present to the Court “its observations on the construction of [the] convention [in question].”6 This type of intervention has traditionally been called “automatic intervention” or, more commonly, “intervention as of right,” as opposed to the entirely discretionary intervention provided for in Article 62 of the Statute, in which the third State who considers that it has an interest of a legal nature that may be affected by the decision only has the right to request permission to intervene.7 Nevertheless, this terminology is not entirely correct and may actually be misleading, because, as will be seen shortly, the Court has decided that the right that certain States derive from Article 63 is not absolute and that its exercise is always contingent on a decision by the Court on the admissibility of the intervention.

4  Malta/Libya Continental Shelf, Application to Intervene, Separate Opinion of Judge Mbaye, ICJ Rep. 1984, pp. 40, 43 and 46. 5  W.M. Farag, L’intervention devant la Cour permanente de Justice internationale (Articles 62 et 63 du Statut de la Cour) (1927), p. 117. 6  Whaling in the Antarctic, Declaration of Intervention, Order of 6 Feb. 2013, par. 7. 7  Monetary Gold, Preliminary Question, Judgment of 15 June 1954, ICJ Rep. 1954, p. 32.

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Box # 15-1 Intervention under Article 63: A review of the practice Article 63 intervention has been attempted in five instances before the Court— one before the PCIJ and four before the ICJ—but in only three of them it has been admitted. The first is the SS “Wimbledon” case, before the PCIJ. In this case, between the Principal Allied Powers (France, Great Britain, Italy and Japan) and Germany, the government of Poland filed a request for permission to intervene under Article 62. However, in the course of the proceedings it appeared to change its mind and come to terms with a suggestion by the British agent, according to whom the intervention could fit better under the provisions of Article 63, inasmuch as it referred to the construction of the provisions of the Treaty of Versailles concerning the Kiel Canal, to which all of the States concerned were parties. After hearing the parties and the third State, the Court registered this coincidence of views and treated Poland’s request as a genuine “Declaration of Intervention” under Article 63.8 In the Haya de la Torre case, the sequel to the Asylum case between Colombia and Peru, the government of Cuba filed a “Memorandum” concerning the inter­pretation of the Havana Convention of 1928 and declared its intention to intervene in the proceedings under Article 63. It appears that Cuba’s intervention took place at the instigation of one of the parties, which is on record as having formally requested to the Registrar “to give effect to the provisions of Article 63 of the Statute.”9 Not surprisingly, the other party objected to the intervention and requested the Court to reject it. This gave rise to interlocutory proceedings consisting of a special hearing that took place immediately before the opening of the oral proceedings on the merits, in which the third State was invited to take part. The Court declared the intervention admissible but placed precise limits on its exercise, because it found that large portions of Cuba’s Memorandum (which it expressly decided to treat as the declaration provided for in Article 63) referred to questions already resolved in its previous judgment in the case.10

8  SS Wimbledon, Intervention, Judgment of 28 June 1923, PCIJ A1, pp. 12–13. For comments see Hudson’s PCIJ, pp. 422–423; Verzjil’s Jurisprudence, vol. 1, pp. 20–23. 9  Haya de la Torre, Judgment of 13 June 1951, ICJ Rep. 1951, p. 73. Although the Registrar is bound by Article 63 to notify all States parties to the convention that is “in question” in any given case, it appears that sometimes the States parties themselves raise the issue. For another example see ICJ Yearbook (1971–1972), p. 123. 10  Haya de la Torre, Judgment of 13 June 1951, ICJ Rep. 1951, pp. 74, 76–77.

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The Nicaragua case, for its part, marked the first time that the Court rejected an intervention under Article 63. The government of El Salvador filed a declaration of intervention when this case was at the jurisdiction and admissibility phase and the Court, after appraising itself of the views (in writing) of the parties to the main case, decided that the intervention was inadmissible “inasmuch as it relates to the current phase of the proceedings brought by Nicaragua against the United States of America.”11 The order of the Court recites two main reasons supporting that finding, both of them attributable to the State attempting to intervene: on one hand, that El Salvador’s declaration “addresses itself also in effect to matters, including the construction of conventions, which presuppose that the Court has jurisdiction to entertain the dispute between Nicaragua and the United States of America and that Nicaragua’s Application against the United States of America in respect of that dispute is admissible;” and, on the other hand, that in its declaration El Salvador “reserves the right in a later substantive phase of the case to address the interpretation and application of the conventions to which it is also a party relevant to that phase.”12 The most controversial aspect of this episode was perhaps the decision of the Court not to hold a hearing on the admissibility of the declaration of intervention, in effect denying El Salvador the possibility of making its voice heard. This question, involving a questionable reading of Article 84 of the Rules, will be discussed in more detail below.13 In the Nuclear Tests (Request for Examination) case, the governments of the Solomon Islands, the Federated States of Micronesia, the Marshall Islands and Samoa filed both requests for permission to intervene under Article 62 and declarations of intervention under Article 63. With regard to the latter, they contended that the construction of a regional convention, the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, signed at Noumea on 24 November 1986, was in question. In a decision rendered on 22 September 1995 the Court dismissed the case altogether and

11  Nicaragua, Declaration of Intervention, Order of 4 Oct. 1984, ICJ Rep. 1984, p. 216. 12  Ibid. 13  See Box # 15-6. Despite the rejection of the intervention, when this case reached the merits phase the Court made repeated references to El Salvador’s declaration. This has prompted an author to contend that this case provides “[a] particularly striking example of an unsuccessful intervention having effects at a later stage” (J.G. Merrills, “Reflections on the Incidental Jurisdiction of the International Court of Justice”, in M.D. Evans (Ed.), Remedies in International Law: The Institutional Dilemma (1998), p. 64).

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included in the dispositif a decision dismissing also the above-mentioned declarations of intervention.14 Finally, on 20 November 2012 New Zealand filed a declaration of intervention in the Whaling in the Antarctic (Australia v. Japan) case, basing itself on its condition as a party to the International Convention for the Regulation of Whaling. After ascertaining the view of the parties and registering that none of them objected, the Court declared this declaration to be admissible (Order of 6 Feb. 2013).

Article 63 of the Statute provides that whenever the construction of a multilateral convention is in question, the Registrar shall notify “forthwith” all States parties to that convention and that every State so notified has the right to intervene in the proceedings. According to this language, the exercise of the right of intervention is subject to the Registrar having notified the States parties to a multilateral convention that the construction of that instrument “is in question” in proceedings before the Court. Under paragraph 2 of that provision, only these States have the right to intervene in the proceedings, which gives the (inaccurate) impression that if for any reason the Registrar fails to notify a given State it would be deprived of that right. This is corrected to a large extent by Article 82, para. 3 of the Rules, a provision that grants any State “[t]hat considers itself a party to the convention the construction of which is in question but has not received the notification referred to in Article 63 of the Statute” the right to file a declaration of intervention in the same conditions as those States so notified.15 On the other hand, in the course of advisory proceedings it cannot be ruled out that the construction of a multilateral convention may be “in question” and thus the States parties to such instrument should be entitled to exercise the rights conferred upon them by Article 63 of the Statute. In the early practice of the ICJ, this circumstance prompted the Court to make the n ­ otification

14  Nuclear Tests-Request for Examination, Order of 22 Sept. 1995, ICJ Rep. 1995, pp. 306–307, para. 67. 15  This protection for States who are not notified by the Registrar was incorporated into the Rules in the 1936 reform as paragraph 2 of Article 66. That reform, in turn, followed a practice adopted for the first time in the Free Zones case (C. Chinkin, “Article 63,” in Oxford Commentary, MN 29, pp. 1585–1586). See also the comments by the PCIJ in 1936 in connection to the Phosphates in Morocco case (PCIJ E 16, pp. 199–200).

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ordered in Article 63 in certain advisory cases.16 In subsequent cases in which the request for an advisory opinion has referred to the interpretation of the provisions of a multilateral treaty the Court has rather considered that the parties to those treaties are “likely to be able to furnish information on the question,” as provided for in Article 66, para. 2 of the Statute, and has therefore informed them by means of a “special and direct communication” that they are entitled to take part in the proceedings.17 Essentially the same circumstance obtains in the many advisory cases in which the construction of the constitutive instrument of an international organization is discussed and the Court decides that all the States members of that body fall under the provision of Article 66, para. 2 of the Statute. Although the examples are numerous, Article 63 has not been cited in any of these cases and thus far no State has presented a declaration of intervention founded on that provision within the framework of an advisory case.

Box # 15-2 Article 63 intervention with regard to the construction of the Charter and the Statute? Can the Charter of the United Nations and the Statute of the Court be considered as conventions the construction of which may be in question in a case before the Court, within the meaning of Article 63? In other words, when the interpretation of provisions of the Charter or the Statute form part of the ­subject-matter of a dispute properly brought before the Court, do all States parties to those instruments have the right to intervene in the proceedings? The decision of the Court in the Nicaragua case with regard to the attempted intervention by El Salvador has been read by some as a signal that the Court might feel disinclined to answer these questions in the affirmative. In any case, the question remains theoretical because no State has thus far seen fit to invoke Article 63 in this context. It is to be noted that the Registry does not routinely address the notification provided for in Article 63 to the States parties in the Charter and the Statute

16  Peace Treaties, Order of 7 Nov. 1949, ICJ Rep. 1949, p. 230 ( first phase); Order of 5 May 1950, ICJ Reports 1950, p. 122 (second phase); Reservations, Advisory Opinion of 28 May 1951, ICJ Rep. 1951, p. 17. 17  Convention on Privileges and Immunities of the UN, Advisory Opinion of 15 Dec. 1989, ICJ Rep. 1989, p. 178, para. 3; Immunity from Legal Process, Advisory Opinion of 29 April 1999, ICJ Rep. 1999, p. 64, para. 3.

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because under Article 40, para. 3 those States are informed as a matter of course of the institution of proceedings in every case.18 In this case, however, Article 82, para. 2 of the Rules, according to which a State has the right to intervene whether or not it has been notified under Article 63, would seem to be applicable. It may also be submitted that in most of the cases in which jurisdictional questions arise, the construction of key provisions of the Statute will per force be “in question” within the meaning of Article 63. Arguably, all States parties to the Statute possess a right to intervene in that regard. An in-depth discussion of the legal aspects involved can be found in the dissenting opinion appended by judge Schwebel to the Court’s order rejecting El Salvador’s intervention. The following excerpts are of note: B. Intervention in Respect of Construction of the United Nations Charter Since the provisions and purpose of Article 63 suggest no reason why a State should not be permitted to intervene over the construction of the United Nations Charter, the burden of showing that intervention to construe articles of the Charter is impermissible rests on those who so maintain. No arguments in support of such an exceptional conclusion have come to light. On the contrary, the understanding of the Court and of its Registry appears to have been that intervention in construction of the Charter is appropriate, and that such intervention may be made at a jurisdictional stage. The pertinent provision of Article 63 is unqualified: whenever the construction of “a convention” is in question, the right to intervene arises. The United Nations Charter is not only a convention, it is the most important existing component of the body of conventional international law. (. . .) Moreover, the Rules of Court which are in force give no suggestion that the term “the convention” as used in Article 82 does not embrace the United Nations Charter. The practice of the Court in implementation of Article 63 of the Statute and its pertinent Rules supports two conclusions: first, that intervention under Article 63 may occur in a jurisdictional phase of a case; and second, that such intervention may concern the construction of the Statute of the

18  This is done under the cover of “an administrative decision of [the] Court taken early in its history under the Presidency of Judge Basdevant, and affirmed by President Winiarski” (Nicaragua, Declaration of Intervention, Dissenting Opinion of Judge Schwebel, ICJ Rep. 1984, p. 233).

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Court and of the United Nations Charter (referring here to the practice followed in the Corfu Channel and the Anglo-Iranian Oil Co. cases) C. Intervention in Respect of Construction of the Statute While the foregoing analysis and exposition of practice indicate that a State may exercise its right to intervene under Article 63 at a jurisdictional phase of the proceedings over the construction of the Court’s Statute as well as the United Nations Charter, distinctions have been raised between the two which may merit consideration. In the first place, it is argued that, under Article 1 of its Statute, the Court “shall function in accordance with the provisions of the present Statute”; that, therefore, all the Court does engages the provisions of the Statute; and that it cannot be that, by functioning under its Statute, the Court furnishes ground for States to intervene under Article 63 on questions that may arise in respect of those functions. This argument is true as far as it goes, but that is not far. Article 63 is not concerned with the application of provisions of a convention, including the Statute, but their construction, i.e., interpretation, and questions of interpretation of the Statute are not posed by its routine application. Moreover, it has been established in the practice of the Court that Article 63 comes into play only if a provision of a convention is “at issue” in a case. If a provision of the Statute is not incidentally engaged or mentioned, but is at issue in a case between two States, then there is no reason why a third State cannot intervene over the construction of that provision. And, apart from Article 36, other provisions of the Statute are not frequently at issue in a case. In the second place, it is argued, as a consequence of the first argument, that, if Article 63 meant that, whenever the construction of the Statute of the Court arises in a case, notification shall be made under Article 63, there would be no purpose in Article 40, pursuant to which the Registrar forthwith communicates applications in cases to all States entitled to appear before the Court. Article 63 assumes exceptional notification in some cases, not notification in every case as under Article 40. But treating the Statute as a convention within the meaning of Article 63 requires notification under that Article in every case. The answer to this argument is that the purpose of notification under Article 40 is simply to inform States that an application has been made and of what the terms of that application are. The purpose of n ­ otification under Article 63 is to alert States to the fact that the construction of a convention to which they are party may be at issue in the case before the

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Court. Such construction may be pleaded not only in the application but otherwise, as in preliminary objections. Treating the Statute as a convention within the meaning of Article 63 does not require that the exceptional notification of Article 63 shall be made to the States parties to the Statute in every case. It only requires that notification be made—or it only permits intervention under Article 63—in those exceptional cases where the pleadings in a case reveal that the construction of a provision of the Statute is at issue. In the third place, it is observed that the Registrar has not routinely sent notifications under Article 63 whenever Article 36 or 38 or other Articles of the Statute of the Court are invoked in a case. That is true, but it is not probative, for the reason that the Registrar does not send notices under Article 63 in respect of construction of the Charter, a practice which appears to have included the Statute. The apprehension has been expressed that, if the Statute were to be treated as a convention within the meaning of Article 63, third States party to the Statute would be entitled to intervene in a case whenever there is a jurisdictional dispute between the Parties; and the result could be a cascade of interventions. That does not follow, if the jurisdictional dispute concerns—as it often does—not the terms of the Statute but of other conventions or of declarations under the Optional Clause. But in any event, the Court’s Judgment in the Corfu Channel case which has been quoted above surely is open to the interpretation that the Statute is a convention within the meaning of Article 63; that Judgment was rendered 36 years ago; and in that time, only one State (Cuba) has, before the instant case, sought to intervene under Article 63 at all, and El Salvador is the first to seek to intervene at a jurisdictional stage in construction of the Statute. Thus there hardly seems ground to be concerned about a flood of interventions. It may be added that the Statute affirms that the International Court of Justice is established by the Charter of the United Nations as the principal judicial organ of the United Nations (Art. 1). The Charter provides that the Statute of the Court, which is annexed to the Charter, “forms an integral part of the present Charter” (Art. 92). If a State has the right to intervene under Article 63 of the Statute on a question of construction of the Charter, does it not follow that it equally has the right to intervene on a question of the construction of that Statute which is an integral part of the Charter? (Nicaragua, Declaration of Intervention, Dissenting Opinion of Judge Schwebel, ICJ Rep. 1984, pp. 236–240)

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It should also be kept in mind that—like it happens in cases of intervention under Article 62—the States to be notified under Article 63 are the States that are parties to the convention whose construction may be in question, r­ egardless of their status with regard to the Court’s Statute. Theoretically, then, a State who is not a party to the Statute or has not been granted access to the Court in another manner (and thus is prevented from suing or being sued), could still take part in a case, as an intervening State, exclusively on the basis that it is a party to a multilateral treaty whose interpretation is being discussed in proceedings before the Court. In relation to this, Hudson asserted very firmly that a State to whom Article 63 is applicable must be considered as a State “entitled to appear before the Court,” within the meaning that this expression has in Article 66 of the Statute.19

Box # 15-3

2005 Amendment to Article 43 of the Rules of Court

On 29 September 2005 the Court announced that it decided to amend Article 43 of the Rules, which deals with the matter of notifications to be made to non‑­ parties to a case who are parties to a convention the construction of which may be in question in the proceedings. Two new paragraphs were added and the Registry explained that this was done “in order to cover the case of international organizations parties to such conventions and to establish an appropriate procedural framework for this purpose.” The amendments were described as follows in Press Release 2005/19 of 29 September 2005: Amendments made to Article 43 Article 43, paragraph 1, as amended, repeats unchanged the current text of Article 43. This lays down the procedure to be followed to implement Article 63, paragraph 1, of the Statute, which refers only to States; that paragraph reads: “Whenever the construction of a convention to which States other than those concerned in the case are parties is in question, the Registrar shall notify all such States forthwith”.

19  Hudson’s PCIJ, p. 394 and note 50.

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Article 43, paragraph 2, as amended, provides that from now on: “Whenever the construction of a convention to which a public international organization is a party may be in question in a case before the Court, the Court shall consider whether the Registrar shall so notify the public international organization concerned”; an organization thus notified may then submit its observations on the matter. Paragraph 3 states that the procedure to be followed in submitting those observations is that described in Article 69, paragraph 2, of the Rules of Court, which reads as follows: “When a public international organization sees fit to furnish, on its own initiative, information relevant to a case before the Court, it shall do so in the form of a Memorial to be filed in the Registry before the closure of the written proceedings. The Court shall retain the right to require such information to be supplemented, either orally or in writing, in the form of answers to any questions which it may see fit to formulate, and also to authorize the parties to comment, either orally or in writing, on the information thus furnished.”20 This amendment calls for some observations. In the first place, it is to be welcomed, as it responds to the growing trend in international treaty practice of public international organizations actively participating in the treaty-making process. If those organizations become parties to collective or multilateral conventions, it is only appropriate that they should be entitled to make known their interpretation of their clauses, an interpretation that can be as valid and influential as that of any State. In the second place, the effects of the amendment are limited because the only right that international organizations acquire is the procedural right to be heard in cases in which the construction of a multilateral convention to which they are parties is in question. Under Article 69, para. 2 of the Rules those organizations already had the right to furnish to the Court, on their own initiative, “information relevant to a case before the Court,” and therefore the only difference that the new rule brings about is that from now on those organizations—if the Court finds it fit, on a case-by-case basis—will be alerted by

20  For comments see Muller’s Procedural Developments, LPICT, vol. 4 (2005), pp. 507–509; Dupuy, “Article 34”, Oxford Commentary, MN 2, pp. 587–588.

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the Registrar that the construction of a convention to which they are parties may be at issue, so that they can consider giving effect to Article 69, para. 2 of the Rules of Court. It is clear that the amendment did not—and could not— grant these organizations a right of intervention analogous to that possessed by States under Article 63, something that would obviously require an amendment to the Statute. In the third place, it is clear that the international organization that chooses to avail itself of the right provided for in the new paragraphs 2 and 3 of Article 43 does not become bound by the construction given by the judgment, because, here again, this would require an amendment of Article 63 of the Statute.

a) Admissibility When a third State decides to invoke Article 63 of the Statute it does not submit a request for permission to intervene, but rather a “Declaration of Intervention” that the Court should be bound to entertain. Article 63 states that every State party to a convention whose construction is in question possesses “[t]he right to intervene in the proceedings” and includes no limitation whatsoever on the exercise of this right, something that would lead one to think that it is not for the Court to reject a declaration of intervention that has been properly filed. Nevertheless, the Rules of Court have included, at least since 1936, a proviso granting to the Court the power to decide whether a declaration of intervention under Article 63 is admissible. Article 84, para. 1 of the current Rules thus states that the Court “shall decide whether an application for permission to intervene under Article 62 of the Statute should be granted, and whether an intervention under Article 63 of the Statute is admissible.”21 Significantly, in the only instance on intervention that the Permanent Court was called upon to handle (before this concept on admissibility had been incorporated into the Rules), it acted very cautiously and limited itself to record that the third State intended “[t]o avail itself of the right to intervene conferred upon it by Article 63 of the Statute” and (in the dispositif ) to “accept” the intervention.22 It is submitted that this is quite far from declaring the intervention formally admissible, which is what the Court did for the first time in the Haya de la Torre case. 21  Emphasis added. 22  SS “Wimbledon”, Intervention, Judgment of 28 June 1923, PCIJ A 1, p. 13.

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In this case, the Court undertook (under the new rule on admissibility) a detailed examination of the declaration of intervention submitted by the Cuban government. While it found large portions of the declaration to be inadmissible because they referred to matters that the Court had already decided with the force of res judicata—therefore, finding that those portions did “not satisfy the conditions of a genuine intervention”—23 it decided to admit the intervention, albeit reduced in a certain way, and operating within precise limits. Years later, the Court recalled as follows the essence of its treatment of Cuba’s intervention in this case: The present Court was first led to address itself to the problems of intervention in 1951 in the context of Article 63 of the Statute when Cuba, as a party to the Havana Convention of 1928 on Asylum, filed a declaration of intervention in the Haya de la Torre case (. . .). In that case the Court stressed that, under Article 63, intervention by a party to a convention the construction of which is in issue in the proceedings is a matter of right. At the same time, however, it also underlined that the right to intervene under Article 63 is confined to the point of interpretation which is in issue in the proceedings, and does not extend to general intervention in the case. (Tunisia/Libya Continental Shelf, Application to Intervene, Judgment of 14 April 1981, ICJ Rep. 1981, p. 15, para. 26)

Article 84, para. 1 of the 1978 Rules is modeled on Article 66, para. 3 of the 1936 Rules of the PCIJ, which introduced the concept of the admissibility of an Article 63 intervention albeit in a slightly different form. Article 66 stated that declarations of intervention filed by third States should be communicated to the parties and that “[i]f any objection or doubt should arise as to whether the intervention is admissible under Article 63 of the Statute, the decision shall rest with the Court.” The records of the discussion during the preparation of this rule show that it was felt that the “objection or doubt” as to the propriety of the intervention could originate either in one of the parties or in the Court itself. The records also show that many of the doubts expressed with regard to the admission of Article 63 interventions referred not so much to the contents of the declaration of intervention or to its connection with the main proceedings as to the verification of the status of the third State with regard to the convention involved.24 23  Haya de la Torre, Judgment of 13 June 1951, ICJ Rep. 1951, p. 77. 24  PCIJ, D 2, Add. 3 (1936), pp. 307–312.

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It might be submitted that when adopting Article 66, para. 3 of the Rules, the Permanent Court was stretching to a considerable extent the language of Article 63 of the Statute, bringing the type of intervention foreseen in it closer to that provided for in Article 62. The rationale for this move might be found in an idea canvassed in the Haya de la Torre case, in which the Court stated the following: [t]he Court observes that every intervention is incidental to the proceedings in a case; it follows that a declaration filed as an intervention only acquires that character, in law, if it actually relates to the subject-matter of the pending proceedings. (Haya de la Torre, Judgment of 13 June 1951, ICJ Rep. 1951, p. 76)

If a declaration filed under Article 63 only acquires “in law” the character of an intervention—and of an incidental proceeding—when it “actually relates to the subject-matter of the pending proceedings,” it is unavoidable that a determination of that relation is required and there is no one in a better position to make that determination than the Court itself.25 As is readily apparent, then, the introductory sentence in Article 84, para. 1 of the Rules introduces the notion—entirely alien to the Statute—of the “admissibility” of an intervention under Article 63, side by side with the recognized statutory power of the Court to grant or to deny an application for permission to intervene under Article 62. Under these conditions, if the admission of a declaration of intervention is always subject to an affirmative decision by the Court, it makes little sense to speak about a true “intervention as of right,” which is the formula that is normally used in scholarly discussions about intervention under Article 63 of the Statute. As an author puts it: Under Article 63 of the Court’s Statute, intervention relating to the “construction” (interpretation) of any multilateral convention is a “right”. No distinction is made in that Article as to when this right can be exercised, i.e. at which point during proceedings the right may be invoked. However (. . .) [t]he Rules make clear that the right of intervention is subject to the

25  R. Wolfrum, “Intervention in the proceedings before the International Court of Justice and the International Tribunal for the Law of the Sea”, in P.C. Rao & R. Khan (Eds.), The International Tribunal for the Law of the Sea—Law and Practice (2001), p. 164.

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Court’s determination that the intervention is admissible, which is synonymous with stating that the exercise of the “right” is not automatic.26 In the most recent case to date in which Article 63 has been invoked, the Court spelled out in the following manner how it sees its own role with regard to a declaration of intervention duly submitted to it: (. . .) the fact that intervention under Article 63 of the Statute is of right is not sufficient for the submission of a “declaration” to that end to confer ipso facto on the declarant State the status of intervener; (. . .) such right to intervene exists only when the declaration concerned falls within the provisions of Article 63; (. . .), therefore, the Court must ensure that such is the case before accepting a declaration of intervention as admissible (. . .); (. . .) it also has to verify that the conditions set forth in Article 82 of the Rules of Court are met. (Whaling in the Antarctic, Declaration of Intervention, Order of 6 Feb. 2013, par. 8)

To sum up, perhaps the best way to approach this aspect of Article 63 intervention is to distinguish between the right to intervene and the conditions for exercising this right, as laid down in both the Statute and the Rules. As it was put aptly by a group of members of the Court, “where the conditions [present in Article 63] are fulfilled, a State wishing to intervene has a right to do so, and it is not for the Court to grant or withhold permission. Nevertheless, it is for the Court to decide in each case whether or not the conditions for such intervention, laid down in Article 63, are fulfilled.”27 As for these conditions, the Haya de la Torre case shows that a declaration of intervention must fulfill the following criteria in order to be “a genuine intervention” under Article 63: (i) The third State must be a party to the convention or conventions to which the declaration makes reference;28 26  T.D. Gill, Litigation Strategy at the International Court (1989), pp. 146–147. See also C. Chinkin, “Intervention before the International Court of Justice”, in F. Weiss, (Ed.), Improving WTO Dispute Settlement Procedures: Issues and Lessons From the Practice of Other International Courts and Tribunals (2000), pp. 112–113. 27  Nicaragua, Declaration of Intervention, Separate Opinion of Judges Ruda, Mosler, Sir Robert Jennings and De Lacharriere, ICJ Rep. 1984, p. 219. 28  For a discussion on the technical meaning of “party” in this context see Chinkin, “Article 63”, MN 22, p. 1583.

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(ii) The construction of that convention or conventions must be in question in the proceedings; and, (iii) The declaration of intervention must refer to the construction of that convention or conventions. There are three comments to be made with regard to these conditions. The first is that the precise identification of the multilateral treaties the construction of which may be in question in a given case and of the States parties to which the notifications provided for in Article 63 should be sent has proven difficult since the time of the Permanent Court. The 1978 Rules inserted a flexible clause in this regard that allows the Court—not the Registrar—to examine every case on its own merits. According to Article 43—which, it is worth noticing, is not included in the section of the Rules dealing with incidental proceedings on intervention, but in the section concerning the institution of proceedings: “[w]henever the construction of a convention to which States other than those concerned in the case are parties may be in question within the meaning of Article 63, paragraph 1, of the Statute, the Court shall consider what directions shall be given to the Registrar in the matter.” It has been noted that this provision is couched in terms that differ from those of Article 63 of the Statute, which imposes an unequivocal duty on the Registrar to notify the States parties of the convention as a matter of course.29 The “directions” to be given by the Court cannot then impair the exercise of this duty in any manner, for that would be contrary to the terms of the Statute—a situation that would arise if, for instance, the Court were to instruct the Registrar to refrain from notifying certain States who may be parties to a given treaty. As for determining the status of a treaty and its States parties, the Registrar has developed the practice of consulting with the depository of each treaty and letting himself be guided by the information supplied by it, something that is only sensible. Rather, it is submitted that the key words in Article 43 are “may be in question within the meaning of Article 63, paragraph 1, of the Statute” (emphasis added), meaning that the only point on which doubts may arise that the Court would be in a position to dispel, for the benefit of the Registrar, is whether the construction of a given treaty or convention may be in question, at least prima facie, and therefore whether resort to Article 63 intervention may be justified at all. Secondly, in the Wimbledon case, the PCIJ stated that Article 63 was applicable “when the object of the suit before the Court is the interpretation of an 29  S. Rosenne, Intervention in the International Court of Justice (1993), p. 37.

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international convention.”30 Along the same lines, in a publication of the PCIJ the following understanding of this condition can be found: [t]he Court’s practice in this respect had, in accordance with Article 60 of the Rules, become stabilized so that the “convention in question” in the terms of Art. 63 of the Statute, is the convention the construction of which is, prima facie, decisive for the settlement of the case.31 It follows that it is not enough that a multilateral treaty is simply mentioned or invoked in the course of the proceedings: The practice of the Court appears to indicate that an intervention based on Article 63 cannot be aimed at the interpretation of a convention referred to but which is not actually at issue in the dispute brought before the Court. (Nicaragua, Declaration of Intervention, Dissenting Opinion of Judge Schwebel, ICJ Rep. 1984, p. 234)

Thirdly, it is also of note that the French version of Article 63 of the Statute uses an expression that seems to have a scope wider than that of “party” in the English language, namely: “de l’interprétation d’une convention à laquelle ont participé d’autres États”. After examining the effects of this discrepancy, the PCIJ came to the conclusion that the English version was to be preferred, as already confirmed by Article 66 of the 1936 Rules.32

Box # 15-4 Article 63 intervention in proceedings on jurisdiction and admissibility? The main reason for rejecting the intervention attempted by El Salvador in the Nicaragua case, was not so much that it was untimely (due to the fact that the case was then at the jurisdictional stage), but rather that the treaties and conventions the construction of which was allegedly at issue, according to that government’s declaration of intervention, were instruments related to the ­merits

30  SS Wimbledon, Intervention, Judgment of 28 June 1923, PCIJ A1, p. 12. 31  PCIJ E 9, p. 176. 32  PCIJ, E 12, p. 198.

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that had no direct bearing on the questions of jurisdiction and ­admissibility.33 This is the circumstance behind the Court’s finding according to which El Salvador’s Declaration “addresses itself also in effect to matters, including the construction of conventions, which presuppose that the Court has jurisdiction to entertain the dispute between Nicaragua and the United States of America and that Nicaragua’s Application against the United States of America in respect of that dispute is admissible.”34 Quite apart from that, however, the question arises as to whether intervention under Article 63 can take place at the jurisdictional phase of proceedings in a case or whether it must be confined to the merits phase. After all, it can be submitted that when the jurisdiction of the Court is questioned it is very likely that the construction of key provisions of the Statute will be at issue and thus all States parties to the Statute might have a right to intervene under Article 63 (on this see Box # 15-2). However, after the Salvadorian episode no State has attempted this avenue. In his dissenting opinion appended to the Court’s order, judge Schwebel expressed the following on this question: A. Intervention under Article 63 in the Jurisdictional Phase of Proceedings The terms of Article 63 of the Statute are comprehensively cast: “Whenever” the construction of “a convention” is “in question . . .”. There is no hint in these terms—or in their travaux préparatoires—that they mean other than what their plain meaning says. “Whenever”—that is, whatever time in the proceedings of a case—imports not some but all, not some phases of a case but any phase. Moreover, the Rules of Court support the interpretation that “Whenever” indeed means whenever. Article 82, paragraph 1, of the Rules provides: “A State which desires to avail itself of the right of intervention conferred upon it by Article 63 of the Statute shall file a declaration to that effect . . . Such a declaration shall be filed as soon as possible, and not

33  This is especially true of those treaties mentioned in the original Declaration of Intervention, filed on 15 August 1984, which was defective in a number of ways. In subsequent communications sent to the Court by El Salvador on 10 and 17 September of the same year this was to a large extent corrected, but the Court chose to ignore them and based itself squarely on the original declaration. 34  Nicaragua, Declaration of Intervention, Order of 4 Oct. 1984, ICJ Rep. 1984, p. 216.

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later than the date fixed for the opening of the oral proceedings. In exceptional circumstances a declaration submitted at a later stage may however be admitted.” It will be observed that that Rule does not provide that a declaration under Article 63 shall be filed not later than the date fixed for the opening of the oral proceedings “on the merits” but simply the opening of “the oral proceedings”. If the intention had been to confine intervention to the stage of the merits, the Rule presumably would have so stated. Indeed, that conclusion is more than a presumption. The fact is that the question of barring intervention under Article 63 of the Statute in the jurisdictional phase of a case never seems to have been proposed to, considered or accepted by the Court. In contrast, the Court did give careful consideration to limiting intervention under Article 62 of the Statute only to the merits of the case before the Court, so as to exclude intervention under Article 62 in respect of interlocutory proceedings (though ultimately the Court did not so provide in the version of its Rules it adopted). The reason which was given for so proposing in respect of Article 62 recognized that a third State could have a legal interest in the jurisdictional phase of a case, but it was suggested that that interest was too remote to be admitted. However, a showing of “an interest of a legal nature which may be affected by the decision in the case” is a condition of intervention under Article 62. There is no such condition in Article 63; there it suffices if the third State is party to a convention whose construction is in question in the principal case. Thus the terms of Article 63 and the Rules which the Court has adopted in implementation of those terms both indicate that intervention under Article 63 in the jurisdictional phase of a case is permitted. The sense of Article 63 implies no less. Why should intervention at the jurisdictional phase of a case not be admitted? There are multilateral conventions that, in whole or in part, relate to jurisdictional questions. Their construction by the Court in a case between two States can affect the legal position of a third State under such conventions no less than it can affect their position under other conventions, or parts of other conventions, whose clauses are substantive rather than jurisdictional. Take, for example, the controversies that have come before the Court more than once over the force and effect of the General Act of 26 September 1928 for the Pacific Settlement of International Disputes. If one State maintains that that Act remains

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in force and is a basis of the Court’s jurisdiction, and another contests those contentions, why should not a third State party to the Act be able to intervene under Article 63 at the jurisdictional stage of the proceedings to submit a statement of the construction of the relevant provisions of that Act for which it contends? In fact (. . .) the Court and the Registrar have acted consistently with the conclusion that intervention in the jurisdictional phase of a proceeding is within the scope of the right with which States are endowed by the terms of Article 63. (Nicaragua, Declaration of Intervention, Dissenting Opinion of Judge Schwebel, ICJ Rep. 1984, pp. 234–236)

As stated, judge Schwebel’s conclusion is that Article 63 intervention may very well take place with regard to questions of jurisdiction and admissibility, at any rate when the multilateral convention the construction of which may be in question is a treaty concerning the peaceful settlement of disputes, with regard to which all of the States parties may be presumed to have a legitimate interest.35 However, in cases like these it is important to take into account that the mere invocation of a jurisdictional clause in an application instituting proceedings does not mean that the construction of the treaty to which that clause belongs is or will be in question. If the respondent does not dispute the applicability of the jurisdictional clause so invoked and goes on to plead the merits, it cannot be said that the construction of that treaty was ever in question. It follows that neither the Registrar, nor the Court, for purposes of giving effect to Article 43 of the Rules, will be in a position to ascertain whether the construction of that treaty is effectively in question until the respondent has indicated that it intends to put forward a challenge to the jurisdiction of the Court or to the admissibility of the application—something that it can do very late, even in the body of its Counter-Memorial—and therefore the notification required by Article 63 should not be made before that happens. However, this is probably not applicable in cases of lack of appearance, in which the Court must enquire proprio motu and from the outset whether it has jurisdiction. In the Nuclear Tests cases, for instance, the notification under Article 63 was sent to all States parties to the 1928 General Act for the Pacific Settlement of International Disputes, which was invoked in the application as 35  Rosenne, “Intervention . . .”, p. 89.

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a basis of jurisdiction.36 In striking contrast, in the same case the Court decided to defer its consideration of the Fiji’s application for permission to intervene under Article 62—which clearly referred to the merits of the ­dispute—until the Court should have pronounced upon the questions of jurisdiction and admissibility, something that, incidentally, it never did.37 A different situation arose in the Pakistani POW case, in which an Article 63 notification with regard to the General Act of Geneva and the 1948 Genocide Convention was never made.38 The practice of the Court on this matter has not been uniform. In the case of the 1948 American Treaty on Pacific Settlement or “Pact of Bogota,” for instance, the Registrar sent the notifications provided for in Article 63 at a very early stage of the proceedings in all the cases which it was invoked, even in those in which there was no challenge to the jurisdiction and therefore the construction of the Pact’s provisions was never actually in question.39 However, in the case of the 1957 European Convention on Pacific Settlement, which was invoked as a basis for jurisdiction in the Certain Property and the Jurisdictional Immunities cases, no notification appears to have been made under Article 63 to the other States parties, notwithstanding the fact that in the first of these cases the respondent did file preliminary objections and that as a result the Court had to address the interpretation of key provisions of that Convention. Similarly, although the 1928/1949 General Act of Geneva has been invoked as a basis for jurisdiction in several occasions, the notification provided for in Article 63 appears to have been made only in the above mentioned Nuclear Tests cases. b) Procedure With regard to the timing for the filing of a declaration of intervention, the Rules provide for a time-limit longer than that for requests for permission 36  Nuclear Tests, Judgments of 20 Dec. 1974, ICJ Rep. 1974, p. 255, para. 8 and p. 459, para. 8. 37  Ibid., para. 7. 38  See on this Box # 15-5. 39  Armed Actions (Nicaragua v. Costa Rica), Order of 19 Aug. 1987, ICJ Rep. 1987, p. 182; Nicaragua v. Honduras, Judgment of 8 Oct. 2007, ICJ Rep. 2007, p. 664, para. 3; Navigational Rights, Judgment of 13 July 2009, ICJ Rep. 2009, p. 219, para. 3; Peru v. Chile, Judgment of 27 Jan. 2014, para. 3. The interpretation of the provisions concerning judicial settlement in the Pact of Bogota has been debated before the Court in two cases: Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment of 20 Dec. 1988, ICJ Rep. 1988, p. 69 and Nicaragua v. Colombia, Preliminary Objections, Judgment of 13 Dec. 2007, ICJ Rep. 2007, p. 832.

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to ­intervene under Article 62: the declaration, signed as in the case of an ­application, should be deposited “[a]s soon as possible, and not later than the date fixed for the opening of the oral proceedings.” In exceptional circumstances, however, a declaration submitted at a later stage may be admitted (Rules, Article 82, para. 1). Conceivable, one such circumstance could be that a given State is not notified by the Registrar, bringing into application Article 82, para. 3 of the Rules. As to its contents, paragraph 2 of Article 82 provides that the declaration must state the name of the agent, the case and the convention to which it relates, and shall contain the following information: (a) The basis on which the declaring State considers itself a party to the convention; (b) The identification of the particular provisions of the convention whose construction it considers to be in question; (c) A statement of the construction of those provisions for which it contends; and, (d) A list of the documents in support, which shall be attached.40 It is noteworthy that in stark contrast to Article 81 of the Rules—concerning the contents of an application for permission to intervene under Article 62— Article 82 makes no mention whatsoever of any jurisdictional link that may exist between the third State and the principal parties to the case. In fact, nobody has ever contended that the problem of the “valid jurisdictional link” has any relevance in the context of intervention under Article 63 in which the determining factor is that all the States involved have the condition of parties to the treaty in question. More generally, the opinion has been voiced that questions of jurisdiction are simply immaterial in Article 63 intervention proceedings, to the point that, even if the multilateral treaty in question contained provisions conferring jurisdiction on the Court over any questions concerning the interpretation of its clauses and the third State was not bound by those provisions, it would still be entitled to invoke Article 63 and intervene in a case which that interpretation were at issue. Judge Schwebel, for instance, has written the following in this regard: 40  Questions of form are clearly of little importance. In Haya de la Torre, Cuba addressed a letter to the Court in response to the notification made under Article 63, para. 1 of the Statute and the Court considered this letter “as a Declaration of Intervention under Article 66, paragraph 1, of the Rules of Court” (Judgment of 13 June 1951, ICJ Rep. 1951, p. 74). The Rules then in force were the 1946 Rules.

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Article 63 unconditionally authorizes intervention where the State seeking it is party to a treaty. Thus even where such a State is party to a treaty which contains provision (as in an annexed protocol) for submission to the Court’s jurisdiction in disputes over the interpretation or application of the treaty, and that State and the parties to the principal case have not adhered to the protocol, the Court apparently would have jurisdiction to admit the intended intervenor to the case. (Malta/Libya Continental Shelf, Application to Intervene, Dissenting Opinion of Judge Schwebel, ICJ Rep. 1984, p. 144, para. 31)41

Box # 15-5 Article 63 intervention and provisional measures of protection Article 74, para. 1 of the Rules states that a request for the indication of provisional measures “shall have priority over all other cases” and Article 84, para. 1 orders that the decision by the Court on admitting any intervention, either under Article 62 or under Article 63 shall be taken “as a matter of priority.” There is no doubt that requests on interim protection shall always prevail and be considered by the Court ahead of any action concerning intervention, but for that very reason it may be difficult to organize proceedings on the latter before the Court has had time to deal with the former. Proceedings on provisional measures are a very hasty business and the hearing required by the Rules is organized very quickly after a request has been submitted by one of the parties. It is unlikely that during this short lapse the Registrar would have had the chance to send the notifications provided for in Article 63 and that the States interested would be have been able to frame and to file declarations of intervention, let alone the fact that the Court would probably not have been able to organize the required hearing in the event of an objection. For these reasons, it is likely that any action concerning an eventual intervention under Article 63 will be taken only after proceedings on provisional measures have been exhausted, at least in cases in which a request for provisional measures is filed simultaneously with the institution of proceedings. This situation occurred in the Pakistani POW case, in which on 13 July 1973 the Court took a decision on a request for provisional measures submitted by Pakistan on 11 May 1973, and it apparently took no action with regard to

41  But see the opinion of Rosenne, for whom this question “is open” (“Intervention . . .”, p. 75).

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Article 63, a fact that was criticized by judge Petren in a dissenting opinion. According to this judge: The arguments of the two Governments on the subject of the Court’s jurisdiction concerned inter alia the construction of the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide, and in particular its jurisdictional clauses, as also the question whether Pakistan is a party to the General Act of 26 September 1928 for the Pacific Settlement of International Disputes and, if so, whether the jurisdiction of the Court could be founded upon that instrument. I am of the opinion that Article 63 of the Statute of the Court required the questions thus raised to be notified without delay to the States parties to the two international instruments in question. Those notifications, however, were not made, and the majority even opposed considering the question of notification in respect of the Genocide Convention before the Court had pronounced on the request of the Government of Pakistan for the indication of interim measures of protection. (Pakistani POW, Interim Protection, Dissenting Opinion of Judge Petren, ICJ Rep. 1973, pp. 234–235)

For the following procedural purposes, the current Rules of Court give the same treatment to the two types of intervention: – The procedure of notifications by the Registrar of the filing of an application for permission to intervene or a declaration of intervention, to be addressed to the parties in the case, the UN Secretary-General and the States entitled to appear before the Court (with the addition that under Article 83 declarations under Article 63 are also transmitted to “any other States which have been notified under Article 63 of the Statute”); – The filing of written observations by the parties to the case (Article 83, para. 1);42 – The power of the Court to decide on the granting of a request or the admission of a declaration (including provision as to the handling of the question “as a matter of priority”) (Article 84, para. 1); and, 42  In the Haya de la Torre case, Cuba attached to its Declaration of Intervention (in reality a letter addressed to the Registrar) a “Memorándum” that was deemed by the Court to constitute the written observations provided for in paragraph 4 of then Article 66 of the Rules of Court (ICJ Yearbook 1962–1963, pp. 135–136).

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– The interlocutory proceedings to be followed in case an objection to the intervention is raised (Article 84, para. 2). Interestingly enough, by providing that the decision by the Court on the granting of an application for permission to intervene under Article 62 or on the admissibility of an intervention under Article 63 shall be taken “as a matter of priority unless in view of the circumstances of the case the Court shall otherwise determine”, Article 84, para. 1 establishes that, as a rule, incidental questions of intervention shall be given priority, unless the Court determines otherwise. This was added in the 1978 reform, in order to “affor[d] litigants an important protection against protracted uncertainty.”43 Up until that year the only instances in which a case received any kind of priority within the Court’s working schedule were requests for the indication of provisional measures, under Article 74, para. 1, and requests for advisory opinions (in certain cases), under Article 103.

Figure 6

43  M. Lachs, “The Revised Procedure of the International Court of Justice”, in Kalshoven, F. et al. (Eds.), Essays on the Development of the International Legal Order in Memory of Haro F. van Panhuys, 1980, p. 39.

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Box # 15-6

Article 84 of the Rules: The requirement of a hearing

When an application for permission to intervene or a declaration of intervention is filed, the Registrar must notify the parties to the case “which shall be invited to furnish their written observations within a time-limit to be fixed by the Court or by the President if the Court is not sitting” (Rules, Article 83, para. 1). Then, it will be for the Court to “decide whether an application for permission to intervene under Article 62 of the Statute should be granted, and whether an intervention under Article 63 of the Statute is admissible” (Article 84, para. 1). However, paragraph 2 of the same provision contains the following rule of a residual nature: If, within the time-limit fixed under Article 83 of these Rules, an objection is filed to an application for permission to intervene, or to the admissibility of a declaration of intervention, the Court shall hear the State seeking to intervene and the parties before deciding. This means that if no objections are lodged by the parties, the Court will make its decision on the granting of an Article 62 intervention or the admission of an Article 63 intervention exclusively on the basis of the application or the declaration, as the case may be, and the written statements submitted by the principal parties. If one of the parties voices an objection, the Court must hold a hearing “before deciding,” in order to appraise itself of the views of not only the parties to the case but also the State seeking to intervene. Under this rule, the requirement for a hearing appears mandatory once an objection has been voiced or, in other words, the filing of an objection would be the “trigger” for a hearing in which the third State is invited to take part. However, in the Nicaragua case the Court denied El Salvador the possibility of that hearing, in a decision that was heavily criticized. This part of the decision was adopted by 9 votes to 6. Judges Ruda, Mosler, Ago, Jennings, De Lacharriere (in a joint separate opinion, ICJ Rep. 1984, p. 219) and Schwebel (in a dissenting opinion, ibid., pp. 227–233) were all in favor of granting a hearing to El Salvador. Judge Oda stated in a separate opinion that he voted against it “only because the Court was of the view that Nicaragua had not objected” (ibid., p. 220). Two judges voting with the majority explained that once the Court had adopted the view that the declaration was inadmissible inasmuch as it referred to the jurisdictional stage of the proceedings there was no point in holding a

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hearing (judges Nagendra Singh, ibid., p. 218 and Bedjaoui, ibid., p. 222). Also of note is the opinion of judge Lachs, voting with the majority, who in the subsequent decision on the merits courageously expressed his regret for having done so, admitting in explicit terms that this part of the decision could have embodied a “judicial error” (Nicaragua, Merits, Separate Opinion of Judge Lachs, ICJ Rep. 1986, pp. 170–171). At the merits stage judge Oda also regretted having taken a negative stance on granting El Salvador a hearing, something he had done for “purely procedural reasons” (Dissenting Opinion of Judge Oda, ibid., p. 244). In doing so, the Court appears to have construed Nicaragua’s written observations as not embodying an actual objection to El Salvador’s declaration of intervention. This seems to have been Nicaragua’s true intention because while it clearly opposed the intervention, for political reasons it did not want the Court to afford El Salvador a hearing and it was well aware that if it voiced a formal objection this would in itself trigger the holding of a hearing.44

Although the Statute and the Rules are silent on the matter, it would appear that the decision concerning the admissibility of an intervention under Article 63 will normally be embodied in an order.45 As for the procedural consequences of the admission of such an intervention, Article 86 of the Rules sets them out as follows: – The intervening State acquires the right to be furnished with copies of the pleadings and documents annexed. Evidently, there may be cases in which this has already been complied with by the time that the intervention is admitted, under the conditions set forth in Article 53, para. 1 of the Rules. – The intervening State acquires the right to submit written observations “on the subject-matter of the intervention,” within a time-limit fixed by the Court or by its President, if the Court is not sitting. These observations are transmitted in due course to the parties and to any other intervening State. 44  Gill, “Litigation Strategy . . .,” pp. 145–148; J. Sztucki, “Intervention under Article 63 of the ICJ Statute in the Phase of Preliminary Proceedings: The Salvadoran Incident”, AJIL, Vol. 79 (1985), pp. 1005 ff. See also the highly critical comments by judge Schwebel (Nicaragua, Declaration of Intervention, Dissenting Opinion of Judge Schwebel, ICJ Rep. 1984, pp. 229–231). 45  However, in the Haya de la Torre case the decision admitting a declaration of intervention filed by Cuba was recorded in the judgment on the merits (Haya de la Torre, Judgment of 13 June 1951, ICJ Rep. 1951, p. 75).

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They are different from those presented in the Declaration of Intervention, for they are to be produced by the intervening State only after the declaration has been declared admissible and it has been furnished with copies of the pleadings. The system was essentially the same in Article 66 of the 1946 Rules, but in the Haya de la Torre case this rule was possibly not applied correctly. When Cuba filed its Declaration of Intervention (in the form of a ­letter, as mentioned before) it attached thereto a “Memorandum”. In the judgment it is recorded that “The Court considered that this Memorandum was regarded by the Government of Cuba as constituting the written observations provided for in paragraph 4 of Article 66 of the Rules of Court.”46 Interestingly, the Rules do not provide for the main parties submitting observations of their own on the observations presented by the intervenor. In the Whaling in the Antarctic case one of the parties specifically requested that the Parties be given an “opportunity to respond in writing to the written observations that New Zealand may present in accordance with Article 86, paragraph 1, of the Rules of Court.”47 The Court obliged but stated that it did so “considering the circumstances of the case,” a formula that suggests that this may not constitute a precedent.48 – The intervening State will be entitled to take part in the oral proceedings in order to again submit its observations “with respect to the subject-matter of the intervention.” c)

Legal Effects of the Intervention

One of the striking differences between intervention under Article 63 and intervention under Article 62 is that in the former case the Statute itself appears to dispel doubts as to the legal effects of the intervention for the State permitted to intervene. According to that provision, if a third State exercises its right to intervene “[t]he construction given by the judgment will be equally binding upon it.” This wording is identical to that of Article 63 of the Statute of the PCIJ. In connection to this, it is interesting to recall that in the original draft, prepared in 1920 by the Advisory Committee of Jurists, the relevant provision (Article 23) read in this section: “[t]he judgment will have the force of res 46  Haya de la Torre, Judgment of 13 June 1951, ICJ Rep. 1951, p. 76; see also ICJ Yearbook (1953– 1954), p. 120. 47  Whaling in the Antarctic, Declaration of Intervention, Order of 6 Feb. 2013, par. 17. 48  Ibid., paras. 22 and 23 (3) (dispositif).

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­judicata ­concerning the intervening party.”49 This is important, because the final form of words employed means that, as noted by the PCIJ, a judgment can have a purely declaratory effect.50 This has the implication that what will be binding upon the third State is the interpretation that the Court gives to the treaty involved in the proceedings, i.e. any judicial declaration that the judgment may contain concerning that question. Article 63 has the effect that the intervenor will be bound by the interpretation that the Court gives to the convention at issue, in the event that it becomes involved in a future dispute involving the interpretation or application of that same instrument.51 However, this is the full extent of the legal effect of the intervention. In particular, two limitations are to be noted: (i) The intervenor State does not become a party to the case. This was the general understanding since the time of the PCIJ, for in 1922, during discussions on the adoption of the original Rules of Court, judge Anzilotti pointed out that “[I]n the circumstances contemplated by Article 63 of the Statute, intervening parties did not become parties to the dispute.”52 Given that under Article 63 the third State is limited to submitting observations on the construction of the convention in question, the intervenor is not allowed to address any other aspect of the case before the Court.53 It is always possible—and, indeed, very likely—that the case covers aspects of international law other than the construction of the convention that prompted the intervention and on this the decision will clearly remain res inter alios acta for the intervening State. Thus, the only sections of the decision that will have the force of res judicata for that State are those directly referring to the construction of the convention in question. In the words of judge Oda: In the application of Article 63, no jurisdictional link is apparently required between the intervening State and the original litigant States. The third State may participate in the case, but not “as a party” on an equal footing with the original litigant States because the object of the 49  For the background of these provisions see Rosenne, “Intervention . . .”, pp. 19 ff. and M. Al Qatani, “The status of would-be intervening States before the ICJ and the application of res judicata”, LPICT, vol. 2 (2003), pp. 288–289. 50  Polish Upper Silesia, Merits, Judgment No. 7, 25 May 1926, PCIJ A 7, p. 19. 51  C. Schulte, Compliance with Decisions of the International Court of Justice (2004), p. 27. 52  PCIJ D 2, p. 216. See also Whaling in the Antarctic, Declaration of Intervention, Order of 6 Feb. 2013, par. 18. 53  Whaling in the Antarctic, Declaration of Intervention, Order of 6 Feb. 2013, par. 18.

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intervention is not necessarily connected with the claims of the original parties. The third party participates, but not as a plaintiff or defendant or even an independent claimant. (. . .) The judgment of the Court will certainly be binding upon the litigant States, but all that will be binding upon the intervening State is, as paragraph 2 of Article 63 provides, “the construction [of a convention] given by the judgment”. In other words, the intervening State will be bound by the Court’s interpretation of the convention if it becomes involved in a case involving the application of that instrument. (Tunisia/Libya Continental Shelf, Application to Intervene, Separate Opinion of Judge Oda, ICJ Rep. 1981, p. 28, paras. 11–12)54

Along the same lines, judge Mbaye has stated that Article 63 is “a privileged case of intervention” because “[A]rticle 63 refers to a case where the State concerned is not a party to the dispute. (. . .) Its interest of a legal nature is presumed, and it is not a party to the dispute because the Statute limits its intervention to stating its own interpretation of the multilateral treaty in question. It submits neither a claim nor a defence. It contents itself with providing information to the Court.”55 (ii) The obligations that the intervening State assumes under the judgment cannot be more onerous than the obligations incumbent upon the principal parties to the case. This means that the general rule in Article 59 of the Statute will always qualify those obligations. Therefore, the decision of the Court on the construction of the convention at issue has no binding force for the third State “except (. . .) in respect of that particular case.” In theory, then, that interpretation would not be binding on the intervening State—or on the main parties, for that matter—in any other case, even if it involves the construction of the same treaty.56 However, and in spite of the fact that there is clearly no rule of stare decisis in international law, it is evident that the Court is in the habit of following its 54  For these reasons, it is probably immaterial that in the Haya de la Torre case the Court referred to Cuba as an “intervening Party.” (Judgment of 13 June 1951, ICJ Rep. 1951, p. 72). This expression was used in Article 66 of the 1946 Rules (Article 71 in the 1972 Rules) but was dropped in the 1978 reform, in which it was replaced by “intervening State” (Article 86). 55  Malta/Libya Continental Shelf, Application to Intervene, Separate Opinion of Judge Mbaye, ICJ Rep. 1984, pp. 40 and 46. 56  Chinkin, “Article 63”, MN 55, p. 1596. per contra, Verzjil’s Jurisprudence, vol. 1, pp. 21–22. See also Chapter 10, text to notes 136 and 137.

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case law, especially when it touches upon points of general international law. This has special force when one takes into consideration the very purpose of the institution of intervention. As an author puts it: The rationale of Article 63 is to foster uniform interpretation of a convention and thus to promote the harmonious development of international law. This policy recognizes that while there is no doctrine of stare decisis in international proceedings and only the parties are bound by a decision in a case, in reality when a treaty provision is interpreted and applied by the Court, decision-makers in other States are influenced by that decision. As a matter of practicality, other States, the Court itself in other proceedings, and other tribunals are likely to adopt, or to be influenced by, the interpretation.57 The Court will thus need powerful reasons to depart from one of its decisions that can be construed as a true precedent and it will also be highly unlikely that a State pleading before it will deny the value of such a precedent basing itself only on the narrow wording of Article 59 of the Statute.58 A final aspect concerning procedure refers to the fact that, like in the case of intervention under Article 62, an intervenor under Article 63 is not entitled to appoint a judge ad hoc, given that it does not become a party to the case. In the Whaling in the Anctartic case one of the parties (Japan) had a judge of its nationality in the bench and the other (Australia) did appoint a judge ad hoc. There was a member of the Court having the nationality of the State making the Declaration of Intervention (New Zealand) and one of the parties hinted that the third State and the other party could be found to be ­“parties in the same interest” in the sense of Article 31, para. 5 of the Statute and Article 36, para. 1 of the Rules.59 In its order declaring admissible New Zealand’s ­declaration the Court underlined that an intervention under Article 63 cannot affect the equality of the parties to the dispute and remarked 57  Chinkin, “Article 63”, MN 4, p. 1575. On the effects of the Court’s decisions for States other than the parties to a case see Chapter 10, f ). 58  On this, see the observation by the Court in the Cameroon v. Nigeria case (Preliminary Objections, Judgment of 11 June 1998, ICJ Rep. 1998, p. 292, para. 28). For a general discussion, also covering intervention under Article 62, see M. Al-Qahtani, “The Status of Would-Be Intervening States before the International Court of Justice and the Application of Res Judicata”, LPICT, vol. 2 (2003), pp. 269–294, especially at 292; S. Rosenne, “Article 59 of the Statute of the International Court of Justice Revisited” in Sh. Rosenne, Essays on International Law and Practice (2007), pp. 133, 156–157. 59  Whaling in the Antarctic, Declaration of Intervention, Order of 6 Feb. 2013, par. 17.

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that, since the intervention did not confer upon New Zealand the status of a party to the proceedings, that State and Australia could not be regarded as being parties in the same interest and that, consequently, the presence on the bench of a judge of the nationality of the intervening State had no effect on the right of the judge ad hoc chosen by the other party to sit in the case.60 Further Reading

Leading Works



General Works and Treatises on the Court



Articles and Monographs

C. Chinkin, Third Parties in International Law (1993) R.M. Riquelme Cortado, La Intervención de Terceros Estados en el Proceso Internacional (1993) S. Rosenne, Intervention in the International Court of Justice (1993)

C. Chinkin, “Article 63”, in Oxford Commentary, pp. 1573–1597 Fitzmaurice’s Law and Procedure, vol. 2, pp. 550–554 Guyomar’s Commentaire, pp. 276–282, 526–556 Hudson’s PCIJ, pp. 419–424 Mani’s Adjudication, pp. 249–275 Rosenne’s Law and Practice, vol. 3, pp. 1481–1555 Rosenne’s Procedure, pp. 173–182 Scerni’s La Procédure, pp. 648–652 Thirlway’s Law and Procedure, Part 11, BYIL, vol. 71 (2000), pp. 83–90; Part 13, ibid., Vol. 74 (2003), pp. 23–30

Ch.F. Amerasinghe, Jurisdiction of Specific International Tribunals (2009), pp. 131–143 G. Cellamare, “Intervento in causa davanti alla Corte internazionale di Giustizia e ‘lien juridictionnel’ tra interveniente e parti originaire del processo”, RDI, vol. 66 (1983), pp. 291–305 ———, “In tema di intervento ai sensi dell’art. 63 dello statuto della Corte internazionale di giustizia”, RDI, vol. 68 (1985), pp. 817–823 Ch. Chinkin, “Third-party Intervention before the International Court of Justice”, AJIL, vol. 80 (1986), pp. 495–531 L.F. Damrosch, “Multilateral Disputes”, in L.F. Damrosch, et al. (Eds.), The International Court of Justice At A Crossroads (1987), pp. 376–400

60  Ibid., par. 21.

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E. Decaux, “L’intervention”, in Société Française pour le Droit International, Colloque de Lyon, La Juridiction internationale permanente (1987), pp. 219–255 T.O. Elias, “The Limits of the Right of Intervention in a Case before the International Court of Justice”, in Festschrift fur Hermann Mosler (1983), pp. 159–172 M.D. Evans, “Intervention, the International Court of Justice and the Law of the Sea”, RHDI, vol. 48 (1995), pp. 73–94 D.W. Greig, “Third Party Rights and Intervention before the International Court”, Virginia JIL, vol. 32 (1991–1992), pp. 285–376 E. Hambro, “Intervention under Article 63 of the Statute of the International Court of Justice”, in Studi in onore di Gaetano Morelli, Comunicazione e Studi (1975), pp. 387 ff. A.J. Hoogh, “Intervention under Article 63 of the Statute and the quest for incidental jurisdiction without consent of the principal parties”, LJIL, vol. 6 (1993), pp. 17–46 Y. Iwasawa, “Third Parties Before International Tribunals: The ICJ and the WTO”, in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge Shigeru Oda, vol. II (2002), pp. 871–892 Ph. C. Jessup, “Intervention in the International Court”, AJIL, vol. 75 (1981), pp. 903–909 R. St. Macdonald & V. Hughes, “Intervention before the International Court of Justice”, African Journal of International and Comparative Law, vol. 5 (1993), pp. 1 ff. A. Madakou, Intervention before the International Court of Justice (1988) J.G. Merrills, “Reflections on the Incidental Jurisdiction of the International Court of Justice”, in M.D. Evans (Ed.), Remedies in International Law: The Institutional Dilemma (1998), pp. 58–64 J.T. Miller, “Intervention on Proceedings before the International Court of Justice”, in L. Gross, (Ed.) The Future of the International Court of Justice, vol. 2 (1976), pp. 550–571 G. Morelli, “Fonction et object de l’intervention dans le process international”, in Essays in International Law in Honour of Judge Manfred Lachs (1984), pp. 403–408 S.D. Murphy, “Amplifying the World Court’s Jurisdiction through Counter-Claims and Third-Party Intervention”, George Washington ILR, vol. 33 (2000–2001), pp. 5–30 S. Oda, “Intervention in the International Court of Justice: Articles 62 and 63 of the Statute”, in Festschrift fur Hermann Mosler (1983), pp. 639–648 ———, “The International Court of Justice viewed from the Bench (1976–1993)”, RC, vol. 244 (1993-VII), pp. 80–87 P. Palchetti, “Opening the International Court of Justice to Third States: Intervention and Beyond”, Max Planck Yearbook of United Nations Law, vol. 6 (2002), pp. 139–181 S. Rosenne, “Some Reflections on Intervention in the International Court of Justice”, NILR, vol. 34 (1987), pp. 75–90 J.M. Ruda, “Intervention before the International Court of Justice”, in V. Lowe & M. Fitzmaurice (Eds.), Fifty Years of the International Court of Justice—Essays in Honour of Sir Robert Jennings (1996), pp. 487–502 J.-M. Sorel & F. Poirat (Eds.), Les procédures incidents devant la Cour internationale de Justice: exercice ou abus de droits? (2001), pp. 45–48, 87–95

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G. Sperdutti, “Note sur l’intervention dans le Proces International”, AFDI, vol. 30 (1984), pp. 273–281 ———, “L’intervention de l’Êtat tiers dans le procès international: une orientation nouvelle”, AFDI, vol. 31 (1985), pp. 286–293 J. Sztucki, “Intervention under Article 63 of the ICJ Statute in the Phase of Preliminary Proceedings: The Salvadoran Incident”, AJIL, vol. 79 (1985), pp. 1005–1036 H. Thirlway, “Injured and Non-Injured States before the International Court of Justice”, in M. Ragazzi (Ed.), International Responsibility Today—Essays in Memory of Oscar Schachter (2005), pp. 319–322 S. Torres Bernárdez, “L’intervention dans la procédure de la Cour Internationale de Justice”, RC, vol. 256 (1995-IV), pp. 193–457 ———, “Bilateral, Plural and Multipartite Elements in International Judicial Settlement”, in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge Shigeru Oda, vol. 2 (2002), pp. 995–1008 K.C. Wellens, “Reflections on some Recent Incidental Proceedings before the International Court of Justice”, in E. Denters & N, Schrijver (Eds.), Reflections on International Law from the Low Countries in Honour of Paul de Waart (1998), pp. 429–440

Part 6 The Litigation Revisited (Derivative Proceedings)

∵

Like Part 5, Part 6 concentrates on phases of proceedings that refer to matters other than the merits of a case, but in this case they take place after the litigation in the main case has concluded and a final decision has been rendered. As such, it covers two classes of proceedings that are closely connected with a decision already given by the Court, namely:

• Interpretation of judgments (Chapter 16); • Revision of judgments (Chapter 17). Derivative proceedings may also take place with regard to the assessment of the amount of compensation owed by one party to the other as a result of a judgment by the Court. Given that compensation is simply one form of remedy, the procedure applicable to this question will be dealt with in Chapter 18.

Chapter 16

Interpretation of Judgments As the ICJ is a court of first resort and of last instance, it is a fundamental principle that its judgments are “final and without appeal,” as provided for in Article 60 of the Statute. This notwithstanding, the same provision contemplates that the States parties to a case may request an interpretation of the decision and Article 61 stipulates further the possibility of revision. While at first glance these post-adjudication procedures appear to pose a threat to the stability of judicial decisions and thus to represent challenges to the sacrosanct principles of the finality of adjudication (interest reipublicae ut sit finis litium) and res judicata, a closer examination reveals that they actually have the effect of reinforcing these principles and their underlying assumption, which is the need for stability in the legal relations between the States parties to a case. Interpretation and revision are certainly no the only post-adjudication procedures known in international law but they are—along with the rectification of errors—the only ones available in the ICJ law and practice.1 In the case of interpretation, if a decision or part of a decision is obscure it may prove impossible for the States parties to comply with it, and so a request for interpretation might be precisely the best way to assure compliance and the realization of res judicata. As the Court recently recalled: “the process of interpretation is premised upon the “primacy of the principle of res judicata” which “must be maintained.”2 As for revision, when the process leading to the judgment failed to take into account certain facts that were not known to the Court and to the parties and that may prove to be decisive, elementary considerations of justice and equity prevail and override the requirements derived from the res judicata principle.3 From this point of view, it is possible to endorse the idea that Article 61 of the Statute not only seeks to protect the interests of the parties in the litigation,

1  On rectification of errors see Chapter 10, d). Other procedures of this type—none of which is available before the ICJ—are appeals, cassation, rehearing de novo, additional or supplementary decisions and annulment (Ch. Brown, A Common Law of International Adjudication (2009), pp. 156–157). 2  Request for Interpretation-Temple of Preah Vihear, Judgment of 11 Nov. 2013, para. 55. 3  Ibid., pp. 157–158, 161–162.

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but also—and more importantly—seeks to preserve a proper administration of justice.4 Thus, the procedures of interpretation and revision have a common goal— that of settling disputes between the parties arising after the rendering of a judgment and connected to it—and overlap to a certain extent.5 There is, however, an important difference between them connected to the manner in which they relate to the res judicata principle: while interpretation operates within res judicata, revision works outside of its bounds.6 Indeed, if proceedings on revision are successful, a new res judicata will come into being, displacing the (flawed) res judicata embodied in the initial decision. The power of an international tribunal to construe its own decisions is one of the attributes of its judicial function and therefore it is not surprising that the Statute of the ICJ grants to it the power to interpret its judgments at the request of any party (Article 60). This jurisdiction is statutory and it is also one of the categories of incidental jurisdiction bestowed upon the Court by all of the States that become parties to the Statute. As for the proceedings that are conducted when that provision is invoked by a State party to a case in which a judgment has been delivered, they are not strictly incidental but rather derivative, inasmuch as they take place after the decision has been rendered and may thus be said to derive from—or arise out of—that decision. The interpretation of its judgments is an aspect of the Court’s working that has attracted little attention and the practice is scarce, but there are recent developments that are worthy examining. The importance of the topic is threefold. In the first place, there is the fact, present in every legal system, that one of the aspirations of any process of adjudication is that of obtaining legal certainty as to the exact scope of the rights and duties of the parties. When the parties are sovereign States that have come to the tribunal on their own volition and without being bound to do so by any positive rule of international law, this need is more pressing, because one of the major factors inducing a given State to resort to adjudication is, very likely, that of reaching legal certainty with regard to certain aspects of its relations with another State or States. If the result of the adjudication p ­ rocess— the decision—is unclear and the parties feel that they did not acquire the 4  Scerni’s La Procédure, p. 671. See also D.W. Bowett, “Res Judicata and the Limits of Rectification of Decisions by International Tribunals”, African JICL, vol. 8 (1996), p. 577. 5  M. Reisman, Nullity and revision; the review and enforcement of international judgments and awards (1971), p. 212. 6  A. Zimmerman & R. Geiss, “Article 61”, in Oxford Commentary, MN 15, pp. 1503–1504.

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c­ ertainty they were seeking, it is necessary to have a mechanism in place that can be activated in order to promptly remedy this situation. Secondly, the special circumstance obtains that the International Court of Justice is both the first and the last judicial resort available to States on matters of general international law. The very fact that the Court’s judgments are “final and without appeal” makes it peremptory to grant the Court the power to elucidate or clarify the scope and meaning of its decisions, whenever a divergence of opinion arises in that regard among the States to whom they are addressed.7 In the words of one of the persons involved in the drafting of the Statute of the PCIJ: The Permanent Court of International Justice may, indeed, be a court of first instance, but it has no court above to which an appeal can be made. Its decision, therefore, is meant to be final and Article 58 so declares.8 The Judgment, however, may be ambiguous or may seem so, especially to the loser. Doubt or uncertainty should not be permitted to exist. The judgment may be wrong, as even judges err betimes, but its meaning must be clear, certain and unmistakable.9 Thirdly, requesting an interpretation of a judgment can be considered to be a right that every State involved in litigation before the ICJ possesses. As aptly articulated by judge Weeramantry: Though rarely invoked, and subject to strict limitations, the right of a party to seek clarification of a judgment, in the event of a dispute as to its meaning and scope, is an important part of the scheme of rights conferred on litigants by the Statute of the Court. In a sense, it carries to its logical completion the process of adjudication of the matters that come before the Court. (Request for Interpretation-Cameroon v. Nigeria, Dissenting Opinion of Judge Weeramantry, ICJ Rep. 1999, p. 42)10

7  Scerni’s La Procédure, pp. 675–676. 8  It corresponds to Article 60 of the definite Statute. 9  Brown Scott’s Project, p. 129. 10  See also on this the sub-section “Role of Court under Article 60” in section a), below.

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Chapter 16

Interpretation of judgments: A review of the practice

Two requests for interpretation of judgments were submitted before the PCIJ. The first was made by Greece in 1925, with regard to a judgment of the Chamber of Summary Procedure in the Treaty of Neuilly case. The request was handled by the same chamber that dealt with the original case, which is the only such chamber to have ever been constituted in the history of both courts. The chamber decided that the request could not be granted because the application by Greece went beyond what it had been decided in the original judgment (Request for Interpretation-Treaty of Neuilly, Judgment No. 4, 26 March 1925, PCIJ A 4).11 The second request for interpretation occurred in the Factory at Chorzów case in 1927, when the full Court admitted a request for interpretation made by Germany and construed two of its previous decisions in the same litigation (Request for Interpretation-Factory at Chorzów, Judgment No. 11, 16 Dec. 1927, PCIJ A 13).12 Before the present Court there have been five requests for interpretation of judgments thus far, but only two of them have been granted. The first case was the request by Colombia for interpretation of the Court’s judgment in the Asylum case. The request was declared inadmissible by the Court (Request for Interpretation-Asylum, Judgment of 27 Nov. 1950, ICJ Rep. 1950, p. 395). The first case before the present Court in which a request for interpretation was admitted arose out of an application filed by Tunisia concerning the interpretation of the Court’s judgment in the Continental Shelf (Tunisia/Lybia) case, decided in 1982. Tunisia’s application also referred to other questions entirely alien to the interpretation request, namely the revision of part of the judgment based on Article 61 and the correction of an error that, according to Tunisia, the Court had made in the decision. For that reason, the procedure employed by the Court to deal with these three questions was of a sui generis nature. The Court found that the request for interpretation was a proper one and construed part of the judgment—although, one may add, not quite in the sense expected by Tunisia (Application for Revision and Interpretation-Tunisia/Libya Continental Shelf, Judgment of 10 Dec. 1985, ICJ Rep. 1985, p. 192).

11  The request referred to judgment No. 3, delivered on 12 September 1924. 12  The request covered judgments Nos. 7 and 8, delivered, respectively, on 25 May 1926 and 26 July 1927.

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The next case was a request by Nigeria concerning the interpretation of the judgment of 11 June 1998, on the preliminary objections raised by that State in the Cameroon v. Nigeria case. The request was declared inadmissible by the Court (Request for Interpretation-Cameroon v. Nigeria, Judgment of 25 March 1999, ICJ Rep. 1999, p. 31). Then came the request by Mexico concerning the interpretation of the judgment of 31 March 2004 in the Avena case. This case had the special feature that Mexico also filed a request for provisional measures of protection under Article 41 of the Statute—the first time that this was done in the context of derivative proceedings on interpretation of judgments. As provisional measures have “priority over all other cases” (Aricle 74, para. 1 of the Rules of Court), oral proceedings were conducted in a matter of weeks and the Court delivered an order on 16 July 2008, indicating certain provisional measures and declaring the request for interpretation admissible (Request for Interpretation-Avena, Provisional Measures, Order of 16 July 2008, ICJ Rep. 2008, p. 311). Subsequently, two rounds of written pleadings were exchanged and the Court delivered a judgment on 19 January 2009, whereby it refused to undertake the interpretation of the original decision (Request for Interpretation-Avena, Judgment of 19 Jan. 2009, ICJ Rep. 2009, p. 3). The Court concluded that [t]he matters claimed by the United Mexican States to be in issue bet­ ween the Parties, requiring an interpretation under Article 60 of the Statute, are not matters which have been decided by the Court in its Judgment of 31 March 2004 in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), including paragraph 153 (9), and thus cannot give rise to the interpretation requested by the United Mexican States. (Request for Interpretation-Avena, Judgment of 19 Jan. 2009, ICJ Rep. 2009, p. 21, para. 61 (dispositif ))

The last case to date of in this group followed the pattern of Avena in that upon filing the request for interpretation the applicant also asked the Court to indicate provisional measures. Strikingly, the request filed by Cambodia on 28 April 2011 referred to the Court’s judgment on the merits in the Temple of Preah Vihear case, a decision adopted some five decades before, in 1962. The Court adopted certain provisional measures and subsequently declared the request admissible and issued an interpretative decision (Request for I­nterpretation-Temple of Preah Vihear, Provisional Measures, Order of 18 July 2011, ICJ Rep. 2011, p. 537; Judgment of 11 Nov. 2013).

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To a certain extent, the 1995 Nuclear Tests-Request for Examination case could be added here because although it was not handled within the framework of Article 60 of the Statute, did involve an exercise in interpretation of the Court’s 1974 decision (Order of 22 Sept. 1995, ICJ Rep. 1995, p. 288).13

a)

Legal Framework

The interpretation of judgments of the ICJ is governed by a combination of provisions found in Article 60 of the Statute and Articles 98 and 100 of the Rules of Court. Article 60 of the Statute contains two complementary rules of a peremptory nature. According to the first, “the judgment is final and without appeal;” according to the second, “[i]n the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.”14 While the former supplements Article 59 and conveys the res judicata principle, the latter reflects the essence of the maxim eius est interpretare legem cuius condere.

Box # 16-2

Article 60: Background

The text of Article 60 of the Statute of the ICJ is identical to the same provision in the Statute of the PCIJ, in which it was incorporated following the model of Article 82 of the 1907 Hague Convention on the Peaceful Settlement of Disputes.15 A similar provision can also be found in Article 24 of the 1907 Washington Convention establishing the Central-American Court of Justice.16

13  For a comment see J.G. Merrills, “Reflections on the Incidental Jurisdiction of the International Court of Justice”, in M.D. Evans (Ed.), Remedies in International Law: The Institutional Dilemma, 1998, p. 68. 14  While in the English version of the Statute the verb “to construe” is used, the Rules prefer “to interpret.” The Rules of the PCIJ used “to construe” until the revision of 1936. In the Rules of the present Court “to interpret” has always been used. 15  However, the formula included in Article 82 of the 1907 Convention has a wider scope, as it refers not only to disputes concerning the interpretation of an award but also to those concerning its execution. On this see G. Salvioli, “À propos de l’Article 82 de la Convention I de La Haye du 18 Octobre 1907”, RHDI, vol. 10 (1957), pp. 22–25. 16  For the text see AJIL Supplement No. 2 (1908), pp. 231–243.

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It is worth noting that in the English version of the draft-scheme adopted by the 1920 Committee of Jurists, the term formerly referring to the situation triggering interpretation proceedings was weaker than the one that was eventually adopted. Indeed, while the text of Article 60 requires the existence of a “dispute” as to the meaning or scope of the judgment, the initial draft by the Committee stated that the Court could be called to interpret one of its decisions “in the event of uncertainty.”17 Thus, the original version of this privision did not even require the existence of a disagreement between the parties as to the meaning and scope of the judgment, but merely demanded that “uncertainty” existed over that question. A further aspect of Article 60 worth noting is that under the original scheme as foreseen in the Committee of Jurists’ draft, the Court would have had general compulsory jurisdiction on certain matters—including the interpretation of its own decisions (Article 34, which became Article 36)—and would also have a special competence for construing its own judgments “at the request of any party” (Article 58, which became Article 60).18 When the Council of the League considered the draft, it quickly rejected the notion of compulsory jurisdiction arguing that it ran against Article 12 of the Covenant, and settled for a type of jurisdiction that was entirely voluntary. However, the Council retained the mention to the interpretation of judgments in the provision describing the material scope of such voluntary jurisdiction, and it also preserved the Court’s special competence to interpret its decisions. It was the Assembly who deleted the mention to the interpretation of judgments from the list of disputes over which the Court’s jurisdiction could be accepted voluntarily by States, under the “Fernández Formula,” giving rise to the Optional Clause. Nevertheless, the Assembly maintained the essence of Article 58. A contemporary author described the situation in the following terms: A consistent application of the theory that the Covenant precluded the provision for compulsory jurisdiction within the Statute would seem to have necessitated the removal of Article 60 from that document. Doubtless its retention may be explained by the fact that the jurisdiction

17  Hudson’s PCIJ, p. 208; N.L. Hill, “The Interpretation of the Decisions of International Courts”, Georgetown LJ, vol. 22 (1933–1934), p. 541. 18  The Advisory Committee of Jurists lifted this from the “Five Powers Plan,” composed in 1920 by representatives of Denmark, Norway, Sweden and Switzerland, nations that had been neutral during the First World War (Hudson’s PCIJ, pp. 143 and 191, note 24). See PCIJ, Procès-verbaux, p. 684.

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conferred by it upon the Court would not be objectionable from a practical point of view. There was little likelihood that many disputes over the meaning of judgments would be brought before the tribunal, and, since the original controversy had been voluntarily brought, it would ordinarily follow that a later disagreement relating to the meaning of the judgment would also be willingly submitted.19 It is submitted that this form of reading Article 60—which, as it will be seen, would resurface within the Court itself in the context of the revision of the Rules—is essentially mistaken, for it is premised on the voluntary submission of any dispute concerning the meaning of a judgment, i.e., the joint submission by both parties to the original case. However, that provision clearly provides for the submission of such a dispute to the Court “upon the request of any party.” The truth is that, while the Council rejected outright the notion of compulsory jurisdiction over substantive matters, it endorsed, in all likelihood without even noticing, the granting of extensive powers to the Court over incidental questions connected to, but distinct from, the merits of a case. Thus, when the Council gave its approval to the last paragraph of the provision that became Article 36 (now paragraph 6), it gave the Court the power to settle any dispute as to the existence of jurisdiction and when it endorsed Article 41 it granted the Court the power to indicate provisional measures. These provisions can therefore be seen as embodying genuine forms of compulsory jurisdiction that are not dependent upon the immediate consent of the parties to a case. Article 60 is just one other class of incidental jurisdiction and, to that extent, it also embodies an actual conferrement of compulsory jurisdiction to the Court.

The interpretation provided for in this article, therefore, represents the authoritative or authentic interpretation of the Court’s decisions. Naturally, that type of interpretation can only be made by the same body that produced the decision to be interpreted. This general principle was formulated by the Permanent Court in the following terms: [i]t is an established principle that the right of giving an authoritative interpretation of a legal rule belongs solely to the person or body who has the power to modify or suppress it. ( Jaworzina, Advisory Opinion No. 8, 6 Dec. 1923, PCIJ B 8, p. 37)

19  Hill, “The Interpretation . . .”, p. 543.

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However, in the case of litigation befoe the ICJ this does not mean that the composition of that body must be identical to the one in existence when the original decision was made. In fact, Article 66, para. 3 of the 1926 Rules, concerning the procedure of interpretation of judgments and containing a renvoi to Article 13 of the Statute, was deleted in 1936, because it was felt that such a rule might be difficult or even impossible to apply, for instance when the request for interpretation was made several years after the judgment is delivered.20 An interesting variation refers to cases that are not dealt with by the full Court but rather by a chamber. Article 100 of the Rules is very clear in providing that if the judgment to be interpreted was given by a chamber, “[t]he request for its . . . interpretation shall be dealt with by that Chamber.” As is apparent, this provision is applicable to all types of chambers foreseen in the Statute, i.e. the chambers formed “for dealing with particular categories of cases” (Article 26, para. 1); the chambers formed “for dealing with a particular case” (Article 26, para. 2); and the Chamber of Summary Procedure, constituted annually “with a view to the speedy dispatch of business” (Article 29).21 However, the Statute does not contain any time-limit for the filing of a request for interpretation of a judgment.22 For this reason, it is entirely possible that at a given moment it would not be possible to re-constitute a chamber with exactly the same composition as the one it possessed when the original case was handled, a situation that could give rise to serious difficulties in assuring compliance with Article 100 of the Rules.23 In any case, that provision is also applicable to proceedings on the revision of judgments—another type of derivative procedure with which interpretation has many similarities—and the practice thereon shows that thus far the Court and the parties have been ready to show a great deal of flexibility in this regard.24 In the Request for Interpretation-Cameroon v. Nigeria case, the Court underlined the fact that the primary aim of Article 60 of the Statute is that of articulating the res judicata principle and that proceedings on interpretation cannot weaken it. The Court remarked:

20  PCIJ D 2, Add. 3 (1936), pp. 334; 780–781 and 832–833. 21  For a description of the chambers system see Chapter 19. 22  As noted by the Court in the Request for Interpretation-Temple of Preah Vihear, Provisional Measures, Order of 18 July 2011, ICJ Rep. 2011, p. 546, para. 37. 23  A warning in this direction can be found in S. Rosenne, “The 1972 Revision of the Rules of the ICJ”, Israel LR, vol. 8 (1973), p. 212. 24  See Chapter 17, b).

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It is not without reason that Article 60 of the Statute lays down, in the first place, that judgments are “final and without appeal”. Thereafter, the Article provides that in the case of a “dispute as to the meaning or scope of the judgment”, it shall be construed by the Court upon the request of any Party. The language and structure of Article 60 reflect the primacy of the principle of res judicata. That principle must be maintained. (Request for Interpretation-Cameroon v. Nigeria, Judgment of 25 March 1999, ICJ Rep. 1999, p. 36, para. 12)

This proposition is premised on the basic assumption that the procedure of interpretation must not be used—or, rather, abused—so as to weaken or anull in any manner the principle of the finality and binding effects of the Court’s judgments.25 The finality of the judgments of the Court—even those in need of intepretation as to their meaning or scope—is not affected in any manner when the Court is called upon to construe them. A former member of the Court has stressed that while the res judicata principle represents the foundation of Article 60, when its decision is not entirely clear or precise the parties to a case are entitled to request an authoritative interpretation from the Court: The underlying reason for Article 60 of the Statute is to preserve the integrity and finality of a judgment of the Court—the issue of res judicata— a matter not contested in the request. But the provision supplemented by Article 98, paragraph 1, of the Rules of Court also contemplates and allows for the interpretation/clarification of its judgment by the Court so as to give precision and definition to the scope and meaning of such a judgment. Where such precision or clarification is missing, a party is entitled to request the Court to make it.

(Request for Interpretation-Cameroon v. Nigeria, Dissenting Opinion of Judge Koroma, ICJ Rep. 1999, p. 52, para. 12)

Thus, within the general scheme of the Statute, Article 60 plays two important roles: on the one hand, it consecrates unequivocally the special—statutory— jurisdiction that the Court has been granted in order to interpret its own decisions; and on the other it establishes the conditions for the exercise of that jurisdiction, i.e. the conditions under which a request for interpretation will be admissible. 25  Schwarzenberger’s Judicial Law, p. 682. On the scope of the res judicata principle see Chapter 10, f ).

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Scope of Article 60: Decisions Subject to Interpretation Since Article 60 speaks of “the judgment,” it is very clear that this provision is only applicable to those decisions delivered by the Court at the end of proceedings in contentious cases that take the form of a judgment (“arrêt”). By the same token, in the Cameroon v. Nigeria-Interpretation case, the Court clarified that under this provision “any judgment” is subject to interpretation. According to the Court: By virtue of the second sentence of Article 60, the Court has jurisdiction to entertain requests for interpretation of any judgment rendered by it. This provision makes no distinction as to the type of judgment concerned. It follows, therefore, that a judgment on preliminary objections, just as well as a judgment on the merits, can be the object of a request for interpretation. (Request for Interpretation-Cameroon v. Nigeria, Judgment of 25 March 1999, ICJ Rep. 1999, p. 35, para. 10)26

The rationale for this finding was developed by judge Weeramantry in his dissenting opinion in the same case, in the following terms: [E]ven in preliminary objections, there may well be some aspect which genuinely needs clarification. Considerations of fairness in the presentation of one’s case, as well as the right of a party to know precisely what the Court has decided, cannot be overridden by the circumstance that the Court is operating within the framework of its preliminary objections to jurisdiction. Such a technical and procedural consideration cannot in principle deprive a party of its substantive right to seek clarification of a matter so crucial to it as the meaning of the Court’s judgment. The principle of affording parties such essential assistance as they are entitled to, in terms of the Court’s Statute and Rules, cannot vary, depending on whether the proceedings are in regard to preliminary objections or at the stage of hearing upon the merits. (Request for Interpretation-Cameroon v. Nigeria, Dissenting Opinion of Judge Weeramantry, ICJ Rep. 1999, p. 43)

26  In its decision in the second phase of the the South West Africa cases the Court had avoided pronouncing on several related aspects of its judgments on preliminary objections, including whether they should be considered as final within the meaning of Article 60 ( Judgment of 18 July 1966, ICJ Rep. 1966, pp. 36–37, para. 59).

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It is worth remembering that, other than questions of the merits and preliminary objections, the Court issues judgments with regard to questions of jurisdiction or admissibility that are handled separatedly from the merits, intervention requests under Article 62 of the Statute, and requests for revision and interpretation. It follows that other decisions of the Court, such as advisory opinions and orders, would be excluded from the scope of Article 60, as well as decisions on interlocutory matters that the Court may adopt in the course of proceedings on a given case. A good example of the latter is the Genocide Convention (Bosnia) case, in which the Court decided not to hold hearings on a certain date and, after communicating this determination to the parties, had to deal with an “Application for the interpretation” of that decision submitted by one of them. The judgment on the merits records that the Registrar informed the Agent of the requesting party that, according to Article 60 a request for interpretation could relate only to a judgment of the Court, and therefore the document transmitted to the Court under that label could not constitute a request for interpretation and had not been entered on the Court’s General List.27 However, the fact that the special procedure outlined in Article 60 of the Statute and Article 98 of the Rules is not applicable to decisions by the Court other than judgments does not mean that the Court is precluded from interpreting them in the exercise of its ordinary functions under other provisions of the Statute. In the case of advisory opinions, nothing prevents the requesting organ that finds certain passages of an opinion to be obscure or unclear from going back to the Court and requesting a fresh opinion on what is actually an authoritative construction of the original decision. This has happened at least twice in the history of the current Court, for both the 1955 Advisory Opinion on South West Africa-Voting Procedure and the 1956 Advisory Opinion on South West Africa-Admissibility of Hearings originated in requests for the interpretation of the seminal 1950 opinion on the International Status of South-West Africa.28 In the first of these the request used the term “elucidation” instead of “interpretation,” but the truth of the matter is that what was requested—and obtained—from the Court was a legal construction of certain findings included in the 1950 opinion.29 As for the orders issued by the Court in the course of proceedings, it has been said that since the Court possesses the general power to decide all aspects 27  Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 53, para. 22. 28  See, respectively, Advisory Opinion of 7 June 1955, ICJ Rep. 1955, p. 67; Advisory Opinion of 1 June 1956, ICJ Rep. 1956, p. 23; Advisory Opinion of 11 July 1950, ICJ Rep. 1950, p. 128. 29  South West Africa-Voting Procedure, Advisory Opinion of 7 June 1955, ICJ Rep. 1955, p. 69.

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concerning the procedure to be followed in the cases before it—and, it may be added, in order to do so it organizes and conducts interlocutory proceedings that often conclude with the delivery of formal orders—there is nothing precluding it from using one such order to interpret or clarify the exact meaning and scope of what it decided by previous orders.30 Additionally, the Court deals very often in its orders with general aspects of its work involving the interpretation of provisions in the Statute and the Rules, and it does so regularly by invoking its previous decisions as authority. Therefore, it can be said that the Court is permanently interpreting its own decisions concerning questions of procedure. This may prove important, because in the course of incidental proceedings such as requests for the indication of provisional measures, counter-claims (admissibility), third-party intervention (in certain cases), and proceedings on interpretation (admissibility), the Court regularly adopt relevant decisions in the format of orders. It would simply not be consonant with a proper administration of justice to consider that decisions of this kind are not capable of being interpreted just because they fall outside the scope of Article 60 of the Statute. In the case of orders on provisional measures, in particular, it has been said that there would not be a real need to request an interpretation of a previous order, given the effect of Article 76 of the Rules.31 Role of Court Under Article 60 The opinion has been expressed that Article 60 of the Statute contains a peremptory rule that imposes on the Court an authentic duty to construe its decisions whenever this is requested by a party to a case. In the Request for Interpretation-Cameroon v. Nigeria case, for instance, in which the Court rejected the request for interpretation, judge Weeramantry appended to the judgment a dissenting opinion in which he stated that when there is a dispute as to the meaning or scope of a judgment “[t]he Court is under an obligation to construe [it] under Article 60 at the request of a party seeking clarification,” adding that: [a] judgment, however well crafted, could well embody phraseology which, in the context of a given set of circumstances, may require some clarification. It is one of those incidents of litigation which the judicial 30  Rosenne’s Law and Practice, vol. 3, p. 1672. 31  Thirlway’s Law and Procedure, Part 13, BYIL, vol. 74 (2003), p. 83; K. Oellers-Frahm, “Interpretation of Judgments of International Courts and Tribunals”, MN 12, in Max Planck EPIL. On Article 76 of the Rules see Chapter 11, d).

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experience of ages has shown may arise from time to time, and it is precisely for this reason that Article 60 of the Court’s Statute made such clear provision for the right to interpretation. Indeed, the Article was drafted so strongly as to cast the Court’s duty in imperative terms: “In the event of a dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party” (emphasis added) (Request for Interpretation-Cameroon v. Nigeria, Dissenting Opinion of Vice-President Weeramantry, ICJ Rep. 1999, pp. 47–48)

Judge Weeramantry also recalled in this regard a dictum by the Permanent Court in the Request for Interpretation-Factory at Chorzów case according to which when a difference of opinion exists as to whether a particular point has or has not been decided, this comes within the terms of Article 60, “[a]nd the Court cannot avoid the duty incumbent upon it of interpreting the judgment in so far as necessary, in order to adjudicate upon such a difference of opinion’.”32 According to this view, then, not only would the Court be bound to construe its judgments whenever there is a request submitted to it but, correlatively, the parties in every case would be entitled to obtain an interpretation as a matter of right. The wording of Article 60, in particular the use of the verb “shall,” lends some support to this view on the role that the Court is called to play under this provision. This is also reinforced if Article 60 is compared with other provisions in the Statute in which a clear intention of the drafters to confer upon the Court a large measure of discretion in deciding upon certain aspects of its incidental jurisdiction is visible. Examples of this include Article 41 on provisional measures (“[t]he Court shall have the power to indicate, if it considers that circumstances so require”) and Article 65 which provides the basis for the Court’s advisory jurisdiction (“[t]he Court may give an advisory opinion . . .”). It is also the case in a number of provisions in the Rules, such as Article 79, para. 2, referring to preliminary objections (“[t]he Court may decide that any questions of jurisdiction and admissibility shall be determined separately . . .”) and Article 80 on counter-claims (“[t]he Court may entertain a counter-claim . . .”). However, the Court has been very cautious in applying Article 60 and has refused to entertain requests for interpretation on several occasions. In fact, 32  Request for Interpretation-Cameroon v. Nigeria, Dissenting Opinion of Vice-President Weeramantry, ICJ Rep. 1999, pp. 47–48 (emphasis added). In the same direction, see the views voiced by Lord Finaly and Anzilotti during the discussion on the reform of the Rules of Court in 1926 (PCIJ D 2, Add. (1926), pp. 175 and 176, respectively).

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the record of the current Court thus far in this regard is similar to that of the Permanent Court, because it has rejected three out of the five requests that it has received, just as the PCIJ rejected one and took up another. Practice also shows that everyone involved has generally taken for granted that it is for the Court to determine whether a request for interpretation of a judgment is to be entertained or not, on the basis of its assessment as to the fulfilling of the conditions present in Article 60. From this it may be concluded that the Court’s case law does not support the idea that it is under a duty to construe its judgments in every case in which it is requested to do so. It follows that, notwithstanding the language of that provision, Article 60 merely embodies a right to request an interpretation on the part of States parties, and not the right to obtain it.33 Also concerning the question of its proper role in interpretation proceedings, the Court remarked as follows in the Request for Interpretation-Temple of Preah Vihear case: The Court begins by recalling that its role under Article 60 of the Statute is to clarify the meaning and scope of what the Court decided in the judgment which it is requested to interpret (. . .). Accordingly, the Court must keep strictly within the limits of the original judgment and cannot question matters that were settled therein with binding force, nor can it provide answers to questions the Court did not decide in the original judgment. (Request for Interpretation-Temple of Preah Vihear, Judgment of 11 Nov. 2013, para. 66)

In the same case, the Court clarified that, in determining the meaning and scope of the operative part of the original judgment the Court will, “in accordance with its practice,” have regard to the reasoning of that decision “to the extent that it sheds light on the proper interpretation of the operative clause” and that elements like the pleadings and the record of the oral proceedings “are also relevant.”34 On the other hand, the headnote included at the ­beginning of

33  On this see also judge Anzilotti’s dissent in the Request for Interpretation-Factory at Chorzów case (PCIJ A 13, Dissenting Opinion of Judge Anzilotti, p. 23). Additional considerations on the role of the Court with regard to the interpretation of its judgments can be found in the last section of this chapter, concerning the effects of the judgment in interpretation proceedings. 34  Request for Interpretation-Temple of Preah Vihear, Judgment of 11 Nov. 2013, paras. 68–69.

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the judgment does not assist in resolving questions of interpretation concerning that judgment.35 Finally, it is not for the Court, in exercising its jurisdiction under Article 60 of the Statute, to make an assessment of the petitum that was before it in the original case, although this in no way involves an infrigment of the non ultra petita rule: The principle of non ultra petita is well established in the jurisprudence of the Court (. . .) and is one reason why the claims contained in the final submissions of the Parties in the original case are of relevance in interpreting the 1962 Judgment. Nevertheless, that principle cannot justify an interpretation which runs counter to the terms of the 1962 Judgment. The Court in 1962 necessarily made an assessment of the scope of the petitum before it; Article 60 of the Statute does not give the Court the power today to substitute a different assessment for that made at the time of the Judgment. (Request for Interpretation-Temple of Preah Vihear, Judgment of 11 Nov. 2013, para. 71)

Interpretation in Practice: Articles 98 and 100 of the Rules Apart from the above-mentioned Article 100, the Rules of Court devote Article 98 in its entirety to the interpretation of judgments. This provision is included in Section F (“Judgments, Interpretation and Revision”) of Part III (“Proceedings in contentious cases”). A provision concerning interpretation has featured in the Rules since the revision of 1926, without having experienced too many substantive changes.36 It is worth noting, in any case, that since the 1972 amendments the Rules contain an entire section concerning interpretation and revision of the judgments. The Rules of 1978, for their part, are the first to deal with them in that order, which is the one used in the Statute, and had been reversed in the Rules since 1926.

35  Ibid., para. 73. 36  The numbering of the article, however, has been altered several times. Article 98 of the current Rules corresponds to articles 66, para. 2 of the 1926 Rules, article 78 of the 1936 Rules, article 79 of the 1946 Rules and article 84 of the 1972 Rules. The Court said in the Request for Interpretation-Factory at Chorzow case that Article 66 of the 1926 Rules “[w]as intended by the Court to furnish information indispensable in regard to proceedings for interpretation” ( Judgment No. 11, 16 December 1927, PCIJ A 13, p. 16). This observation remains valid with regard to current Article 98.

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Box # 16-3 Interpretation of judgments in the Rules of Court: Evolution While the original Rules of the PCIJ, adopted in 1922, included a concise regime implementing Article 61 of the Statute, concerning the revision of judgments (Article 66), they contained no provision concerning interpretation proceedings. When the Rules were revised in 1926 in light of the judicial experience thus far obtained, the Court decided to add to it several provisions concerning the interpretation of judgments so that in the future this article would govern both revision and interpretation (For the background of the reform see PCIJ D 2, Add. (1926), pp. 174–180). The text of the relevant sections of Article 66, located in Section VIII of the 1926 Rules, entitled “Revision and Interpretation” is: Article 66 (. . .) 2. A request to the Court to construe a judgment which it has given may be made either by the notification of a special agreement between all the parties or by an application by one or more of the parties. The agreement or application shall contain: (a) A specification of the judgment the interpretation of which is requested; (b) An indication of the precise point or points in dispute. If the request for interpretation is made by means of an application, it shall be the duty of the Registrar to give immediate notice of such application to the other parties, and the latter may submit observations within a time-limit to be fixed by the Court or by the President, as the case may be. The Court may, whether the request be made by agreement or by application, invite the parties to furnish further written or oral explanations. 3. If the judgment impeached or to be construed was pronounced by the full Court, the application for revision or the request for interpretation shall also be dealt with by the full Court. If the judgment was pronounced by one of the Chambers mentioned in Articles 26, 27 or 29 of the Statute, the application for revision or the request for interpretation shall be dealt with by the same Chamber. The provisions of Article 13 of the Statute shall apply in all cases.

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4. Objections to the Court’s jurisdiction to revise or to construe a judgment, or other similar preliminary objections, shall be dealt with according to the procedure laid down in Article 38 of the present Rules. 5. The Court’s dccision on requests for revision or interpretation shall be given in the form of a judgment. The procedure envisioned in Article 66 of the 1926 Rules of the PCIJ remains very much in place, because the essentials of that provision have been maintained in subsequent versions of the Rules, with only minor changes of drafting and organization. There are, however, several changes that the relevant provision has undergone over time. The first such change was introduced in 1936 and consisted of the deletion of paragraph 3 of Article 66, which provided that Article 13 of the Statue—dealing with changes in the composition of the Court—would be applicable “in all cases.” As it was explained above, this paragraph was deleted because it was felt that in many cases it would be difficult, if not outright impossible, to ensure that the composition of the bench at the time of the interpretation would be identical to the one at the time when the judgment to be interpreted was delivered. The second change concerns paragraph 4 of Article 66, which was deleted altogether in the 1936 revision. The background of the revision of Article 66 carried out in 1926 shows that the summary procedure adopted and embodied in that provision was to be applicable when questions of admissibility relating to the request for interpretation arose, i.e. when there were doubts as to the fulfilling of the conditions provided for in Article 60 of the Statute. From a conceptual standpoint, it is doubtful if such a simplified procedure should be maintained in order to handle questions of admissibility (along with resolving on the request itself) and, at the same time, a separate and more cumbersome procedure—such as that provided for in Article 38 of the Rules—would be in place in order to deal with questions of jurisdiction. Besides, according to its own wording, paragraph 4 was applicable not only to objections of jurisdiction but also to “other similar preliminary objections,” a formula that apparently covers objections of admissibility, thus evidencing another apparent contradiction within the text of Article 66. Finally, starting with the judgment of the Court in the Request for Interpretataion-Factory at Chorzów case, the practice on interpretation of judgments evidenced a gradual shifting of the focus of attention, from the subject of jurisdiction to that of admissibility, and thus it was only

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to be expected that the 1936 revision would bring about the complete deletion of paragraph 4 of Article 66, which then became Article 79.37 In the 1936 revision it was also decided to split the common rules concerning revision and interpretation and make them into separate provisions. Paragraph 3 of Article 66 thus became Article 80, and paragraph 5 became Article 81. This structure was maintained in the 1946 and 1972 amendments, although in the latter the numbering of the article was changed again and articles 79 to 81 became Articles 84 to 86. The third significant change that the Rules on interpretation have undergone since 1926 is the addition of a new paragraph to the first Article in the section concerning interpretation, which in the 1978 reform became Article 98. This is paragraph 1 of the said article, which is discussed below.

Paragraph 1 of Article 98 of the Rules, introduced in the 1978 reform, supplements Article 60 of the Statute by providing that: [i]n the event of dispute as to the meaning or scope of a judgment any party may make a request for its interpretation, whether the original proceedings were begun by an application or by the notification of a special agreement. The first sentence of this paragraph reformulates, without changing or adding anything, the relevant part of Article 60 of the Statute. As for the second sentence, it has been said that the reasons for differentiating the two forms by which the initial case may have been instituted are not clear. Aside from the fact that Article 60 is silent on this, the very structure of the rest of Article 98 makes it clear that such a distinction serves no practical purpose, at least with regard to the procedure to be followed.38 The relevant distinction in this context is the one between the different forms of instituting, not the original proceedings but the derivative proceedings on interpretation, which is covered exhaustively by paragraphs 2 to 4 of the same article. A possible explanation may be found in the circumstance that during the first revision of Rules of the PCIJ doubts were expressed as to whether Article 60 37  Nevertheless, as the record shows, the deletion of paragraph 4 took place under circumstances that are far from clear (PCIJ D 2, Add. 3, 1936, pp. 335, 677 and 937). 38  Rosenne’s Procedure, p. 203.

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authorized unilateral recourse to the Court when the original proceedings had been submitted on the basis of a special agreement. This hesitation appears to have been based on a common confusion between the question of jurisdiction and the question of the seisin of the Court, which, for that matter, is understandable, since the special agreement usually plays a role with regard to both of them, i.e. providing a basis for jurisdiction but also being the chosen method for instituting the proceedings.39 As the present Court has chosen not to publish the travaux preparatoires of its Rules, it is imposible to verify this presumption. On the other hand, when a case is brought before the Court by means of a special agreement it is not rare for that instrument to contain some provision governing the interpretation of the decision, sometimes fixing a time-limit for instituting additional proceedings to that effect—as is also done in ad hoc arbitrations. In the Benin/Niger case, for instance, the special agreement contained a provision according to which “[i]n case of difficulty in the implementation of the judgment, either Party may seise the Court pursuant to Article 60 of the Statute.”40 Interestingly, this provision mentions the Court, notwithstanding the fact that the case was submitted to a chamber. In any case, if a question of interpretation of the judgment were to arise in these circumstances Article 100, para. 1 of the Rules would become applicable, with the result that the request for interpretation should be dealt with by the chamber and not by the full Court. On the other hand, this provision in the special agreement could also be considered as an example of implementation of Article 101 of the Rules, authorizing a departure from Article 100. In cases like these, the Court would be in principle bound to give effect to those arrangements as lex specialis, unless, of course, something in them is contrary to Article 60. This is further illustrated by the cases discussed in the following box.

Box # 16-4

Special Agreement v. Article 60

In a case instituted by special agreement in which this instrument contains provisions on interpretation of the resulting judgment it is likely that the Court will give effect to those provisions. However, in cases in which they conflict with

39  See the opinion of the President (Huber) at the session of 24 July 1926 and the immediate response of Anzilotti, who did not in the least doubted that Article 60 authorized unilateral recourse to the Court for purposes of interpretation (PCIJ D 2, Add. (1926), pp. 175– 176). On the dual role played by special agreements see Chapter 2, e). 40  Benin/Niger, Judgment of 12 July 2005, ICJ Rep. 2005, p. 96, para. 2.

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the Statute, it is clear that this latter instrument will prevail, as the Application for Revision and Interpretation-Tunisia/Libya Continental Shelf case shows. The judgment on the merits in this case was delivered on 24 February 1982 and on 27 July 1984 Tunisia filed a request for interpretation on the basis of Article 60 of the Statute, along with an application for revision under Article 61 and a request for the correction of an error. Libya challenged the jurisdiction of the Court to entertain the request for interpretation on the basis that the special procedure provided for in Articles 2 and 3 of the special agreement had not been followed. These provisions read: Article 2 Following the delivery of the Judgment of the Court, the two Parties shall meet to apply these principles and rules in order to determine the line of delimitation of the area of the continental shelf appertaining to each of the two countries, with a view to the conclusion of a treaty in this respect. Article 3 In case the agreement mentioned in Article 2 is not reached within a period of three months, renewable by mutual agreement from the date of delivery of the Court’s Judgment, the two Parties shall together go back to the Court and request any explanations or clarifications which would facilitate the task of the two delegations to arrive at the line separating the two areas of the continental shelf, and the two Parties shall comply with the Judgment of the Court and with its explanations and clarifications.41 Libya’s contention was that Article 3 should be respected by both parties and that if a request for explanations or clarifications was in order the parties were bound to return to the Court together. However, such a return presupposed that the experts of the parties had made a good faith effort to implement the Court’s judgment and, moreover, that in case these efforts were unsuccessful the experts were bound to indicate those precise points of divergence to be included in the request. According to Libya, the competence of the Court to deal with a request for interpretation under Article 60 was subject to the condition that the alternate procedure for interpretation provided for in Article 3 of the special agreement be exhausted and this was a procedure that required the

41  The text of the special agreement was reproduced in full in the judgment (Application for Revision and Interpretation-Tunisia/Libya Continental Shelf, Judgment of 10 Dec. 1985, ICJ Rep. 1985, p. 214, para. 41).

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joint resort to the Court. Tunisia, on the other hand, admitted that the procedure provided for in Article 3 referred to the interpretation of the judgment but contended that the effect of that provision could not be that of depriving Article 60 of its effect.42 The concrete aspect on which the Court was called to express an opinion was the relationship between the special procedure in Article 3 of the special agreement and unilateral resort to the Court under Article 60 of the Statute. The Court recalled the statutory foundation for its jurisdiction with regard to the interpretation of its judgments—expressly contrasting it with the jurisdiction to decide on the merits, which will always be based on the immediate consent of the parties—and declared that it “[h]as in any event to consider whether the conditions for the existence of that jurisdiction are fulfilled.” From there, the Court went on to conclude the following: The effect of Article 3 of the Special Agreement, as interpreted by Libya as being in pari materia with Article 60 of the Statute, would be to make the right of each Party to request an interpretation—a right exercisable ­unilaterally—subject to the prior employment of a procedure requiring the participation of both Parties. In other words, the exercise of the right of one party to seek an interpretation under Article 60 of the Statute would be effectively blocked by the other party, if that party chose not to co-­operate. Whether or not such an agreement could validly derogate— as between the parties thereto—from the Statute, it is not lightly to be presumed that a State would renounce or fetter its right under Article 60 of the Statute to request an interpretation unilaterally. Accordingly, the Court is unable to interpret the Special Agreement in that sense, and does not consider that the request made by Tunisia for interpretation in reliance on Article 60 of the Statute is affected by the existence of Article 3 of the Special Agreement. (Application for Revision and Interpretation-Tunisia/Libya Continental Shelf, Judgment of 10 Dec. 1985, ICJ Rep. 1985, p. 216, para. 43)

42  To a certain extent, this discussion of the meaning and scope of Article 3 of the special agreement had already been anticipated during the proceedings on the merits (Tunisia/ Libya Continental Shelf, Merits, Judgment of 24 Feb. 1982, ICJ Rep. 1982, pp. 40–41, para. 31). In a dissenting opinion appended to that decision, judge Gros criticized the manner in which the Court handled this aspect of the case (ibid., Dissenting Opinion of Judge Gros, pp. 147–147, paras. 6–7).

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Judge Ruda dissented. For him, the effect of Article 3 of the special agreement was not so much that of blocking unilateral resort to the Court on the basis of Article 60 as it was of deferring that resort to a future time, by establishing a special procedure that had to be followed in the event that the execution of the judgment proved to be difficult. Once this procedure was exhausted, any of the parties was free to invoke Article 60 and resort on their own to the Court, but clearly that was not the situation in this case. (ibid., Separate Opinion of Judge Ruda, pp. 234–235, para. 13). The special agreement in the subsequent Burkina Faso/Niger case poses a different type of problem in relation to Article 60. In Article 7 (3) of this instrument the parties established a special procedure according to which “[i]n case of difficulty in the implementation of the Judgment, either Party may seise the Court pursuant to Article 60 of its Statute.”43 Despite the apparent simplicity of this provision, a question arises as to its precise scope if one takes into account the fact that the procedure for the interpretation of judgments provided for in Article 60 of the Statute is not triggered by a situation in which the parties to a case experience a “difficulty in the implementation” of the decision, but rather by the different situation in which a dispute (“contestation”) arises as to the meaning and scope of the decision. If the “difficulty” in question originates in the fact that such a divergence of views has arisen there will be no problem and either party become entitled to seise the Court unilaterally under Article 60, as provided for in Article 7 (3) of the special agreement. However, if the parties face implementation difficulties of a different nature, not necessarily entailing a divergence of views about the meaning or scope of the judgment, it is doubtful whether the procedure in Article 60 of the Statute will be a proper route for one of the parties to follow. Under Article 36 (1) of the Statute States can certainly agree among themselves to submit any case they want to the Court, including a case concerning difficulties in the implementation of a decision already given by it, and in this regard Article 7 (3) may be considered as a jurisdictional clause of sorts. The problem is that the same provision makes a renvoi to Article 60 of the same instrument, which, as seen above, may turn out not to be the applicable provision.44 43  ICJ Press Release 2010/24, 21 July 2010. This is a translation made by the Registry. The special agreement was concluded in the French language, and in Article 5 the parties agreed further that their pleadings and their oral argument would also be presented in French. This provision may have been inspired by Article 7 (3) of the special agreement in the Benin/Niger case, a provision that was never resorted to ( Judgment of 12 July 2005, ICJ Rep. 2005, p. 96, para. 2). 44  An alternate view is that a provision of this type may be considered as a tool for the enforcement of the decision by the Court or chamber (M. Al-Qahtani, “The Role of

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Paragraphs 2 to 4 of Article 98 establish the procedural rules applicable to proceedings on interpretation. They will be discussed below. As for Article 100 of the Rules, which is aplicable to both interpretation and revision, it contains two important provisions. The first concerns those cases in which the judgment to be interpreted was delivered by a chamber and not by the full Court. The second relates to the format that should be adopted for the Court’s decision on the request for interpretation. These aspects will also be discussed below in the subsection concerning procedure. b)

Jurisdiction and Admissibility

As in the case of other modalities of incidental jurisidiction, the Court’s competence to construe its own decisions—which an author has qualified as “auxiliary and automatic”—45 has a statutory basis, i.e., it is based exclusively on the provisions of Article 60. The Court has admitted as much in stating as follows: The jurisdiction of the Court to give an interpretation of one of its own judgments . . . is a special jurisdiction deriving directly from Article 60 of the Statute. (. . .) Furthermore, the Parties to this case, in becoming parties to the Statute of the Court, have consented to that jurisdiction without pre-condition. (Application for Revision and Interpretation-Tunisia/Libya Continental Shelf, Judgment of 10 Dec. 1985, ICJ Rep. 1985, p. 216, para. 43)

More recently, the Court also underlined that, being of a statutory nature, its jurisdiction to interpret its judgments is not preconditioned by the existence of any other basis of jurisdiction that may exist between the parties to the case. As a consequence of this, this jurisdiction is not affected by the fact that, at the time at which the interpretation is to be given, the basis of jurisdiction in the original case has lapsed or otherwise ceased to exist.46 This might have effects that are potentially negative because, unlike in the case of the revision the International Court of Justice in the Enforcement of Its Judicial Decisions”, Leiden JIL, vol. 15 (2002) p. 795). With respect, it is submitted that this view is untenable as it simply goes against the letter and spirit of Article 60 of the Statute. 45  Schwarzenberger’s Judicial Law, p. 199. See also, with regard to the PCIJ, Scerni’s La Procédure, p. 676. 46  Request for Interpretation-Avena, Provisional Measures, Order of 16 July 2008, ICJ Rep. 2008, p. 323, para. 44, reiterated in Request for Interpretation-Temple of Preah Vihear, Judgment

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of judgments, the Statute contains no temporal limitation for the activation of the Court’s jurisdiction on interpretation.47 As a result, in the realm of theory at least, Article 60 can be invoked at any time by any State who has been a party to a contentious case in which a judgment was given, irrespective of the fact that the jurisdiction of the Court to give that judgment no longer exists. However, there is a general principle of law according to which in given circumstances an unjustified delay by a party to a case may render a request inadmisible. The Court acknowledged the existence and relevance of this principle in the Phosphates in Nauru case and there is nothing to preclude its application to a request for interpretation.48 From a more general point of view it may be said that the jurisdiction that an international tribunal—at least a permanent international tribunal—possesses in the matter of interpretation is also of an inherent character, consubstantial with its judicial nature. This was stated by the United Nations Administrative Tribunal in the Crawford case, in which it held that, although its Statute contained no provision confering that jurisdiction upon it, “[b]oth Parties agreed during the oral proceedings to admit that competence to interpret was inherent in the judicial function which the International Court of Justice in its advisory opinion of 13 July 1950, declared the Tribunal to possess.”49 On the other hand, on the very first occasion on which the Permanent Court faced a request for interpretation, in the case concerning the Request for Interpretation-Treaty of Neuilly, dealt with by the Chamber of Summary Procedure, the question of the latter’s jurisdiction to interpret a judgment was approached from a totally different angle, putting all of the emphasis on a post hoc consent of the parties. In the opening passages of its decision rejectig the request the chamber recalled that it had been seised by Greece of a request of interpretation of its judgment No. 3—delivered a few months earlier in a case that had been of 11 Nov. 2013, para. 32. For a discussion along the same lines, see A. Zimmermann & T. Thienel, “Article 60”, MN 51–52, pp. 1485–1486. 47  The Statute contains not one but two different time-limits aplicable to requests for revision of a judgment (Article 61, paras. 4 and 5). For details see Chapter 17, b). 48  Phosphates in Nauru, Preliminary Objections, Judgment of 26 June 1992, ICJ Rep. 1992, pp. 252–254, para. 32. 49  Quoted in Reisman, “Nullity and revision . . .”, pp. 193–194, note 79. On the concept of inherent powers see the cases Ringeisen (Interpretation) (Series A, No.16, ECHR Rep. 1972, p. 8) and Allenet de Ribemont v. France (ECHR Rep. 1996-III, p. 903), before the European Court of Human Rights. See also Ch. Brown, “The Inherent Powers of International Courts and Tribunals”, BYIL, vol. 76 (2005), pp. 195–244, especially at pp. 218–219 and, by the same author, “A Common Law . . .”, pp. 55–82.

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submitted to the chamber by special agreement—and registered that upon notification of the request the government of Bulgaria had submitted observations with regard to it “[w]ithout disputing the Court’s jurisdiction to give such interpretation.”50 From here, the chamber jumped to the conclusion that “[t]herefore, the Court has jurisdiction to do so as the result of this agreement between the parties” and found also that there was no need “[t]o consider in the present case whether, in the absence of a definite dispute between the parties regarding the interpretation of the Judgment of September 12th 1924, the requisite jurisdiction could be based exclusively on the unilateral request made by the Greek Government.”51 This was connected to the fact that in its request Greece did not in fact referred to any dispute with Bulgaria concerning the meaning or scope of the earlier judgment but merely petitioned that the Court “furnish [the agent] with an authoritative and, as far as possible, detailed interpretation of the judgment.”52 As it can be seen, the Chamber of Summary Procedure decided to found its competence to interpret a previous judgment on an implicit agreement said to have been reached by the parties in the course of proceedings, thus giving rise to one of the earliest known instances of forum prorogatum before the International Court.53 As it turned out, the chamber eventually found that the request could not be granted. The truth of the matter is that, as it has become clear in subsequent decisions, the existence of a disagreement over the meaning or scope of the judgment should constitute a condition of admissibility of requests for interpretation, rather than a factor determining whether or not the Court has jurisdiction to deal with the request. Besides, it is clear now that this is a sine qua non condition, with the result that in the absence of such a dispute the request for interpretation should not be granted, not for want of jurisdiction but rather for lack of compliance with the conditions present in Article 60 of the Statute. It is true that under Article 36, para. 1 of the Statute two or more States can refer to the Court “all cases,” an expression that would cover a joint request for clarification of a previous decision by the Court, even in the absence of a 50  Request for Interpretation-Treaty of Neuilly, Judgment No. 4, 26 March 1925, PCIJ A 4, p. 6. 51  Ibid. 52  Ibid., p. 4. 53  Zimmermann & Thienel, “Article 60”, MN 47, p. 1484. See also the view of Rosenne, for whom this case warrants questioning the general proposition that the concept of forum prorogatum is, by its very nature, inapplicable when the Court possesses a genuine compulsory jurisdiction, such as in all known modalities of incidental jurisdiction. For this author the subsequent case law suggests that the position of the chamber on this was not followed by the Court (Rosenne’s Law and Practice, vol. 2, pp. 723–724). For the concept of forum prorogatum see Chapter 2, f ).

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definite dispute as to the scope or meaning of that decision. However, it is submitted that this could be admissible under that provision but not under Article 60. Also, this would be possible only in cases in which both parties consent to the request, whether this is expressed in a special agreement or via forum prorogatum. Perhaps what explains this manner of proceeding is that the Treaty of Neuilly was one of the first ever to come to the Court by unilateral application, and the decision on the request for interpretation had to be made at a time when the role of State consent with regard to the exercise of the powers conferred upon the Court by the Statute was far from clear. In fact, the express recognition that its jurisdiction to interpret its own judgments has a statutory basis was made by the Court only in the mid-1980s, i.e. more than fifty years after this seminal case. Additionally, it should not be forgotten that the chamber was breaking new ground here, as the applicable Rules of Court, adopted in 1922, were entirely silent on the matter of interpretation.54 From a methodological point of view, the practice of the Court indicates that when it is called to deal with a request for interpretation, it will proceed as it does with regard to other forms of incidental proceedings, such as intervention requests or counter-claims: the Court first would verify that it has jurisdiction to entertain the request, which is something that is easily obtained under Article 60, for the only true jurisdictional condition that can be discerned from that provision is that the requesting State must be a party to a case in which a judgment has been given. However, additional factors can be envisaged. In its decision in Request for Interpretation-Cameroon v. Nigeria, for instance, the Court suggested that when the request concerns sections of the reasoning part of the judgment that are not inseparable from the operative part, this could give rise to a lack of jurisdiction on account of failure to comply with the conditions laid down in Article 60 “[i]n order for the Court to have jurisdiction to entertain a request for interpretation of a judgment.”55 At a second stage, if the Court is satisfied in regard to jurisdiction, it will then look into whether the application is admissible on the basis that it must fulfill the admissibility conditions laid down in Article 60. Only if these two aspects are cleared to the Court’s satisfaction, will it proceed to consider the merits of the request for interpretation. 54  For an explanation of the context of the case see O. Spierman, International Legal Argument in the Permanent Court of International Justice. The Rise of the International Judiciary (2004), pp. 222 and 226. See also Rosenne, “Interpretation . . .”, p. 93. 55  Request for Interpretation-Cameroon v. Nigeria, Judgment of 25 March 1999, ICJ Rep. 1999, p. 36, para. 11.

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Conditions of Admissibility56 In the Request for Interpretation-Cameroon v. Nigeria case the Court observed that the question of the admissibility of requests for interpretation of its judgments “[n]eeds particular attention because of the need to avoid impairing the finality, and delaying the implementation, of these judgments.”57 The conditions for the admissibility of a request for interpretation were identified with special clarity by the Court on the first occasion on which Article 60 was invoked before it, in the Request for Interpretation-Asylum case. In its judgment rejecting the request the Court observed that Article 60 lays down two such conditions, namely: (1) The real purpose of the request must be to obtain an interpretation of the judgment. (2) In addition, it is necessary that there should exist a dispute as to the meaning or scope of the judgment. (Request for Interpretation-Asylum, Judgment of 27 Nov. 1950, ICJ Rep. 1950, p. 402)58

These conditions are accumulative and not alternative, which means that in a given case the Court would feel entitled to reject the request if only one of them is not met. However, depending upon the circumstances of each case, the Court may consider it expedient to verify that neither of these conditions is fulfilled. In Request for Interpretation-Asylum, for instance, the Court declared inadmissible the request by Colombia because it ascertained that it was lacking compliance with both of these conditions, whereas in Request for Interpretation-Cameroon v. Nigeria it was content with finding that Nigeria’s request did not have a proper object and excused itself from looking into the existence of a dispute concerning the meaning or scope of the judgment.59 56  G. Salvioli, “Problèmes de procédure dans la jurisprudence internationale”, RC, vol. 91 (1957-I), pp. 577–583. 57  Request for Interpretation-Cameroon v. Nigeria, Judgment of 25 March 1999, ICJ Rep. 1999, p. 36, para. 12. 58  Reaffirmed in Application for Revision and Interpretation-Tunisia/Libya, Judgment of 10 Dec. 1985, ICJ Rep. 1985, pp. 216–217, para. 44. In Asylum the Court was simply reformulating (without a proper quote) a general proposition put forward by the Permanent Court in the Request for Interpretation-Factory at Chorzów case ( Judgment No. 11, 16 Dec. 1927, PCIJ A 13, p. 10). 59  Request for Interpretation-Asylum, Judgment of 27 Nov. 1950, ICJ Rep. 1950, p. 403; Application for Revision and Interpretation-Tunisia/Libya Continental Shelf, Judgment of 10 Dec. 1985, ICJ Rep. 1985, p. 39, para. 17. For a reasoned critique of this latter decision see Thirlway’s Law and Procedure, Part. 13, BYIL, vol. 74 (2003), pp. 87–88.

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Object of the Request In the Application for Revision and Interpretation-Tunisia/Libya Continental Shelf case, the Court was particularly firm in stating that “[i]t is . . . a condition of admissibility of a request for interpretation . . . not only that there be a dispute between the parties as to the meaning or scope of the judgment, but also that the real purpose of the request be to obtain an interpretation—a clarification of that meaning and scope.”60 The case law of the Permanent Court sheds light on the precise meaning of the expressions “construction” and “meaning and scope of the judgment” in the context of Article 60 of the Statute. With regard to the first aspect, the Court clarified that the expression “to construe” in Article 60 must be understood “[a]s meaning to give a precise definition of the meaning and scope which the Court intended to give to the judgment in question.”61 As for the import of the expression “meaning or scope of the judgment,” the Court pointed out first of all that it was necessary to compare the text of Article 60 with that of the precedent Article 59 “[w]hich states that a decision of the Court has no binding force except between the Parties and in respect of the particular case decided.” From here, the Court reached the following conclusion: The natural inference to be drawn is that the second sentence of Article 60 was inserted in order, if necessary, to enable the Court to make quite clear the points which had been settled with binding force in a judgment, and, on the other hand, that a request which has not that object does not come within the terms of this provision. In order that a difference of opinion should become the subject of a request for an interpretation under Article 60 of the Statute, there must therefore exist a difference of opinion between the parties as to those points in the judgment in question which have been decided with binding force. (Request for Interpretation-Factory at Chorzów, Judgment No. 11, 16 Dec. 1927, PCIJ A 13, p. 11)

Another aspect of this question that was clarified by the Permanent Court in the Request for Interpretation-Factory at Chorzów case was that there may very well be cases in which the very object of the dispute is to determine whether a certain aspect of the case was or was not decided with binding force by the 60  Application for Revision and Interpretation-Tunisia/Libya Continental Shelf, Judgment of 10 Dec. 1985, ICJ Rep. 1985, p. 223, para. 56. 61  Request for Interpretation-Factory at Chorzów, Judgment No. 11, 16 Dec. 1927, PCIJ A 13, p. 10.

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judgment. For the Court, this kind of dipute is clearly covered by Article 60 and the Court “[c]annot avoid the duty incumbent upon it of interpreting the judgment in so far as necessary, in order to adjudicate upon such a difference of opinion.”62 As for the question of what are the “points in the judgment . . . which have been decided with binding force” it was already considered when discussing the effects of the judgments and the scope and limits of the res judicata principle.63 The Limits of Interpretation Referring to the dictum quoted above in Request for Interpretation-Cameroon v. Nigeria concerning the importance of admissibility in context of proceedings under Article 60 of the Statute, a commentator has stated that the Court’s reasoning is hard to follow here because if there is a reasoned doubt as to the true meaning of a judgment, i.e. as to what the Court has decided with binding force, admitting the need for an authoritative interpretation does not necessarily involves contradicting the res judicata principle. On the contrary, the implementation of the decision might have to wait until the parties are given such interpretation, because it is entirely posible that an obscure or unintelligible judgment would not be capable of implementation at all.64 This situation was foreseen by a different author some time ago with regard to arbitral awards, when he said that “[t]he necessity of providing means for some sort of authoritative interpretation is obvious if disputes about the exact meaning of an award are likely to prevent its execution.”65 According to the first of these two authors, the Court’s meaning was probable expressed in clearer terms in judge Weeramantry’s dissent, as follows: In proceedings upon the merits as well as in preliminary objections proceedings, there are of course certain clear limitations to the entitlement of ­parties to resort to Article 60. They may not, for example, under the guise of an application under Article 60, attempt to seek revision of a judgment or reopen a matter which is already res judicata. Nor are parties entitled, in any circumstances, to use a request for clarification as a 62  Request for Interpretation-Factory at Chorzów, Judgment No. 11, 16 Dec. 1927, PCIJ A 13, pp. 11–12; reiterated in Request for Interpretation-Temple of Preah Vihear, Judgment of 11 Nov. 2013, paras. 34, 48. 63  See Chapter 10, f ). 64  Thirlway’s Law and Procedure, Part 13, BYIL, vol. 74 (2003), p. 79. 65  Reisman, “Nullity and Revision . . .”, p. 192.

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device for gaining time. All of these are to be discountenanced, and the Court will in no way lend its assistance to such procedures. (Request for Interpretation-Cameroon v. Nigeria, Dissenting Opinion of Vice-President Weeramantry, ICJ Rep. 1999, p. 43)

In this passage, judge Weeramantry rightly calls attention to certain limitations that are binding upon the States parties when they resort to the device of requesting the interpretation of a judgment. If a request infringes upon those limits, it is destined to be rejected by the Court. However, there are also clear limits as to what the Court itself may do in interpretation proceedings. For instance, the Court could not, when construing a previous decision, modify what it has already decided with the force of res judicata.66 As it will be seen, every request for interpretation must refer to the operative part of the judgment and can refer to the reasoning part only in very limited circumstances. It follows that, within certain limits, the Court could clarify or elucidate aspects of the grounds for the decision, that is, the motifs or the legal arguments that led it to decide and to formulate the operative part of the judgment as it chose to do, but in no case will it be allowed to modify or amend the latter. To the extent that the reasoning section does not in itself constitute a “decision,” the Court possesses a larger freedom of action with regard to the legal propositions included there, but it must always faithfully respect the formulation included in the operative part. A second important limitation is that the Court cannot, under the guise of interpretation, go beyond the confines of the original decision, as they were drawn by the Court itself, on the basis of the submissions by the parties. In other words, the Court cannot pronounce on an aspect of the case that has not been decided in the original judgment. As the Permanent Court put it in the Request for Interpretation-Factory at Chorzów case: The interpretation adds nothing to the decision, which has acquired the force of res judicata, and can only have binding force within the limits of what was decided in the judgment construed. (Request for Interpretation-Factory at Chorzów, Judgment No. 11, 16 Dec. 1927, PCIJ A 13, p. 21)

66  Request for Interpretation-Cameroon v. Nigeria, Judgment of 25 March 1999, ICJ Rep. 1999, pp. 38–39, para. 16.

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Likewise, it has been stressed that, just as the interpretative decision adds nothing to the judgment construed, it cannot substract anything from the latter either, as it must always be of a purely declarative character.67 In the Request for Interpretation-Asylum case the present Court reaffirmed the quoted dictum in Chorzów and enunciated the neat proposition that the object of the request for interpretation “[m]ust be solely to obtain clarification of the meaning and the scope of what the Court has decided with binding force, and not to obtain an answer to questions not so decided.”68 It then concluded: The “gaps” which the Colombian Government claims to have discovered in the Court’s Judgment in reality are new questions, which cannot be decided by means of interpretation. Interpretation can in no way go beyond the limits of the Judgment, fixed in advance by the Parties themselves in their submissions. (Request for Interpretation-Asylum, Judgment of 27 Nov. 1950, ICJ Rep. 1950, p. 403)

It is interesting to register that in this pasage the Court stated that the limits of the initial judgment were fixed in advance by the parties themselves “in their submissions,” which is only natural because it was a case submitted by application, even if this was done pursuant the provisions of a special agreement. In the Request for Interpretation-Treaty of Neuilly case, a chamber of the PCIJ rejected the request for interpretation on the basis that “[a]n interpretation— given in accordance with Article 60 of the Statute—of the judgment . . ., cannot go beyond the limits of that judgment itself, which are fixed by the special agreement.”69 Likewise, in the Request for Interpretation-Temple of Prean Vihear, the Court observed that it could not rule over a question not addressed by the decision under interpretation and stated that “. . . the Court cannot now, in the exercise

67  Schwarzenberger’s Judicial Law, p. 683. 68  Request for Interpretation/Asylum, Judgment of 27 Nov. 1950, ICJ Rep. 1950, p. 402. Reaffirmed in the Request for Interpretation-Avena ( Judgment of 19 Jan. 2009, ICJ Reports 2009, para. 44) and Request for Interpretation-Temple of Preah Vihear (Provisional Measures, Order of 18 July 2011, para. 44) cases. 69  Request for Interpretation-Treaty of Neuilly, Judgment No. 4, 26 March 1925, PCIJ A 4, p. 7, emphasis added. On this see also Thirlway’s Law and Procedure, Part. 13, BYIL, vol. 74 (2003), p. 89; Rosenne, “Interpretation . . .”, p. 93.

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of its jurisdiction under Article 60 to interpret the 1962 Judgment, deal with a matter which was not addressed by that Judgment.”70 A third self-imposed limitation is that when the Court entertains a request for interpretation it refrains from examining any facts other than those upon which the original judgment was rendered. Consequently, all facts subsequent to the date on which that judgment was read are to be ruled out.71 In this regard, the Court has clearly disavowed any consideration of the subsequent conduct of the parties with regard to the judgment, thus marking a sharp contrast between the interpretation of judicial decisions and the interpretation of international treaties. That conduct is of course relevant for the determination of the existence of a dispute concerning the meaning or scope of the judgment but plays no role with regard to the interpretative exercise itself: Thailand makes extensive reference to the conduct of the Parties between 15 June 1962, when the Judgment was delivered, and 2007–2008, when the present dispute may be said to have crystallized. The principal purpose for which Thailand refers to that conduct is in connection with its argument that there is no dispute, within the meaning of Article 60, between the Parties, an issue to which that conduct is of course relevant (. . .). However, Thailand suggests that this conduct is also relevant to the interpretation of the Judgment. A judgment of the Court cannot be equated to a treaty, an instrument which derives its binding force and content from the consent of the contracting States and the interpretation of which may be affected by the subsequent conduct of those States, as provided by the principle stated in Article 31, paragraph 3 (b), of the 1969 Vienna Convention on the Law of Treaties. A judgment of the Court derives its binding force from the Statute of the Court and the interpretation of a judgment is a matter of ascertaining what the Court decided, not what the parties subsequently believed it had decided. The meaning and scope of a judgment of the Court cannot, therefore, be affected by conduct of the parties occurring after that judgment has been given. (Request for Interpretation, Temple of Preah Vihear, Judgment of 11 Nov. 2013, paras. 74–75)

With regard to this, it can also be recalled that if in a given case there are “new facts” that were unknown to the parties before the closing of the original 70  Request for Interpretation-Temple of Preah Vihear, Judgment of 11 Nov. 2013, para. 99. 71  Request for Interpretation-Factory at Chorzów, Judgment No. 11, 16 Dec. 1927, PCIJ A 13, p. 21.

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­ roceedings and that have the potencial of being a “decisive factor” for the p decision, this may be a cause for requesting the revision of the judgment under Article 61 of the Statute, rather than its interpretation under Article 60.72 Ratio decidendi v. obiter dicta in Interpretation Proceedings As explained in Chapter 10, concerning the contents of the decision, from the formal point of view there is a clear distinction between the reasoning section of a judgment—the motifs—and its operative part—the dispositif.73 Likewise, in every decision of the Court it should be possible, theoretically, to distinguish between those sections of the reasoning that are essential for the disposition of the claims of the parties and inseparable from them—the ratio decidendi— and those which are not—the obiter dicta. These distinctions have given rise to interesting pronouncements by the Court and other international tribunals in the context of the interpretation of their judgments. To begin, it is worth recalling a passage in the 1925 Advisory Opinion on the Danzig Postal Service, in which the PCIJ stated the following: [i]t is certain that the reasons contained in a decision, at least in so far as they go beyond the scope of the operative part, have no binding force as between the Parties concerned. It is perfectly true that all the parts of a judgment concerning the points in dispute explain and complete each other and are to be taken into account in order to determine the precise meaning and scope of the operative portion. This is clearly stated in the award of the Permanent Court of Arbitration of October 14th, 1902, concerning the Pious Funds of the Californias (. . .). The Court agrees with this statement. But it by no means follows that every reason given in a decision constitutes a decision; (Danzig Postal Service Advisory Opinion No. 11, PCIJ B 11, 16 May 1925, pp. 29–30)

As it is apparent in this passage, the Court admitted that certain portions of the reasoning part (those that do not go “beyond” the operative part) might have “binding force as between the Parties concerned.” The Court also acknowledged that some—but not all—of the reasons incorporated in a decision can constitute “a decision.” More interesting perhaps is the assessment on this precedent made by authorized comentators. In 1935, for instance, during the discussions on the revision of the Rules of Court, judge Fromageot inquired whether the request 72  See Chapter 17, b). 73  See Chapter 10, f ).

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for interpretation “[c]ould only relate to the operative part of the judgment, or whether it might also relate to the grounds.”74 The Registrar’s answer was that the solution adopted in practice was the one found in the decision in Chorzów, in which the Court had decided “[t]hat the interpretation might relate not only to the operative part of the judgment, but also to those portions of the grounds which constituted the essential basis of the operative provisions. In other words according to this decision, the interpretation could not relate to mere obiter dicta.”75 On the other hand, the Registrar also recalled that in his dissenting opinion in the same case judge Anzilotti had maintained the contrary view. Anzilotti’s firm opinion on this aspect warrants a quotation in full: It appears clear to me that a binding interpretation of a judgment can only have reference to the binding portion of the judgment construed . . . To say that the request for an interpretation can only relate to the binding part of the judgment is equivalent to saying that it can only relate to the meaning and scope of the operative part thereof, as it is certain that the binding effect attaches only to the operative part of the judgment and not to the statement of reasons. The grounds of a judgment are simply logical arguments, the aim of which is to lead up to the formulation of what the law is in the case in question. (. . .) When I say that only the terms of a judgment are binding, I do not mean that only what is actually written in the operative part constitutes the Court’s decision. On the contrary, it is certain that it is almost always necessary to refer to the statements of ­reasons to understand clearly the operative part and above all to ascertain the causa petendi. But, at all events, it is the operative part which contains the Court’s binding decision and which, consequently, may form the subject of a request for an interpretation. (Request for Interpretation-Factory at Chorzów, Dissenting Opinion of Judge Anzilotti, PCIJ A 13, pp. 23–24)

The present Court addressed the matter in the Request for InterpretationCameroon v. Nigeria case, in which, after quoting with approval another passage of the interpretative decision in Chorzów, it concluded that “[a]ny request for interpretation must relate to the operative part of the judgment and cannot 74  PCIJ D 2, Add. 3 (1936), p. 334. 75  Ibid., p. 335. This was in reference to a passage in the PCIJ’s decision in Request for Interpretation-Factory at Chorzów in which mention was made of a finding that was “a condition essential to the Court’s decision” ( Judgment No. 11, 16 Dec. 1927, PCIJ A 13, p. 20).

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concern the reasons for the judgment except in so far as these are inseparable from the operative part.”76 Subsequently, the Court summed up its case-law on the matter in the following manner: In accordance with the jurisprudence of the Court, “a dispute within the meaning of Article 60 of the Statute must relate to the operative clause of the judgment in question and cannot concern the reasons for the judgment except in so far as these are inseparable from the operative clause” (. . .) or, in the words of the Permanent Court, constitute “a condition essential to the Court’s decision.”

(Request for Interpretation-Temple of Preah Vihear, Judgment of 11 Nov. 2013, para. 34)77

“Dispute as to the Meaning or Scope of the Judgment” Article 60 contains a requirement that there is as between the parties to a case, a “dispute as to the meaning or scope of the judgment.” This element is of cardinal importance because if there is no genuine disagreement between the parties concerning the meaning or the scope of the judgment the Court will be forced to reject the request for interpretation. In the words of the Court, according to its settled jurisprudence “a dispute must exist for a request for interpretation to be admissible.”78 The first request for interpretation submitted to the present Court demonstrated this in a dramatic manner, because the Colombian request for the construction of the judgment in the Asylum case was filed at the Court’s Registry on the same day of the delivery of the judgment—in fact, just a few hours after the closing of the sitting at which the judgment had been read—, a circumstance that led the Court to conclude that it was materially impossible that a disagreement between the parties had arisen with regard to the meaning or

76  Request for Interpretation-Cameroon v. Nigeria, Judgment of 25 March 1999, ICJ Rep. 1999, p. 35, para. 10. Reaffirmed in Request for Interpretation-Avena, Provisional Measures, Order of 16 July 2008, ICJ Rep. 2008, p. 323, para. 47. 77  For the view that the concepts of “inseparable” reasons and “essential” reasons are not equivalent in this context see the joint declaration of judges Owada, Bennouna and Gaja in the same case, para. 2. 78  Request for Interpretation-Avena, Judgment of 19 Jan. 2009, ICJ Rep. 2009, p. 10, para. 21.

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scope of the decision.79 According to the very firm formulation employed by the Court in the decision declaring the request inadmissible: [With reference to Article 60] Obviously, one cannot treat as a dispute, in the sense of that provision, the mere fact that one Party finds the judgment obscure when the other considers it to be perfectly clear. A dispute requires a divergence of views between the parties on definite points; Article 79, paragraph 2,80 of the Rules confirms this condition by stating that the application for interpretation “shall specify the precise point or points in dispute”. (Request for Interpretation-Asylum, Judgment of 27 Nov. 1950, ICJ Rep. 1950, p. 403)

The truth of the matter is that the Colombian delegation before the Court was clearly dissatisfied with the decision, and it was widely perceived that its hastily filed application for interpretation was flawed in many respects. In particular—and the Court itself took note of this—the application gave the clear impression that what the government of Colombia was seeking was not so much a construction of points decided by the Court as a decision on aspects of the problem that the Court had failed to address in its judgment. However, the crucial factor that led the Court to declare the request inadmissible in a record time of barely seven days—with the only vote against this decision coming from the judge ad hoc appointed by Colombia—was that the Colombian government did not even allow time for the other party to familiarize itself adequately with the contents and scope of the judgment before deciding to return to the Court asking for an interpretation.81 Be that as it may, all that is required in order to trigger the application of Article 60 is that a “divergence of views”82 or a “difference of opinion or views”83 between the parties with regard to the meaning or scope of the judgment arises. Since the Request for Interpretation-Factory at Chorzów case, the 79   Judge Buergenthal recalled this passage in his dissenting opinion in the AvenaInterpretation case, because for him this dictum accurately describes the situation obtaining with regard to Mexico’s request for interpretation of the 2004 judgment on the merits of the case (Request for Interpretation-Avena, Provisional Measures, Dissenting Opinion of Judge Buergenthal, ICJ Rep. 2008, p. 338, para. 19). 80  This provision corresponds to Article 98, para. 2 of the current Rules. 81  On this see M. O. Hudson, “The 29th Year of the World Court”, AJIL, vol. 45 (1951), p. 24, fn 37. 82  Request for Interpretation-Asylum, Judgment of 27 Nov. 1950, ICJ Rep. 1950, p. 403. 83  Request for Interpretation-Temple of Preah Vihear, Provisional Measures, Order of 18 July 2011, ICJ Rep. 2011, p. 542, para. 22.

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Permanent Court had revealed a markedly flexible attitude toward the concept of a “dispute (“contestation” in the French version) as to the meaning or scope of the judgment” in Article 60 of the Statute, a notion that entails a lower threshold than that of a dispute on substantive matters, as those mentioned in Article 36, para. 2 or in Article 38 of the Statute.84 The Permanent Court stated the following in this regard: In so far as concerns the word “dispute”, the Court observes that, according to the tenor of Article 60 of the Statute, the manifestation of the existence of the dispute in a specific manner, as for instance by diplomatic negotiations, is not required. It would no doubt be desirable that a State should not proceed to take as serious a step as summoning another Stated to appear before the Court without having previously, within reasonable limits, endeavoured to make it quite clear that a difference of views is in question which has not been capable of being otherwise overcome. But in view of the wording of the article, the Court considers that it cannot require that the dispute should have manifested itself in a formal way; according to the Court’s view, it should be sufficient of the two Governments have in fact shown themselves as holding opposite views in regard to the meaning or scope of a judgment of the Court. (Request for Interpretation-Factory at Chorzów, Judgment No. 11, 16 Dec. 1927, PCIJ A 13, pp. 10–11)85

This is, no doubt, the portion of the Permanent Court’s decision that the judge ad hoc appointed by Colombia in the Request for Interpretation-Asylum case had in mind when stating in his declaration appended to the judgment rejecting the request for interpretation that “[i]n his opinion, Article 60 of the Statute can be interpreted more liberally, as shown by the Permanent Court of International Justice in the Request for Interpretation-Chorzów Factory case.”86 The key to the quoted passage, however, might be in the words “within reasonable limits,” for they introduce a condition with which the Colombian request hardly complied, having been submitted on the very day of the reading of

84  For an overview of the case law concerning the definition of “dispute” in the context of Article 36 see Box # 2-5. 85  Quoted with approval by the Court of Arbitration in the Anglo-French Continental Shelf case (Request for Interpretation, Decision of 14 March 1978, RIAA, vol. 18, p. 289, para. 12). 86  Request for Interpretation-Asylum, Dissenting Opinion of Judge ad hoc Caicedo Castilla, ICJ Rep. 1950, p. 404.

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the judgment on the merits and before there was the slightest chance for an exchange of views, however cursory, between the parties.87 In its decision concerning provisional measures in the Request for Interpretation-Avena case, the Court clearly returned to the liberal attitude shown by the Permanent Court and relaxed to a considerable extent the requirement as to the existence of a dispute concerning the meaning or scope of the judgment, endorsing a flexible construction of Article 60 and in particular of the term “dispute” (“contestation”) used there. The question revolves around terminology, for there is a clear divergence between the English and French versions of Article 60 of the Statute. In the English version, Article 60 uses the same word that is used in other key provisions of the Statute, like Article 36, para. 2 or Article 38, namely “dispute.” In the French version, however, in which dispute is usually rendered as “différend,” Article 60 uses “contestation,” which clearly has a different meaning.88 When it addressed a request by Mexico for interpretation of its 2004 judgment in the Avena case—along with a request for the indication of provisional measures—the Court took notice of this discrepancy and assigned a crucial value to it in order to determine the admissibility of the request. The Court stated the following propositions with regard to the proper construction of the word “dispute” in Article 60: (. . .) the French and English versions of Article 60 of the Statute are not in total harmony; (. . .) the French text uses the term “contestation” while the English text refers to a “dispute”; (. . .) the term “contestation” in the French text has a wider meaning than the term used in the English text; (. . .) Article 60 of the Statute of the International Court of Justice is identical to Article 60 of the Statute of the Permanent Court of International Justice; (. . .) the drafters of the Statute of the Permanent Court of International Justice chose to use in the French text of Article 60 a term (“contestation”) which is different from the term (“différend”)

87  Nevertheless, there are authors who consider that in the Asylum-Interpretation case the Court adopted an excessively formalistic and restrictive attitude with regard to the interpretation of judgments (Verzijl’ s Jurisprudence, vol. 2, pp. 94–95; Reisman, “Nullity and Revision . . .”, pp. 206–207). 88  It should be noted that “contestation” is also used in Article 36, para. 6, concerning disputes as to jurisdiction. In the Spanish version of the Statute the situation is even more complicated, because Articles 36, para. 2 and 38 both employ “controversia;” Article 36, para. 6 uses “disputa;” and Article 60 settles for “desacuerdo.”

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used notably in Article 36, paragraph 2, and in Article 38 of the Statute;89 (. . .), although in their ordinary meaning, both terms in a general sense denote opposing views, the term “contestation” is wider in scope than the term “différend” and does not require the same degree of opposition;90 (. . .), compared to the term “différend”, the concept underlying the term “contestation” is more flexible in its application to a particular situation; and (. . .) a dispute (“contestation” in the French text) under Article 60 of the Statute, understood as a difference of opinion between the parties as to the meaning and scope of a judgment rendered by the Court, therefore does not need to satisfy the same criteria as would a dispute (“différend” in the French text) as referred to in Article 36, paragraph 2, of the Statute; (. . .), in the present circumstances, a meaning shall be given that best reconciles the French and English texts of Article 60 of its Statute, bearing in mind its object; (. . .) this is so notwithstanding that the English texts of Article 36, paragraph 2, and Articles 38 and 60 of the Statute all employ the same word, “dispute”; and (. . .) the term “dispute” in English also may have a more flexible meaning than that generally accorded to it in Article 36, paragraph 2, of the Statute. (Request for Interpretation-Avena, Provisional Measures, Order of 16 July 2008, ICJ Rep. 2008, p. 325, para. 53)

To reinforce this take on Article 60 the Court quoted from the PCIJ’s decision in the Chorzów case and stated that this reading of the said provision had been confirmed by it in the Request for Revision and Interpretation-Tunisia/Libya Continental Shelf.91 In its subsequent judgment on the request for interpretation the Court reiterated its finding that “[t]he existence of a dispute/“contestation” under Article 60 was not subject to satisfaction of the same criteria as that of a

89  In point of fact the reference to Article 38 here is somewhat misplaced, because the word “disputes” (différends) did not appear in that provision of the Statute of the PCIJ. It was added at the San Francisco Conference, at the request of the Chilean delegation (A. Pellet, “Article 38”, in Oxford Commentary, MN 47–48, pp. 744–745). 90  Here the Court is acknowledging the well-known fact that the Statute of the PCIJ was originally drafted in French. The point has been made in other contexts in recent cases such as Indonesia/Malaysia Application to Intervene, Judgment of 23 Oct. 2001, ICJ Rep. 2001, p. 596, para. 47; and LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, p. 502, para. 100. 91  Request for Interpretation-Avena, Provisional Measures, Order of 16 July 2008, ICJ Rep. 2008, p. 326, para. 54.

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dispute (“différend” in the French text) as referred to in Article 36, paragraph 2, of the Statute.”92 It must be noted, however, that the decision to entertain the request for interpretation submitted by Mexico was adopted with a tight majority (7 votes against 5), a circumstance suggesting that a sizeable number of members of the Court was not persuaded that a dispute existed between Mexico and the United States concerning the meaning or scope of the Court’s decision on the merits, even within the somewhat loose meaning that the Court ascribed to that term in the context of Article 60.93 In the circumstances of the case, there were good reasons to support the view espoused by the United States that the existing differences between the two governments did not refer to the construction of the judgment but rather to its execution or implementation, a matter over which neither the Charter nor the Statute forsees any role for the Court. In its subsequent decision on the request for interpretation the Court came very close to stating as much, in the context of its rejection of a Mexican claim concerning alleged violations of the Avena judgment. The Court pointed out that it lacked jurisdiction under Article 60 to entertain such a claim because “[t]he Court notes that the only basis of jurisdiction relied upon for this claim in the present proceedings is Article 60 of the Statute, and that that Article does not allow it to consider possible violations of the Judgment which it is called upon to interpret.”94 Along these lines, the dissenting opinion appended to the the order on provisional measures by judge Skotnikov contained the following, rather eloquent passage: According to the Rules of Court, it is for Mexico, not for the Court, to indicate “the precise point or points in dispute as to the meaning or scope of the judgment” (Art. 98, para. 2). (. . .) The Court cannot take the initiative in interpreting provisions of its judgments which are, under Article 60 of 92  Request for Interpretation-Avena, Judgment of 19 Jan. 2009, ICJ Rep. 2009, p. 10, para. 17. 93  The judges voting against stressed that the request for interpretation should have been rejected, since there was no actual dispute as to the meaning or scope of the 2004 judgment (Request for Interpretation-Avena, Provisional Measures, Dissenting Opinion of Judge Buergenthal, ICJ Rep. 2008, pp. 334–340, paras. 5–26; Joint Dissenting Opinion of Judges Owada, Tomka and Keith, ibid., pp. 344–348, paras. 12–21; Dissenting Opinion of Judge Skotnikov, ibid., pp. 350–351, paras. 5–11). 94  Request for Interpretation-Avena, Judgment of 19 Jan. 2009, ICJ Rep. 2009, p. 20, para. 56. For a critique see Muller’s Procedural Developments, LPICT, vol. 8 (2009), pp. 509–510.

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the Statute of the Court, “final and without appeal” and must speak for themselves. An interpretation is in order only if lack of clarity as to the meaning or scope of the binding provisions of a judgment impedes its execution. There is no such lack of clarity: Mexico insists and the United States accepts that no death penalties should be carried out unless and until the time the Mexican nationals in question receive review and reconsideration in accordance with the Avena Judgment. This is the result which the United States must achieve, “by means of its own choosing” (para. 153 (9) of the Avena Judgment), to comply with its obligations under the Avena Judgment. There is no ambiguity. There is no disagreement. There is nothing for the Court to interpret. (Request for Interpretation-Avena, Provisional Measures, Dissenting Opinion of Judge Skotnikov, ICJ Rep. 2008, pp. 350–351, para. 8)95

With regard to the terminological analysis, it is also interesting to note that judges Owada, Tomka and Keith went a step beyond the Court and attempted a comparison of the Spanish, Russian and Chinese versions of Article 60 of the Statute. They came to the conclusion that “[g]iven those differences between the equally authentic texts of the Statute we do not see the differences between the particular English and French words as significant.”96 In the subsequent Request for Interpretation-Temple of Preah Vihear case, also in the context of incidental proceedings on provisional measures, the Court made two important points in this regard. Firstly, it reaffirmed its flexible approach towards the concept of “dispute” in Article 60 of the Statute: (. . .) a dispute within the meaning of Article 60 of the Statute must be understood as a difference of opinion or views between the parties as to the meaning or scope of a judgment rendered by the Court; (. . .) the existence of such a dispute does not require the same criteria to be fulfilled as those determining the existence of a dispute under Article 36, paragraph 2, of the Statute. (Request for Interpretation-Temple of Preah Vihear, Provisional Measures, Order of 18 July 2011, ICJ Rep. 2011, p. 542, para. 22)97

95  For a comprehensive assessment (published before the decision in Avena-Interpretation) see M. Al-Qahtani, “The Role . . .”, pp. 781–804. 96  Request for Interpretation-Avena, Provisional Measures, Joint Dissenting Opinion of Judges Owada, Tomka and Keith, ICJ Rep. 2008, pp. 346–347, para. 19. 97  Reaffirmed in the judgment on the merits of the request for interpretation (Request for Interpretation-Temple of Preah Vihear, Judgment of 11 Nov. 2013, para. 33).

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Secondly, the Court noted that, while Article 60 does not impose any timelimit on requests for interpretation and the Court may entertain a request for interpretation in so far as there existes a dispute within the meaning of that provision, “such a dispute can, in itself, certainly arise from facts subsequent to the delivery of that judgment.”98 Another aspect is that the disagreement between the parties must be exclusively about the “meaning or scope” of the original judgment and not over other aspects, such as, for instance, its application or implementation in practice. The Asylum case is also illustrative in this regard, as is demonstrated by the fact that one of the reasons that led the Court to reject the request in limine was clearly that it referred, in reality, to the implementation of the judgment, or, more accurately, to determining the practical consequences of carrying out what the judgment had resolved. When this happens, the proper course of action is to institute further proceedings, as Colombia did eventually in the same case, for after the rejection of its request for interpretation that government returned to the Court and brought a new case, which was officially called Haya de la Torre.99 At the time of the Permanent Court, a similar case was that of the Lighthouses in Creta and Samos, in which the Court was called in 1937 to issue a decision with regard to the application of a “question of principle” that had been decided by a previous decision of 1934.100 Mention can also be made in this context to the Gabcikovo-Nagymaros case, decided by the present Court on 25 September 1997. After the rendering of the decision, one of the parties returned to the Court requesting from it an “additional judgment,” pursuant to a provision in the special agreement by which the original proceedings were instituted. The case remains formally open but has been dormant since October 1998.101 Finally, the definition of the precise subject of the dispute concerning the meaning and scope of a judgment is a task for the Court and not for the parties. In the Request for Interpretation-Temple of Preah Vihear case the Court recalled one of its dicta in the Request for Interpretation-Factory at Chorzów case102 and remarked that “[w]hile the existence of a dispute between the parties regarding the original judgment is a prerequisite for interpretation under Article 60 98  Request for Interpretation-Temple of Preah Vihear, Provisional Measures, Order of 18 July 2011, ICJ Rep. 2011, p. 546, para. 37. 99  Haya de la Torre, Judgment of 13 June 1951, ICJ Rep. 1951, p. 7. 100  Lighthouses Case between France and Greece, Judgment of 17 March 1934, PCIJ A/B 62, p. 4 and Lighthouses in Crete and Samos, Judgment of 8 Oct. 1937, PCIJ A/B 71, p. 94. 101  ICJ Press Release 1998/28, 3 September 1998. 102  Reproduced below, see e).

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of the Statute, the way in which that dispute is formulated by one or both of the parties is not binding on the Court.”103 To sum up, it follows from the above that the State who is interested in obtaining an interpretation of a judgment does not need to wait until a genuine legal dispute—in the sense that this expression has been defined in the Court’s practice and case law—arises. Rather, the same State is simply bound to ensure that in diplomatic correspondence exchanged after the decision is read, or in some similar form, a “difference of opinions or views” concerning the meaning or scope of the judgment is put on record. If, after this situation obtains, the other party is still willing to resort jointly to the Court, the two parties can conclude a special agreement to that effect and institute proceedings on interpretation by means of a notification of that instrument, as provided for in Article 98, para. 2 of the Rules. However, as the same provision allows for unilateral seisin, if one of the States is reluctant to go to the Court, the other is entitled to request the interpretation by means of a unilateral application. In any case, it will always be “for the Court itself to decide whether a dispute within the meaning of Article 60 of the Statute does indeed exist.”104 c)

Interpretation of Judgments and Provisional Measures

An important aspect concerning the Court’s jurisdiction to interpret its own decisions has to do with the cases in which a request for interpretation is filed together with a request for the indication of provisional measures of protection under Article 41 of the Statute. This has given rise to some interesting problems, handled by the Court in its decisions in two recent cases: Request for Interpretation-Avena and Request for Interpretation-Temple of Preah Vihear.105 The first such problem concerns the application of the prima facie test concerning jurisdiction on the merits. As it was described previously, when the Court is called to deal with a request for the indication of provisional meas103  Request for Interpretation-Temple of Preah Vihear, Judgment of 11 Nov. 2013, para. 67. 104  This final point was reinforced by the Court in its decision in the Request for InterpretationAvena case, quoting form the Request for Interpretation-Factory at Chorzów decision ( Judgment of 19 Jan. 2009, ICJ Rep. 2009, p. 13, para. 29). 105  See in general the dissenting opinion of judge Donoghue in the later case (Request for Interpretation-Temple of Preah Vihear, Provisional Measures, Dissenting Opinion of Judge Donoghue, ICJ Rep. 2011, pp. 613–624, paras. 3–28).

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ures, it limits itself to assessing that it possesses prima facie jurisdiction to deal with the merits of the case and goes on to consider whether the conditions required for the indication of provisional measures are present. This assertion of jurisdiction on the merits is entirely provisional and does not prejudge any question concerning the definitive jurisdiction that the Court might possess, nor any question concerning the merits. Since this criterion was adopted by the Court in early seventies in the Fisheries Jurisdiction cases, virtually every order made by the Court on the indication of provisional mesaures has contained a passage relating to the prima facie test of jurisdiction.106 The first time that this did not happen was precisely in the Request for Interpretation-Avena case, which was also the first occasion in the history of both courts in which a request for provisional measures was not related to a case pending on the merits but rather to a case that was already decided and with regard to which a question of interpretation of the judgment had arisen. In its order admitting the request for interpretation submitted by the applicant in the original case and indicating certain provisional measures, the Court apparently considered that the test of prima facie jurisdiction was inapplicable. The Court found that before considering the conditions for the indication of provisional measures it was necessary to determine rather whether the request fulfilled the admissibility requirements in Article 60.107 Further, in its judgment on the request for interpretation, the Court recalled explicitly that “[i]ts Order of 16 July 2008 on provisional measures was not made on the basis of prima facie jurisdiction.”108 In analogous circumstances, in the subsequent Request for InterpretationTemple of Preah Vihear (Cambodia v. Thailand) case the Court laid emphasis on the question of the existence of a dispute under Article 60 of the Statute, a question that, as discussed above, should better be considered as an aspect of admissibility rather than as an aspect of jurisdiction. In its order on provisional measures, the Court declared that when it receives a request for the indication of provisional measures in the context of proceedings on interpretation under Article 60, it “has to consider whether the conditions laid down by that Article

106  See Chapter 11, a) and Box # 11-3. 107  Request for Interpretation-Avena, Provisional Measures, Order of 16 July 2008, ICJ Rep. 2008, p. 323, paras. 45–46. 108  Request for Interpretation-Avena, Merits, Judgment of 19 Jan. 2009, ICJ Rep. 2009, p. 9, para. 15.

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for the Court to entertain a request for interpretation appear to be satisfied.”109 It then went on to remark: (. . .) by virtue of Article 60 of the Statute, [the Court] may entertain a request for interpretation provided that there is a “dispute as to the meaning or scope” of any judgment rendered by it; (. . .) the Court may indicate provisional measures in the context of proceedings for interpretation of a judgment only if it is satisfied that there appears prima facie to exist a “dispute” within the meaning of Article 60 of the Statute; (. . .) at this stage, it need not satisfy itself in a definitive manner that such a dispute exists. (Request for Interpretation-Temple of Preah Vihear, Provisional Measures, Order of 18 July 2011, ICJ Rep. 2011, p. 542, para. 21)

In applying this test to the facts of the case, the Court concluded that a dispute or a “difference of opinions or views” appeared to exist between the parties and that this dispute referred to the meaning or scope of the 1962 judgment.110 On the basis of these findings, the Court decided that it could entertain the request for interpretation, rejected Thailand’s request that the case be removed from the General List and concluded that “there is a sufficient basis for the Court to be able to indicate the provisional measures requested by Cambodia, if the necessary conditions are fulfilled.”111 The conclusion is that when it is faced with a request for the indication of provisional measures made in the context of proceedings on interpretation of a judgment conducted under Article 60 of the Statute, the Court will apply the prima facie test to the existence of a dispute within the meaning of that provision. If it is satisfied that such a dispute appears to exist between the parties, the Court then will (1) Declare admissible the request for interpretation; and (2) Proceed to consider the request for provisional measures on its own merits.112 When the case reaches the next stage, the Court will review the question of the existence of a dispute within the meaning of Article 60 of the Statute and will make a definite finding on the matter, as an aspect of either its jurisdiction to interpret the judgment or the admissibility of the request.113 109  Request for Interpretation-Temple of Preah Vihear, Provisional Measures, Order of 18 July 2011, ICJ Rep. 2011, pp. 541–542, para. 19. 110  Ibid., paras. 24, 31. 111  Ibid., para. 32. 112  For a comment see Bordin’s Procedural Developments, LPICT, vol. 11 (2012), pp. 343–346. 113  Request for Interpretation-Temple of Preah Vihear, Judgment of 11 Nov. 2013, para. 36.

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The second problem concerns the conditions for the indication of provisional measures. When the Court stated that a prima facie assessment concerning the existence of a dispute under Article 60 enables it to indicate provisional measures “if the necessary conditions are fulfilled,” it was confirming that the traditional conditions for the indication of provisional measures, as developed by the Court through its jurisprudence, are fully applicable in proceedings concerning the interpretation of judgments. According to the most recent formulations, those conditions are four, namely: (i) Plausible character of the alleged rights in the principal request; (ii) Link between these rights and the measures requested; (iii) Risk of irreparable prejudice; and (iv) Urgency.114 With regard to conditions (i) and (ii) the Court has clarified two points. Firstly, that in proceedings on interpretation of judgments condition (i) “supposes that the rights which the party requesting provisional measures claims to derive from the judgment in question, in the light of its interpretation of that judgment, are at least plausible.”115 In the second place, condition (ii) means that “there is a link between the provisional measures requested by a party and the rights which it claims to derive from the judgment in question, in the light of the interpretation it gives to that judgment.”116 As it is observed, in both cases paramount importance is given to the fact that the identification of the rights which a party claims to derive from the judgment in question may be affected by the interpretation of the judgment to be given by the Court. A final problem concerning the intersection of derivative proceedings on interpretation and incidental proceedings on provisional measures concerns the lack of compliance with orders on provisional measures made by the Court. In the Request for Interpretation-Avena case, the respondent disputed that the Court possessed jurisdiction under Article 60 to consider a Mexican request for remedies for the alleged breach of an order of the Court indicating provisional measures. The Court disposed of the matter by declaring that its jurisdiction under Article 60 was wide enough to cover incidental questions, such as alleged breaches of the order indicating provisional measures:

114  Although these elements have featured in the Court’s case law concerning provisional measures for quite some time, this tipology was used for the first time in 2011, in the Activities in the Border Area case. It was reaffirmed in the Request for Interpretation-Temple of Preah Vihear case. See a comment in Quintana’s Procedural Developments, LPICT, vol. 10 (2011), pp. 516–529 and, in general, Chapter 11, c). 115  Request for Interpretation-Temple of Preah Vihear, Provisional Measures, Order of 18 July 2011, ICJ Rep. 2011, p. 545, para. 33. 116  Ibid., para. 34.

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There is no reason for the Court to seek any further basis of jurisdiction than Article 60 of the Statute to deal with this alleged breach of its Order indicating provisional measures issued in the same proceedings. The Court’s competence under Article 60 necessarily entails its incidental jurisdiction to make findings about alleged breaches of the Order indicating provisional measures. That is still so even when the Court decides, upon examination of the Request for interpretation, as it has done in the present case, not to exercise its jurisdiction to proceed under Article 60. (Request for Interpretation-Avena, Judgment of 19 Jan. 2009, ICJ Rep. 2009, pp. 19, paras. 51)

d) Procedure As mentioned above, when a request for interpretation of a judgment is submitted to the Court the proceedings that are organized are not stricto sensu incidental proceedings, but rather derivative proceedings, as they find their fons et origo in the very decision by the Court to be construed. A good characterization of these proceedings was given by the Registrar of the Court in 1933 when he stated that “[p]roceedings for interpretation are not considered as a sequel to the main proceedings, but as independent proceedings of an urgent and summary nature.”117 In this proposition the two distinguishing features of proceedings on interpretation are already present: on the one hand, that they give origin to a separate case, formally and materially distinct from the main proceedings, and on the other, that the procedure used is remarkably simple, akin to the summary procedure provided for in Article 29 of the Statute. As for the first of these factors, for all practical purposes proceedings on interpretation of a judgment constitute a case that is independent from the original case.118 In contrast with the situation occuring with regard to other “occasional” proceedings like provisional measures, preliminary objections, counter-claims, third-party intervention and reparations, in the case of the interpretation of a judgment the filing of a request under Article 60 produces the effect that the Registry must proceed to open a separate entry in the General List and to assign an official name and a folio number to the new

117  PCIJ D 2, Add. 3 (1936), p. 832. 118  This has been the case since the time of the Permanent Court (PCIJ D 2, Add. (1926), p. 175).

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case.119 The new case is also treated as a totally different case with regard to the composition of the Court, and as a result the bench for the proceedings on interpretation may be different from the bench that dealt with the original case. By the same token, judges ad hoc will have to be appointed anew and will be sworn in as in any other case coming before the Court. However, this does not mean that the handling of a request for interpretation is subject to the same procedure followed in ordinary cases. In practice, the Court has shown an essentially pragmatic attitude with regard to these proceedings and, within the framework of Article 98 of the Rules, has demonstrated that it is content with them being conducted in a swift and simplified manner. This has entailed a deliberate decision to compress the written stage of proceedings and, in most cases, to do without an oral stage altogether. This is explained by the fact that, with regard to the substance, proceedings on interpretation are entirely auxiliary or subordinate to the original proceedings and, for instance, cannot be mistaken for proceedings on appeal, in which there is room to re-argue the facts of the case. In a doctrinal commentary to the Statute this is explained as follows: Interpretation proceedings are . . . to be distinguished from any form of appeal: while the notion of appeal denotes re-examination of any aspect of a decision with full opportunities to argue their case accorded to the parties, the procedure under Art. 60 in sharp contrast thereto limits the Court to a pure construction of its prior judgment. Thus, neither are the parties in a position to re-argue the case fully, nor is the Court empowered to question its prior holding. The Court may only clarify the content of the earlier judgment.120 Institution of Proceedings As for the seisin of the Court, the request for interpretation can only be made by one of the parties to the original case with regard to which the judgment was delivered. This means that not even a third State that has been admitted to intervene in the case under Article 62 of the Statute is empowered to institute proceedings on interpretation, because in its case law regarding intervention 119  Cameroon v. Nigeria, Order of 3 March 1999, ICJ Rep. 1999, p. 26; Judgment of 10 Oct. 2002, ICJ Rep. 2002, p. 313, para. 14. See also the explanations given by the President of the Court (Schwebel) at the sitting for the swearing in of the judges ad hoc appointed by both parties in the case concerning the request for interpretation of the 1998 judgment on preliminary objections (CR 99-3, 17 Feb. 1999, p. 5). 120  Zimmermann & Thienel, “Article 60”, MN 5, pp. 1471–1472.

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the Court has been crystal clear in that the intervening State does not become a party to the proceedings and therefore “[d]oes not acquire the rights, or become subject to the obligations, which attach to the status of a party, under the Statute and Rules of Court, or the general principles of procedural law.”121 As stated above, one of those rights is precisely the right to request an interpretation of the judgment, and in consequence proceedings to that effect can only be instituted by the parties to the original case.122 The scenario of intervention under Article 63 of the Statute is perhaps more complex, among other reasons because there has not been occasion for the Court to pronounce in a definite manner on the legal status of a third State that submits a Declaration of Intervention under that provision. Under Article 63, when the construction of a multilateral treaty is in question all States parties to it have “[t]he right to intervene in the proceedings” but, and this is the interesting part, if one of those States “[u]ses this right, the construction given by the judgment will be equally binding upon it.” This has been understood as meaning that, although the intervening State does not become a party to the proceedings, it will be bound by that part of the judgment in which the Court’s construction of the treaty in question is found.123 It is arguable that, for that reason, the third State could be entitled to request from the Court an interpretation of at least that portion of the judgment, provided, of course, that the conditions in Article 60 are present. However, it is to be registered that while the filing of a request for interpretation of a judgment clearly constitutes a right vested upon the parties to a case before the Court, Article 63 is couched exclusively in terms of an obligation arising for the intervening State. Additionally, the possibility put forward in the previous paragraph would only be viable if the construction of the treaty in question could be found in the operative part of the judgment (which is highly unlikely) or, at most, in a section of the reasoning part that can be deemed “[i]nseparable from the operative part,” according to the criteria set by the Court in Request for Interpretation-Cameroon v. Nigeria.124 The situation 121  El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, pp. 135–136, para. 102. 122  However, the situation may be different if the third State were admitted to intervene as a party, a circumstance of which there is yet no example in the practice of the Court. See Oellers-Frahm, “Interpretation. . .,” MN 19; Zimmermann & Thienel, “Article 60,” MN 56–57, p. 1488. 123  The question is discussed in Chapter 15, c). 124  See Chapter 10, f ). Under this criterion, for instance, it is highly doubtful that the Government of Cuba would have been in a position to request an interpretation on

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has not arisen yet and therefore there is no guidance on this in the practice of the Court. With regard to the method of seisin, Article 98 distinguishes very clearly between the action to be taken (a “request for the interpretation of a judgment” or “une demande en interpretation d’un arrêt”) and the formal instrument or procedural device by means of which the corresponding proceedings are instituted (an “application” or a “notification of a special agreement”, or, as the case may be, a “requête” or “la notification d’un compromise”). It follows that according to paragraph 2 of that provision the institution of proceedings on interpretation may take place in the same manner as in ordinary proceedings and can be acomplished either by unilateral act—the filing of an application—or by joint action—the notification of a special agreement to that effect. When discussing the jurisdiction of the Court in the matter of interpretation, it was mentioned that in the Request for Revision and Interpretation-Tunisia/Libya Continental Shelf case the Court made it abundantly clear that Article 60 authorizes unilateral summons with regard to the construction of one of its judgments.125 As a consequence of this, when a disagreement or divergence of views over the meaning or scope of the judgment arises between the parties, they have the option to return jointly to the Court seeking an authoritative construction of the decision. If that fails, each of the parties is entitled to resort unilaterally to the Court, as it has been done in all of the cases in which Article 60 has been invoked thus far.126 The only requirement in Article 98, para. 2 as to the contents of the act instituting proceedings (subject, of course, to the provisions of paragraph 3, which is only applicable when the chosen method of seisin is that of the filing of an application) is that it shall indicate “[t]he precise point or points in dispute as to the meaning or scope of the judgment.”127 This is based on generally accepted criteria according to which a request for interpretation of a judicial decision cannot be of a general scope but must refer to very concrete terms or

the Court’s judgment in the Haya de la Torre case, in which it was admitted to intervene under Article 63. 125  See Box # 16-4. 126  In the case of unilateral resort, the roles of the parties in the original proceedings may be reversed, as it happened in the Cameroon v. Nigeria case, in which Nigeria became the applicant at the interpretation phase. 127  In the Request for Interpretation-Avena case, the Court suggested that the applicant had failed to comply satisfactorily with this requirement ( Judgment of 19 Jan. 2009, ICJ Rep. 2009, pp. 16, para. 38 and p. 17, para. 41).

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passages of the decision. Following the Court, an arbitral tribunal formulated this rule as follows in 1995: The interpretation must be requested with respect to a specific term or paragraph and cannot be requested with respect to the decision in general. The International Court of Justice, in a passage quoted earlier, speaks of “divergence of views between the parties on definite points” (ICJ Rep. 1950, p. 403, emphasis added). This requirement is confirmed by the relevant legal precedents. (Boundary dispute between Argentina and Chile concerning the frontier line between boundary post 62 and Mount Fitzroy, Application for Revision and Subsidiary Interpretation of the Award of 21 Oct. 1994, Decision of 13 Oct. 1995, RIAA., vol. 22, pp. 182–183, para. 137128

Conduction of Proceedings The remainder of Article 98 aims at securing the procedural equality of the parties, albeit without setting out fixed rules on the procedure to be followed. Paragraph 3, for instance, lays down the rule that if the request was made by application “[t]he requesting party’s contentions shall be set out therein, and the other party shall be entitled to file written observations thereon within a time-limit fixed by the Court, or by the President if the Court is not sitting”129 This rule is silent on the procedure to be followed when the request for interpretation is made by notification of a special agreement. In cases such as these—in which it can be anticipated that the admissibility of the request will not be at issue between the parties—it is possible to infer that the Court would be able to produce its decision acting exclusively on the basis of the information contained in the request.130

128  The other cases mentioned in this passage are the decision of 26 February 1870 of the PeruUnited States Mixed Commission (Moore, History and Digest of International Arbitrations to which the United States has been a Party (1898), vol. 2, pp. 1630 ff. and 1649); and two decisions of the Inter-American Court of Human Rights of 17 August 1990, which interpret a specific term in the awards pronounced in the Velásquez Rodríguez and Godínez Cruz cases (I-A Ct. H.R., Series C, No. 9, para. 31; ibid, Series C, No. 10, para. 31). 129  In any case, if the initial application is considered as lacking in information, the Court will request the State making it to supplement in due course, as was promptly done in the Request for Interpretation-Treaty of Neuilly case ( Judgment No. 4, 26 March 1925, PCIJ A 4, p. 5). 130  For an explanation by the Registrar of the Court see PCIJ D 2, Add. (1926), p. 174.

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According to the Registrar of the Court, in proceedings under Article 60 the request for interpretation itself constitutes the first written pleading.131 Therefore, if the case was instituted by application, this document and the observations in reponse produced by the other party play the role that the Memorial and the Counter-Memorial play in ordinary proceedings. It is interesting to recall that in the Request for Interpretation-Factory at Chorzów case, the Permanent Court expressly mentioned in its judgment that, when it notified the parties about its decision with regard to the time-limit for the presentation of written observations by Poland on the request for interpretation submitted by Germany, “[t]he Court duly drew their attention to the fact that it corresponded, as regards the proceedings for an interpretation, to the time-limit for the submission of the Counter-Case provided for, in the case of ordinary proceedings, by Article 38, paragraph 1, of the Rules of Court.”132 By the same token, if the case was instituted jointly, by a notification of a special agreement, the agreement itself would correspond to the Memo­ rials that in those cases are filed simultaneously, and the “further explanations” that the Court may call the parties to produce would play the role of the Counter-Memorials.133 Notwithstanding the above, if the case was submitted by special agreement and this text in itself reveals a pronounced divergence of views concerning the meaning and scope of the judgment, nothing prevents the Court from applying by analogy the rule of paragraph 3 and requesting both parties to furnish it with written observations, which would supplement the information contained in the request. The same procedure could be used if the special agreement contained a provision for an exchange of written pleadings, to which it is to be expected that the Court would give its full effect. Paragraph 4 of Article 98 states once again that it applies “[w]hether the request is made by an application or by notification of a special agreement,” and it contemplates an ample measure of discretion for the Court as to the procedure to be followed. The Court may “[i]f necessary, afford the parties the opportunity of furnishing further written or oral explanations.”134 As it can 131  PCIJ D2, Add. 3 (1936), p. 832. See also Scerni’s La Procédure, pp. 676–677. 132  Request for Interpretation-Factory at Chorzów, Judgment No. 11, 16 Dec. 1927, PCIJ A 1, pp. 5–6. Note that in the practice of the PCIJ the Memorial was called the “Case” and the CounterMemorial the “Counter-Case.” 133  Under the same logic, if there will be “further explanations” in writing (under paragraph 4) in cases instituted by application, they will perform the role of a Reply and a Rejoinder, respectively. 134  Emphasis added.

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be seen, this rule presents three possibilities with regard to the continuation of the proceedings, namely: (one) That the Court requests the parties to present further explanations in writing; (two) That it decides to organize oral proceedings; and (three) That it does both, authorizing a second round of pleadings and conducting a hearing. In the Request for Interpretation-Cameroon v. Nigeria case, the Court considered that “[i]n light of the dossier . . . submitted” to it, a second round of written pleadings was not required, as it was sufficiently informed of the positions of the parties. The said “dossier” cannot be anything other than the application by Nigeria and the written observations by Cameroon.135 The first instance in which the Court applied Article 98, para. 4 of the Rules, thus affording the parties the opportunity to furnish “further explanations” in writing was the Request for Interpretation-Avena case. Interestingly, this decision was not embodied in a formal order.136 Similarly, no procedural orders were made in the Request for Interpretation-Temple of Preah Vihear case, in which the Court ordered two rounds of pleadings and decided to conduct oral proceedings.137 All cases of interpretation of judgments before the ICJ so far have been instituted by unilateral application, but the procedure followed has not been uniform. It is significant, though, that in only two cases the Court has found it expedient to organize oral hearings (Request for Interpretation-Factory at Chorzów and Request for Interpretation-Temple of Preah Vihear). In the Application for Revision and Interpretation-Tunisia/Libya Continental Shelf case a full oral stage also took place, but this was on account of the fact that the proceedings involved other aspects, such as a request for revision and a request for the correction of an error. The Request for Interpretation-Avena and Request for Interpretation-Temple of Preah Vihear cases posed a similar problem, because in both of them the admissibility of the interpretation request was considered along with a separate request for provisional measures and, as usual in these cases, proceedings were confined to a hearing organized in a matter of weeks, given the urgency that those requests necessarily entail. Although oral proceedings were not held 135  Request for Interpretation-Cameroon v. Nigeria, Judgment of 25 March 1999, ICJ Rep. 1999, p. 33, para. 5. This decision was criticized by the judge ad hoc appointed by Nigeria (ibid., Dissenting Opinion of Judge Bola Ajibola, pp. 55–56). 136  ICJ, Press Release 2008/27, 4 Sept. 2008. 137  The Court ordered two rounds of written pleadings, the first consisting of the application by Cambodia followed by “Written Observations” by Thailand and the second consisting of a “Response” by Cambodia, followed by “Further Written Explanations” by Thailand (ICJ Press Release No. 2012/36, 29 November 2012; Request for Interpretation-Temple of Preah Vihear, Judgment of 11 Nov. 2013, paras. 5–6.

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in Request for Interpretation-Asylum and Request for Interpretation-Cameroon v. Nigeria, in both of these cases there was a formal sitting by the Court, confined to the making of the solemn declaration by the judges ad hoc appointed by the parties. The only occasion at which the Court has made mention of procedural questions arising with regard to proceedings on interpretation was when it took note that neither Article 60 of the Statute nor Article 98 of the Rules contemplates, in the matter of interpretation of judgments, a “two-stage” procedure similar to that foreseen in Article 61 of the Statute with regard to requests for revision.138 According to that provision, indeed, for a request for revision of a judgment to proceed it is required that the Court issues a judgment declaring the request admissible, something that is entirely lacking in the case of a request for interpretation.139 However, it is clear that in cases of interpretation instituted by application there may be situations in which there will be two successive stages in the proceedings, the first relating to the admissibility of the application and the second relating to the merits of the request, i.e. the construction of the original judgment. If the decision of the Court with regard to the first of these two aspects is negative, there will obviously not be a second stage and the proceedings will be closed with the reading of the judgment embodying the rejection of the request (as it happened in the cases Treaty of Neuilly, Asylum and Cameroon v. Nigeria). If the decision on admissibility is affirmative, on the other hand, the Court has two options before it: either it embodies its conclusions on admissibility and merits in the same decision (as it did in Factory at Chorzów and Tunisia/Libya),140 or it declares the request admissible by means of an interlocutory decision—in the form of an order—and defers the question of the interpretation for a subsequent stage (as it did in Avena).

138  Application for Revision and Interpretation-Tunisia/Libya Continental Shelf, Judgment of 10 Dec. 1985, ICJ Rep. 1985, p. 197, para. 8. 139  Another important difference between interpretation and revision proceedings is that for a request for revision to go forward it is not necessary for a dispute (contestation) to have arisen between the parties concerning the original judgment. It is enough that one of them considers that the conditions laid down in Article 61 are present to be entitled to trigger derivative proceedings on revision, which are invariably instituted by means of an application (For details see Chapter 17, a)). 140  However, note that Tunisia/Libya is of scarce precedential value in this regard, as the procedure employed there was by all standards a sui generis one, given the fact, already mentioned, that the application by Tunisia contained other petitions, apart from the request for interpretation.

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The criteria that should guide the Court in this matter are far from clear and, for instance, in the Request for Interpretation-Avena and Request for Interpretation-Temple of Preah Vihear cases it was fairly obvious that the prevalent circumstance was that the State requesting an interpretation of the judgment also filed a request for the indication of provisional measures and the Court came very quickly to the conclusion that, in order to entertain the latter, it needed first to verify that prima facie the conditions present in Article 60 obtained.141 Apart from a clearly exceptional situation such as that, however, it is possible to anticipate a case in which the questions of admissibility reach such a level of complexity that the Court would feel forced to decide that the first written pleadings—and even an eventual oral stage—must be devoted to them, and that the decision on admissibility would be a stand-alone decision. Here, again, there will be room for a second stage of proceedings only if the Court declares the request admissible.

Figure 7

141  Request for Interpretation-Avena, Provisional Measures, Order of 16 July 2008, ICJ Rep. 2008, p. 323, para. 45; Request for Interpretation-Temple of Preah Vihear, Provisional Measures, Order of 18 July 2011, ICJ Rep. 2011, pp. 541–542, para. 19.

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On the other hand, if the request for interpretation is admitted, it appears unavoidable that the execution of the judgment to be construed would be suspended until the Court takes a decision on the matter. This is not explicit in the Statute or in the Rules but guidance can be sought in the ILC Draft Convention on Arbitral Procedure—a text based to a large extent in Article 82 of the 1907 Hague Convention and Article 60 of the Court’s Statute—, in which the article dealing with interpretation of awards (Article 28) contains the following proviso: A request for interpretation shall stay execution of the award pending the decision of the tribunal on the request.142 A final aspect concerning the procedure on interpretation is that Article 100, para. 2 of the Rules of Court states very clearly that any decision that the Court may take on a request for interpretation shall itself be given in the form of a judgment. This rule was introduced in the revision of 1926 and, although there is no evidence of this in the records, this modification might have been influenced by a dictum contained in the Advisory Opinion of the Permanent Court in the case concerning the Polish Postal Service in Danzig, according to which “[a] so-called authentic interpretation of a judicial decision is in effect a new decision.”143 In the first case on interpretation submitted to the PCIJ under the 1922 Rules—which provided no guidance whatsoever on the matter—the chamber took the deliberate decision that whatever the result of the proceedings were its decision would adopt the form of a judgment.144 The Court’s decision of 26 March 1925, rejecting the request, follows the format of an order but in fact constitutes a judgment and is ordinarily considered as such.145 It is interesting to observe that the only proposal for a modification to Article 60 that was put forward at the San Francisco Conference concerned the format that decisions on the interpretation of judgments should take. The Cuban delegation submitted an entire draft statute for the future Court that had been drafted by a renown Cuban jurist, Mr. Antonio Sánchez de Bustamante, who had served as member of the Permanent Court of International Justice and 142  ILC Draft Convention, p. 95. All the same, the wording of the equivalent provision in the subsequent ILC draft of Model Rules on Arbitral Procedure (Article 33, para. 3) was slightly different (ILC Model Rules, p. 86). 143  Polish Postal Service in Danzig, Advisory Opinion No.11, 16 May 1925, PCIJ B 11, p. 31. 144  PCIJ E 4, p. 294. 145  For an explanation see S. Rosenne, Practice and Methods of International Law (1984), p. 97.

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had written a treatise on the subject. Article 50 of this draft stated that, at the request of either of the parties to a case, the Court would be entited to construe a judgment “by an order.”146 In fact, the Cuban proposal was of questionable value. It appears logical, after all, that in order to be authoritative a decision embodying a construction of a previous decision that was given in the form of a judgment should also be in the form of a judgment. It should not be forgotten that the Permanent Court itself—with Bustamante sitting as a judge—had already pronounced in firm terms on the relative value that the orders of the Court possess, going so far as to stating that they are not covered by Article 60 of the Statute: [i]n contradistinction to judgments comtemplated by Article 58 of the Statute . . . orders made by the Court, although as a general rule read in open Court, due notice having been given to the Agents, have no “binding” force (Article 59 of the Statute) or “final” effect (Article 60 of the Statute) in deciding the dispute brought by the Parties before the Court. (Free Zones, Order of 19 Aug. 1929, PCIJ A 22, p. 13)

In any case, under Article 100, para. 2 of the current Rules the format of any final decision concerning a request for interpretation should be that of a judgment and this applies also to decisions concerning the admissibility of the request, unless a decision on that aspect has already been embodied in an order. The Interpretative Decision In its decision in the Request for Interpretation-Factory at Chorzów case, the Permanent Court made it clear that in exercising its jurisdiction under Article 60 of the Statute, it did not feel bound or limited by the submissions of the parties. When it was assessing the substance of the question put before it through the request for interpretation, the Court indicated the following: [t]he Court does not consider itself as bound simply to reply “yes” or “no” to the propositions formulated in the submissions of the German Application. It adopts this attitude because, for the purpose of the interpretation of a judgment, it cannot be bound by formulae chosen by the Parties concerned, but must be able to take an unhampered decision.

146  UNCIO, vol. 3, p. 522.

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This view is consistent with the present terms of Article 66 of the Rules of Court.147 (Request for Interpretation-Factory at Chorzów, Judgment No. 11, 16 Dec. 1927, PCIJ A 13, pp. 15–16)

This is entirely sensible, taking into account that what is at stake in interpretation proceedings is not the legal merits of a set of claims advanced by opposing parties, but rather a clarification of the precise meaning and scope of what the Court already decided with binding force. At this stage, there are thus no real claims or submissions. In the same case the Court stressed the contrast between the provisions of the Rules concerning the contents of an application instituting proceedings and those related to an application submitting a request for interpretation, for while Article 66 only required the latter to identify the judgment to be interpreted and to indicate “the precise point or points in dispute,” Article 35 required a regular application to contain “an indication of the claim.” Similarly, while Article 40 of the Rules then in force, concerning the contents of the pleadings in ordinary cases, required that in all cases the Memorial should contain a statement of conclusions “as an essential part,” Article 66 mentioned optional “observations” and “further explanations” to be furnished only if the Court saw fit.148 This reasoning is fully applicable under the current Rules, in which the same contrast can be found between, on the one hand, Articles 38, para. 2 and 98, para. 2 (for the contents of the act instituting proceedings) and, on the other, Articles 49 and 98, paras. 3 and 4 (for the contents of the written pleadings). The only material difference is that in Article 49 what Article 40 of the 1926 Rules formerly called “a statement of conclusions” has become “the submissions.” From these observations it may be inferred that the interpretative decision has purely declaratory effects and is not dispositive or constitutive of rights. As a reflection of this, in all instances in which the present Court has undertaken the construction of one of its judgments it has employed the same formula in the dispositif, by stating that it declares “by way of interpretation” the proposition or propositions in which its clarification of what it was decided in the previous decision is embodied.149 147  It corresponds to Article 98 of the current Rules. 148  Request for Interpretation-Factory at Chorzów, Judgment No. 11, 16 Dec. 1927, PCIJ A 13, p. 16. 149  Application for Revision and Interpretation-Tunisia/Libya Continental Shelf, Judgment of 10 Dec. 1985, ICJ Rep. 1985, p. 230, para. 69 (B)(2), (D)(2); Request for Interpretation-Temple of Preah Vihear, Judgment of 11 Nov. 2013, para. 108 (2).

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A decision made under Article 60 is then a “merely declaratory judgment,” i.e. a decision “[t]he intention of which is to ensure recognition of a situation at law, once and for all and with binding force as between the Parties; so that the legal position thus established cannot again be called into question in so far as the legal effects ensuing therefrom are concerned.”150 Legal literature is in agreement with this position. A commentator has perceptively remarked that the sole object of a request for interpretation is to obtain a declaration of the law, with the consequence that the underlying interest in that procedural action is to acquire legal certainty.151 Behind this interest is a wish to obtain clarity and certainty on the meaning and scope of a rule of law, in an analogous manner to that provided for in Article 36, para. 2 (a) of the Statute, with regard to the subject-matter of the Court’s compulsory jurisdiction or Article 63 with regard to the construction of a multilateral treaty to which third States not taking part in proceedings before the Court might be parties. In this regard, the difference between these cases and a request for interpretation is that in them the rule of law is a conventional rule, while in the case of Article 60 it is the very decision by the Court the interpretation of which is sought. A final aspect concerning the legal effects of an interpretative decision is that, as it limits itself to declare the law existing and in force between the parties, i.e. the rights and obligations that are derived for them from the judgment under construction, the interpretative decision must have certain retroactive effects. The reason for this is that this type of decision must by force refer to the legal situation existing at the time at which the judgment was delivered, which is the moment when such law became binding for the parties. This retroactive effect is, for that matter, a signature feature of any authentic interpretation of a given legal rule. Stated differently, when the Court interprets one of its judgments it does “no more than give the provisions of the [decision] the meaning and scope that they had possessed from the outset.152

150  Request for Interpretation-Factory at Chorzów, Judgment No. 11, 16 Dec. 1927, PCIJ A 13, p. 20. This general proposition was also advanced by judge Hammarskjold in his separate opinion in the Pajzs‚ Czáky‚ Esterházy case (PCIJ A/B 68, p. 88). 151  Scerni’s La procédure, pp. 678–679. 152  Ibid., p. 679. See Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 230, para. 452.

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Further Reading

Leading Works



General Works and Treatises on the Court



Articles and Monographs

S. Rosenne, Interpretation, Revision and Other Recourse from International Judgments and Awards (2007)

Guyomar’s Commentaire, pp. 621–634 Hudson’s PCIJ, pp. 208, 298–299, 590–591 Rosenne’s Law and Practice, vol. 3, pp. 1669–1681 Rosenne’s Procedure, pp. 201–207 Scerni’s La Procédure, pp. 565–681 Schwarzenberger’s Judicial Law, pp. 199–200 and 680–683 Thirlway’s Law and Procedure, Part 13, BYIL, vol. 74 (2003), pp. 79–89 A. Zimmermann & T. Thienel, “Article 60”, in Oxford Commentary, pp. 1469–1496

Ch.F. Amerasinghe, Jurisdiction of Specific International Tribunals (2009), pp. 191–197 L.M. Bentivoglio, “Sul l’interpretazione della Sentenza Internazionale”, Comunicazione e Studi, vol. 5 (1953), pp. 269–282 M. Bos, “The Interpretation of International Judicial Decisions”, REDI, vol. 33 (1981), pp. 11–50 L. Cavaré, “Les recours en interprétation et en appreciation de la légalité devant les tribunaux internationaux”, ZaöRV, vol. 15 (1953–1954), pp. 482 ff. P.A. Fernández Sánchez, “The interpretation of international judgments in the framework of the International Court of Justice”, Thesaurus Acroasium, vol. 18 (1991), p. 517 ff. K. Grzybowski, “Interpretation of Decisions of International Tribunals”, AJIL, vol. 35 (1941), pp. 482–495 K.H. Kaikobad, Interpretation and Revision of International Boundary Decisions (2007) A. Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (2008) J.J. Quintana, “La Interpretación de Sentencias en el Regimen de la Corte Internacional de Justicia” in L. F. Álvarez, R. A. Prieto Sanjuán & A. Téllez (Eds.), El Derecho Internacional entre lo Jurídico y lo Político, Homenaje al Profesor Rafael Nieto Navia (2009), pp. 141–162 M. Shahabuddeen, Precedent in the World Court (1996), pp. 161–162 J. Stanczyk, “The Application for Interpretation of Judgments Delivered by the International Court of Justice”, Polish YIL, vol. 17 (1988), pp. 193–210

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S. Torrez Bernárdez, “À propos de l’interprétation et de la Révision des Arrêts de la Cour Internationale de Justice” in Universities of Geneva, Milano and Rome (Eds.), Le droit international à l’heure de sa codification. Études en l’honneur de Roberto Ago (1987), vol.3—Les différends entre les états et la responsabilité, pp. 443–496 A. Zimmermann, “Interpretation of Judgments of the International Court of Justice under Article 60 of the Statute of the ICJ”, en F. Zehetner, (ed.), Festschrift fur HansErnst Folz (2003), pp. 407–425 E. Zoller, « Observations sur la révision et l’interprétation des sentences arbitrales » AFDI, vol. 24 (1978), pp. 327–351

Chapter 17

Revision of Judgments Revision in international adjudication has been defined as “[t]he procedure for reopening a case upon the ground of the discovery of new facts, that is, facts previously unknown.”1 When the International Law Commission was preparing a draft on the topic of arbitral procedure its Special Rapporteur stated the following with regard to the role that the procedure of revision plays in the working of arbitral tribunals: There is an adage which runs: “Nothing is settled until it is settled right”; in the interest of the system of arbitration itself, this must be taken to heart if the system is to be preserved as an instrument of pacification. Furthermore the authority of res judicata is not in question here, for there is no case for revision unless a “new fact” has come to light since the award was rendered and makes it appear that, had the judges known it, they would have made a different award. Lastly, revision cannot be regarded either as an appeal procedure or as a cassation, for both the new fact and the second decision will be dealt with by the same tribunal as rendered the award. There is consequently no question of a judicial hierarchy being established in this case.2 In the case of the Statute of the ICJ, Article 61 contemplates proceedings on revision of the judgments issued by the Court.3 It is important to stress that Article 61 is fully integrated with the provisions in the Statute that embody the res judicata principle (Article 59) and that ensures that the judgments of the Court are “final and without appeal” (Article 60).4 1  ILC Draft Convention, p. 101. See also the comments included in the opening section of Chapter 16, dealing with proceedings on the interpretation of judgments. 2  Draft on arbitral procedure adopted by the Commission at its fifth session, Report by Georges Scelle, Special Rapporteur (ILC Yearbook 1958, vol. 2, p. 12). 3  Although it is clear that Article 61 applies only to judgments, the PCIJ briefly discussed the possibility of also providing for the revision of orders of the Court (PCIJ D 2, Add. 3 (1936), p. 330). See also Hudson’s PCIJ, p. 543, fn 27. 4  For the essential differences between revision and appeals, on the one hand, and between revision and interpretation, on the other, see D.W. Bowett, “Res Judicata and the Limits of Rectification of Decisions by International Tribunals”, African JICL, vol. 8 (1996), p. 591.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004297517_018

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The relationship of the procedure of revision with the concept of res judicata was highlighted by the Inter-American Court of Human Rights as follows: There are innumerable references in legal writings to the remedy of revision as an exceptional recourse for preventing a res judicata from maintaining a patently unjust situation resulting from the discovery of a fact which, had it been known at the time the judgment was delivered, would have altered its outcome, or which would demonstrate the existence of a substantive defect in the judgment. (Genie Lacayo-Application for Judicial Review, Order of 13 Sep. 1997, I/A Ct. H.R., Series C, No. 45, p. 5, para. 9)

Article 61 of the Statute plays a variety of roles with regard to the procedure of revision of judgments. Apart from providing the legal basis for the Court’s jurisdiction to resolve on any application for revision that may be made by one party to a case, it lays down the conditions that must be fulfilled for such an application to be admissible. It also establishes an outline for the procedure to be followed, which is considerably more complex than that provided for in Article 60 for dealing with requests for the interpretation of a judgment.

Box # 17-1 Conceptual approaches towards revision The process of revision is sometimes perceived as doing some violence to the res judicata principle and as a reflection of this international tribunals have been in general somewhat reticent in exercising their power of revision.5 As for the general attitude of individual judges toward the procedure of revision, it has not been uniform. While some defend the need for a cautious approach, given what is at stake, others emphasize that revision as such does not represent a challenge to the initial decision and should be entertained whenever the conditions in Article 61 are present. The first of these approaches can be seen in the separate opinion of judge ad hoc Bastid in the Application for Revision and Interpretation-Tunisia/Libya Continental Shelf case, in the following terms: 2. There is a clear distinction to be made as between revision and interpretation in respect of the circumstances in which the Court may in

5  Ch. Brown, A Common Law of International Adjudication (2009), p. 162.

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a­ ccordance with the Statute be induced to reconsider res judicata. Since the inception of the Court, requests for interpretation have given rise to a practice enabling one to discern the requisite conditions and the repercussions on the text to be construed. On the other hand, no request for revision had ever been submitted until the Application of 27 July 1984. Whether in certain circumstances this form of challenge to res judicata had ever been contemplated, and why, if it was, the idea was eventually dropped, remain unknown. (. . .) [t]he conditions of admissibility are very important and deserve particular scrutiny. The Rules of Court of 14 April 1978 set forth the procedural requirements corresponding to the conditions the terms of which, embodied in Article 61 of the Statute, are the same as have existed ever since the Statute of the Permanent Court was drawn up. 3. Given the gravity of an application for revision, from the viewpoint of the importance of its consequences, and having regard to the caution exercised by international courts in the light of the parties’ situation as sovereign States, it appears essential at the outset to make sure whether it satisfies each of the conditions in question. Should any one of them not be fulfilled, the application will be inadmissible, whatever conclusion may be reached in regard to the others. Strictness in weighing the question of admissibility is vital, otherwise, under colour of an application for revision, the Court might in fact find itself induced to rule upon considerations that would have belonged to the merits and on modifications of res judicata that might have been envisaged at that stage. (Application for Revision and Interpretation-Tunisia/Libya Continental Shelf, Separate Opinion of Judge ad hoc Bastid, ICJ Rep. 1985, pp. 247–248)

The second approach is evidenced in the separate opinion of judge Koroma in the Application for Revision-Genocide Convention (Bosnia) case, as follows: 1. It is rare that an application for revision of a judgment comes before the Court, hence the jurisprudence in this area is rather scant. (. . .) It is therefore important that whilst endeavouring to uphold the integrity of its decisions, the Court should clarify the meaning of Article 61 of the Statute, governing the request for revision, as well as its jurisprudence in this area on those few occasions when the opportunity arises. 2. The revision procedure stipulated in Article 61 raises the question as to what the Court ought to do in the light of fresh evidence or fresh

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a­ rguments which have been discovered or have emerged since its decision in the specific case. In other words, the Court is called upon to reconsider a matter which it has already decided in the light of fresh facts or ­arguments, if these prove of such importance or of such decisive nature that, had the Court known of them, it would have reached a different decision or a different conclusion. Revision presupposes that the fact must have existed prior to the Judgment, even though discovered subsequently, and that the lack of knowledge was not due to negligence. The revision procedure is thus essentially about newly discovered facts or arguments and not a legal challenge, as such, to the conclusion reached earlier by the Court based on the facts as then known, although the outcome of the challenge may have an effect on the Judgment. (. . .) 11. In my view, when an application for revision is submitted under Article 61 and where fresh facts have emerged and are of such importance as to warrant revising the earlier decision or conclusion, the Court should be willing to carry out such procedure. Such an application is not to be regarded as impugning the Court’s earlier decision as such, as that decision was based on the facts as then known. (Application for Revision-Genocide Convention (Bosnia), Separate Opinion of Judge Koroma, ICJ Rep. 2003, pp. 34, 38)

Along the same lines, judge ad hoc Paolillo in his dissenting opinion in the Application for Revision-El Salvador/Honduras case referred to what he calls “[a] negative perception of the institution of revision, which is viewed as a means of breaching the sacrosanct principle of res judicata.” From this, he went on to state the following: 30. [a]ccording to this view, revision is a substitute for appeal and as such represents a threat to legal certainty. This fear seems to be shared by Honduras, which cautioned the Chamber in the following terms: “[i]f this Application for revision were to be held admissible, the unfortunate precedent which this would create would come to be seen in future as an encouragement to any State dissatisfied with a judgment of the Court to apply for its revision . . .” (. . .) While it is true that an application for revision is by its very nature and object exceptional and hence that “the conditions in which it is exercised

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are . . . necessarily limited” and that it is admissible only when all the— very strict—conditions of Article 61 of the Statute are satisfied, the ­restrictive nature of the conditions governing its exercise cannot be extended to the manner in which the language of those conditions is interpreted. To say that the admissibility of an application for revision is subject to strict conditions is one thing; to argue that the provisions governing the use of such an application must therefore be narrowly interpreted and applied is quite a different matter. (Application for Revision-El Salvador/Honduras, Dissenting Opinion of Judge ad hoc Paolillo, ICJ Rep. 2003, pp. 421–422)

This jurisdiction of the Court to revise its own judgments is, as in the case of interpretation, both statutory and incidental, in the sense that it is a jurisdiction bestowed upon the Court by all of the States that become parties to the Statute. Likewise, the proceedings organized pursuant to Article 61 are derivative proceedings, as they not only take place after a final judgment has been rendered, but also stem directly from that judgment. A procedure for “a strictly limited revision” of a judgment by the same body delivering it is distinct from the procedure of appeals. This was made clear by the Court in the first case concerning the activities of the Administrative Tribunal of the United Nations that came before the former through a request for an advisory opinion. In the Effect of UNAT Awards case, the Court faced the problem that the Statute of that tribunal did not provide for “any kind of review of judgments,” which, according to Article 10, para. 2 of its Statute were to be “final and without appeal.” The Court reviewed the legislative story of that provision, including that of its predecessor, the Administrative Tribunal of the League of Nations, and verified that the omission of any provision for review of judgments was deliberate. In particular, it found that when adopting the Statute of UNAT, the General Assembly “[r]efrained from laying down any exception to the rule conferring on the tribunal the power to pronounce final judgments without appeal.” From this, the Court went on to conclude the following: This rule contained in Article 10, paragraph 2, cannot however be considered as excluding the Tribunal from itself revising a judgment in special circumstances when new facts of decisive importance have been discovered; and the Tribunal has already exercised this power. Such a strictly limited revision by the Tribunal itself cannot be considered as

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an “appeal” within the meaning of that Article and would conform with rules generally provided in statutes or laws issued for courts of justice, such as for instance in Article 61 of the Statute of the International Court of Justice. (Effects of UNAT Awards, Advisory Opinion of 13 July 1954, ICJ Rep. 1954, p. 55)6

In this regard, a dictum by the Inter-American Court of Human Rights is apposite, as it clearly distinguishes the procedure of revision from that of appeals. In the Genie Lacayo-Application for Judicial Review case, this regional court stated that “[t]he decisive or unappealable character of a judgment is not incompatible with the existence of the remedy of revision in some special cases.”7

Box # 17-2 Revision of judgments: A review of the practice Although the PCIJ briefly discussed the question of the revision of international decisions in the Monastery of Saint-Naoum case (Advisory Opinion No. 9, 4 Sept. 1924, PCIJ B 9, pp. 21–22), there were no instances of revision before it. At the present Court, Article 61 of the Statute has been invoked on three occasions, in all of which the application for revision was declared inadmissible. These cases are:

i)

Tunisia/Libya Continental Shelf

The judgment on the merits in this case was delivered on 24 February 1982 and on 27 July 1984 Tunisia filed an application concerning the revision and the interpretation of the decision, as well as the correction of an error. These questions were resolved by means of a single judgment dated 10 December 1985, in which, on the matter of revision, the Court found that Tunisia could not plead ignorance of the alleged new fact due to negligence and declared also that, in any case, the “new fact” claimed to exist was not of such a nature as to constitute a decisive factor for the judgment (Judgment of 10 Dec. 1985, ICJ Rep. 1985, p. 192).

6  This decision is often quoted as evidence that the Court endorses the view that the power of revision is one of the “inherent powers” of international courts and tribunals (C. Brown, “The Inherent Powers of International Courts and Tribunals”, BYIL, vol. 76 (2005), p. 220 and also, by the same author, “A Common Law . . .”, pp. 55–82). 7  I/A Ct. H.R., Order of 13 Sep. 1997, Series C, No. 45, p. 5, para. 9.

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ii) Genocide Convention (Bosnia), Preliminary Objections On 11 July 1996 the Court issued a judgment on the preliminary objections made by the respondent in the case concerning the Genocide Convention (Bosnia). In its judgment, the Court rejected the objections and decided to deal with the merits of the case. On 24 April 2001, when the proceedings on the merits were ongoing, Yugoslavia filed an application for revision of the judgment on preliminary objections. The question was decided by means of a judgment dated 3 February 2003, in which the Court concluded that no facts within the meaning of Article 61 had been discovered since the reading of the decision on preliminary objections ( Judgment of 3 Feb. 2003, ICJ Rep. 2003, p. 3).

iii) El Salvador/Honduras (Case Before a Chamber) The judgment on the merits in this case was delivered by a chamber of the Court on 11 September 1992 and on 10 September 2002 El Salvador filed an application concerning the revision of the decision. This question was resolved by means of a judgment dated 18 December 2003, in which the chamber found that the facts invoked by El Salvador were not “decisive factors” with respect to the 1992 judgment ( Judgment of 18 Dec. 2003, ICJ Rep. 2003, p. 392). It is also important to register in this context that in the South West Africa cases the controversial decision by the Court in the second phase of the litigation was criticized by some judges on the basis that it effectively constituted a revision of the 1962 judgment concerning preliminary objections, without the Court having observed the proper procedures.8

A final aspect concerning the scope of the Court’s jurisdiction under Article 61 refers to the question of standing. As it happens in the case of the interpretation of judgments under Article 60, there can be no doubt that proceedings on revision can only be instituted by a State having the condition of party to the case in which a judgment has been given.9 This has the consequence that third States, in particular a third State that has been admitted to intervene under Article 62 as a non-party, lacks that capacity. Were the Court in the future 8  Rosenne’s Procedure, pp. 205–206. On this episode see also M. Reisman, Nullity and revision; the review and enforcement of international judgments and awards (1971), pp. 211–212 and, by the same author, “Revision of the South West Africa cases,” Virginia JIL, vol. 7 (1966), pp. 1–90. 9  Scerni’s La Procédure, p. 673.

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to authorize a third State to intervene as a party, that State would ipso facto acquire the right to initiate proceedings on revision.10 It is also interesting to recall that in the special circumstances of the Application for Revision-Genocide Convention (Bosnia) case, judge Rezek advanced the view that the State filing the application for revision did not have standing under Article 61, because it was not the same entity considered by the Court to be the respondent in the judgment whose revision was being sought. The point was not taken up either by the majority nor by any other member of the Court.11 a) Admissibility According to paragraph 1 of Article 61 of the Statute, an application for revision may be made only “when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence.” The rationale of his provision is that an error in fact (as opposed to an error in law) might have been produced through lack of knowledge, by the tribunal, of facts that would have exercised a decisive influence upon the decision. Newly discovered evidence may thus furnish the grounds for revising the original judgment.12 The ever-present possibility of a decision based on incorrect facts was highlighted by the Court in its decision on the merits in the Genocide Convention (Bosnia) case in which, after reaffirming in particularly strong terms the res judicata principle, it remarked: This does not however mean that, should a party to a case believe that elements have come to light subsequent to the decision of the Court which tend to show that the Court’s conclusions may have been based on incorrect or insufficient facts, the decision must remain final, even if it is in apparent contradiction to reality. The Statute provides for only one procedure in such an event: the procedure under Article 61, which offers 10  See Chapter 14, d). 11  Application for Revision-Genocide Convention (Bosnia), Declaration of Judge Rezek, ICJ Rep. 2003, p. 52, para. 6. On this see M. Craven, “The Bosnia Case revisited and the ‘New’ Yugoslavia”, LJIL, vol. 15 (2002), p. 326. 12  B. Cheng, General Principles of Law as Applied by International Courts and Tribunals (1987), p. 364.

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the possibility for the revision of judgments, subject to the restrictions stated in that Article. In the interests of the stability of legal relations, those restrictions must be rigorously applied. (. . .) Subject only to this possibility of revision, the applicable principle is res judicata pro veritate habetur, that is to say that the findings of a judgment are, for the purposes of the case and between the parties, to be taken as correct, and may not be reopened on the basis of claims that doubt has been thrown on them by subsequent events. (Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, pp. 92–93, para. 120)

In the same case, the Court also remarked that Article 61 places close limits of time and substance on the ability of the parties to seek the revision of the judgment.13 Along the same lines, it has also stated that “[t]he conditions for granting an application for revision of a judgment are strictly circumscribed”14 in Article 61 and has pointed out that these conditions are as follows: (a) the application should be based upon the “discovery” of a “fact”,15 (b) the fact, the discovery of which is relied on, must be “of such a nature as to be a decisive factor”, (c) the fact should have been “unknown” to the Court and to the party claiming revision when the judgment was given, (d) ignorance of this fact must not be “due to negligence”, and (e) the application for revision must be “made at latest within six months of the discovery of the new fact” and before ten years have elapsed from the date of the judgment.16 (Application for Revision-Genocide Convention (Bonsia), Judgment of 3 Feb. 2003, ICJ Rep. 2003, pp. 11–12, para. 16)17

13  Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 90, para 115. 14  Kosovo (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 314, para. 90. See also Cheng, “General Principles . . .”, pp. 365–367. 15  This is called a “new fact” in paragraphs 2 and 4 of Article 61 of the Statute; paragraph 1 merely speaks of “some fact.” 16  The view has been expressed that the Court could clarify in some manner what is the precise meaning of the terms “months” and “years” in this context, a question that was debated at length by the PCIJ (PCIJ D 2, Add. 3 (1936), p. 63). See Mani’s Adjudication, pp. 99–100. 17  Reaffirmed in Application for Revision-El Salvador/Honduras, Judgment of 18 Dec. 2003, ICJ Rep. 2003, pp. 398–399, para. 19. For an analysis of each of these conditions see Brown, “A Common Law . . .”, pp. 180–183.

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The Court has also been emphatic in stressing that “[s]trictly speaking, once it is established that the request for revision fails to meet one of the conditions for admissibility, the Court is not required to go further and investigate whether the other conditions are fulfilled”18 and, even more explicitly, that “[a]n application for revision is admissible only if each of the conditions laid down in Article 61 is satisfied. If any one of them is not met, the application must be dismissed.”19 However, in the first occasion that it tackled the matter of revision, after concluding that the “[i]gnorance of a new fact not due to negligence” condition was lacking, the Court went on to consider whether that fact was also “[o]f such a nature as to be a decisive factor.” The Court explained that it did this in the special circumstances of the case, in which a request for interpretation of the judgment had been submitted along with the application for revision. In all subsequent cases on revision the Court has been satisfied with finding that one of the conditions in Article 61 is not fulfilled and has declared the application inadmissible on that basis, without finding a need to go further.20 More systematically, an author has drawn a useful distinction between the two major elements contemplated in Article 61 of the Statute, namely, an “objective” element (the discovery of the new fact) and a “subjective” element (the absence of fault or negligence with regard to the existence of that fact on the part of the party seeking the revision).21 With regard to the first of these elements, the Court has identified two general criteria. The first is a double condition attached to a temporal criterion, namely that, while the fact in question must have been in existence at the time at which the judgment was given, it must have been discovered only at a later moment: The Court would begin by observing that, under the terms of Article 61, paragraph 1, of the Statute, an application for revision of a judgment may be made only when it is “based upon the discovery” of some fact which, “when the judgment was given”, was unknown. These are the charac18  Application for Revision and Interpretation-Tunisia/Libya Continental Shelf, Judgment of 10 Dec. 1985, ICJ Rep. 1985, p. 207, para. 29. 19  Application for Revision-Genocide Convention (Bosnia), Judgment of 3 Feb. 2003, ICJ Rep. 2003, p. 12, para. 17. 20  Application for Revision-Genocide Convention (Bosnia), Judgment of 3 Feb. 2003, ICJ Rep. 2003, p. 32, para. 73; Application for Revision-El Salvador/Honduras, Judgment of 18 Dec. 2003, ICJ Rep. 2003, p. 411, para. 59. 21  Scerni’s La Procédure, pp. 671–672.

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teristics which the “new” fact referred to in paragraph 2 of that Article must possess. Thus both paragraphs refer to a fact existing at the time when the judgment was given and discovered subsequently. A fact which occurs several years after a judgment has been given is not a “new” fact within the meaning of Article 61, this remains the case irrespective of the legal consequences that such a fact may have. (Application for Revision-Genocide Convention (Bosnia), Judgment of 3 Feb. 2003, ICJ Rep. 2003, p. 30, para. 67)

In his dissent in this case, judge ad hoc Dimitrijevic referred to what he called “some temporal duality between the existence of a fact and its discovery or determination.” He made the interesting point that “[t]he non-existence of a fact, as well as its existence, is also a factual question.”22 The second criterion is that the new fact must have been “a decisive factor,” i.e. an element that not only might have influenced the decision of the Court in one way or another—for example, by making it more specific on certain aspect of the case—but would have radically changed its contents: what is required for the admissibility of an application for revision is not that the new fact relied on might, had it been known, have made it possible for the Court to be more specific in its decision; it must also have been a “fact of such a nature as to be a decisive factor”. So far from constituting such a fact, the details of the correct co-ordinates of Concession No. 137 would not have changed the decision of the Court as to the first sector of the delimitation. (Application for Revision and Interpretation-Tunisia/Libya Continental Shelf, Judgment of 10 Dec. 1985, ICJ Rep. 1985, pp. 213–214, para. 39)

In other terms, to use the words of the PCIJ in the Monastery of Saint Naoum case, what the State seeking revision must prove is that the Court made its initial decision “[b]ecause it was unacquainted with new facts, or unaware of facts already in existence, which, if taken into consideration, would have led to a contrary decision.”23 In the same case, the Court famously stated that in its opinion “[f]resh documents do not in themselves amount to fresh facts.”24 22  Application for Revision-Genocide Convention (Bosnia), Dissenting Opinion of Judge ad hoc Dimitrijevic, ICJ Rep. 2003, p. 55, para. 11. See also ILC Draft Convention, p. 102. 23  Monastery of Saint Naoum, Advisory Opinion No. 9, 4 Sep. 1924, PCIJ B 9, p. 22. 24  Ibid. In the Application for Revision-El Salvador/Honduras case, judge ad hoc Paolillo included in his dissenting opinion an interesting reflection on the question of whether

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Box # 17-3 The concept of “facts” in Article 61 Not surprisingly, several individual judges have addressed the problem of accurately defining the “facts” that might be taken into consideration for a correct application of Article 61 of the Statute. The following are excerpts of individual opinions appended to the judgment of the Court in the Application for RevisionGenocide Convention (Bosnia) case in which certain conceptual approaches towards this subject are discussed. Judge Vereshchetin (dissenting): The question whether or not a State is a member of the United Nations would appear to be a question of fact according to a whole series of definitions of the term “fact” given in authoritative law dictionaries and texts. This, applying the definition of “fact” given by Black’s Law Dictionary, it would fall under “something that actually exists” or under “circumstance, as distinguished from its legal effect, consequence, or interpretation” (Black’s Law Dictionary, 7th. ed., p. 610). According to Wigmore on Evidence, “fact is any act or condition of things, assumed for (the moment) as happening or existing” (cited in Black’s Law Dictionary, 7th ed., p. 610, emphasis added). De Smith et al. define “a finding of fact as an assertion that a phenomenon exists, has existed or will exist, independently of any assertion as to its legal effect” (de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th. ed., p. 277, para. 5–079). If we turn to the ordinary meaning of the word “fact”, the Concise Oxford Dictionary defines it as “1 Thing certainly known to have occurred or be true” (The Concise Oxford Dictionary of Current English, 6th. ed., p. 370). From the quoted definitions, it follows it would be a natural interpretation of the meaning of the term “fact” that it includes a State’s status in an organization. Likewise, facts would be statehood, being a party to a treaty, etc. It may be pertinent to note that the Russian text of Article 61 of the Statute uses the word “circumstances” in place of the word “facts” used in the English text. (Application for Revision-Genocide Convention (Bosnia), Dissenting Opinion of Judge Vereshchetin, ICJ Rep. 2003, p. 43, para. 10)

purely documentary evidence could be taken to constitute “facts” within the meaning of Article 61. In his view, the chamber endorsed a broad interpretation of Article 61 allowing for an affirmative reply to that question (Application for Revision-El Salvador/Honduras, Dissenting Opinion of Judge ad hoc Paolillo, ICJ Rep. 2003, pp. 420–423).

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Judge ad hoc Dimitrijevic (dissenting): 3. I cannot subscribe to the view of the majority, based as it is mostly on dictionaries for general use, that a fact is only something that can be perceived by human senses as a part of physical reality. A legal fact, a fact in law, is something that legally exists, that belongs to legal reality as a product of legal rules. Being or not being a member of an international organization or a party to an international treaty is a legal fact—no a legal norm—although it can be the result of an authoritative interpretation of the latter. 4. Different legal determinations typically rely on different kinds of facts. Often there are conflicting perceptions of the latter. This does not mean, however, that, for example, being or not being a State, having or not having the status of a citizen, having or not having domicile, being or not being a father, being or not being validly married, are mere perceptions. These are facts which may or may not be readily perceptible and may or may not be correctly perceived. But they are facts nonetheless. (. . .) 5. Determinations of law resolve a dispute between the parties and attribute consequences. Such determinations are based on what a court perceives and establishes as a fact. (. . .) 6. Whether in the context of revision or in another context, the concept of “fact” has never been reduced to physical evidence or documents. International tribunals have also come to the conclusion that the meaning of “fact” depends on the context and that it must not be construed narrowly. (Dissenting Opinion of Judge ad hoc Dimitrijevic, ICJ Rep. 2003, pp. 53–54)

Judge ad hoc Mahiou (concurring): Without wishing at this stage to enter into a complex semantic debate on the notion of “fact” (. . .) and simply proceeding from the basic definition given in all dictionaries, notably those of public international law, I note that a facts is an event which occurred, which took place at a given point in time. From this basic, common-sense definition a crucial element stands out: the existence or objective reality of the fact, and hence the Court’s ascertainment or finding that it did indeed happen, or that it occurred at an appropriate time such as to enable it to be invoked. (Separate Opinion of Judge ad hoc Mahiou, ICJ Rep. 2003, p. 70, para. 2)

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A final aspect concerning the concept of “facts” within the meaning of Article 61 is that the application for revision in the Genocide Convention case was directed at a decision concerning questions of access and jurisdiction. The Court simply took it for granted that judgments of that nature were subject to revision just as any other judgment would be.25 In his dissenting opinion appended to the judgment, judge ad hoc Dimitrijevic commented that this should have had an influence on the appraisal of the facts to be taken into account with a view to applying Article 61: Article 61 of the Statute does not distinguish between various kinds of ­judgments. For this simple reason, the notion of “fact” relied upon in Article 61 should be broad enough to accommodate various types of facts which serve as a basis for all legal conclusions. Obviously, specific facts on which access to the Court and jurisdiction may be based also belong to the broad category of facts within the meanings of Article 61. (Application for Revision-Genocide Convention (Bosnia), Dissenting Opinion of Judge ad hoc Dimitrijevic, ICJ Rep. 2003, p. 55, para. 10)

As for the “subjective” element, i.e., the concept of negligence, it represents the most significant innovation that the Statute of the PCIJ brought about to the rules of international procedural law governing the institution of revision. What is today Article 61 of the Statute of the Court mirrors word for word the same provision in the Statute of the PCIJ and that provision, in turn, was based to a large extent on the corresponding provisions of the 1899 and 1907 Hague Conventions on the Peaceful Settlement of Disputes (Article 55 of the 1899 Convention and Article 83 of the 1907 Convention).26 None of those instruments, however, contained the requirement that the ignorance of the new fact should not be due to negligence on the part of the State seeking the revision, and it fell upon the 1920 Advisory Committee of Jurists to suggest the introduction of this condition, which has been considered as “salutary.”27 The Court applied the concept of negligence in the Application for Revision and Interpretation-Tunisia/Libya Continental Shelf case. What Tunisia invoked 25  A doubt that has been voiced in scholarly opinion as to the applicability of Article 61 to judgments on jurisdiction concerns paragraph 3, concerning the requirement of previous compliance with the decision. See A. Zimmerman & R. Geiss, “Article 61”, Oxford Commentary, MN 24, pp. 1507–1508 and K. Oellers-Frahm, “Revision of Judgments of International Courts and Tribunals,” MN 10, in Max Planck EPIL. 26  Hudson’s PCIJ, p. 208. 27  D.V. Sandifer, Evidence before International Tribunals, (rev. ed. 1975), p. 447.

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in this case was essentially the lack of knowledge on its part of certain co-ordinates for a concession given by Libya. The Court concluded that “[t]he fact that the concession boundary co-ordinates were obtainable by Tunisia, and the fact that it was in its own interests to ascertain them, together signify that one of the essential conditions of admissibility of a request for revision laid down in paragraph 1 of Article 61 of the Statute, namely ignorance of a new fact not due to negligence, is lacking.”28 In more general terms, the Court remarked that if the fact invoked by the party seeking revision was mentioned in legal argument before the Court during the proceedings leading to the original judgment, that party cannot plead that the fact was “unknown” to it at the time at which the judgment was given. Article 61 of the Statute provides that an application for revision of a judgment may be made only when it is based upon the discovery of a fact “which was, when the judgment was given, unknown to the Court and also to the party claiming revision”. So far as knowledge of the fact in question could be derived from the pleadings and material submitted to the Court in the proceedings leading up to the original judgment, anything which was known to the Court must equally have been known to the party claiming revision. The Court must be taken to be aware of every fact established by the material before it, whether or not it expressly refers to such fact in its judgment; similarly, a party cannot argue that it was unaware of a fact which was set forth in the pleadings of its opponent, or in a document annexed to those pleadings or otherwise regularly brought before the Court. (Application for Revision and Interpretation-Tunisia/Libya Continental Shelf, Judgment of 10 Dec. 1985, ICJ Rep. 1985, p. 203, para. 19)

An interesting aspect, rightly underlined by a commentator, is that Article 61 does not require that the facts should have been known by both parties involved in litigation.29 If one of them has knowledge of a fact that may be damaging to its interests it can refrain from presenting it before the Court and if, later on, the other party learns about it, the latter could invoke it as grounds for revision. 28  Application for Revision and Interpretation-Tunisia/Libya Continental Shelf, Judgment of 10 Dec. 1985, ICJ Rep. 1985, pp. 206–207, para. 28. For comments on the concept of negligence in this context see the dissenting opinion of judge ad hoc Paolillo in the Application for Revision—El Salvador/Honduras case (ICJ Rep. 2003, p. 425, para. 39), as well as ILC Draft Convention, p. 103. 29  Thirlway’s Law and Procedure, Part 13, BYIL, vol. 74 (2003), p. 96.

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Box # 17-4 “Decisive facts” and ratio decidendi A crucial condition for the admissibility of an application for revision identified by the Court is that “[t]he fact, the discovery of which is relied on, must be ‘of such a nature as to be a decisive factor’.” In this regard, the point of departure of the Court in all cases must surely be the judgment to be revised. In the Application for Revision-El Salvador/ Honduras case, judge ad hoc Paolillo accurately pointed out that in order to determine whether a given fact is or is not “a decisive factor,” the principal task of the Court is to identify what exactly was the ratio decidendi in the original decision and how the new fact relates to it: In ascertaining whether [the admissibility requirements laid down in Article 61 of the Statute] have been satisfied, the Chamber’s assessment will necessarily depend on the terms of the Judgment whose revision is sought and the Chamber must act in conformity with the findings in that Judgment. This is particularly important for purposes of ascertaining whether the new facts presented by the party seeking revision are “of such a nature as to be a decisive factor”. That phrase has to be construed as meaning that, if the facts had been known previously, the Chamber would have taken a different decision. The new facts must, as noted by the present Chamber, be “’decisive factors’ in respect of the Judgment which [the Applicant] seeks to have revised” (. . .), that is to say in relation to the ground that led the Chamber to take its decision in the original proceedings. Hence, the trickiest part of the process of considering an application for revision of a judgment consists in correctly identifying the real ratio decidendi of the judgment. (Application for Revision-El Salvador/Honduras, Dissenting Opinion of Judge ad hoc Paolillo, ICJ Rep. 2003, p. 414)

Another important criterion adopted by a chamber of the Court is that the views of the parties on the admissibility of an application for revision represent only one element that the Court will take into account when deciding whether the requirements in Article 61 are met. In the Application for Revision-El Salvador/Honduras case, the applicant State in the proceedings on revision suggested that certain attitudes of the other party amounted to an admission that the application for revision was admissible, with the ­consequence that

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there was no need for the chamber to enter into the matter. This was firmly rejected by the latter in the following terms: The Chamber notes that, regardless of the parties’ views on the admissibility of an application for revision, it is in any event for the Court, when seised of such an application, to ascertain whether the admissibility requirements laid down in Article 61 of the Statute have been met. Revision is not available simply by consent of the parties, but solely when the conditions of Article 61 are met. (El Salvador/Honduras-Revision, Judgment of 18 Dec. 2003, ICJ Rep. 2003, p. 400, para. 22)

Box # 17-5 The Trial Smelter case and the concept of “essential error” Although it has arisen in the context of inter-State arbitration, it is worth mentioning briefly the concept of “essential error,” an expression that refers to an error in law and is sometimes used to describe a possible cause of revision of an international decision. The question was examined at length by the Arbitral Tribunal that decided the celebrated Trail Smelter case. After reviewing constitutional instruments such as the Hague Conventions and the Statute of the PCIJ, the Tribunal came to the conclusion that under those instruments “[n]o error of law is considered as a possible basis for revision.” It added, however, that on the basis of certain decisions—including an old decision by the PCIJ—a valid distinction should be made between “manifest” and “other errors in law,” and that in certain cases the first would be ground for a petition for the revision of an award. The question has not yet arisen in proceedings before the ICJ. [With reference to Article 61 of the Statute of the PCIJ] These requirements were provided for in the text which enables the court to bring its decision in harmony with justice in cases where, through no fault of the claimant, essential facts remained undisclosed or where fraud was subsequently discovered. No error of law is considered as a possible basis for revision, either by the Hague Convention or by the Statute of the Permanent Court of International Justice. The Permanent Court of International Justice left open, in the Saint Naoum case (Series B, p. 21), the question whether, in the absence of

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express provision, an award could be revised “in the event of the existence of an essential error being proved or of new facts being relied on”. (. . .) In the single case of Schreck . . . (Moore, International Arbitrations, 1357), Umpire Thornton reconsidered his decision at the request of the Agent of the claimant Government and, in this case, the revision was granted because he found that he had clearly committed an error in law. Because a claimant was born in Mexico, he had taken for granted that he had Mexican nationality. “The Agent of the United States produced the appropriate law of Mexico, by which it appeared that the assumption was clearly erroneous.” (. . .) The Sabotage cases were re-opened on the allegation that the decisions had been induced by fraud and the decisions were revised when this was proved. This obviously falls within the limits set up both by the Hague Convention and by the Statute of the Permanent Court of International Justice. The following passage of the decision of the Umpire, Mr. Justice Roberts, relied upon by the petitioner in this case, is therefore in the nature of a dictum: I think it clear that where the Commission has misinterpreted the evidence, or made a mistake in calculation, or where its decision does not follow its fact findings, or where in any other respect the decision does not comport with the record as made, or where the decision involves a material error of law, the Commission not only has power, but is under the duty, upon a proper showing, to re-open and correct a decision to accord with the facts and the applicable legal rules. This statement may be entirely justified by circumstances special to the Mixed Claims Commission, in particular by the practice followed ab initio by this Commission, apparently with the concurrence, until the Sabotage cases reached their last stages, of the Umpire, the Commissioners and the Agents, but in so far as it does not refer to the correction of possible errors arising from a slip or accidental omission, it does not express the opinion generally prevailing as to the position in international law, stated for instance in the following passage of a recent decision: “. . . . in order to justify revision it is not enough that there has taken place an error on a point of law or in the appreciation of a fact, or in both. It is only lack of knowledge on the part of the judge and of one of the parties of a material

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and decisive fact which may in law give rise to the revision of a judgment” (de Neuflize v. Disconto Gesellschaft, Recueil des Décisions des Tribunaux Arbitraux Mixtes, t. VII,1928, 629). A mere error in law is no sufficient ground for a petition tending to revision. The formula “essential error” originated in a text voted by the International Law Institute in 1876. From its inception, its very authors were divided as to its meaning. It is thought significant that the arbitral tribunal in the Orinoco case avoided it; the Permanent Court in the Saint Naoum case alluded to it. The Government of the Kingdom of the Serbs, Croats and Slovenes alleged essential error both in law and in fact (Series C, No. 5, II, p. 57, Pleadings by Mr. Spalaikovitch), but what the Court had in mind in the passage quoted above . . ., was only a possible error in fact. The paragraph where this passage appears begins with the words: “This decision has also been criticized on the ground that it was based on erroneous information or adopted without regard to certain essential facts.” The Tribunal is of opinion that the proper criterion lies in a distinction not between “essential” errors in law and other such errors, but between “manifest” errors, such as that in the Schreck case or such as would be committed by a tribunal that would overlook a relevant treaty or base its decision on an agreement admittedly terminated, and other errors in law. At least, this is as far as it might be permissible to go on the strength of precedents and practice. The error of interpretation of the Convention alleged by the petitioner in revision is not such a “manifest” error. (Trial Smelter (United States, Canada), Decision of 11 March 1941, RIAA, vol. 3, pp. 1953–1957)30

b) Procedure31 From a procedural standpoint, the essential feature of derivative proceedings on revision is that the Statute contemplates a two-stage procedure.32 The first stage (“sur le rescindant” or judicium rescindens) is concerned exclusively with 30  See further M. Al-Qahtani, “The Role of the International Court of Justice in the Enforcement of Its Judicial Decisions”, LJIL, vol. 15 (2002), p. 796; B. Cheng, “General ­principles . . .”, pp. 361–364. 31  See Prager’s Procedural Developments, LPICT, vol. 1 (2002), pp. 212–215. 32  This is a common feature of several international tribunals, including the International Tribunal for the Law of the Sea, Permanent Court of Arbitration tribunals, the European

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the admissibility of the application for revision; the second (“sur le rescisoire” or judicium rescissorium) is concerned with the merits of said application.33 It is also important to take into consideration from the outset that the second stage is opened with the very judgment with which the Court terminates the first stage. As a consequence of this, in the event that the application is admitted and the proceedings in revision do take place, at the end of the day there will be three different decisions of the Court, all of them adopting the form of a judgment: the judgment to be revised, the judgment declaring admissible the application for revision—and opening the proceedings in revision— and the judgment in which the revision itself is incorporated.34 In the first case of revision that the present Court faced, it underlined this aspect of its procedure, contrasting it with the case of the other derivative proceedings foreseen in the Statute, namely those concerning the interpretation of judgments: The Statute and Rules contemplate different procedures for a request for revision and for a request for interpretation. Under Article 61 of the Statute, the proceedings for revision shall be opened by a judgment of the Court declaring the application admissible on the grounds contemplated by the Statute; and Article 99 of the Rules of Court provides expressly for proceedings on the merits of the application in the event that, by its initial judgment, the Court finds it admissible. The provisions of Article 60 of the Statute and Article 98 of the Rules, concerning requests for interpretation, do not contemplate such a two-stage procedure. (. . .) (Application for Revision and Interpretation-Tunisia/Libya Continental Shelf, Judgment of 10 Dec. 1985, ICJ Rep. 1985, p. 197, para. 8)

Therefore, the two stages in proceedings on revision are not instituted in the same form. The first stage—admissibility—is instituted by an application, which is (or should be) no different than any regular application instituting proceedings.35 Under Article 99, para. 1 of the Rules, this document must Court of Justice and the European Court of Human Rights (Brown, “A Common Law . . ., p. 179). 33  Scerni’s La Procédure, p. 673. 34  In the case of the second and the third of these judgments, this is in application of Article 100, para. 2 of the Rules. 35  Up to 1936, the Rules were quite specific in providing that an “[a]pplication for revision shall be made in the same form as the application mentioned in Article 40 of the Statute” (Article 66, para. 1 of the 1922/1926 Rules). For the theoretical possibility of ­proceedings on revision being instituted by means of a special agreement see Hudson’s PCIJ, p. 543,

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Figure 8

c­ ontain “[t]he particulars necessary to show that the conditions specified in Article 61 of the Statute are fulfilled”36 and must be accompanied by “any documents in support.” An important difference with proceedings on interpretation is that the applicant does not need to show the existence of a dispute between the parties concerning the judgment.37 The second stage—merits—is instituted by the Court itself by means of the judgment on admissibility, which, according to the very detailed provision contained in paragraph 2 of Article 61 of the Statute, is a judgment “[e]xpressly recording the existence of the new fact, recognizing that it has such a character as to lay the case open to revision, and declaring the application admissible on this ground”.38 In the words of the Court, “Article 61 provides for revision

note 28; Rosenne’s Procedure, p. 206; S. Rosenne, Interpretation, Revision and Other Recourse from International Judgments and Awards (2007), pp. 182–183. 36  This formula was introduced in the 1936 reform, to replace the rather vague expression found in Article 66 of the 1926 Rules (“the facts upon which the application is based”). 37  Rosenne, “Interpretation, Revision . . .”, p. 173. 38  The paramount reason for requiring a judgment in order to open proceedings in revision is to protect the integrity of the res judicata principle (Rosenne, “Interpretation, Revision . . .”, pp. 186–187).

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proceedings to open with a judgment of the Court declaring the application admissible on the grounds contemplated by the Statute.”39 Concerning the filing of the application in the first stage, it is important to recall that Article 61 contains not one but two different time requirements that restrict the right of a party to institute proceedings on revision: under paragraph 4, “[t]he application for revision must be made at latest within six months of the discovery of the new fact;”40 and under paragraph 5, “[n]o application for revision may be made after the lapse of ten years from the date of the judgment”. Interestingly, in the Nuclear Tests-Request for Examination case, one of the arguments made by France in opposing New Zealand’s application was that it was intended to seek the revision of the 1974 judgment and that, as such, it was inadmissible, inter alia, because the time-limit of ten years had elapsed. The Court made no comment on this contention.41 Here again, proceedings on revision are a unique case in the procedural regime of the ICJ, because it is the only instance in which such strict time constraints are imposed upon States wishing to avail themselves of a right guaranteed to them in the Court’s governing instruments.

Box # 17-6 Revision of judgments in the Rules of Court: Evolution Provisions governing the revision of judgments have appeared in the Rules of Court since the initial version adopted by the PCIJ in 1922. With several changes in the language—some of them of certain significance—the essential features of this procedure have been maintained up to the 1978 Rules. In particular, the following elements present in Article 66 of the 1922 Rules can still be found in Article 99 of the current Rules: – The fact that proceedings on revision are to be instituted by means of an application (Article 66, para. 1 of the 1922 Rules; Article 99, para. 1 of the 1978 Rules); 39  Application for Revision-Genocide Convention (Bosnia), Judgment of 23 Feb. 2003, ICJ Rep. 2003, p. 11, para. 15 and Application for Revision-El Salvador/Honduras, Judgment of 18 Dec. 2003, ICJ Rep. 2003, p. 398, para. 18. 40  For a discussion of practical difficulties that may be found in the application of this condition see Scerni’s La Procédure, pp. 672–673 and Thirlway’s Law and Procedure, Part 13, BYIL, vol. 74 (2003), pp. 95–96. 41  Nuclear Tests-Request for Examination, Order of 22 Sep. 1995, ICJ Rep. 1995, pp. 300–301, para. 40.

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– The essential contents of an application for revision (Article 66, para. 2 of the 1922 Rules; Article 99, para. 1 of the 1978 Rules); – The right of the other party to submit observations (Article 66, para. 3 of the 1922 Rules; Article 99, para. 2 of the 1978 Rules); – The condition that the revision should be addressed by the same organ that gave the initial decision, be it the full Court or a chamber (Article 66, para. 4 of the 1922 Rules; Article 100, para. 1 of the 1978 Rules); – A procedure to give effect to Article 61, para. 3 of the Statute (the possibility of requiring previous compliance with the judgment before admitting proceedings in revision) (Article 66, para. 5 of the 1922 Rules; Article 99, para. 5 of the 1978 Rules). On the other hand, the successive reforms of the Rules introduced new elements in the pertinent provisions that have been maintained to date, as follows: a) The revision of 1926 introduced the condition that the decision by the Court on a request for revision should be given in the form of a judgment (Article 66, para. 5 of the 1926 Rules; Article 100, para. 2 of the 1978 Rules). b) The adoption of the Rules for the ICJ in 1946 introduced a clear separation between the two stages in the procedure: the stage on the admissibility of the application and the examination of the merits of the application. This was further enhanced by the 1978 reform (Article 78, para. 3 of the 1946 Rules; Article 99, paras. 2 and 4 of the 1978 Rules). c) The reform of the Rules in 1978 added two provisions: on the one hand, a requirement that the observations submitted by the other party be communicated to the party seeking the revision (Article 99, para. 2); and, on the other, the possibility that the parties are given “a further opportunity” to present their views on the admissibility of the application (Article 99, para. 3).42

42  Up to 1978, there was no provision in the Rules for additional pleadings, written or oral, on the admissibility of the application. Writing in 1938, Scerni regretted that this was the situation (Scerni’s La Procédure, p. 674).

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There are also two elements that featured in the applicable provisions for a time but were deleted upon reflection. They are the following: – A requirement that Article 13 of the Statute, dealing with changes in the composition of the Court, would be applicable in cases of revision. This was included in Article 66 of the original 1922 Rules (Article 66, para. 4) and was deleted in 1936.43 – A provision establishing a procedure to deal with “[o]bjections to the Court’s jurisdiction to revise . . . a judgment.” This was introduced in 1926 (Article 66, para. 4) and was deleted in 1936.44 Finally, Article 100, which is a common provision for interpretation and revision, is also applicable. It contains two formal rules, the first providing that if the judgment to be revised was given by a chamber then the request for its revision shall be handled by the same chamber and the second directing that the decision on a request for revision shall be given in the form of a judgment.

Once the application is filed, interlocutory (and, as a general rule, expeditious) proceedings are conducted. They concentrate exclusively on the question of the admissibility of the application are conducted, in what technically constitutes a new case—or, more precisely, a new phase within a new case—which is different and separate from the original proceedings leading to the judgment to be revised. In the Genocide Convention (Bosnia) case, for instance, the application for revision filed by the respondent referred to the Court’s judgment on preliminary objections and was submitted while the merits phase of the same case was ongoing.45 In principle, these derivative proceedings consist of a single round of written pleadings, i.e. the application itself and “written observations,” that are made by the other party within a time-limit fixed by the Court, or by the President if the Court is not sitting (Rules, Article 99, para. 2).46 After these ­observations 43  For the reasons leading to the deletion see Chapter 16, text to note 20 and Box # 16-3. 44  For details see Box # 16-3. 45  For a critique of the Court’s decision to open separate proceedings on revision in these circumstances see Prager’s Procedural Developments, LPICT, vol. 1 (2002), pp. 213–214. 46  Interestingly, in the practice of the Court this date is not fixed by means of an order but in camera, the decision being communicated directly to the parties (Prager’s Procedural Developments, 1 (2002), p. 212).

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are communicated to the applicant, the Court must decide whether it affords the parties “[a] further opportunity of presenting their views” with regard to the admissibility of the application. This may translate into either an additional round of written pleadings or a hearing, according to what the Court deems convenient. In all three cases of revision handled thus far, there has been a single round of written pleadings and regular oral proceedings have been organized. In the Application for Revision-El Salvador/Honduras case a copy of the application was communicated “for information purposes” to Nicaragua, a State that had been admitted to intervene in the original proceedings.47 It is submitted that this was not entirely justified, since the intervention was admitted solely with regard to the maritime component of the dispute between El Salvador and Honduras and the application for revision referred exclusively to an aspect of the land frontier. It was also unnecessary because in its capacity as a State “entitled to appear before the Court,” Nicaragua was in any case receiving a copy of the application under the combined application of Article 40, para. 3 of the Statute and Article 42 of the Rules. At this stage, “[t]he Court’s decision is limited to the question whether the request satisfies the conditions contemplated by the Statute.”48 If the Court is not thus satisfied, it declares the application inadmissible and this is the end of the derivative proceedings and of the case on revision, which is then removed from the General List. If, on the other hand, the Court declares the application admissible, paragraph 4 of Article 99 states that it must fix time-limits for “[s]uch further proceedings on the merits of the application as, after ascertaining the views of the parties, it considers necessary.” Further, Rosenne has stated that “[g]iven the subtleties of contemporary litigation,” it cannot be entirely ruled out that in a given case the Court may come to the conclusion that the questions of admissibility are so interwoven with the substance of the request for revision that it cannot reach a decision on them before considering legal argument on the latter. In such a case, a procedure analogous to that provided for in Article 79, para. 9 of the Rules may be envisioned, and the Court would need to deal with both aspects—admissibility and merits of the request for revision—in one single judgment.49 With respect, however, it is suggested that this would be hard to reconcile with paragraph 2 of Article 61 of the Statute, 47  Application for Revision-El Salvador/Honduras, Judgment of 18 Dec. 2003, ICJ Rep. 2003, p. 394, para. 2. 48  Application for Revision-Genocide Convention (Bosnia), Judgment of 3 Feb. 2003, ICJ Rep. 2003, p. 11, para. 16. 49  Rosenne, “Interpretation, Revision . . .”, pp. 173 and 187.

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requiring that the Court issues an initial judgment “declaring the application admissible” as a pre-requisite for the opening of proceedings in revision. In any event, as no case has thus far reached this second phase, there is no practice that might shed light on how the “further proceedings” contemplated in Article 99, para. 4 are to be conducted. Theoretically—and subject to the full discretion of the Court—these proceedings should also comprise one or more exchanges of written pleadings and regular hearings, as befits the new case that is opened with the judgment closing the first stage in the proceedings on revision.50 In the Application for Revision and Interpretation-Tunisia/Libya Continental Shelf case, judge ad hoc Bastid posed some very pertinent questions in this regard that have lost none of their relevance: The Statute of the Court, while laying down the conditions of admissibility of an application for revision, is silent as to the effects of that application if deemed admissible. What would it imply to reopen the merits of a case, and to what extent should the case as a whole be reviewed? Such a situation would call for an examination of the very concept of revision in the light of any existing practice of international tribunals and the, at times, conflicting practice of the various municipal judiciaries. But this question would not arise until after the delivery of a judgment declaring an application admissible. (Application for Revision and Interpretation-Tunisia/Libya Continental Shelf, Separate Opinion of Judge Bastid, ICJ Rep. 1985, p. 247, para. 2)

In this regard, it is interesting to note what the Secretariat of the United Nations, on the basis of practice in international arbitration, had to say with regard to the role that a tribunal is called to play when it entertains proceedings in revision of the award: Revision is not a form of rehearing permitting the parties to question the legal reasoning upon which the award was based. The task of the tribunal in a proceeding of revision is to place the newly discovered fact in conjunction with the facts previously made the basis of decision and to

50  Scerni’s La Procédure, pp. 674–675; Thirlway’s Law and Procedure, Part 13, BYIL, vol. 74 (2003), p. 90.

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determine whether such new fact materially modified their significance and the conclusions drawn from them.51 On the other hand, paragraph 5 of Article 99 of the Rules seeks to give effect to paragraph 3 of Article 61 of the Statute, according to which “[t]he Court may require previous compliance with the terms of the judgment before it admits proceedings in revision.” This provision was added by the 1920 Advisory Committee of Jurists because it was feared that a State party “[m]ight delay compliance with a sentence” in the hope of discovering some new fact.52 This, in turn, is related to the fact that the continuing obligation of the parties to comply with the judgment and to implement its provisions is not revoked or even suspended by the mere fact that one of them decides to impeach the decision.53 As it was stated in a commentary accompanying the 1920 DraftScheme: “[t]he judgment therefore speaks from its delivery, even though it be subject to revision”.54 Procedurally, Article 61, para. 3 clarifies that when this situation obtains, the pertinent action by the Court must be taken when proceedings on the admissibility of the application are still pending and before the question of admissibility has been addressed. The previous versions of the Rules were clear about this, and provided that this condition would be communicated forthwith to the applicant when the Court decided to take this route, and that “[p]roceedings in revision shall be stayed pending receipt by the Court of proof of compliance with the judgment.”55 However, the 1978 reform changed this approach, and the new provision (paragraph 5 of Article 99) is significantly vague, limiting itself to provide that:

51  ILC Draft Convention, p. 102. See also Zimmerman & Geiss, “Article 61”, MN 55–58, pp. 1518–1520. 52  Hudson’s PCIJ, p. 209. 53  By the same token, if enforcement proceedings have been commenced they can continue unless stayed, presumably by the organ before which they were brought (Rosenne, “Interpretation, Revision . . ., p. 174). 54  Brown Scott’s Project, p. 130. 55  Article 83, para. 4 of the 1972 Rules, corresponding to Article 78, para. 4 of the 1946 Rules; Article 78, para. 3 of the 1936 Rules; Article 66, para. 1 of the 1926 Rules and Article 66, para. 5 of the 1922 Rules. Until 1926, the pertinent provision required also that the proof of compliance with the original judgment had to be “accepted by the Court.”

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If the Court decides to make the admission of the proceedings in revision conditional on previous compliance with the judgment, it shall make an order accordingly. Since the decision of the Court contemplated in this provision is to be made in all cases prior to the decision closing the first stage and admitting the application for revision, it can be anticipated that the Court should make the order mentioned therein when the derivative proceedings on the admissibility of the application are under way. The adoption of a judgment concerning admissibility will then be deferred for a later moment, when it is satisfied, inter alia, that the condition in Article 61, para. 3 has been met. There is no practice on this matter yet, although the question arose briefly in the Application for Revision-El Salvador/Honduras case, in which the applicant in the revision proceedings put forward the rather far-fetched contention that a casual invocation by the other party of Article 61, para. 3 amounted to an implicit acknowledgment of the admissibility of the application. The chamber of the Court dealing with the case rejected this view in a summary form, in the following terms: The Chamber observes first that, in its letter of 29 October 2002, Honduras informed the President of the Court that it would “request that the Court make the admission of the proceedings in revision conditional on previous compliance with the judgment” and that accordingly it would “submit a formal petition” to that effect. However, Honduras never submitted that request and stated in its observations of 24 July 2003 (. . .) that it had “decided, on reflection, not to ask the Chamber to require prior compliance with the terms of the Judgment”. Thus, Honduras’s conduct cannot be construed as implying a tacit acceptance of the admissibility of El Salvador’s Application for revision. (Application for Revision-El Salvador/Honduras, Judgment of 18 Dec. 2003, ICJ Rep. 2003, p. 399, para. 22)

As it can be observed, had Honduras been consistent with its announcement, it could have submitted a formal request for the application of Article 61, para. 3 of the Statute and the proper procedural moment for doing so would have been before the closing of the proceedings on the admissibility of the application. It is suggested that in such circumstances the Court would have been bound to deal with that question before making a final decision on the admissibility and could have done so by means of an order. It is true that Article 99, para. 1 of the Rules directs that the Court is to make an order only if it decides—­apparently

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of its own volition—to apply Article 61, para. 3, but there appears to be no obstacle for also using the medium of an order for a decision rejecting a request to that effect made by one of the parties.56 The Court also used this occasion to comment on the general import of Articles 61, para. 3 of the Statute and 99, para. 5 of the Rules, in the following terms: Further, paragraph 3 of Article 61 of the Statute and paragraph 5 of Article 99 of the Rules of Court afford the Court the possibility at any time to require previous compliance with the terms of the judgment whose revision is sought, before it admits proceedings in revision; accordingly, even if Honduras had submitted a request to the Court to require previous compliance without awaiting the Chamber’s decision on the admissibility of El Salvador’s Application, the request would not have implied recognition of the admissibility of the Application. (emphasis added) (Application for Revision-El Salvador/Honduras, Judgment of 18 Dec. 2003, ICJ Rep. 2003, pp. 399–400, para. 22)57

This passage calls for some observations. In the first place, when the Court states that it can apply Articles 61, para. 3 and 99, para. 5 “at any time,” it surely means at any time between the moment at which the application for revision is filed and the moment at which the decision on its admissibility is made, i.e. “before [the Court] admits proceedings in revision,” as the same passage goes on to state a few lines later. This is so because, for a decision under those provisions to make any sense, it must be adopted before the Court has taken a definite stand on whether the application is admissible under the conditions provided for in the Statute. The question deserves emphasizing, if only because in the same passage the Court appears to suggest that Honduras could have waited to submit a request to require previous compliance after the chamber’s decision on the admissibility of El Salvador’s application, i.e., that it could have “awaited” for that decision. However, the requirement of compliance with the judgment is canvassed 56  However, see the opinion of Rosenne, who apparently considers that a decision on the basis of Article 61, para. 3 of the Statute could very well be embodied in the very judgment admitting the application for revision (Rosenne’s Procedure, p. 205; and, by the same author, “Interpretation, Revision . . .”, p. 174). 57  For the view that these provisions can also be employed as a general means to ensure compliance with a judgment see M. Al-Qahtani, “The Role of the International Court of Justice in the Enforcement of Its Judicial Decisions”, LJIL, vol. 15 (2002), pp. 796–797.

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in both the Statute and the Rules as a pre-condition for the very decision to admit the application for revision, as it is stressed by the fact that both provisions refer explicitly to “previous compliance.” A last point is that in the passage quoted, mention is made of the possibility of Honduras submitting a request to the Court to require previous compliance “[w]ithout awaiting the Chamber’s decision on the admissibility of El Salvador’s application.” This is confusing (unless it is simply a slip of a pen), because if the original judgment was given not by the full Court but by a chamber, and if under Article 100, para. 2 of the Rules “[t]he request for its revision . . . shall be dealt with by that chamber,” it appears reasonable that any other decision concerning the application, like a decision to require previous compliance, must also be made by the chamber and not by the full Court. Additionally, with regard to Article 100, para. 1 of the Rules and cases addressed by chambers, it is interesting to recall that the fact that Article 61, para. 5 provides for an extended period of ten years to make an application for revision makes it virtually impossible to ensure that the composition of the chamber dealing with the proceedings on revision is identical with that of the chamber that gave the original decision. In fact, it is generally accepted that, at least with regard to ad hoc chambers of the type provided for in Article 26, para. 2 of the Statute, once a chamber of the Court gives its decision, it becomes functus officio and is dissolved accordingly.58 Therefore, the only way to ensure compliance with Article 100 is to make arrangements of the formation of an entirely new chamber. This was demonstrated by the El Salvador/Honduras case, in which El Salvador waited until the last possible moment—a day before the ten-year limit was to expire—to file its application for revision, and when it did so most of the members of the chamber that gave the original decision had passed away and, in fact, the only one that remained in the Court was about to leave it.59 In these circumstances, compliance with the requirement of Article 100,

58  The same occurs as a matter of course in international arbitral proceedings, which in many aspects resemble the chambers system (ILC Draft Convention, p. 104). 59  This was judge Oda, who stood down in 2003, after serving three consecutive periods as a member of the Court. In a declaration appended to the Court’s order of 27 November 2002 on the constitution of the “new” chamber in this case, this judge contended that, although his health condition precluded him from serving, as the only surviving judge who had been a member of the original chamber he ought to be a member of the chamber to be formed to deal with the application for revision (ICJ Rep. 2002, pp. 621–623). See also Prager’s Procedural Developments, LPICT, vol. 2 (2003), pp. 177–178.

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para. 1 was simply perfunctory in this case, although this did not appear to bother the other party—or the Court itself, for that matter.60 Further Reading

Leading Works



General Works and Treatises on the Court



Articles and Monographs

M. Reisman, Nullity and revision; the review and enforcement of international judgments and awards (1971) S. Rosenne, Interpretation, Revision and Other Recourse from International Judgments and Awards (2007)

Guyomar’s Commentaire, pp. 627–634 Rosenne’s Law and Practice, vol. 3, pp. 1669–1673, 1681–1686 Rosenne’s Procedure, pp. 201–207 Scerni’s La Procédure, pp. 670–675 Thirlway’s Law and Procedure, Part 13, BYIL, vol. 74 (2003), pp. 89–102 A. Zimmerman & R. Geiss, “Article 61”, Oxford Commentary, pp. 1497–1528

Ch.F. Amerasinghe, Jurisdiction of Specific International Tribunals (2009), pp. 186–189 L.M.C. Brant, “L’authorité de la chose jugée et la révision devant la Cour international de jutice a la lumière des derniers arrest de celle-ci (Yugoslavie c. Bosnie et El Salvador c. Honduras)”, AFDI, vol. 49 (2003), pp. 248–265 E. Decaux, “L’Arrêt de la Cour Internationale de Justice sur la demande en révision et interprétation de l’arrêt du 24 Février 1982 en l’affaire du Plateau Continental (Tunisie/ Libye), Arrêt du 10 Décembre 1985”, AFDI, Vol. 31 (1985), pp. 324–349 P.J. Epstein, “ ‘New facts’ in the Bosnia-Herzegovina vs. Yugoslavia Genocide Case: Interpretation of Article 61 of the Statute of the International Court of Justice”, The Global Community Yearbook of International Law & Jurisprudence, vol. 4 (2004), pp. 187–193 R. Geiss, “Revision Proceedings before the International Court of Justice”, ZaöRV, vol. 63 (2003), pp. 167–194 K.H. Kaikobad, Interpretation and Revision of International Boundary Decisions (2007)

60  This situation had been anticipated, quite accurately, by Rosenne (S. Rosenne, “The 1972 Revision of the Rules of the ICJ”, Israel LR, vol. 8 (1973), p. 212; Rosenne’s Procedure, p. 45).

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J.G. Merrills, “Reflections on the Incidental Jurisdiction of the International Court of Justice”, in M.D. Evans (Ed.), Remedies in International Law: The Institutional Dilemma, 1998, pp. 64–70 J. Salmon, “Le fait dans l’application du droit international”, RC, vol. 175 (1982/II), pp. 257–414 D.V. Sandifer, Evidence Before International Tribunals, rev. ed. (1975), pp. 443–456 S. Torrez Bernárdez, “À propos de l’interprétation et de la révision des arrêts de la Cour Internationale de Justice” in Universities of Geneva, Milano and Rome (Eds.) Le droit international à l’heure de sa codification. Études en l’honneur de Roberto Ago (1987), vol.3, Les différends entre les états et la responsabilité, pp. 443–496 E. Zoller, “Observations sur la révision et l’interprétation des sentences arbitrales” AFDI, Vol. 24 (1978), pp. 327–351

Part 7 Other Aspects of the Litigation

∵

In this part of the work the focus is on other aspects of procedure in litigation before the International Court of Justice that are not covered in Parts 2 to 6. They refer to the phenomena of joinder of cases; lack of appearance; appeals; and remedies (treated jointly in Chapter 18) as well as litigation before chambers (Chapter 19) and what may be termed non-contentious litigation, i.e. the conduction of advisory proceedings (Chapter 20). With the exception of the question of remedies and, to a lesser extent, advisory proceedings, these devices have in common that they have barely been used, if used at all, over the last decades of the functioning of the Court. However, they remain available tools for the States and for the Court itself and thus deserve to be briefly examined. In particular, litigation before chambers constituted a favorite topic of discussion among followers of the work of the Court between the mid-80s and the beginning of the new century—a period that also witnessed a very palpable reactivation of the Court and an enlargement of its docket. After a short period in which four chambers in succession were set up by States parties to cases (1981–1987), the process slowed down somewhat, but chambers still constitute an attractive option open to States wishing to resort to adjudication before the Court. As for remedies, the inclusion of a section concerning this in a work mainly concerned with procedure may appear surprising. Ordinarily, the discussion of the legal consequences of a decision by an international tribunal forms part of the substance of the case. However, in most cases the search for a remedy is what prompts States to go to the Court and the recent case law of the ICJ is particularly rich in developments concerning this aspect of its working. From a practical standpoint, it was felt that this presentation of the law and practice of the ICJ concerning litigation before it would be incomplete if the question of remedies were to be set aside. For these reasons, the closing section of Chapter 18 contains a discussion of the questions of procedure involved in the granting of remedies by the ICJ.

Chapter 18

Other Litigation Devises: Joinder, Lack of Appearance, Appeals and Remedies (i)

Joinder of Cases

The procedural device of joinder refers to cases in which two or more disputes that arise out of essentially the same facts and involve disagreements between one single State and several others are brought before the Court at roughly the same time, so that there is room for it to order some sort of consolidation of the proceedings. They cover a wide range of situations, including cases of several States filing separate applications against one and the same State, the inverse situation of a single State filing applications against several States, and cases submitted by parallel special agreements between one State and two or more States. These situations, which pave the way for what is called in some jurisdictions “litisconsortium,” may be characterized by the presence of two cumulative factors, namely: (one) An identity of claims and submissions between separate cases submitted to the Court at the same time; and (two) What has been called “coincident circumstances of fact and law.”1 Cases like these have arisen more than once before the present Court, and they have invariably given rise to difficulties with regard to the appointment of judges ad hoc. Up to 1978, the Court’s authority to direct joinder or common action derived from its general power to “make orders for the conduct of the case,” as provided for in Article 48 of the Statute, since the Rules of Court were silent on the matter, mentioning joinder only in the entirely different context of the handling of counter-claims and preliminary objections. The question is now governed by Article 47 of the Rules, a provision introduced in the 1978 reform and embodying for the first time in the Court’s history a convenient regulation of this aspect of the Court’s practice, which is based on the acquired experience of previous decades.2 Article 47 has a wide scope and has been worded in a flexible manner, apparently covering all possibilities: the formal joinder of proceedings; the 1  Nuclear Tests (New Zealand v. France), Interim Protection, Dissenting Opinion of Judge Petren, ICJ Rep. 1973, p. 159. 2  Rosenne’s Procedure, pp. 108–110; Guyomars’s Commentaire, pp. 300–304.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004297517_019

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conduction of common proceedings (both written and oral and in this last case including the calling of witnesses) and common action in separate proceedings. With regard to all of these actions, the basic assumption is that the Court has full and unfettered discretion on the matter, for it is accepted that in international adjudication “[i]t is generally discretionary on the part of the tribunal to bring about, in appropriate cases, joinder, separation or regrouping of proceedings, and its considerations would include questions of delay, expediency, convenience, and above all, interests of justice.”3 The different actions provided for in Article 47 have three features in common, namely: (i) The relevant action can be taken by the Court “at any time” and can be initiated by the Court itself; (ii) Although any of the actions mentioned in Article 47 can be taken without hearing the parties (there is no requirement that the parties are heard), the Court will normally seek the parties’ views before taking action;4 and (iii) The pertinent action will invariably be embodied in an order.

Box # 18-1 Joinder, common proceedings and common action: A review of the practice5 The Rules of 1978 are the first Rules of Court that devote a provision to the question of the joinder of proceedings. For this reason, it is useful to consider the practice of the Court in this regard, both in a positive and negative sense, prior and after that year. i) Cases before 1978 in which joinder or common action was ordered by the Court In the South West Africa cases, instituted by means of simultaneous applications by Ethiopia and Liberia against the Union of South Africa, the question 3  Mani’s Adjudication, pp. 144–145. 4  Rosenne’s Law and Practice, vol. 3, p. 1251. 5  For the practice of the PCIJ see Hudson’s PCIJ, pp. 544–545. This author, however, addresses under the heading “Joinder of Proceedings” two procedural situations that are discussed elsewhere in the present work, namely, the joinder of a preliminary objection to the merits (see Chapter 12) and the joinder of a counter-claim to the original application (See Chapter 13).

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arose as to whether each of the two applicants could appoint a judge ad hoc. After receiving a Memorial by each applicant and verifying that the submissions in both applications and in the two Memorials were identical, the Court found that the two parties were in the same interest and decided to formally join the cases (Nos. 46 and 47 in the General List), albeit without reasoning (South West Africa Cases (Ethiopia v. Union of South Africa; Liberia v. Union of South Africa), Order of 20 May 1961, ICJ Reports 1961, p. 13). In the two North Sea Continental Shelf cases, instituted by means of two special agreements concluded between Germany, on the one hand, and Denmark and The Netherlands, on the other, the Court also joined the proceedings in cases Nos. 51 and 52 in the General List. This time, however, it did so at the express request of all of the parties involved, as stated in a trilateral agreement of which the Court took judicial notice (North Sea Continental Shelf (Denmark/ Federal Republic of Germany; Federal Republic of Germany/Netherlands) Order of 26 Apr. 1968, ICJ Rep. 1968, p. 9). Interestingly, the formal request to join the proceedings was made only after each of the parties had filed its first pleading (a Memorial by Germany and a Counter-Memorial by both Denmark and the Netherlands) and when the Court had already fixed the time-limits for the filing of replies and rejoinders. As a result, the order directing the joinder modified a previous order and directed the filing of a common Rejoinder.6 ii) Cases before 1978 in which joinder was actively considered but rejected by the Court In the two cases concerning Fisheries Jurisdiction, submitted by means of simultaneous applications by Germany and the United Kingdom against Iceland, the Court initially found that at the jurisdictional phase the two applicants had “[a] common interest in the sense of Article 31, paragraph 5, of the Statute”, i.e. for the purposes of the appointment of a judge ad hoc (Fisheries Jurisdiction (Germany v. Iceland), Jurisdiction, Judgment of 2 Feb. 1973, ICJ Reports 1973, p. 51, para. 7).7 At the merits phase, apparently acting on its own motion, the Court

6  Other cases that never reached the stage of the merits and in which joinder might have been considered at the appropriate stage include the three proceedings entitled Aerial Incident of 27 July 1955 (USA v. Bulgaria); (UK v. Bulgaria) and (Israel v. Bulgaria). For a comment see Rosenne’s Law and Practice, vol. 3, pp. 1256–1257. 7  A crucial factor in this case was no doubt the fact that the applicant in the other case (the UK) had a judge of its nationality on the bench.

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gave active consideration to the possibility of joining the two cases. After interlocutory proceedings in which the views of the parties were gathered, the Court decided not to join the proceedings, settling for the conduction of separate and parallel proceedings. The reasoning of the Court was as follows: On 17 January 1974 the Court decided by nine votes to five not to join the present proceedings to those instituted by the United Kingdom against the Republic of Iceland. In reaching this decision the Court took into account the fact that while the basic legal issues in each case appeared to be identical, there were differences between the positions of the two Applicants, and between their respective submissions, and that joinder would be contrary to the wishes of the two Applicants. The Court decided to hold the public hearings in the two cases immediately following each other. (Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports 1974, p. 177, para. 8)8

In the Nuclear Tests cases, also involving two applicants (Australia and New Zealand) against a single respondent (France), the Court decided against a joinder early in the proceedings—at the provisional measures phase—and ordered the conduction of separate and parallel proceedings.9 Several judges were of the opinion that the two cases should have been joined from the outset.10 iii) Cases after the 1978 reform in which there have been parallel and simultaneous—but formally separate—proceedings.

•

Lockerbie (Libya v. USA) and (Libya v. UK)

8  For the corresponding decision in the case between the UK and Iceland see ICJ Rep. 1974, pp. 5–6, para. 8. 9  Nuclear Tests, Pleadings, vol. 1, p. 245 (Australia) and vol. 2, p. 142 (New Zealand). 10  Nuclear Tests (New Zealand v. France), Interim Protection, Dissenting Opinion of Judge Forster, ICJ Rep. 1973, p. 148; ibid., Dissenting Opinion of Judge Gros, ibid., p. 149; Dissenting Opinion of Judge Petren, ibid., p. 159; Dissenting Opinion of Judge Ignacio Pinto, ibid., p. 163. Nuclear Tests (New Zealand v. France), Merits, Separate Opinion of Judge Gros, ICJ Rep. 1974, p. 480.

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In these cases, submitted on the same day and having the same applicant, no question of joinder appears to have been raised. During the preliminary objections phase the Court considered the separate question of whether or not the respondents should be reckoned as being “parties in the same interest,” within the meaning of Article 35, para. 3, a provision that is exclusively concerned with the appointment of judges ad hoc.11

•

Kosovo (Serbia and Montenegro v. Germany), (Serbia and Montenegro v. Belgium), (Serbia and Montenegro v. Canada), (Serbia and Montenegro v. France), (Serbia and Montenegro Yugoslavia v. Italy), (Serbia and Montenegro v. Netherlands), (Serbia and Montenegro v. Portugal) and (Serbia and Montenegro v. UK).

In the Kosovo cases, in which contentious proceedings concerning essentially the same facts were instituted against 10 different States by Serbia and Montenegro, the Court gave consideration to several questions of procedure involved, including that of a possible joinder. The question arose when the Court was considering the preliminary objections raised by the respondents in eight of these cases (those against Belgium, Canada, France, Germany, Italy, The Netherlands, Portugal and the United Kingdom), the cases against Spain and the USA having been quickly dismissed because of manifest lack of jurisdiction. While the applicant was in favor of joinder, the respondents were generally opposed. After gathering their views on these and other matters of procedure, the Court informed all of the States concerned that the joinder of the proceedings “[w]ould not be appropriate at that stage,” a decision that was recorded in the judgments on preliminary objections (For a sample see Kosovo (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 287, para. 18). The Court then conducted separate and parallel proceedings that concluded with the delivery of eight different decisions couched in virtually the same terms. As the composition of the bench was not identical in each case, since some of the respondents were afforded the right to appoint a judge ad hoc and one of them even chose not to exercise this right, special and somewhat

11  See Chapter 4, c), especially in Box # 4-6. For the difference between joinder and “parties in the same interest” see Box # 18-2 below.

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cumbersome arrangements had to be made for the organization of the oral proceedings.12 iv) Cases after 1978 in which joinder was ordered by the Court By means of two separate orders dated 17 April 2013 the Court decided to join the proceedings in two cases between Costa Rica and Nicaragua concerning facts related to a similar situation. They are Certain Activities carried out by Nicaragua in the Border Area, introduced on 8 November 2010 by Costa Rica against Nicaragua (case No. 150 in the General List) and Construction of a Road in Costa Rica along the San Juan River, introduced on 21 December 2011 by Nicaragua against Costa Rica (case No. 152). In its reasoning in both orders the Court listed the following elements that justified the decision to join the proceedings: (1) (2) (3)

(4)

(5)

that the two cases concerned involve the same Parties and relate to the same geographical area; that both cases are based on facts relating to certain works being carried out in, along, or in close proximity to a common river; that both sets of proceedings are about the effect of the aforementioned works on the local environment and on the free navigation on, and access to, the said river, and that, in this regard, both Parties refer to the risk of sedimentation of the river; that in both cases the Parties make reference, in addition, to the harmful environmental effect of the works in and along the river on the fragile fluvial ecosystem (including protected nature preserves in and along the river); and, finally, that in both cases the Parties refer to violations of the same legal instruments, namely a 1858 Treaty of Limits, several arbitral awards and the Ramsar Convention (Orders of 17 April 2013, paras. 19–22).

12  Other “paired” cases, in which simultaneous applications by the same State against different States have been filed, although each set of proceedings took a different course, include the following: Armed Actions (Nicaragua v. Costa Rica) and (Nicaragua v. Honduras) and Armed Activities (DRC v. Burundi), (DRC v. Uganda) and (DRC v. Rwanda).

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a) Formal Joinder (“Jonction d’instance”) The opening sentence of Article 47 empowers the Court to direct, at any time, “that the proceedings in two or more cases be joined.” In this scenario, a situation may present in which two or more parties are to be recognized as one party and will be entitled to appoint a single judge ad hoc—similarly to instances in which two or more parties are in the same interest under the provisions of Article 26 and 37, para. 2 of the Rules—and will file their pleadings jointly. At the end of the proceedings the Court delivers a single judgment, although it might very well contain in the dispositif special provisions paying due regard to the fact that more than one State was acting as either applicant or respondent. On the first occasion that the Court applied Article 47 it remarked as follows on the general scope of this provision: Under Article 47 of its Rules, “[t]he Court may at any time direct that the proceedings in two or more cases be joined”. That provision leaves the Court a broad margin of discretion. Where the Court, or its predecessor, has exercised its power to join proceedings, it has done so in circumstances where joinder was consonant not only with the principle of the sound administration of justice, but also with the need for judicial economy (. . .). Any decision to that effect will have to be taken in the light of the specific circumstances of each case. (Construction of a Road, Joinder of proceedings, Order of 17 April 2013, para. 12; Activities in the Border Area, Joinder of proceedings, Order of 17 April 2013, para. 18)

The practice of the Court on this question, although scarce, shows that three propositions may be said to dominate it, namely: (i) The first requirement for a joinder is that two or more cases are formally opened and entered in the Court’s General List. Hence, joinder will not be possible in cases of unilateral arraignment, unless and until the State named as respondent has consented to the Court’s jurisdiction, in the terms of Article 38, para. 5 of the Rules.13

13  This is illustrated by the cases US Aircraft and Crew in Hungary (USA v. USSR) and (USA v. Hungary) and Antarctica (UK v. Chile) and (UK v. Argentina). In the first of these, the Court’s order removing the case from the General List put on record that the applicant in the two cases had “[e]xpressed a wish that the two Applications should be considered and dealt with together.” (US Aircraft and Crew in Hungary (USA v. USSR), Order of 12 July 1954, ICJ Rep. 1954, p. 100.) On unilateral arraignment see further Chapter 2, f ).

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(ii) As stated above, the Court will pay due attention to the views of the parties. While it will normally refrain from directing that proceedings are joined if there are strong objections, there may be cases in which joinder is found by the Court to be the proper action, even if one of the parties opposes it;14 (iii) The effect of joinder is strictly procedural and consists in that the cases in question, while remaining conceptually separate, “may be treated as one.”15 In practical terms, this means the filing of single pleadings, a joint presentation at the hearings, and the delivery of a single judgment. It is suggested that joinder will be the natural way to proceed if two or more cases have essentially the same object. Among the factors that the Court should take into account in order to make a finding to that effect are that the documents instituting proceedings are drawn up in similar terms; that the same considerations of fact and law are relied upon; and that the claims are directed to an identical object.16 In the only instance so far of joinder being decided under Article 47 of the Rules, in two cases having the same parties—although playing inverse roles as litigants—the Court underlined the advantages that such an action would bring about, from the point of view of procedure: A decision to join the proceedings will allow the Court to address simultaneously the totality of the various interrelated and contested issues raised by the Parties, including any questions of fact or law that are common to the disputes presented. In the view of the Court, hearing and deciding the two cases together will have significant advantages. The Court does not expect any undue delay in rendering its Judgment in the two cases. (Construction of a Road, Joinder of proceedings, Order of 17 April 2013, para. 17; Activities in the Border Area, Joinder of proceedings, Order of 17 April 2013, para. 23)

14  Fisheries Jurisdiction (Germany v. Iceland), Merits, Judgment of 25 July 1974, ICJ Rep. 1974, p. 177, para. 8; Activities in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road (Nicaragua v. Costa Rica), Orders of 17 April 2013, para. 17 (Costa Rica v. Nicaragua) and paras. 8–9 (Nicaragua v. Costa Rica). 15  North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands), Judgment of 20 Feb. 1969, ICJ Rep. 1969, p. 19, para. 11. 16  Nuclear Tests (New Zealand v. France), Interim Protection, Dissenting Opinion of Judge Gros, ICJ Rep. 1973, p. 149.

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Interestingly, by the time it decided to join the proceedings in these two cases the Court had already made an order indicating certain provisional measures in one of them. Subsequently, it remarked that the joinder is a procedural step which did not have the effect of rendering applicable ipso facto to the facts underlying one of the two cases the provisional measures prescribed with respect to the specific and separate situation in the other case.17

Box # 18-2 Joinder distinguished from parties in the same interest In the Lockerbie (Libya v. UK) case, the Court considered and dismissed the contention that the United States and the United Kingdom, who were respondents in the two cases submitted simultaneously by Libya, were in the same interest for the purposes of Article 31, para. 5 of the Statute. The Court also allowed the UK to appoint a judge ad hoc, because its national judge on the bench had recused herself (Preliminary Objections, Judgment of 27 Feb. 1998, ICJ Reports 1998, p. 13, para. 9). Judges Bedjaoui, Guillaume and Ranjeva appended a joint declaration criticizing this latter decision. In response to an argument advanced by the UK they observed that the joinder of proceedings and the recognition that parties are in the same interest do not obey the same criteria. Their reasoning was as follows: The purpose of joining proceedings is to let the Court rule on two separate applications in a single judgment. Joinder may be decided upon in cases between the same parties and with the same subject-matter (as in the case concerning the Legal Status of the South-Eastern Territory of Green­ land). So may it in cases between the same parties but with a different subject-matter (as those concerning Certain German Interests in Polish Upper Silesia and Appeals from Certain Judgments of the Hungaro/Czechoslovak Mixed Arbitral Tribunal). Furthermore, joinder of separate proceedings instituted by different States is also possible. It may be effected where the States are parties in the same interest (as in the South West Africa cases). Yet being parties in the same interest does not necessarily imply

17  Activities in the Border Area (Costa Rica v. Nicaragua); Construction of A Road (Nicaragua v. Costa Rica), Provisional Measures, Request for Modification, Order of 16 July 2013, para. 28.

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the joinder of proceedings, particularly if the parties themselves oppose it (as proven by the Fisheries Jurisdiction cases). The point is that some States may present identical submissions to the Court while developing different lines of reasoning. In which case they are indeed parties in the same interest but it would be most inadvisable to effect a joinder leading to a single judgment that would have to rule separately on these various arguments. A joinder of proceedings was effected by the Court in the North Sea Continental Shelf case because: “the legal arguments presented on behalf of Denmark and the Netherlands have been substantially identical, apart from certain matters of detail, and have been presented either in common or in close co-operation” On the other hand, there was no joinder of issue in the merits phase of the Fisheries Jurisdiction because the Court “took into account the fact that while the basic legal issues in each case appeared to be identical, there were differences between the positions of the two Applicants, and between their respective submissions” Moreover, the views of the parties do not influence the decision of the Court in the same way when it comes to determining whether they are parties in the same interest and when the requirement is to decide whether a joinder should be effected. In the first eventuality the decision obeys purely objective criteria and it is for the Court to apply those criteria when deciding. The agreement of the parties is not enough, as shown by the North Sea Continental Shelf case, in which the Court determined for itself whether Denmark and the Netherlands were indeed in the same interest, in conformity with the Special Agreement. When it comes to joinder, on the other hand, the Court sets great store by the wishes of the parties, as shown by the cases concerning the Aerial Incident of 27 July 1955 (Israel v. Bulgaria) and Nuclear Tests (1973) and as the Court itself stated in the Fisheries Jurisdiction cases, noting in support of its decision that “joinder would be contrary” to the “wishes” of the Applicants.

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In such circumstances, the wisdom of the traditional jurisprudence of the Court becomes plainer. As scholarly opinion has already noted, a joinder of proceedings and the choice of a judge ad hoc when the parties are considered to be in the same interest are clearly two different hypotheses not necessarily coinciding. Two distinct concepts—joinder of proceedings and parties in the same interest—cannot be confused, and the latter cannot be made dependent on the former: there are circumstances in which parties are in the same interest in separate proceedings yet joinder of the proceedings is not desirable. The Court must none­ theless be able to determine that the parties are in the same interest. (Lockerbie (Libya v. UK), Preliminary Objections, Joint Declaration of Judges Bedjaoui, Guillaume and Ranjeva, ICJ Reports 1998, pp. 40–43, para. 17)18

b) Other Forms of Common Action Common Proceedings The Court may also direct that the written or oral proceedings, including the calling of witnesses, be in common, thus giving rise to what has been called “[t]he consolidation of separate proceedings from the point of view of the logical ordering of the hearings.”19 This device has not been tried before the Court thus far. In practice, this will lead to a situation in which the proceedings in the cases concerned—having, as a general rule, the same official name, but with different parties—follow parallel courses and result in the Court delivering twin judgments that are often read on the same date. Common Action in Separate Proceedings The Court may also “direct common action” with respect to either the written or the oral proceedings. It is believed that in applying this provision—of which there is no practice yet—the Court will take into account the preferences of the parties, not only the party or parties who are directed to take certain procedural action in common but also the other party or parties.

18  See also the separate opinion by judge ad hoc Kreca in the Kosovo cases (Serbia and Montenegro v. Belgium, Preliminary Objections, ICJ Rep. 2004, pp. 418–419, para. 69). 19  Rosenne’s Procedure, p. 110.

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Box # 18-3 The 1999 Resolution of the Institute of International Law At its 1999 session of Berlin, the Institut de Droit international discussed the question of “Judicial and Arbitral Settlement of International Disputes Involving More Than Two States,” on the basis of a report presented by the Rapporteur of the Eleventh Commission, Rudolph Bernhardt. The Institute adopted a resolution primarily devoted to the topic of thirdparty intervention, in which a section on common procedures and joinder was included. The text is self-explanatory. II. Disputes involving more than two States as Parties 4. Where two or more States have identical or similar interests of a legal nature in a dispute they should consider taking joint or common action before the competent international court or tribunal. 5. Unilateral application to a court or tribunal by one or more States directed against more than one State as respondents requires, in principle, parallel and separate proceedings if no previous agreement between the States involved can be reached. 6. Subject to the relevant legal instruments, the court or tribunal may join pending cases or order common proceedings taking into account all the circumstances. The procedural consequences of a joinder of cases or of common proceedings without a formal joinder should be determined by the court or tribunal with due respect for the requirements of a fair procedure.

(ii)

Lack of Appearance

Article 53 of the Statute explicitly foresees the possibility that one of the parties to the litigation either “does not appear before the Court” or “fails to defend its case,” and states that in either case the Court is not precluded from acting. By its very nature lack of appearance is not applicable in advisory proceedings, in which “[t]here are properly speaking no parties.”20 However, the question was mentioned in passim in some of the opinions appended to the Court’s 20  Western Sahara, Advisory Opinion of 16 Oct. 1975, ICJ Rep. 1975, p. 28, para. 44.

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advisory opinion in the Construction of a Wall case.21 In the Peace Treaties case, judge Winiarski had already expressed astonishment that it had been suggested that the Court could apply Article 53 by analogy in advisory proceedings.22 Ordinarily, lack of appearance occurs in contentious cases that are submitted by application in which an ante hoc title of jurisdiction is invoked and the non-appearing party has invariably been the respondent State, i.e. a State that “is made a party against its will.”23 However, Article 53 speaks of “one of the parties,” and this formula is ample enough to cover a case that is submitted by a special agreement. A situation may thus be visualized in which, in a case brought before the Court by means of a special agreement, one of the parties experiences a subsequent change of heart and decides to withdraw its consent to come before the Court and to refrain from appearing. Also, there is nothing to prevent the applicant State itself from failing to appear after proceedings have been set in motion.24 Article 53 presupposes that what the Court has called a “[p]rocedure in default of appearance”25 can present itself in two forms, namely that of a State failing to appear altogether (what would be called in French “contumace”) and that of a State failing to defend its case. The difference appears to be one of degree and not of substance: on the one hand, a State who consistently and from the very beginning of the case ignores the Court and fails to take any step whatsoever in the proceedings (such as appointing an agent, choosing a judge ad hoc, attending meetings with the President, etc.) might be considered to be a “non-appearing party.” On the other hand, a State who has taken such preliminary steps but for some reason fails to file a written pleading within the time-limit fixed for that purpose or does not take part in a hearing might be said to fall under the category of a party not participating or “failing to defend its case.” These last situations are what an author called a “[s]pecies of abandonment or non-user of the Court’s procedural facilities, rather than a denial of its jurisdiction,” which would be the sort of cases to which Article 53 was meant to apply.26 In the Corfu Channel case, the Court stated expressly that Albania had 21  Construction of a Wall, Declaration of Judge Buergenthal, ICJ Rep. 2004, p. 245, para. 10; Separate Opinion of Judge Owada, ibid., pp. 267–268, paras. 20–21. 22  Peace Treaties, Dissenting Opinion of Judge Winiarski, ICJ Rep. 1950, pp. 95–96. On this see H. Thirlway, Non-Appearance before the International Court of Justice (1985), p. 3. 23  Hudson’s PCIJ, p. 527. 24  H. von Mangoldt & A. Zimmermann, “Article 53”, Oxford Commentary, MN 5, p. 1327. 25  Corfu Channel, Compensation, Judgment of 15 Dec. 1949, ICJ Rep. 1949, p. 248. 26  Sir G. Fitzmaurice, “The Problem of the ‘Non-Appearing’ Defendant Government”, BYIL, vol. 51 (1980), p. 97). On this fine distinction see also Scerni’s La Procédure, pp. 656–657; Thirlway, “Non-Appearance . . .”, p. 32.

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“failed to defend its case,” but it is believed to be the only occasion in which the Court has used these terms.27 In either case, the Statute recognizes that the appearing party possesses the right to “call upon the Court to decide in favor of its claim.” To the Court, conversely, the same provision imposes a double obligation, since before doing so, it must, not only satisfy itself “that it has jurisdiction in accordance with Articles 36 and 37,” but also satisfy itself “that the claim is well founded in fact and law.” The first of these conditions represents the only instance in which the Statute empowers the Court in an explicit manner to consider proprio motu whether or not it has jurisdiction in a case that has been brought before it, and thus it may be said to constitute a special modality of the so-called compétence de la compétence.28 The second, for its part, is primarily concerned with the handling of evidence by the Court when only one of the parties is appearing, a question that will be addressed below.

Box # 18-4 Object and purpose of Article 53 of the Statute At different occasions, several judges have reflected on the import and scope of Article 53 of the Statute. In the Nuclear Tests (Australia v. France) case the judge ad hoc appointed by Australia had the following to say in this regard: Action pursuant to the Article may be called for by a party when the other is in default either of appearance or of defence. When the Court is required by a party to decide its claim notwithstanding such default of the other, the Court, before deciding the claim, must satisfy itself both of its own jurisdiction and of the validity of the claim both in fact and in law. Without the inclusion of this Article in the Statute of the Court, there would surely have been power in the Court, satisfied of its own jurisdiction and of the validity of the applicant State’s claim, to give judgment for the applicant, notwithstanding the default of appearance or of defence by the respondent party. The Article is confirmatory of such a power and its inclusion in the Statute was doubtless prompted by the circumstance

27  Corfu Channel, Compensation, Order of 19 Nov. 1949, ICJ Rep. 1949, p. 238. 28  See Chapter 12, b). In this context, it has been rightly pointed out that while Article 53 only refers to jurisdiction stricto sensu, when a party is not appearing the Court is also obliged to satisfy itself that the case is admissible (Von Mangoldt & Zimmermann, “Article 53”, MN 52, p. 1344).

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that the litigants before the Court are sovereign States, and that the presence of the Article would indicate consent to proceedings in default. (Nuclear Tests (Australia v. France), Dissenting Opinion of Judge Barwick, ICJ Rep. 1974, p. 398)

Several years later, judge Schwebel remarked the following in the context of the Nicaragua case: What is the proper meaning and interpretation of Article 53? It is clear that the Court can render a judgment in the absence of a party. Before doing so, it must “satisfy itself”—indeed, it “doit s’assurer”—not only that it has jurisdiction “but also that the claim is well founded in fact and law”. As the Court held in the Corfu Channel case, it must “convince itself” that the appearing party’s submissions are well founded (. . .). To say (as did Nicaragua’s counsel) that an objection to those submissions must be proved by the party that raises it is beside the point; the real point is that the Court must be convinced. If, as in the current case, the Defendant has raised objections, the Applicant, if it is to succeed, must convince the Court of the inadequacy of those objections. It is equally true that, if a claim is to be held to be well founded in fact and law, it can be so only if a sufficient affirmative defence to the claim is not well founded in fact and law. If such an affirmative defence is well founded in fact and law, then the claim must fail, however compelling it may be in the absence of that affirmative defence. That is elementary. If a claim by A is that B assaulted him, but B pleads by way of affirmative defence that he caught A in the act of assaulting their neighbour, C, and came to C’s defence in the course of which he struck A no harder than necessary to stop A from assaulting C, it cannot be held that A’s claim is well founded in fact and law unless B’s affirmative defence is shown not to be well founded. That, in my view, is an ineluctable interpretation of Article 53. (. . .) The fact that the United States has chosen (to my particular regret) not to take part in the proceedings on the merits does not alter the foregoing conclusions. However regrettable its absence may be, a party does not transgress the Statute by absenting itself from the Court’s proceedings (. . .). In abstaining from taking part in these proceedings on the merits, the United States is doing what Article 53 contemplates that a party might: it has not appeared before the Court, and has failed to defend its

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case—not the whole of its case, but part of its case, in that, while in previous phases of the case it has advanced an affirmative defence on the merits, it has not submitted written or oral pleadings to the Court in this phase which fully support that defence. These are the very circumstances in which the Court must discharge its burden of satisfying itself that the claim is well founded in fact and law. (Nicaragua, Merits, Dissenting Opinion of Judge Schwebel, ICJ Rep. 1986, pp. 316–320, paras. 117–119)

The purpose of Article 53 is clearly to protect the rights of both parties to the litigation. It protects the right of the appearing party to have its claim heard and settled by the Court even if the other party decides not to take part in the case, thus preventing the latter from blocking the proceedings. It also protects the rights of the non-appearing party, however, by prohibiting an automatic finding in favor of the appearing party and by ensuring that the Court is forced to satisfy itself that the latter’s case is sound, both on jurisdiction and on the merits.29

Box # 18-5

Lack of appearance: A review of the practice30

Although there were a number of cases of lack of appearance before the PCIJ, that tribunal never really had the opportunity to invoke or apply Article 53 of the Statute. The pertinent cases are Sino-Belgian Treaty (Orders of 25 May 1929, PCIJ A 18/19) and Electricity Company (Orders of 5 Dec. 1938, PCIJ A/B 79 and 26 Feb. 1940, PCIJ A/B 80). The Polish Agrarian Reform case is sometimes included in this group but this is questionable because the respondent State duly participated in the incidental proceedings on provisional measures (Order of 29 July 1933, PCIJ A/B No. 58).31 Lack of appearance occurred several times in the present Court during its first four decades of existence. Initially, respondents resorted to lack of appearance only in certain phases of a case, but starting in the mid-1970s there

29  A. Riddell & B. Plant, Evidence before the International Court of Justice (2009), p. 219. 30  For a thorough survey of the practice up to 1980 see Thirlway, “Non-Appearance . . .”, pp. 6–20. 31  For details see Thirlway, “Non-Appearance . . .”, pp. 4–5.

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were several cases in which the respondent did not appear at all throughout the entire lifespan of a case (what a commentator has called instances of “true default”).32 No case of lack of appearance has registered since the mid-eighties, coinciding with a notorious increase in the number of cases brought before the Court. Interestingly, during the last two decades several States that resorted in the past to lack of appearance have come to the Court and taken part in proceedings, either as respondents or as applicants. This is the case with countries as diverse as Iran, the United States, France and India. Thirlway has voiced the opinion that this might have been influenced by the treatment of the question by the Court, which has shown that “[a] State has nothing to gain and much to lose by declining to participate in proceedings brought against it.”33 The cases of partial or interlocutory lack of appearance,34 i.e. cases in which a State party chose not to participate in certain phase or phases of a case, include the following: – Corfu Channel (United Kingdom v. Albania). Albania participated in the jurisdiction and merits phases but failed to appear at the last phase, which concerned the amount of reparation owed to the UK. The Court applied Article 53 of the Statute for the first time (Judgment of 15 Dec. 1949, ICJ Rep. 1949, p. 248). – Anglo-Iranian Oil Co. (United Kingdom v. Iran). Iran was not represented at the proceedings on provisional measures of protection, but after the Court’s decision on the matter it participated fully in the case. At the provisional measures phase the Court felt no need to quote or apply Article 53 (Order of 5 July 1951, ICJ Rep. 1951, p. 89). – Nottebohm (Liechtenstein v. Guatemala). Guatemala did not participate in the oral proceedings at the preliminary objections phase, but after the Court affirmed its jurisdiction it took part in the merits phase. At the jurisdiction phase the Court refrained from applying Article 53 (Preliminary Objection, Judgment of 18 Nov. 1953, ICJ Rep. 1953, p. 111). – Nicaragua (Nicaragua v. United States). The United States participated fully in the provisional measures and jurisdiction and admissibility phases of the litigation, but withdrew from the case after the Court’s decision affirming

32  Sir I. Sinclair, “Some Procedural Aspects of Recent International Litigation”, ICLQ, vol. 30 (1981), p. 338. 33  Thirlway’s Law and Procedure, Part. 12, BYIL, vol. 72 (2001), p. 158. 34  The expression is by Fitzmaurice, “The Problem . . .”, p. 90, note 2.

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its jurisdiction and declaring the application admissible. The United States failed to appear in the merits and reparations phases. The Court duly applied Article 53 during the merits phase (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, pp. 23–26, paras. 26–31).35 The Qatar v. Bahrain case is sometimes listed as an instance of partial lack of appearance, due to certain indications that the Government of Bahrain gave to the Court when it was considering its second decision on jurisdiction and admissibility (Jurisdiction and Admissibility, Judgment of 15 Feb. 1995, ICJ Rep. 1995, p. 11, para. 14). Bahrain was absent from the sitting at which that decision was read and was also absent from the initial meeting with the President concerning the procedure to be followed at the merits stage (Merits, Judgment of 16 March 2001, ICJ Rep. 2001, p. 45, para. 13). However, that State had presented written and oral arguments and had participated fully in the proceedings leading to the first decision on jurisdiction and admissibility, and both decisions were made with the judge ad hoc appointed by Bahrain sitting. Subsequently, Bahrain duly participated in the merits phase. The cases of complete lack of appearance include the following: – Fisheries Jurisdiction (United Kingdom v. Iceland) and (Germany v. Iceland). Iceland failed to appear at the provisional measures, jurisdiction and merits phases (Interim Protection, Orders of 17 Aug. 1972, ICJ Rep. 1972, pp. 12 and 30; Jurisdiction, Judgments of 2 Feb. 1973, ICJ Rep. 1973, pp. 3 and 49; Merits, Judgments of 25 July 1974, ICJ Rep. 1974, pp. 3 and 175). – Nuclear Tests (Australia v. France) and (New Zealand v. France). France failed to appear at the provisional measures phase, as well as the subsequent phase (Interim Protection, Orders of 22 June 1973, ICJ Rep. 1973, pp. 99 and 135; Judgment of 20 Dec. 1974, ICJ Rep. 1974, pp. 253 and 457). – Pakistani POW (Pakistan v. India). India did not appear at the provisional measures phase. The case was discontinued before the Court made any

35  The United States withdrew from this case after the Court’s adverse decision on matters of jurisdiction and admissibility. In its judgment on the merits, the Court dryly remarked that it is not possible to argue that the Court has jurisdiction only to declare that it lacks jurisdiction ( Judgment of 27 June 1986, ICJ Rep. 1986, p. 23, para. 27). In the same decision, the Court anticipated that the respondent State could still reverse course and take part in an eventual phase concerning reparations (ibid., p.143, para. 284). See K. Highet, “Litigation Implications of the U.S. Withdrawal from the Nicaragua Case”, AJIL, vol. 79 (1985), pp. 992–1005.

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decision (Interim Protection, Order of 13 July 1973, ICJ Rep. 1973, p. 328; Order of 15 Dec. 1973, ICJ Rep. 1973, p. 347). – Aegean Sea Continental Shelf (Greece v. Turkey). Turkey failed to appear at the provisional measures and jurisdiction phases (Interim Protection, Order of 11 Sep. 1976, ICJ Rep. 1976, p. 3; Jurisdiction, Judgment of 19 Dec. 1978, ICJ Rep. 1978, p. 3). – US Hostages (United States v. Iran). Iran failed to appear at the provisional measures, merits and reparations phases (Interim Protection, Order of 15 Dec. 1979, ICJ Rep. 1979, p. 7; Merits, Judgment of 24 May 1980, ICJ Rep. 1980, p. 3).

It is important to stress that the institution of lack of appearance has little, if anything, to do with the phenomenon of default as known in certain municipal legal systems, according to which the fact that a party fails to appear before a court entails the possibility of an automatic finding in favor of the appearing party, provided that the proceedings have been regularly instituted and that the applicant has disclosed a prima facie cause of action.36 In the Nicaragua case, in which the respondent participated fully in the initial phases of proceedings—dealing with provisional measures and with questions of jurisdiction and admissibility—but defaulted at the merits phase, the Court stated the following when laying down certain “points of principle” with regard to the phenomenon of lack of appearance: The Court is bound to emphasize that the non-participation of a party in the proceedings at any stage of the case cannot, in any circumstances, affect the validity of its judgment. (. . .) A State which decides not to appear must accept the consequences of its decision, the first of which is that the case will continue without its participation; the State which has chosen not to appear remains a party to the case, and is bound by the eventual judgment in accordance with Article 59 of the Statute. There is however no question of a judgment automatically in favour of the party appearing, since the Court is required . . . to “satisfy itself” that that party’s claim is well founded in fact and law. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 24, para. 28)37

36  Fitzmaurice, “The Problem . . .”, pp. 91–92. See also the dissenting opinion of judge Oda at the merits phase of the Nicaragua case (ICJ Rep. 1986, p. 245, para. 68). 37  Prior to this judgment it had been discussed in academic circles whether the nonappearing State had the legal status of a party to the case (for an exhaustive treatment see

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Box # 18-6 The 1991 Resolution of the International Law Institute Given that lack of appearance represents a direct challenge to the authority and prestige of the Court and “[o]ne of the most disturbing developments in the history of the Court,” it is a phenomenon that has been scrutinized in depth by scholars and commentators.38 As a reflection of this, at its 1991 session of Basel, the Institut de Droit International discussed the question, on the basis of a report presented by the Rapporteur of the Fourth Commission, Gaetano Arangio-Ruiz. The Institute adopted a resolution entitled “Non-Appearance Before the International Court of Justice.” The operative part reads as follows: Article 1 Each State entitled under the Statute to appear before the Court and with respect to which the Court is seized of a case is ipso facto, by virtue of the Statute, a party to the proceedings, regardless of whether it appears or not. Article 2 In considering whether to appear or to continue to appear in any phase of proceedings before the Court, a State should have regard to its duty to co-operate in the fulfilment of the Court’s judicial functions. Article 3 In the event that a State fails to appear in a case instituted against it, the Court should, if the circumstances so warrant: a) invite argument from the appearing party on specific issues which the Court considers have not been canvassed or have been inadequately canvassed in the written or oral pleadings; b) take whatever other steps it may consider necessary, within the scope of its powers under the Statute and the Rule of Court, to maintain equality between the parties.

Thirlway, “Non-Appearance . . .”, pp. 46–63). The point was also stressed in Article 1 of the 1991 Resolution by the International Law Institute that is described in Box # 18-6. 38  Nicaragua, Merits, Dissenting Opinion of Judge Schwebel, ICJ Rep. 1986, p. 320, para. 126.

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Article 4 Notwithstanding the non-appearance of a State before the Court in proceedings to which it is a party, that State is, by virtue of the Statute, bound by any decision of the Court in that case, whether on jurisdiction, admissibility, or the merits. Article 5 A State’s non-appearance before the Court is in itself no obstacle to the exercise by the Court of its functions under Article 41 of the Statute.39 This resolution accurately stresses that under the Statute, a non-appearing State remains a party to the case (Article 1), and as such is bound by any decision the Court may issue in the case (Article 4). The resolution also reiterates the Court’s finding that lack of appearance cannot be an obstacle for the indication of provisional measures of protection under Article 41 of the Statute (Article 5). In addition, the preamble of the resolution contains two important provisions. The first concerns the debated question of whether or not the States parties to the Statute have a legal duty to appear before the Court after having been summoned. The Institute takes the position that they have no such duty, for, after quoting in full the text of Article 53 of the Statute, it affirms that “[t]he said Article implies that a State may not appear before the Court” (Preambular clauses 3 and 4, emphasis added).40 The second concerns the negative consequences that the phenomenon of lack of appearance may have with regard to “the regular conduct of the proceedings” and “the good administration of justice” (fifth preambular

39  Text in IDI Annuaire, vol. 64-II (1991), pp. 276 ff. See also G. Arangio-Ruiz, “Non-Appearance before the International Court of Justice, Final Report”, ibid., pp. 280 ff. 40  This appears to be the most authorized view on this matter. See the dissenting opinion of judge Schwebel in the Nicaragua case (Merits, ICJ Rep. 1986, p. 316, para. 119) and see also D. Bowett, “Contemporary Developments in Legal Techniques in the Settlement of Disputes”, RC, vol. 180 (1983-II), pp. 204–206; S. Alexandrov, “Non-Appearance before the International Court of Justice”, Columbia Journal of Transnational Law, vol. 33 (1995), pp. 43–47; Thirlway’s Law and Procedure, Part 12, BYIL, vol. 72 (2001), pp. 161–165. For the contrary view see J. Elkind, “The Duty to Appear before the International Court of Justice”, ICLQ, vol. 37 (1988), pp. 674–681 and a riposte in H. Thirlway, “ ‘Normative Surrender’ and the ‘Duty’ to Appear before the International Court of Justice: A Reply”, Michigan JIL, vol. 11 (1989–1990), pp. 912–925.

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clause).41 The Institute states (in the sixth preambular clause) that “in particular” a situation of lack of appearance might bring about for the other party and for the Court difficulties with regard to a) the full implementation of the principle of the equality of the parties; and b) the acquisition by the Court of knowledge of facts which may be relevant for the Court’s pronouncements on interim measures, preliminary objections or the merits.

Also of interest is the question whether the phenomenon of lack of appearance can take place at all in incidental proceedings. According to Article 53 of the Statute, in cases of lack of appearance “[t]he Court must . . . satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law.” The wording of this provision, and particularly the use of the verb “must”—which is used very sparsely in the Statute—suggests that the Court is under a strict duty to apply that provision on every occasion (“whenever”) on which the conditions set forth in paragraph 1 are present and regardless of the phase in which the case may be. According to this view—which accords to the object and purpose of Article 53—each and every time a State party does not enter an appearance before the Court or fails to defend its case and the other party calls upon the Court to decide in its favor, the Court must do what is stated there; it has no other option. However, the opinion has also been voiced that Article 53 deals exclusively with the stage of the proceedings at which the merits of the claim are considered and decided and therefore has no applicability with regard to incidental questions.42 Under this view, when that provision refers to the jurisdiction of the Court “[i]n accordance with Articles 36 and 37 of the Statute,” it is clearly speaking about the jurisdiction that the Court may possess with regard to the merits of the case and when it talks about “the claim” it is referring to the substantive claims put forward by the applicant. The Court’s practice in this regard is illustrative because in several cases in which one of the parties failed to enter an appearance when the Court was dealing with incidental questions, it refrained from expressly invoking Article 53 as a basis of its decision. As stated above, this covers cases in which the respondent failed to appear at the provisional measures phase but did appear at the subsequent preliminary objections phase (Iran in the Anglo-Iranian Oil. case); 41  This point was made by the Court in the Nicaragua case (Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 23, para. 27). 42  Nuclear Tests (Australia v. France), Dissenting Opinion of Judge Barwick, ICJ Rep. 1974, p. 398.

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cases in which the respondent failed to appear at the preliminary objections phase but did take part in the merits phase (Guatemala in the Nottebohm case); and cases in which the respondent did not take part in any phases of the proceedings at all (Iceland in Fisheries Jurisdiction, France in Nuclear Tests and Iran in US Hostages). With regard to provisional measures, when the applicant is invoking Article 41 of the Statute and the respondent is not appearing, the consistent attitude of the Court has been to hold that “[t]he non-appearance of one of the parties cannot by itself constitute an obstacle to the indication of provisional measures, provided the parties have been given an opportunity of presenting their observations on the subject.”43 The key issue appears to be that at the provisional measures phase the Court has no real need to resort to Article 53 in order to be able to deal with the request, as it has imposed on itself certain duties that are essentially equivalent to those laid down in that provision, namely, the obligation to ensure that it possesses prima facie jurisdiction and the obligation to satisfy itself that the conditions for the indication of provisional measures are fulfilled.44 Therefore, whether this provision is applicable or not to proceedings on provisional measures is essentially immaterial and one can concur with the view of those who think that Article 53 “[h]as nothing whatever to do with the power to indicate interim measures of protection” and therefore it is not applicable at the interim measures stage of proceedings.45 Essentially the same thing occurs in the case of preliminary objections, as the experience of the Nottebohm case shows. In this case the Court refrained altogether from applying Article 53 of the Statute, in circumstances under which, arguably, both of the conditions provided for in that provision were present. Indeed, the respondent party did not appoint an agent nor did it file a Counter-Memorial within the time-limit fixed by the Court, and the applicant 43  Fisheries Jurisdiction, Interim Protection, Orders of 17 Aug. 1972, ICJ Rep. 1972, p. 15, para. 11 and pp. 32–33, para. 11. Reaffirmed in Nuclear Tests (Interim Protection, Orders of 22 June 1973, ICJ Rep. 1973, p. 101, para. 11; p. 137, para. 12); Aegean Sea Continental Shelf (Interim Protection, Order of 11 Sep. 1976, ICJ Rep. 1976, p. 6, para. 13) and US Hostages (Provisional Measures, Order of 15 Dec. 1979, ICJ Rep. 1979, p. 13, para. 13). Interestingly, in all of these instances the relevant passage speaks of the lack of appearance of “[o]ne of the States concerned,” rather than that of “one of the parties,” as in the original Fisheries Jurisdiction case. It is submitted that the latter formula was better, as it leaves no doubt as to the fact that a non-appearing State remains a party to the case. 44  Besides, there may very well be cases in which a request for the indication of provisional measures is made after the Court has definitively settled any questions of jurisdiction (Rosenne’s Law and Practice, vol. 3, p. 1415). In a case such as this there would be even less of a need to resort to Article 53. 45  Sinclair, “Some Procedural Aspects . . .”, p. 344.

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did call upon the Court to decide in its favor. After the proceedings had been instituted Guatemala sent a letter to the Court containing both a firm challenge to the Court’s jurisdiction and clear indications of its decision not to appear before it and the Court chose to treat this communication as a preliminary objection proper and organized incidental proceedings under then Article 62 of the Rules.46 Guatemala was not represented at the hearing, contending— quite implausibly—that its domestic law did not authorize the government to be represented before a court that lacked jurisdiction. Liechtenstein’s initial reaction was to leave to the Court the decision to treat Guatemala’s communication either as a preliminary objection or as a notice of default. The Court chose the first option, and when Liechtenstein was pleading its case on jurisdiction it added as a new formal submission a caveat referring to an eventual application of Article 53 at the merits phase: (G) The Government of Liechtenstein reserve their right to invoke, should the necessity arise, the provisions of Article 53 of the Statute of the Court in relation to the merits of the present dispute.47 As it happened, after the Court unanimously rejected Guatemala’s objection, that State decided to take part in the proceedings on the merits and, having raised anew another objection, this time of admissibility, it carried the day and obtained a decision by the Court declining to deal with the merits of the case.48 Did the Court err in failing to apply Article 53 of the Statute in these circumstances? A strong case can be made that, given the respondent’s attitude from the outset and, in particular, its refusal to appoint an agent, the applicable rule was Article 53 and the Court should have resorted to it and quoted it as authority when giving a decision concerning the jurisdiction of the Court—a decision which, incidentally, would have been made taking into account the arguments put forward by Guatemala in the informal communication that the Court decided to treat as a preliminary objection. However, it would appear that what is paramount here, as in the case of provisional measures of pro­tection, is whether at the jurisdiction stage the Court has a real need to resort to Article 53 in order to protect the interests of the applicant State, who is entitled to have its claims heard and considered by the Court. The fact that the Guatemalan government’s letter was particularly explicit as to that in its opinion the Court lacked jurisdiction to deal with the appli46  Nottebohm, Preliminary Objection, Judgment of 18 Nov. 1953, ICJ Rep. 1953, pp. 115–116. 47  Ibid., p. 118. 48  Nottebohm, Second Phase, Judgment of 6 April 1955, ICJ Rep. 1955, p. 4.

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cation submitted by Liechtenstein no doubt made it easier for the Court to treat is as a true preliminary objection and to make use of the procedure of Article 62 as a means to “[s]atisfy itself (. . .) that it ha[d] jurisdiction in accordance with Articles 36 and 37.” Had that letter been less detailed perhaps the Court would have felt forced to invoke Article 53, thus putting the applicant in a position to anticipate the possible arguments that could be made against the existence of jurisdiction and/or the admissibility of the application. In any case, it is highly unlikely that a situation like this will arise again, because, as explained above (and notwithstanding possible further developments in the practice, as suggested by the US Hostages case),49 the Court has adopted on its own a special procedure to deal with questions of jurisdiction and/or admissibility in cases of lack of appearance (later codified in paragraphs 2 and 3 of Article 79 of the Rules), and this works in such a way as to make it entirely unnecessary to resort to the classic procedure of preliminary objections. Had the Nottebohm case arisen after this procedure was introduced in the Court’s practice, in the early seventies, it is foreseeable that the handling of the case would have been more akin to that used in the cases of lack of appearance occurring during the Court’s third and fourth decades. Further, it is submitted that by the very nature of things lack of appearance as such can hardly take place with regard to other incidental proceedings. In the case of counter-claims, for instance, a non-appearing party simply forfeits its right to enter a counter-claim. In the case of third-party intervention, either under Article 62 or under Article 63 of the Statute, Article 53 is hardly applicable, not only because it would not make much sense for a third State seeking to intervene in a case to enter a lack of appearance, but also because according to the Court’s case law the intervener does not become a party to the proceedings.50 Were the Court in the future to admit a third State to intervene under Article 62 “as a party,” it is conceivable that such a State, then a full party to proceedings which will have become trilateral, would be entitled to enter a lack of appearance under the same conditions as the original parties. It can also happen, theoretically, that a request for permission to intervene is made in a case in which one of the main parties is failing to appear, but the situation has not occurred yet in the Court’s practice. The same can be said of the question of joinder of cases. On the other hand, lack of appearance may very well take place during derivative proceedings on interpretation or revision of judgments or on reparations, under the same conditions as those applicable to proceedings on the merits. 49  See Box # 18-7. 50  See chapter 14, d).

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On the basis of the above considerations, it may be suggested that lack of appearance would occur, as a matter of fact, whenever a State party to a case fails to take the procedural actions that it is supposed to take “[u]nder the Statute and Rules of Court, or the general principles of procedural Law.”51 While, theoretically, this would apply irrespective of the phase of the proceedings with regard to which that situation occurs, the application of Article 53 remains at the discretion of the Court and everything suggests that the Court will make use of that provision only in cases in which it feels a real necessity to do it. In the words of an authorized commentary: “The crucial test as to the application of Art. 53 is . . . whether it is indeed necessary. If the Court can proceed along its normal course without relying on Art. 53, Art. 53 does not apply.”52 Therefore, there may be cases in which a State party fails to enter an appearance or fails to defend its case and Article 53 is never invoked or applied. a) Jurisdiction In the matter of jurisdiction, Article 53 of the Statute imposes a heavy duty on the Court in the event that a State party to a case does not appear before it or simply fails to defend its case: before deciding, the Court must “satisfy itself (. . .) that it has jurisdiction in accordance with Articles 36 and 37.” The manner in which the Court has approached the discharging of this duty is very interesting from the point of view of procedure, because it gave rise to a novel method for considering questions of jurisdiction and admissibility that is remarkably different from the traditional method of submitting preliminary objections. This procedure was applied in all but one of the cases of lack of appearance that have come before the present Court, the only exception being the US Hostages case. Incidentally, in all of these cases the applicant requested the indication of provisional measures and, as a consequence, the Court needed to make a provisional appraisal on the existence of jurisdiction on the merits.53 The first time that this happened was in the Fisheries Jurisdiction cases, in which Iceland, the non-appearing respondent party, sent documentation to the Court that supported its position that the Court lacked jurisdiction to

51  El Salvador/Honduras, Application to Intervene, Judgment of 13 Sept. 1990, ICJ Rep. 1990, p. 136, para. 2. 52  Von Mangoldt & Zimmermann, “Article 53”, MN 64, p. 1349. 53  S. Rosenne, “The ICJ: Revision of Articles 79 and 80 of the Rules of Court”, LJIL, vol. 14 (2001), p. 80. For the prima facie test of jurisdiction in proceedings on provisional measures see Chapter 11, a).

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entertain the applications submitted by the United Kingdom and Germany.54 After the Court issued an order indicating some provisional measures—in which it also laid the conceptual foundations for the so-called “test of prima facie jurisdiction”—it issued a procedural order concluding that, because in the circumstances of the case it was necessary to resolve “first of all” the question of the Court’s jurisdiction to entertain the dispute, the first pleadings should be addressed to those matters.55 Thus, the notion that questions of jurisdiction and admissibility could be treated separately before the proceedings on the merits made its appearance in the Court’s practice concerning cases of lack of appearance.56 As it is explained in detail in the chapter concerning challenges to the Court’s jurisdiction, starting in the mid-1980s States began using this alternative procedure in ordinary cases in which both parties were duly taking part in the proceedings, and in 2000 the Court found it expedient to codify this practice and incorporated it in the Rules.57 Essentially the same procedure was used in the lack of appearance instances of Nuclear Tests (also involving questions of admissibility),58 Pakistani POW 59 and Aegean Sea Continental Shelf.60 The only difference is that in these cases no separate orders on the number and order of written pleadings were issued, the time-limits for them having been fixed in the same order adjudicating on the request for provisional measures. The US Hostages case was different in this regard, because in it the Court proprio motu considered the questions of jurisdiction and admissibility along with the merits, after it had issued an

54  As seen above, in the earlier Nottebohm case, Guatemala failed to appear at the initial stages of the proceedings but the Court chose to construe this communication as a preliminary objection and declined to apply article 53. 55  Fisheries Jurisdiction (United Kingdom v. Iceland) (Federal Republic of Germany v. Iceland), Orders of 18 Aug. 1972, ICJ Rep. 1972, pp. 182 and 189. The decision was made by 9 votes against 6. Two members of the Court opposed the use of this procedure and appended a joint dissenting opinion outlining their reasons (Dissenting Opinion of Judges Bengzon and Jiménez de Aréchaga, ibid., pp. 184–186 and 191–193). 56  For a comment, not devoid of criticism, see H. Thirlway, “Preliminary Objections”, in Max Planck EPIL, MN 27–28. 57  See Chapter 12, c). 58  Nuclear Tests, Interim Protection, Order of 22 June 1973, ICJ Rep. 1973, pp. 105–106 and 142. 59  Pakistani POW, Interim Protection, Order of 13 July 1973, ICJ Rep. 1973, p. 330. 60  Aegean Sea Continental Shelf, Interim Protection, Order of 11 Sept. 1976, ICJ Rep. 1976, pp. 13–14.

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order indicating some provisional measures, based on its conclusion that it possessed prima facie jurisdiction to deal with the case.61

Box # 18-7 The US Hostages case: A new model for handling questions of jurisdiction in cases of lack of appearance? The procedure outlined above was used by the Court in cases of complete lack of appearance, in which the respondent failed to appear from the outset, namely, Fisheries Jurisdiction (UK v. Iceland) and (Germany v. Iceland); Nuclear Tests (Australia v. France) and (New Zealand v. France); Pakistani POW and Aegean Sea Continental Shelf. By contrast, in the US Hostages case—which happens to be the most recent case thus far in which a State failed to appear throughout the entire case— the Court did not direct separate pleadings on jurisdiction and admissibility to be filed but simply fixed time-limits for the deposit of a Memorial and a Counter-Memorial.62 The Court did not comment on what the contents of those pleadings should be, but in its order on provisional measures, after ascertaining that it possessed prima facie jurisdiction, included the usual safeguard according to which “[t]he decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the merits themselves, and leaves unaffected the right of the Government of Iran to submit arguments against such jurisdiction or in respect of such merits” (Provisional Measures, Order of 15 Dec. 1979, ICJ Rep. 1979, p. 20, para. 45). Likewise, in its subsequent order fixing time-limits for the written pleadings it reiterated that the indication of provisional measures “[i]n no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any question relating to the merits themselves” (Order of 24 Dec. 1979, ICJ Rep. 1979, p. 24). As it had done at the proceedings on provisional measures, the Court paid attention to informal communications by the non-appearing government

61  US Hostages, Merits, Judgment of 24 May 1980, ICJ Rep. 1980, pp. 18–28, paras. 33–55; Provisional Measures, Order of 15 Dec. 1979, ICJ Rep. 1979, p. 7. 62  See a comment on procedure in S. Torres Bernárdez, “La modification des articles du règlement de la Cour internationale de Justice relatives aux exceptions préliminaries et aux demandes reconventionnelles”, AFDI, vol. 49 (2003), pp. 220–221.

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concerning questions of jurisdiction. However, it did this when considering the merits of the case, in a single phase that significantly shortened the length of the entire proceedings. The Court thus automatically joined all preliminary issues to the merits, without allowing any preliminary phase devoted to jurisdictional questions to take place.63 In its judgment the Court stressed that under Article 53 its duty was to first consider proprio motu the questions of jurisdiction or admissibility that might have arisen: It is to be regretted that the Iranian Government has not appeared before the Court in order to put forward its arguments on the questions of law and of fact which arise in the present case; and that, in consequence, the Court has not had the assistance it might have derived from such arguments or from any evidence adduced in support of them. Nevertheless, in accordance with its settled jurisprudence, the Court, in applying Article 53 of its Statute, must first take up, proprio motu, any preliminary question, whether of admissibility or of jurisdiction, that appears from the information before it to arise in the case and the decision of which might constitute a bar to any further examination of the merits of the Applicant’s case. The Court will, therefore, first address itself to the considerations put forward by the Iranian Government in its letters of 9 December 1979 and 16 March 1980, on the basis of which it maintains that the Court ought not to take cognizance of the present case. (US Hostages, Judgment of 24 May 1980, ICJ Rep. 1980, p. 18, para. 33)

Taking into account the fact that the Court’s handling of previous cases of lack of appearance has been heavily criticized because it appears to have inclined the balance toward the non-appearing party in detriment to the rights of the appearing one, it cannot be ruled out that in future cases of lack of appearance in which questions of jurisdiction or admissibility arise, the Court could feel inclined to proceed as it did in US Hostages. The applicant State would then be directed to plead both the questions of jurisdiction and the questions of the merits in one single phase, and the Court would be able to settle both questions expeditiously, i.e. in one and the same decision.

63  This was one of the measures proposed by Fitzmaurice in order to deter potential nonappearing States (Fitzmaurice, “The Problem . . .”, p. 121).

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On the other hand, the wording of paragraphs 2 and 3 of Article 79 of the Rules is general enough to allow for the procedure set forth in them to be applied in cases of lack of appearance. Given that there have been no instances of non-appearance since the Nicaragua case, it is not easy to predict what the attitude of the Court would be with regard to this procedural problem.64

b) Procedure Given that the Rules of Court are entirely silent on the question of lack of appearance, the only guidance as to the procedure to be followed in cases in which Article 53 of the Statute is applicable is to be found in the practice of the Court. As stated, since the Fisheries Jurisdiction cases in the beginning of the 1970s, and with the sole exception of the US Hostages case, this practice has been remarkably uniform. Once the Court has ascertained that the State named as respondent is refusing to appear, it makes an order directing that the first round of written pleadings be addressed to the questions of jurisdiction and/or admissibility and fixing time-limits for the filing of those pleadings by both parties—even if by then it is very unlikely that the respondent will take part in the proceedings.65 This has clearly been considered by the Court to be the method best suited for discharging its burden to “satisfy itself . . . that it has jurisdiction in accordance with Articles 36 and 37.” As a side effect, as remarked above, it has also given origin to a novel method for challenging the Court’s jurisdiction in regular cases in which both parties appear and there is no room whatsoever for applying Article 53. An interesting point is that although Article 53 makes reference only to Articles 36 and 37 of the Statute, a determination by the Court on questions of jurisdiction may also involve the application of Articles 34 and 35, which govern the question of access. In the Kosovo cases the Court made a general finding in this regard that may be applicable to cases of lack of appearance. The Court found that it was incumbent upon it to examine first of all whether the applicant met the conditions laid down in Articles 34 and 35 of the Statute and 64  The Nicaragua case is of course not relevant here because the respondent appeared at the jurisdiction and admissibility phase and defaulted only when the case reached the merits stage. 65  It must be noted that in all cases in which this procedure has been used there has been a phase on provisional measures of protection at which, unavoidably, questions of jurisdiction and/or admissibility have been mentioned, at least in a cursory manner. For the implications of lack of appearance in these cases see section c) below.

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whether the Court was thus open to it and that “[o]nly if the answer to that question is in the affirmative will the Court have to deal with the issues relating to the conditions laid down in Articles 36 and 37 of the Statute of the Court.”66 After the filing of the applicant’s pleading on questions of jurisdiction and/ or admissibility—generally a Memorial—and the expiry of the time-limit fixed for the pleading of the notional respondent, the Court fixes the dates for oral hearings that must concentrate exclusively on those questions. This puts a heavy burden on the appearing State, who must make an extra effort to anticipate the nature of the arguments that the opposite party would have been entitled to advance had it taken part in the proceedings, and then move on to counter those hypothetical allegations with its own arguments.67 To a certain extent, this may be attenuated by the information contained in the informal documentation that the non-appearing party supplies to the Court—which, as a matter of course, is transmitted to the appearing party—but in many cases this will occur at an advanced stage in the litigation, in all likelihood after the appearing party has already filed its written pleadings or is midway through the presentation of its oral case. Once the separate proceedings on jurisdiction and/or admissibility are completed, the Court makes a decision concerning these preliminary questions. If it affirms its jurisdiction and declares the application admissible, ordinary proceedings would follow their course and the absence of one of the parties from them would manifest itself mainly in the fact that the Court will have to pay extra attention to the means of proof employed by the appearing State, with a view to discharge the burden of satisfying itself “that the claim is well founded in fact and law.” Apart from that, from the standpoint of procedure there are no real differences between a case in which both parties are appearing and a case in which one of them is defaulting, given that the Court is very careful to include the non-appearing party in every procedural action it takes in the proceedings.68 That party is invited to every meeting that is convened by the President to 66  Kosovo, Serbia and Montenegro v. Belgium, Preliminary Objections, Judgment of 15 Dec. 2004, ICJ Rep. 2004, p. 299, para. 46. See also Von Mangoldt & Zimmermann, “Article 53”, MN 53, p. 1344. 67  A particularly vigorous critique of this situation and the difficulties it causes for the appearing party can be found in the argument by Professor O’Connell on behalf of Greece at the jurisdiction phase of the Aegean Sea Continental Shelf case (ICJ, Pleadings, Aegean Sea Continental Shelf, pp. 318–319). See also J.G. Merrills, “The International Court of Justice and the General Act of 1928”, Cambridge LJ, vol. 39 (1980), pp. 161–163. 68  Rosenne’s Law and Practice, vol. 3, pp. 1415–1416.

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discuss questions of procedure; it is notified in a timely manner of every document filed by the appearing party; it is directed to file written pleadings within time-limits fixed by the Court or by the President; and it is invited to take part in the oral proceedings in exactly the same conditions as the appearing party. The full—although largely theoretical—equality between the parties is thus preserved throughout the entire proceedings, thus meeting the standard laid down in Article 3 of the 1991 IDI’s Resolution.69

Box # 18-8 Lack of equality between the appearing and the non-appearing party In his separate opinion in the Nuclear Tests cases, judge Gros criticized the very notion that in cases in which Article 53 applies there is a situation of equality between the State taking part in the proceedings and the State failing to appear. Apparently, in this judge’s view the non-appearing State is not really a party to the proceedings. The relevant excerpts of this opinion are reproduced below: 25. (. . .) To speak of two parties in proceedings in which one has failed to appear, and has on every occasion re-affirmed that it will not have anything to do with the proceedings is to refuse to look facts in the face. The fact is that when voluntary absence is asserted and openly acknowledged there is no longer more than one party in the proceedings. There is no justification for the fiction that, so long as the Court has not recognized its lack of jurisdiction, a State which is absent is nevertheless a party in the proceedings. The truth of the matter is that, in a case of default, three distinct interests are affected: that of the Court, that of the applicant and that of the respondent; the system of wholly ignoring the respondent’s decision not to appear and of depriving it of effect is neither just nor reasonable. In the present case, by its reasoned refusal to appear the Respondent has declared that, so far as it is concerned, there are no proceedings, and this it has repeated each time the Court has consulted it. Even if the Court refrains for a time from recording that default, the fact remains that the Respondent has performed an act of default from which certain legal consequences flow. Moreover, the applicant is entitled under Article 53

69  For the practice of the Court in the handling of the oral proceedings in cases of lack of appearance see Von Mangoldt & Zimmermann, “Article 53”, MN 67, p. 1350.

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to request immediately that judicial note be taken thereof and the consequences deduced. That is what the Applicant did, in the present instance, when it said in 1973 that the Court was under an obligation to apply its rules of procedure, without indicating which, and to refuse to take account of views and documents alleged by the Applicant to have been irregularly presented by the Respondent. And the Court partially accepted this point of view, in not effecting all communications to the Respondent which were possible. The result of not taking account of the Respondent’s default has been the granting of time-limits for pleadings which it was known would not be forthcoming, in order to maintain theoretical equality between the parties, whereas in fact the party which appeared was favoured. There was nothing to prevent the Court from fixing a short time-limit for the presumptive Respondent—one month, for example—the theoretical possibility being left open of a statement by the State in default during that time, to the effect that it had changed its mind and requested a normal time-limit for the production of a Memorial. 26. When it came to receiving or calling in the Agent of the Applicant in the course of the proceedings in 1973, there was a veritable breach of the equality of the Parties in so far as some of these actions or approaches made by the Applicant were unknown to the presumptive Respondent. (. . .) On this question of time-limits the Court has doubtless strayed into paths already traced, but precedents should not be confused with mandatory rules; each case has its own particular features and it is mere mechanical justice which contents itself with reproducing the decisions of previous proceedings. (. . .) 27. It is not my impression that the authors of Article 53 of the Statute intended it to be interpreted as if it had no effect of its own. It is not its purpose to enable proceedings to be continued at leisure without regard to the positions adopted by the absent respondent; it is true that the applicant is entitled to see the proceedings continue, but not simply as it wishes, with the Court reliant on unilateral indications of fact and law; the text of Article 53 was designed to avoid such an imbalance in favour of the applicant. When the latter calls upon the Court to decide in favour of its claim, which the present Applicant did not do explicitly on the basis of Article 53 but which resulted from its observations and submissions both in June 1973, at the time of the request for interim measures of protection, and in the phase which the Judgment brings to a close today, it would be formalistic to maintain that the absence of any explicit reference to

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Article 53 changes the situation. It must needs be realized that the examination of fact and law provided for in Article 53 has never begun, since the Court held in 1973 that the consequences of the non-appearance could be joined to the questions of jurisdiction and admissibility, and that, in the end, the question of the effects of non-appearance will not have been dealt with. Thus this case has come and gone as if Article 53 had no individual significance. 28. (. . .) As is well known, in the British system important precautions are taken at a wholly preliminary stage of a case to make sure that the application stands upon a genuinely legal claim, and the task of ascertaining whether this is so is sometimes entrusted to judges other than those who would adjudicate (cf. Sir Gerald Fitzmaurice’s opinion in the Northern Cameroons case (I.C.J. Reports 1963, pp. 106 f.), regarding “filter” procedures whereby, as “part of the inherent powers or jurisdiction of the Court as an international tribunal”, cases warranting removal can be eliminated at a preliminary stage). Between this interpretation and that which the Court has given of Article 53 in the present case, there is all the difference that lies between a pragmatic concern to hold a genuine balance between the rights of two States and a procedural formalism that treats the absent State as if it were a party in adversary proceedings, which it is not, by definition. (Nuclear Tests (Australia v. France), Separate Opinion of Judge Gros, ICJ Rep. 1974, pp. 290–292)

c) Questions of Evidence70 The second part of paragraph 2 of Article 53 of the Statute provides that in cases of default the Court is under a duty “to satisfy itself . . . that the claim is well founded in fact and law.” (emphasis added) The effect of the underlined provision is that all of the facts alleged by the appearing party must be proven in accordance with the regular standards of evidence applicable to all other cases. Article 53 merely reaffirms that this is also the situation in cases of lack of appearance, and in the Nicaragua case the Court construed this provision in a marked liberal way, making allowance for situations in which “the nature of the case” does not permit otherwise. The Court stated the following:

70  C.F. Amerasinghe, Evidence in International Litigation (2005), pp. 144–146; Riddell & Plant, “Evidence . . .,” pp. 219–229.

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The use of the term “satisfy itself” in the English text of the Statute (and in the French text the term “s’assurer”) implies that the Court must attain the same degree of certainty as in any other case that the claim of the party appearing is sound in law, and, so far as the nature of the case permits, that the facts on which it is based are supported by convincing evidence. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 24, para. 29)

In any case, there is no doubt that the lack of appearance by one of the parties to the case considerably complicates the Court’s task of ascertaining the facts, as an attribute of its judicial functions.71 Throughout the years the Court has identified certain basic criteria that may be said to govern the assessment of evidence produced in cases in which a party is not appearing. They are the following: (i) When a party is not appearing, the Court must concern itself with being in possession of all of the available facts, even if this entails somehow relaxing the procedural conditions for the submission of evidence, such as taking into account developments that occur subsequent to the close of the oral proceedings: It is to be regretted that the French Government has failed to appear in order to put forward its arguments on the issues arising in the present phase of the proceedings, and the Court has thus not had the assistance it might have derived from such arguments or from any evidence adduced in support of them. The Court nevertheless has to proceed and reach a conclusion, and in doing so must have regard not only to the evidence brought before it and the arguments addressed to it by the Applicant, but also to any documentary or other evidence which may be relevant. It must on this basis satisfy itself (. . .) that the Application is well founded in fact and in law. (. . .) In view of the object of the Applicant’s claim (. . .) the Court has to take account of any developments, since the filing of the Application, bearing upon the conduct of the Respondent. [t]he Court is bound to take note of further developments, both prior to and subsequent to the close of the oral proceedings. In view of the non-appearance of the Respondent, it is especially incumbent upon the Court to satisfy itself that it is in possession of all the available facts. (Nuclear Tests, Merits, Judgments of 20 Dec. 1974, ICJ Rep. 1974, pp. 257 and 263; p. 461, para. 15 and pp. 467–468, para. 31)

71  Riddell & Plant, “Evidence . . .,” p. 222.

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(ii) The defaulting party cannot derive benefits from its attitude. In particular, the fact that it makes a declaration “reserving” its rights in relation to the arguments put forward by the applicant has no effect on the Court’s assessment of the evidence brought before it: The present case turns essentially on questions of international law, and the facts requiring the Court’s consideration in adjudicating upon the Applicant’s claim either are not in dispute or are attested by documentary evidence. Such evidence emanates in part from the Government of Iceland, and has not been specifically contested, and there does not appear to be any reason to doubt its accuracy. The Government of Iceland, it is true, declared in its above-mentioned letter of 11 January 1974 that “it did not accept or acquiesce in any of the statements of fact or allegations or contentions of law contained in the Memorials of the Parties concerned” (emphasis added). But such a general declaration of non-acceptance and non-acquiescence cannot suffice to bring into question facts which appear to be established by documentary evidence, nor can it change the position of the applicant Party, or of the Court, which remains bound to apply the provisions of Article 53 of the Statute. (Fisheries Jurisdiction, Merits, Judgments of 25 July 1974, ICJ Rep. 1974, p. 9, para. 16 and p. 181, para. 17)

(iii) Under the principle jura novit curia, questions of international law do not need to be proven by the parties. This is applicable in cases of lack of appearance under the same conditions as in any other case: It is to be regretted that the Government of Iceland has failed to appear in order to plead its objections or to make its observations against the Applicant’s arguments and contentions in law. The Court however, as an international judicial organ, is deemed to take judicial notice of international law, and is therefore required in a case falling under Article 53 of the Statute, as in any other case, to consider on its own initiative all rules of international law which may be relevant to the settlement of the dispute. It being the duty of the Court itself to ascertain and apply the relevant law in the given circumstances of the case, the burden of establishing or proving rules of international law cannot be imposed upon any of the parties, for the law lies within the judicial knowledge of the Court. (Fisheries Jurisdiction, Merits, Judgments of 25 July 1974, ICJ Rep. 1974, p. 9 para. 17; p. 181, para. 18)

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(iv) However, jura novit curia has also a different aspect: even if the Court is not totally in the hands of the parties with regard to the applicable law, their views on that question (including those of the non-appearing party) are to be taken into account: (. . .) For the purpose of deciding whether the claim is well founded in law, the principle jura novit curia signifies that the Court is not solely dependent on the argument of the parties before it with respect to the applicable law (. . .), so that the absence of one party has less impact. (. . .) Nevertheless the views of the parties to a case as to the law applicable to their dispute are very material, particularly, as will be explained below (. . .), when those views are concordant. In the present case, the burden laid upon the Court is therefore somewhat lightened by the fact that the United States participated in the earlier phases of the case, when it submitted certain arguments on the law which have a bearing also on the merits. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, pp. 24–25, para. 29)

(v) As regards the Court’s assessment of factual considerations, although the Court is not limited to take into consideration only the facts submitted by the parties, the absence of one of them from the litigation necessarily limits the extent of the Court’s appraisal of the facts: It is to be regretted that the Turkish Government has failed to appear in order to put forward its arguments on the issues arising in the present phase of the proceedings and the Court has thus not had the assistance it might have derived from such arguments or from any evidence adduced in support of them. (Aegean Sea Continental Shelf, Jurisdiction, Judgment of 19 Dec. 1978, ICJ Rep. 1978, p. 7, para. 15)

As to the facts of the case, in principle the Court is not bound to confine its consideration to the material formally submitted to it by the parties (. . .). Nevertheless, the Court cannot by its own enquiries entirely make up for the absence of one of the Parties; that absence, in a case of this kind involving extensive questions of fact, must necessarily limit the extent to which the Court is informed of the facts. It would furthermore be an over-simplification to conclude that the only detrimental consequence of the absence of a party is the lack of opportunity to submit

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argument and evidence in support of its own case. Proceedings before the Court call for vigilance by all. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 25, para. 30)

(vi) By choosing not to appear, the defaulting party forfeits the opportunity to counter the allegations as to the facts made by the other party.72 The Court might thus feel entitled to draw “adverse evidentiary conclusions” from that party’s failure to produce evidence and information that may prove useful to the Court.73 A concrete manifestation of this is the waiving of that State’s rights to cross-examine the witnesses called by the other party and to call its own witnesses: As regards the evidence of witnesses, the failure of the respondent State to appear in the merits phase of these proceedings has resulted in two particular disadvantages. First, the absence of the United States meant that the evidence of the witnesses presented by the Applicant at the hearings was not tested by cross-examination; however, those witnesses were subjected to extensive questioning from the bench. Secondly, the Respondent did not itself present any witnesses of its own. This latter disadvantage merely represents one aspect, and a relatively secondary one, of the more general disadvantage caused by the non-appearance of the Respondent. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 42, para. 67)

(vii) Under Article 53 the duty of the Court vis-à-vis the appearing party with regard to proof of facts does not comprise examining the accuracy of the submissions “in all their details.” It is sufficient for the Court to convince itself that the submissions are well founded: It is of course for the party appearing to prove the allegations it makes, yet as the Court has held: While Article 53 thus obliges the Court to consider the submissions of the Party which appears, it does not compel the Court to examine their 72  Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 25, para. 30. 73  Construction of a Wall, Declaration of Judge Buergenthal, ICJ Rep. 2004, p. 245, para. 10. The point that judge Buergenthal was making here was that this situation is radically different in advisory proceedings in which there are no parties and therefore the situation of a State failing to participate is entirely different from that of a defaulting State.

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accuracy in all their details; for this might in certain unopposed cases prove impossible in practice. It is sufficient for the Court to convince itself by such methods as it considers suitable that the submissions are well founded. (. . .) (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 25, para. 30)74

As for the methods that the Court may use in order to satisfy itself that the submissions are well founded,75 three are especially relevant in cases of lack of appearance: (one) Extra-official communications filed by the non-appearing State, a device that will be discussed below; (two) Information in the general domain that is not contradicted by the non-appearing party; and (three) Inferences constituting circumstantial evidence, of which it has been said that their use “[i]ncreases in inverse proportion to the quantity of other evidence available.”76

Box # 18-9 Burden of proof in cases of lack of appearance In his dissenting opinion at the merits phase in the Nicaragua case, judge Schwebel elaborated on the question of the burden of proof in cases of lack of appearance. He recalled the position of James Brown Scott with regard to the genesis of Article 53 of the Statute of the PCIJ, in whose view that provision produced a shifting of the burden of proof, which would then fall upon the appearing party. Judge Schwebel disagrees and states that considerations of burden of proof are actually beside the point in cases handled under Article 53, because the real question is that the Court must be convinced that any objections raised by the non-appearing party (or even by the Court or a judge) are unfounded.

74  The passage transcribed is from Corfu Channel (Compensation, Judgment of 15 Dec. 1949, ICJ Rep. 1949, p. 248), a decision also quoted in the same sense in US Hostages (Merits, Judgment of 24 May 1980, ICJ Rep. 1980, p. 9, para. 11). For a critique of this “selective quotation” see W.M. Reisman, “Respecting One’s Own Jurisprudence: A Plea to the International Court of Justice”, AJIL, vol. 83 (1989), pp. 313–314. 75  Von Mangoldt & Zimmermann, “Article 53”, MN 59, p. 1347. 76  K. Highet, “Evidence and Proof of Facts”, en L.F. Damrosch (Ed.), The International Court of Justice at A Crossroads (1987), p. 364. See also the discussion on circumstantial evidence in Chapter 8, d) and Box # 8-19.

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120. In order to satisfy itself both as to the validity of the claim and the defence to the claim, the Court need not content itself with the pleadings of the appearing Party. Indeed, if it is not satisfied by those pleadings, it is not entitled to content itself with those pleadings. (. . .) 121. Rather, if the Court, in order to “satisfy itself”, finds it necessary to have recourse to United Nations documents, newspaper articles, Congressional debates, books and articles of scholars, and other material in the public domain—including publications of and documents released by the United States Government—that bear on the facts and law of the case, it is not only entitled but required to do so, whether or not they are found in the pleadings of the Parties. Equally, if the Court or judges of the Court are not satisfied with the pleadings of the appearing Party on questions of fact and law, they are entitled—if not obliged—to put questions to the Agent, counsel or witnesses as may be appropriate. (. . .) 125. Thirlway’s study, Non-appearance before the International Court of Justice, sets out the travaux préparatoires of Article 53 in extenso. They in fact are not extensive (loc. cit., pp. 22–26). They emphasize the purport of Article 53, namely that judgment can be given for the claimant in the absence of the defendant only when the plaintiff produces “the most proofs” and establishes his case “most completely” (p. 24). Thirlway records that the United States member of the Advisory Committee of Jurists which drafted the Statute of the Permanent Court, the eminent statesman, Elihu Root, was accompanied by James Brown Scott, the distinguished international lawyer who was the Secretary of the Carnegie Endowment for International Peace. Scott apparently sat at the table of the Committee as if he were a member and assisted Root throughout the sessions (see Philip C. Jessup, EIihu Root, 1939, Vol. II, pp. 419, 426). Scott wrote a report for the Board of Trustees of the Endowment published in 1920, which contains the following passage about the exercise of jurisdiction by the Court under Article 53 of the Statute, which Thirlway’s book quotes: The essential condition for the exercise of jurisdiction in such a case is and must be, that the plaintiff, although proceeding ex parte, should present its case as fully as if the defendant were present, and that the court be especially mindful of the interests of the absent defendant. This does not mean that the court shall take sides. It does mean,

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however, that the court, without espousing the cause of the defendant, shall, nevertheless, act as its counsel. There is an apt French phrase to the effect that ‘the absent are always wrong’. The Court must go on the assumption that the absent party is right, not wrong until the plaintiff has proven him to be wrong. (At p. 25.)(. . .) 126. However accurately Scott may be presumed to have expressed the intent of the drafters of Article 53 of the Statute, there is room for hesitation in accepting his apparent conclusion that Article 53 shifts the burden of proof. Such a conclusion might operate as an inducement to States to absent themselves from Court, in the belief that they would find themselves in a more advantageous position if absent than present. The practice of defendants absenting themselves from the Court which has particularly and repeatedly obtained since Iceland did not appear in the Fisheries Jurisdiction case in 1972 cannot conduce to the Court’s standing and effectiveness, and indeed represents one of the most disturbing developments in the history of the Court. Moreover, as suggested at the outset of this section, considerations of burden of proof are beside the point, because the real point is that, where objections are raised to the appearing party’s contentions, that party must convince the Court that those objections are unfounded if the Court is to meet the standard which Article 53 imposes. 127. In my view, the correct interpretation of Article 53 is that it affords the appearing State no advantage beyond that which it enjoys by reason of the non-appearing State’s absence. If, in a given case, such as the one before the Court, the non-appearing party (or the Court or a judge) raise an affirmative defence to the claim, the appearing party must demonstrate that the defence is not good in order to prevail. The absence of the non-appearing party sometimes will, and sometimes will not, tend to make such a showing easier rather than more difficult. (. . .) (Nicaragua, Merits, Dissenting Opinion of Judge Schwebel ICJ Rep. 1986, pp. 316–320)77

77  This question was also mentioned in passing in the separate opinion of judge Nagendra Singh and the dissenting opinion of judge Oda in the same case (ICJ Rep. 1986, p. 154 and p. 245, para. 69, respectively).

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e) Extra-Procedural Documentation78 It is important to stress that the attitude of the States who in the past have entered a lack of appearance has never been one of open hostility or even indifference towards the Court. As a general rule, those States usually react to the notification that an application has been filed against them with a polite communication in which they inform the Court that for this or that reason they are not prepared to consent to the Court’s exercise of jurisdiction with regard to the matter at hand and that therefore they will not be represented in the proceedings. Additionally, the State that chooses not to appear or not to defend its case invariably attempts to found its position on legal arguments, which are developed, either in a letter transmitted through diplomatic channels or in a special publication, i.e., a White Paper type of document—what the Court has called in general terms “extra-procedural communications”—79 and makes sure that this reaches the Court before it makes its decision. Thus, the documentation in question is laid before the Court although it is not submitted formally in the nature of a pleading.80 In the apt expression used by Fitzmaurice, this is “[l]ike an actor who refuses to perform his part on stage but speaks his lines from the wings so as to be heard in the auditorium.”81 While the Court’s practice in this regard has been traditionally generous, it has also been cautious, because it has taken into consideration the arguments thus presented informally by the defaulting party, but always being careful to do so without giving those documents the treatment of regular pleadings. This may have serious consequences, from a procedural standpoint, as shown by the Pakistani POW case, in which, for instance, the Court refused to treat the sending of certain communications by the non-appearing respondent through its Ambassador to The Hague as a “step in the proceedings” within the meaning of Article 89, para. 1, concerning discontinuance.82

78  See Sinclair, “Some Procedural Aspects . . .”, pp. 352–353; Thirlway, “Non-Appearance . . .”, pp. 142–157; Thirlway’s Law and Procedure, pp. 168–172; Von Mangoldt & Zimmermann, “Article 53”, MN 60–61, pp. 1347–1348. 79  Aegean Sea Continental Shelf, Jurisdiction, Judgment of 19 Dec. 1978, ICJ Rep. 1978, p. 18, para. 42. 80  This is related to the fact that, invariably, non-appearing States abstain from appointing an agent. 81  Fitzmaurice, “The Problem . . .” p. 91. The same author has called this “a kind of de facto appearance” (ibid., p. 89, fn. 2). See also the dissenting opinion of judge Schwebel in the Nicaragua case (ICJ Rep. 1986, p. 318, para. 123). 82  Pakistani POW, Order of 15 Dec. 1973, ICJ Rep. 1973, p. 348. On this see Chapter 9, b).

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This has occurred since the time of the Permanent Court. In the celebrated Eastern Carelia advisory case, for instance, the Soviet Government refused to take any part in the proceedings and sent to the Court’s President a long telegram stating the essentials of its case and the legal arguments on which it was based.83 Similarly, in the Anglo-Iranian Oil Co., Fisheries Jurisdiction and Nuclear Tests cases, the Court took notice of arguments contained in documentation presented informally by the respective non-appearing parties. In the second of these cases, the Court referred to this situation as follows: In ascertaining the law applicable in the present case the Court has had cognizance not only of the legal arguments submitted to it by the Applicant but also of those contained in various communications addressed to it by the Government of Iceland, and in documents presented to the Court. The Court has thus taken account of the legal position of each Party (. . .). It should be stressed that in applying Article 53 of the Statute in this case, the Court has acted with particular circumspection and has taken special care, being faced with the absence of the respondent State. (Fisheries Jurisdiction, Merits, Judgments of 25 July 1974, ICJ Rep. 1974, pp. 9 and 181, para. 17)

Additionally, in the Nuclear Tests cases the Court noted in the same context that when one party is not appearing “[i]t is especially incumbent upon the Court to satisfy itself that it is in possession of all the available facts.”84 In the Aegean Sea Continental Shelf case the situation in this regard was even more acute, because the non-appearing party sent to the Court no less than three distinct informal communications and the last of these reached the Registry when the oral proceedings devoted to the question of jurisdiction were already in motion. In its judgment, the Court recalled this circumstance and remarked that: [n]o pleadings were filed by the Government of Turkey, and it was not represented at the oral proceedings; no formal submissions were therefore made by that Government. The attitude of the Government of Turkey with regard to the question of the Court’s jurisdiction has 83  Eastern Carelia, Advisory Opinion No. 5, 23 July 1923, PCIJ B 5, pp. 12–16. 84  Nuclear Tests, Judgments of 20 Dec. 1974, ICJ Rep. 1974, p. 257, para. 15; p. 263, para. 31; p. 461, para. 15; p. 468, para. 32. A similar situation occurred in US Hostages, Merits, Judgment of 24 May 1980, ICJ Rep. 1980, pp. 8–9, para. 10.

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however been defined in its communications to the Court of 25 August 1976, 24 April 1978, and 10 October 1978. The last-mentioned communication was received in the Registry on the morning of the second day of the public hearings, and was transmitted to the Agent of Greece by the Registrar later the same day. In these circumstances account can be taken of its contents only to the extent that the Court finds appropriate in discharging its duty, under Article 53 of the Statute, to satisfy itself as to its jurisdiction to entertain the Application. (Aegean Sea Continental Shelf, Jurisdiction, Judgment of 19 Dec. 1978, ICJ Rep. 1978, p. 7, para. 14)

Although the last sentence in this passage is far from clear—it has been called “cryptic” and “sibylline” by one author—85 its import appears to be that even a communication that is received belatedly, under circumstances in which it will be difficult for the appearing party to effectively respond to it, can be procedurally effective in the sense that it may be taken into account by the Court. Understandably, this has prompted a strong reaction from disaffected appearing parties, as it might allow the non-appearing party to derive advantages from its attitude, sometimes to the detriment of the other party.86 A particularly damaging device is that, as already noted, sometimes the respondent party has chosen to do this on the eve of the hearing—or even after the closure of the oral proceedings—, i.e., at a point in time at which, for all practical purposes, the appearing party is deprived of the procedural opportunity to comment and to offer counter-arguments. The Court took note of this situation in the Nicaragua case and remarked that it must always strike a balance between its need to be in possession of the available facts and its duty to respect the equality of the parties and the observance of the Court’s rules concerning the presentation of arguments and evidence: The experience of previous cases in which one party has decided not to appear shows that something more is involved. Though formally absent from the proceedings, the party in question frequently submits to the Court letters and documents, in ways and by means not contemplated by the Rules. The Court has thus to strike a balance. On the one hand, it is valuable for the Court to know the views of both parties in whatever 85  Thirlway, “Non-Appearance . . .”, pp. 137, 145. 86  On this, see the very restrained view of judge ad hoc Barwick in the Nuclear Tests cases (Dissenting Opinion, ICJ Rep. 1974, p. 401).

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form those views may have been expressed. (. . .) On the other hand, the Court has to emphasize that the equality of the parties to the dispute must remain the basic principle for the Court. The intention of Article 53 was that in a case of non-appearance neither party should be placed at a disadvantage; therefore the party which declines to appear cannot be permitted to profit from its absence, since this would amount to placing the party appearing at a disadvantage. The provisions of the Statute and Rules of Court concerning the presentation of pleadings and evidence are designed to secure a proper administration of justice, and a fair and equal opportunity for each party to comment on its opponent’s contentions. The treatment to be given by the Court to communications or material emanating from the absent party must be determined by the weight to be given to these different considerations, and is not susceptible of rigid definition in the form of a precise general rule. The vigilance which the Court can exercise when aided by the presence of both parties to the proceedings has a counterpart in the special care it has to devote to the proper administration of justice in a case in which only one party is present. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, pp. 25–26, para. 31)

In the same case, the Court faced a situation presented by a publication of the United States Government that was sent to the Registry by that country’s Embassy in The Hague on the second day of the hearings. The representatives of the Nicaraguan government refused to comment on the contents of this document, which in their view “d[id] not constitute evidence in this case” and “c[ould] not properly be considered by the Court.” The Court registered that the document was known to Nicaragua and concluded that “[t]he Court . . . considers that, in view of the special circumstances of this case, it may, within limits, make use of information in such a publication.”87 Finally, although the Court has shown a marked reluctance to exclude from its consideration, on a purely formal basis, materials submitted informally to it by a non-appearing party, a distinction might be made between the arguments put forward in those documents and the elements purporting to constitute evidence that might also be included therein. It is apparent that, while during its deliberations the Court has been willing to take into account the former and usually makes a conscious effort to provide an answer for those arguments 87  Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 24, para. 73. For a comment approving the stance taken by the Court see F.L. Morrison, “Legal issues in the Nicaragua Opinion”, AJIL, vol. 81 (1987) pp. 163–164.

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based on legal reasoning, it has been less inclined to afford the latter a meaningful evidentiary value.88 (iii)

Appeals (Special Reference to the Court)

The ICJ is a court of first recourse and last instance endowed with original jurisdiction, and thus it does not belong to an organized system in which there is a multiplicity of courts and a hierarchy among them. As a result, there is, strictly speaking, no room for appellate proceedings before it with regard to decisions given by other tribunals.89 The PCIJ possessed a special type of appellate jurisdiction under the provisions of several treaties concluded after World War I.90 Discussions concerning the possibility of conferring a similar type of jurisdiction on the present Court took place at the time of its creation but were largely inconclusive.91 The PCIJ dealt with a handful cases of this type and in 1936 inserted in its Rules a section entitled “Appeals to the Court” (“Des recours exerces devant la Cour”). This was preserved in the text of the Rules up to 1978, when it was replaced by the somewhat larger concept of “Special reference to the Court” (“Renvoi spécial devant la Cour”), thus avoiding the overtones of the highly technical term “appeals.”92

88  Riddell & Plant, “Evidence . . .”, pp. 227–228. 89  For a definition of “appellate jurisdiction” and a discussion of the precise meaning of the term “appeal” see M. Reisman, “The Supervisory Jurisdiction of the International Court of Justice: International Arbitration and International Adjudication,” RC, vol. 258 (1996), pp. 23–24, fn 2. Useful definitions of the term in both national and international law can also be found in K. Oellers-Frahm, “International Courts and Tribunals, Appeals”, Max Planck EPIL, MN 1–2 and 6. 90  Rosenne has referred to this as “[s]ome sort of vaguely defined appellate jurisdiction” (S. Rosenne, Interpretation, Revision and Other Recourse from International Judgments and Awards (2007), p. 157). See also M.O. Hudson, International Tribunals—Past and Future (1944), pp. 125–126. 91  The Informal Inter-Allied Committee considered several proposals in this direction and unequivocally advised against all of them (Inter-Allied Committee Report, pp. 26–28, paras. 85–90). 92  During the discussions leading to the 1936 revision of the Rules, alternative terms were proposed, such as “recours” or “voi de recours” (remedial action) (PCIJ D 2, Add. 3 (1936), pp. 342–343). For a comment on the wide scope of the term “appeals” see E. Lauterpacht, Aspects of the Administration of International Justice, (1991), p. 99.

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Box # 18-10 Appellate procedures: A review of the practice Before the PCIJ there were three instances of appeals from decisions given by mixed arbitral tribunals in disputes involving particulars and a State: i) In July 1932 Czechoslovakia filed two separate applications against Hungary concerning appeals from certain judgments of the Hungaro-Czechoslovak Mixed Arbitral Tribunal. Hungary filed preliminary objections with regard to both applications and on 26 October 1932 the Court decided to join them (PCIJ C 68, p. 290). The cases did not proceed to the merits, the applicant having discontinued them (Appeals from Certain Judgments of the Hungaro-Czechoslovak Mixed Arbitral Tribunal, Order of 12 May 1933, PCIJ A/B 56, p. 162). ii) In 1933 Czechoslovakia filed a new application instituting proceedings against Hungary concerning an appeal from a judgment given by the same tribunal in the Peter Pázmány University case. The Court dealt with the jurisdiction and merits of the case and by a judgment rendered on 15 December 1933 rejected the appeal and upheld the decision given by the tribunal (Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University v. The State of Czechoslovakia), Judgment of 15 Dec. 1933, PCIJ A/B 61, p. 208). iii) In 1935, Hungary brought before the Court an appeal in the Pajzs, Csaky, Esterhazy case, concerning three judgments by the Hungaro-Yugoslav Mixed Arbitral Tribunal in which that organ had declined to exercise jurisdiction. Yugoslavia entered preliminary objections and the Court joined these to the merits and eventually decided that it could not entertain the application ( Judgment of 16 Dec. 1936, PCIJ A/B 68, p. 30). It will be noted that according to some authors, these three cases were not “appeals” in the strict sense, but independent proceedings concerning the regularity of the decision-making process followed by the mixed arbitral tribunals, more akin to the cases mentioned above.93 In this regard, it is understandable that in ICAO Council judge Morozov stated very firmly that in that case the Court was “[a]cting for the first time in its history as a court of appeal” (Dissenting Opinion of Judge Morozov, ICJ Rep. 1972, p. 157).

93  Lauterpacht, “Aspects . . .”, p. 104, note 16. See also Hudson’s PCIJ, p. 432.

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As for the present Court, there have been two examples of an appeal concerning a decision by an international decision-making organ, both of them, coincidentally, concerning the Council of the ICAO and the provisions of the 1944 Convention on International Civil Aviation (the Chicago Convention), the constitutive instrument of that organization. i) The first was the ICAO Council case, in which the Government of India challenged the validity of certain jurisdictional decisions taken in July 1971 by the Council of the ICAO in a dispute with Pakistan. The case was brought to the Court under Article 84 of the Chicago Convention, supplemented by Article II of the International Air Services Transit Agreement, a related instrument concluded on the same date.94 In its judgment the Court rejected the appeal and referred to the nature and scope of its appellate jurisdiction under Article 67 of the Rules then in force in the following terms: [s]ince this is the first time any matter has come to it on appeal, the Court thinks it useful to make a few observations of a general character on the subject. The case is presented to the Court in the guise of an ordinary dispute between States (and such a dispute underlies it). Yet in the proceedings before the Court, it is the act of a third entity—the Council of ICAO—which one of the Parties is impugning and the other defending. In that aspect of the matter, the appeal to the Court contemplated by the Chicago Convention and the Transit Agreement must be regarded as an element of the general régime established in respect of ICAO. In thus providing for judicial recourse by way of appeal to the Court against decisions of the Council concerning interpretation and application—a type of recourse already figuring in earlier conventions in the sphere of communications—the Chicago Treaties gave member States, and through them the Council, the possibility of ensuring a certain measure of supervision by the Court over those decisions. To this extent, these Treaties enlist the support of the Court for the good functioning of the Organization, and therefore the first reassurance for the Council lies in the knowledge that means exist for determining whether a decision as to its own competence is in conformity or not with the provisions of the treaties governing its action. If nothing in the text requires a different conclusion, an appeal

94  Similar provisions can be found in the constitutive instruments of organizations of the UN family such as ILO (Constitution, Article 29); FAO (Constitution, Article XVII); and WHO (Constitution, Article 75).

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against a decision of the Council as to its own jurisdiction must therefore be receivable since, from the standpoint of the supervision by the Court of the validity of the Council’s acts, there is no ground for distinguishing between supervision as to jurisdiction and supervision as to merits. (ICAO Council, Judgment of 18 August 1972, ICJ Rep. 1972, pp. 60–61, para. 26)95

ii) The second case is the Aerial Incident (Iran v. USA) case, submitted to the Court by Iran on 17 May 1989. The case referred to an incident involving the shooting down of an Iranian commercial airliner. Iran’s application involved both, an appeal from a decision made by the Council of ICAO with regard to that incident and an independent claim based on an alleged violation of its rights under the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation. The respondent having filed preliminary objections, the case was discontinued by the applicant before they were disposed of (Order of 13 Dec. 1989, ICJ Rep. 1989, p. 132). It is interesting to note that although this case was submitted when the 1978 Rules were already in force, Article 87 was not mentioned at all in the application. However, this document did comply with the substantive and formal requirements contained in that provision: it stated that it was partially based on the provisions of the Chicago Convention and it clearly identified the decision by the ICAO Council of 17 March 1979 that was the subject of the appeal, duly attaching a copy of this decision. For some undisclosed reason, however, in this instance neither the applicant nor the Court chose to formally invoke the provisions of Article 87.96

In the simplest terms, the special reference to the Court refers to a situation in which a case is referred to the Court concerning a matter which has been the subject of proceedings before some other international body, whether jurisdictional or otherwise. In the discussions taking place at the United Nations General Assembly during the years 1970–1974 and in diverse academic circles several proposals were made aimed at authorizing the Court to give pronouncements on aspects of 95  Since the decision by the Council impugned by India was a decision dealing exclusively with questions of jurisdiction, the Court was careful to include in its judgment a safeguard concerning “[t]he substance of this dispute as placed before the Council” (ICAO Council, Judgment of 18 Aug. 1972, ICJ Rep. 1972, pp. 51–52, para. 11). 96  The application states that it is submitted “[i]n accordance with Article 40, para. 1 of the Statute and Article 38 of the Rules of Court” (Aerial Incident (Iran v. USA), Application Instituting Proceedings filed in the Registry of the Court on 17 May 1989, p. 4).

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international law at the request of other courts, particularly the supreme court of States members, following the distant model of the failed International Prize Court.97 The response by the Court to these and other suggestions, embodied in Article 87 of the Rules, has been markedly guarded, although it must be said that the Court possesses a very narrow margin of action in this regard, due to the strictures of the provisions in the Statute concerning access.98 Whether the States parties to the Statute will at some point be willing or ready to contemplate amending this instrument for that purpose is an entirely different question and one on which there are no real prospects for the time being.

Box # 18-11 Appellate procedures: Evolution of the Rules The original Rules of the PCIJ were silent on the subject of appeals, notwithstanding that appellate jurisdiction had been conferred on the Court by several treaties concluded after World War I. After the Court was forced to deal with a handful of disputes concerning decisions made by mixed arbitral tribunals set up by the Peace Treaties, the 1936 revision introduced in the section concerning “Occasional Rules” a new provision with the following wording: Article 67 1.

2.

3.

When an appeal is made to the Court against a decision given by some other tribunal, the proceedings before the Court shall be governed by the provisions of the Statute of the Court and of the present Rules. If the document instituting the appeal must be filed within a certain limit of time, the date of the receipt of this document in the registry will be taken by the Court as the material date. The document instituting the appeal shall contain a precise statement of the grounds of the objections to the decision complained of, and these constitute the subject of the dispute referred to the Court.

97  For different takes on this problem, albeit in the context of advisory proceedings, see S. Schwebel, “Preliminary Rulings by the International Court of Justice at the Instance of National Courts”, in S. Schwebel, Justice in International Law-Selected Writings of Judge Stephen M. Schwebel (1994), pp. 84–92; S. Rosenne, “Preliminary Rulings by the International Court of Justice at the Instance of National Courts: A Reply”, Virginia JIL, vol. 29 (1988–1989), pp. 401–412; Lauterpacht, “Aspects . . .”, pp. 114–116; T. Treves, “Advisory Opinions of the International Court of Justice on Questions Raised by Other International Tribunals”, Max Planck Yearbook of United Nations Law, vol. 4 (2000), pp. 215–231. 98  Rosenne’s Procedure, p. 183.

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4. An authenticated copy of the decision complained of shall be attached to the document instituting the appeal. 5. It lies upon the parties to produce before the Court any useful and relevant material upon which the decision complained of was rendered.99 In the context of this provision, the term “appeal” was understood in a rather narrow sense. According to Hudson, [i]n the English version the term appeal is used in a general sense to cover cases in which various remedies may be sought; the French version does not employ the word appel, to which a special meaning usually attaches. What is really meant by appeal in English and recours in French is a dispute concerning a decision given by some other tribunal.100 Essentially the same text was maintained in the 1946 (Article 67) and 1972 (Article 72) Rules of the present Court, and although a case falling within its purview was brought to and handled by the Court under the 1946 Rules (the ICAO Council case), Article 67 was not invoked by the parties nor quoted as authority by the Court. In 1978, in a sharp break with the past, a new rule was introduced that altogether abandoned the term “appeal” and replaced it with the more neutral expression “Special reference to the Court.”101 The text of new Article 87 of the Rule—on which there is no practice yet—is as follows: Article 87 1.

When in accordance with a treaty or convention in force a contentious case is brought before the Court concerning a matter which has been the subject of proceedings before some other international

99  For the record of the extensive discussions concerning this provision see PCIJ D 2, Add. 3 (1936), pp. 336–357. 100  Hudson’s PCIJ, p. 294. 101  For comments see M. Lachs, “The Revised Procedure of the International Court of Justice” in F. Kalshoven, et al. (Eds.), Essays on the Development of the International Legal Order in Memory of Haro F. van Panhuys (1980), pp. 40–41; S. Rosenne, “Some Reflections on the 1978 Revised Rules of the ICJ” Columbia Journal of Transnational Law, vol. 19 (1981), pp. 246–247.

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2.

body, the provisions of the Statute and of the Rules governing contentious cases shall apply. The application instituting proceedings shall identify the decision or other act of the international body concerned and a copy thereof shall be annexed; it shall contain a precise statement of the questions raised in regard to that decision or act, which constitute the subject of the dispute referred to the Court.

This provision has significant differences with Article 67 of the 1936/1946 and Article 72 of the 1972 Rules. Chiefly among them are the following: – It is shorter and less detailed than the rule adopted in 1936. – Instead of speaking of “an appeal (. . .) against a decision given by some other tribunal,” the new rule uses a broader formula, referring rather to “a contentious case (. . . ) concerning a matter which has been the subject of proceedings before some other international body.” It will be noted that the new provision applies not only to “decisions” but more generally to “matters” and refers to “some other international body” instead of to “some other tribunal.” In paragraph 2, in any case, it is made clear that the proceedings brought before the Court must refer to a certain “decision or other act” of the international body concerned. – The new rule requires the matter in question to be brought before the Court “in accordance with a treaty or convention in force,” a condition that was missing entirely in the previous rule. It appears that this requirement was incorporated into the Rules following the practice in the ICAO Council case.102 – While the previous rule spoke repeatedly of “the document instituting the appeal” (“l’acte introductive d’une instance en recours”) (paras. 2, 3 and 4), the new provision (para. 2) may be more accurate by referring directly to “[t]he application instituting proceedings” (“[l]a requête introductive d’instance”). Although this change is welcome for technical reasons, the question arises as to whether proceedings under Article 87 cannot be instituted by special agreement, a situation that, although remote, lies within the realm of the possible. Commenting on the wording of Article 67 of the 1936 Rules, Hudson had remarked that the expression used in paragraph 3

102  Rosenne’s Procedure, p. 184.

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“[m]ust be only another name for the notification or application referred to in Article 40 of the Statute,” a proposition that certainly would include the notification of a special agreement.103 In his treatise on the PCIJ that was published some years later, the same author stated unequivocally that the proceedings to which Article 67 referred could be instituted either by application or by special agreement, deriving support for this from the travaux of the 1936 amendment to the Rules.104 – Paragraph 2 corresponds to paragraph 3 of Article 67 and is particularly relevant, as it delineates the scope of the Court’s jurisdiction in this matter. It requires the application to contain “[a] precise statement of the questions raised” in regard to the decision or act of the international body concerned, and it specifies that such questions will “[c]onstitute the subject of the dispute referred to the Court.” In the previous rule the subject of the dispute referred more narrowly to “[t]he grounds of the objections to the decision complained of.”

On the other hand, appellate procedures must be distinguished from two types of regular cases that have come before the Court in the past. Firstly, there are recours en nullité, i.e. routine contentious cases in which the regularity of a decision rendered by an international arbitral tribunal constitutes the subject of the dispute and the Court is called to exercise a supervisory type of jurisdiction—which, of course, must be based on some form of consent.105 As the scope of the Court’s jurisdiction ratione materiae is very wide, under both paragraph 1 and paragraph 2 of Article 36 of the Statute, once the parties have accepted the jurisdiction of the Court through any of the means therein established there is nothing to prevent a dispute concerning the validity or even the existence of an arbitral award from being brought before the Court as a contentious matter. Under Article 36, para. 2 (b), for instance, States may accept the Court’s jurisdiction over disputes concerning “[a]ny question of international law” and the existence or validity of an arbitral award is certainly one such question. The same can be said of jurisdictional clauses found in general treaties such as the 1948 Pact of Bogota, the 1929/1949 General Act of Geneva 103  M.O. Hudson, “The 1936 Rules of the Permanent Court of International Justice”, AJIL, vol. 30 (1936), p. 469. 104  Hudson’s PCIJ, p. 544, note 33. For the largely inconclusive discussion on this point that took place in 1936 see PCIJ D 2, Add. 3 (1936), pp. 353–355. 105  Reisman, “The Supervisory Jurisdiction . . .”. p. 24.

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or the 1957 European Convention on Pacific Settlement. Disputes of this group may also be submitted to the Court by special agreement or even via the technique of forum prorogatum.106 This has actually happened twice before the present Court, one on the basis of a special agreement (Arbitral Award (Honduras v. Nicaragua) and one under the Optional Clause (Arbitral Award (Guinea-Bissau v. Senegal). The Court had no particular difficulty handling the proceedings in these cases in the ordinary manner and in both of them, notably, it found it appropriate to remark that it was not acting as a court of appeal.107

Box # 18-12 The ICJ as a court of cassation: The ILC drafts on arbitral procedure When the International Law Commission considered the topic of arbitral procedure, it gave profound consideration to the question of the annulment of the award. After lengthy discussions, it decided to put forward the idea that in the event that one of the parties to an arbitration found grounds to request the nullity of the award, the ICJ should be the competent forum to deal with this question and that, if seised with a dispute concerning the validity of the award, it would be acting as a cour de cassation. A provision along these lines can be found in both the initial Draft Convention on Arbitral Procedure, adopted by the Commission at its 5th session in 1953 (Article 31), and the final Model Rules on Arbitral Procedure, adopted in 1958 and submitted to the General Assembly in that same year (Article 36). In a commentary to the first of these provisions, it was stressed that the role that the Court would be performing would be in the nature of cassation, as distinct from related institutions such as revision or appeal. In this document the background for the concept is also reviewed, including pioneering initiatives discussed in the League of Nations in 1928 and 1929.

106  For the opposite view see the declaration appended by judge Mbaye in the Arbitral Award (Guinea-Bissau v. Senegal) case (ICJ Rep. 1989, p. 80). 107  Arbitral Award (Nicaragua v. Honduras), Judgment of 18 Nov. 1960, ICJ Rep. 1960, p. 214; Arbitral Award (Guinea-Bissau v. Senegal), Judgment of 12 Nov. 1991, ICJ Rep. 1991, p. 62, paras. 24–25. For analytical comments see Rosenne, “Interpretation . . .”, pp. 145–154; Thirlway’s Law and Procedure, Part 9, BYIL, vol. 69 (1998), pp. 61–72.

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Article 31 1. The International Court of Justice shall be competent, on the application of either party, to declare the nullity of the award on any of the grounds set out in the preceding article (. . .) This article is motivated by the following considerations: (1) The existing stage of the development of international law, which provides no procedure by which a party’s charges of nullity may be tested through judicial means, save only when both parties consent thereto, is, in this respect, anarchic; (2) The judicial body authorized to rule upon charges of nullity should be the International Court of Justice. If a dispute arises between the parties as to the validity of an award, it may under this article be brought before the Court by means of a simple application by either party. (. . .) The authority of the Court to review arbitral awards is limited under the article (. . .). [i]ts power is in the nature of cassation in that it is authorized only “to declare the nullity of the award” and it may not thereafter proceed to adjudicate the case de novo on the merits (. . .) In providing in article 31 a judicial means for resolving disputes as to the nullity of an award, the draft convention is meeting a long-felt need in international arbitration. This in its meeting of 1929 the Institut de Droit International formally expressed its recommendation “that States, in their conventions on arbitration , as well as in the clauses compromissoires signed by them, agree to submit to the Permanent Court of International Justice for decision all disputes between them relating to either the competence of the arbitral tribunal, or to an exces de pouvoir by the latter alleged by one of the Parties.” In adopting the procedure of cassation rather than revision for dealing with charges of nullity, the draft follows prior proposals to confer upon the Permanent Court of International Justice jurisdiction to review the decisions of ad hoc tribunals.(. . .) In adopting the principle of cassation as the basis for the procedure for review set forth in article 31, the draft follows not only the proposals made before the League of Nations as noted supra but also follows relevant practice. (. . .)

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The establishment of any system of judicial review for decisions of ad hoc international tribunals has been criticized on the grounds that it would, first, impair or destroy the independence of such tribunals, and, second, establish a hierarchy of international courts. The first objection overlooks the circumstances that such tribunals are tribunals of limited jurisdiction and that it is better to have a judicial determination of charges of nullity than to leave such charges to the uncontrolled power of the parties. However, the force of both objections is largely reduced if the principle of cassation be adopted, as it is in articles 31 and 32. Under the draft, after the Court has pointed out the defects in the contested award, the entire matter is referred back for determination by an ad hoc tribunal . . .108 In the 1929 resolution quoted above, the Institut de Droit International also directed that in its program of work a topic was to be included concerning b) la possibilité et la convenance de charger une instance internationale de cassation de connaître des recours contre les décisions des tribunaux arbitraux internationaux, pour autant que ces recours seraient fondés sur une fausse application des règles applicables du droit international;109 In 1957 the Institut revisited the subject and adopted a fresh resolution entitled “Judicial Redress Against the Decisions of International Organs.” It contains a clause referring to the potential role of the ICJ in the following terms: Except for cases in which a special jurisdictional regime is provided, [the Institute] is of the opinion that it is desirable that the International Court of Justice be called upon to decide as to grievances based upon the lack of competence or grave irregularities of procedure of judicial or arbitral organs charged with deciding the differences envisaged in the preceding paragraph.110

108  ILC Draft Convention, pp. 111–115. The notion that the Court would act as a court of cassation is repeated in the subsequent commentary by the Special Rapporteur, G. Scelle. See ILC Yearbook 1958, vol. 2, p. 11. For a comment on the genesis and impact of the ILC proposal see Reisman, “The Supervisory Jurisdiction . . .”, pp. 47–49. 109  IDI Annuaire, Brussels (1929), vol. 2, p. 304. 110  Institute de Droit International, Session of Amsterdam (1957), Resolution adopted on 24 September 1957. Text downloaded from http://www.idi-iil.org.

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Secondly, there are cases concerning the review of judgments rendered by the administrative tribunals of international organizations, in particular those of the United Nations and the International Labor Organization. While these instances also resemble the institution of cassation, they do not constitute appeals stricto sensu. In the ILO Administrative Tribunal case, the Court remarked that the advisory procedure thus brought into being “appears as serving, in a way, the object of an appeal” against the judgments of the administrative tribunal that were being challenged.111 A number of these cases have come before the Court via the advisory procedure, after the Committee on Applications for Review of Administrative Tribunal Judgments was authorized to make request to that effect, in 1955.112 In 1995 the UN General Assembly amended the Statute of the UN Administrative Tribunal in order to suppress this possibility altogether. It still exists with regard to the ILO Administrative Tribunal and it was activated for the first time very recently.113 a) Jurisdiction Although the special reference to the Court is located in the section of the Rules concerning incidental proceedings, the proceedings that are conducted in application of Article 87 are not really incidental, in the sense that they are not connected to a case that is already before the Court. As paragraph 1 of that provision makes it abundantly clear, special reference to the Court proceedings are, in fact, stand-alone proceedings giving rise to an entirely new contentious

111  ILO Administrative Tribunal, Advisory Opinion of 23 Oct. 1956, ICJ Rep. 1956, p. 84. A former President of the Court referred to this category of cases as “a delicately worked-out form of appeal” (Sir H. Waldock, “The International Court of Justice as Seen from Bar and Bench”, BYIL, vol. 54 (1983) p. 2). For comments see H. Mosler, “Article 96”, in B. Simma (Ed.), The Charter of the United Nations, A Commentary, MN 36–37, pp. 1015–1016; H.W.A. Thirlway, “Procedural law and the International Court of Justice”, in V. Lowe & M. Fitzmaurice (Eds.), Fifty Years of the International Court of Justice, Essays in Honour of Sir Robert Jennings (1996), pp. 400–405. 112  Review of UNAT Judgment No. 158, Advisory Opinion of 12 July 1973, ICJ Rep. 1973, p. 168, para. 6); Review of UNAT Judgment No. 273, Advisory Opinion of 20 July 1982, ICJ Rep. 1982, p. 327, para. 9); Review of UNAT Judgment No. 333, Advisory Opinion of 27 May 1987, ICJ Rep. 1987, p. 20, para. 9). Also relevant for this discussion are two other cases, namely: Effects of UNAT Awards, Advisory Opinion of 13 July 1954, ICJ. Rep. 1954, p. 47 and ILO Administrative Tribunal, Advisory Opinion of 23 Oct. 1956, ICJ Rep. 1956, p. 80. 113  Judgment No. 2867 of ILOAT, Advisory Opinion of 1 Feb. 2012. The request was made by the International Fund for Agricultural Development on 26 April 2010.

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case, to which all of “[t]he provisions of the Statute and of the Rules governing contentious cases shall apply.” Likewise, it will be noted that Article 87 does not constitute an independent source of jurisdiction and, in consequence, the Court’s jurisdiction to deal with such a case depends on the normal rules governing the questions of access and jurisdiction ratione materiae.114 However, Article 87 of the Rules is emphatic in the requirement that its provisions apply only when there is a treaty in force and the case is brought before the Court “in accordance” with it. The importance of this element was underlined by judge Onyeama even before the corresponding requirement had been inserted in the Rules, in the following terms: The International Court of Justice is not, in the Charter of the United Nations of which the Statute of the Court is an integral part, designated a court of appeal, and its competence to hear an appeal from some other tribunal depends entirely on the terms of the agreement of the parties to refer a case to it by way of appeal from the decision of the tribunal concerned. Whether the Court can entertain a particular appeal is therefore a matter to be settled in the light of the intention of the parties as evidenced by the express terms of the agreement, and is not, in my view, based on considerations of principle or doctrine. (ICAO Council, Separate Opinion of Judge Onyeama, ICJ Rep. 1972, p. 86)

In addition, this requirement might lead to a situation in which in the absence of such a treaty the procedure laid down in Article 87 cannot be followed, even if a different title of jurisdiction between the parties exists. Therefore, in the event that a dispute concerning a challenge to a decision rendered by an international body arises between two States and there is no treaty in existence in which a supervisory role for the ICJ is contemplated, any of the parties would be entitled to invoke the existing title of jurisdiction and bring the case before the Court. This, however, would be a regular case and not a “special reference to the Court” case under Article 87. As to the practical impact of Article 87, it has been rightly pointed out that it will largely depend on the willingness of States to include in their treaties clauses allowing for the reference to the Court of disputes of the type envisaged in that provision.115

114  Rosenne, “Interpretation . . .”, p. 156. 115  Rosenne’s Procedure, p. 184.

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b) Procedure Paragraph 1 of Article 87 contains two conditions that must be fulfilled in order to resort to the device of special reference to the Court: (one) The possibility of the matter in question being brought before the Court must be foreseen in “a treaty or convention in force;” and (two) The matter to which the case refers must have been “the subject of proceedings before some other international body” (thus excluding questions decided by domestic organs, but clearly including decisions by non-jurisdictional organs). If these two requirements are met, the same provision simply stipulates that “the provisions of the Statute and of the Rules governing contentious cases shall apply.” This rule appears to be somewhat superfluous, given that the said provisions are bound to apply in any case to all contentious cases that come before the Court and, for this reason, since the time of the PCIJ there have been doubts as to the real necessity for it. Perhaps what explains its maintenance in the Rules—lifted from Article 67, para. 1 of the 1936 version—is that, as Hudson explained it, “[t]his provision may be thought to serve the purpose of making it clear that the Court is not bound to follow the rules of procedure prevailing in the tribunal whose decision is being appealed against.”116 The only specific procedural aspect that is governed by paragraph 2 of Article 87 is the contents of the act instituting proceedings, which, as stated above, would normally be a unilateral application. The paragraph contains three formal requirements that are applicable to this document, namely: a) b) c)

The application “shall identify the decision or other act of the international body concerned;” A copy of the said decision shall be annexed to the application; and, The application shall also contain “a precise statement of the questions raised in regard to that decision or act,” it being further provided that such questions “constitute the subject of the dispute referred to the Court.”

Box # 18-13 Constraints in the exercise of the Court’s appellate jurisdiction In a declaration appended to the judgment in the ICAO Council case, judge Lachs warned that when considering its jurisdiction to entertain appeals from decisions by other tribunals the Court should exercise particular caution, due to the delicate balance of interests involved:

116  Hudson’s PCIJ, p. 294.

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Great caution and restraint have been exercised by this Court and its predecessor when ascertaining their own jurisdiction. As Judge Lauterpacht pointed out: “Nothing should be done which creates the impression that the Court, in an excess of zeal, has assumed jurisdiction where none has been conferred upon it.” (. . .) This restraint has had its raison d’être in the clear tendency not to impose more onerous obligations on States than those they have expressly assumed. However, in regard to appeals from other fora, this very criterion imposes limits on the Court’s caution in assuming jurisdiction. Indeed, the same reasons which underlie the necessity of interpreting jurisdictional clauses strictly impel one to adopt an interpretation of provisions for appeal that would lend maximum effect to the safeguards inherent in such provisions. For, as between the “lower forum” and “the court of appeal”, there exists as it were a see-saw of jurisdictional powers. Hence to apply a restrictive interpretation of rights of appeal—and thus of the powers of the “court of appeal”—would obviously entail an extensive interpretation of the jurisdictional powers of the “court of first instance”. This would in fact imply more onerous obligations on the States concerned: something which (as indicated above) international tribunals have continuously endeavoured to avoid. To restrict the rights of States to seek relief from what they deem to be wrongful decisions would to some extent, at least, defeat the very object of the institution of appeals. If that is so in general, it applies in particular to issues of jurisdiction, which, as indicated earlier, are in the international field comparable in importance to issues of substance. Thus this aspect confirms the justification for the exercise of what the Judgment describes (para. 26) as “a certain measure of supervision by the Court” (. . .). (ICAO Council, Declaration by Judge Lachs, ICJ Rep. 1972, pp. 73–74)

(iv) Remedies Article 36, paragraph 2 of the Statute states in letter (c) that declarations accepting the Court’s jurisdiction under the Optional Clause might cover legal disputes concerning “the existence of any fact which, if established, would constitute a breach of an international obligation,” and then goes on to declare in letter (d) that those acceptances may also refer to “the nature or extent of the reparation to be made for the breach of an international obligation.”

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Under this provision, reparation—which is probably the most common form of judicial redress—presupposes that there has been a breach of an international obligation that gives rise to the international responsibility of the State to which it is attributable. A contrario, Article 36, para. 2 suggests that reparation plays no role when the dispute submitted to the Court refers rather to one of the subjects mentioned in letters a) and b) of the same provision, i.e., “the interpretation of a treaty” or “any [other] question of international law.”117 To this, the fact must be added that in general international law the subject of means of redress or remedies has always been studied as part and parcel of the Law of State Responsibility.118 As a reflection, when proceedings before the ICJ are involved the question of remedies is usually predicated upon the notion that the Court will make a finding that there has been a breach of an international obligation that is attributable to one of the parties to the proceedings and has brought about injury to the other party.119 This is not always the case, however, because, like it happens often with other international tribunals, many a dispute comes before the Court in which that body is not asked to make a finding concerning the violation of any rule of law at all, but rather to clarify a legal situation or to make a legal determination on the basis of existing international law. In a case like this—which judge Gros aptly called a “contentieux de legalité,” as distinct from a “contentieux de responsabilité”—120 there will be no need for a finding that an obligation has been breached by one party, and thus no need to declare that there is an injured party or that reparation must be made. But even in cases like

117  While this provision applies only to cases that are brought before the Court under the Optional Clause, questions of judicial redress may arise in all types of cases, independently of the title of jurisdiction invoked (Ch. Brown, A Common Law of International Adjudication (2009), p. 188). The quoted language of Article 36, para. 2 has been taken here only as a point of departure. 118  Evidently, the law concerning remedies deals with substantive questions that are quite independent from the law of international adjudication. In this section the discussion is limited to remedies within the framework of the practice of the ICJ. See Brown, “A Common Law . . .”, pp. 186–187. 119  Findings as to a party having violated certain international obligations feature regularly in the operative part of the Court’s judgments. According to a recent decision, in these cases it is not necessary to include also an additional finding stating that these violations engage the State’s international responsibility ( Jurisdictional Immunities, Judgment of 3 Feb. 2012, para. 136). 120  Nuclear Tests (Australia v. France), Separate Opinion of Judge Gros, ICJ Rep. 1974, p. 277, para. 2. See also M.O. Hudson, International Tribunals-Past and Future (1944), pp. 120–121.

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these there are means of redress that can be sought and obtained by the parties to the litigation. The present section is concerned with the procedure applicable to the forms of judicial redress available in the law and practice of the ICJ, regardless of whether the case involves or not issues of State responsibility. The chapter will begin by considering the question of jurisdiction to order remedies and then will move on to describe the types of remedies most often used in litigation before the ICJ, closing with a discussion on the applicable rules of procedure. a) Jurisdiction121 It has been said that the scope of the Court’s jurisdiction to award remedies depends on the legal instrument or instruments on which the Court’s substantive jurisdiction is based.122 Conversely, the Court has stated on numerous occasions that its jurisdiction to settle the substantive aspects of a dispute extends to deciding all aspects related to remedies that may arise in the course of the proceedings. This has been understood as an affirmation by the Court of the “inherent powers” that may be inferred from its nature as a judicial body.123 In one of its most-quoted dicta ever, the Permanent Court stated the following in the Factory at Chorzów case: It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself. Differences relating to reparations, which may be due by reason of failure to apply a convention, are consequently differences relating to its application. (Factory at Chorzów, Jurisdiction, Judgment No. 8, 26 July 1927, PCIJ A 9, p. 21)124

121  See, in general, Ch.F. Amerasinghe, Jurisdiction of Specific International Tribunals (2009), pp. 164–178. 122  C. Gray, “Types of Remedies in ICJ cases: Lessons for the WTO?” in F. Weiss, (Ed.), Improving WTO Dispute Settlement Procedures, Issues and Lessons From the Practice of Other International Courts and Tribunals (2000), p. 402. 123  See Ch. Brown, “The Inherent Powers of International Courts and Tribunals”, BYIL, vol. 66 (2005), esp. at pp. 221–222 and, by the same author, A Common Law of International Adjudication (2009), pp. 55–82; A. Orakhelashvili, “Judicial Competence and Judicial Remedies in the Avena case”, LJIL, vol. 18 (2005), pp. 36–38. 124  In a subsequent phase of the same litigation, the Court reiterated this principle and said that it was not only an element of positive international law but even “a general conception of law” (Factory at Chorzów, Merits, Judgment No. 13, 13 Sept. 1928, PCIJ A 17,

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As it can be observed, the quoted statement is definite in concluding that if what is at issue before the Court is the interpretation and application of a legal rule—such as an international convention—a difference relating to reparations is a difference relating to its application. This is of fundamental importance, because virtually all jurisdictional clauses found in the “treaties and conventions in force” that are mentioned in Article 36, para. 1 of the Statute employ the formula of submitting to the Court disputes relating to or arising out of “the interpretation and application” of the treaty. Not surprisingly, there is already a long list of cases in which, the title of jurisdiction being one such treaty, the Court has found that it was invested with the necessary jurisdiction to deal with questions concerning reparations or, more generally, remedies.125 There are two aspects of the reasoning supporting this decision that are worth highlighting. First of all, the Court referred to the celebrated list of “justiciable” disputes found in both the League Covenant (Article 13) and the Statute (Article 36, para. 2, letters (a) to (d)) and suggested that disputes concerning remedial measures—i.e. those mentioned under letter (d)—were somehow “less important” than those concerning the existence of a breach of an international obligation, of which they were practically an appendage. Since Article 23, para. 1 of the Geneva Convention—the treaty invoked as a title of jurisdiction in that case—had already been found to apply to the disputes mentioned in letters (a) and (c), it was concluded that a fortiori it applied also to those mentioned in letter (d): The Covenant and the Statute mention separately, in the first place, “disputes as to the interpretation of a treaty” and, in the fourth place, those relating to “the nature or extent of the reparation”; but they also mention, in the third place, as a separate category, disputes relating to “the existence of any fact which, if established, would constitute a breach of an international obligation”. Now it is established by judgments Nos. 6 and 7 that the Court has jurisdiction to decide whether a breach of Articles 6 to 22 has taken place or not. The decision whether there has been a breach of an engagement involves no doubt a more important jurisdiction than a decision as to the nature or extent of reparation due for a breach of an p. 29). The principle was reaffirmed by the present Court in the Reparation case (Advisory Opinion of 11 April 1949, ICJ Rep. 1949, p. 184). For the likely origins of this notion see D. Shelton, “Righting Wrongs: Reparations in the Articles on State Responsibility”, AJIL, vol. 96 (2002), p. 835, note 11. 125  This list includes Fisheries Jurisdiction (Germany v. Iceland); US Hostages; Nicaragua; Vienna Convention; LaGrand; Avena and Genocide Convention (Croatia).

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international engagement the existence of which is already established. If Article 23, paragraph 1 covers the dispute mentioned in the first and third categories by the two provisions above mentioned, it would be difficult to understand why—failing an express provision to that effect—it would not cover the less important disputes mentioned in the fourth category. (Factory at Chorzów, Jurisdiction, Judgment No. 8, 26 July 1927, PCIJ A 9, p. 23)126

Secondly, the Court paid close attention to the intention of the parties, which was clearly that of precluding the possibility of protracted disputes between them. Failing to solve a dispute about remedies was thus equivalent to paving the way for further disputes: The object of these methods of obtaining redress—and that of Article 23 in particular—seems to be to avert the possibility that, in consequence of the existence of a persistent difference of opinion between the contracting Parties as to the interpretation or application of the Convention, the interests respect for which it is designed to ensure, may be compromised. An interpretation which would confine the Court simply to recording that the Convention had been incorrectly applied or that it had not been applied, without being able to lay down the conditions for the re-establishment of the treaty rights affected, would be contrary to what would, prima facie, be the natural object of the clause; for a jurisdiction of this kind, instead of settling a dispute once and for all, would leave open the possibility of further disputes. (Factory at Chorzów, Jurisdiction, Judgment No. 8, 26 July 1927, PCIJ A 9, pp. 24–25)

This argument was taken up again by the present Court in the Corfu Channel case, in reference to a resolution by the Security Council that was pivotal in assuring the respondent’s consent to litigate, on an entirely post hoc basis. The Court reaffirmed the principle that refraining from entering into the question of remedies would be tantamount to leaving open the way for new disputes: The Security Council, in its Resolution of April 9th, 1947, undoubtedly intended that the whole dispute should be decided by the Court. If, however, the Court should limit itself to saying that there is a duty to pay compensation without deciding what amount of compensation is due, the dispute would not be finally decided. An important part of it 126  This approach was criticized by judge Ehrlich in his dissenting opinion (PCIJ A 9, pp. 37–38).

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would remain unsettled. As both Parties have repeatedly declared that they accept the Resolution of the Security Council, such a result would not conform with their declarations. It would not give full effect to the Resolution, but would leave open the possibility of a further dispute. (Corfu Channel, Merits, Judgment of 9 April 1949, ICJ Rep. 1949, p. 26)127

Several years later, at the merits phase of the Nicaragua case, in which the Court was applying Article 53 of the Statute because the respondent failed to appear, it adopted a concise formula to refer to the general principle stated for the first time in Chorzów: In order to decide on submissions [concerning compensation and payment of damages], the Court must satisfy itself that it possesses jurisdiction to do so. In general, jurisdiction to determine the merits of a dispute entails jurisdiction to determine reparation. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 142, para. 283)

In subsequent cases submitted to adjudication under the Optional Protocol to the 1963 Vienna Convention on Consular Relations, the Court remarked that a dispute as to whether a specific form of relief sought by a party is a remedy available under that instrument is a dispute “[a]rising out of the application of the Convention.”128 More generally, the Court also stated that “[a] dispute regarding the appropriate remedies for the violation of the Convention alleged by [a State party] is a dispute that arises out of the interpretation or application of the Convention and thus is within the Court’s jurisdiction.”129 Thus, the general foundation for the Court’s remedial jurisdiction, which was originally canvassed only with regard to reparation in the form of compensation, was gradually extended to all conceivable types of remedial measures. Indeed, in one of the cases just mentioned the Court stated in very general terms that:

127  The similarities between these the Chorzów Factory and the Corfu Channel cases with regard to the treatment of the Court’s jurisdiction to award compensation were duly noted by Sir H. Lauterpacht, in the context of his discussion of the principle of effectiveness, as applied to the jurisdiction of the Court (The Development of International Law by the World Court (1958), pp. 246–247). 128  Vienna Convention, Provisional Measures, Order of 9 April 1998, ICJ Rep. 1998, p. 256, para. 31. 129  LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, p. 485, para. 48.

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Where jurisdiction exists over a dispute on a particular matter, no separate basis for jurisdiction is required by the Court to consider the remedies a party has requested for the breach of the obligation. (LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, p. 485, para. 48)

As it can be observed, this is but a restatement of the Chorzów principle, with few but significant differences: on the one hand, instead of “reparations” the Court preferred to use the term “remedies,” which arguably has a larger scope; on the other, the proposition involved in that dictum is no longer confined only to disputes concerning the lack of observance of a treaty but applies to all types of cases, regardless of the subject-matter of the dispute and the basis of jurisdiction invoked. What remains untouched from the classical formula is the requirement that there must have been a breach of an international obligation, something that, as explained below, may be missing when the case refers to matters other than those involving issues of State responsibility. In cases in which the jurisdiction is founded upon the Optional Clause, the Court has also had occasion to note that the States making a declaration “[e]xpressly accep[t] the Court’s jurisdiction in respect of disputes concerning ‘the nature or extent of the reparation to be made for the breach of an inter­ national obligation’ ” and that, failing a reservation containing any “[r]estriction of the powers of the Court under Article 36, paragraph 2 (d), of its Statute,” the States in question may be held to have accepted “the same obligation,” as stated in that provision.130 The Court has also had occasion to exercise its remedial jurisdiction in cases submitted by special agreement, and in at least one instance it has suggested that this type of competence can be inferred from the conduct of the parties, under the doctrine of forum prorogatum. In the Corfu Channel case, in which an initial application by the UK was later replaced by a special agreement jointly notified to the Court by the two parties, the Court stated as follows: Neither the Albanian nor the United Kingdom Agent suggested in any way that the Special Agreement had limited the competence of the Court in this matter to a decision merely upon the principle of compensation or that the United Kingdom Government had abandoned an important part of its original claim. (. . .)

130  Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 142, para. 283. Notwithstanding this comment by the Court, no declaration under the Optional Clause ever appears to have contained such a restriction.

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The subsequent attitude of the Parties shows that it was not their intention, by entering into the Special Agreement, to preclude the Court from fixing the amount of the compensation. (. . .) In paragraph 52 of its Counter-Memorial, the Albanian Government stated that it had no knowledge of the loss of human life and damage to ships, but it did not contest the Court’s competence to decide this question. In the Rejoinder, paragraph 96, that Government declared that, owing to its claim for the dismissal of the case, it was unnecessary for it to examine the United Kingdom’s claim for reparation. (. . .) It reserves the right if need be, to discuss this point which should obviously form the subject of an expert opinion. Having regard to what is said above as to the previous attitude of that Government, this statement must be considered as an implied acceptance of the Court’s jurisdiction to decide this question. (Corfu Channel, Merits, Judgment of 9 April 1949, ICJ Rep. 1949, p. 25)131

There are certain collateral aspects connected to the exercise of the Court’s remedial jurisdiction. Chiefly among them are the following: (i) The Court’s jurisdiction over the question of remedies has a wide scope and, in particular, extends to all aspects involved in a claim for reparation. In Chorzów, referring to specific aspects covered by the submissions of the applicant, such as the exact amount of the indemnities to be paid by the respond­ ent or the method of payment, the Permanent Court stated that its “[r]ight to deal with these points and to grant or refuse the German Government’s claim, follows from the fact of its jurisdiction to hear the claim for reparation.”132 Similarly, in subsequent cases in which it has found that one of the parties is entitled to reparation in the form of pecuniary compensation, the Court has taken for granted that it has the necessary competence to determine, failing agreement between the parties, “the form and amount of compensation.”133 (ii) In several cases the Court has made it clear that questions pertaining to remedies belong to the merits in their own right. In the Vienna Convention 131  Another special agreement case in which the question of remedies arose is GabcikovoNagymaros. In the relevant provision in that instrument, the parties requested the Court “[t]o determine the legal consequences, including the rights and obligations for the Parties, arising from its Judgment [on the substantive questions submitted to it]” ( Judgment of 25 Sept. 1997, ICJ Rep. 1997, p. 12, para. 2). This provision allowed the Court to devise its own remedy. 132  Chorzów Factory ( Jurisdiction), Judgment No. 8, 26 July 1927, PCIJ A 9, p. 32. 133  See further Box # 18-15.

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case, in which the applicant was seeking restitution, the Court remarked in its order on provisional measures that “[t]he existence of the relief sought by Paraguay under the Convention can only be determined at the stage of the merits.”134 Then, in the Avena case, which also concerned consular assistance, the Court dealt with a jurisdictional objection made by the respondent according to which the Court lacked jurisdiction to entertain a claim concerning the specific remedy of restitutio in integrum put forward by the applicant. After recalling the principle that its jurisdiction on the merits of a dispute entails jurisdiction to consider remedies, as stated in LaGrand, the Court went on to say that [w]hether or how far the Court may order the remedy requested by Mexico are matters to be determined as part of the merits of the dispute. The third objection of the United States to jurisdiction cannot therefore be upheld. (Avena, Merits, Judgment of 31 March 2004, ICJ Rep. 2004, p. 33, para. 34)

(iii) Essentially the same may be said of questions of admissibility, as is shown by the subsequent Genocide Convention (Croatia) case. In that case the applicant requested the Court to declare that Serbia was under an obligation to provide it with certain information concerning missing persons and generally to cooperate with its authorities “[t]o jointly ascertain the whereabouts of the said missing persons or their remains.”135 In the Court’s view, this matter was presented “[i]n terms of an appropriate remedy for a continuing breach of the Convention by Serbia”.136 Serbia entered an objection with regard to the relevant submission and the Court found that this objection had been presented “[a]s a matter of mootness of the claim, a question of admissibility.” It then stated the following: However, the question what remedies might appropriately be ordered by the Court in the exercise of its jurisdiction under Article IX of the Convention is one which is necessarily dependent upon the findings that the Court may in due course make of breaches of the Convention by the Respondent. As a matter which is essentially one of the merits, and one dependent upon the principal question of responsibility raised by 134  Vienna Convention, Provisional Measures, Order of 9 April 1998, ICJ Rep. 1998, p. 256, para. 33. 135  Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, p. 463, para. 137. 136  Ibid., para. 138.

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the claim, this is not a matter that may be the proper subject of a preliminary objection. This conclusion is reinforced by the consideration that, in this particular case, in order to decide whether an order in the terms of Croatian submission 2 (b) would be an appropriate remedy, the Court would have to enquire into disputed matters of fact. This it would have to do in order to establish whether or not, and in what circumstances, the co-operation as to the provision of information between the two States mentioned by Serbia has taken place, and whether this remedy might be held as resulting from the establishment of responsibility for breaches of the Convention. These issues are for the merits, and the Court concludes that the preliminary objection submitted by Serbia, so far as it relates to Croatian submission 2 (b), must be rejected. (Genocide Convention (Croatia), Preliminary Objections, Judgment of 18 Nov. 2008, ICJ Rep. 2008, pp. 463–464, para. 139)

Interestingly, the Court decided to reject the objection straightaway, rather than declaring that it did not possess, in the circumstances of the case, “an exclusively preliminary character,” as expressly authorized by Article 79, para. 9 of the Rules.137 This may be taken as a strong indication that for the Court the subject of remedies is a matter of substance, and as such the party interested in disputing its appropriateness in a given case will do well to try that avenue as a defence on the merits rather than as a preliminary objection. (iv) The well-established non ultra petita rule—which is fully applicable to litigation before the Court—commands that the Court must not award as reparation more than what the claimant party requested.138 Thus, the submissions of the parties on the question of remedies effectively set a limit to what the Court may do in exercise of its remedial jurisdiction. The Court can always grant a remedy different than that requested by a party, but it must be something less stringent than what the latter initially requested and not something demanding a higher or more burdensome standard of behaviour. If, for instance, a party has limited itself to request a declaratory relief, it would be unbecoming for the Court to grant the remedy of compensation straightaway, or to grant restitution when compensation alone was requested.139

137  This could not have happened in Avena, because the jurisdictional objections made by the respondent in that case were not presented as preliminary objections but as a plea in bar. See Chapter 12, c). 138  On the scope of this rule see Chapter 7, text to notes 61 and 62. 139  Amerasinghe, “Jurisdiction of Specific . . .”, pp. 177–178.

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b) Types of Remedies Reparation is the classic relief awarded by international tribunals, and its standard manifestations have always been restitution and compensation, with the subsequent addition of satisfaction, a particular form of remedy that sometimes adopts the form of a declaratory judgment.140 In modern practice before the ICJ, more sophisticated remedial measures can also be identified, such as cessation, guarantees of non-repetition and consequential orders.141 It is to be stressed that a party making a claim for remedies is free to ask for a plurality of them, just as the Court, in dealing with the case, is free to choose among different remedial measures those that are the most appropriate in the circumstances of the case. A party can even modify its request for remedies according to the evolution of the situation that gave rise to the proceedings. A good example is that of Paraguay in the Vienna Convention case, in which it originally claimed the remedy of restitution. After the respondent ignored a consequential order or injunction made by the Court in the guise of a provisional measure, Paraguay adapted its request and went on to request different remedies, in particular “a declaration of the United States’ liability, an order of non-repetition of such acts and reparation in the form of compensation and satisfaction”142 Additionally, the Court is also entitled to fashion its own remedy—subject always to the non ultra petita rule—as demonstrated in the recent cases concerning consular protection.143 In general, international law grants a large measure of latitude in this matter to the tribunal charged with settling a dispute. As stated in the authoritative US Restatement of the Law: Principles of international law governing remedies are not rigid or formalistic and give international tribunals wide latitude to develop and shape remedies, but the tribunal is usually restricted to measures proposed by the parties.144 140  Brown, “A Common Law . . .”, p. 190. 141  It is instructive to recall that as early as 1930 the Harvard Research had identified most of the remedies listed here as special forms of reparation (J.P. Grant & C. Barker (Comp.), The Harvard Research in International Law: Original Materials (2008), vol. 1, Comment to Article 1, p. 142). 142  ICJ Pleadings, Vienna Convention, p. 74. This request was included in an “Amended Application” submitted along with the Memorial. 143  For a comment see Higgins, “Remedies . . .”, p. 1355. 144  “Restatement . . .”, vol. 2, p. 342. On this see also F.A. Mann, “The Consequences of an International Wrong in International and National Law”, BYIL, vol. 48 (1976–1977), p. 10.

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The Court has also noted that the appropriateness of a given remedy must be considered in light of the particular circumstances of each case, as not all violations of a given provision in a treaty would warrant the same remedy: It is no doubt the case, as the United States points out, that Article 36 of the Vienna Convention imposes identical obligations on States, irrespective of the gravity of the offence a person may be charged with and of the penalties that may be imposed. However, it does not follow therefrom that the remedies for a violation of this Article must be identical in all situations. While an apology may be an appropriate remedy in some cases, it may in others be insufficient. (LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, p. 489, para. 63)145

Some years later the Court returned to this idea in the Avena decision, in which it stated the following, using language taken from the venerable Chorzów precedent: What constitutes “reparation in an adequate form” clearly varies depending upon the concrete circumstances surrounding each case and the precise nature and scope of the injury, since the question has to be examined from the viewpoint of what is the “reparation in an adequate form” that corresponds to the injury. (Avena, Merits, Judgment of 31 March 2004, ICJ Rep. 2004, p. 59, para. 119)146

Box # 18-14 Remedies in the ILC’s 2001 Articles on State Responsibility147 It is appropriate to recall the treatment that the topic of remedies received in Part II of the ILC’s Articles on State Responsibility, under the general banner of “Legal consequences of an internationally wrongful act”.148 145  On this see Brown, “A Common Law . . .”, pp. 192–193. 146  Reaffirmed in the Pulp Mills case, in which the Court applied this principle to a claim for restitution (Merits, Judgment of 20 April 2010, ICJ 2010, pp. 103–104, para. 273). 147  For a thorough analysis see D. Shelton, “Righting Wrongs: Reparations in the Articles on State Responsibility”, AJIL, vol. 96 (2002), pp. 833–856. 148  The definitive text of the 2001 ILC Articles, along with commentaries [“ILC Articles”], can be found in ILC Yearbook (2001), pp. 26–143. An initial version of these provisions was adopted provisionally by the ILC in 1993. For the text see ILC Yearbook (1993), pp. 53–83.

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In the first place, it is apposite to recall the opinion expressed by the Special Rapporteur, James Crawford, when introducing his Third Report, the bulk of which focused on the legal consequences of an internationally wrongful act of a State. At a later stage this became the subject of Part II of the Articles: The draft articles, although they cover a field which might be described as “judicial remedies”, are generally formulated in terms of rights and obligations of States. In many national legal systems, equivalent provisions would more naturally be expressed in terms of the powers of the court with respect to remedies. This approach is not possible in a system where there is no a priori right to a court, and where a wide variety of courts, tribunals and other bodies may be faced with issues of responsibility. Despite these differences, the language of national law (the so-called “private law analogy”) quite often creeps into international judicial decisions.149 The most directly relevant provisions in Part II of the Articles concerning remedies are Articles 29 to 37, which contain a thorough identification and systematization of the principal remedies available to States in contemporary international law. In particular, according to the Articles, apart from a continued duty of performance with respect to the obligation that has been breached (Article 29), the major legal consequences of an internationally wrongful act are cessation and non-repetition (Article 30) and, if injury has been caused, reparation (Article 31). According to Article 34 the reparation must be full and might adopt three distinct forms, namely, restitution, compensation and satisfaction. While it is stated that these can be present “either singly or in combination,” satisfaction will take place “insofar as [the injury] cannot be made good by restitution or compensation” and, in turn, compensation will be in order only “insofar as [the] damage [caused] is not made good by restitution.” Basic rules concerning each of these modalities of reparation are also included in Articles 35 (restitution), 36 (compensation) and 37 (satisfaction).150

149  Doc. A/CN.4/507, 15 March 2000, ILC Yearbook (2000), vol. II, Part 1, p. 13. 150  The reader is directed to the valuable commentary to each article, in which the ILC, with its customary proficiency and precision, expounds upon the rationale, scope and meaning of the rules involved (J. Crawford, The International Law Commission’s Articles on State Responsibility (2002), pp. 194–234).

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Finally, it is interesting to observe that on the first occasion on which the International Tribunal for the Law of the Sea faced a request for remedies, it liberally quoted the ILC Draft Articles, that were then still under development. It stated the following in this regard: Reparation may be in the form of “restitution in kind, compensation, satisfaction and assurances and guarantees of non-repetition, either singly or in combination” (article 42, paragraph 1, of the Draft Articles of the International Law Commission on State Responsibility). Reparation may take the form of monetary compensation for economically quantifiable damage as well as for non-material damage, depending on the circumstances of the case. The circumstances include such factors as the conduct of the State which committed the wrongful act and the manner in which the violation occurred. Reparation in the form of satisfaction may be provided by a judicial declaration that there has been a violation of a right. (ILTOS, The M/V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea) Judgment of 1 July 1999, Merits, para. 171)

1) Restitution151 Restitution appears to be at the top of the hierarchy of remedies in international law.152 It has been remarked that this primacy does not refer to the frequency with which restitution is resorted to, but rather to the fact that it is the remedy better suited to restore the claimant to the status it had prior to the commission of the internationally wrongful act.153 Restitution in kind consists basically in restoring the situation that existed before the wrongful act was committed. Traditionally, a distinction has been drawn between material and legal restitution. While the former would be concerned with the “restoration of objects unlawfully seized or the release of persons unlawfully arrested or detained, the evacuation of territory illegally occupied, etc;”154 the latter would denote “the elimination of the illegal act, for

151  See Arangio Ruiz’s Preliminary Report (ILC Yearbook (1988), vol. II, Part. 1, pp. 21–41). For the treatment of restitution in the 2001 Articles see Crawford’s ILC Articles, pp. 213–217. See also Brown, “A Common Law . . .”, pp. 195–198. 152  Amerasinghe, “Jurisdiction of Specific . . .”, p. 178. 153  Brown, “A Common Law . . .”, p. 191. 154  Haasdijk, “The Lack of Uniformity . . .”, p. 251.

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example when a state is ordered to repeal or alter certain laws, administrative acts or court decisions.”155 In the Chorzów case, the PCIJ referred to this concept when it undertook the formulation of what it called “[t]he guiding principles according to which the amount of compensation due may be determined”—to which the present Court was later to refer as “[t]he essential forms of reparation in customary law.”156 Two essential features of the remedy of restitution are apparent in the Court’s often-quoted formulation: on the one hand, that restitution in kind is as a matter of legal principle the primary form of reparation, and, on the other, that at the same time it is frequently unavailable or inadequate.157 In such cases, resort must be had to other types of remedies:158 The essential principle contained in the actual notion of an illegal act—a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals—is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.159 Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payments in place of it—such are the principles which should serve to determine the amount of compensation due for an act contrary to international law. (Factory at Chorzów, Merits, Judgment No. 13, 13 Sept. 1928, PCIJ, A 17, p. 47)160

155  Ibid. 156  Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, p. 198, para. 152. 157  ILC Articles, Commentary to Art. 36, para. (3), in Crawford’s ILC Articles, p. 218. However, the view has been expressed that the Court’s case law suggests certain uncertainty with regard to both, the primacy and the availability of restitution in international law, as attested by the Vienna Convention case (Gray, “Types of Remedies . . .”, p. 404). 158  On this see ILC Articles, Commentary to Art. 35, para. (3), ibid., pp. 213–214. See also C. Gray, “The Choice between Restitution and Compensation”, EJIL, vol. 10 1999, pp. 413–423. 159  This “broad principle” was reaffirmed by the current Court—without quoting from Chorzów—in Review of UNAT Judgment No. 158, Advisory Opinion of 12 July 1973, ICJ Rep. 1973, p. 197, para. 65. 160  In the Gabcikovo-Nagymaros case, the Court underlined the importance that the savings clause contained in this passage (“as far as possible”) had in the context of the case ( Judgment of 25 Sept. 1997, ICJ Rep. 1997, p. 80, para. 150).

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As for the present Court, in the Genocide Convention (Bosnia) case it stated that the injured State is entitled to obtain compensation for the damage caused by an internationally wrongful act only if restitutio in integrum is not possible.161 In the subsequent Pulp Mills case, the Court elaborated on this concept: The Court recalls that customary international law provides for restitution as one form of reparation for injury, restitution being the reestablishment of the situation which existed before occurrence of the wrongful act. The Court further recalls that, where restitution is materially impossible or involves a burden out of all proportion to the benefit deriving from it, reparation takes the form of compensation or satisfaction, or even both.162 (Pulp Mills, Merits, Judgment of 20 April 2010, ICJ Rep. 2010, p. 103, para. 273)

Additionally, the Court also remarked that, like other forms of reparation, “restitution must be appropriate to the injury suffered, taking into account the nature of the wrongful act having caused it.”163 This is only the result of applying to this form of remedy the above-quoted dicta in Chorzów and Avena as to what constitutes “reparation in an adequate form.” Restitution as a remedy has not featured often in cases before the Court, with the notable exceptions of the Passage through the Great Belt and GabcikovoNagymaros cases, although the first of these was discontinued before reaching the merits phase.164 In contrast, this form of remedy has a venerable history in the field of international arbitration, as recalled by the ILC in its commentary to the relevant provision of the 2001 Articles.165 In one such arbitration, the Tribunal clarified the important point that, in contrast with the remedy of cessation, in a case in which material restitution of an object is possible

161  Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 233, para. 460. The Court quoted here from the cases Gabčíkovo-Nagymaros and Construction of a Wall, as well as from Article 36 of the 2001 ILC’s Articles. 162  The second of these elements (that other remedies are in order where restitution involves “a burden out of all proportion to the benefit deriving from it”) is clearly inspired by the formulation used in Article 35 of the ILC Articles on State Responsibility. This is believed to be the first occasion in which an international tribunal has provided precedential authority for this notion. 163  Pulp Mills, Judgment of 20 April 2010, ICJ Rep. 2010, p. 104, para. 274. 164  For a discussion see Shaw, “A Practical Look . . .”, p. 24. 165  Crawford’s ILC Articles, pp. 214–217.

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“the expiry of a treaty obligation may not be, by itself, an obstacle for ordering restitution.”166 A final aspect concerning restitution is that in certain cases this remedy will merge with that of cessation. In Navigational Rights, the Court recalled that “the cessation of a violation of a continuing character and the consequent restoration of the legal situation constitute a form of reparation for the injured State.”167 The Court did this when dealing with Costa Rica’s request for reparation, because this was presented as including a request for the “restoration of the prior situation.” As it can be observed, the Court was equating here to a certain extent the remedy of restitution (“restoration of the legal situation”) to one of the consequences of the remedy of cessation and as a result, it is suggested that in the future States would do well in confining their claims for reparations to more traditional concepts like compensation or satisfaction. If this precedent is followed in future cases—at least with regard to situations involving continuing violations—claims for restoration or restitution might simply be merged with claims for cessation.168 2) Compensation169 Compensation has often been called “reparation by equivalent.” This is the expression preferred by the ILC’s fourth Special Rapporteur on the topic of State Responsibility, G. Arangio Ruiz, whose definition of the term is remarkable for its precision: In general terms, reparation by equivalent consists of the payment of a sum of money compensating the injured State for prejudice not remedied by restitution in kind and not covered by other forms of reparation in a broad sense.170 166  Rainbow Warrior (New Zealand/France), UNRIAA, vol. 20 (1990), p. 270, para. 113. 167  Navigational Rights, Judgment of 13 July 2009, ICJ Rep. 2009, p. 267, para. 149 (emphasis added). 168  On the relationship between cessation and restitution see ILC Articles, Commentary to Art. 30, paras. (7)–(8), Crawford’s ILC Articles, pp. 197–198. See also certain pertinent comments by the Arbitral Tribunal in the Rainbow Warrior case (Rainbow Warrior (New Zealand/France), UNRIAA, vol. 20 (1990), pp. 269–270, para. 113). In this case the distinction between the remedies of restitution and cessation proved crucial for the decision concerning the remedies requested by New Zealand. 169  Brown, “A Common Law . . .”, pp. 198–208. 170  Arangio Ruiz’s Second Report (ILC Yearbook 1989, vol. II, Part. 1, p. 8, para. 20). The exhaustive commentary on compensation included in this Report runs from page 8 to page 30.

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Noticeably, this definition does not require that the prejudice caused is of a material nature. It is therefore generally accepted that monetary compensation is available for both, material and non-material damages.171 Although pecuniary or monetary compensation is probably the most commonly sought form of remedy in international practice, it has not often featured before the ICJ, where it has made an appearance in a handful of cases in which the Court has found that there has been a violation of an international obligation and the injured party has requested an award of damages.172 In cases in which no damages are asserted, no claim for pecuniary compensation will succeed, for, as the Court recalled in the Corfu Channel case, “[c]ounsel for Albania discussed the question whether a pecuniary satisfaction was due. As no damage was caused, he did not claim any sum of money.”173 Likewise, if the injured party fails to request an award of monetary compensation and, as a consequence, no arguments in this regard are made during the proceedings, it is likely that no compensation will be ordered by the tribunal.174

Box # 18-15 Compensation as a remedy: A review of the practice175 The Court has dealt with issues concerning compensation in a number of cases, including the first contentious cases ever to come before both the PCIJ and the ICJ.176 The cases listed in this Box are those in which the Court has effectively considered or ordered the payment of compensation in its decisions on the merits. Cases are excluded in which the parties reached agreement among themselves

171  Rainbow Warrior (New Zealand/France), UNRIAA, vol. 20 (1990), p. 271, para. 115 and p. 272, para. 118. 172  ILC Articles, Commentary to Article 36, para. (2), in Crawford’s ILC Articles, p. 218. 173  Corfu Channel, Merits, Judgment of 9 April 1949, ICJ Rep. 1949, p. 26. 174  Rainbow Warrior (New Zealand/France), UNRIAA, vol. 20 (1990), p. 272, paras. 119–120. 175  For a comprehensive survey of international practice concerning compensation, including arbitral decisions, see ILC Articles, Commentary to Article 36, in Crawford’s ILC Articles, pp. 218–230. See also J. Charney, “Is international law threatened by multiple international tribunals?”, RC, vol. 271 (1998), pp. 265–284. 176  While in most of the cases included in this Box the Court used the term “compensation” in the dispositif, on a few occasions it employed “reparation” (notably, in the US Hostages and Nicaragua cases). For the different meanings attributed to the term “compensation” see S. Haasdijk, “The Lack of Uniformity . . .”, pp. 252–254.

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on the modalities of reparation, a situation that led to the discontinuance of the case before it reached the stage of the merits (this situation occurred, among others, in Passage through the Great Belt and Phosphates in Nauru cases). It will also be noted that in many of the cases listed the Court granted other remedies in addition to pecuniary compensation. (i) Cases in which compensation was ordered a) S/S. Wimbledon This case was submitted to the PCIJ by means of an application by the United Kingdom, France, Italy and Japan against Germany. France was the only applicant that requested damages for injuries relating to an alleged violation of certain provisions of the Treaty of Versailles. Having found that the respondent was responsible for certain losses caused by its conduct, the Court concluded that it was bound to compensate the French Government and ordered Germany to pay to the former the sum of 140,749 francs with 35 cents ( Judgment No. 1, 17 August 1923, PCIJ A 1, pp. 30–33). b) Corfu Channel In its decision on the merits in this case the present Court found that Albania was responsible for certain actions of its authorities and for the resulting damage cause to the UK and decided to “[r]eserve for further consideration the assessment of the amount of compensation” (Merits, Judgment of 9 April 1949, ICJ Rep. 1949, p. 36). By an order made on the same day, the Court regulated the initial phase of the procedure on this subject, which consisted of two exchanges of written pleadings (Order of 9 April 1949, ICJ Rep. 1949, p. 171). The same decision foresaw that the further procedure would be regulated by an order made by the acting President of the Court. These derivative proceedings, in which Albania defaulted, included a hearing and a further report by a committee of experts and concluded with a new judgment in which the Court fixed the amount of compensation that Albania had to pay in 843,947 sterling pounds (Compensation, Judgment of 5 Dec. 1949, ICJ Rep. 1949, p. 244).177

177  The actual payment of the compensation by Albania became intermingled with the subsequent Monetary Gold case, in which the Court declared itself to be lacking

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c) Diallo (Republic of Guinea v. DRC) In this case of diplomatic protection, the Court found that a judicial finding of the violations committed by the respondent would be insufficient and that, taking into account both “the fundamental character of the human rights obligations breached” and the applicant’s claim for remedies, reparation should take the form of compensation ( Judgment of 30 Nov. 2010, ICJ Rep. 2010, p. 691, para. 161). The Court agreed to a contention by the applicant to the effect that the decision on the exact amount of compensation should be deferred for a later date “in order for the Parties to reach an agreed settlement on that matter.” (Ibid., para. 276). While this is in keeping with the practice followed in analogous cases, this is the first time that the Court has set a definite deadline (six months following the delivery of the judgment) for the expiry of this post-adjudicative negotiation process. On 19 June 2012 the Court rendered its decision ordering the DRC to pay Guinea US $95,000 as compensation for injury, both non-material and material, suffered by Mr. Diallo. Invoking as authority decisions by several international adjudication bodies, the Court based its assessment under both heads of damage on the concept of equity ( Judgment of 19 June 2012, paras. 57, 61).178 The Armed Activities (DRC v. Uganda) case should also be mentioned here, because in its judgment on the merits the Court made findings on violations of international norms by both parties (the respondent State having entered counter-claims that were found admissible) and, as a consequence, imposed a duty to make reparations on both of them ( Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 257). The derivative proceedings concerning this question that were foreseen in the decision had not begun by the time this work went into printing. (iii) Other cases There have also been cases in which compensation was ordered but the proceedings were discontinued before a precise amount is fixed, such as:

jurisdiction in 1954 (Preliminary Question, Judgment of 15 June 1954, ICJ Rep. 1954, p. 19). The payment finally took place in 1992. See ICJ Yearbook (1995–1996), pp. 256–257; G. Marston (Ed.), “United Kingdom Materials on International Law”, BYIL, vol. 63 (1992), pp. 781–782. 178  For a comment see “Bordin’s Procedural Developments”, LPICT, vol. 12 (2013), pp. 107–111.

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• Chorzów Factory (Merits, Judgment No. 13, 13 Sept. 1928, PCIJ A 17, p. 64; Order of 25 May 1929, PCIJ A 19, p. 10); • US Hostages (Merits, Judgment of 24 May 1980, ICJ Rep. 1980, p. 44, para. 95; Order of 12 May 1981, ICJ Rep. 1981, p. 45) • Nicaragua (Merits, Judgment of 17 June 1986, ICJ Rep. 1986, p. 149, para. 292;

Order of 18 Nov. 1987, ICJ Rep. 1987, p. 189; Order of 26 Sept. 1991, ICJ Rep. 1991, p. 47);179

In a number of cases one of the parties requested the remedy of compensation but the Court refused to grant it, for a variety of reasons. They are:

• Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), (Merits, Judgment of 25 July 1974, ICJ Rep. 1974, pp. 203–205); • Genocide Convention (Bosnia) (Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, pp. 233–234, para. 462); • Navigational Rights (Costa Rica v. Nicaragua) ( Judgment of 13 July 2009, ICJ Rep. 2009, pp. 266–267. 147–149) • Pulp Mills (Argentina v. Uruguay), ( Judgment of 20 April 2010, ICJ Rep. 2010, p. 104, para. 276.

Finally, a case that defies any attempt at classification in this regard is that of Gabcikovo-Nagymaros (Hungary/Slovakia), which was submitted to the Court by special agreement. In its judgment on the merits, the Court concluded that both Parties committed internationally wrongful acts against each other and “noted that those acts gave rise to the damage sustained by the Parties; consequently, Hungary and Slovakia are both under an obligation to pay compensation and are both entitled to obtain compensation” ( Judgment of 25 Sept. 1997, ICJ Rep. 1997, p. 81, para. 152). The Court also observed that “[g]iven the fact . . . that there have been intersecting wrongs by both Parties . . . the issue of compensation could satisfactorily be resolved in the framework of an overall settlement if each of the Parties were to renounce or cancel all financial claims and counter-claims ( Judgment of 25 Sep. 1997, ICJ Rep. 1997, p. 81). According to the special agreement, upon the rendering of the Court’s decision the parties were to enter into negotiations in order to determine “the

179  See an interesting study on the avenues to make this decision effective in M.E. O’Connell, “The Prospects of enforcing monetary judgments of the ICJ: A study of the Nicaragua’s judgment against the United States”, Virginia JIL, vol. 30 (1990), pp. 891–940.

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modalities of its execution.” Failing this, either party was entitled to “[r]equest the Court to render an additional Judgment to determine the modalities for executing its Judgment.” On 3 September 1998 Slovakia invoked this provision and filed a request for an additional judgment. On 7 October of the same year, the Court announced that Hungary was to file a written statement on that request by December of the same year.180 No further steps in these proceedings have been reported since then.

As stated by the PCIJ in Chorzów, compensation is normally sought in cases in which restitution proves to be impossible, and to that extent it may be said to be a remedy of an essentially residual nature. In the same case, the Court recognized the existence of a principle of international law according to which “the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured State have suffered as a result of the act which is contrary to international law.”181

Box # 18-16 Compensation for non-material damage: Criteria In Diallo the ICJ dealt with a claim for compensation under the heading of nonmaterial damage. The Court made a general reference to the case law of other international bodies requiring the use of equitable considerations in this context but did not elaborate on the reasoning process that led it to award the applicant an amount that was considerably less than what it had requested (less than one per cent of that claim, in the calculation of a member of the Court). In a declaration appended to the judgment, judge Greenwood made the following points concerning this question: 7. (. . .) An award of compensation is plainly required under th[e] heading [of non-material or moral damage]. The Judgment (at para. 18) cites the Opinion of the Umpire in the Lusitania cases (RIAA, Vol. VII, p. 32) that injury for such damage is recoverable in international law. That Opinion adds that “[s]uch damages are very real, and the mere fact that they are

180  ICJ Press Release 1998/31, 7 Oct. 1998. 181  Factory at Chorzów, Merits, Judgment No. 13, 13 Sept. 1928, PCIJ A 17, pp. 27–28. Reaffirmed in Diallo-Compensation, Judgment of 19 June 2012, ICJ Rep. 2012, p. 331, para. 13.

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difficult to measure or estimate by money standards makes them none the less real” (p. 40). The nature of such damage means that specific evidence cannot be required and that the assessment of compensation can only be based upon equitable principles. Nevertheless, just as the damages are no less real because of the difficulty of estimating them, so the determination of compensation should be no less principled because the task is difficult and imprecise. What is required is not the selection of an arbitrary figure but the application of principles which at least enable the reader of the judgment to discern the factors which led the Court to fix the sum awarded. Moreover, those principles must be capable of being applied in a consistent and coherent manner, so that the amount awarded can be regarded as just, not merely by reference to the facts of this case, but by comparison with other cases. 8. As this is the first occasion on which the Court has had to assess damages since the Corfu Channel case (. . .) it is entirely appropriate that the Court, recognizing that there is very little in its own jurisprudence on which it can draw, has made a thorough examination of the practice of other international courts and tribunals, especially the main human rights jurisdictions, which have extensive experience of assessing damages in cases with facts very similar to those of the present case. International law is not a series of fragmented specialist and self-contained bodies of law, each of which functions in isolation from the others; it is a single, unified system of law and each international court can, and should, draw on the jurisprudence of other international courts and tribunals, even though it is not bound necessarily to come to the same conclusions. 9. A study of those judgments, however, shows that the sums awarded for moral damage are usually quite small. A few examples must suffice. So far as detention is concerned, the European Court of Human Rights in Al-Jedda v. United Kingdom (Grand Chamber, Application No. 27021/08, Judgment No. 27021/08) considered a figure of €25,000 (equivalent to approximately US$36,000 at the rate of exchange on the date of that Judgment) sufficient for a detention which lasted more than three years (Judgment of 7 July 2011, 147 International Law Reports 107). In Lupsa v. Romania (Application No. 10337/04, Judgment of 8 June 2006), the same Court considered that a sum of €15,000 (approximately US$19,000 at the rate of exchange on the date of that Judgment) was equitable in respect of both moral and material damage in the case of a man who was unlawfully expelled from the respondent State after residing there for fourteen years, during which

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he had founded a family and established a business in the country. The Inter-American Court of Human Rights in Gutiérrez-Soler v. Colombia (Judgment of 12 September 2005) awarded US$100,000 to a man who had been tortured into signing a false confession, persecuted for an offence he had not committed and separated from his family for so long that he lost all contact with his child for several years. (Diallo-Compensation, Judgment of 19 June 2012, Declaration by Judge Greenwood)182

3) Satisfaction183 Under the banner of satisfaction two different concepts are usually considered in the Law of State Responsibility: on the one hand, the judicial remedy of declaratory relief that can be granted by an international tribunal dealing with a dispute; and on the other, a measure of satisfaction as a form of reparation owed by a State to another State, which can also be ordered judicially. Judicial Declarations as a Form of Satisfaction It was stated above that one of the constituent elements of international responsibility is a determination that an international obligation has been breached. In the context of litigation before the ICJ, this determination normally assumes the form of a declaration included in the judgment deciding the merits of the case. To that extent, it may be said that every remedial decision rendered by the Court presupposes a decision that is at least partially declaratory. As the ILC put it: Any court or tribunal which has jurisdiction over a dispute has the authority to determine the lawfulness of the conduct in question and to make a declaration of its findings, as a necessary part of the process of determining the case.184 182  See also, in the same case, the separate opinions of the judges ad hoc appointed by the parties, judge Mahiou (Guinea) and judge Mampuya (DRC). 183  Haasdijk, “The Lack of Uniformity . . .”, pp. 255–257; C. Barthe-Gay, “Reflexions sur la satisfaction en droit international”, AFDI, vol. 49 (2003), pp. 105–128. 184  ILC Articles, Commentary to Article 37, para. (6), in Crawford’s ILC Articles, p. 233. See also Rainbow Warrior (New Zealand/France), UNRIAA, vol. 20 (1990), pp. 272–273, paras. 122– 123; Brownlie “Remedies . . .”, p. 560.

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A provision on declaratory relief included in a judgment might constitute in itself a form of satisfaction that is, in certain circumstances, a proper remedy for a breach of an international obligation or even “a significant sanction”.185 This actually happens in many cases of non-material injury, for, as Professor James Crawford, Special Rapporteur of the ILC on the topic of State Responsibility, recognized, [i]nternational courts frequently grant [declarations] as a form of remedy, on the basis that the formal finding of a breach is in the circumstances sufficient reparation. Indeed in many State responsibility cases (as in many national court cases in the field of public law), the primary relief sought is declaratory.186 The ILC itself stated the following in the commentary to the provision dealing with satisfaction in the 2001 Articles on State Responsibility (Article 37): (6) One of the most common modalities of satisfaction provided in the case of moral or non-material injury to the State is a declaration of the wrongfulness of the act by a competent court or tribunal. The utility of declaratory relief as a form of satisfaction in the case of nonmaterial injury to a State was affirmed by the International Court in the Corfu Channel case (. . .).187 In other cases the Court has found that a judicial declaration of a breach constitutes appropriate satisfaction. In Arrest Warrant the Court concluded that certain findings included in the judgment constituted “[a] form of satisfaction which will make good the moral injury complained of” by the applicant.188 185  Rainbow Warrior (New Zealand/France), UNRIAA, vol. 20 (1990), p. 273, para. 123. The tribunal quoted other arbitral decisions in which a judicial declaration of breach was seen as constituting in itself “a serious sanction.” 186  Crawford’s Third Report, Doc. A/CN.4/507, 15 March 2000, ILC Yearbook (2000), vol. II, Part 1, p. 13. 187  Crawford’s ILC Articles, p. 233. In many cases, a declaratory relief clause included in the dispositif will be considered as “normally sufficient” by the claimant party. This point was made in a dissenting opinion of four judges in the Nuclear Tests (Australia v. France) case (Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock, ICJ Rep. 1974, p. 314, para. 8). 188  Arrest Warrant, Judgment of 14 Feb. 2002, ICJ Rep. 2002, p. 31, para. 75. This was not mentioned in the dispositif, in which a separate remedy (and order for specific performance) was included.

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Also, in the Mutual Assistance case the Court refused to grant several remedies that the applicant considered to be appropriate redress for claimed violations of a bilateral treaty and other rules of international law and concluded that “[i]ts finding that France has violated its obligation to Djibouti under Article 17 constitutes appropriate satisfaction.”189 In the Pulp Mills and Interim Accord cases the Court reached essentially the same result.190 The growing importance of this type of remedy in the Court’s law and practice is demonstrated by the fact that already in 1985—long before the above mentioned decisions were rendered—one author had concluded that one of the most notable developments in the jurisprudence of the ICJ in the field of remedies was “[t]he rise of the declaratory judgment as a remedy in itself for a breach of international law.”191 In a subsequent work, the same commentator remarked that the most striking feature of the ICJ case law with regard to remedies is that the overwhelming majority of the Court’s judgments on the merits are declaratory.192 The Genocide Convention (Bosnia) case is particularly interesting in this regard, for two reasons. First, as stated above, after finding that the respondent had failed to fulfil its obligation to prevent the commission of the crime of genocide, the Court rejected a claim for reparation in the form of compensation but nonetheless came to the conclusion that the applicant was entitled to reparation in the form of a declaratory relief “as a remedy of last resort,” as an author has put it.193 This commentator expressed the view that this was a “toothless declaration of a breach” that hardly constituted an appropriate remedy for the serious breaches of international law committed by Serbia, a State that received a blame that “boil[ed] down to no more than a gesture of moral reprobation.” In his view, the Court misleadingly found that the applicant itself felt satisfied with a declaratory relief as an adequate form of remedy, while it

189  Mutual Assistance, Judgment of 4 June 2008, ICJ Rep. 2008, p. 245, para. 204. See also the dispositif (ibid., p. 247, para. 205 (2) (a)). For a comment see E. Fasoli, “Declaratory Judgments and Official Apologies as Forms of Reparation for the Non-Material Damage Suffered by the State: the Djibouti-France Case”, LPICT, vol. 7, (2008), pp. 177–192. 190  Pulp Mills, Judgment of 20 April 2010, ICJ Rep. 2010, p. 102, para. 269; see also the dispositif (ibid., para. 282 (1)); Interim Accord, Judgment of 5 Dec. 2011, ICJ Rep. 2011, p. 47, paras. 168– 169; see also the dispositive (ibid., p. 48, para. 170 (2)). 191  C. Gray, “Is There an International Law of Remedies?”, BYIL, vol. 56 (1985), p. 38. See also Brown, “A Common Law . . .”, pp. 208–209. For this author, declaratory judgments are the most common form of remedy in litigation before the ICJ. 192  Gray, “Types of Remedies . . .”, pp. 402, 406. 193  Tomuschat, “Reparation . . .”, pp. 910, 906.

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always requested full reparation, which would include monetary compensation under the head of satisfaction.194 Secondly, the Court stressed that a decision to that end would be included in the operative part of the judgment: (. . .) [F]inancial compensation is not the appropriate form of reparation for the breach of the obligation to prevent genocide. It is however clear that the Applicant is entitled to reparation in the form of satisfaction, and this may take the most appropriate form, as the Applicant itself suggested, of a declaration in the present Judgment that the Respondent has failed to comply with the obligation imposed by the Convention to prevent the crime of genocide. As in the Corfu Channel (United Kingdom v. Albania) case, the Court considers that a declaration of this kind is “in itself appropriate satisfaction” (. . .), and it will, as in that case, include such a declaration in the operative clause of the present Judgment.195 (Genocide Convention (Bosnia) Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, pp. 233–234, paras. 462–463)

Another aspect of the remedy of declaratory relief is that, as acknowledged by the ILC, a declaration of the findings of the Court “[m]ay be a preliminary to a decision on any form of reparation, or it may be the only remedy sought.”196 As stated above, examples of the former include virtually all cases in which a primary remedy such as restitution or compensation is granted, inasmuch as all of them are inconceivable without a previous declaration of a breach of an international obligation. The common practice of States is, indeed, to request the Court for a declaration in order that it (one) Clarifies the legal position, and (two) Lays the foundation for additional claims for relief, whatever they may be.197

194  Ibid., pp. 908–909. For similar criticism see Gattini, “Breach of the Obligation . . .”, pp. 711–712. 195  These findings refer to the violation of the obligation to prevent acts of genocide. The Court also found that satisfaction in the form of declaratory relief was the proper remedy for the violation of the separate obligation to punish acts of genocide. In the latter case it also ordered something in the nature of an obligation to perform (Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, pp. 234–235, paras. 464–465). 196  2001 ILC Articles, Commentary to Article 37, para. (6), in Crawford’s ILC Articles, p. 233. 197  Mann, “The Consequences . . .”, p. 11.

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A classic example is the Corfu Channel case. In the special agreement concluded on the same day that the Court rendered a judgment affirming its jurisdiction, the parties referred to the Court two questions: on one hand, whether Albania was responsible under international law for certain incidents resulting in damage and loss of life and whether there was “any duty to pay compensation;” and on the other hand, whether by carrying out certain retaliatory actions the United Kingdom had violated Albania’s sovereignty and whether there was “any duty to give satisfaction.” As it can be observed, the parties appear to have agreed beforehand that, if its case carried the day, the UK was entitled to two major remedies, namely, declaratory relief and compensation, while Albania was entitled only to declaratory relief and to satisfaction. With regard to the second question, the Court found eventually that the UK had indeed violated the sovereignty of Albania and, as noted above, contented with stating that such a declaration by the Court constituted in itself “appropriate satisfaction.”198 Satisfaction as a Special Form of Reparation The form of satisfaction considered thus far in this subsection concerns an action that is taken by the Court, i.e. the inclusion of a passage in its judgment that is considered to be in itself a form of satisfaction for the injured State. The concept of remedial satisfaction as traditionally understood, however, has a wider scope, as it covers also a number of actions that must be taken, as a form of reparation, by the party found to be responsible of a breach of an international obligation. As a reflection of this, the ILC treated satisfaction as a separate remedy but pointed out that it has an exceptional nature and constitutes “an additional form of reparation,” meaning in this context additional to—and different from—the classic forms of restitution and compensation.199 The first Special Rapporteur of the ILC delineated the distinctive feature of this form of remedy by contrasting it with the more traditional remedy of reparation: The determining factor in satisfaction is not so much the nature or scope of the injury for which reparation is to be made as the actual or alleged gravity of the act giving rise to satisfaction. This is a basic consideration in examining this type of reparation. Whereas in reparation stricto sensu the primary consideration is the injury actually sustained by the individual in question (or by the State, as the case may be), in satisfaction the “political and moral” injury is appraised in the light of the act imputable to the 198  Corfu Channel, Merits, Judgment of 9 April 1949, ICJ Rep. 1949, p. 26. 199  2001 ILC Articles, Commentary to Article 34, para. (2) in Crawford’s ILC Articles, p. 211. See further the Commentary to Article 37, para. (1), ibid., p. 231.

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State and even in that of external circumstances affecting the act which aggravate it or diminish its seriousness, such as the amount of publicity which it received, the popular attitude towards the persons responsible, and so forth.200 The role that satisfaction plays as a form of reparation was highlighted in the following well-known passage in an arbitral award, There is a long established practice of States and international Courts and Tribunals of using satisfaction as a remedy or form of reparation (in the wide sense) for the breach of an international obligation. This practice relates particularly to the case of moral or legal damage done directly to the State, especially as opposed to the case of damage to persons involving international responsibilities. (Rainbow Warrior (New Zealand/France), UNRIAA, vol. 20 (1990), pp. 272–273, para. 122)201

Likewise, in the commentary to Article 37 of its Articles on State Responsibility, the ILC underlined as follows the known forms of satisfaction: (5) Paragraph 2 of article 37 provides that satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. The forms of satisfaction listed in the article are no more than examples. The appropriate form of satisfaction will depend on the circumstances and cannot be prescribed in advance. Many possibilities exist, including due inquiry into the causes of an accident resulting in harm or injury, a trust fund to manage compensation payments in the interests of the beneficiaries, disciplinary or penal action against the individuals whose conduct caused the internationally wrongful act or the award of symbolic damages for non-pecuniary injury. Assurances or guarantees of non-repetition, which are dealt with in the Articles in the context of cessation, may also amount to a form of 200  Garcia Amador’s Sixth Report, ILC Yearbook (1961), vol. II, p. 19, para. 73. For a detailed analysis of satisfaction as a remedy see Arangio Ruiz’s Second Report (ILC Yearbook (1989), vol. II, Part. 1, pp. 31–42). 201  The Tribunal quoted here Arangio Ruiz’s second report and remarked that he demonstrated “wide support in the writing as well as in judicial and State practice of satisfaction as ‘the special remedy for injury to the State’s dignity, honour and prestige’.” (Doc. A/CN.4/425, para. 106).

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satisfaction. Paragraph 2 does not attempt to list all the possibilities, but neither is it intended to exclude them. Moreover the order of the modalities of satisfaction in paragraph 2 is not intended to reflect any hierarchy or preference. Paragraph 2 simply gives examples which are not listed in order of appropriateness or seriousness. The appropriate mode, if any, will be determined having regard to the circumstances of each case.202 In this context, it is important to distinguish between a monetary payment for symbolic damages, as a form of satisfaction, and the payment of pecuniary compensation. The former is simply an expression of the remedy of satisfaction for non-material injury suffered by the State; the latter is a distinct remedy that is intended to offset the damage or material injury suffered by the State and addresses the actual losses incurred as a result of the breach.203 That monetary payment may constitute in itself a form of satisfaction for moral and legal damage was acknowledged in express terms by the arbitral tribunal in the Rainbow Warrior case, in the following terms: [a]n order for the payment of monetary compensation can be made in respect of the breach of international obligations involving, as here, serious moral and legal damage, even though there is no material damage.

(Rainbow Warrior (New Zealand/France), UNRIAA, vol. 20, p. 217 (1990), p. 272, para. 118)

Box # 18-17 Satisfaction as punishment: Punitive damages in international law204 “Punitive,” “exemplary” or “vindictive” damages are a marginal topic of the law of international responsibility that was deliberately left aside by the ILC in its 2001 Articles. All the same, it is interesting to recall that the first Special Rapporteur on the subject, F. Garcia Amador, summarily discussed the question in his First Report, under the heading “Function of Reparation Measures.”205

202  Commentary to Article 37, para. (5), Crawford’s ILC Articles, pp. 232–233. 203  2001 ILC Articles, Commentary to Article 36, para. (4), in Crawford’s ILC Articles, p. 219. 204  On punitive damages see in general N.H. Jorgensen, “A Reappraisal of Punitive Damages in International Law”, BYIL, vol. 68 (1997), pp. 247–266; S. Wittich, “Awe of the Gods and Fear of the Priests: Punitive Damages and the Law of State Responsibility”, Austrian Review of International and European Law, vol. 3 (1998), pp. 101–158. 205  ILC Yearbook (1956), vol. II, pp. 211–213.

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This topic made a brief comeback in 1989, with the presentation of the Second Report of the fourth Special Rapporteur, Mr. G. Arangio Ruiz. In this document, punitive damages were discussed along with the concept of satisfaction “as a distinct, specific form of reparation,” because in this Rapporteur’s view the remedy of satisfaction is “a form of reparation which tends to be of an afflictive nature—distinct from compensatory forms of reparation such as restitutio and pecuniary compensation”.206 As he identified “the payment of a sum of money not in proportion to the size of the material loss” as one of the forms that satisfaction can take on, he came to the conclusion that this was equivalent “to the payment to the offended State of what a part of the doctrine, using a well-known common-law concept, refers to as ‘punitive damages’.”207 Interestingly, Arangio Ruiz had no compunctions in sanctioning the resort to punitive damages in cases of State responsibility, but only because he considered them to be a specific form of satisfaction. As such, the concept was incorporated briefly into Part II of the then Draft Articles, provisionally adopted by the Commission in 1993. Article 10, para. 2 stipulated that satisfaction could take the form of “damages reflecting the gravity of the infringement,” when the situation involved a gross infringement of the rights of the injured State. A footnote to the pertinent commentary clarified that “[i]n common law, this type of damages is known as ‘exemplary damages’.”208 The gist of the Special Rapporteur’s analysis, however, was not directed at punitive damages as an autonomous remedy but rather at the appropriateness of the remedy of satisfaction as such, i.e. as a remedy distinct and separate from reparation or restitution. The final product of the ILC’s several decades of work on the subject of State Responsibility accepts the latter and endorses the independent existence of the remedy of satisfaction, but departs radically from Arangio Ruiz’s view on punitive damages, as can be seen in the following passage in the Commentary to Article 37 of the 2001 Articles:

206  ILC Yearbook 1989, vol. II, Part 1, para. 136–147, pp. 40–42. Already in 1961, Garcia Amador had stated that one of the characteristics of satisfaction was its “essentially punitive nature” (Sixth Report, ILC Yearbook (1961), vol. II, p. 19, para. 76). 207  ILC Yearbook 1989, vol. II, Part 1, p. 41, par. 139. 208  ILC Yearbook 1993, vol. II, Part 2, p. 76 and p. 79, para. 12, note 308.

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Excessive demands made under the guise of satisfaction in the past suggest the need to impose some limit on the measures that can be sought by way of satisfaction to prevent abuses, inconsistent with the principle of the equality of States. In particular, satisfaction is not intended to be punitive in character, nor does it include punitive damages.209 In paragraph (5) of the same commentary (reproduced above), mention is made to “the award of symbolic damages for non-pecuniary injury” as a form of satisfaction (ibid., p. 233). This is the closest to the notion of punitive damages that can be found in the 2001 Articles. As for international practice, although there are a few cases in arbitral practice in which it can be considered that something tantamount to punitive damages has been awarded,210 it is generally acknowledged that this is not a suitable remedy in litigation before a permanent international tribunal. In the first contentious cases that came before the Inter-American Court of Human Rights, this regional tribunal had to face a request to order the Government of Honduras pay punitive damages “as part of the indemnity, because this case involved extremely serious violations of human rights.” The Court’s answer was unequivocal in rejecting the applicability of this institution in contemporary international law: The expression “fair compensation,” used in Article 63 (1) of the [American Convention on Human Rights] to refer to a part of the reparation and to the “injured party,” is compensatory and not punitive. Although some domestic courts, particularly the Anglo-American, award damages in amounts meant to deter or to serve as an example, this principle is not applicable in international law at this time. (Velásquez-Rodríguez v. Honduras, Judgment of 21 July 1989 (Reparations and Costs), Inter-American Ct.H.R, Series C, No. 7 (1989), pp. 9–10, para. 38)211

209  2001 ILC Articles, Commentary to Article 37, para. (8), in Crawford’s ILC Articles, p. 234. 210  For a comment see C. Gray, “Judicial remedies . . .”, pp. 26–27. 211  For the debatable view that this is an “incorrect” statement by the Inter-American Court see D. Shelton, Remedies in International Human Rights (2000), p. 287.

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Finally, contemporary doctrine is virtually unanimous in considering that punitive damages have no place in inter-State litigation under international law.212 One author has concluded that it is “difficult to imagine” the ICJ being ever prepared to order this as a remedy.213

4) Cessation214 Cessation consists in what Special Rapporteur Riphagen called “an obligation to stop the breach.”215 This obligation, as pointed out by an arbitral tribunal, may consist in either abstaining from certain actions or in positive conduct.216 The distinguishing feature of cessation as a remedy is that it is called to play a role in the context of the breach of an obligation that is of a continuing nature—in the sense that the breach persists on the date of the delivery of the decision. As a result, if the breach of an international obligation occurred in the past and has come to an end by the time of the rendering of the decision, the Court will find no cause to order its cessation.217 In the words of judge Tomka: It is the continuing nature or otherwise of the violation which determines whether the obligation of cessation exists. The Court can only order the cessation of a wrongful act if that act continues. (Avena, Merits, Separate Opinion of Judge Tomka, ICJ Rep. 2004, p. 98, para. 19)218

212  2001 ILC Articles, Commentaries to Chapter III, para. (5) and Article 36, para. (4), in Crawford’s ILC Articles, pp. 243 and 219, respectively. See also S. Wittich, “Compensation”, in Max Planck EPIL, MN 44. Even authors who are definitively sympathetic to the notion of punitive damages acknowledge that under current international law they may only be awarded “covertly” (Jorgensen, “A Reappraisal . . .”, p. 266). 213  C. Gray, “Judicial remedies . . .”, p. 28. 214  See Arangio Ruiz’s Preliminary Report (ILC Yearbook (1988), vol. II, Part. 1, pp. 12–20). In the ILC Articles cessation is found in the same provision dealing with guarantees of nonrepetition (Article 30). The Commentary of the Commission can be found in Crawford’s ILC Articles, pp. 196, 198 and 199–200. 215  Riphagen’s Second Report (ILC Yearbook (1981), vol. II, Part. 1, p. 91, para. 99). 216  Rainbow Warrior (New Zealand/France), UNRIAA, vol. 20 (1990), p. 270, para. 113. 217  Pulp Mills, Merits, Judgment of 20 April 2010, ICJ Rep. 2010, p. 102, para. 269. 218  In this context, the Court has made mention to a “continuing wrongful act.” (Obligation to Prosecute or Extradite, Merits, Judgment of 20 July 2012, para. 121). The continuing nature of the breach is an aspect that may present problems for the Court when considering resort to the remedy of cessation. See Higgins, “Remedies . . .”, p. 1354. On continuing wrongful

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In addition, for a tribunal to order the remedy of cessation it is also required that the primary obligation itself, or rather, the rule from which the obligation derives, remains in force at the time that the decision is given. This was spelled out in clear terms by the arbitral tribunal that dealt with the Rainbow Warrior case, in which cessation played a prominent role in the reasoning of the tribunal. Interestingly, New Zealand requested the tribunal to make an order directing France to do certain things in order for that State to return to a situation of compliance with a bilateral agreement, but chose to characterize this remedy as restitution—and it even contended that in the circumstances of the case this was not “in itself, a true remedy.”219 The tribunal found that the order requested by New Zealand was an order for the cessation of a wrongful omission rather than restitutio in integrum and went on to consider in some detail the conditions for the application of that remedy.220 It remarked that the authority to issue an order for the cessation or discontinuance of a wrongful act “results from the inherent powers of a competent tribunal which is confronted with the continuous breach of an international obligation which is in force and continues to be in force,”221 and elaborated further on this later notion in the following terms: The delivery of such an order requires, therefore, two essential conditions intimately linked, namely that the wrongful act has a continuing character and that the violated rule is still in force at the time in which the order is issued. Obviously, a breach ceases to have a continuing character as soon as the violated rule ceases to be in force. The recent jurisprudence of the International Court of Justice confirms that an order for the cessation or discontinuance of wrongful acts or omissions is only justified in case of continuing breaches of international obligations which are still in force at the time the judicial order is issued (. . .). If, on the contrary, the violated primary obligation is no longer in force, naturally an order

acts see also Article 14 of the ILC Articles and its Commentary in Crawford’s ILC Articles, pp. 135–140. 219  Rainbow Warrior (New Zealand/France), UNRIAA, vol. 20 (1990), p. 268, para. 111. 220  Ibid., p. 270, para. 113 and p. 271, para. 114. Arbitrator Keith dissented and expressed doubts about the validity of the distinction between cessation and restitution “in theory or in practice.” (Ibid., Separate Opinion of Sir Kenneth Keith, p. 279, para. 16). 221  Rainbow Warrior (New Zealand/France), UNRIAA, vol. 20 (1990), Ibid., p. 270, para. 114.

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for the cessation or discontinuance of the wrongful conduct would serve no useful purpose and cannot be issued.222 In the Navigational Rights case the Court identified the legal basis of the obligation to cease wrongful conduct, and clarified that cessation, when it is accompanied with (or followed by) the restoration of a pre-existing legal situation, is in itself a form of reparation: [w]hen the Court has found that the conduct of a State is of a wrongful nature, and in the event that this conduct persists on the date of the judgment, the State concerned is obliged to cease it immediately. This obligation to cease wrongful conduct derives both from the general obligation of each State to conduct itself in accordance with international law and from the specific obligation upon States parties to disputes before the Court to comply with its judgments, pursuant to Article 59 of its Statute.(. . .)223 [i]t should be recalled that the cessation of a violation of a continuing character and the consequent restoration of the legal situation constitute a form of reparation for the injured State. (Navigational Rights, Judgment of 13 July 2009 ICJ Rep. 2009, p. 267, paras 148–149)

The Court has ordered cessation as a remedy in relatively clear-cut cases involving violations of international rules such as Haya de la Torre,224 US Hostages,225 Nicaragua226 and Obligation to Prosecute or Extradite.227 In the Construction of a Wall advisory proceedings, it also found occasion to remark

222  Ibid. The Tribunal quoted here two cases of the ICJ, namely US Hostages (ICJ Rep. 1979, p. 21, para. 38 to 41, and 1980, para. 95, No. 1); and Nicaragua (ICJ Rep. 1984, p. 187, and 1986, para. 292, p. 149). 223  The Court also remarked that it did not find it necessary to recall the existence of this obligation in the operative paragraphs of all of the judgments that it renders. In some cases it will suffice to mention it in the reasoning section of the decision (Navigational Rights, Judgment of 13 July 2009, ICJ Rep. 2009, p. 267, para. 148). 224  Haya de la Torre, Judgment of 13 June 1951, ICJ Rep. 1951, p. 82. 225  US Hostages, Judgment of 24 May 1980, ICJ Rep. 1980, pp. 44–45, para. 95. 226  Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 149, para. 292 (12) (dispositif ). 227  Obligation to Prosecute or Extradite, Merits, Judgment of 20 July 2012, paras. 121 and 122 (2) (dispositif ).

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that “[t]he obligation of a State responsible for an internationally wrongful act to put an end to that act is well established in general international law.”228 All the same, a trend can be perceived in legal literature to treat cessation simply as a form of satisfaction, which in itself is simply a form of reparation.229 In what is considered a fortunate development, the ILC clearly endorsed the idea that cessation is an autonomous legal consequence of an internationally wrongful act, and a very important one at that, as it is stressed by the fact that in the 2001 articles the provision concerning cessation (Article 30) comes directly after that on the continued duty of performance (Article 29) and precedes that concerning reparation (Article 31). 5) Guarantees of Non-Repetition230 Although cessation is essentially a corrective remedy, it often goes hand in hand with the prospective remedy of assurances or guarantees of non-repetition.231 A good example of this is the ILC Articles, in which these two forms of remedy are treated as separate but inter-linked issues that appear in one and the same provision. According to Article 30, the State responsible for the internationally wrongful act is under an obligation to cease that act, if it is continuing, and in addition “to offer appropriate assurances and guarantees of non-repetition, if circumstances so require.”232 The ILC Commentary also contains an assessment of the manner in which the Court treated the issue of guarantees of non-repetition in LaGrand, which is believed to be the first case in which this question featured prominently before the ICJ. This was unavoidable, given that one of the submissions of Germany contained a request for the Court to order the United States to provide assurances, both general and specific, with regard to future actions of its authorities in the application of the rules on consular notification in the 1963 Vienna Convention. The Court’s reply was certainly guarded, but it contains several elements of interest. In the first place, the Court had no difficulty in rejecting the US’s contention that it lacked jurisdiction to order a guarantee of non-repetition. 228  Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, p. 197, para. 150. See also the Namibia Advisory Opinion (ICJ Rep. 1971, p. 54, para. 117). 229  Shelton, “Righting Wrongs . . .”, p. 839. One reason for this is that in many cases it will be difficult to distinguish cessation from reparation in the form of restitution. 230  See Arangio Ruiz’s Second Report (ILC Yearbook 1989, vol. II, Part. 1, p. 8, para. 42–47). 231  Note, however, that these concepts are severable. See, for instance LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, p. 484, para. 46. 232  For the commentary see Crawford’s ILC Articles, p. 196.

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The Court concluded that its substantive jurisdiction with regard to disputes concerning the interpretation and application of the 1963 Vienna Convention on Consular Relations included a power to determine all questions pertaining to remedies—and pertaining to all possible remedies, at that.233 Secondly, the Court did not find a need to explicitly order the respondent to provide a general guarantee of non-repetition. It preferred to rely instead on the existence of a programme, put into place by the United States Government and described by it in the course of the proceedings, that was directed at ensuring “compliance by its authorities at the federal as well as at the state and local levels with its obligation under Article 36 of the Vienna Convention.”234 The Court remarked that the existence of this programme and of the commitment to implement it voiced by the US essentially met Germany’s request for “a general assurance of non-repetition.” However—and perhaps equally importantly—it also stressed that such a general guarantee of non-repetition represents a virtual impossibility for any State: The United States has provided the Court with information, which it considers important, on its programme. If a State, in proceedings before this Court, repeatedly refers to substantial activities which it is carrying out in order to achieve compliance with certain obligations under a treaty, then this expresses a commitment to follow through with the efforts in this regard. The programme in question certainly cannot provide an assurance that there will never again be a failure by the United States to observe the obligation of notification under Article 36 of the Vienna Convention. But no State could give such a guarantee and Germany does not seek it. The Court considers 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. (LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, pp. 512–513, para. 124)235

233  In Avena, the Court arrived at a similar conclusion with regard to the remedy of restitution (Merits, Judgment of 31 March 2004, ICJ Rep. 2004, p. 33, para. 34). 234  LaGrand, Judgment of 27 June 2001, ICJ Rep. 2001, p. 512, para. 123. 235  The same idea features prominently in the dispositif (ICJ Rep. 2001, p. 516, para. 128 (6)). It can be found also in the Avena decision (Merits, Judgment of 31 March 2004, ICJ Rep. 2004, p. 69, para. 150; p. 73, para. 153 (10) (dispositif )).

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Thirdly, regarding the request for a more specific guarantee for future cases, the Court was more forthcoming and ordered very specific measures to be taken by the United States in future cases, should it fail to honour the commitments into which it entered before the Court. After recalling that the US had apologized to Germany for the past conduct of its authorities, the Court went on to state the following: The Court considers in this respect that if the United States, notwithstanding its commitment referred to in paragraph 124 above, should fail in its obligation of consular notification to the detriment of German nationals, an apology would not suffice in cases where the individuals concerned have been subjected to prolonged detention or convicted and sentenced to severe penalties. In the case of such a conviction and sentence, it would be incumbent upon the United States 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. This obligation can be carried out in various ways. The choice of means must be left to the United States. (LaGrand, Merits, Judgment of 27 June 2001, ICJ Rep. 2001, pp. 513–514, para. 125)236

On balance, it may be said that while in LaGrand the Court did not grant a guarantee or assurance of non-repetition as a remedy, it refrained from closing the door to this form of relief being used in future cases.237 It is noteworthy that in all subsequent cases in which a party has made a request for guarantees of non-repetition, the Court has denied it.238 In one of these instances the Court stated two general propositions, namely: (one) That “while the Court may order, as it has done in the past, a State responsible for internationally wrongful conduct to provide the 236  See also the dispositif: ICJ Rep. 2001, p. 516, para. 128 (7). 237  For diverse assessments of the importance of this dictum see C.J. Tams, “Consular Assistance: Rights, Remedies and Responsibility: Comments on the ICJ Judgment in the LaGrand Case”, EJIL, vol. 13 (2002), p. 1259); Higgins, “Remedies . . .”, p. 1354 and also, by the same author, “The ICJ: Selected issues . . .”, 279–280. 238  Cameroon v. Nigeria (Merits, Judgment of 10 Oct. 2002, ICJ Rep. 2002, p. 452, para. 318); Genocide Convention (Bosnia), Merits, Judgment of 26 Feb. 2007, para. 466); Request for InterpretationAvena (Judgment of 19 Jan. 2009, ICJ Rep. 2009, p. 21, paras. 58–60); Navigational Rights ( Judgment of 13 July 2009, ICJ Rep. 2009, p. 267, para. 150) Pulp Mills (Merits, Judgment of 20 April 2010, ICJ Rep. 2010, p. 105, para. 278); and Interim Accord ( Judgment of 5 Dec. 2011, ICJ Rep. 2011, p. 47, paras. 167–168.

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injured State with assurances and guarantees of non-repetition, it will only do so if the circumstances so warrant, which it is for the Court to assess;”239 and (two) That “[a]s a general rule, there is no reason to suppose that a State whose act or conduct has been declared wrongful by the Court will repeat that act or conduct in the future, since its good faith must be presumed.”240 This echoes a famous dictum in the Nuclear Tests cases to the effect that “[o]nce the Court has found that a State has entered into a commitment concerning its future conduct it is not the Court’s function to contemplate that it will not comply with it.”241 For this reason, the proposition that the approach followed by the Court in LaGrand and Avena with regard to assurances and guarantees of non-repetition marked a reversal of the principle enshrined in that passage is highly questionable.242 A final point to be made is that, as the ILC pointed out, the remedy of assurances or guarantees of non-repetition may in itself, in certain circumstances, amount to a form of satisfaction.243 6) Consequential Orders Consequential or mandatory orders are not often mentioned in the context of international litigation, in part because traditionally the Court has not been inclined to include them in its decisions. As Hudson stated with regard to the PCIJ: In most cases, the Court does not direct the parties to act or to refrain from acting; instead, it declares what they are by law bound to do or to refrain from doing, or pronounces upon submissions which have been presented.244 In the sense that it is used in this work, the expression “consequential order” means an order issued by the Court “[w]hich in terms requires one or both of 239  Navigational Rights, Judgment of 13 July 2009, ICJ Rep. 2009, p. 267, para. 150. In a subsequent case the Court indicated that this assessment must be made “on a case-by-case basis” ( Jurisdictional Immunities, Judgment of 3 Feb. 2012, ICJ Rep. 2012, p. 154, para. 138). 240  Ibid. Reaffirmed in Interim Accord, Judgment of 5 Dec. 2011, ICJ Rep. 2011, p. 47, para. 168 and Jurisdictional Immunities, Judgment of 3 Feb. 2012, ICJ Rep. 2012, p. 154, para. 138. 241  Nuclear Tests, Judgments of 20 Dec. 1974, ICJ Rep. 1974, p. 272, para. 60 and p. 477, para. 63. 242  Orakhelashvili, “Judicial Competence . . .”, p. 46. 243  2001 ILC Articles, Commentary to Article 37, para. (5), in Crawford’s ILC Articles, pp. 233. 244  Hudson’s PCIJ, p. 588. See also, by the same author, International Tribunals, Past and Future (1944), pp. 120–121.

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the Parties to take, or refrain from taking, some action.”245 When the Court adopted this definition, in the Nuclear Tests cases, it was contrasting this type of decision with a declaratory judgment “[w]hich would only state the legal relationship between the Applicant and the Respondent with regard to the matters in issue.”246 This type of remedy corresponds in essence to what an author has recently called “remedies in mandatory form,” comprising mandatory or consequential orders.247 In general, an order of the Court along these lines might take different forms, whether it is a mandatory order (a direction to do something that is not being done); an order for specific performance (aiming at the fulfilment of a legal or contractual obligation) or a negative injunction (a prohibition from persisting in certain conduct or an order to put an end to a given activity).248 Out of the remedial measures described in this section, consequential orders are probably those with less defined contours, for a variety of reasons. In the first place, because they often are issued in cases not involving issues of State responsibility and therefore, strictly speaking, in most cases they are not considered as judicial remedies proper.249 In the second place, in cases in which there has been a finding of a violation of international law, a consequential order might easily merge or overlap with a different form of remedy. If the Court orders a State party to modify certain conduct in order to put a stop to a breach of an international obligation, this undoubtedly entails an injunction to take specific action but the actual remedy being granted might be that of cessation—which, as recently remarked by the Court, is in itself a form of reparation.250 A good example is the US Hostages case, in which the Court included in the dispositif the following directions addressed at the respondent party: THE COURT Decides that the Government of the Islamic Republic of Iran must immediately take all steps to redress the situation resulting from the events of 4 November 1979 and what followed from these events, and to that end: 245  Nuclear Tests (Australia v. France) Judgment of 20 Dec. 1974, ICJ Rep. 1974, p. 262, para. 29. The possibility that the Court might be called to issue these orders was foreseen by the PCIJ in the Chorzów case (Merits, Judgment No. 13, 13 Sept. 1928, PCIJ A 17, p. 59). 246  Nuclear Tests (Australia v. France) Judgment of 20 Dec. 1974, ICJ Rep. 1974, p. 262, para. 29. 247  Brown, “A Common Law . . .”, pp. 195, 209. See also the dissenting opinion of judges Onyeama, Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock in the Nuclear Tests (Australia v. France) cases (ICJ Rep. 1974, p. 315, para. 9). 248  This typology was originally proposed by Mann, “The Consequences . . .”, pp. 12–14. 249  See 7) below. 250  Navigational Rights, Judgment of 13 July 2009, ICJ Rep. 2009, p. 267, para. 149.

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(a) must immediately terminate the unlawful detention of the United States Chargé d’affaires and other diplomatic and consular staff and other United States nationals now held hostage in Iran, and must immediately release each and every one and entrust them to the protecting Power (Article 45 of the 1961 Vienna Convention on Diplomatic Relations); (b) must ensure that all the said persons have the necessary means of leaving Iranian territory, including means of transport; (c) must immediately place in the hands of the protecting Power the premises, property, archives and documents of the United States Embassy in Tehran and of its Consulates in Iran; (US Hostages, Merits, Judgment of 24 May 1980, ICJ Rep. 1980, pp. 44–45, para. 95)251

An author has suggested that, since the order included in the Court’s judgment in the Temple case was declaratory rather than mandatory, US Hostages is actually the first case in which the Court issued an order to a State party “[r]ather than merely declaring that there is an obligation on it to act in a certain way.”252 In a subsequent work, the same author expanded on her view that there is a difference between an order to a State party and a declaration that there is an obligation upon it to act in a certain way.253 With respect, it is submitted that this difference, if it exists at all, would be negligible in practical terms: the conduct expected from Thailand in order to comply with the Temple judgment was, or should have been, essentially the same as the conduct expected from Iran under the US Hostages decision.254 Likewise, in certain circumstances the Court may conclude that a declaratory relief clause included in one of its judgments, referring to the performance of a very specific action by the State to whom it is addressed, so that it returns to compliance with a given rule of international law, constitutes in itself appropriate satisfaction. In the Northern Cameroons case, for instance, the applicant requested a finding by the Court that a breach of a treaty had occurred but

251  Undoubtedly, some of these actions can also be considered as a form of restitution. This is not surprising, as consequential orders and restitution have in common that they are both forms of redress that will undo the effect of the violation. See “Restatement . . .”, vol. 2, p. 341. 252  Gray, “Is There and International Law . . .?”, pp. 37–38. 253  Gray, “Judicial Remedies . . .”, pp. 65–68. 254  A similar view is expressed in Ch.F. Amerasinghe, Jurisdiction of Specific International Tribunals (2009), pp. 175–176.

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refrained from requesting anything in the nature of reparations. Referring to this type of case, judge Fitzmaurice remarked that [w]here the treaty is still in force and operating (. . .) any finding in favour of the plaintiff State functions as a prohibition on the continuance or repetition of the breach of treaty, and this may be all that is required, and in any event makes the judgment effective. (Northern Cameroons, Preliminary Objections, Separate Opinion of Judge Fitzmaurice, ICJ Rep. 1963, p. 98)

In the same context, judge Fitzmaurice recalled that in the Corfu Channel case the Court, though finding that a violation of territorial sovereignty had taken place, awarded no compensation and declared that its finding as to the violation constituted “in itself an appropriate satisfaction.”255 For this judge “[t]his declaration, however, though it related to a past and irreversible event, was also relevant to a still continuing situation in which a repetition of the violation of sovereignty could occur, and it had operative legal effect as a prohibition or interdiction on any such repetition.”256 This is very illustrative as to the close connection that the remedy of a consequential order may have with that of declaratory relief. Another, more recent, example is the Genocide Convention (Bosnia) case, in which the applicant demanded that the Court directed the Government of Serbia to comply with its obligation to cooperate with the International Criminal Tribunal for the former Yugoslavia and to transfer to that body certain individuals accused of genocide—including the infamous General Ratko Mladić—as part and parcel of its duty to punish the crime of genocide under the 1948 Convention. The Court obliged but apparently put emphasis on the fact that the applicable remedy for this breach was that of satisfaction, in the form of declaratory relief: The Court now turns to the question of the appropriate reparation for the breach by the Respondent of its obligation under the Convention to punish acts of genocide; in this respect, the Applicant asserts the existence of a continuing breach, and therefore maintains (inter alia) its request for a declaration in that sense. As noted above (. . .) the Court has found that in that respect the Respondent is indeed in breach of Article VI of the 255  Northern Cameroons, Preliminary Objections, Separate Opinion of Judge Fitzmaurice, ICJ Rep. 1963, p. 98, note 2. 256  Ibid.

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Convention (paragraph 449 above). A declaration to that effect is therefore one appropriate form of satisfaction, in the same way as in relation to the breach of the obligation to prevent genocide. However, the Applicant asks the Court in this respect to decide more specifically that “Serbia and Montenegro shall immediately take effective steps to ensure full compliance with its obligation to punish acts of genocide under the Convention on the Prevention and Punishment of the Crime of Genocide or any other act prohibited by the Convention and to transfer individuals accused of genocide or any other act prohibited by the Convention to the International Criminal Tribunal for the former Yugoslavia and to fully cooperate with this Tribunal.” It will be clear from the Court’s findings above on the question of the obligation to punish under the Convention that it is satisfied that the Respondent has outstanding obligations as regards the transfer to the ICTY of persons accused of genocide, in order to comply with its obligations under Articles I and VI of the Genocide Convention, in particular in respect of General Ratko Mladić (. . .). The Court will therefore make a declaration in these terms in the operative clause of the present Judgment, which will in its view constitute appropriate satisfaction. (Genocide Convention (Bosnia) Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, pp. 234–235, paras. 464–465)

Notwithstanding this carefully drafted caveat, in the dispositif the Court included, in addition to the declaration mentioned above, a provision that embodies a mandatory order, i.e. a direction entailing in unequivocal terms a specific obligation on the part of Serbia to perform certain actions: THE COURT, (. . .) Decides that Serbia shall immediately take effective steps to ensure full compliance with its obligation under the Convention on the Prevention and Punishment of the Crime of Genocide to punish acts of genocide as defined by Article II of the Convention, or any of the other acts proscribed by Article III of the Convention, and to transfer individuals accused of genocide or any of those other acts for trial by the International Criminal Tribunal for the former Yugoslavia, and to co-operate fully with that Tribunal; (emphasis added) (Genocide Convention (Bosnia) Merits, Judgment of 26 Feb. 2007, ICJ Rep. 2007, p. 175, para. 319)

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Finally, when the order consists of a direction to do something the effect of which will be a return to the situation existing prior to the breach, it may safely be concluded that the actual remedy employed was that of restitution. It is suggested that it cannot be seriously put in doubt today that the Court has the power to grant the remedy of consequential orders, whether in the form of mandatory orders, orders for specific performance or negative injunctions. Nobody has ever disputed that the Court is entitled to do this in exercise of its incidental jurisdiction to indicate provisional measures, but doubts have been expressed as to the propriety of including this remedy in a final decision.257 The argument that is more often heard in this regard is that the role of the Court has always been limited to determine the rights and obligations of the parties and does not extend to determine the means they use to ensure compliance with the decision. Attention is called to well-known pronouncements by the Court concerning issues of compliance, in particular in the Factory at Chorzów and the Haya de la Torre cases. In the first of these cases, what the PCIJ famously stated was that it neither could nor should “contemplate the contingency of the judgment not being complied with,” a dictum that may be considered largely immaterial for the point in discussion here.258 In Haya de la Torre, for its part, the ICJ stated that the Havana Convention was silent as to the manner to terminate an asylum that the Court had already found not to be in conformity with that Convention and remarked that this silence implied “that it was intended to leave the adjustment of the consequences of this situation to decisions inspired by considerations of convenience or of simple political expediency.”259 The Court also clarified—quite properly, one may add—that it would not be part of its judicial function to make those decisions instead of the concerned governments and concluded: Having thus defined in accordance with the Havana Convention the legal relations between the Parties with regard to the matters referred to it, the Court has completed its task. It is unable to give any practical advice as to the various courses which might be followed with a view to terminating the asylum, since, by doing so, it would depart from its judicial function. (Haya de la Torre, Judgment of 13 June 1951, ICJ Rep. 1951, p. 83)

257  For a good summary of the positions found in legal literature see Brown, “A Common Law . . .”, pp. 209–212. 258  Factory at Chorzów, Merits, Judgment of 13 Sep. 1928, PCIJ A 17, p. 63. 259  Haya de la Torre, Judgment of 13 June 1951, ICJ Rep. 1951, p. 81.

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In the Northern Cameroon case the Court put these findings in a correct perspective by stating as follows: [t]here is a difference between the Court’s considering the manner of compliance with its Judgment, or the likelihood of compliance, and, on the other hand, considering whether the judgment, if rendered, would be susceptible of any compliance or execution whatever, at any time in the future. As the Court said in the Haya de la Torre case, it cannot concern itself with the choice among various practical steps which a State may take to comply with a judgment. It may also be agreed (. . .) that after a judgment is rendered, the use which the successful party makes of the judgment is a matter which lies on the political and not on the judicial plane. But it is not the function of a court merely to provide a basis for political action if no question of actual legal rights is involved. Whenever the Court adjudicates on the merits of a dispute, one or the other party, or both parties, as a factual matter, are in a position to take some retroactive or prospective action or avoidance of action, which would constitute a compliance with the Court’s judgment or a defiance thereof. (Northern Cameroon, Preliminary Objections, Judgment of 2 Dec. 1963, ICJ Rep. 1963, pp. 37–38)

Thus, the Court’s pronouncement in Haya de la Torre may be taken to mean that compliance constitutes a non-judicial matter that arises only after a decision has been reached and with which the Court should not be concerned. This is true as far as it goes, but it does not go too far because the real issue here is not related to compliance with what the Court may have decided but to precisely what it can decide, in terms of what the parties were requesting that it did for them. When the Court is not called to simply define the legal relations between the parties with regard to a certain matter but to “right a wrong,” the very nature of the judicial function may require that the Court issues an order directing the guilty party to do or to refrain from doing what may be needed in order to restore compliance with the rule of law. For the Court this would mean that it goes beyond its merely declaratory role and moves on to correct a situation in which an injured party has a legitimate expectation for some type of remedial action. Not for nothing the Court is routinely asked by States parties to cases to “adjudge” on certain points and not only to “declare” what the law is between the parties. Two cases are particularly illustrative in this regard, one before an arbitral tribunal and the other before the ICJ. The first is the Rainbow Warrior

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arbitration, concerning a dispute between New Zealand and France in which this latter country had clearly incurred in a breach of an agreement. New Zealand made the argument that a declaration of the respective rights and duties of the parties would be an appropriate remedy in those cases where it is clear that once the judicial declaration is made the parties, will conform their conduct to it. It also contended that it would not be an appropriate remedy in a case like that, in which it was clear that France would not take certain actions “unless specifically ordered to do so.”260 The Court did not grant the order requested because it understood that what New Zealand was requesting was actually cessation and one of the conditions applicable to this type of remedy was lacking, but it did not question that the request was a proper one or that the arguments supporting it were convincing.261 The second case is Passage through the Great Belt, in which the respondent State argued at the provisional measures phase that the only possible remedy for the type of violation asserted by the applicant would be damages. This contention was offered as a response to a request for restitution, a remedy that in Denmark’s view would not be appropriate inasmuch as it would be “excessively onerous.” The Court rejected this line of argument and clearly envisaged that it could eventually come to a finding that would have required a mandatory order addressed to that State: [t]he Court is not at present called upon to determine the character of any decision which it might make on the merits; (. . .) in principle however if it is established that the construction of works involves an infringement of a legal right, the possibility cannot and should not be excluded a priori of a judicial finding that such works must not be continued or must be modified or dismantled; (Passage through the Great Belt, Provisional Measures, Order of 29 July 1991, ICJ Rep. 1991, p. 19, para. 31)262

Thus, it may be true that in many cases in which the Court issues a purely declaratory judgment it is for the parties to make sure that they adjust their conduct in the matter at issue to what the Court has declared to be the law 260  Rainbow Warrior (New Zealand/France), UNRIAA, vol. 20 (1990), p. 268, para. 111. However, New Zealand itself characterized its request as a form of restitution. 261  For the reasoning of the Court see ibid., pp. 270–271, para. 114. For a comment see J. Scott Davidson, “The Rainbow Warrior arbitration Concerning the Treatment of the French Agents Mafart and Prieur”, ILCQ, vol. 40 (1991), pp. 453–454. 262  The case was discontinued before reaching the merits phase.

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and the Court must refrain from giving them “practical advice as to the various courses which might be followed” with a view to do that, to use the language in Haya de la Torre. However, there are a number of cases of this kind—not involving issues of State responsibility—in which the Court has on its own spelled out, in the form of an injunction included in the dispositif, what are the practical consequences of its decision. Cases like Temple of Preah Vihear or Cameroon v. Nigeria abundantly show this.263 In any case, the situation is clearly different when in replying to the parties submissions the Court finds it necessary to direct a State party to take certain specific action, for instance, to annul a domestic legal measure, such as an extant piece of legislation or a judicial decision, a situation in which the discretion of that State is reduced considerably. Even more, when an order of this sort is granted the State against whom the order is directed still has some margin of appreciation, for in these cases the Court is always careful to specify that the State is to do this “by means of its own choosing,” thus leaving for its concerned authorities the task of selecting the precise course that must be followed in order to ensure compliance with the Court’s decision. The most decisive factor in this regard is, in any case, the practice of the Court which, especially in recent instances, shows that it perceives itself as fully competent to order consequential orders. In addition to cases not involving issues of State responsibility and cases in which an injunction ordered by the Court can be identified or merged with other, more traditional forms of remedy, such as restitution, cessation or declaratory relief, it may be concluded that the cases in which consequential orders as an autonomous remedy have been granted by the ICJ are the two cases concerning consular assistance, LaGrand and Avena, and the Arrest Warrant case. Noticeably, in the former two the Court fashioned on its own a remedy different than those requested by the applicants and entailing an obligation to perform certain specific acts, namely the “review and consideration” of convictions and sentences passed upon nationals of the applicant States.264 In the Avena case, in particular, the Court remarked that in its judgment in LaGrand it had “[s]tated the general principle to be applied in such cases by way of a remedy to redress an injury of this kind.”265

263  See 7) below. 264  For the view that this remedy strongly resembles that of restitution see Orakhelashvili, “Judicial Competence . . .”, p. 45. 265  Judgment of 31 March 2004, ICJ Rep. 2004, p. 62, para. 128. The Court also said that this was “the appropriate remedy” (ibid., p. 70, para. 152).

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As for the latter case, it is of special interest because in it the link between the internationally wrongful act and the action ordered by the Court as a means of redress was made explicit.266 The breach of an international obligation identified by the Court in this case consisted of the issuing of an international arrest warrant by a Belgian court against a senior Government official of the Congo, in open disregard of the jurisdictional immunities enjoyed by that person under international law. The Court concluded that a finding concerning such violation constituted “a form of satisfaction which will make good the moral injury complained of by the Congo.”267 However, it did not leave it at that, and went on to state that a proper remedy for the injury caused to the Congo was the cancellation of the warrant, which it directed Belgium to do “by means of its own choosing.”268 The Court remarked: In the present case, “the situation which would, in all probability, have existed if [the illegal act] had not been committed” cannot be reestablished merely by a finding by the Court that the arrest warrant was unlawful under international law. The warrant is still extant, and remains unlawful, notwithstanding the fact that Mr. Yerodia has ceased to be Minister for Foreign Affairs. The Court accordingly considers that Belgium must, by means of its own choosing, cancel the warrant in question and so inform the authorities to whom it was circulated. (Arrest Warrant, Merits, Judgment of 14 Feb. 2002, ICJ Rep. 2002, p. 32, para. 76)269

This is, clearly, a mandatory order directing a State to take some specific action in order to return to a situation of compliance with what the law requires. What is particularly significant of this case for the present purposes is that in granting this form of remedy the Court was effectively adjudicating on a sharp disagreement registered between the parties concerning the proper remedial role of the Court. The Congo acknowledged that a formal finding by the Court of the unlawfulness of the arrest warrant constituted an appropriate form of 266  All the same, this case presents problems of classification. While Orakhelashvili considers that the actions ordered by the Court constituted a remedy of legal restitution (“Judicial Competence . . .”, p. 42, note 54), Shelton states that it is not clear whether the remedy ordered by the Court was cessation or restitution (“Righting Wrongs . . ., p. 841”). 267  Arrest Warrant, Judgment of 14 Feb. 2002, ICJ Rep. 2002, p. 31, para. 75. 268  Ibid., p. 32, para. 76. 269  Also in the dispositif: ICJ Rep. 2002, p. 33, para. 78 (3). For a critic see Joint Separate Opinion by Judges Higgins, Kooijmans and Buergenthal, ICJ Rep. 2002, pp. 89–90, paras. 86–89. Subsequently, the Court explained the rationale for this in a passage in the Avena case ( Judgment of 31 March 2004, ICJ Rep. 2004, p. 60, para. 123).

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satisfaction, providing reparation for the consequent moral injury suffered, but it also requested that the Court ordered Belgium to “recall and cancel” the warrant.270 It stated that in putting this request before the Court it was in no way “asking the Court (. . .) to determine the means whereby Belgium is to comply with its decision” and explained that the withdrawal and cancellation of the warrant, by the means that Belgium deemed most suitable were “not means of enforcement of the judgment of the Court but the requested measure of legal reparation/restitution itself”.271 The language is clearly evocative of the earlier case law of the Court quoted above. Belgium, for its part, devoted an entire section of its oral pleadings to demonstrate that what the Congo was in reality asking of the Court was that it should direct Belgium as to the method by which it should give effect to an eventual judgment finding that the warrant had infringed the immunity of the Congo’s Minister for Foreign Affairs. Counsel for Belgium sough to draw a distinction that according to him existed between the Court’s declaratory role and the responsibility of States to act in implementation of its decisions, which reflected “a commonly accepted feature of international adjudication” and a “commonly accepted division of function” between the Court and the States whose interests are in contention, consisting in that “[i]t is the function of the court to declare the law. It is for the State concerned to apply that law as declared.”272 As it can be seen, Belgium’s case in this regard relied heavily on the Haya de la Torre precedent and on the accepted notion that issues of compliance with a declaratory judgment fall outside the accepted judicial function and that they should not therefore be the subject of any judgment by the Court. It is submitted that by rejecting those contentions and granting the relief sought by Congo, entailing an injunction in the form of a mandatory order, the Court took a firm stance on this debated question and affirmed in a particularly robust manner its power to grant consequential orders as a legitimate form of remedy. Also important for this discussion is the Construction of A Wall Advisory Opinion, in which the Court stated that Israel is under an obligation to cease the numerous violations of international law identified in the opinion and remarked that this cessation entails a series of concrete actions, like the dismantling of parts of the structure of the wall and the repelling or rendering

270  Arrest Warrant, Merits, Judgment of 14 Feb. 2002, ICJ Rep. 2002, p. 30, para. 72. 271  Ibid., p. 31, para. 73. 272  Arrest Warrant, CR 2001/9, Sitting of 18 Oct. 2001, pp. 33–34, paras. 7, 13 (Bethlehem).

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ineffective of legislative and regulatory acts adopted with a view to its construction and to the establishment of its associated régime.273 That this may even be part of an actual trend in contemporary international adjudication, is shown by the fact that, after reviewing he practice of other international tribunals like the Inter-American and the European Courts of Human Rights and ICSID tribunals, an author was able to conclude that there is an “increasing practice” of international tribunals rendering judgments containing mandatory orders, which, in turn, is connected to “a more robust appreciation of their remedial powers” that these bodies have adopted in recent years.274 7)

Outcome of the Litigation in Cases Not Involving Issues of State Responsibility In cases in which the decision requested from the Court does not involve, at least in a direct manner, a determination that a breach of international law has been committed, two of the forms of redress reviewed above are the most often awarded by the Court: declaratory judgments and consequential orders. The considerations included above with regard to these forms of remedy are in general applicable to these cases, but there are specific aspects that deserve highlighting. Declaratory Judgments To begin with, declaratory judgments may play a variety of roles in the context of litigation before the ICJ.275 They made their appearance in the Court’s practice at the time of the PCIJ, a body that in one of its earliest decisions was faced with an objection to its jurisdiction based on the allegedly abstract character of a question forming the subject of a submission. The Court remarked that it saw no reason that States should not be able to ask it to give “an abstract interpretation of a treaty,” and underlined that Article 59 of the Statute did not exclude “purely declaratory judgments,” since its object was “[s]imply to prevent legal principles accepted by the Court in a particular case from being binding upon other States or in other disputes.” It also recalled that the possibility of a judgment having a purely declaratory effect was in effect foreseen in Articles 36

273  Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, pp. 197–198, para. 151. 274  Brown, “A Common Law . . .”, pp. 212, 215. 275  See a good discussion in Brownlie, “Remedies . . ., pp. 559–564. See also Gray, “Types of Remedies . . .”, pp. 406–410. This last author, however, takes a different approach than the one adopted in the present work.

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and 63 of the Statute itself, dealing, respectively, with the compétence de la compétence and with the interpretation of judgments.276 In a subsequent case, concerning a request for interpretation of one of its judgments, the Court defined a declaratory judgment as a decision [t]he intention of which is to ensure recognition of a situation at law, once and for all and with binding force as between the Parties; so that the legal position thus established cannot again be called in question in so far as the legal effects ensuing therefrom are concerned. (Factory at Chorzów-Interpretation, Judgment No. 11, 16 Dec. 1927, PCIJ A 13, p. 20)277

As for the present Court, in the Northern Cameroons case it reaffirmed that it feels entitled to give a declaratory judgment in which it either expounds a rule of customary law or interprets a treaty in force. It also clarified that one such judgment has “a continuing applicability” over the legal relations between the parties: That the Court may, in an appropriate case, make a declaratory judgment is indisputable. (. . .) [T]he Court observes that if in a declaratory judgment it expounds a rule of customary law or interprets a treaty which remains in force, its judgment has a continuing applicability.

(Northern Cameroons, Preliminary Objections, Judgment of 2 Dec. 1963, ICJ Rep. 1963, p. 37)278

By contrast, in the Nuclear Tests (Australia v. France) case the Court found it convenient to enquire [w]hether the Government of Australia requests a judgment by the Court which would only state the legal relationship between the Applicant and the Respondent with regard to the matters in issue, or a judgment of a

276  German Interests in Upper Silesia, Merits, Judgment No. 7, 25 May 1926, PCIJ A 7, pp. 18–19. 277  A decision of this type had been rendered in the Mavrommatis case (Merits, Judgment No. 4, 26 March 1925, PCIJ A 5, p. 51). 278  The subject of declaratory judgments was discussed at length in several of the individual opinions appended to the judgment. See in particular: Separate Opinion of Judge Wellington Koo, ICJ Rep. 1963, pp. 61–64; Dissenting Opinion of Judge Badawi, ibid., pp. 150– 151; Dissenting opinion of Judge Bustamante, ibid., pp. 170–172 and Dissenting Opinion of Judge ad hoc Beb a Don, ibid., pp. 193–196.

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type which in terms requires one or both of the Parties to take, or refrain from taking, some action. (Nuclear Tests (Australia v. France) Judgment of 20 Dec. 1974, ICJ Rep. 1974, p. 262, para. 29)

The Court took note that the applicant had initiated the litigation with a very specific objective in mind (to obtain the termination of the illegality of atmospheric nuclear test conducted by France in the South Pacific region) and from there it concluded that “[i]ts claim cannot be regarded as being a claim for a declaratory judgment”, because, [w]hile the judgment of the Court which Australia seeks to obtain would in its view have been based on a finding by the Court on questions of law, such finding would be only a means to an end, and not an end in itself.

(Nuclear Tests (Australia v. France) Judgment of 20 Dec. 1974, ICJ Rep. 1974, p. 263, para. 30)279

Box # 18-18 The proper role of declaratory judgments In a joint dissent in the Nuclear Tests (Australia v. France) case, four highly regarded members of the Court included an impassionate defence of the role that declaratory judgments are called to play in the context of international litigation. 8. (. . .) In international- litigation a request for a declaratory judgment is normally sufficient even when the Applicant’s ultimate objective is to obtain the termination of certain conduct of the Respondent which it considers to be illegal. As Judge Hudson said in his individual opinion in the Diversion of Water from the Meuse case: “In international jurisprudence, however, sanctions are of a different nature and they play a different role, with the result that a declaratory judgment will frequently have the same compulsive force as a mandatory judgment; States are disposed to respect the one not less than the other.” (. . .)

279  For a harsh criticism of the form in which the Court handled the concept of declaratory judgments in this decision see Mann, “The Consequences . . .”, pp. 11–12.

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And, as Charles De Visscher has stated: “The essential task of the Court, as emerges both from the submissions of the parties and from the operative parts of its judgments, normally amounts to no more than defining the legal relationships between the parties, without indicating any specific requirements of conduct. Broadly speaking, the Court refrains from pronouncing condemnations and leaves it to the States parties to the case to draw the conclusions flowing from its decisions.” [Translation.] 9. A dual submission, like the one presented here, comprising both a request for a declaration of illegality and a prayer for an order or injunction to end certain measures is not infrequent in international litigation. This type of dual submission, when presented in other cases has been considered by this Court and its predecessor as containing two independent formal submissions, the first or declaratory part being treated as a true submission, as an end in itself and not merely as part of the reasoning or as a means to obtain the cessation of the alleged unlawful activity. (. . .) The fact that consequential requests for an Order or an equivalent injunction are made, as they were made in the above-mentioned cases, was not then considered and cannot be accepted as a sufficient reason to ignore or put aside the Applicant’s primary submission or to dispose of it as part of the reasoning. Nor is it justified to introduce a conceptual dichotomy between declaratory and other judgment in order to achieve the same effect. The fact that the Applicant’s submissions are not limited to a declaration of the legal situation but also ask for some consequential relief cannot be used to set aside the basic submission in which the declaration of the legal situation is asked to be made in the operative part of the Judgment. (. . .) 21. Whatever may be thought of the Judgment in the Northern Cameroons case, the Court in that case recognized a critically significant distinction between holding a declaratory judgment to be “without effect” the subject of which (as in that case) was a treaty which was no longer in force and one which “interprets a treaty that remains in force” (emphasis added) or “expounds a rule of customary law” (emphasis added). As to both the latter, the Court said that the declaratory judgment would have a “continuing applicability” (. . .). In other words, according to the Northern Cameroons case a judgment cannot be said to be “without effect” or an

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issue moot when it concerns an analysis of the continuing applicability of a treaty in force or of customary international law. (. . .) The distinction drawn in the Northern Cameroons case is thus in keeping with the fundamental purpose of a declaratory judgment which is designed, in contentious proceedings involving a genuine dispute, to clarify and stabilize the legal relations of the parties. By foreclosing any argument on the merits in the present stage of the proceedings the Court has precluded this possibility. Accordingly, the Court, in our view, has not only wrongly interpreted the thrust of the Applicant’s submissions, is has also failed to recognize the valid role which a declaratory judgment may play in reducing uncertainties in the legal relations of the parties and in composing potential discord. (Nuclear Tests (Australia v. France), Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock, ICJ Rep. 1974, pp. 313–321)

As to the role that a declaratory judgment plays in the context of the outcome of a litigation, it is firstly worth reiterating that every decision of the Court is to some extent a declaratory judgment, inasmuch as many of the findings or conclusions at which the Court arrives are expressed in the form of a declaration of the legal situation in the case at issue. As it is customary that in their submissions the parties use what the Court itself has called “[t]he traditional formula of asking the Court ‘to adjudge and declare,’ ”280 it is typical for the Court to include in the dispositif of each judgment one or more declarations concerning the legal relations between the parties. The Court is of course entitled to render a decision that is purely declaratory and contains nothing but declarations of the type just described, but as a general rule its judgments contain in their operative section both, declaratory clauses and prescriptive or dispositive clauses. In a related development that has been justly highlighted, the Court observed in the Gabcikovo-Nagymaros case that part of its judgment dealing with the past conduct of the parties had a declaratory character, and then contrasted it with another section, dealing with “what the future conduct of the Parties should be.”281 It also remarked that the latter was “prescriptive rather

280  Nuclear Tests (Australia v. France), Judgment of 20 Dec. 1974, ICJ Rep. 1974, p. 263, para. 30. 281  Gray, “Types of Remedies . . .”, p. 405.

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than declaratory because it determines what the rights and obligations of the Parties are.”282 Declaratory relief is then the anticipated result of almost every case concerning the determination of a legal situation, such as the interpretation of a treaty or a rule of customary law or the delimitation of a territorial or maritime boundary—all of which feature regularly in the Court’s docket. In a case of this group, what is expected from the Court is not that it “rights a wrong” but that it sheds authoritative light on a situation in which lack of clarity as to the applicable law is affecting the relations between two or more States. Proceedings of this kind will normally lead to a declaratory judgment in which remedial measures strict sensu are never requested and therefore can be said to play no role in the litigation. Consequential Orders In the second place, the Court is always entitled to order the States parties to do or to refrain from doing a particular thing and this may take place without a previous finding that there has been a breach of an international obligation. Thus, it may happen that the dispositif of a judgment contains a consequential order, i.e. a clause directing the parties to take some action that does not constitute, strictly speaking, a legal remedy, in the sense that it is not conceived as a form of response for an internationally wrongful conduct declared as such by the Court. Probably the best examples of these situations are cases in which the Court is called to make a legal determination of a given situation and, as a consequence of such decision, certain actions by one or both of the parties must be performed. In the Arbitral Award (Honduras v. Nicaragua) case, for instance, the Court found that an award that had been impugned by Nicaragua was valid and binding, but it also found that “Nicaragua [wa]s under an obligation to give effect to it.”283 More to the point, in the Temple of Preah Vihear case, the Court decided a territorial dispute between Thailand and Cambodia and found that the building in question was under the sovereignty of the latter. In the pertinent part of the dispositif, the Court went on to declare that “in consequence:”

282  Gabcikovo-Nagymaros, Judgment of 25 Sept. 1997, ICJ Rep. 1997, pp. 75–76, paras. 130–131. In this later section of its decision, the Court fashioned its own remedy (Higgins, “An introduction . . .”, p. 10). 283  Arbitral Award (Honduras v. Nicaragua), Judgment of 18 Nov. 1960, ICJ Rep. 1960, p. 217 (dispositif ).

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Thailand is under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory; and that Thailand is under an obligation to restore to Cambodia any objects of the kind specified in Cambodia’s fifth Submission which may, since the date of the occupation of the Temple by Thailand in 1954, have been removed from the Temple or the Temple area by the Thai authorities (Temple of Preah Vihear, Merits, Judgment of 15 June 1962, ICJ Rep. 1962, p. 37)

Cambodia also made a claim for the restitution of these items but the Court declared in the reasoning section that, as in the case of the separate claim on the withdrawal of troops, it was “[i]mplicit in, and consequential on, the claim of sovereignty itself”284 In none of these cases did the obligation to take certain action that was imposed upon one of the parties constitute, strictly speaking, a remedy, as none of those States were found to have breached a rule of international law.285 More nuanced was the Cameroon v. Nigeria case, in which the Court arrived at a similar result after recalling its treatment of the matter in the Temple case.286 In its decision on the merits in this case, the Court made an attribution of territories between the parties in the Lake Chad area and the Bakassi Peninsula and, as a result, concluded that [t]he Court . . . observes that Cameroon is under an obligation expeditiously and without condition to withdraw any administration or military or police forces which may be present in areas along the land boundary from Lake Chad to the Bakassi Peninsula which pursuant to the present Judgment fall within the sovereignty of Nigeria. Nigeria has the same obligation in regard to any administration or military or police forces which may be present in areas along the land boundary from Lake Chad to the 284  Temple of Preah Vihear, Merits, Judgment of 15 June 1962, ICJ. Rep. 1962, p. 36). 285  For a different take on this matter see Higgins, “Remedies . . .”, pp. 1356–1357. 286  Cameroon v. Nigeria, Judgment of 10 Oct. 2002, ICJ Rep. 2002, p. 451, para. 313. The Libya/ Chad case was also mentioned in this passage, but in it the Court’s Judgment did not contain anything in the nature of an injunction. It was the parties themselves who agreed to undertake certain actions pursuant to the decision of a territorial dispute between them.

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Bakassi Peninsula which pursuant to the present Judgment fall within the sovereignty of Cameroon.287

(Cameroon v. Nigeria, Merits, Judgment of 10 Oct. 2002, ICJ Rep. 2002, pp. 451–452, para. 315)

However, this case is distinguishable from the two cases previously mentioned in this sub-section because in it the Court also needed to address a claim by Cameroon that Nigeria’s international responsibility was engaged for actions resulting from its occupation of portions of the disputed territories. The Court replied to this claim by stating that both the declaratory relief contained in its judgment and the evacuation of those territories by Nigeria constituted an adequate form of relief for the injury suffered by Cameroon. As this evacuation was to be accomplished as a direct result of the decision and in compliance with its terms, it is suggested that in this case the mandatory order to evacuate was considered by the Court itself as a proper remedy: In the circumstances of the case, the Court considers . . . that, by the very fact of the present Judgment and of the evacuation of the Cameroonian territory occupied by Nigeria, the injury suffered by Cameroon by reason of the occupation of its territory will in all events have been sufficiently addressed. The Court will not therefore seek to ascertain whether and to what extent Nigeria’s responsibility to Cameroon has been engaged as a result of that occupation. (Cameroon v. Nigeria, Merits, Judgment of 10 Oct. 2002, ICJ Rep. 2002, p. 452, para. 319)

c) Procedure The procedure to be followed by the ICJ with regard to the granting of remedies is relatively simple and depends above all on the form or forms of remedy requested. On one hand, if the remedial measures sought are non-pecuniary in character, all of the relevant procedural actions normally take place within the framework of the proceedings on the merits: the claims for remedies are included in the submissions of the party or parties injured;288 the supporting 287  Also in the dispositif: Cameroon v. Nigeria, Judgment of 10 Oct. 2002, ICJ Rep. 2002, p. 457, para. 325, V. 288  In any case, the claim for remedies may be included in a counter-claim filed under Article 80 of the Rules. In its decision on the merits in the Oil Platforms case the Court used in the dispositif the expression “counter-claim . . . for reparation” (“la demande reconventionnelle en réparation”) (Merits, Judgment of 6 Nov. 2003, ICJ Rep. 2003, p. 218, para. 125 (2)).

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evidence is produced in the course of the proceedings, written or oral that are organized; and the Court’s decision disposing of the matter is incorporated in its final judgment in the case, often in the form of a separate clause in the dispositif. It may thus be said that, from the standpoint of procedure, in most cases there is nothing particular concerning remedies and the rules concerning ordinary proceedings apply with full force to this aspect of the case. On the other hand, if the remedy sought is that of pecuniary compensation for damages, it is often the case that the determination of the “nature, form and amount of the reparation”289 is deferred for a later stage, after the parties are given the opportunity to settle these questions by direct negotiations, on the basis of the findings in the judgment. There is nothing preventing the parties from presenting detailed arguments and evidence on these questions from the very outset of the proceedings, but since the seminal Factory at Chorzów case, the practice of injured States who are parties to litigation has been to concentrate their legal argument and all of their efforts in front of the Court in demonstrating the existence of a breach and its attribution to the other party, leaving the question of the legal consequences thereof, i.e., the nature of reparation, for a subsequent phase of proceedings.290 Ordinarily, in cases in which this two-stage procedure is used and negotiations fail, there will be room for additional proceedings of a subsidiary or derivative nature, analogous to those that concern the interpretation or revision of judgments. However, an important difference is that these subsequent proceedings are not stand-alone proceedings and do not give rise to the opening of a new case with a separate entry in the Court’s General List, as it happens in the case of interpretation or revision. Proceedings on compensation or reparations are simply another phase in the proceedings concerning the case to which they relate and therefore are more in the nature of incidental post hoc proceedings.

289  The evolution of the language used by the Court in this context is interesting: while in the Corfu Channel case it referred to “the amount of compensation” (Merits, Judgment of 9 April 1949, ICJ Rep. 1949, p. 36); in US Hostages and Nicaragua it mentioned “the form and amount of reparation” (US Hostages, Merits, Judgment of 24 May 1980, ICJ Rep. 1980, p. 45, para. 95 (6) (dispositif ); Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 149, para. 292 (15) (dispositif )). In Armed Activities (DRC v. Uganda) the expression used was “the nature, form and amount of the reparation” (Merits, Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 257, para. 260). 290  This is related to the fact that parties to international proceedings often appear to treat the questions related to remedies almost as an afterthought (Shelton, “Righting Wrongs . . .”, p. 836).

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The rationale for this can be found in a passage of the judgment on the merits in the Fisheries Jurisdiction (Germany v. Iceland) case which reads as follows: In order to award compensation the Court can only act with reference to a concrete submission as to the existence and the amount of each head of damage. Such an award must be based on precise grounds and detailed evidence concerning those acts which have been committed, taking into account all relevant facts of each incident and their consequences in the circumstances of the case. It is only after receiving evidence on these matters that the Court can satisfy itself that each concrete claim is well founded in fact and in law. (Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment of 25 July 1974, ICJ Rep. 1974, p. 204, para. 76)

Similarly, the Court referred to the need for further proceedings in order to gather the relevant information and evidence concerning the exact amount of compensation owed by one party to the other in cases concerning State responsibility such as Corfu Channel,291 Nicaragua,292 Gabcikovo-Nagymaros293 and Armed Activities (DRC v. Uganda) cases.294 The Court has made it a point to stress that “[t]he opportunity should be afforded to [the applicant] to demonstrate and prove exactly what injury was suffered as a result of each action of [the respondent] which the Court has found contrary to inter­ national law.”295

291  Corfu Channel, Merits, Judgment of 9 April 1949, ICJ Rep. 1949, p. 26. 292  Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 142, para. 284. 293  Gabcikovo-Nagymaros, Judgment of 25 Sept. 1997, ICJ Rep. 1997, p. 81, para. 152. In this decision the Court said that it had not been asked, at this stage, “[t]o determine the quantum of damages due.” (ibid., p. 81, para. 153). 294  Armed Activities (RDC v. Uganda), Judgment of 19 Dec. 2005, ICJ Rep. 2005, pp. 256–257, paras. 258–260. In the US Hostages case the justification for not deciding the question of the form and amount of reparation at the merits stage appears to have been rather that the breaches of international obligations by Iran were still continuing at the time of the rendering of the judgment ( Judgment of 24 May 1980, ICJ Rep. 1980, p. 42, para. 90). 295  Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, pp. 142–143, para. 284; Armed Activities (DRC v. Uganda), Judgment, Judgment of 19 Dec. 2005, ICJ Rep. 2005, p. 257, para. 260.

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Box # 18-19 Interim awards of damages In the Nicaragua case the applicant supplemented its claim for reparation in the form of pecuniary compensation with a request, in the form of an interim award, of the payment of a given sum “’which sum constitutes the minimum valuation of the direct damages’ claimed by Nicaragua.” (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 20, para. 15). In its decision on the merits the Court considered appropriate that the request should be determined at a subsequent phase of the proceedings. The Court declined to entertain this request at that stage of the proceedings, because it apparently had doubts as to the entitlement of the State making the claim. Additionally, and given that it was facing a situation of lack of appearance, the Court found that doing so might jeopardize the chances of a negotiated settlement. The Court stated the following: There remains the request of Nicaragua (. . .) for an award, at the present stage of the proceedings, of $370,200,000 as the “minimum (and in that sense provisional) valuation of direct damages”. There is no provision in the Statute of the Court either specifically empowering the Court to make an interim award of this kind, or indeed debarring it from doing so. In view of the final and binding character of the Court’s judgments, under Articles 59 and 60 of the Statute, it would however only be appropriate to make an award of this kind, assuming that the Court possesses the power to do so, in exceptional circumstances, and where the entitlement of the State making the claim was already established with certainty and precision. Furthermore, in a case in which the respondent State is not appearing, so that its views on the matter are not known to the Court, the Court should refrain from any unnecessary act which might prove an obstacle to a negotiated settlement. (. . .) Accordingly, the Court does not consider that it can accede at this stage to the request made in the Fourth Submission of Nicaragua. (Nicaragua, Merits, Judgment of 27 June 1986, ICJ Rep. 1986, p. 143, para. 285)

It might be added that in the opinion of a well-known practitioner who acted as counsel for Nicaragua in this case, as important as the fact that the Court did not grant the interim award of direct damages requested for Nicaragua is the fact that it did not express in categorical terms that it lacked the jurisdiction to do so.296

296  Brownlie, “Remedies . . .”, p. 564.

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The decision on the merits in Fisheries Jurisdiction (Germany v. Iceland) is also important in the context of procedure because in it the Court admitted that “[i]t is possible to request a general declaration establishing the principle that compensation is due, provided the claimant asks the Court to receive evidence and to determine, in a subsequent phase of the same proceedings, the amount of damage to be assessed.”297 The implication seems to be that if the concerned State does not advance a claim for damages at the merits stage it will be precluded from doing so at a later stage. It will be remembered that in that case the Court rejected Germany’s submission containing a claim for compensation that had been maintained “in an abstract form,” precisely on the grounds that Germany not only “ha[d] not requested that . . . damages be proved and assessed in a subsequent phase of the . . . proceedings” but had also stated that it was not submitting “a claim for the payment of a certain amount of money as compensation.”298 It is generally admitted that the derivative proceedings on the question of compensation are instituted by the decision of the Court concerning the procedural steps to be taken by the parties on this matter.299 As for the structure of the proceedings to be organized with regard to the assessment of the compensation owed, the practice followed so far shows that they will consist of a single exchange of written pleadings and regular oral hearings.300 Significantly, in two occasions so far in which the Court has given active consideration to ordering the payment of a given sum in the nature of compensation for the breach of an international obligation—Chorzów, before the PCIJ and Corfu Channel, before the present Court—it felt the need to request an expert opinion on the matter under Article 50 of the Statute.301 An important detail of procedure is that the case will remain open and in the list of “pending cases” in the Court’s General List until the proceedings on compensation are terminated, whether by a final decision of the Court or by discontinuance pursuant to Articles 88 or 89 of the Rules. 297  Fisheries Jurisdiction (Germany v. Iceland), Merits, Judgment of 25 July 1974, ICJ Rep. 1974, p. 204, para. 76. 298  Ibid., pp. 204–205. 299  ICJ Yearbook (1953–1954), p. 101; Rosenne’s Law and Practice, vol. 3, p. 1206. 300  In Corfu Channel, two rounds of written pleadings were originally envisaged but only one took place, mainly because the respondent did not appear at this phase of the proceedings. Oral hearings were conducted nonetheless (Corfu Channel, Compensation, Judgment of 15 Dec. 1949, ICJ Rep. 1949, 245–249). 301  See Box # 8-12. In two other cases in which derivative proceedings on reparations were formally opened (US Hostages and Nicaragua) the applicant discontinued the proceedings before the Court reached a decision on the matter of compensation.

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Further Reading

[ Joinder] General Works and Treatises on the Court

Guyomar’s Commentaire, pp. 300–304 Hudson’s PCIJ, pp. 544–545 Mani’s Adjudication, pp. 144–146 Rosenne’s Law and Practice, vol. 3, pp. 1251–1260 Rosenne’s Procedure, pp. 108–110 S. Torres Bernárdez, “Article 48”, in Oxford Commentary, MN 33–41, pp. 1223–1225



Articles and Monographs

G. Guillaume, « La “cause commune” devant la Cour internationale de Justice », in E. Yakpo & T. Boumedra (Eds.), Liber Amicorum Mohammed Bedjaoui (1999), pp. 325–341



[Lack of Appearance] Leading Works

J. Elkind, Non-Appearance before the International Court of Justice: Functional and Comparative Analysis (1984) H. Thirlway, Non-Appearance before the International Court of Justice (1985)



General Works and Treatises on the Court



Articles and Monographs

H. von Mangoldt & A. Zimmermann, “Article 53”, Oxford Commentary, pp. 1324–1354 K. Oellers-Frahm, “Article 41”, Oxford Commentary, MN 65, pp. 1054–1055 Rosenne’s Law and Practice, vol. 3, pp. 1400–1418 Scerni’s La Procédure, pp. 655–658 N. Singh, The Role and Record of the International Court of Justice (1989), pp. 195–199 Thirlway’s Law and Procedure, Part. 12, BYIL, vol. 72, (2001), pp. 157–174

J.B. Acosta Estévez, “la Incomparecencia en el proceso ante el Tribunal Internacional de Justicia”, REDI, vol. 49 (1997), pp. 11 ff. C.F. Amerasinghe, Evidence in International Litigation (2005), pp. 144–146. J.I. Charney, “Disputes Implicating the Institutional Credibility of the Court: problems of Non-Appearance, Non-Participation, and Non-Performance”, in L.F. Damrosch (Ed.), The International Court of Justice At A Crossroads (1987), pp. 288–319 C.A. Colliard, “La non-comparition”, in Société Française pour le Droit International, Colloque de Lyon, La Juridiction internationale permanente (1987), pp. 167–190

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P. Eiseman, « Les effets de la Non-Comparation devant la Cour internationale de Justice », AFDI, vol. 19 (1973), pp. 351 ff. G. Guyomar, Le défaut des parties a un différend devant les jurisdictions internationals (1960) N. Singh, The Role and Record of the International Court of Justice (1989), pp. 195–199 A. Zanobetti, La non-comparizione devanti alla Corte internazaionale di Giustizia (1996)

[Appeals] Leading Work

S. Rosenne, Interpretation, Revision and Other Recourse from International Judgments and Awards, (2007), pp. 156–158



General Works and Treatises on the Court



Articles and Monographs

G. Gaja, “Relationship of the ICJ with Other International Courts and Tribunals”, in Oxford Commentary, pp. 571–584 Guyomar’s Commentaire, pp. 556–561 Hudson’s PCIJ, pp. 294, 430–433, 544 Rosenne’s Procedure, pp. 183–184 Thirlway’s Law and Procedure, Part 9, BYIL, vol. 69 (1998), pp. 57–71 S. Yee, “Article 40”, in Oxford Commentary, MN 139, pp. 995–996 A. Zimmermann & T. Thienel, “Article 60”, in Oxford Commentary, MN 6–10, pp. 1472–1473

L.C. Caflisch, “Reference Procedures and the International Court of Justice”, in L. Gross (ed.), The Future of the ICJ, (1976) vol. 2, pp. 572–609 N. Gal Or, “The Concept of Appeal in International Dispute Settlement”, EJIL, vol. 19 (2008), pp. 43–65 C.W. Jenks, The Prospects of International Adjudication (1964) S. Petren, « La Cour Internationale de Justice Comme Juridiction de Recours », Communicazioni e Studi, vol. 14 (1975), pp. 687–697 S. Rundstein, La Cour permanente de Justice internationale comme instance de recours, RC, vol. 43 (1933-I), pp. 1–113 J.H.W. Verzijl, “Administration of International Justice on Appeal” in Verzijl’s Jurisprudence, vol. 1, pp. 347–359

[Remedies] Leading Work

C. Gray, Judicial Remedies in International Law (1987)

Other Litigation Devises



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W. Blomeyer, “Types of Relief Available (Judicial Remedies)”, in International Encyclopedia of Comparative Law (1982), vol. 16, Ch. 4. I. Brownlie, “Why Do States Take Disputes to the International Court?”, in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge Shigeru Oda, vol. 2 (2002), pp. 829–834 E. Brown Weiss, “Invoking State Responsibility in the Twenty-First Century”, AJIL, vol. 96 (2002), pp. 798–816 I. Brownlie, “Remedies in the International Court of Justice”, in V. Lowe & M. Fitzmaurice, (Eds.), Fifty Years of the International Court of Justice—Essays in Honour of Sir Robert Jennings, 1996, pp. 557–566 R. Higgins, “Remedies in the International Court of Justice”, in R. Higgins, Themes and Theories—Selected Essays, Speeches, and Writings in International Law (2009), pp. 1352–1358 M. Mendelson, “State Responsibility for Breach of Interim Protection Orders of the International Court of Justice”, in M. Fitzmaurice & D. Sarooshi (Eds.), Issues of State Responsibility before International Judicial Institutions (2004), pp. 35–53 C.J. Tams, “Consular Assistance: Rights, Remedies and Responsibility: Comments on the ICJ Judgment in the LaGrand Case”, EJIL, vol. 13 (2002), pp. 1257–1259 H. Thirlway, “Injured and Non-Injured States before the International Court of Justice”, in M. Ragazzi (Ed.), International Responsibility Today, Essays in Memory of Oscar Schachter (2005), pp. 311–328 S. Wittich, “Non-Material Damage and Monetary Reparation in International Law”, Finnish YIL, vol. 15 (2004), pp. 321–368

Chapter 19

Litigation Before Chambers Article 25, paragraph 1 of the Statute lays down the basic rule that “[t]he full Court shall sit except when it is expressly provided otherwise in the present Statute.” The only exceptions to this rule are found in Articles 26 and 29, wherein three different kinds of chambers of the Court are envisaged, namely: i)

Chambers formed from time to time for dealing with particular categories of cases, or “Special Chambers” (Article 26, para. 1); ii) Chambers formed for dealing with a particular case, or “ad hoc Chambers” (ibid, para. 2); and iii) A Chamber that may hear and determine cases by summary procedure (Article 29). The chambers should not be confused with the committees of the Court. Although the members of these committees are judges who are elected periodically, they do not perform judicial functions. There are at present five such committees in existence, namely the Budgetary and Administrative Committee; the Committee on Relations; the Library Committee; the Rules Committee; and the Committee on Computerization.1 While the standing chambers mentioned in letters i) and iii) above were inherited from the Permanent Court, the institution of ad hoc chambers or chambers formed to deal with particular cases was an innovation introduced in the Statute at the San Francisco Conference.2 As for the governing provisions in the Rules of Court, they are found in two separate sections: Section C of Part I (“The Chambers”) and Section E of Part III (“Procedure before Chambers”). The current system concerning chambers is primarily the product of a suggestion of the Washington Committee of Jurists, which endorsed a proposal by its American member aimed at (one) Streamlining the detailed provisions in Articles 26 and 27 of the old Statute concerning standing chambers that were 1  ICJ Yearbook (2009–2010), pp. 203–204. 2  The Informal Inter-Allied Committee that worked in 1943–1944 advanced in a rather hesitant and tentative manner two sets of proposals for the creation of a system of “regional chambers” of the future Court (Inter-Allied Committee Report, pp. 29–36). They were not taken up in subsequent discussions.

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never used and (two) Creating a new type of chamber, to be formed in order to deal with a particular case.3 The Chamber of Summary Procedure, to be formed annually under Article 29, was preserved with no changes, thus rejecting a British proposal at the San Francisco Conference to delete it. In the original Statute, this chamber was to be composed of three judges, but in the 1929 revision this was changed to five, with the main purpose of allowing for the appointment of either national judges or judges ad hoc.4 As for standing chambers formed to deal with special categories of cases or “special” chambers, while the old Statute contemplated only “labour cases” and “cases relating to transit and communications,” Article 26, para. 1 of the 1945 text goes on to mention “particular categories of cases; for example, labour cases and cases relating to transit and communications.”5 With regard to this type of chamber the main change introduced in 1945 was that the detailed provisions found in Articles 26 and 27 of the PCIJ’s Statute were replaced by a general power of the Court to form these chambers “from time to time.” Two major changes must also be noted, namely (i) The deletion of a reference to Article 9 of the Statute, concerning the geographical distribution of the members of the bench, and (ii) The reduction of the number of members constituting the minimum to form one of such chambers, which was changed, from five to “three or more judges.” Under the 1945 Statute it is clear that (one) A case can be dealt with by any of these chambers only with the consent of the parties (Article 26, para. 3 and Article 29) and; (two) A decision given by one of these chambers “shall be considered as rendered by the Court” (Article 27). This provision was absent from the PCIJ Statute. It was introduced at the suggestion of the United States member in the Washington Committee of Jurists and it is based on Article 73 of the 1936 Rules (applicable to special chambers and to the Chamber of Summary Procedure), which in turn was based on Article 70 of the 1922 Rules (applicable only to the latter).6 Its incorporation to the Statute may have been motivated by an understandable desire not to alter the numbering of articles composing 3  M.O. Hudson, “The 24th Year of the World Court”, AJIL, vol. 40 (1946), p. 26. For the legislative history of Articles 26–29 of the Statute see S. Schwebel, “Ad Hoc Chambers of the ICJ”, AJIL, vol. 81 (1987), pp. 831–835; and S. Oda, “Further Thoughts on the Chambers Procedure of the ICJ”, AJIL, vol. 82 (1988), pp. 560–561. 4  Hudson’s PCIJ, p. 180. For the British proposal, see UNCIO, vol. 16, p. 317. 5  In Articles 26 and 27 of the old Statute mention was made of cases to which Parts XIII and XII of the Treaty of Versailles and the corresponding portions of the other peace treaties referred. 6  UNCIO, vol. 14, pp. 111 and 335.

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the new Statute, which could have occurred given the overhaul in the provisions concerning chambers. The three types of chambers have several common features. In the first place, the procedure used for the election of the members of all chambers is exactly the same. This is governed by Article 18 of the Rules, providing that the elections are to take place by secret ballot, applying the simple majority rule of the judges composing the Court at the moment at which the election takes place (paragraph 1). Once constituted, the chamber elects its President and Vice-President, unless one of the elected members is the President or the VicePresident of the Court, in which case he or she will preside over the chamber (paragraph 2). Secondly, under Article 28 of the Statute the three types of chambers can exercise their functions from anywhere and not just in the city of The Hague, a possibility that the old Statute reserved for the special chambers provided for in Articles 26 and 27.7

Box # 19-1 Can a chamber of the Court render advisory opinions? The question may be validly asked whether the chambers of Articles 26 and 29 of the Statute are competent to give advisory opinions. While this is not provided for expressly in the Statute or the Rules, there are several elements that must be taken into account before attempting to provide a definite answer. First of all, the question appeared to have received a clearly negative answer at the time of the PCIJ.8 Secondly, there is language in the Statute and the Rules that supports the notion that the entire chambers system was designed with a view of being used in contentious cases. This is the case of Article 25 (“The full Court shall sit except when it is expressly provided otherwise in the present Statute”); Article 26 (“The Court may from time to time form one or more chambers, composed of three or

7  By virtue of another amendment adopted in San Francisco, the full Court was also authorized to sit and exercise its functions in a place other than The Hague “whenever the Court considers it desirable” (Article 22, para. 1). 8  Hudson’s PCIJ, pp. 346, 503. See also PCIJ D 2, 3rd Add, p. 795. However, in a report contemporaneous to the 1920 Draft-Scheme prepared by the Advisory Committee of Jurists it was stated that the Chamber of Summary Procedure “[m]ay also be called upon to give advisory opinions” (Brown Scott’s Project, p. 84).

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more judges as the Court may determine, for dealing with particular categories of cases;” “The Court may at any time form a chamber for dealing with a particular case”) and Article 27 (“A judgment given by any of the chambers provided for in Articles 26 and 29 shall be considered as rendered by the Court”). There is also the fact that both Article 26 and Article 29 refer several times to “the parties” to the case, a formula that quite obviously is not applicable in advisory proceedings. Additionally, Article 90 of the current Rules, dealing with the provisions governing the chambers system, explicitly refers to “[t]he provisions of Parts I to III of these Rules applicable in contentious cases before the Court,” which is all the more significant because its predecessor, Article 75 of the 1972 Rules, only mentioned “the provisions relating to procedure before the Court”. On the other hand, there is Article 68 of the Statute and Article 102, para. 2 of the Rules, authorizing in very wide terms the transportation, at the Court’s discretion, of procedures and procedural institutions normally used in contentious proceedings to advisory proceedings. In fact, it can be contended that the raison-d’être of this provision is precisely to permit the use in advisory proceedings of rules that would not normally apply to them, like the provisions concerning chamber that were listed above.9 While there is a certain tension between these rules, opposite views have been expressed on this question in legal literature.10 The overall understanding, however, appears to be that the Court would be entitled to resort to a flexible interpretation of Article 68 of the Statute and allow a request for an advisory opinion to be processed by a chamber, especially in the event of an international organization making a special request to that end. This is particularly true if the chamber is either a special chamber formed under Article 26. para. 1, or the Chamber of Summary Procedure provided for in Article 29.

9  E. Lauterpacht, Aspects of the Administration of International Justice (1991), p. 97. 10  L. Gross, “The International Court of Justice: Consideration of Requirements for Enhancing its Role in the International Legal Order”, AJIL, vol. 65 (1971), p. 277; S. Rosenne, “The 1972 Revision of the Rules of the International Court of Justice”, Israel Law Review, vol. 8 (1973), p. 215; E. Valencia-Ospina , “The Use of Chambers of the International Court of Justice”, in V. Lowe & M. Fitzmaurice, (Eds.), Fifty Years of the International Court of Justice, Essays in Honour of Sir Robert Jennings (1996), pp. 526–527; Rosenne’s Law and Practice, vol.3, pp. 1722–1724; S.M. Schwebel, “Chambers of the International Court of Justice Formed for Particular Cases”, in Justice in International Law (1994), pp. 118–120; Thirlway’s Law and Procedure, Part 11, p. 53, n. 54; I. Seidl-Hohenveldern, “Access of

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On the other hand, there are important differences between these three types of chambers, namely: i)

While both the special chambers of Article 26, para. 1 and the Chamber of Summary Procedure of Article 29 have certain permanence (the former may be formed “from time to time” and the latter will be formed annually), the chambers of Article 26, para. 2 are entirely ad hoc or transitory, thus strongly resembling an arbitral tribunal which becomes functus officio once it has rendered its decision. ii) The number of judges forming the chambers is not uniform. A special chamber will be composed by a minimum of three judges (nothing is said as to the maximum number); the Chamber of Summary Procedure is always composed of a fixed number of five; and ad hoc chambers will have an undefined number of members, to be determined by the Court “with the approval of the parties.” Since Article 26, para. 2 speaks of “the number of judges,” it appears that one such a a chamber consisting of only one judge is excluded.11 iii) Lastly, the degree of participation of States parties with regard to the activation of a chamber is not the same. In the case of special chambers and the Chamber of Summary Procedure, the parties simply request from the Court that a given case be dealt with by an existing chamber and not by the full Court. In the case of an ad hoc chamber, the States that so request are also entitled (under the Statute) to approve the number of judges who will compose the chamber and, additionally (under the Rules), have a say in the eo nomine composition of the chamber. This aspect will be discussed below in more detail.



International Organizations to the International Court of Justice”, in A.S. Muller, D. Raic & J. Thuranszky (Eds.), The International Court of Justice. Its Future Role after Fifty Years (1997), p. 198; Palchetti, “Article 26”, in Oxford Commentary, pp. 446–447. 11  A proposal to that effect was discussed at San Francisco. See Schwebel, “Chambers . . .”, pp. 96, 98. For a critical appraisal see H. Mosler, “The ad hoc Chambers of the International Court of Justice: Evaluation after Five Years of Experience”, in Y. Dinstein (Ed.), International Law at a Time of Perplexity-Essays in honour of Shabtai Rosenne (1989), pp. 457–458.

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Use of chambers: A review of the practice

At the PCIJ the only chamber that was activated was the Chamber of Summary Procedure, which dealt with the different phases of the Treaty of Neuilly case ( Judgment No. 3, 12 Sept. 1924, PCIJ A 3; Interpretation of Judgment No. 3, Judgment No. 4, 26 March 1925, PCIJ A 4). The Court formed standing chambers under Articles 26 and 27 of the Statute to deal with labor cases and cases concerning transit and communications but no case was ever brought before any of them. In the present Court ad hoc chambers have been formed on six occasions:

• Gulf of Maine (Constitution of Chamber, Order of 20 Jan. 1982, ICJ Rep. 1982, p. 3) • Burkina Faso/Mali (Constitution of Chamber, Order of 3 April 1985, ICJ Rep. 1985, p. 6) • El Salvador/Honduras (Constitution of Chamber, Order of 8 May 1987, ICJ Rep. 1987, p. 10) • Elettronica Sicula (Constitution of Chamber, Order of 2 March 1987, ICJ Rep. 1987, p. 3) Benin/Niger (Formation of Chamber, Order of 27 Nov. 2002, ICJ Rep. 2002, • p. 613) • Application for Revision-El Salvador/Honduras (Formation of Chamber, Order of 27 Nov. 2002, ICJ Rep. 2002, p. 618).

More recently, in the Jurisdiction and Enforcement of Judgments (Belgium v. Switzerland) case, the applicant proposed that the case be heard by an ad hoc chamber, but the respondent did not accept (Order of 4 February 2010, ICJ Rep. 2010, p. 9). No case has ever been brought before either a special chamber formed under Article 26, para. 1 of the Statute or the Chamber of Summary Procedure provided for in Article 29.

a)

Special Chambers

Article 16 of the Rules contains the basic regime concerning the constitution of the special chambers contemplated in Article 26, para. 1 of the Statute.

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Under paragraph 1 of that provision, when the Court decides to form one or more of those chambers, it should determine four specific aspects, namely: i) ii) iii) iv)

The particular category of cases for which each chamber is formed; The number of its members (which must be higher than three); The period for which they will serve; and, The date at which they will enter upon their duties.

When the Court proceeds to carry out the election it shall take into account “any special knowledge, expertise or previous experience which any of the Members of the Court may have in relation to the category of case the chamber is being formed to deal with” (Article 16, para. 2).12 Under paragraph 3 of the same provision, the Court may decide at any time upon the dissolution of one of these chambers, but “without prejudice to the duty of the chamber concerned to finish any cases pending before it.” Since the chambers foreseen in Article 26, para. 1 and in Article 29 of the Statute are standing panels, it is not surprising that the submission of cases to one of them is governed by common rules that are different from those applicable to cases brought before an ad hoc chamber. Article 91 of the Rules governs the matter and applies to both, special chambers and the Chamber of Summary Procedure. The point of departure is that when the parties desire that a case should be dealt with by one of those chambers, “a request to this effect shall either be made in the document instituting the proceedings or accompany it.” In the PCIJ the situation was different: the procedure to be followed before the special chambers provided for in Articles 26 and 27 of the old Statute was the ordinary procedure applicable in cases before the full Court, and there were special rules governing the summary procedure to be used in cases before the chamber foreseen in Article 29.13 No case ever came before any of these chambers, although in the S.S. Wimbledon case the possibility of calling the parties’ attention to the provisions of Article 27 of the Statute was briefly discussed.14 The same article provides that “effect will be given to the request if the parties are in agreement.” Therefore, when the case is instituted by special agreement the Court would take the necessary steps without further ado; when it is 12  In the French version of this article the expressions used are slightly different: “connaissances particulières,” “aptitudes techniques” and “expérience.” 13  Scerni’s La Procédure, p. 653. 14  PCIJ E 3, p. 189.

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submitted by application the views of the respondent would need to be ascertained and only after that State gives its consent can the Court proceed accordingly. Once the request is received by the Registry, the President of the Court is bound to take three successive actions, namely: (one) To communicate the request to the members of the chamber concerned; (two) To take such steps as may be necessary to give effect to the provisions of Article 31, para. 4, of the Statute (concerning the appointment of judges ad hoc); and (three) To convene the chamber “at the earliest date compatible with the requirements of the procedure.” The remaining aspects of procedure before one of these chambers are governed by the common rules contained in Articles 92 and 93 of the Rules of Court, which will be examined below in the subsection regarding ad hoc chambers.15 In July 1993, the Court decided to form a seven-member Chamber for Environmental Matters, but no case was submitted to it and after thirteen years the Court decided to dissolve it in 2006.16 As a result, the Court has never had occasion to apply any of these provisions.

Box # 19-3 A special chamber to deal with preliminary objections? As explained in Chapter 12, challenges to the Court’s jurisdiction and/or to the admissibility of an application, whether in the form of preliminary objections or in other forms, are a regular feature of litigation before the Court and the handling of them consumes a large portion of the Court’s time. In fact, it is fair to say that, at any given moment, there is a high degree of probability that the Court’s docket includes proceedings devoted exclusively to questions of jurisdiction or admissibility. This is probably what prompted an author to suggest using the system of special chambers to deal with cases concerning jurisdiction and admissibility. In an article published in a well-known legal periodical in 1988, R. Ostrihansky included a proposal along the following lines: 15  For a critique of this harmonization of the procedure applicable to all chambers see P. Palchetti, “Article 26”, MN 17–19, pp. 488–489. 16  ICJ Yearbook (1993–1994), p. 18. See R. Ranjeva, “L’Environnement, la Cour internationale de Justice et sa Chambre spéciale pour les questions d’environnement”, AFDI, vol. 40 (1994), pp. 432–441; Valencia-Ospina, “The Use . . .”, pp. 521–527; M, Fitzmaurice, “The International Court of Justice and Environmental Disputes”, in D. French et al. (Eds.) International Law and Dispute Settlement, New Problems and Tecniques (2010), pp. 54–55.

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A special chamber to deal with [preliminary objections] could substantially speed up and unify proceedings before the Court. It would partially resemble a court sitting in pre-trial session, seen in some municipal legal systems. Obviously the formation of such a chamber would require the amendment of the Rules of Court as well as a wide interpretation of Article 26, paragraph 1 of the Statute.17 The “wide interpretation” of Article 26, para. 1 of the Statute to which this passage refers is probably related to the fact that the expression “particular categories of cases” has always been understood as meaning categories of substantive cases, such as the two examples mentioned in the same provision, namely “labour cases and cases relating to transit and communications.” Arguably, it would be difficult to consider that proceedings on preliminary objections in a given case constitute a “particular category of case” within the meaning of that provision, just as it would be difficult for the Court to single out who among its members possesses “special knowledge, expertise or previous experience” on questions pertaining to preliminary objections, in order to give effect to the requirement in Article 16, para. 2 of the Rules. Additionally, it has also been traditionally understood that the special chambers will be formed to deal with cases concerning technical matters, in the sense that their handling requires specialized knowledge. In 1923, the PCIJ decided not to call the attention of the parties to a case to the relevant provision in the Statute because it was held that “only legal questions (. . .), and not technical questions, were involved in the case and that the clauses of the Statute dealing with the Special Chamber and technical assessors contemplated transit cases possessing a technical aspect.” (PCIJ E 3 (1926–1927), p. 189). Within these parameters, questions concerning jurisdiction will be, almost by definition, legal and not technical questions. However, a more substantial objection to this proposal can be raised on the basis that in the present Court’s regime proceedings on preliminary objections do not constitute a case that is different from the case on the merits in which the objections are raised, but rather a phase in that case or, more technically, incidental proceedings connected to and inseparable from the main proceedings.18 It would be awkward, to say the least, if the aspects on jurisdiction and admissibility of a given case were dealt with by one body (a special chamber), and

17  R. Ostrihansky, “Chambers of the International Court of Justice”, ICLQ, vol. 37 (1988), p. 48. 18  The situation in this regard was different at the time of the PCIJ. For details see Box # 12-14.

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the merits of the same case (and presumably any other incidental proceedings arising in the case) by a different body (the full Court). Such an arrangement would violate a basic principle of procedure stated by the Court in the following succinct terms: “[i]t is for the tribunal seised of a principal issue to deal also with any issue subsidiary thereto; (. . .) a chamber formed to deal with a particular case therefore deals not only with the merits of the case, but also with incidental proceedings arising in that case” (El Salvador/Honduras, Application to Intervene, Order of 28 Feb. 1990, ICJ Rep. 1990, p. 4) By the same token, it might be said that, as a matter of principle, the full Court deals not only with the merits of a case, but also with preliminary objections and any other incidental proceedings arising in that case.19 For the above reasons, it is respectfully suggested that the proposal to establish a special chamber under Article 26, para. 1 of the Statute to deal with proceedings on preliminary objections is not viable.20

b)

Ad hoc Chambers

Activation Although they have been present in the Statute since 1945, it took States a fairly long time to start making use of the mechanism of ad hoc chambers. The process began in earnest in 1968, with the publication of a piece by the American jurist J.N. Hyde in an influential legal periodical, in which he advocated for the resort to this untried device as an alternative to either adjudication by the full Court or the setting up of an arbitral tribunal.21 In the same year, a proposal circulated at the United Nations Conference on the Law of Treaties concerning the possibility of resorting to an ad hoc Chamber, albeit in the context of advisory 19  Analogous objections may be raised to suggestions calling for the establishment of special “pre-trial chambers specializing in evidentiary matters.” See one such suggestion in S. Halink, “All Things Considered: How the International Court of Justice Delegated Its Fact-Assessment to the United Nations in the Armed Activities Case”, New York University Journal of International Law and Politics, vol. 40 (2007–2008), pp. 43–47. 20  Another related problem would be if a case is submitted that does not fall within the categories of cases for which a special chamber was created. In this event, doubts might arise as to which body is competent for deciding on the chamber’s subject-matter jurisdiction. See a discussion in Palchetti, “Article 26”, MN 22–24, pp. 490–492. 21  J.N. Hyde, “A Special Chamber of the ICJ-an Alternative to Ad Hoc Arbitration”, AJIL, vol. 62 (1968), pp. 439–441.

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proceedings, which is a possibility that, as seen above, is likely not covered by Article 26, para. 3 of the Statute. In the following years there were numerous references to this possibility, both by governments and by scholars, and the Court duly noticed this trend and factored it in when adopting the 1972 reforms to its Rules. Worthy of mention in this regard are a lecture by judge P. Jessup at the 1970 session of The Hague Academy of International Law and a statement of the then Secretary of State, William P. Rogers, at the same year’s annual meeting of the American Society of International Law.22 The setting up of the arbitral tribunal entrusted to deal with the Beagle Channel case may also have influenced the process, as it was composed entirely by members of the Court.23 In the wake of these developments, one of the main considerations that the Court took into account when it undertook the revision of its Rules was the need to “facilitate recourse to Chambers of the Court and concede to the parties some influence in the composition of ad hoc Chambers constituted under Article 26, para. 2, of the Statute.”24 Thus, it must be noted that the Court took this step as a response to the expectations manifested by a number of States who made it known that the resort to chambers could very well be one way to reactivate international adjudication, which was seriously affected by a crisis of confidence. In fact, in the year 1970, there was a time at which the Court had not one single case in its docket.25 The measures adopted were seen at the time as a step directed at reactivating the work of the Court and making it more attractive for its clientele.26 After the Court adopted these pivotal reforms to its Rules, the UN General Assembly concluded the review of the role of the Court that it had been 22  “To Form a More Perfect United Nations”, RC, vol. 129 (1970-I), p. 21); ASIL Proceedings, vol. 64 (1970), p. 288. 23  See E. Hambro, “Will the revised Rules of Court lead to greater willingness on the part of prospective clients?” in L. Gross (Ed.), The Future of the International Court of Justice, vol. 1 (1976), pp. 367–368. 24  E. Jiménez de Aréchaga, “The Amendments to the Rules of Procedure of the International Court of Justice”, AJIL, vol. 67 (1973), p. 1. With the 1978 reform, the Court maintained and further refined the amendments adopted in 1972 and reported that it also “continued its endeavours to facilitate recourse to Chambers” (ICJ Yearbook (1977–1978), p. 113). 25  Between 5 February 1970 (the delivery of the judgment in the Barcelona Traction (Second Phase) case) and 29 July of the same year (the submission of a request for an advisory opinion in the Namibia case), the Court’s docket was entirely empty. A new contentious case was brought before the Court only on 30 August 1971 (ICAO Council). ICJ Yearbook (1970–1971), p. 100. See also Schwebel, “Ad Hoc Chambers . . .”, p. 835. 26  H. Mosler, “The ad hoc Chambers . . .”, p. 452.

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conducting throughout its 25 to 29 periods of sessions (1970–1974) and in the resolution adopted on the topic it took note of the fact that one of the amendments had the purpose of “allowing for greater influence of parties on the composition of ad hoc chamber.” It also decided to draw the States’ attention to the possibility of making use of chambers as provided in Articles 26 and 29 of the Statute, “including those which would deal with particular categories of cases.”27

Box # 19-4 The 1972/1978 reforms to the Rules concerning chambers In the 1946 Rules, which closely followed Article 24 of the 1936 Rules, the organ­ izational aspects of the chambers system were governed entirely by Article 24. This article contained very succinct provisions, most of them (paragraphs 2, 4 and 5) being common to the three types of chambers. Paragraph 1 of Article 24 dealt with certain aspects of the special chambers of Article 26, para. 1 of the Statute, and paragraph 3 with the Chamber of Summary Procedure of Article 29. In articles 70 to 73, which comprised Section 2 (“Procedure before Chambers”) of Heading II (“Contentious Proceedings”), certain provisions dealt specifically with ad hoc chambers. In the amendment of 1972 the Court introduced substantive changes to the provisions concerning the organization of chambers, replacing Article 24 of the 1946 Rules with a set of provisions contained in Articles 24 to 27. As to procedure, major changes were also introduced in what became articles 75 to 78.28 In 1978, these provisions underwent additional changes and renumbering and, in particular, the provisions of an institutional nature were relocated as a new section C (“The Chambers”) of Part I (“The Court”), composed of articles 15 to 18. It has been pointed out that this replacement underlines the

27  AG Resolution 3232 (XXIX) of 12 November 1974, sixth preambular clause and operative clause 4, respectively. 28  Since the Court has not published the records of its discussions on the 1972 amendment, the only sources of information in this regard are scholarly comments published by individuals who were involved in the process or by scholarly authorities on the Court. Especially relevant for the topic under discussion are the following: E. Jiménez de Aréchaga, “The Amendments . . .”, pp. 2–4; S. Rosenne, “The 1972 Revision of the Rules of the ICJ”, Israel LR, vol. 8 (1973), pp. 211–215; Hambro, “Will the Revised Rules . . .”, pp. 366–370.

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“independent institutional status” that all the chambers have now within the regime of the Court.29 The rules on procedure remained placed at the end of the Rules, in Section E (“Proceedings before the Chambers”), made up by what are now articles 90 to 93.30 These provisions govern the following aspects: Organization Article 15 Article 16 Article 17 Article 18

Chamber of Summary Procedure Special chambers Ad hoc chambers Election of members (common provision to all chambers)

Procedure Article 90 Article 91 Article 92 Article 93

Applicable provisions Standing chambers—institution of proceedings Procedure—written and oral proceedings Reading of the judgment (common provision)

• • • • • • • •

It was now for the States to test the arrangements contained in the new rules concerning ad hoc chambers and this happened for the first time in 1981, when Canada and the United States became the first States to invoke Article 26, para. 2 of the Statute, requesting the Court to form a chamber to deal with a maritime delimitation dispute. The 1980s decade was particularly propitious for the chambers system, as not less than four of them were formed and duly dealt with contentious cases. In subsequent years the mechanism of ad hoc chambers has been activated only twice, one of them in derivative proceedings on revision.

29  Rosenne’s Procedure, p. 40. 30  For comments see S. Rosenne, “Some Reflections on the 1978 Revised Rules of the ICJ”, Columbia Journal of Transnational Law, vol. 19 (1981), pp. 248–249; M. Lachs, “The Revised Procedure of the International Court of Justice” in F. Kalshoven, et al. (Eds.), Essays on the Development of the International Legal Order in Memory of Haro F. van Panhuys (1980), pp. 42–44.

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Box # 19-5 The Gulf of Maine case: A wrong start for ad hoc chambers? 31 Canada and the United States must be credited with having taken the step of activating the ad hoc chambers system of the ICJ, an example that was quickly followed by several States. However, the joint original submission of the Gulf of Maine case and the request to form a chamber to deal with the case were not free of difficulties. In the first place, when the Court processed the request internal discussions were held on several aspects of the relevant legal instruments.32 That these discussions were inconclusive is demonstrated by the fact that the Court felt the need to take the unprecedented step of requesting a number of clarifications from the parties and it only proceeded to elect the members of the chamber after receiving their replies. The process is minutely recorded in the order that the Court eventually made on the formation of the Chamber and both the questionnaire prepared by the Court and the (joint) reply provided by the parties make for very good reading as they shed light upon some of the basic understandings (and misunderstandings) that may have prevailed at the time of the constitution of the first ad hoc chamber of the ICJ.33 Secondly, these were, no doubt, highly technical matters, and although the parties’ responses were somewhat elusive, they managed to appease those members of the Court who were feeling discomfort with the situation. As a result, shortly after receiving the reply, the Court elected the members of the chamber, mostly according to the conditions that Canada and the US had established among themselves. Apart from that, the submission of the Gulf of Maine

31  There is abundant literature on this case and its effects. See R. Brauer, “International Conflict Resolution: The ICJ Chambers and the Gulf of Maine Dispute”, Virginia JIL, vol. 23 (1983), pp. 463–486; D.R. Robinson, D.A. Colson & B.C. Rashkow, “Some Perspectives on Adjudicating before the World Court: The Gulf of Maine Case”, AJIL, vol. 79 (1985), pp. 578–597. 32  The parties concluded two separate instruments: a treaty and a special agreement. While the submission of the case was made by means of the latter, a certified copy of the former was also transmitted to the Court “as background information.” The judgment on the merits reproduces only the text of the special agreement (Gulf of Maine, Judgment of 12 Oct. 1984, ICJ Rep. 1984, pp. 252–255, para. 5). For the text of the treaty and related documentation see ILM, vol. 20 (1981), pp. 1371–1390. 33  Gulf of Maine, Constitution of Chamber, Order of 20 Jan. 1982, ICJ Rep. 1982, pp. 5–7.

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case presented two features that had long-range political implications and gave rise to objections both inside and outside the Court. They refer to the following: a)

b)

The fact that perusal of the Treaty and Special Agreement showed in unequivocal terms that the intention of the parties was to withdraw the case in the event that the election of the members of the chamber did not entirely accord with their particular preferences, as made known in consultations with the President held under Article 17, para. 2 of the Rules. The fact that the parties were adamant in requesting that the decision on the formation of the chamber should be made prior to the commencement of the terms of office of those members of the Court that had been elected in the triennial election in 1981. The reason for this was that both parties were in agreement that one of the judges who would be leaving the Court at the beginning of 1982 (Gros) was to be in the chamber, and under Article 17, para. 4 of the Rules this could have been achieved only if the election took place before he departed from the bench.

Both aspects gave rise to firm criticism by two members of the Court who felt unduly pressed to take action along the wishes of those two States.34 In the third place, it appears that the Court had trouble handling the question of the judge ad hoc appointed by Canada, the US having—as always—a national judge in the bench. As a first step, the Court decided to apply Article 31, para. 4 of the Statute in a straightforward manner, and the acting President (Elias) proceeded as ordered in that provision, requesting one of the judges elected to the chamber (Ruda) to step down in order to make room for the ad hoc judge chosen by Canada (Cohen). While this may have been the correct legal position, it is remarkable that this procedure has not been followed in any of the subsequent cases submitted to ad hoc chambers.35 Additionally, on the occasion of the adoption of the first procedural order in the case, fixing time-limits for the deposit of the initial written pleading (which, oddly enough, under Article 92, para. 1 must be made by the Court or by its President and not by the chamber), the Court took the unprecedented step of “inviting” the judge ad hoc chosen by Canada to be present and to even sit in the bench. The order of 1 February 1982 lists judge ad hoc Cohen among the members of the Court, but

34  Gulf of Maine, Constitution of Chamber, Dissenting Opinion of Judge Morozov, ICJ Rep. 1982, p. 11; Dissenting Opinion of Judge El-Khani, ibid, pp. 12–13. 35  For details see Box 19-5.

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carefully specifies that he is there “in attendance at the invitation of the Court,” and in the dispositif, right after the names of the judges voting for the order, it is mentioned that “Judge ad hoc Cohen expressed support for the Order which the Court had just adopted” (ICJ Rep. 1982, pp. 15, 16). In the corresponding Yearbook the following explanation is supplied: “[t]he judge ad hoc chosen by Canada was present at the Court’s invitation at the meeting of the Court at which the Order of 1 February 1982 concerning the fixing of time-limits was adopted. The Order does not include his name among those voting but indicates that he expressed his support for the Order the Court had adopted.”36 This highly sui generis procedure has never been used again.

The Composition of ad hoc Chambers Without a doubt, the main attraction that an ad hoc chamber offers for potential litigating parties is that they enjoy a high degree of participation in the process leading to the constitution of that organ.37 The thinking behind this is that States may be more willing to submit their disputes to a judicial body the composition of which they may be able to influence, while at the same time preserving the significant advantages that resort to a permanent body like the ICJ has over traditional inter-State ad hoc arbitration. A dispute that the parties wish to submit to adjudication will then be brought before a body composed by judges that, while selected by the Court and among its members, correspond to a large extent to the preferences of the States parties.

Box # 19-6 ad hoc chambers as de facto arbitral tribunals Judge Oda, a former member of the Court who took part in the formation of several chambers—and was himself elected as a member of two of them—has expressed the idea that, as a result of the arrangements adopted in 1972, an ad hoc chamber is essentially an arbitral tribunal. This is a recurrent motive in the individual opinions appended by this judge to several decisions of the Court concerning chambers, among them the following:

36  ICJ Yearbook (1981–1982), p. 146. 37  Sir R. Jennings, “The Role of the International Court of Justice”, BYIL, vol. 68 (1997), p. 37.

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El Salvador/Honduras (1987) In the case of a chamber provided for in Article 26, paragraph 2, of the Statute of the Court, the consent of the two parties is essential and, as that provision clearly states, the number of judges to constitute such a chamber shall be determined by the Court with the approval of the parties. At the same time, regarding the composition of the chamber, the views of the parties shall be ascertained by the President in accordance with Article 17, paragraph 2, of the Rules of Court. The Court, being sovereign in judicial proceedings, is free to choose any composition it likes; yet the possibility must also be borne in mind that sovereign States have the legal right to withdraw a case if they prefer a composition different from that determined by the Court. In practical terms, therefore, it is inevitable, if a chamber is to be viable, that its composition must result from a consensus between the parties and the Court. To ensure that viability, it accordingly behoves the Court to take account of the views of the parties when proceeding to the election. Nevertheless, the chamber is a component of the Court, bound by its Statute and Rules; and the process of election whereby it comes into being should be as judicially impartial as its subsequent functioning. (El Salvador/Honduras, Constitution of Chamber, Declaration of Judge Oda, ICJ Rep. 1987, p. 13)

• Benin/Niger (2002) While I voted in favour of the Order constituting a Chamber, I feel that it is my duty, as the only judge now on the Bench who participated in the deliberations on the constitution of all four previous Chambers in the Court’s history, to make known my view that in order for an ad hoc Chamber formed under Article 26 of the Statute—an institution which is essentially an arbitral tribunal—to be constituted, it must be clear beyond all doubt that the litigating parties have agreed, before the Court decides on the constitution, not only as to the number of Chamber members but also as to who they ought to be. (Benin/Niger, Formation of Chamber, Declaration of Judge Oda, ICJ Rep. 2002, p. 616)

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Application for Revision-El Salvador/Honduras (2002) An ad hoc Chamber formed under Article 26 of the Statute is essentially an arbitral tribunal. In order for such a Chamber to be constituted, there must be an agreement by the parties, before the Court decides on the constitution, not only as to the number of judges forming the Chamber but also as to their names. Furthermore, the parties must jointly express that agreement when the President, acting pursuant to Article 17 of the Rules of Court, ascertains their views regarding the composition of the Chamber. (Application for Revision-El Salvador/Honduras, Formation of Chamber, Declaration of Judge Oda, ICJ Rep. 2002, pp. 622–623, para. 5)

As it can be seen, judge Oda limits himself to put on record an opinion on what he considers to be the real nature of ad hoc chambers but he does not express a value judgment of this situation. He appears to take it for granted that this is a development in the law and practice of the Court that cannot be avoided and must be tolerated. In his lectures given at The Hague Academy in 1993, he reaffirmed the conviction that an ad hoc chamber of the ICJ may be equated to an arbitral tribunal that may be set up by an agreement of the States in dispute. He elaborates as follows: The most important difference is that a case submitted to an ad hoc Chamber is adjudged in the same way as proceedings before the full Court and is concluded with a judgment that has the same effect as one rendered by the full Court. The ad hoc Chamber, a new institution employed only at the ICJ, should be examined from this point of view. In other words, one needs to ask whether it is appropriate for an ad hoc Chamber, which in its genesis and orientation so resembles an arbitral tribunal, to be able to give a judgment, elements of which, like the judgments of the Court as a whole, will subsequently constitute jurisprudence of the Court. I content myself, therefore, with reiterating that States come to an ad hoc Chamber by agreement, because they feel free to indicate their choice of judges from among the members of the Court. At the same time, they are perfectly entitled to enjoy the full services and facilities of the Court and to have their ad hoc Chamber render a decision which is a judgment of the ICJ. (. . .) The question of whether the arbitration-like Chamber is to be maintained for the future, in lieu of the full-Court procedure remains

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to be further considered, given the fact that this procedure may in essence be no more than a substitute for arbitration, in which the parties in dispute are free to choose the arbiters.38

This is possible because, in the first place, Article 9 of the Statute, which imposes the notion of “the representation of the main forms of civilization and of the principal legal systems of the world” as a ruling criterion for the composition of the bench, was not made applicable to the chambers system. Therefore, the members of a chamber may come from the same region or from the same legal system, a factor that can make a profound difference in accommodating the preferences of a State at a given time. In the second place, although Article 26, para. 2 of the Statute only contemplates the participation of the States parties to the case in the decision concerning the size of the chamber, the amendments introduced in the Rules in 1972 guarantee to those States considerable influence in the decision-making process concerning the ad hominem composition of the chamber. This is demonstrated by the following provisions: i.

Although the task of electing the members of the chamber falls upon the Court, this election will take place only after the Court has ascertained the views of the parties with regard to the composition of the chamber. Under Article 17, para. 2 of the Rules, as soon as he has made sure that both parties are in agreement with regard to the formation of a chamber to deal with the case in question, the President of the Court is to “ascertain their views regarding the composition of the Chamber” and to report these to the Court accordingly. The practice thus far abundantly shows that this requirement has been taken to mean that the election should coincide with the preferences of the parties, so that the members of the Court who are elected are those whose names were suggested by the parties in their consultation with the President.39 Interestingly, the

38  S. Oda, “The International Court of Justice viewed from the Bench (1976–1993)”, RC, vol. 244 (1993-VII), pp. 59–60. On this see also Jiménez de Aréchaga, “The Amendments . . .”, pp. 3–4; A. Zimmermann, “Ad Hoc Chambers of the International Court of Justice”, Dickinson JIL, vol. 8 (1989), pp. 6–8. The substantial differences between ad hoc chambers and arbitration tribunals are stressed in Sir R. Jennings, “Chambers of the International Court of Justice and Courts of Arbitration”, in Collected Writings of Sir Robert Jennings (1998), vol. 1, pp. 551–553. See also a report by the Asian-African Legal Consultative Committee on the subject “Role of the International Court of Justice,” commissioned in 1985 and circulated as a UN document (Doc. A/40/682 (1985), pp. 31–32). 39  Prager’s Procedural Developments, LPICT, vol. 2 (2003), p. 177.

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wording of Article 17, para. 2 differs slightly from that of the corresponding provisions in the 1972 Rules, which were Articles 26, para. 1 and 76, para. 3. Under Article 26, para. 1 of the latter, the President was to “consult the agents of the parties regarding the composition of the Chamber . . .,” and under Article 76, para. 3 he or she was bound to “ascertain the views of the parties as to the composition of the Chamber.” (emphasis added). Article 17, para. 2 of the 1978 Rules closely follows the latter. Both formulations contrast markedly with Article 76, para. 3 of the 1946 Rules, which provided that the President “shall ascertain the views of the parties as to the number of judges to constitute the Chamber.” (emphasis added). Additionally, and as it is only natural, the preferences of the parties are also gathered whenever there is need to introduce changes in the composition of the chamber, for instance due to the death or resignation of a member. This has occurred thus far in a handful of cases.40 ii. Another factor increasing the degree of the States parties’ influence on the composition of the bench is that the institution of the national judge or the judge ad hoc is fully applicable to chambers. In four of the six chambers that have been formed so far, two of the five members have been judges ad hoc chosen by the parties (Burkina Faso/ Mali, El Salvador/Honduras, Benin/Niger and Application for RevisionEl Salvador/Honduras); in one chamber only one of the parties had the need to appoint a judge ad hoc (Canada in the Gulf of Maine, the United States having a national judge in the Court) and in another case both States parties happened to have national judges (Italy and the United States in Elettronica Sicula).

Box # 19-7 Judges ad hoc in chamber proceedings: Practice under Article 31, para. 4 of the Statute Under Article 17, para. 2 of the Rules one of the duties of the President when a case is submitted to a chamber is to take all the steps that are necessary to give effect to the provisions of Article 31, para. 4 of the Statute. The text of this article reads as follows:

40  Elettronica Sicula (Composition of Chamber, Order of 20 Dec. 1988, ICJ Rep. 1988, p. 158); El Salvador/Honduras (Composition of Chamber, Order of 13 Dec. 1989, ICJ Rep. 1989, p. 162); Benin/Niger (Composition of Chamber, Order of 16 Feb. 2005, ICJ Rep. 2005, p. 84).

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4. The provisions of this Article shall apply to the case of Articles 26 and 29. In such cases, the President shall request one or, if necessary, two of the members of the Court forming the chamber to give place to the members of the Court of the nationality of the parties concerned, and, failing such, or if they are unable to be present, to the judges specially chosen by the parties. It will be noted that this provision (unlike Article 17, para. 2 of the Rules) is also applicable to the standing chambers provided for in Article 26, para. 1 and Article 29 of the Statute, in which the institution of proceedings should normally take place after the chamber is formed. However, as far as ad hoc chambers are concerned this “standing down” procedure has been applied only once, in the Gulf of Maine case (Constitution of Chamber, Order of 20 Jan. 1982, ICJ Rep. 1982, p. 9, para. 3). In all of the following cases submitted to chambers, either both parties had national judges at the time of the institution of proceedings—and they were accordingly elected to the chamber from the outset (Elettronica Sicula)—or the parties notified the Court in advance of their intention to appoint judges ad hoc as well as the identity of the persons chosen, with the result that when the Court proceeded to the election of the members of the chamber it declared so elected the judges ad hoc chosen by the parties, along with the other judges (Burkina Faso/Mali, El Salvador/Honduras, Benin/Niger and Application for Revision-El Salvador/ Honduras). The fact that this practice can be considered as a departure from the letter of the Statute (and of the Rules themselves) was highlighted by judge Shahabuddeen in a separate opinion appended to the order of the Court in the El Salvador/Honduras case introducing some changes in the composition of the Court, due to the death of one of the original members. A movement in favour of mentioning the names of ad hoc judges in the Order of Court setting up an ad hoc Chamber seems to have occurred in association with a movement away from the procedure observed in the Gulf of Maine case whereby a Member of the Court, having been elected to the Chamber, would stand down at the request of the President in favour of an ad hoc judge to be later named by the State concerned. This standing-down procedure was required in the case of all ad hoc judges in all chambers. It is still required by Article 31, paragraph 4, of the Statute in relation to all chambers and by Article 17, paragraph 2, of the Rules of

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Court (amended specifically in 1978 to provide for this) in relation to ad hoc chambers in particular. The subsequent movement away from that procedure, as it was applied in the Gulf of Maine case, seemed inextricably linked with, and to have followed as the practical consequence of, the working of another part of Article 17, paragraph 2, of the Rules of Court (first introduced as Article 26, paragraph 1, of the 1972 Rules) which in substance sought to confer on the parties a right to have their views taken into account by the Court as to the particular Members of the Court who should be elected by the Court to an ad hoc chamber. The object seems to have been “to accord to the parties a decisive influence in the composition of ad hoc Chambers” (El Salvador/Honduras, Composition of Chamber, Separate Opinion of Judge Shahabuddeen, ICJ Rep. 1989, pp. 166–167)41

As it can be observed, it is judge Shahabuddeen’s view that the evolution in the practice with regard to the non-application of Article 31, para. 4 of the Statute in the case of ad hoc chambers is linked to a different trend, namely, a deliberate intention to grant to the parties a decisive degree of influence in the composition of this type of chambers. At a subsequent phase of the same case, judge Shahabuddeen revisited the issue and highlighted with strong criticism the reasons that led the Court to virtually abandon the procedure laid down in that provision of the Statute. His main critique is that the evolution of the practice in this respect has in fact revealed an abandonment of the procedure carefully laid down in the Statute and the Rules themselves. The wording of Article 31, paragraph 4, of the Statute strongly suggests that the system regulating the sitting of party-selected judges on an ad hoc chamber assumed that the parties had no influence on, and no advance knowledge of, the results of the election made by the Court of serving judges to be members of the chamber. Thus, in the case of litigating States with nationals already on the Bench, it was only in the afterlight of the results of the election that a determination could be made

41  On the other hand, Rosenne has remarked that it is not clear why Article 17, para. 2 should provide for the taking of steps to give effect to Article 31, para. 4 of the Statute if, in any case, “the parties are to be consulted on the composition of the chamber” (Rosenne’s Law and Practice, vol. 3, pp. 1388, 1390).

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by the President of the extent to which it might be necessary to activate the procedure relating to national judges. Nor was it a foregone conclusion that litigating States with no nationals on the Bench would always wish to appoint ad hoc judges to a chamber; following on an election they might conceivably be so satisfied with the resulting composition of the chamber as to abstain from exercising their entitlement to appoint ad hoc judges, in like manner as some States have abstained from doing so in relation to the full Court. This system, with its associated assumptions as to lack of influence on, or advance knowledge of, the results of an election, was based directly on the Statute itself. And the Statute continues in full force. Although considering that the names of members of an ad hoc chamber who were to be requested by the President to “step down” in favour of judges chosen by the parties could also be the subject of consultation between the President and the parties, Judge Jiménez de Aréchaga clearly recognized that what I would for convenience call the “standing-down procedure”, as laid down by Article 31, paragraph 4, of the Statute, would continue to apply to such a chamber even after the 1972 amendments (. . .). A neglect in the Rules to reflect that fact was rightly cured by an appropriate change made in 1978 in Article 17, paragraph 2, of the Rules. (. . .) The Orders of Court in th[e] [Elettronica Sicula and El Salvador/ Honduras] cases simply show the election of three serving judges and the addition of two named ad hoc judges. The Court did not, as it ought to have done under the prescribed procedure, elect five serving judges subject to two being asked to stand down in favour of ad hoc judges to be later chosen by the parties. Contrary to the laid down sequence, the two ad hoc judges were chosen by the parties before the election by the Court of any serving judges. The observance of the standing-down procedure prescribed by Article 31, paragraph 4, of the Statute made no practical sense in a situation in which the Court was in fact electing serving judges who had been previously designated by the parties (. . .). The logic of allowing the parties a right to exercise “decisive influence” over selection would naturally lead to dispensation with that procedure. The question remains whether it was competent for the Court to confer such a right on them by Rules of Court. (El Salvador/Honduras, Application to Intervene, Dissenting Opinion of Judge Shahabuddeen, ICJ Rep. 1990, pp. 38–40)

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A diametrically opposite view on this matter is that taken by judge Schwebel, who has remarked that the procedure used in the Gulf of Maine case with regard to the appointment of the judge ad hoc was “artificial and useless.” His contention is that Article 31, para. 4 of the Statute should be held to be applicable only to standing chambers, notwithstanding the compelling language of Article 17, para. 2 of the Rules. Therefore, according to him, the procedure used for the establishment of subsequent chambers follows a “more forthright” interpretation of the Statute.42

iii. Finally, the 1972 Rules adopted the idea of immutability as a governing principle for ad hoc chambers, in order to guarantee that the parties’ participation in the formation of the chamber would not be affected by the passage of time or by any intervening fact affecting the composition of the full Court. This is achieved by providing that the members of a chamber formed under Article 26, para. 2 of the Statute whose term of office at the Court expire “shall continue to sit in all phases of the case, whatever the stage it has then reached” (Rules, Art. 17, para. 4, emphasis added). This involves an interpretation of Article 13, para. 3 of the Statute that is different from that adopted with regard to the full Court and embodied in Article 33 of the Rules. Under this later provision, the general rule concerning the participation of judges in a case before the full Court—or, for that matter, before a chamber formed under Article 26, para. 1 or under Article 29 of the Statute—establishes that the decisive date for those purposes is the date on which the Court convenes for the oral proceedings.43 Hence, the preferences of the parties with regard to the composition of the chamber will remain in place and will not be affected by the fact that one or more members of the chamber leaves the Court before the chamber has concluded its work.44

42  Schwebel, “Chambers . . .”, p. 112. See also H. Mosler, “The ad hoc Chambers . . .”, p. 454, note 22; Palchetti, “Article 26”, MN 34, pp. 497–498. 43  See Chapter 4, c). 44  For the compatibility of this rule with the Statute see Schwebel, “Chambers . . .”, pp. 106–108.

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Box # 19-8 Doubts as to the constitutionality of the 1972 arrangements concerning ad hoc chambers The arrangements concerning ad hoc chambers incorporated in the 1972 and 1978 amendments to the Rules of Court have been strongly criticized on the basis that they are not fully compatible with the letter or the spirit of the Statute. In what perhaps is the most cogent of these criticisms, developed with accuracy and detail in a dissenting opinion appended to the Court’s order in the El Salvador/Honduras case concerning the competence to deal with a request for intervention submitted by a third State, judge Shahabuddeen directed his arguments against several of the aspects involved. They can be summarized as follows: i) With regard to the rule in paragraph 2 of Article 17, read together with Article 31, para. 4 of the Statute (Judges ad hoc in ad hoc chambers) Judge Shahabuddeen does not argue that the relevant provision in the Rules (Article 17, para. 2) is defective in this regard but rather that the Court has chosen not to apply it, blatantly disregarding the rule in Article 31, para. 4 of the Statute and that this attitude is just a reflection of the position that the Court has adopted with regard to ii) and iii) below. This is essentially the matter discussed in Box 19–7 above. ii) With regard to the rule in paragraph 2 of Article 17 of the Rules (Consultations of the President with the parties regarding the composition of the Court) After a careful examination of the legislative story of the Statute and the Rules, judge Shahabuddeen concludes that Article 17, para. 2 of the Rules might go considerably beyond the corresponding provisions in the Statute: The Statute did not expressly grant power to the Court to confer by Rules a right on the parties to have their views taken into account in the selection of serving judges to be members of an ad hoc chamber. Nor was any such power granted by the Statute impliedly: however generous may be the principle regulating the ascertainment of the extent of the Court’s implied powers, such powers encounter an ultimate limit when they collide with the intrinsic nature of the Court itself. For the reasons given, the selection, whenever necessary, of serving judges to sit in any particular case is an integral part of the inalienable judicial power con-

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fided to the Court by the world community. The Court cannot, directly or indirectly, convey away that power in whole or in part, or share it with others, without destroying its essential character as a court of justice. A Rule of Court which purports to do so is contrary to the Statute. (. . .) [t]he requirements in Article 17, paragraph 2, of the Rules of Court 1978 for the President to ascertain the views of the parties regarding the “composition” of an ad hoc chamber should be construed harmoniously with the Statute, and . . ., when so construed, it is restricted to ascertainment of the views of the parties as to the “number” of members of the chamber. Failing that construction—a construction which does not correspond either with the general understanding of the provision or with the actual practice under it—it would seem that Article 17, paragraph 2, of the Rules is pro tanto ultra vires the Statute. (El Salvador/Honduras, Application to Intervene, Dissenting Opinion of Judge Shahabuddeen, ICJ Rep. 1990, pp. 47–48)45

iii) With regard to the rule in paragraph 4 of Article 17 (tenure of the members of ad hoc chambers, as opposed to that of the members of the Court) Judge Shahabuddeen likewise considers that the arrangements adopted in this regard in 1972 are not valid because the same term cannot be held to have different meanings when used in different provisions of the Rules. His reasons are: Even if there is room for argument as to what is meant by the reference to “cases which they may have begun” in the governing provisions of Article 13, paragraph 3, of the Statute, it is not admissible to assign to that phrase one meaning in relation to cases heard before the full Court and another in relation to cases heard before a chamber. The form assumed by the Court in hearing a case has nothing to do with the question whether a case has been “begun” by a judge or not. The Court being in legal theory the same whether sitting en banc or in chamber, the question whether a judge has “begun” a case must be answered in the same way regardless of whether it is being heard before the one or the other. Whatever may be the meaning of the word “begun” as it appears in the Court’s constituent text, that meaning can only be one and singular in relation to all judges. (. . .) Now, if the Rules under consideration are valid, the entire oral proceedings

45  A similar view was stated by judge Tarassov (El Salvador/Honduras, Application to Intervene, Dissenting Opinion of Judge Tarassov, ICJ Rep. 1990, p. 13).

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of a case before an ad hoc chamber may take place before persons none of whom held the office of a Member of the Court at any time during that hearing. So (. . .) is this the kind of chamber that the framers of the Statute had in mind when they accepted in Article 27 that a “judgment given by any of the chambers provided for in Articles 26 and 29 shall be considered as rendered by the Court”? (El Salvador/Honduras, Application to Intervene, Dissenting Opinion of Judge Shahabuddeen, ICJ Rep. 1990, pp. 51, 52)

As for a response to these arguments, perhaps the best articulated view is that of a former Registrar of the Court, who took part, either directly or indirectly, in the processes leading to the formation of most of the ad hoc chambers that have been constituted to date. After addressing each of the arguments put forward by judge Shahabuddeen, this author concludes that: [t]he Court’s ultimate power of election makes it clear that article 17, paragraph 2 of the Rules does not transfer to the parties a power that the Statute clearly vests in the Court. In particular, the power will operate to safeguard the judicial integrity of the Court should the parties’ selection of judges threaten to encroach upon it. If the Court considers that the choice made by the parties would produce a Chamber that is too parochial or regional in nature, it can decline to comply with the wishes of the parties and elect other members to serve in the Chamber. The Court can take the same action if it considers that the choice of judges would have a divisive internal effect among members of the Court. Indeed, it is at least arguable that according substantial or decisive influence to the parties would have precisely the opposite effect and avoid internal dissention because it is the parties, and not the Court, who decide the composition of the Chamber.46

Procedure The institution of proceedings before an ad hoc chamber is governed by the same rules applicable to the full Court. The only peculiar feature of these 46  Valencia-Ospina, “The Use of Chambers . . .”, pp. 514–515. See also Schwebel, “Chambers . . .”, pp. 103–108. On balance, it might be concluded that the question of the consistency with the Statute of the arrangements introduced in the Rules in 1972 has lost most of its relevance (Palchetti, “Article 26”, MN 34, pp. 497–498).

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proceedings is that here a double consent is required: on the one hand, both parties must have given their consent to the submission of their dispute to adjudication (although this consent may have been extended previously, through any of the accepted forms of acceptance of the jurisdiction of the Court); on the other hand, they must also be in agreement as to the dispute being handled by a chamber formed under Article 26, para. 2 of the Statute.47 In any case, this double consent can be expressed at different moments in time and this is why the proceedings may be instituted either by notification of a special agreement or by the filing of a unilateral application. The first of these methods is no doubt more frequent in the case of litigation before chambers, although there has already been occasion for cases to be instituted by unilateral action by an applicant.48 In this regard, attention must be paid to Article 17, para. 1 of the Rules, providing that “[a] request for the formation of a Chamber to deal with a particular case, as provided for in Article 26, paragraph 2, of the Statute, may be filed at any time until the closure of the written proceedings.” The possibility exists, then, that a request for the formation of an ad hoc chamber will be made after the Court has been seised of the case and ordinary proceedings are already in motion, although this window is closed on the date of the closure of the written proceedings.49 As provided for in the remaining paragraphs of Article 17, if the request is made jointly by the parties, the Court will proceed to ascertain their views as to the composition of the chamber and to elect its members. If the request is made by one of the parties, those actions will be taken only after the President of the Court has ascertained “whether the other party assents.” As for the conduction of proceedings, Article 90 of the Rules establishes that the procedural rules governing contentious proceedings before the full Court are applicable mutatis mutandis to proceedings before chambers, with the sole exception that “the provisions of the Statute and of th[e] Rules relating specifically to the Chambers” will prevail.50 The most important of these later provisions lay down the following special rules: 47  On the forms that this consent may take see Palchetti, “Article 26”, MN 4–5, pp. 477–478. 48  In the Elettronica Sicula and Application for Revision-El Salvador/Honduras case, the proceedings were instituted by application. 49  For a critique see Rosenne’s Law and Practice, vol. 3, pp. 1389–1390. On the difficulties in ascertaining what is the exact date of the closure of the written proceedings see Chapter 6, e). 50  Article 90 replaced Article 75 of the 1972 Rules. Significantly, the latter included a reference to “any special rules which the Court may make,” a clause that has now been dropped.

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– Procedural simplicity: On paper, the golden rule for the conduction of litigation before ad hoc chambers, laid down in Article 92, is that the written proceedings will consist of a single round of pleadings (to be filed successively if the case was submitted by application and simultaneously if it was submitted by special agreement, unless in the last case the parties agree on successive filing) and that oral proceedings can be dispensed with by agreement between the parties and the chamber (Rules, Art. 92, paras. 1 and 3). However, the same provision contemplates exceptions in both cases. With regard to the written proceedings, the chamber is empowered to “authorize or direct that further pleadings be filed” and this can happen at the motion of either the parties or the chamber acting proprio motu (para. 2). The truth is that, since most of the cases are brought before chambers by special agreement, this instrument normally contains detailed provisions of the number and order of the written pleadings. With regard to the oral proceedings, they are to take place unless the parties “agree to dispense with them, and the chamber consents” and even when there are no oral proceedings, it is provided that “the chamber may call upon the parties to supply information or furnish explanations orally” (para. 3). However, the practice of litigation before chambers has evolved along the lines of the exceptions rather than the rule. In all of the cases handled by ad hoc chambers there have been oral proceedings, and in only one of them the parties have felt contented with filing one single written pleading (the Application for Revision-El Salvador/Honduras case, which was, for that matter, exclusively concerned with the admissibility of an application for revision, a question on which a single round of pleadings—consisting of the application itself and a written statement by the other party—has always been considered sufficient).51 In all of the cases concerning questions of the merits submitted to chambers there have been either three rounds of pleadings (Gulf of Maine, El Salvador/Honduras and Benin/Niger) or two rounds (Elettronica Sicula and Burkina Faso/Mali), making it safe to conclude that from the point of view of procedure there has not been a real difference between litigation before the chamber and litigation before the full Court. In fact, some of the cases handled by a chamber are among the longest in the history of the Court. In the El Salvador/Honduras case, for instance, it was necessary to hold more than 50 hearings and at 271 pages the judgment of the chamber is still the longest ever rendered by the World Court. To be fair, the Burkina Faso/Mali case might be an exception, because the actual litigation between the formation of the chamber and the delivery of the decision took only 20 months, certainly shorter than any similar case before the full 51  See Chapter 17, b).

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Court. What consumed a long time in this case was the process leading to the formation of the chamber, because the institution of proceedings took place on 20 October 1983 and it was not until 14 March 1985 that the consultation of the President with the parties could be held.52 This development has been registered by commentators. Judge Oda, for instance, has observed that “[t]he ad hoc Chamber procedures operates in quite a different way from that which was originally planned, in that submissions to this procedure does not ensure a speedy or simple handling to accelerate the work of the Court.”53 Similarly, after reviewing the time consumed by litigation before some of the ad hoc chambers set up during the 1980s, former Registrar Valencia-Ospina concluded: These figures reveal the fallacy of the argument that, because the Court consists of fifteen members, its procedure is necessarily complex and, conversely, that because an ad hoc Chamber consists of a smaller number of judges, its procedure is quicker and simpler. If the case is difficult, then as much time is required to take it before a Chamber as before the Court as a whole.54 – Mobility: Article 28 of the Statute allows for the chambers to “sit and exercise their functions elsewhere than at The Hague,” provided that the parties consent. There is no practice on this to date and it has been noted that the Rules are silent as to the procedure to be followed in case this provision is invoked. The 1946/1972 Rules contained a provision in this regard (Article 28, para. 3 of the 1946 Rules and Article 31, para. 3 of the 1972 Rules), but this was deleted in 1978.55 – Autonomy: Under Article 18 of the Rules, each chamber has its own President and Vice-President, and the first of these “shall exercise, in relation to cases being dealt with by that chamber, all the functions of the President of the Court in relation to cases before the Court.” Hence, the chamber will be able to keep control of the procedural developments in any case that is submitted to it, independently of the exercise of its functions by the President of the Court. However, a striking exception to this rule is that the fixing of the timelimits for the presentation of the first written pleading—which, theoretically, 52  53  54  55 

Burkina Faso/Mali, Merits, Judgment of 22 Dec. 1986, ICJ Rep. 1986, paras. 1–6, pp. 556–559. Oda, “The International Court of Justice . . .”, p. 61. Valencia Ospina, “The Use of Chambers . . .”, p. 509. Palchetti, “Article 28”, in Oxford Commentary, MN 3, p. 509.

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could be the only pleading, as stated above—is to be made by the Court, or by its President “in consultation with the Chamber” (Rules, Art. 92, para. 1).56 Article 72, para. 2 of the 1946 Rules granted this power to the President of the chamber (although it may be doubted whether that provision applied to ad hoc chambers, the entire article being directly concerned with the procedure before the Chamber of Summary Procedure). Although the article is silent as to the extension of these time-limits, practice indicates that the President of the chamber takes control over every aspect of procedure, including prorogations, as soon as the order concerning the time-limits for the initial pleadings has been issued by the Court or its President.57 In this regard, an author has stated that the chamber cannot authorize the filing of replies and rejoinders (since this would contradict Article 45, para. 2 of the Rules) and neither can determine the date of the opening of the oral proceedings (an action that can only be taken by the Court under Article 54, para. 1).58 With respect, this proposition appears somewhat extreme, as it not only ignores the provisions of paragraphs 2 and 3 of Article 92 of the Rules, but would also negate any role whatsoever for the chamber as to the conduction of the proceedings. As is only natural, incidental and derivative proceedings can and do take place in cases dealt with by ad hoc chambers, under practically the same conditions as in the full Court. Incidental proceedings concerning provisional measures took place in the Burkina Faso/Mali case and, save for a minor question of jurisdiction that was resolved via interlocutory proceedings, this did not give rise to difficulties.59 It is also possible that a request for provisional measures is made before the chamber has been formed, in which case there is no doubt that the Court would be empowered to process it, as, by definition, such a request attaches always an element of urgency.60 As for questions of jurisdiction and admissibility, it has been remarked that since proceedings before chambers always require an agreement of the parties to litigate, preliminary objections are generally not applicable.61 However, as in any other case brought to the Court by special agreement, nothing prevents objections concerning jurisdiction or admissibility being submitted in

56  For a critique of this change see Rosenne’s Procedure, pp. 190–191; Palchetti, “Article 26”, MN 13, pp. 484–485. 57  Gulf of Maine, Order of 28 July 1982, ICJ Rep. 1982, p. 557. 58  Zimmermann, “Ad Hoc Chambers . . .”, pp. 22–23. 59  Burkina Faso/Mali, Provisional Measures, Order of 10 Jan. 1986, ICJ Rep. 1986, p. 3. See also Box 4-3. 60  Zimmermann, “Ad Hoc Chambers . . .”, pp. 24–25. 61  Ostrihansky, “Chambers . . .”, p. 48.

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due course. At the outmost, it can be said that in cases before chambers the possibility to raise objections is more remote than in other cases.62 The more interesting experience to date of chambers with incidental matters refers to third-party intervention. In the El Salvador/Honduras case, a third State submitted to the Court a request for permission to intervene under Article 62 of the Statute and unequivocally stated that in its view it was for the Court and not for the chamber to deal with that request. After interlocutory proceedings the Court came to the conclusion that such a request could only be dealt with by the judicial body dealing with the main case and thus recognized a wide measure of competence of ad hoc chambers to handle incidental matters: Under Article 26, paragraph 2, of the Statute the Court has power to form a chamber to deal with a particular case, and consequently to regulate matters concerning its composition; (. . .) it is for the tribunal seised of a principal issue to deal also with any issue subsidiary thereto; (. . .) a chamber formed to deal with a particular case therefore deals not only with the merits of the case, but also with incidental proceedings arising in that case (. . .) (El Salvador/Honduras, Application to Intervene, Order of 28 Feb. 1990, ICJ Rep. 1990, p. 4)

Box # 19-9 Residual competence of the Court vis-à-vis a chamber Nicaragua’s request to intervene in the El Salvador/Honduras case was accompanied by two additional requests concerning the reformation of the composition of the chamber dealing with the case and/or a limitation of its mandate. For reasons of procedural economy, the Court took the view that these requests were “contingent on the decision whether the application for permission to intervene is to be granted” and that it was not called to take the place of the chamber in deciding those previous questions (El Salvador/Honduras, Application to Intervene, Order of 28 Feb. 1990, ICJ Rep. 1990, pp. 5–6). Eventually, the chamber admitted the intervention by Nicaragua, but as a non-party to the

62  In fact, in the Elettronica Sicula case one of the parties made an objection to the admissibility of the application and the chamber dealt with it along with the merits, pursuant to an agreement of the parties, ( Judgment of 20 July 1989, ICJ Rep. 1989, p. 15).

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case, with the result that that State did not acquire the right to choose a judge ad hoc or to influence in any manner the composition of the chamber (on this, see Chapter 14, e)). The view has been expressed that, this notwithstanding, the question of the rights of Nicaragua in this regard should have been referred back to the Court.63 It appears that in considering these aspects of Nicaragua’s request, a discussion arose among the judges concerning the extent of the residual competences that the full Court conserves with regard to a case that is before a chamber. The most conservative view is that after the chamber is inaugurated, the only competence conserved by the Court is its general power to regulate matters concerning the chamber’s composition. Thus, the only event in which the Court would have occasion to revert to a case being handled by a chamber would be when there is need to alter its composition, for instance due the death or resignation of one of its members. This opinion was voiced by judge Oda in the following terms: Once a chamber has been constituted, the powers of the full Court are, in my view, limited, so far as the composition of that chamber is concerned, to the filling of any vacancy in the original constitution that may arise as a result of the death, resignation or incapacity of an original member of the chamber. It would have been preferable in my view for the Court to have incorporated an explicit finding in that sense into the Order which it has found it necessary to make. (El Salvador/Honduras, Application to Intervene, Declaration of Judge Oda, ICJ Rep. 1990, p. 8)

The closing sentence of the quoted passage, along with the clearly opposite views stated in the dissents of judges Elias and Tarassov in the same case suggest that the matter was discussed within the Court, even though it chose not to mention this in the order. The essence of the dissenters’ opinions on the matter is as follows: The scope of the jurisdiction of this Chamber, or of any other chamber composed by the Court under the present Rules, is neither definitive nor final, so that one cannot regard jurisdiction as being transferable holus bolus from the International Court of Justice itself to its affiliate envisaged in Article 26 of the Statute, or by any other text.

63  Valencia-Ospina, “The Use of Chambers . . .”, p. 518.

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It is, however, inconceivable that the jurisdiction as conferred upon the Court by Article 36 of the Statute does not admit of any exception, and binds only the Court within the meaning of the law as envisaged by it. If, for any reason, a chamber exercises so-called jurisdiction which is vitiated by any rule of law or of justice, a judgment delivered by it may not be accepted in every respect as ipso facto binding, even though that judgment is apparently unexceptionable otherwise. It therefore follows that, unless Article 26 of the Statute itself, or the implementing Article of the Rules by which chambers are established, so define the scope and purpose of a chamber formed to deal with a particular matter referred to it, there cannot be a wholesale transfer of general jurisdiction of the Court by the assignment of a particular case to a particular chamber. It remains to be proved that a chamber is the equivalent of the Court in all respects. It may be noted that under Article 30 of the Statute the Court reserves the exclusive right to frame “rules for carrying out its functions. In particular, it shall lay down rules of procedure” (emphasis added). This shows that the chamber is not entirely its own master, and that it is possible that certain aspects of jurisdiction are residual or exerciseable only by the Court itself. (El Salvador/Honduras, Application to Intervene, Dissenting Opinion of Judge Elias, ICJ Rep. 1990, pp. 9–10)

It is obvious that all the proposed transformations, i.e., the full or partial reformation of the existing Chamber, or the modification or limitation of its mandate, cannot be effected by the existing Chamber itself. Only the full Court, which formed the present Chamber to deal with a land, island and maritime frontier dispute between El Salvador and Honduras and thus conferred upon it its mandate “to deal with the present case” (. . .), has the power to undertake actions of that kind.(. . .) There are no provisions either in the Statute or in the Rules of Court which can be seen as prohibiting the full Court from considering these submissions of the Applicant. Neither the Statute and Rules of Court nor the Court’s own practice serve to deprive it entirely of functions relating to chambers, once those chambers have been formed. It is precisely the full Court that makes changes in the composition of a chamber, electing new members or approving new judges ad hoc to fill any vacancies that may arise and fixing time-limits for written proceedings. It is only natural that it should fall to the full Court to deal with a request for the reformation of the Chamber. It is a fact that Nicaragua’s Application, intentionally

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addressed to the full Court, is also directly related to the composition of the Chamber. (. . .) My vote against the present Order constitutes a reflection of my sincere hope that the decision of the Court, contained in this Order, will not be given the status of a precedent, serving to preclude—on purely formalistic grounds—any possibility of the Court considering questions relating to cases being dealt with by chambers but which those chambers are not able to resolve. Any such justification of future inaction could not only lead to a depreciation of the Court’s own role, but might also bring about an unfortunate depreciation of the functioning of chambers by placing an insurmountable barrier between them and the full Court and, as a consequence, estranging them from the principal judicial organ of the United Nations. If that happened, ad hoc chambers would be transformed into some kind of hybrid between international judicial process and arbitration. (El Salvador/Honduras, Application to Intervene, Dissenting Opinion of Judge Tarassov, ICJ Rep. 1990, pp. 12–13 and 17)

The same rule applies to derivative proceedings, with the particularity that Article 100 of the Rules is explicit in stating that the power to interpret or to revise a judgment corresponds exclusively to the body that rendered the decision. A provision to that effect made its appearance in the 1926 Rules as Article 66, para. 3. The 1922 Rules were silent on the question and it appears that the amendment was prompted by the fact that the first request for interpretation of a judgment was not submitted to the full Court but rather to the Chamber of Summary Procedure.64 This provision was applied for the first time in the Application for Revision-El Salvador/Honduras case, in circumstances that were discussed in another section of the present work.65 Perhaps the most striking feature of litigation before ad hoc chambers is that under Article 27 of the Statute a judgment given by any of them “shall be considered as rendered by the Court.”66 There is no doubt, then, as to the intrinsic legal value that a judgment given by a chamber possesses, which corresponds 64  Request for Interpretation-Treaty of Neuilly, Judgment No. 4, 26 March 1925, PCIJ A 4. 65  See Chapter 17, b). 66  For the drawbacks that the application of this provision might have with regard to the development of general international law see the opinion of judge Elias in the

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to that of a decision rendered by the Court and to which Articles 59 and 60 of the Statute and 94 of the Charter of the United Nations apply with full force. From a functional point of view, an ad hoc chamber may very well equate an arbitral tribunal, but, in contradistinction with one such tribunal, difficulties concerning the enforcement of its decisions can be submitted to the Security Council by any of the parties. Conversely, an additional difference between a decision by a chamber and an arbitral award is that under Article 60 of the Statute the former is “final and without appeal” and therefore the question of its validity cannot form the subject-matter of contentious proceedings before the Court or, indeed, before any other organ of international adjudication. Connected to the provisions of Article 27 is the nature of an ad hoc chamber as distinct from the plenum of the Court, which is still hotly debated. Commenting upon the import of Article 27, Rosenne takes the somewhat extreme view that the chambers envisaged in Article 26 do not act in the name of the Court but rather are independent organisms, established and acting at the request of the parties.67 However, a respected former member of the Court has been no less vehement in stating that a chamber is not a wholly distinct institution but rather, precisely, a chamber of the Court: “[a] decision of a chamber is not rendered by a judicial body independent of the Court; it is given by the Court sitting in a special formation.”68 Along the same lines, the President of the chamber in the Gulf of Maine case (Ago), did not hesitate to remark at the opening of the hearings (and, significantly, in the presence of the then-President of the Court (Elias)): [l]a Chambre est la Cour et . . . la Cour considère la Chambre comme une partie d’elle-même.(. . .) C’est au nom de la Cour que la Chambre agira et rendra son arrêt. C’est à ce titre que sa décision aura un caractère obligatoire.69 Interestingly enough, the only chamber constituted so far under Article 29 of the Statute stated that it gave its decisions as “The Court, sitting as a Chamber

El Salvador/Honduras case (Application to Intervene, Dissenting Opinion of Judge Elias, ICJ Rep. 1990, p. 9). 67  S. Rosenne, “Article 27 of the Statute of the International Court of Justice Revisited”, in S. Rosenne, Essays on International Law and Practice (2007), p. 94. 68  M. Shahabuddeen, Precedent in the World Court (1996), p. 173. 69  ICJ Pleadings, Gulf of Maine, Vol. 6, pp. 4–5. See also Palchetti, “Article 26”, MN 2–3, pp. 476–477.

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of Summary Procedure . . .”.70 This formula has not been used again and all the decisions rendered by the ad hoc chambers subsequently formed state rather that the decision is given by “The Chamber of the International Court of Justice formed to deal with the case . . .”. Finally, Article 95, para. 1 of the Rules foresees that every judgment “shall state whether it is given by the Court or by a chamber.” Apart from that, from the standpoint of format and style there are no differences between decisions by a chamber and decisions by the full Court. Under Article 93 of the Rules a chamber’s decision “shall be read at a public sitting of that chamber” and the members of the chamber are also entitled to append individual statements to it, in the same conditions as the members of the Court. c)

The Chamber of Summary Procedure

This type of standing chamber has been in continuous existence since the time of the Permanent Court, but it has been used on only one occasion.71 The rationale for the creation of this chamber appears to have been to offer States a speedy and inexpensive manner for resolving by adjudication disputes that did not involve particularly complex issues of international law.72 However, this might be precisely what explains its lack of use, as no State is ready to admit that a dispute in which it is involved constitutes a “minor” dispute or one that does not involve important questions of international law.73 The Serbian Loans case provides a striking example of this: when the case was submitted, the Permanent Court could not meet for lack of quorum and the Registrar suggested to the parties that it could be referred to the Chamber of Summary 70  Treaty of Neuilly, Judgment No. 3, 12 Sep. 1924, PCIJ A 3, p. 4; Request for Interpretation-Treaty of Neuilly, Judgment No. 4, 26 Mar. 1925, PCIJ A 4, p. 4. 71  See Box # 19-1 above. For other cases in which the possibility to resort to this chamber was considered and discarded see Zimmermann, “The ad hoc Chambers . . .”, p. 2. For the suggestion that this type of chamber should be used in advisory proceedings see M. Reisman, “Accelerating Advisory Opinions: Critique and Proposal”, AJIL, vol. 68 (1974), p. 669. See also Article 1 of the 1958 ILC Model Rules on Arbitral Procedure (ILC Model Rules, p. 83). 72  For an early proposal for the setting up of a judicial mechanism to deal with this type of cases see Sir C. Hurst, “Wanted! An International Court of Piepoweder”, BYIL, vol. 6 (1925), pp. 61–67. 73  Valencia-Ospina, “The Use of Chambers . . .”, p. 504. See also a commentary to Article 26 of the draft-scheme adopted by the Advisory Committee of Jurists in 1920 (Brown Scott’s Project, p. 84).

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Procedure. The government of Serbia found this unacceptable, due to the importance that the case had for that nation.74 Article 15 of the Rules is entirely devoted to the Chamber of Summary Procedure contemplated in Article 29 of the Statute which, as it has been accurately pointed out, is the only chamber that under the Statute the Court is bound to constitute each year.75 According to paragraph 1, the Court must form this chamber as soon as possible before the 6th of February—the date on which the triennial renovation of five of the fifteen members of the Court takes place—and the President and the Vice-President of the Court form part of it ex officio, along with three more judges elected as described above. In the same election, two other members of the Court are elected as substitutes, to be called to take the place of any member who cannot participate in a given case. The substitute members will permanently replace any member of the chamber who resigns or ceases to form part of it, in which case new substitute members will be elected. It is clear that under this system the parties’ influence on the composition of the Chamber of Summary Procedure is limited to their right to appoint judges ad hoc. In order to make this chamber more attractive to States, a former member of the Court has proposed to adopt a provision directed at maintaining the chamber in its original composition in all phases of a case, whatever the stage it has then reached, i.e. extending the application of the rule crafted for ad hoc chambers (Article 17, para. 4 of the Rules) to the Chamber of Summary Procedure.76 Under Article 29, the Chamber of Summary Procedure may “hear and determine cases by summary procedure,” at the request of the parties and with a view to the “speedy dispatch of business.” Apart from the practice followed by the PCIJ,77 there are no indications as to what a “speedy dispatch of business” or “summary procedure” might mean in that provision, and the Rules are silent on this point.78 In fact, rather than containing special rules governing the particularities of the summary procedure—as it was done up to the 1946

74  75  76  77 

PCIJ C 16-III, p. 792. Hambro, “Will the Revised Rules . . .”, pp. 366–367. H. Mosler, “The ad hoc Chambers . . .”, pp. 449–460. For comments see Scerni’s La Procédure, pp. 653–655; Bustamante’s PCIJ, pp. 233–235; Fachiri’s PCIJ, pp. 120–121 (the latter two only covering the procedure under the 1922 Rules, due to the date of publication). 78  Sir R. Jennings, “The Role . . .”, p. 36.

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version—79 the current Rules of Court stipulate in Article 90 that the provisions governing procedure in contentious cases are applicable also to proceedings before this chamber, albeit in a residual form. This is connected to an important difference between the two Statutes as regards the scope of the rulemaking power of the Court provided for in Article 30. Under that provision of the PCIJ Statute, the Court was empowered to “frame rules for regulating its procedure” and, in particular, to “lay down rules for summary procedure.” Article 30 of the ICJ Statute uses a different formula, according to which “[t]he Court shall frame rules for carrying out its functions. In particular, it shall lay down rules of procedure.” Under Article 90, the articles of the Rules “relating specifically to the Chambers” that are to prevail with regard to questions of procedure are the following:

• Article 91 (on the institution of proceedings and the convening of the chamber—rule applicable also to special chambers); • Article 92 (on the conduction of proceedings—rule applicable to all types of chambers); and • Article 93 (on the reading of the judgment at a public sitting of the chamber—ibidem).

At the time of the PCIJ, it was initially provided that as a general rule the summary procedure would consist of one single round of written pleadings and no oral proceedings. In the Treaty of Neuilly case each of the parties submitted an initial pleading (“Cases”) and jointly requested the chamber to authorize the submission of a second pleading (“Replies”), “[a]s an exception to the procedure indicated in Article 69 of the Rules.”80 The chamber consented and did not find it necessary to organize oral proceedings. Similarly, in the derivative proceedings on interpretation of the judgment there was one single exchange of pleadings and no oral proceedings.81 During the deliberations concerning the revision of the Rules, the view was expressed that the system of conducting the proceedings exclusively in writing had not had “desirable results” and thus the revision of 1936 introduced the 79  Summary procedure was specifically governed by Articles 67–70 of the 1922/1922/1931 Rules and Articles 72–73 of the 1936 Rules. In the 1946 Rules Articles 72 and 73 remained essentially unchanged. They were replaced by Articles 77–78 of the 1972 Rules (Articles 93–94 of the 1978 Rules), which, as stated, are applicable to all chambers. 80  Treaty of Neuilly, Judgment No. 3, 12 Sep. 1924, PCIJ A 3, p. 5. 81  Request for Interpretation-Treaty of Neuilly, Judgment No. 4, 26 March 1925, PCIJ A 4, p. 5.

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need for oral proceedings in all cases submitted to the Chamber of Summary Procedure.82 However, there never was occasion to apply this rule. However, it is to be noted that by that time the provisions in the Rules of Court concerning the written proceedings in ordinary cases provided that as a general rule two rounds of pleadings would be exchanged in cases submitted by application and three rounds in cases submitted by special agreement. In contrast, before the present Court the theoretical rule as to the written proceedings is that there will be one single round of consecutive pleadings in cases submitted by application and two rounds of simultaneous pleadings in cases submitted by special agreement.83 In these circumstances, the only aspect of procedure on which there could be an actual difference between summary proceedings before a chamber constituted under Article 29 and ordinary proceedings before the full Court would be the dispensation with the oral stage, which is again expressly authorized by Article 92, para. 3 of the Rules—in dubious conformity with the peremptory requirement of Article 43, para. 1 of the Statute, one might add. However, as it was already explained, ordinary proceedings before an ad hoc chamber consist, in principle, precisely in having a single round of written pleadings and dispensing with the hearing, unless the parties or the chamber decide otherwise. In other words, the procedure that ad hoc chambers are supposed to use should be, in itself, of a summary nature, and there is nothing in the Rules that would distinguish it from the procedure to be used by the standing chamber foreseen in Article 29. Nevertheless, practice has shown that the provisions concerning the number of written pleadings contained in the text of the Rules have been largely ignored, as in just a handful of cases before the full Court the parties have consented to having one single round of written pleadings. As for the cases handled by ad hoc chambers, it can be seen that the procedure employed has not been significantly different from the one employed by the full Court. As a result, if a case were to be submitted to the Chamber of Summary Procedure, it would be expected that the procedure to be followed—which would necessarily need to be agreed to by the parties and endorsed by the 82  Article 72, para. 1 of the 1936 Rules, replacing Article 69 of the 1926 Rules. For the discussions leading to the amendment see PCIJ D 2, Add. 3 (1936), pp. 361–368. 83  See Chapter 6, a). The applicable provisions were Article 39 of the 1922/1926/1931 Rules and Article 41 of the 1936 Rules. In this context, it has been noted that, given that the procedure before the full Court has constantly been simplified, dissimilarities with the procedure before chambers have been reduced accordingly (Ostrihansky, “Chambers . . .”, p. 49).

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chamber—would have to be very simple in nature, that is, composed of a single exchange of written pleadings and no oral proceedings. The real difference with ordinary proceedings, either before the full Court or before an ad hoc chamber, would consist of the adoption of shorter time-limits, following Vice-President Guerrero’s accurate summing up in 1936, according to whom: [t]he rapidity of an expeditious form of procedure [i]s not attained by the suppression of necessary stages.(. . .) The summary character of the proceedings [i]s primarily to be attained by the curtailment of the time-limits.84 Another aspect mentioned—but not acted upon—during the discussions leading to the revision of the Rules in 1936 was that of the collection of evidence, Vice-President Guerrero being particularly interested in that the Rules reflected the notion that “[w]hen the Court adjudicate[s] as a Chamber of Summary Procedure it must, like any other tribunal, be able to command all the means for obtaining the information which would enable it to deliver a sound judgment.”85 d)

An Assessment of the Chambers System

The Agent for Canada in the Gulf of Maine case stated that the parties to that litigation “[w]ere fortunate to have available to them a mechanism combining some of the flexibility of an ad hoc tribunal with the authority and prestige of the World Court.”86 This adequately sums up the essence of the ad hoc chambers system, as conceived by the drafters of the Statute. It is also undeniable that, from the standpoint of States parties, litigation before a chamber has what a former President of the Court has rightly called “solid attractions and advantages” over recourse to the full Court.87 The conduct of the litigation in practice and the interaction between the members of the bar and counsel is inevitably less formal, just as the internal

84  PCIJ D 2, Add. 3 (1936), p. 363. 85  Ibid. 86  L.H. Legault, “A line for all uses: The Gulf of Maine boundary revisited”, International Journal, vol. 40 (1984–1985), p. 477. 87  Sir R. Jennings, “The Role . . .”, p. 38.

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decision-making process might be smoother than that in a court of fifteen or more judges.88 As for the results to date of the experiment of bringing cases before ad hoc chambers as an alternative to the full Court are in general positive, as a number of international disputes have been resolved in a way that has been generally perceived as satisfactory and none of the adverse scenarios predicted by the critics of the system have materialized. In particular, there has not been a fragmentation of general international law on account of the operation of the chambers system, as the chambers have taken their place as developers of international law in pretty much the same conditions as the full Court. On matters of substantive law, for instance, experts on the law of the sea and maritime delimitation law agree that the chamber’s decision in the Gulf of Maine is just one in a long series of decisions by the ICJ that have developed a solid body of judge-made law on this contentious subject, in which, interestingly, ad hoc arbitration panels unrelated to the ICJ have also made a contribution that is remarkable for its consistency and cogency. A similar judgment might be expressed with regard to the findings of the Burkina/Faso, El Salvador/Honduras and Benin/Niger chambers in the field of territorial sovereignty and the application of the uti possidetis iuris principle to the delimitation of land boundaries. As for the procedural law of the Court and the interpretation of the Court’s Statute and Rules, the chambers have acted in the fashion of the Court and there are no discernible breaks with the Court’s past law and practice. Quite to the contrary, important contributions and developments of that law have been made by chambers. This is the case in examples as diverse as that of the rule of the exhaustion of local remedies as a precondition for the admissibility of claims of diplomatic protection (Elettronica Sicula); the treatment of maps for evidentiary purposes (Burkina Faso/Mali); or the conditions for the admission of a third State’s intervention under Article 62 of the Statute (El Salvador/ Honduras). In all three of these cases, the pertinent findings by a chamber have been later reaffirmed and quoted with approval by the full Court, thus giving credence to the idea that the quality and intrinsic value of the Court’s case law, far from being negatively affected by the chambers experiment, has been enriched by it.89 This, of course, is to the credit of the leading jurists who have 88  For instance, a former member of a chamber has remarked that judges are more prone to put questions to the parties in cases dealt with by chambers (S. Schwebel, “Three Cases of Fact-Finding by the International Court of Justice”, in R.B. Lillich (Ed.), Fact-Finding Before International Tribunals (1991), pp. 3–5). 89  See Palchetti, “Article 27”, in Oxford Commentary, MN 4, pp. 503–505.

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been chosen to form those chambers and especially of the members of the Court who have been called to sit in them. On the other hand, the circumstance that encouraged the developments in the Court’s law and practice designed to make the recourse to ad hoc chambers more attractive to States—the under-utilization of the Court’s services—is nowadays a thing of the past. Indeed, since the mid-1980s there has been a marked increase in the number of cases brought before the Court. According to a recent estimate made by the President of the Court, the average number of pending cases each year has increased exponentially over the preceding five decades, from three cases through the 1960s, to less than five through the 1980s, 13 during the 1990s, and an average of over 20 pending cases each year over the last decade.90 Actually, the revitalization of the Court and the unprecedented enlargement of its case docket occurred at the same time that the chambers experiment was in full swing, a fact that a former President of the Court has called “a curious but happy circumstance.”91 Ad hoc chambers are still useful and can be used by States interested in resorting to adjudication, but there is no doubt that they will be the exception while resort to the full Court will remain the rule. As for the standing chambers, there is little prospect that they will be activated. With regard to the Special Chambers of Article 26, para. 1, the languid experience of the Chamber for Environment Matters shows that the States simply have not felt the need to resort to a judicial body that has a specialized or technical mandate. It may even be mentioned that were that need to arise, it could be met by resorting to other (as yet untried) devices present in the Statute, such as the conduction of an expert enquiry under Article 50 or the appointment of assessors under Article 30, para. 2.92 Similarly, were the parties to a case before the full Court, contrary to wellestablished practices, feel a desire to have a case tried by summary procedure, they could always make use of Article 101 and propose modifications to the Rules aimed at simplifying the procedure to be followed, instead of outright submitting it to the Chamber of Summary Procedure. This explains why it has been suggested that if the Court is really intent on making standing chambers more attractive to States, what it should do is to amend the rules governing

90  Speech by the President of the International Court of Justice to the Sixth Committee of the General Assembly, 30 October 2009, ICJ Yearbook (2009–2010), p. 405. 91  Jennings, “Chambers . . .”, p. 549. 92  Besides, under the same provision assessors can also sit in chambers. On this see Hambro, “Will the revised Rules . . .”, p. 366.

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the procedure before them “[a]nd to introduce real differences compared to the procedure applied by the full Court.”93 For these reasons, it can be anticipated that Articles 26, para. 1 and 29 are likely to remain dead letter in the Statute.

Further Reading



General Works and Treatises on the Court



Articles and Monographs

Bustamante’s World Court, pp. 233–235 Guyomar’s Commentaire, pp. 579–591 P. Palchetti, “Article 26”, in Oxford Commentary, pp. 474–501 P. Palchetti, “Article 27”, in Oxford Commentary, pp. 502–507 P. Palchetti, “Article 28”, in Oxford Commentary, pp. 508–509 P. Palchetti, “Article 29”, in Oxford Commentary, pp. 510–515 Rosenne’s Law and Practice, vol. 3, pp. 1385–1400 Scerni’s La Procédure, pp. 653–655 Thirlways’ Law and Procedure, Part 12, BYIL, vol. 72 (2001), pp. 46–57

M. Bedjaoui, « Universalisme et regionalisme au sein de la Cour Internationale de Justice : la constitution de chambres ‘ad hoc’ », in Liber Amicorum : Colección de estudios jurídicos en homenaje al Prof. Dr. Jose Pérez Montero (1988), vol. 1, pp. 155–171 A. de Saavedra y Muguelar, “La Creación y el funcionamiento de las salas “ad hoc” del Tribunal Internacional de Justicia”, in Liber Amicorum : Coleccion de estudios juridicos en homenaje al Prof. Dr. Jose Perez Montero (1988), vol. 3, pp. 1285 ff. C. Escobar Hernández, « Las Salas ad hoc del Tribunal Internacional de Justicia », in Hacia un Nuevo Orden Internacional y Europeo. Estudios en homenaje al Profesor Don Manuel Diez de Velasco (1993), pp. 291–317 M. Lachs, “Some Comments on ad hoc Chambers of the International Court of Justice”, in Humanite et Droit International—Melanges Rene-Jean Dupuy (1991), pp. 203–210 C. Lopez Contreras, “Las Salas ad hoc de la Corte Internacional de Justicia”, Separata del Anuario Hispano-Luso-Americano de Derecho Internacional, vol. 18 (2007), pp. 445–465 R. Mackenzie, “International Courts and Tribunals, Chambers”, in Max Planck EPIL, [www.mpepil.com]

93  Palchetti, “Article 26”, MN 27, pp. 493–494. The comment was made with regard to special chambers but it is equally applicable to the Chamber of Summary Procedure.

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E. McWhinney, “Special Chambers within the International Court of Justice: The Preliminary, Procedural Aspect of the Gulf of Maine Case”, Syracuse Journal of International Law and Commerce, vol. 12 (1985), pp. 1–13 ———, “Letter to the Editor in Chief”, AJIL, vol. 82 (1988), pp. 797–800 ———, Judicial Settlement of International Disputes-Jurisdiction, Justiciability and Judicial Law-Making on the Contemporary International Court (1991), pp. 73–90 A. Pillepich, “Les chambres”, in Société Française pour le Droit International, Colloque de Lyon, La Juridiction internationale permanente (1987), pp. 45–72 Nagendra Singh, The Role and Record of the International Court of Justice (1989), pp. 106–116 S.J. Toope, “Pragmatic compromise or mere transaction? The Use of Chambers procedure in international adjudication”, Virginia JIL, vol. 31 (1990–1991), pp. 53–97 M.S. Torrecuadrada García-Lozano, Las Salas Ad Hoc de la Corte Internacional de Justicia (1997) E. Zoller, “La première constitution d’une Chambre spéciale par la Cour Internationale de Justice : Observations sur l’Ordonnance du 20 Janvier 1982”, RGDIP, vol. 86 (1982), pp. 305–324

Chapter 20

Litigation in Advisory Proceedings The International Court of Justice has a dual nature, as an organ available to States for the settlement of their international disputes and as the highest authority on matters of international law within the machinery of the United Nations. In this second capacity, the Court is endowed with competence to give advisory opinions at the request of certain organs of the UN and certain specialized agencies. The Court defined as follows the nature of its advisory function: The advisory jurisdiction is not a form of judicial recourse for States but the means by which the General Assembly and the Security Council, as well as other organs of the United Nations and bodies specifically empowered to do so by the General Assembly in accordance with Article 96, paragraph 2, of the Charter, may obtain the Court’s opinion in order to assist them in their activities. (Kosovo-Declaration of Independence, Advisory Opinion of 22 July 2010, ICJ Rep. 2010, p. 417, para. 33)

The original Statute of the PCIJ was silent on the question of advisory opinions but the Covenant of the League provided in Article 14—the provision contemplating the creation of a permanent judicial organ—that the future court would be empowered to “give an advisory opinion upon any dispute or question referred to it by the Council or the Assembly.” On the basis of this provision—incorporated by reference into the Statute by virtue of its Article 1—the Court clearly considered that it was competent to render advisory opinions and included provisions concerning the procedural aspects involved in the Rules adopted in 1922, 1926 and 1931 (Articles 71–74). In 1929 a Protocol of Revision of the Statute was adopted in which an entire chapter dealing with advisory opinions, consisting of four separate articles, was added (Chapter IV, Articles 65–68). This amendment entered into force in 1936.1 The Informal Inter-Allied Committee that met before the San Francisco Conference entertained some doubts as to the convenience to maintain this system. Upon reflection it ended up recommending not only to preserve the possibility of the Court’s giving legal advice in the form of opinions to the 1   Hudson’s PCIJ, pp. 483–484.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004297517_021

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future international organization and to its organs, but also to enlarge the scope of this jurisdiction by granting States the same right, under certain conditions.2 The Conference rejected the latter but maintained the system as it had been tried and tested by the PCIJ, endorsing with little change the above mentioned provisions in the old Statute.3 Also, an appropriate provision covering the ground of Article 14 of the Covenant was included in the text of the Charter itself, as Article 96.4 Under Articles 96 of the Charter and 65, para. 1 of the Statute the ICJ is thus endowed with jurisdiction to give advisory opinions. However, this presupposes that the request was submitted in a proper manner, i.e. that (a) The requesting body is duly authorized to do so and, (b) The question posed in the request is indeed a “legal question.” These two elements—the first connected to the question of access, the second to the material scope of the advisory jurisdiction of the Court—are what the Court has called “precondition[s] of the Court’s competence” in advisory proceedings.5 a)

The Question of Access

As a result of the arrangements made at San Francisco, just as international organizations lack access to the Court in contentious proceedings, States cannot request advisory opinions. The Informal Inter-Allied Committee recommended that two or more States, “acting in concert,” were allowed to obtain an advisory opinion, listing a number of reasons that made this desirable.6 At the San Francisco Conference there were proposals by Venezuela, the United Kingdom and Belgium directed at authorizing States to request advisory opinions but all of them were rejected.7 The PCIJ underlined in 1932 that under the Covenant the right to submit a question to the advisory jurisdiction of the Court was given only to the political organs of the League, a proposition that applies mutatis mutandis to the 2  Inter-Allied Committee Report, pp. 20–23. 3  M.O. Hudson, “The Twenty-Fourth Year of the World Court”, AJIL, vol. 40 (1946), pp. 42–44. 4  For details see L.M. Goodrich, E. Hambro & A.P. Simons, Charter of the United Nations, Commentary and Documents (3rd. rev. ed., 1969), pp. 559–571; H. Mosler, “Article 96”, in B. Simma (Ed.), The Charter of the United Nations, A Commentary (1995), pp. 1008–1017. 5  Review of UNAT Judgment No. 273, Advisory Opinion of 20 July 1982, ICJ Rep. 1982, p. 333, para. 21. 6  Inter-Allied Committee Report, pp. 21–22. 7  UNCIO, vol. 14, pp. 319, 373, 850; vol. 3, pp. 209, 225, 230; vol. 12, pp. 48–50 and 65–66.

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UN Charter.8 A corollary of this rule is that it would be inadmissible to extend the scope of advisory proceedings already in motion in order to comply with a desire expressed by States taking part in the proceedings, because to do this “would, in fact, be tantamount to allowing governments directly to refer a question to the Court for advisory opinion.”9 Therefore, the question of access in advisory proceedings consists basically in identifying those international organs and organizations which have been empowered to request advisory opinions from the Court. As far as the United Nations is concerned, the only organs directly authorized by the Charter to request advisory opinions are the General Assembly and the Security Council. In addition, Article 96 foresees that other “organs of the United Nations and specialized agencies” may at any time be authorized by the General Assembly to request advisory opinions “on legal questions arising within the scope of their activities.” The Court has stated that these provisions give to the General Assembly a “gatekeeping role,” because it is only in terms of these authorizations that requests can be made “by organs other than the Assembly itself and the Security Council.”10 It is important to underline that in the case of the specialized agencies access to the advisory jurisdiction of the Court can only be conferred by means of an authorization by the General Assembly. In a case concerning the review of a decision by the International Labour Organization’s Administrative TribunalILOAT, the requesting organ was the Executive Board of the International Fund for Agricultural Development-IFAD, and it invoked as authority in its request a provision in the Statute of that tribunal, failing to mention the authorization given to it to request advisory opinions. The Court took care in observing that “the power of the Executive Board to request an advisory opinion and the jurisdiction of the Court to give the opinion are founded on the Charter of the United Nations and the Statute of the Court and not on Article XII of the Annex to the Statute of the ILOAT alone” and went on to remark: [t]he Executive Board of IFAD, in its resolution requesting an advisory opinion in this case, expresses its wish to avail itself of Article XII of the Annex to the Statute of the ILOAT. While the resolution does not also refer to the authorization granted by the General Assembly under Article 96, paragraph 2, of the Charter, that authorization, as the Court has already stated, is a necessary condition to the making of such a request. The 8  Greco-Bulgarian Agreement of 1927, Advisory Opinion of 8 March 1932, PCIJ A/B 45, p. 87. 9  PCIJ E 8, pp. 273, 255. 10   Judgment 2867 of ILOAT, Advisory Opinion of 1 Feb. 2012, para. 22.

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Court takes the opportunity to emphasize that the ILO could not, when it adopted the Tribunal’s Statute, give its organs, or other institutions, the authority to challenge decisions of the Tribunal by way of a request for an advisory opinion. ( Judgment 2867 of ILOAT, Advisory Opinion of 1 Feb. 2012, para. 25)

Other UN organs that have been authorized, by means of a resolution of the General Assembly, are the Economic and Social Council, the Trusteeship Council, the Interim Committee of the General Assembly and (until 1995) the Committee on Applications for Review of Administrative Tribunal Judgments.11 It should be noted that the only principal organ of the UN that has not been so authorized is the Secretary-General, a question that has given rise to interesting discussions in academic circles.12

Box # 20-1 Specialized agencies authorized to request advisory opinions In the case of specialized agencies,13 the authorization to request advisory opinions is of a permanent nature and is normally embodied in the association agreement that each agency concludes with the UN, excluding, as a general rule, questions concerning the relationship of the agency to the UN.14 The Court has remarked that this exclusion “reflects the co-ordinating role of the Economic

11  On the question whether subsidiary organs can be authorized to request advisory opinions see a Memorandum by the Legal Counsel of the UN dated 17 April 1991 (text in UNJYB (1991), pp. 303–304). 12  S. Schwebel, “Authorizing the Secretary-General of the United Nations to Request Advisory Opinions to the International Court of Justice”, in S. Schwebel, Justice in International Law, Selected Writings of Judge Stephen M. Schwebel (1994), pp. 72–83; M. Bedjaoui, “The International Organizations before the International Court of Justice: Appraisal and Future Prospects”, ICJ Yearbook (1994–1995), pp. 223–224. 13  A slight discrepancy has been noticed between Article 96, para. 2 of the Charter, which mentions “specialized agencies” and Article 65, para. 1 of the Statute, which refers to “whatever body”. For a comment see L. Gross, “The International Court of Justice: Consideration of requirements for enhancing its role in the international legal order”, AJIL, vol. 65 (1971), p. 277. 14  This is pursuant to a decision taken by the General Assembly when it first considered the question (Goodrich et al., “Charter . . .”, pp. 560–561).

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and Social Council under Chapter X of the Charter.” ( Judgment 2867 of ILOAT, Advisory Opinion of 1 Feb. 2012, para. 26). The following 16 agencies have been authorized so far:15

• International Labour Organization (ILO)16 • Food and Agriculture Organization of the United Nations (FAO) • United Nations Educational, Scientific and Cultural Organization (UNESCO) • World Health Organization (WHO) • International Bank for Reconstruction and Development (IBRD) • International Finance Corporation (IFC) • International Development Association (IDA) • International Monetary Fund (IMF) • International Civil Aviation Organization (ICAO) • International Telecommunication Union (ITU) • World Meteorological Organization (WMO) • International Maritime Organization (IMO) • World Intellectual Property Organization (WIPO) • International Fund for Agricultural Development (IFAD) • United Nations Industrial Development Organization (UNIDO) • International Atomic Energy Agency (IAEA) It has been remarked that an international organization that wants to be admitted into the system needs only to request an authorization by the General Assembly and that such an authorization has never been refused.17 It is also understood that it can be revoked by the Assembly at any time.

15  For a list and particulars of the pertinent agreements see ICJ Yearbook (2009–2010), pp. 128–134. 16  The case of the ILO is for several reasons unique, starting with the fact that it is the only organization in this group created before the establishment of the PCIJ. The relationship between the ILO and the ICJ is discussed in A.-M. La Rosa, “Links between the ILO and the ICJ: A Less than Perfect Match”, in L. Boisson de Chazournes et al. (Eds.), International Organizations and International Dispute Settlement: Trends and Prospects (2002), pp. 119– 132. See also G. Fischer, Les rapports entre l’Organisation Internationale du Travail et la Cour Permanente de Justice Internationale (1947). 17  Bedjaoui, “The International Organizations . . .”, p. 220.

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Out of these, only UNESCO, WHO, IMO and IFAD have made use of this authorization and have activated the Court’s advisory jurisdiction. The respective cases are: –  Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO (Advisory Opinion of 23 Oct. 1956, ICJ Rep. 1956, p. 77); –  Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion of 20 December 1980, ICJ Rep. 1980, p. 73); –  Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (Advisory Opinion of 8 June 1960, ICJ Rep. 1960, p. 150); –  Judgment No.2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development (Advisory Opinion of 1 Feb. 2012).

b)

Questions of Jurisdiction

In the Kosovo-Declaration of Independence case the Court summarized as follows what it considers to be its point of departure when tackling a request for an advisory opinion: When seised of a request for an advisory opinion, the Court must first consider whether it has jurisdiction to give the opinion requested and whether, should the answer be in the affirmative, there is any reason why the Court, in its discretion, should decline to exercise any such jurisdiction in the case before it. (. . .) The fact that the Court has jurisdiction does not mean . . . that it is obliged to exercise it. (Kosovo-Declaration of Independence, Advisory Opinion of 22 July 2010 ICJ Rep. 2010, p. 412, para. 17 and p. 415, para. 29)

Accordingly, a discussion of the scope and limits of the advisory jurisdiction of the Court must refer to the distinct questions of jurisdiction proper and discretion. Jurisdiction Proper It was stated above that the preconditions of the Court’s competence in advisory proceedings are that (a) The requesting body is duly authorized to

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do so and, (b) The question posed in the request is indeed a “legal question.” Further, in the case of bodies other than the Security Council and the General Assembly—UN organs and specialized agencies—a third condition must be satisfied: the legal question to which the request refers “[m]ust be one arising within the scope of the activities of the requesting agency.”18 Although this appears to be an aspect of jurisdiction, it is important to highlight that apparently the Security Council and the General Assembly are not constrained by this limitation, as Article 96 empowers them to seek advisory opinions “on any legal question.” The question was raised by several States in the Nuclear Weapons (UNGA) case, but the Court found a way to leave it essentially open.19 All the same, in the case of the General Assembly the Court has given in several occasions “certain indications” as to the relationship that the subject of a request for an advisory opinion has with the activities of that organ. In one occasion it even had to consider whether that organ had acted ultra vires.20 In relation to this, in the Kosovo-Declaration of Independence case the Court had to deal with an aspect of the delimitation of the respective powers of the Security Council and the General Assembly, but chose to treat this as an aspect of propriety, rather than as a question of jurisdiction.21 Thus, the ratione materiae jurisdiction of the Court in advisory cases extends to any “legal question” that is submitted to it by a properly authorized body. The concept of “legal question” is analogous to that of “legal disputes” and plays in advisory proceedings a role similar to that played by the latter in contentious proceedings. In addition, it is a true sine qua non for the exercise of the Court’s competence because the Court has pointed out that “[I]f a question is not a legal one, the Court has no discretion in the matter; it must decline to give the opinion requested.”22 The Court has identified some general criteria concerning the scope of its jurisdiction in advisory matters: 18  Review of UNAT Judgment No. 273, Advisory Opinion of 20 July 1982, ICJ Rep. 1982, pp. 333– 334, para. 21. Reaffirmed in Nuclear Weapons (WHO), Advisory Opinion of 8 July 1996, ICJ Rep. 1996, pp. 71–72, para. 10. 19  Nuclear Weapons (UNGA), Advisory Opinion of 8 July 1996, ICJ Rep. 1996, pp. 232–233, para. 11. 20  Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, p. 145, para. 16 and pp. 16–17, paras. 24–35); Frowein/Oellers-Frahm, “Article 65”, in Oxford Commentary, MN  16–18, pp. 1612–1213. 21  Kosovo-Declaration of Independence, Advisory Opinion of 2 July 2010, ICJ Rep. 2010, p. 414, para. 24. On propriety and discretion see below text to notes 34 and ff. 22  Certain Expenses, Advisory Opinion of 20 July 1962, ICJ Rep. 1962, p. 155.

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With respect to the allegation that a given question was of a political nature and therefore could not be dealt with by it, the Court said that it “[c]annot attribute a political character to a request which, framed in abstract terms, invites it to undertake an essentially judicial task, the interpretation of a treaty provision.”23 In the Kosovo-Declaration of Independence, the Court also stated that “[a]n assessment of an act by reference to international law” implied also to undertake “an essentially judicial task.”24 It has further stated that it is not concerned with “[t]he motives which may have inspired th[e] request,”25 nor with “the political implications that the opinion given might have.”26 For the Court a “legal question” is a question that must be answered on the basis of the law, which means that the question included in the request has to be by its very nature “susceptible of a reply based on law.”27 In general, the references to “any legal question” found in the pertinent provisions of the Charter and the Statute are not to be interpreted restrictively.28 The question may also involve determinations on questions of fact and this does not deprive it of its legal character. A “[m]ixed question of law and fact is none the less a legal question within the meaning of Article 96, para. 1, of the Charter and Article 65, para. 1, of the Statute.”29 Normally, to enable a court to pronounce on legal questions, “it must also be acquainted with, take into account and, if necessary, make findings as to the relevant factual issues.”30 The question submitted to the Court may very well be couched in abstract terms. Under Articles 96 of the Charter and 65 of the Statute “the Court

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23  Admission to the UN, Advisory Opinion of 28 May 1948, ICJ Rep. 1948, p. 61. 24  Kosovo-Declaration of Independence, Advisory Opinion of 22 July 2010, ICJ Rep. 2010, p. 415, para. 27. 25  Admission to the UN, Advisory Opinion of 28 May 1948, ICJ Rep. 1948, p. 61. 26  Nuclear Weapons (WHO), Advisory Opinion of 8 July 1996, ICJ Rep. 1996, p. 74, par. 17. See also Kosovo-Declaration of Independence, Advisory Opinion of 22 July 2010, ICJ Rep. 2010, p. 415, para. 27 and p. 418, para. 35. 27  Western Sahara, Advisory Opinion of 16 Oct. 1975, ICJ Rep. 1975, p. 18, para. 15. See also Kosovo-Declaration of Independence, Advisory Opinion of 22 July 2010, ICJ Rep. 2010, p. 414, para. 25. 28  Western Sahara, Advisory Opinion of 16 Oct. 1975, ICJ Rep. 1975, p. 20, para. 18. 29  Ibid., p. 19, para. 17. 30  Namibia, Advisory Opinion of 21 June 1971, ICJ Rep. 1971. p. 27. On questions of fact in advisory proceedings see section c), below.

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may give an advisory opinion on any legal question, abstract or otherwise.”31 Further, a specialized area in which the Court has exercised its advisory jurisdiction is that of the review of decisions by administrative tribunals of international organizations, in particular those of the UN and the ILO, concerning disputes between a staff member and the organization. Between 1953 and 1984 the Court dealt with several cases in this category and gave a number of advisory opinions, mostly at the request of the Committee on Applications for Review of Administrative Tribunal Judgments, a subsidiary organ of the General Assembly. This was done under an authorization contained in the Statute of this tribunal, as amended by Resolution 957 (X) of 8 November 1955.32 However, in 1995 the General Assembly found that this system of review with regard to the decisions by the UN Administrative Tribunal was “unsatisfactory” and decided to abolish it.33 The system remains in place with regard to the ILO Administrative Tribunal and was recently activated by a specialized agency of the UN system.34 Discretion (Propriety) On the other hand, even if the Court is satisfied that the formulation of the request is in accordance with the Charter and the Statute and that it refers to a “legal question” that the requesting body is competent to make, it still can decline to reply, because Article 65, para. 1 of the Statute contains a permissive

31  Admission to the UN, Advisory Opinion of 28 May 1948, ICJ Rep. 1948, p. 61. 32   For the discussions leading to this arrangement see Goodrich et al., “Charter . . .”, pp. 561–562. 33  UNGA Resolution 50/54 of 11 Dec. 1995. For an overview see S. Rosenne, Interpretation, Revision and Other Recourse from International Judgments and Awards (2007), pp. 158– 165. See also H. Gros-Espiell, “El Recurso ante la Corte Internacional de Justicia contra las Sentencias de los Tribunales Administrativos Internacionales”, Anuario de Derecho Internacional, vol. 5 (1979–1981), pp. 273–321; C.F. Amerasinghe, “Cases of the International Court of Justice relating to employment in international organizations”, in V. Lowe & M. Fitzmaurice, (Eds.), Fifty Years of the International Court of Justice, Essays in Honour of Sir Robert Jennings (1996), pp. 193–209; K.H. Kaikobad, The International Court of Justice and Judicial Review, A Study of the Court’s Powers with respect to Judgments of the ILO and UN Administrative Tribunals (2000). 34  Judgment 2867 of ILOAT, Advisory Opinion of 1 Feb. 2012.

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rule: the Court has repeatedly stated that it has discretion as to the exercise of its power to give advisory opinions.35 This is in apparent contrast with Article 14 of the Covenant, under which it is believed that the PCIJ could not decline to give an advisory opinion.36 Interestingly, during the discussions concerning the first Rules of the PCIJ it was proposed to include a special provision regarding “the right of the Court to refuse to give advisory opinions.” It was decided that this was not necessary, “[i]t being understood that Article 78 (Article 74 of the final version) safeguarded the Court’s right to refuse to reply to questions referred to it.”37 The guiding principle will normally be that of the need for the Court to remain faithful to “the requirements of its judicial character,”38 because “[t]he discretion whether or not to respond to a request for an advisory opinion exists so as to protect the integrity of the Court’s judicial function and its nature as the principal judicial organ of the United Nations.”39 The question is strictly not one of jurisdiction but of “propriety” in the exercise of the jurisdiction. The Court has acknowledged that it has “[t]he duty to satisfy itself, each time it is seised of a request for an opinion, as to the propriety of the exercise of its judicial function.”40 Concerning this question, the Court has also identified a number of general criteria:

•

As stated above, the question of determining whether the Court exercises its discretion to give or to refuse the opinion is pertinent only if the Court 35  Kosovo-Declaration of Independence, Advisory Opinion of 22 July 2010, ICJ Rep. 2010, ICJ Rep. 2010, p. 416, para. 29. 36  Frowein/Oellers-Frahm, “Article 65”, MN 2, p. 1609 and MN 7, p. 1610; Hudson’s PCIJ, p. 212, pp. 498 and ff. But see the opposite view in Fachiri’s PCIJ, p. 69. 37  PCIJ E 3, p. 226. 38  Western Sahara, Advisory Opinion of 16 Oct. 1975, ICJ Rep. 1975, p. 21, para. 23. 39  Kosovo-Declaration of Independence, Advisory Opinion of 22 July 2010, ICJ Rep. 2010, p. 416, para. 29. 40  Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, p. 157, para. 45. This appears to be settled law. However, it has been argued that the notion of discretion in this context is more apparent than real. See G. Abi-Saab, “On discretion: reflections on the nature of the consultative function of the International Court of Justice”, in L. Boisson de Chazournes & P. Sands (Eds.), International Law, the International Court of Justice and Nuclear Weapons (1999), pp. 36–50; R. Kolb, “De la prétendue discrétion de la Cour international de Justice de refuser de donner un avis consultatif”, in L. Boisson de Chazournes & V. Gowland-Debbas (Eds.), The International Legal System in Quest of Equity and Universality, Liber Amicorum Georges Abi-Saab (2001), pp. 609–627.

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has already found that it has jurisdiction, i.e. that the necessary conditions of the Court’s competence are fulfilled: if the Court lacks jurisdiction, the question of its discretion to give the opinion does not arise.41 As an advisory opinion represents the Court’s participation in the activities of the Organization, a request for such an opinion should not in principle be refused.42 Furthermore: “[g]iven its responsibilities as the “principal judicial organ of the United Nations” (Article 92 of the Charter), the Court should in principle not decline to give an advisory opinion. In accordance with its consistent jurisprudence, only “compelling reasons” should lead the Court to refuse an opinion.43 This has been found to mean that there is always on the part of the Court “a strong inclination to reply.”44 Given that the Court’s jurisdiction to give advisory opinions is not based on State consent, it is clear that the consent of the States involved is not required, not even when the request relates to a legal question actually pending between States.45 A corollary of this is that “[n]o State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take.”46 Thus, “[t]he lack of consent to the Court’s contentious jurisdiction by interested States has no bearing on the Court’s jurisdiction to give an advisory opinion.”47 However, the attitude of those States is not completely irrelevant and, in fact, constitutes an important element to be taken into account in order to consider whether it is judicially appropriate for the Court to give the opinion. With regard to this, it is important to recall that one major difference between the present Court and the PCIJ is that the scope of the advisory jurisdiction of the latter was wider, as the Covenant empowered it to give advisory opinions “upon any dispute or question” that was referred to it by the Council or by the Assembly. Most of the advisory cases that came

•

•

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41  Nuclear Weapons (WHO), Advisory Opinion of 8 July 1996, ICJ Rep. 1996, p. 73, par. 14; Nuclear Weapons (UNGA), Advisory Opinion of 8 July 1996, ICJ Rep. 1996, p. 232, para. 10; Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, p. 144, para. 13. 42  Peace Treaties, Advisory Opinion of 30 March 1950 ( first phase), ICJ Rep. 1950, p. 71. 43  Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, p. 156, para. 44. 44  Judgment 2867 of ILOAT, Advisory Opinion of 1 Feb. 2012, para. 33. 45  Western Sahara, Advisory Opinion of 16 Oct. 1975, ICJ Rep. 1975, p. 24, para. 32. 46  Peace Treaties, Advisory Opinion of 30 March 1950 ( first phase), ICJ Rep. 1950, p. 71. 47  Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, p. 157, para. 47.

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before the PCIJ effectively referred to inter-State controversies and abstract legal questions were of secondary concern. The drafters of the UN Charter and the new Statute decided to drop the reference to “any dispute” as the permissible subject of advisory opinions and settled for the more general notion of “any legal question.”48 In general, disputes between States have come before the present Court via the advisory procedure only in exceptional cases.49 The Court has in fact admitted that “[l]ack of consent might constitute a ground for declining to give the opinion requested if, in the circumstances of a given case, considerations of judicial propriety should oblige the Court to refuse an opinion. In short, the consent of an interested State continues to be relevant, not for the Court’s competence, but for the appreciation of the propriety of giving an opinion.”50 One example of a situation in which the lack of consent of an interested State may render the giving of an advisory opinion incompatible with the Court’s judicial character is “[w]hen the circumstances disclose that to give a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent.”51 Other reasons that may lead the Court to decline to give an opinion are that it cannot fulfill its judicial function with regard to the determination of the facts;52 or that the reply lacks purpose and object. On this latter aspect the Court also enjoys ample discretion, for its function is “[t]o give an opinion based on law, once it has come to the conclusion that the questions put to it are relevant and have a practical and contemporary effect and, consequently, are not devoid of object or purpose.”53 Along the same lines, the Court declared that “[t]he Court cannot decline to answer the question posed based on the ground that its opinion would lack any useful purpose. The Court cannot substitute its assessment of the

•

48  S. Schwebel, “Was the Capacity to Request an Advisory Opinion Wider in the Permanent Court of International Justice than it is in the International Court of Justice?”, in Justice in International Law, Selected Writings of Judge Stephen M. Schwebel, pp. 27–71. 49  Mosler, “Article 96”, MN 3–5, pp. 1009–1010. These have been called “indirectly contentious” cases (Sir E. Lauterpacht, “Principles of Procedure in International Litigation”, RC, vol. 345 (2009), p. 427). 50  Western Sahara, Advisory Opinion of 16 Oct. 1975, ICJ Rep. 1975, p. 25, para. 32. 51  Ibid., p. 25, paras. 32–33. See for further analysis on this aspect, Nagendra Singh, The Role and Record of the International Court of Justice (1989), pp. 87–92. 52  Eastern Carelia, Advisory Opinion No. 5, 23 July 1923, PCJI B 5, p. 28. 53  Western Sahara, Advisory Opinion of 16 Oct. 1975, ICJ Rep. 1975, p. 37. This has been called “the circumvention issue” (Frowein/Oellers-Frahm, “Article 65”, MN 33–37, pp. 1618–1619).

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usefulness of the opinion requested for that of the organ that seeks such opinion, namely the General Assembly.”54

Box # 20-2 The distribution of powers between the political organs of the UN and the notion of “legitimate interest” An objection raised in the Kosovo-Declaration of Independence case against the expedience of the Court’s answering the question put to it was based on the respective roles of the main political organs of the UN in relation to that situation, in view of the fact that the opinion was requested by the General Assembly and not by the Security Council. It was a fact of the case that for a long time the situation in Kosovo had been dealt with primarily by the Security Council. The qualifier “primarily” in this sentence is important because at different times the General Assembly has adopted resolutions dealing with specific aspects of the Kosovo situation, in particular the situation of human rights and the financing of UNMIK.55 Nevertheless, the Court was forced to admit that “the broader situation in Kosovo was not part of the agenda of the General Assembly at the time of the declaration of independence,” as attested by the very fact that in order to consider the proposal to request an opinion from the Court it was necessary to create a new agenda item in September 2008 (Advisory Opinion of 22 July 2010, ICJ Rep. 2010, p. 419, para. 38). Later in the opinion, the Court concluded that “the General Assembly has exercised functions of its own in the situation in Kosovo” (ibid., pp. 421–422, para. 45). In view of these circumstances, it was suggested that given the respective powers of these organs and the nature of the Security Council’s involvement in the situation of Kosovo, the request should have been made by the Security Council and that this fact alone constituted a compelling reason for the Court not to respond to the request from the General Assembly (ibid., p. 419, para. 39). This view was embraced by two of the concurring judges (Declaration of Vice-President Tomka, ibid., p. 455–456, paras. 5–9; Separate Opinion of Judge Keith, ibid., pp. 483–490, paras. 6–18). The latter accurately underlined that this

54  Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, p. 163, para. 62. 55  UNMIK stands for “Interim Administration Mission in Kosovo.” It was established by means of Security Council Resolution 1244 (1999), adopted on 10 June 1999.

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may have been actually a first for the Court, because the issue of “the appropriateness of an organ requesting an opinion if the request is essentially concerned with the actual exercise of special powers by another organ under the Charter, in relation to the matter which is the subject of the request” had not arisen with respect to any earlier request for an advisory opinion. (ibid, para 6). An analogous view, but more directly concerned with the interpretation of the decisions of the other organ was advocated by judge Skotnikov (Separate Opinion of Judge Skotnikov, ibid, p. 515, para. 1) The core of the Court’s answer to this objection is founded on the role played by a novel concept that is believed to not have made an appearance in the Court’s prior case law: that of a “legitimate interest” that other organs of the UN, like the General Assembly, may possess in a question or matter that is already before the Security Council. In articulating this concept, the Court relied heavily on the wide scope of the powers granted to the Assembly by Articles 10 and 11 of the Charter: While the request put to the Court concerns one aspect of a situation which the Security Council has characterized as a threat to international peace and security and which continues to feature on the agenda of the Council in that capacity, that does not mean that the General Assembly has no legitimate interest in the question. Articles 10 and 11 of the Charter (. . .) confer upon the General Assembly a very broad power to discuss matters within the scope of the activities of the United Nations, including questions relating to international peace and security. That power is not limited by the responsibility for the maintenance of international peace and security which is conferred upon the Security Council by Article 24, paragraph 1. As the Court has made clear in its Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, paragraph 26, “Article 24 refers to a primary, but not necessarily exclusive, competence”. (Kosovo-Declaration of Independence Advisory Opinion of 22 July 2010, ICJ Rep. 2010, pp. 419–420, para. 40)

This subject may have repercussions for the future, particularly if one takes into account the traditional reticence of the Security Council to resort to the advisory procedure. On the other hand, the Court’s case law points that the ultimate justification for its advisory jurisdiction lies in that in exercising such jurisdiction the Court

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has the opportunity to assist the UN organs and other organizations in fulfilling their mission, by providing them with “the elements of law necessary for them in their action.” (Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004 (I), p. 162, para. 60). By the same token, it may be submitted that if the organ in question lacks a legitimate interest in the subject-matter of the request this assistance may not be required. This point was made quite clearly by judge Keith, who considered that the Court should have abstained from answering the General Assembly’s request and devoted some space of his separate opinion to explore the notion that the requesting organ must always have an interest in the subject-matter of the request—variedly described as “manifest,” “sufficient,” “necessary,” or “real,”56 because the question of the interest of the requesting organ and the relative interests of other United Nations organs constitutes one of the many considerations which might lead the Court to refuse giving an advisory opinion, as an aspect of its discretion in the matter.57 It is also proper to recall that that the differentiation between a “primary” and an “exclusive” responsibility in the context of the Security Council’s functions in the maintenance of international peace and security had already been used by  the Court in order to provide a legal foundation for the celebrated 1950 Uniting for Peace Resolution, the legality of which was endorsed in the Construction of a Wall advisory opinion.58 In the Kosovo-Declaration of Independence case, the Court resorted to the same distinction in order to preserve for the Assembly a residual role on questions relating to international peace and security, concluding that “The limit which the Charter places upon the General Assembly to protect the role of the Security Council is contained in Article 12 and restricts the power of the General Assembly to make recommendations following a discussion, not its power to engage in such a discussion.” (Advisory Opinion of 22 July 2010, ICJ Rep. 2010, p. 420, para. 40).

56  Kosovo-Declaration of Independence, Separate Opinion of Judge Keith, ICJ Rep. 2010, pp. 488–490, paras. 15, 17 and 18. Vice-President Tomka also declared that he failed to see any “sufficient interest” for the Assembly in requesting the opinion and expressed his agreement with judge Keith on this question (ibid., Declaration of Vice-President Tomka, ICJ Rep. 2010, p. 455, para. 5). 57  Ibid, Separate Opinion of Judge Keith, p. 483, para. 4, p. 489, para. 16. For a similar view see ibid, Dissenting Opinion of Judge Bennouna, ICJ Rep. 2010, p. 503, para. 16, p. 504, para. 21. 58  Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, p. 148, para. 26, pp. 150–151, para. 30. This resolution was also mentioned in para. 42 of the KosovoDeclaration of Independence Opinion (ICJ Rep. 2010, p. 421).

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The Court elaborated on the scope and reach of Article 12 by recalling the manner in which this question was handled in the Construction of a Wall case and concluded that this provision “does not bar all action by the General Assembly in respect of threats to international peace and security which are before the Security Council.” (ibid., para. 41). In that case, it will be recalled, the examination of Article 12 and its implications was carried out in connection with the question of the jurisdiction to give an advisory opinion, but the Court found that the analysis contained in that opinion was also pertinent to the issue of discretion (Kosovo-Declaration of Independence, Advisory Opinion of 22 July 2010, ICJ Rep. 2010, pp. 420–421, para. 42).59

c)

Questions of Procedure

In general, the procedure used in advisory cases is modeled on the procedure used in contentious cases, a situation that is a reflection of a conscious attitude of the Court, dating from the time of the PCIJ, directed at promoting an assimilation of the two types of procedures.60 In the 1927–1928 Annual Report of the PCIJ, it was stressed that the regulation of the advisory procedure had been left to the Court by the Statute and that The Court, in the exercise of this power, deliberately and advisedly assimilated its advisory procedure to its contentious procedure; and the results have abundantly justified its action.61 This approach, in turn, was based on a basic premise articulated for the first time in a famous dictum in the Eastern Carelia case, according to which “[t]he Court, being a Court of Justice, cannot, even in giving advisory opinions, depart from the essential rules guiding their activity as a Court.”62

59  Contra, see the view of judge Skotnikov (ibid., Dissenting Opinion of Judge Skotnikov, ICJ Rep. 2010, pp. 515–516, para. 3). 60  H. Thirlway, “Advisory Opinions”, in Max Planck EPIL, MN 26. 61  PCIJ E 4, p. 76. 62  PCIJ B 5, p. 29. Reaffirmed by the present Court in Northern Cameroons (Preliminary Objections, Judgment of 2 Dec. 1963, ICJ Rep. 1963, p. 30) and Western Sahara (Advisory Opinion of 16 Oct. 1975, ICJ Rep. 1975, p. 21, para. 23).

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On the other hand, the relevant rules are inherently flexible and the Court has had occasion to remark that Article 82, para. 1 of the 1946 Rules—the predecessor of Article 102 of the current Rules—had as its purpose to provide “[g]eneral guidelines in the relatively unschematic context of advisory proceedings” and “[t]o regulate advisory proceedings without impairing the flexibility which Articles 66, paragraph 4, and 68 of the Statute allow the Court so that it may adjust its procedure to the requirements of each particular case.”63 Within this framework, certain basic aspects concerning the conduct of proceedings in advisory cases are worthy of mention: Governing Provisions Article 102, para. 1 of the Rules of Court lists the provisions governing the conduction of proceedings in advisory cases. It reads: In the exercise of its advisory functions under Article 65 of the Statute, the Court shall apply, in addition to the provisions of Article 96 of the Charter and Chapter IV of the Statute, the provisions of the present Part of the Rules. The constitutional basis for the advisory competence of the Court is of course Article 96 of the Charter, which provides that certain bodies are entitled to request the ICJ to give an advisory opinion on legal questions. Supplementing this norm, Chapter IV of the Statute contains a handful of provisions concerning the conduct of advisory proceedings. They are: – Article 65: Authority to give advisory opinions—authorized bodies— institution of proceedings; – Article 66: Communications to third parties—stages in the proceedings (written and oral); – Article 67: Delivery of the opinion; – Article 68: Applicability of provisions governing contentious procedure. As for the Rules, a total of eight articles (Articles 102 to 109, making up Part IV) are devoted to the conduction of advisory proceedings.64 Likewise, the 1976 resolution concerning the internal judicial practice of the Court is also applicable for, according to its Article 10, the provisions of this resolution 63  Namibia, Advisory Opinion of 21 June 1971, ICJ Rep. 1971, p. 26, para. 38. 64  For the evolution of the Rules of Court with regard to advisory proceedings see Guyomar Commentaire, pp. 643–649.

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“[s]hall apply whether the proceedings before the Court are contentious or advisory.” Finally, even though most of the Practice Directions are directed to “the parties” and a distinguishing feature of advisory proceedings is that there are no actual parties before the Court, some of them may be applicable in advisory cases, depending upon the circumstances. This may be the case of Practice Directions II, III, IV, VI, VII, VIII, IX, IXbis, IXter and IXquater.65 Practice Direction XII—concerning written statements submitted by nongovernmental organizations—is applicable only in advisory proceedings. Article 68 of the Statute contains a residual rule that is of particular importance in this context because it allows for the application by analogy in advisory proceedings of the entire body of the Statute concerning procedure in contentious cases.66 It states that “[i]n the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable.” This is an essentially permissive rule, for, as the Court commented in the Peace Treaties case: It is true that Article 68 of the Statute provides that the Court in the exercise of its advisory functions shall further be guided by the provisions of the Statute which apply in contentious cases. But according to the same article these provisions would be applicable only “to the extent to which it [the Court] recognizes them to be applicable”. It is therefore clear that their application depends on the particular circumstances of each case and that the Court possesses a large amount of discretion in the matter. (Peace Treaties, Advisory Opinion of 30 March 1950 ( first phase), ICJ Rep. 1950, p. 72)

In the subsequent Reservations case, the Court reaffirmed that “[A]rticle 68 of the Statute recognizes that the Court has the power to decide to what extent the circumstances of each case must lead it to apply to advisory proceedings the provisions of the Statute which apply in contentious cases.”67

65  See Box # 3-7. 66  See Ch. De Visscher, “Les Avis Consultatifs de la Cour Permanente de Justice Inter­ nationale”, RC, vol. 26 (1929-I), pp. 52–57. 67  Reservations to Genocide Convention, Advisory Opinion of 28 May 1951, ICJ Rep. 1951, p. 19.

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Article 68 has been developed by Article 102, para. 2 of the Rules,68 providing as follows: The Court shall also be guided by the provisions of the Statute and of these Rules which apply in contentious cases to the extent to which it recognizes them to be applicable.  For this purpose, it shall above all consider whether the request for the advisory opinion relates to a legal question actually pending between two or more States.69 This provision is also permissive and grants to the Court a large measure of discretion as to applying to advisory proceedings the rules applicable in contentious cases. By providing that the Court can do this “to the extent to which it recognizes [those rules] to be applicable,” the Court is effectively empowered to “pick and choose from the toolbox of its contentious procedure when dealing with advisory matters.”70 On the other hand, it is worth noting that there are several procedural institutions in the Statute and the Rules of Court that are not transportable at all to advisory proceedings, mainly because they are heavily dependent on a given State having the condition of a “party to a case.” This is clearly the case of counter-claims, third-party intervention, revision of decisions, lack of appearance and special reference to the Court.71 Institution of Proceedings A corollary of the rules governing access to the Court in advisory proceedings is that neither a State nor any UN organ or international organization other than 68  An equivalent provision has been present in the Rules since 1936, with no major changes of substance (1936 Rules: Article 82; 1946 Rules: Article 82, para. 1; 1972 Rules: Article 87, para. 1). 69  Paragraph 3 of the same article extends to advisory provisions the rules concerning the appointment of judges ad hoc, when the opinion “[i]s requested upon a legal question actually pending between two or more States”. This is discussed below. 70  J.P. Cot, “Article 68”, in Oxford Commentary, MN 43, p. 1684. For a suggestion that the Court could have made use of Article 68 in order to authorize the appointment of a judge ad hoc in an advisory case in which this would normally not have been warranted, see the joint declaration of judges Onyeama and Dillard in the Namibia case (Order of 29 Jan. 1971, ICJ Rep. 1971, p. 14). In the same direction, see the powerfully reasoned dissenting opinions of judges Fitzmaurice and Gros appended to the advisory opinion given in the same case (ICJ Rep. 1971, pp. 309–313 and p. 330). 71  Hudson also mentions in this context the provisions concerning provisional measures (Article 41) and the effect of judgments (Articles 59–61). Hudson’s PCIJ, p. 509.

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those duly authorized is entitled to request an opinion. The primary requirement concerning the institution of advisory proceedings is then that the body which is preparing to make a request is entitled to activate the Court’s advisory jurisdiction, under Articles 96 of the Charter and 65 of the Statute. The institution of advisory proceedings is made by means of a formal document entitled “Request for Advisory Opinion,” which, according to Article 65, para. 2 of the Statute, must contain “[a]n exact statement of the question upon which an opinion is required.” As this document is originated in the body interested in having an advisory opinion from the Court, the first step in that direction is, then, for one or more of the States members of that body to table before the proper organ a draft resolution or decision containing the request. In this regard, in the Kosovo-Declaration of Independence case the Court clarified that “[t]he motives of individual States which sponsor, or vote in favour of, a resolution requesting an advisory opinion are not relevant to the Court’s exercise of its discretion whether or not to respond.” 72 Frequently, prior to taking that decision the concerned organ seeks legal advice from some internal source. In the case of the UN General Assembly, for instance, an annex to its rules of procedure contains a recommendation that [w]henever any Committee contemplates making a recommendation to the General Assembly to request an advisory opinion from the International Court of Justice, the matter may, at some appropriate stage of its consideration by that Committee, be referred to the Sixth Committee for advice on the legal aspects and on the drafting of the request, or the Committee concerned may propose that the matter should be considered by a joint Committee of itself and the Sixth Committee.73 The requesting body is bound to follow its own procedural rules and practices during the process leading to the adoption of the decision to request the opinion from the Court. Observance of these rules is important because it is generally accepted that the Court would be precluded from acting upon a request not adopted following the proper procedures.74 In this context, in the Namibia case the Court held that

72  Advisory Opinion of 22 July 2010, ICJ Rep. 2010, p. 417, para. 33. See also Nuclear Weapons (UNGA), Advisory Opinion of 8 July 1996, ICJ Rep. 1996 (I), p. 237, para. 16). 73  Doc. A/520/Rev.17, Annex 2 (a): “Methods and procedures of the General Assembly for dealing with legal and drafting questions.” 74  Frowein/Oellers-Frahm, “Article 65”, MN 19–20, pp. 1613–1614.

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[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. (Namibia, Advisory Opinion of 21 June 1971, ICJ Rep. 1971, p. 22, para. 20)

Subsequent practice suggests that the Court will give careful consideration to the circumstances surrounding the adoption of the decision requesting an advisory opinion and will examine in particular whether there are reasons why this presumption can be rebutted.75 Once the resolution has been adopted,76 it falls upon the Secretary-General of the UN or, in the case of other bodies, the “chief administrative officer,” the task of transmitting the request to the Court (Rules, Article 104). At this point, it will be convenient to distinguish between three different types of documents concerning a request for an advisory opinion, namely: (i) The request itself, which is invariably embodied in a resolution or decision adopted by the competent organ of the body authorized to request the opinion; (ii) The letter of transmission of the request, which is addressed to the Court by the Secretary-General or its equivalent; (iii) The “documents likely to throw light upon the question” that are mentioned in Article 65 (2) of the Statute, which under Article 104 of the Rules are to be “[t]ransmitted to the Court at the same time as the request or as soon as possible thereafter, in the number of copies required by the Registry.”

75  Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, pp. 150–152, paras. 29–35. 76  If the requesting organ is the General Assembly the resolution is adopted by simple majority, the rule requiring a two-thirds majority not being applicable. For a comment see Nagendra Singh, “The Role and Record . . .”, p. 85. For the voting at the Security Council see ibid., pp. 85–87. On both aspects see also Goodrich et al., “Charter . . .”, pp. 565–566; Mosler, “Article 96”, MN 12, p. 1011.

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Box # 20-3 The reformulation of the question by the Court An interesting feature of advisory proceedings is that, while the Court feels in principle “bound by the terms of the questions as formulated” by the requesting body (Caphandaris-Molloff Agreement, Advisory Opinion of 8 March 1932, PCIJ A/B 45, p. 87), once that question has been presented it feels free to reword it. Both the PCIJ and the ICJ have had occasion to exercise this power. The original authority for this comes from the decision by the PCIJ in the Greco-Turkish Agreement of 1926 case, in which admittedly the question submitted for advice was not entirely clear. The request transmitted to the Court in pursuance of a resolution by the Council of a League simply referred to a letter by the President of a Mixed Commission to the Secretary-General of the League and alluded in a rather vague manner to the subject-matter on which advise was needed. The Court remarked that in these conditions it fell upon itself to ascertain “the form in which the question which the Mixed Commission intended to put to the Court may be best expressed” and underlined: The Court . . . considers that, as the letter referred to does not exactly state the question upon which its opinion is sought, it is essential that it should determine what this question is and formulate an exact statement of it, in order more particularly to avoid dealing with points of law upon which it was not the intention of the Council or the Commission to obtain its opinion. (Greco-Turkish Agreement of 1926, Advisory Opinion No. 16, 28 August 1928, PCIJ B 16, p. 14)77

But the Court was careful in stressing that in this case it was possible for it to do that, “owing to the relatively simple nature of the case” and that this “may not always be so.” (ibid.) Before the present Court the situation has presented in more than one occasion. In the most directly relevant of them, the Agreement between the WHO and Egypt case, the Court took as a point of departure that the question had been submitted to it in a “hypothetical way.” It found that in these circumstances if that question was to receive a pertinent and effectual reply, “[t]he Court must first ascertain the meaning and full implications of the question in the light of the actual framework of fact and law in which it falls for consideration. Otherwise its reply to the question may be incomplete and, in consequence,

77  Mani’s Adjudication, p. 90.

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ineffectual and even misleading as to the pertinent legal rules actually governing the matter under consideration by the requesting Organization.” (Advisory Opinion of 20 Dec. 1980, ICJ Rep. 1980, p. 76, para. 10). From here, the Court had no problem in moving to re-formulate the question in its entirety: [i]t is apparent that, although the questions in the request are formulated in terms only of Section 37 [of the 1951 Agreement the interpretation of which was disputed], the true legal question under consideration in the World Health Assembly is: What are the legal principles and rules applicable to the question under what conditions and in accordance with what modalities a transfer of the Regional Office from Egypt may be effected? This, in the Court’s opinion, must also be considered to be the legal question submitted to it by the request. The Court points out 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 (. . .). [t]he Court could not adequately discharge the obligation incumbent upon it in the present case if, in replying to the request, it did not take into consideration all the pertinent legal issues involved in the matter to which the questions are addressed. (Agreement between the WHO and Egypt, Advisory Opinion of 20 Dec. 1980, ICJ Rep. 1980, pp. 88–89, para. 35)

In the Review of UNAT Judgment No. 273 case, the question put to the Court was found to be “[o]n the face of it, at once infelicitously expressed and vague,” and the Court conceived its task in regard to it, in accordance with its established jurisprudence, as [to] seek to bring out what it conceives to be the real meaning of the . . . request, and thereafter [to] proceed to attempt to answer rationally and effectively “the legal questions really in issue”. (Review of UNAT Judgment No. 273, Advisory Opinion of 20 July 1982, ICJ Rep. 1982, p. 348, para. 46 and p. 349, para. 47)

Similarly, in the Construction of a Wall case, the Court pointed out that: “[l]ack of clarity in the drafting of a question does not deprive the Court of jurisdiction. Rather, such uncertainty will require clarification in interpretation, and such necessary clarifications of interpretation have frequently

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been given by the Court. (. . .) Consequently, the Court has often been required to broaden, interpret and even reformulate the questions put.” (Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, pp. 153–154, para. 38)

In the Kosovo-Declaration of Independence case the Court recalled its previous practice of “depart[ing] from the language of the question put to it” (Advisory Opinion of 22 July 2010, ICJ Rep. 2010, p. 423, para. 50) but declared that in the circumstances of the case, it saw no reason to reformulate the scope of the question, because it had been “clearly formulated” and was also “narrow and specific” (ibid., para. 51). However, despite this apparently strong disclaimer, the Court clearly introduced some adjustments to the question that was put to it originally, to the point that the title of the case itself had to be changed on the eve of the reading of the advisory opinion. This aspect was criticized in several individual statements appended to the advisory opinion.78

Urgency79 Article 74, concerning incidental proceedings on provisional measures, and  Article 103, on advisory proceedings, are the only provisions in the Rules that accord priority to a case within the Court’s program of work.80 Article 103 contemplates two situations: that the requesting body “informs the Court that its request necessitates an urgent answer,” or that the Court itself “finds that an early answer would be desirable.” In either of these circumstances, the Court is bound to “take all necessary steps to accelerate the procedure.” The last sentence of the Article applies when the Court is not sitting at the moment at which the request is received and provides that it will be convened “as early as possible for the purpose of proceeding to a hearing and deliberation on the request.” This wording suggests that in a case like this the Court could be justified in dispensing with the written proceedings stage, a matter on which there is no practice yet.81 78  Advisory Opinion of 22 July 2010, Declaration of Vice-President Tomka, para. 21; ibid., Dissenting Opinion of Judge Koroma, para. 3; ibid., Dissenting Opinion of Judge Bennouna, para. 27. For a comment see Quintana’s Procedural Developments, LPICT, vol. 10 (2011), pp. 181–186. 79  M. Reisman, “Accelerating Advisory Proceedings: Critique and Proposal”, AJIL, vol. 68 (1974), pp. 648–671. 80  A third instance could be a case that is brought before the Chamber of Summary Procedure provided for in Article 29 of the Statute. See, in general, Chapter 19, c). 81   E. Jiménez de Aréchaga, “The Amendments to the Rules of Procedure of the International Court of Justice, AJIL, vol. 67 (1973), pp. 9–10; Rosenne’s Procedure, p. 216;

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It has been accurately remarked that the Court is not obliged to accept the characterization of urgency established by the requesting body and that, therefore, it is entirely free to reject a request aimed at accelerating the procedure.82 The requesting body put before the Court an intimation of urgency (with notable differences in the drafting) in the following cases: Namibia;83 Western Sahara;84 WHO/Egypt Agreement;85 Immunity from Legal Process;86 and Construction of a Wall.87 The only example thus far of the Court itself accelerating the proceedings is the Obligation to Arbitrate case, which is discussed in the following box.

Box # 20-4 Provisional measures in advisory proceedings? Can the Court indicate provisional measures in advisory proceedings? Is Article 41 of the Statute applicable by analogy and under the cover of Article 68, to advisory proceedings? The question arose in the Obligation to Arbitrate case, in which the General Assembly Resolution requesting an advisory opinion from the Court on certain aspects of the UN Headquarters Agreement expressly mentioned Articles 41 and 68 of the Statute in one of the paragraphs of the preamble. The Court found that, while the resolution contained a reference to Articles 41 and 68 of the Statute, it did not “[c]onstitute a formal request for the indication of provisional measures” and that it was not appropriate, in the circumstances of the case, “[f]or the Court to consider whether or not provisional measures may be indicated in proceedings on a request for advisory opinion.” As for the General Assembly’s concerns derived of time constraints, the Court decided

Guyomar’s Commentaire, p. 668, note 2. See also, from a critical perspective, Reisman, “Accelerating . . .”, pp. 663–664. 82  Reisman, “Accelerating . . .”, p. 660. In the same piece, this author suggests a set of guidelines that can be taken into account by the Court when deciding whether to accelerate the proceedings (ibid., pp. 660–664). 83  Advisory Opinion of 21 June 1971, ICJ Rep. 1971, p. 17, para. 1 (request by the Security Council). 84  Advisory Opinion of 16 Oct. 1975, ICJ Rep. 1975, p. 13, para. 1 (request by the General Assembly). 85  ICJ Pleadings, WHO/Egypt Agreement, p. 3 (Request by WHO). In this case the urgency of the situation was not mentioned in the resolution containing the request adopted by the World Health Assembly but in the letter of transmission by the Director-General. For the reasons see ICJ Yearbook (1979–1980), pp. 128–129. 86  Advisory Opinion of 29 April 1999, ICJ Rep. 1999, p. 63, para. 1 (request by the ECOSOC). 87  Advisory Opinion of 9 July 2004, ICJ Rep. 1975, p. 141, para. 1 (request by the General Assembly).

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to provide an early answer to the request, and, in application of Article 103 of the Rules, directed that “all necessary steps should be taken to accelerate the procedure” (Order of 9 March 1988, ICJ Rep. 1988, pp. 4–5). As it can be seen, the Court simply ascertained that it did not have before it a genuine request to that effect. In these circumstances, the Court apparently considered that it was inappropriate for it to resolve the general question of the applicability of Article 41 in advisory proceedings. Thus, this decision leaves the impression that the question could easily return to the Court in the future. Judge Schwebel appended a declaration to the order in which, apart from criticizing the fact that the order transcribed a paragraph of the resolution concerning certain obligations of the Host State under the Headquarters Agreement, he stated: In defence of the Court, it may be said that the Court, being unable to indicate provisional measures in this advisory proceeding, took note of the paragraph at issue in lieu of them. That may be an accurate explanation of the intention of the Court but it cannot be an adequate defence of its action. The Court’s quotation of the paragraph at issue can have no injunctive effect; it is in no measure an effective substitute for an indication of provisional measures. It rather seems to be an expression of the Court’s concern, an expression which is not juridical in character. For that reason as well, its inclusion in the Court’s Order is to be regretted. (Obligation to Arbitrate, Declaration of Judge Schwebel, ICJ Rep. 1988, p. 7)

It is submitted that there is no real need for provisional measures in advisory proceedings, given that the provisions of Article 103 of the Rules provide a satisfactory substitute for Article 41 in this case. Under that provision, it is enough that the requesting body intimates to the Court that the request “necessitates an urgent answer” or that the Court itself concludes that an early answer would be desirable, and the Court is authorized to take “all necessary steps to accelerate the procedure,” including the prompt organization of a hearing, followed by immediate deliberation on the request.88

88  An entirely different take on this problem is that of Professor M. Reisman, for whom the device of provisional measures “would appear to recommend themselves in advisory cases.” (Reisman, “Accelerating . . .”, p. 663). He accepts that no authority for this can be found in the Statute but suggests that the Court itself should develop “a functional equivalent” to provisional measures (ibid., pp. 663, 669).

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However, there is another, more substantial reason why it would appear that the indication of provisional measures is not viable in advisory proceedings. This has been formulated as follows by Professor Thirlway: It is suggested that, had the Court pursued the matter, it could not properly have concluded that measures could be indicated. The purpose of provisional measures, as was indicated, for example, in the case of the Arbitral Award of 31 July 1989, is to protect ‘rights which are the subject of dispute in judicial proceedings’; measures, according to the same decision, are indicated ‘pending the final decision’, and therefore they are measures such that they will no longer be required as such once the dispute over those rights has been resolved by the Court’s judgment on the merits of the case. Assuming that there was in the Headquarters Agreement case a dispute over the respective rights of the United States and the United Nations, the advisory opinion would not resolve it, as though it were a judgment. Even if the Court had been asked for an opinion whether the US legislation closing the PLO office would be a breach of the Headquarters Agreement, an advisory opinion to that effect would not ‘resolve the dispute’, in view of the non-binding effect of advisory opinions.89

The Bench for the Case90 Article 102, para. 3 of the Rules provides: When an advisory opinion is requested upon a legal question actually pending between two or more States, Article 31 of the Statute shall apply, as also the provisions of these Rules concerning the application of that Article.91 89  Thirlways’ Law and Procedure, Part. 11, BYIL, vol. 71 (2000), p. 144. See also Rosenne, “Provisional Measures . . .”, pp. 180–181; J.P. Cot, “Article 68”, MN 39, p. 1683. 90  See in general Guyomar’s Commentaire, pp. 653–663. On the possibility that advisory proceedings take place before a chamber of the Court see Box # 19-1. 91  This provision was incorporated in the Rules through a special amendment to Article 71 adopted by the Court in 1927 (PCIJ E 4, pp. 72–78). For the relevant background see De Visscher, “Les Avis Consultatifs . . .”, pp. 55–57.

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Article 31 of the Statute contains the regime applicable to the appointment of judges ad hoc. As for the provisions of the Rules concerning the application of that Article, they are mainly Articles 7 and 8, making up Subsection 2 of Section A of Part I of the Rules. This means that it is possible that in advisory proceedings one or more States are authorized to appoint a judge ad hoc, provided that the Court is satisfied that the opinion is requested “upon a legal question actually pending” between them and that the conditions of Article 31 obtain. The question has not arisen often. In the Danzig Legislative Decrees case the Senate of the Free City of Danzig, which had been invited to submit observations with regard to a request for an advisory opinion made by the Council of the League, requested authorization to appoint a judge ad hoc and was denied it, with the argument that Article 71, para. 2 (the direct ancestor of Article 102, para. 3 of the current Rules) constituted the only exception to the general rule that judges ad hoc were appointed only in contentious proceedings.92 In the Namibia case, South Africa requested leave of the Court to appoint a judge ad hoc but the Court denied it, after holding closed hearings.93 At the merits phase, the Court made an explicit finding that the request did not relate to a legal dispute actually pending between two or more States.94 In the Western Sahara case, in which clearly there was in existence a dispute between Spain and Morocco, the first of these two States had a national judge in the bench. Morocco and Mauritania expressed their intention to appoint a judge ad hoc and the Court held open hearings devoted to that question, in which yet another State (Algeria) participated. By a vote of 10 to 5 the Court granted to Morocco the right to appoint a judge ad hoc and by a separate vote of 8 to 7 it denied an equivalent right to Mauritania.95 Participation by States and Organizations Not being contentious in nature, there are no “parties” in advisory proceedings. However, as soon as a request for advisory opinion is received, the Court, or the President if it is not sitting, will draw up a list of States entitled to appear before the Court or international organizations which in its view are “[l]ikely 92  Danzig Legislative Decrees, PCIJ, A/B 65, Order of 31 Oct. 1935, p. 71. 93  Namibia, Order of 29 Jan. 1971, ICJ Rep. 1971, p. 12; Advisory Opinion of 21 June 1971, ibid., p. 19, paras. 10–11. 94  Ibid., pp. 24–27, paras. 32–39. A powerful criticism to the refusal by the Court to allow South Africa to appoint a judge ad hoc, and particularly its failure to apply Article 68 of the Statute to that question can be found in the dissenting opinion of judge Fitzmaurice (ICJ Rep. 1971, pp. 308–317). 95  Western Sahara, Order of 22 May 1975, ICJ Rep. 1975, p. 6; Advisory Opinion of 16 Oct. 1975, ibid., pp. 15–16, paras. 8–9.

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to be able to furnish information on the question” and it invites them, by means of what the Statute calls a “special and direct communication,” to furnish observations in the form of written or oral statements (Statute, Article 66, para. 2). The nature of the participation of these States and organizations in advisory proceedings was debated by the PCIJ. The term informateur was used to describe the role of these “non-parties” in furnishing information to the Court.96 The expression “international organization” in Article 66, para. 2 of the Statute is generally interpreted as covering only inter-governmental organizations, i.e., what Article 69, para. 4 of the Rules calls—albeit in a different context—“an international organization of States.” However the question whether that expression may also refer to non-governmental organizations, taking into account in particular the contrast with Article 34, which makes reference to a “public international organization”, may be regarded as open.97 If the case refers to a question of general scope, all States entitled to appear before the Court are usually included in this list; if it refers to the interpretation or application of a special treaty, the States parties in it are included and if it refers to the activities of an international organization other than the UN, its member States are included. This includes regional organizations.98 The Construction of a Wall case marks the first occasion in which an entity other than a State or an international organization (Palestine) was admitted to participate in both the written and the oral proceedings in a case before the Court. The Court took this decision “[t]aking into account the fact that the General Assembly had granted Palestine a special status of observer and that the latter was co-sponsor of the draft resolution requesting the 96  PCIJ D 2, Add. 3, p. 792. See also De Visscher, “Les Avis . . .”, p. 56. 97   Bedjaoui “International Organizations . . .”, p. 222; D. Shelton, “The Participation of Nongovernmental Organizations in International Judicial Proceedings”, AJIL, vol. 88 (1994), pp. 619–628; A. Paulus, “Article 66”, in Oxford Commentary, MN 16–18, pp. 1648– 1650. See also E. Jiménez de Aréchaga, “The Participation of International Organizations in Advisory Proceedings before the International Court of Justice”, Comunicazioni et Studi, vol. 14 (1975), pp. 413–422. 98  In the Reservations case the Organization of American States was invited to furnish statements (Advisory Opinion of 28 May 1951, ICJ Rep. 1951, p. 17) and in the Namibia case the Organization of African Unity applied for participation and the Court authorized it to make an oral statement (Advisory Opinion of 21 June 1971, ICJ Rep. 1971, p. 19, para. 12). In the Construction of a Wall case the only organization that the Court initially invited to present a statement was the UN, but both the Arab League and the Islamic Conference requested to be invited and the Court obliged (Advisory Opinion of 9 July 2004, ICJ Rep. 2004, p. 142, para. 6).

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advisory opinion”99 A similar procedure was used in the subsequent KosovoUnilateral Declaration of Independence case.100 In any case, if a State fails to receive such an invitation, it may still express its desire to participate, subject to the decision by the Court (ibid., para. 3). It goes without saying that the requesting body also has the right to participate in the proceedings and it does so by submitting to the Court, along with the request, a dossier containing “all documents likely to throw light upon the question” (Article 65, para. 2 of the Statute) and by taking part in the oral proceedings. In addition, there is a well-established practice whereby the SecretaryGeneral of the UN is allowed to take part in advisory cases, regardless of who is the requesting body and to present arguments, both in writing and orally, on behalf of that organization. Despite the fact that there is no basis for this in the governing instruments of the Court, it is a practice that has never been challenged and has proven useful for the Court.101

Box # 20-5 Documentation submitted by non-governmental organizations In July 2004, apparently under the influence of the experience gathered in the Nuclear Weapons cases, the Court took an important step by adopting Practice Direction XII, containing rules for the handling of the (unsolicited and usually copious) documentation that

99  Advisory Opinion of 9 July 2004, ICJ Rep. 2004, p.141, para. 4. For a comment see R. Higgins, “Some Misconceptions about the Judicial Settlement of International Disputes”, in Hague YIL, vol. 20 (2007), pp. 14–15. The underlying problem in this case was the existence of a dispute between Israel and Palestine. The implications of this situation with regard to the entitlement to appoint a judge ad hoc are discussed in the separate opinion of judge Owada (ICJ Rep. 2004, pp. 266–267). 100  Kosovo-Unilateral Declaration of Independence, Order of 17 Oct. 2008, ICJ Rep. 2008, p. 410, para. 4; Advisory Opinion of 22 July 2010, ICJ Rep. 2010, p. 408, para. 3. 101  M.M. Aljaghoub, The Advisory Function of the International Court of Justice 1946–2005 (2006), pp. 137–138. See also R. Daillier, “L’Intervention du Secrétaire Général des Nations Unies dans la procédure consultative devant la Cour Internationale de Justice”, AFDI, vol. 19 (1973), pp. 376–419; S. Rosenne, “The Secretary-General of the United Nations and the Advisory Procedure of the International Court of Justice”, in K Wellens (Ed.), International Law: Theory and Practice, Essays in Honour of Eric Suy (1998), pp. 709–710; Paulus, “Article 66”, MN 19, pp. 1650–1651.

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non-governmental organizations submit to the Court in the course of advisory proceedings. The text is self-explanatory.102

Practice Direction XII 1. Where an international non-governmental organization submits a written statement and/or document in an advisory opinion case on its own initiative, such statement and/or document is not to be considered as part of the case file. 2. Such statements and/or documents shall be treated as publications readily available and may accordingly be referred to by States and intergovernmental organizations presenting written and oral statements in the case in the same manner as publications in the public domain. 3. Written statements and/or documents submitted by international nongovernmental organizations will be placed in a designated location in the Peace Palace. All States as well as intergovernmental organizations presenting written or oral statements under Article 66 of the Statute will be informed as to the location where statements and/or documents submitted by international non-governmental organizations may be consulted.

Written and Oral Proceedings Stages Article 66 of the Statute contains the rules governing the conduct of procedure in advisory cases. It has been remarked that since in advisory proceedings the Court cannot benefit from actual pleading, the main purpose of this provision is to assure an adequate collection of information concerning the question submitted to the Court.103 Article 66, para. 2 of the Statute anticipates that the procedure in advisory cases may have a written and an oral component, but Article 105, para. 2, (b) of the Rules states clearly that it is for the Court—or the President, by delegation of the former—to “decide whether oral proceedings shall take place at which statements and comments may be submitted to the Court under the 102  For a comment pre-dating the adoption of this measure see R. Higgins, “Remedies and the International Court of Justice: An Introduction”, in M.D. Evans (Ed.), Remedies in International Law: The Institutional Dilemma, 1998, pp. 1–2. See also Paulus, “Article 66”, MN 10, pp. 1644–1645, MN 25–27, pp. 1654–1656; Muller’s Procedural Developments, LPICT, vol. 3 (2004), p. 578. 103  A. Paulus, “Article 66”, MN 1, p. 1640.

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provisions of Article 66 of the Statute.” Similarly, as stated above, the formula introduced into Article 103 of the Rules in the 1972 revision strongly suggests that the Court is entitled to do away with the written proceedings stage.104 The only cases thus far in which the present Court has dispensed with the organization of an oral proceedings stage are the cases concerning appeals against decisions of administrative tribunals of international organizations.105 The reason is probably that it was perceived that the fact that the affected individual could not address the Court to counter allegations made on behalf of its counterpart—the concerned organization—created a certain lack of equality between the actual parties in the litigation.106 For the same reason, this is of little precedential value. During the written proceedings stage the Court receives both statements from the participating States and organizations and comments in writing on those statements, all of which are circulated among them (Statute, Article 66, paras. 2 and 4; Rules, Article 105, paras. 1 and 2 (a)). Notably, there are no formal requirements applicable to these statements, which are often transmitted to the Court through diplomatic channels.107 Usually a single round of written statements is considered enough. If oral proceedings are organized, the States and organizations having delivered written contributions are invited to participate in hearings that normally take place some months after the closure of the written proceedings. States are represented by counsel and advocates who will take the floor in an alphabetical order. As a general rule, the time-limits and the duration of the 104  The view has been expressed that this should be a last resort (Reisman, “Accelerating . . .”, p. 668). 105  The PCIJ did not hear oral argument in the Polish Postal Service case, in which, conversely, it authorized two rounds of written statements (PCIJ B 11, p. 10). 106  Judgments of ILOAT, Advisory Opinion of 23 Oct. 1956, ICJ Rep. 1956, p. 80; Review of UNAT Judgment No. 158, Advisory Opinion of 12 July 1973, ICJ Rep. 1973, p. 168, para. 6); Review of UNAT Judgment No. 273, Advisory Opinion of 20 July 1982, ICJ Rep. 1982, p. 327, para. 9); Review of UNAT Judgment No. 333, Advisory Opinion of 27 May 1987, ICJ Rep. 1987, p. 20, para. 9). In the first of these opinions the Court made interesting pronouncements on the alleged lack of equality between the organization concerned and the complaining individuals and the method employed to neutralize it (ICJ Rep. 1956, p. 86). The Court returned to these questions in the Judgment 2867 of ILOAT, Advisory Opinion of 1 Feb. 2012, paras. 35–47; see also the separate opinion of judge Cançado Trindade in this case. For doctrinal approaches see L. Gross, “Participation of Individuals in Advisory Proceedings before the International Court of Justice: Question of Equality of Parties”, AJIL, vol. 52 (1958), pp. 16–40; E. De Brabandere, “Individuals in Advisory Proceedings Before the International Court of Justice: Equality of the Parties and the Court’s Discretionary Authority”, LPICT, vol. 11 (2012), pp. 253–279”. 107  Rossene’s Procedure, p. 220, note 1.

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figure 9

hearings are markedly shorter than in contentious cases and there is a single round of hearings.108 Challenges to Jurisdiction109 In general, questions of jurisdiction do not have the same importance in advisory proceedings as in contentious proceedings. However, it often happens that, once a request for an advisory opinion has been regularly made by the organ or agency concerned, a State with direct interests in the legal question to which the request refers takes part in the proceedings in order to persuade the Court that it should decline to issue the opinion, invoking a variety of reasons for that purpose. That State may direct its challenge either to the jurisdiction of the Court to render the opinion or to the judicial propriety of exercising that jurisdiction, or to both.

108  The only advisory case in which there have been two phases is the Peace Treaties case. In it, the request itself, by the UN General Assembly, contemplated a two-stage procedure (See Advisory Opinion of 30 March 1950 ( first phase), ICJ Rep. 1950, p. 65; and Advisory Opinion of 18 July 1950 (second phase), ICJ Rep. 1950, p. 221). For a case in which certain States were allowed to make not one but two oral statements see Lauterpacht, “Principles . . .”, p. 428. 109  For general appraisals see Goodrich et al., “Charter . . .”, pp. 567–569; H. Mosler, “Article 96”, pp. 1008–1017. See also Guyomar’s Commentaire, pp. 663–666.

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Methodologically, this has the effect that, when seised of a request for an advisory opinion, the Court first considers whether it has jurisdiction to give the opinion requested and, should the answer be in the affirmative, it then moves on to consider whether there is any reason that would advise it to decline exercising that jurisdiction.110 The situation is therefore parallel to that occurring in contentious cases, in which the Court normally deals with the question of jurisdiction first and moves onto questions of admissibility only once it has found that it effectively possesses jurisdiction. To a limited extent, thus, it can be said that the concept of propriety plays in advisory cases a role analogous to that which the concept of admissibility plays in contentious cases.111 In fact, in every advisory case that has been submitted to it to date, the Court has begun by ascertaining whether it has jurisdiction to give the opinion requested and in the only instance in which it has refused to give an opinion— the Nuclear Weapons (WHO) case—the reason adduced was precisely lack of jurisdiction.112 However, the view has been expressed that this was not actually a case of lack of jurisdiction by the Court but rather of “want of capacity” of the requesting organ.113 Once the subject of jurisdiction is exhausted, the Court goes on to examine whether it is proper for it to give the opinion, i.e. whether it should exercise the discretion that it undoubtedly possesses in the matter. In the Construction of a Wall case, the Court recalled in this regard that “The present Court has never, in the exercise of this discretionary power, declined to respond to a request for an advisory opinion.”114

110  Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, p. 144, para. 13. 111  This point was made by judge Petren in his separate opinion in the Western Sahara case (ICJ Rep. 1975, p. 104). In the same direction, an author postulated some time ago that the concept of “propriety” should be equated with that of “recevabilité générale,” an aspect of the more general question of admissibility (G. Abi-Saab, “Les Exceptions Préliminaires dans la Procédure de la Cour Internationale (1967), p. 147, note 220). 112  Nuclear Weapons (WHO), Advisory Opinion of 8 July 1996, ICJ Rep. 1996, p. 66, especially at p. 84, para. 31. For an analysis see M. Bothe, “The WHO request”, in L. Boisson de Chazournes & P. Sands (Eds.), International Law, the International Court of Justice and Nuclear Weapons (1999), pp. 103–111. 113  Nuclear Weapons (WHO), Dissenting Opinion of Judge Weeramantry, ICJ Rep. 1996, p. 168. 114  Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, p. 156, para. 44.

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Box # 20-6 Preliminary objections in advisory proceedings? In all advisory cases with which the Court has dealt thus far, all the matters raised—jurisdiction, propriety and merits—have been handled simultaneously and its findings on them have been incorporated in one and the same opinion. The question can be asked whether in order to deal with preliminary questions of jurisdiction and propriety that may arise within the framework of advisory proceedings, it is possible or even advisable for the Court to suspend the proceedings on the merits and to organize preliminary and separate proceedings under the provisions of Article 79 of the Rules of Court. There are not many indications as to the legal situation obtaining in this regard. In the Namibia case, for instance, the Court acknowledged that “[i]n no previous advisory proceedings [the Court] has found it necessary to make an independent preliminary determination of (. . .) its own competence, even when specifically requested to do so.” (Advisory Opinion of 21 June 1971, ICJ Rep. 1971, p. 26, para. 38). This opinion has been interpreted as the Court having found that while the Rules do not require it to conduct separate proceedings on preliminary objections, they tacitly admit the possibility of doing so.115 In the Western Sahara case the Court rejected a suggestion to organize separate proceedings in order to deal with certain aspects that one State considered to be purely preliminary (Advisory Opinion of 16 Oct. 1975, ICJ Rep. 1975, p. 17, para. 12). At first glance, this would be precluded by the fact that Article 79, located as it is in Part III of the Rules, appears to be applicable only in contentious proceedings. However, it was already mentioned that the Statute and the Rules have always been endorsed the application by analogy of the provisions of Part III (as well as the corresponding provisions in the Statute) in advisory proceedings “to the extent to which [the Court] recognizes them to be applicable.” What is more, paragraph 2 of Article 102 of the Rules appears to refer to situations in which one or more States might be particularly inclined to mount a challenge to the Court’s jurisdiction or the propriety of giving an opinion, on the basis that “the request for the advisory opinion relates to a legal question actually pending between two or more States.” The said provision is very clear in directing that in such cases, not only shall the Court “also be guided” by the provisions of Part III of the Rules “in the exercise of its advisory functions under

115  G. Griffith & Ch. Staker, “The Jurisdiction and Merits Phases Distinguished,” in L. Boisson de Chazournes & P. Sands (Eds.), International Law, the International Court of Justice and Nuclear Weapons (1999), pp. 60–61, note 12.

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Article 65 of the Statute,” but it is called to “above all consider” whether the request for the opinion does actually relate to a legal dispute between States. A powerful defense of the need for conducting separate proceedings on preliminary questions of jurisdiction and propriety was made by judge Petren in the Western Sahara case, in the following terms: Like contentious proceedings, advisory proceedings may raise preliminary questions which it is the duty of the Court to settle before giving its decision on matters of substance. (. . .) The preliminary questions which may arise in advisory proceedings are not entirely of the same nature as those in contentious proceedings. Of course, questions concerning the competence of the Court may also arise, since Article 65, paragraph 1, of the Statute permits the Court to give an advisory opinion only if the request emanates from a body authorized to make such a request and relates to a legal question. The Statute does not however impose on the Court an absolute obligation to give an opinion in all cases in which it is competent to do so. Article 65, paragraph 1, leaves it free to refuse if it considers that it is not proper to proceed. The question of the propriety of giving an advisory opinion may thus play a part analogous to that of admissibility in contentious proceedings. Finally, in advisory proceedings the practice of the Court recognizes a third category of preliminary questions: if it considers that the question on which its opinion is asked does not, as formulated, lend itself to being answered by the Court, the Court regards itself as free to reformulate the question. The provisions of the Rules of Court concerning advisory proceedings are very summary; the preliminary questions just referred to are not mentioned. (. . .) In proceedings in regard to advisory opinions, it appears no less desirable than in contentious proceedings that preliminary questions should be settled before any proceedings on the substantive issues. There would otherwise be a risk that a reply to a preliminary question would cause the time and money devoted to the proceedings on the substance to be wasted. That is why the spirit and the letter of Article 87, paragraph 1, in my view require that the provisions of the Rules concerning preliminary objections in contentious cases should also be applied so far as possible in advisory proceedings. (Western Sahara, Separate Opinion of Judge Petren, ICJ Rep. 1975, pp. 104–105)

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Therefore, when the situation foreseen in Article 102, para. 2 of the Rules obtains and a request for an advisory opinion relates to a “legal question actually pending between two or more States” it is possible that one of the States involved takes the position that the Court lacks jurisdiction or that, if it has that jurisdiction, it should decline to give the opinion for reasons of propriety.116 In the event that the arguments put forward to support these contentions reach a certain level of complexity, it cannot be ruled out that the Court might find it necessary or convenient to organize full incidental proceedings dealing exclusively with the questions of jurisdiction and propriety, deferring the consideration of the merits of the request for a later stage. This has not been done yet, but there appears to be nothing in the Statute or the Rules precluding it from happening.117

In its 65 years of existence, the Court has rendered 24 Advisory Opinions, to which the 27 opinions given by the PCIJ should be added. In the only occasion when it declined to give an opinion (Eastern Carelia, 1923)118 the PCIJ did so on the basis of propriety. As for the current court, as stated, in the only occasion when it has refused to give an opinion it did so because of lack of jurisdiction.119 Questions of Evidence120 Although in advisory proceedings the questions of evidence do not have the same importance as in contentious proceedings, they may still play a role,

116  For examples taken from the practice of the Court see the dissenting opinion of judge Gros in the Namibia case (ICJ Rep. 1971, pp. 325–326). 117  In the Nuclear Weapons (WHO) case, the Government of Australia attempted—and failed—to convince the Court to follow this procedure. See Written Statement of Australia, 20 September 1994, paras. 22–32. 118  Advisory Opinion No. 5, 23 July 1923, PCIJ B 5. For a narrative of the exercise of the advisory jurisdiction of the PCIJ see S. Schwebel, “Was the Capacity . . .”, pp. 27–71. 119  Nuclear Weapons (WHO), Advisory Opinion of 8 July 1996, ICJ Rep. 1996, p. 66. 120  On this see, generally, the separate opinion of judge de Castro in the Western Sahara case, ICJ Rep. 1975, pp. 138–139. See also Foster, “Fact Finding . . .”, pp. 185–188; A.Ridell & B. Plant, Evidence before the International Court of Justice (2009), pp. 359–407; Benzing, “Evidentiary Issues”, in Oxford Commentary, MN 131–136, pp. 1272–1274; Frowein/OellersFrahm, “Article 65”, MN 41–42, pp. 1620–1621. For an analysis on the application of

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according to the circumstances of each case. The practice of the Court contains several lessons in this regard. In the first place, in a case in which there was a request that an individual be called as a first-hand witness, the Registrar informed the petitioner that the request for an advisory opinion involved only legal questions and that it was “[t]herefore believed that it will not be necessary to call witnesses during the hearings.”121 This may be construed as meaning that, depending on the nature of the request for advisory opinion it is possible that, in the view of the Court, no question of evidence arises at all. When it does arise, however, the Court is entitled to make use of all the tools that are available to it with regard to the procurement of evidence in contentious proceedings.122 Along the same lines, in the Eastern Carelia case the Permanent Court underlined that a request for an advisory opinion may well involve “some enquiry as to the facts” and that it should not be for the Court itself to ascertain what those facts are, as noted below: The Court does not say that there is an absolute rule that the request for an advisory opinion may not involve some enquiry as to the facts, but, under ordinary circumstances, it is certainly expedient that the facts upon which the opinion of the Court is desired should not be in controversy, and it should not be left to the Court itself to ascertain what they are. The Court is aware of the fact that it is not required to decide a dispute, but to give an advisory opinion. This circumstance, however, does not essentially modify the above considerations. The question put to the Court is not one of abstract law, but concerns directly the main point of the controversy between Finland and Russia, and can only be decided by an investigation into the facts underlying the case. (Eastern Carelia, Advisory Opinion No. 5, 23 July 1923, PCIJ B 5, pp. 28–29)

Interestingly, the Informal Inter-Allied Committee was very insistent in that the maintenance of the advisory jurisdiction of the PCIJ should be subject to the adoption of some “safeguards [that] should be instituted to control it and to prevent its misuse.”123 One of these safeguards concerned the question Article 68 of the Statute in relation to evidentiary issues see J.-P. Cot, “Article 68”, MN 31–34, pp. 1680–1682. 121  ICJ Pleadings, South West Africa-International Status, pp. 340, 342. 122  In the Judgment 2867 of ILOAT case, for instance, the Court resorted to Article 49 of the Statute and called upon one of the organizations involved to produce certain documents (Advisory Opinion of 1 Feb. 2012, para. 15). 123  Inter-Allied Committee Report, p. 22.

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of the determination of facts, because the Committee was of the opinion that the questions of law to be referred for an advisory opinion had to be “[b]ased on an agreed and stated set of facts,” or, in other words, that “[t]he Court must have an agreed basis of fact on which to give its opinion.”124 The San Francisco Conference ignored the point and took no decision concerning this question. On the other hand, the Namibia case might also be relevant, inasmuch as in it the Court needed to dispose of an argument directed against the jurisdiction of the Court to give the opinion, based on the idea that the request involved the determination of questions of fact. The Court rejected this line of argument and stated that, from a jurisdictional point of view, a mixed question of law and fact is nevertheless a legal question within the meaning of Article 96 of the Charter: The Government of South Africa has . . . expressed doubts as to whether the Court is competent to, or should, give an opinion, if, in order to do so, it should have to make findings as to extensive factual issues. In the view of the Court, the contingency that there may be factual issues underlying the question posed does not alter its character as a “legal question” as envisaged in Article 96 of the Charter. The reference in this provision to legal questions cannot be interpreted as opposing legal to factual issues. Normally, to enable a court to pronounce on legal questions, it must also be acquainted with, take into account and, if necessary, make findings as to the relevant factual issues. The limitation of the powers of the Court contended for by the Government of South Africa has no basis in the Charter or the Statute. (Namibia, Advisory Opinion of 21 June 1971, ICJ Rep. 1971, p. 27, para. 40)125

With regard to the question of propriety, it is well known that in the Eastern Carelia case the Court found that the real question behind the requested opinion concerned a dispute between Finland and Russia and that the absence of the latter from the proceedings was a circumstance warranting the Court’s exercise of its discretion to refuse the request. However, the crucial question and the real reason for denying the request might have been one related to evidence, as it appears from the manner in which the present Court referred to that case several years later, in the Western Sahara opinion:

124  Ibid. Emphasis in the original. 125  This was confirmed in explicit terms in the subsequent opinion in the Western Sahara case (Advisory Opinion of 16 Oct. 1975, ICJ Rep. 1975, p. 19, para. 17).

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(. . .) In that instance, the non-participation of a State concerned in the case was a secondary reason for the refusal to answer. The Permanent Court of International Justice noted the difficulty of making an enquiry into facts concerning the main point of a controversy when one of the parties thereto refused to take part in the proceedings. Although in that case the refusal of one State to take part in the proceedings was the cause of the inadequacy of the evidence, it was the actual lack of “materials sufficient to enable it to arrive at any judicial conclusion upon the question of fact” (PCIJ, Series B, No, 5, p. 28) which was considered by the Permanent Court, for reasons of judicial propriety, to prevent it from giving an opinion. (Western Sahara, Advisory Opinion of 16 Oct. 1975, ICJ Rep. 1975, p. 28, paras. 45–46)

Other aspect mentioned by the Court in passim was that of the conditions in which the principle iura novit curia is applicable in the context of advisory proceedings. The Court remarked: Extensive argument and divergent views have been presented to the Court as to how, and in what form, the principles of decolonization apply in this instance, in the light of the various General Assembly resolutions on decolonization in general and on decolonization of the territory of Western Sahara in particular. This matter is not directly the subject of the questions put to the Court, but it is raised as a basis for an objection to the Court’s replying to the request. In any event, the applicable principles of decolonization call for examination by the Court, in that they are an essential part of the framework of the questions contained in the request. The reference in those questions to a historical period cannot be understood to fetter or hamper the Court in the discharge of its judicial functions. That would not be consistent with the Court’s judicial character; for in the exercise of its functions it is necessarily called upon to take into account existing rules of international law which are directly connected with the terms of the request and indispensable for the proper interpretation and understanding of its Opinion (. . .) (Western Sahara, Advisory Opinion, 16 Oct. 1975, ICJ Rep. 1975, p. 30, para. 52)

Finally, in the Construction of a Wall opinion the Court reviewed its previous case law on the subject and concluded that the crux of the matter is that in every case in which an advisory opinion is requested the Court should be in possession of “[s]ufficient information and evidence to enable it to give the

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advisory opinion requested.” Therefore, lack of sufficient information may, in certain circumstances, constitute “[a] compelling reason for the Court to decline to give the requested opinion:” The Court observes that the question whether the evidence available to it is sufficient to give an advisory opinion must be decided in each particular instance. In its Opinion concerning the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (ICJ Rep. 1950, p. 72) and again in its Opinion on the Western Sahara, the Court made it clear that what is decisive in these circumstances is “whether the Court has before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed questions of fact the determination of which is necessary for it to give an opinion in conditions compatible with its judicial character” (Western Sahara, ICJ Rep. 1975, pp. 28–29, para. 46). (. . .) In the present instance, the Court has at its disposal the report of the Secretary-General, as well as a voluminous dossier submitted by him to the Court, comprising not only detailed information on the route of the wall but also on its humanitarian and socio-economic impact on the  Palestinian population. The dossier includes several reports based on  onsite visits by special rapporteurs and competent organs of the United Nations. The Secretary-General has further submitted to the Court a written statement updating his report, which supplemented the information contained therein. Moreover, numerous other participants have submitted to the Court written statements which contain information relevant to a response to the question put by the General Assembly. The Court notes in particular that Israel’s Written Statement, although limited to issues of jurisdiction and judicial propriety, contained observations on other matters, including Israel’s concerns in terms of security, and was accompanied by corresponding annexes; many other documents issued by the Israeli Government on those matters are in the public domain. The Court finds that it has before it sufficient information and evidence to enable it to give the advisory opinion requested by the General Assembly. Moreover, the circumstance that others may evaluate and interpret these facts in a subjective or political manner can be no argument for a court of law to abdicate its judicial task. There is therefore in

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the present case no lack of information such as to constitute a compelling reason for the Court to decline to give the requested opinion. (Construction of a Wall, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, pp. 160–162, paras. 56–58)126

It may also be noted that under Article 9, para. 1 of the Rules, the untried device of assessors is applicable “for the purpose of a (. . .) request for advisory opinion.”127 Reading of the Opinion The process of internal deliberations leading to the adoption of an advisory opinion is the same that is followed for the adoption of judgments in contentious cases.128 Also, following Article 94 of the Rules, Article 107 directs that, after the Court has deliberated and adopted an advisory opinion, this “shall be read at a public sitting of the Court.” Significantly, Article 107 is silent as to the date on which it is to take effect. Article 108 adds that the Registrar shall notify all those involved of the date and the hour fixed for the reading of the opinion. This includes the Secretary-General of the United Nations; the chief administrative officer of the requesting body (where appropriate); the representatives of the Members of the United Nations and other States and “specialized agencies and public international organizations immediately concerned.”

Box # 20-7 Format of Advisory Opinions The Statute is silent as to the contents of advisory opinions but Article 107, para. 2 of the Rules (of which there was no equivalent provision in the pre-1978 versions of the Rules) fills this gap and does so by mirroring the provisions of Article 95, para. 2, concerning the contents of judgments of the Court. Accordingly, advisory opinions are also structured in four sections, as follows:

126  But see the contrary view of judge Buergenthal, for whom lack of adequate evidence should have prompted the Court to decline giving the opinion in this case (Construction of a Wall, Declaration of Judge Buergenthal, ICJ Rep. 2004, pp. 240–242, paras. 1–5). 127  For an interesting episode concerning the theoretical possibility of using witnesses in advisory proceedings see R. Higgins, “The Judicial determination of Relevant Facts”, in R. Higgins, Themes and Theories—Selected Essays, Speeches, and Writings in International Law (2009), p. 1372. 128  See Article 10 of the 1976 Resolution Concerning the Internal Judicial Practice of the Court. See also Box # 10-2.

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Section I: Introduction This section contains the following: The date on which the opinion is delivered; The names of the judges participating; and A summary of the proceedings.

• • •

Section II: Reasoning Part or “Grounds” This section contains the following: A statement of the facts; and The reasons on point of law (“les motifs de droit”).

• •

Section III: Operative part or “dispositif” This section contains the reply to the question put to the Court. Section IV: Closing Part In the last segment of the decision two important elements are included: The number and names of the judges constituting the majority; and A statement as to the text of the opinion which is authoritative.

• •

As in the case of the judgments, there are certain portions of information contained in the text of each advisory opinion that are not mentioned in Article 107, para. 2. They include the following: – The name of the case; – The folio number; – The “official citation” for the opinion and the data pertaining to the publication of each volume, such as the ISSN and ISBN numbers and the UN sales number; – A table of contents;129

129  This is according to a fairly recent practice. The first advisory opinion featuring a table of contents was that of Kosovo-Declaration of Independence (Advisory Opinion of 22 July 2010, ICJ Rep. 2010, p. 403). On occasion, a “List of acronyms and abbreviations” is also included in this section of the opinion, like in the Judgment 2867 of ILOAT, Advisory Opinion of 1 Feb. 2012.

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– A headnote, containing a summary or “precis” of the contents of the opinion; and – On the last page of the opinion, the names of those signing it—the President of the Court and the Registrar—immediately followed by a list of the judges appending individual opinions or declarations, followed by the initials of the President and the Registrar. The text of these statements follows that of the opinion.

Legal Effects of Advisory Opinions130 There is no doubt that the advisory opinions of the Court are not directly binding upon States, for, as the Court has stated, its reply to a request for an opinion “[i]s only of an advisory character: as such, it has no binding force”.131 This, however, requires some important qualifications. In the first place, a practice has developed to include in certain multilateral treaties a clause according to which, in the event of a dispute between a State and the organization, a request for an advisory opinion will be made and the parties to the dispute agree in advance to consider themselves bound by the opinion given by the Court. These collateral arrangements have given rise to the phenomenon known as “Binding Advisory Opinions”, which has been the subject of some interest in scholarly circles.132 130  M.O. Hudson, “The Effects of Advisory Opinions of the World Court”, AJIL, vol. 42 (1948); J. Puente Egido, “Consideraciones sobre la Naturaleza y efectos de las opiniones consultivas”, ZaöRV, vol. 31 (1971), pp. 730–809; Mosler, “Article 96”, MN 32–37, pp. 1015–1016; Frowein/Oellers-Frahm, “Article 65”, MN 44–49, pp. 1621–1623. 131  Peace Treaties, Advisory Opinion of 30 March 1950, ICJ Rep. 1950, p. 71. Reaffirmed in Convention on Privileges and Immunities of the UN, Advisory Opinion of 15 Dec. 1989, ICJ Rep. 1989, p. 189, para. 31. See also ILO Administrative Tribunal, Advisory Opinion of 23 Oct. 1956, ICJ Rep. 1956, p. 84; and South-West Africa, Preliminary Objections, Judgment of 21 Dec. 1962, ICJ Rep. 1962, p. 337. 132  G. Bacot, “Réflexions sur les clauses qui rendent obligatoires les avis consultatifs de la CPJI et de la CIJ”, RGDIP, vol. 84 (1980), pp. 1027–1067; R. Ago, “’Binding’ Advisory Opinions of the International Court of Justice”, AJIL, vol. 85 (1991), pp. 439–451; S. Benadava, “Las Opiniones Consultivas ‘Obligatorias’ de la Corte Internacional de Justicia”, in M.T. Infante Caffi & R. Cave Schnohr (Comp.), Solución Judicial de Controversias, El Derecho Internacional ante los tribunales internacionales e internos (1995), pp. 85–94; Ch. Brower & P.H.F. Bekker, “Understanding ‘Binding’ Advisory Opinions of the International Court of Justice”, in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge

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The Court had occasion to refer to one of those clauses when dealing with a request for an advisory opinion made under the General Convention on the Privileges and Immunities of the United Nations: [Article VIII, Section 30, of the General Convention on the Privileges and Immunities of the United Nations] provides for the exercise of the Court’s advisory function in the event of a difference between the United Nations and one of its Members. In this case, such a difference exists, but that fact does not change the advisory nature of the Court’s function, which is governed by the terms of the Charter and of the Statute. As the Court stated in its Advisory Opinion of 12 July 1973, “the existence, in the background, of a dispute the parties to which may be affected as a consequence of the Court’s opinion, does not change the advisory nature of the Court’s task, which is to answer the questions put to it . . .” (. . .). Paragraph 2 of the Council’s decision requesting the advisory opinion repeats expressis verbis the provision in Article VIII, Section 30, of the General Convention that the Court’s opinion “shall be accepted as decisive by the parties”. However, this equally cannot affect the nature of the function carried out by the Court when giving its advisory opinion. As the Court said in its Advisory Opinion of 23 October 1956, in a case involving similar language in Article XII of the Statute of the Administrative Tribunal of the International Labour Organization, such “decisive” or “binding” effect “goes beyond the scope attributed by the Charter and by the Statute of the Court to an Advisory Opinion . . . It in no wise affects the way in which the Court functions; that continues to be determined by its Statute and its Rules. Nor does it affect the reasoning by which the Court forms its Opinion or the content of the Opinion itself.” ( Judgments of the Administrative Tribunal of the ILO upon Complaints made against UNESCCO, Advisory Opinion, ICJ Rep. 1956, p. 84)

A distinction should thus be drawn between the advisory nature of the Court’s task and the particular effects that parties to an existing dispute may wish to attribute, in their mutual relations, to an advisory opinion of the Court, which, “as such, . . . has no binding force” (. . .). These Shigeru Oda (2002), vol. 1, pp. 351–368; Ch. Dominice, “Request of Advisory Opinions in Contentious Cases?”, in L. Boisson de Chazournes et al (Eds.), International Organizations and International Dispute Settlement: Trends and Prospects (2002), pp. 91–103.

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particular effects, extraneous to the Charter and the Statute which regulate the functioning of the Court, are derived from separate agreements; in the present case Article VIII, Section 30, of the General Convention provides that “[tlhe opinion given by the Court shall be accepted as decisive by the parties”. That consequence has been expressly acknowledged by the United Nations and by Malaysia. (Immunity from Legal Process, Advisory Opinion of 29 April 1999, ICJ Rep. 1999, pp. 76–77, para. 25)133

It must be stressed that for an advisory opinion to possess binding force in this context the request must be submitted under a clause similar to Article 30 of the General Convention. In the Convention on Privileges and Immunities of the UN case, Romania had entered a reservation to this provision and on that basis objected to the Court’s jurisdiction to entertain a request for an advisory opinion made by ECOSOC that referred ostensibly to a dispute between itself and the United Nations. The Court found that the reservation was ineffective, largely because the request had not been made under Article 30 of the General Convention but under Article 96 of the Charter.134 Secondly, it is unavoidable that after an opinion is given the requesting organ feels bound to take some action pursuant to it and this may have some effects on the conduct of States members. This may vary from case to case but in general it is customary to adopt a decision either “taking note,” “accepting” or “endorsing” the opinion and in some cases a direct appeal is made to States in order that they adjust their conduct to the findings embodied in the opinion.135 In several cases the requesting organ uses the opinion as a basis for further action.136 These developments are regularly reported in the Court’s Yearbook, under the heading “Action pursuant to Advisory Opinions of the Court.”137 133  Reaffirmed in Judgment 2867 of ILOAT, Advisory Opinion of 1 Feb. 2012, para. 28. 134  Convention on Privileges and Immunities of the UN, Advisory Opinion of 15 Dec. 1989, ICJ Rep. 1989, pp. 188–190, 29–36. 135  G. Guillaume, “Enforcement of Decisions of the International Court of Justice”, in N. Jasentuliyana (Ed.), Perspectives on International Law (1996), pp. 275–276. 136  See examples in Goodrich et al., “Charter . . .”, pp. 570–571. 137  On the often neglected topic of the implementation of ICJ advisory opinions see L. Boisson de Chazournes & A. Angelini, “After ‘The Court Rises’: The Rise of Diplomatic Means to Implement the Pronouncements of the International Court of Justice”, LPICT, vol. 11 (2012), pp. 31–44.

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Thirdly, every seasoned international lawyer knows that the influence that advisory opinions have for the development of international law is incommensurable, as they constitute a particularly suitable vehicle for the Court to pronounce on the most diverse aspects of that law, including both substantive and procedural questions. The Court’s authority as the principal judicial organ of the UN is so undisputed that the reasoning supporting its advisory opinions is as persuasive as that supporting its judgments and they may be said to have the same precedential value, inasmuch as both constitute powerful tools for the shaping of international rules and the progressive development of the law.138 As judge De Castro put it in the Namibia case: [The Court’s] advisory opinions do not carry less authority than its judgments. There is, to be sure, a difference, stemming from the vis re judicata of the judgments, but this is limited to the parties to the dispute (vis relativa: Statute, Art. 59). On the other hand, the reasons on which judgments are based (Statute, Art. 56) are considered to constitute dicta prudentium, and their force as a source of law (Statute, Art. 38) derives not from any hierarchic power (tantum valet auctoritas quantum valet ratio) but from the validity of the reasoning (non ratione imperio, sed rationis imperio). The essential differences between judgments and advisory opinions lies in the binding force of the former (Charter, Art. 94) and it is on that account that the Court’s jurisdiction was established on a voluntary basis (Statute, Art. 36) and the effects of judgments limited to the parties and the particular case (Statute, Art. 59). However, like the reasons on which a judgment is based, the reasoning and operative part of an advisory opinion are, at least potentially, clothed with a general authority, even vis-à-vis States which have not participated in the proceedings, and may

138  See E. Hambro, “The Authority of the Advisory Opinions of the International Court of Justice”, ICLQ, vol. 3 (1954), pp. 2–22; E. Jiménez de Aréchaga, “Jurisdicción de la Corte Internacional de Justicia”, Inter-American Juridical Yearbook (1955–1957), pp. 42–43; J.J. Quintana, “The International Court of Justice and the Formulation of General International Law; The Law of Maritime Delimitation as an Example”, in A.S. Muller, D. Raic & J.M. Thuránsky (Eds.), The International Court of Justice, Its Future Role after Fifty Years (1997), pp. 367–373; M. Shahabuddeen, Precedent in the World Court (1996), pp. 165–171; D. Terris, C.P.R. Romano & L. Swigart, The International Judge, An Introduction to the Men and Women Who Decide the World’s Cases (2007), pp. 115–119.

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therefore contribute to the formation of new rules of international law (Statute, Art. 38, para. 1 (d).

(Namibia, Advisory Opinion, Separate Opinion of Judge De Castro, ICJ Rep 1971, pp. 173–174)139



Further Reading



Leading Works



General Works and Treatises on the Court

C. Espósito, La Jurisdicción Consultiva de la Corte Internacional de Justicia (1996)

J.P. Cot, “Article 68”, in Oxford Commentary, pp. 1669–1684 J.A. Frowein & K. Oellers-Frahm, “Article 65”, in Oxford Commentary, pp. 1605–1637 Guyomar’s Commentaire, pp. 643–692 Hudson’s PCIJ, pp. 483–523 K. Oellers-Frahm, “Article 96 UN Charter”, in Oxford Commentary, pp. 207–220 Paulus, “Article 66”, in Oxford Commentary, pp. 1638–1660 Paulus, “Article 67”, in Oxford Commentary, pp. 1661–168 Rosenne’s Law and Practice, vol. 3, pp. 1711–1759 Rosenne’s Procedure, pp. 211–224 Articles and Monographs Address by the President of the Court, Shi Jiuyong, to the Sixth Committee of the General Assembly, 5 Nov. 2004, ICJ Yearbook (2004–2005), pp. 289–298 D. Akande, “The Competence of International Organizations and the Advisory Jurisdiction of the International Court of Justice”, EJIL, vol. 9 (1998), pp. 437–467 J.R. Alcázar, Advisory Opinions of the International Court of Justice (1991) Sir F. Berman, “The Uses and Abuses of Advisory Opinions”, in N. Ando, E. McWhinney & R. Wolfrum (Eds.), Liber Amicorum Judge Shigeru Oda (2002), vol. 2, pp. 809–828 L. Boisson de Chazournes, “Advisory Opinions and the furtherance of the Common Interest of Mankind”, in L. Boisson de Chazournes, C.P.R. Romano & R. Mackensie (Eds.), International Organizations and International Dispute Settlement: Trends and Prospects (2002), pp. 105–118 139  For similar views by individual judges see Rosenne’s Law and Practice, vol. 3, pp. 1756–1757 and, by the same author, “Article 59 of the International Court of Justice Revisited”, in S. Rosenne, Essays on International Law and Practice (2007), pp. 155–157.

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C. Chinkin & R. Mckenzie, “Intergovernmental Organizations as ‘Friends of Court’ ”, in L. Boisson de Chazournes et al (Ed.s), International Organizations and International Dispute Settlement: Trends and Prospects (2002), pp. 135–162 T.O. Elias, “How the International Court deals with Requests for Advisory Opinions”, in J. Makarczyk (Ed.), Essays in International Law in Honour of Judge Manfred Lachs (1984), pp. 355–374 D.W. Greig, “The Advisory Jurisdiction of the International Court and the Settlement of Disputes between States”, ICLQ, vol. 15 (1966), pp. 325–368 A. Gros, “Concerning the Advisory Role of the International Court of Justice”, in Transnational Law in a Changing Society, Essays in Honor of Philip C. Jessup (1972), pp. 313–324 R. Higgins, “A Comment on the Current Health of Advisory Opinions”, in V. Lowe & M. Fitzmaurice (Eds.), Fifty Years of the International Court of Justice, Essays in honour of Sir Robert Jennings (1996), pp. 567–581 Sir. R.Y. Jennings, “Advisory Opinions of the International Court of Justice”, in Boutros Boutros-Ghali: Amicorum Discipulorumque Liber (1988), pp. 531–537 E. Jiménez de Aréchaga, “The Participation of International Organizations in Advisory Proceedings before the International Court of Justice”, Comunicazioni e Studi, vol. 14 (1975), pp. 413–422 I. Negulesco, “L’Évolution de la procédure des avis consultatifs de la Cour permanente de Justice Internationale”, RC, vol. 57 (1936-III), pp. 5–96 M. Pomerance, The Advisory function of the International Court in the League and U.N. Eras (1973) M. Pomerance, “The Advisory Role of the International Court of Justice and Its ‘Judicial’ Character: Past and Future Prisms”, in A.S. Muller, D. Raic & J. Thuránsky (Eds.), The International Court of Justice, Its Future Role after Fifty Years (1997), pp. 271–323 C. Romano, “International Organizations and the International Judicial Process: An Overview”, in L. Boisson de Chazournes et al. (Eds.), International Organizations and International Dispute Settlement: Trends and Prospects (2002), pp. 3–36 Y. Ronen, “Participation of Non-State Actors in ICJ Proceedings”, LPICT, vol. 11 (2012), pp. 77–110 J. Salmon, “Quels sont les destinataires des avis?”, in L. Boisson de Chazournes & P.  Sands (Eds.), International Law, the International Court of Justice and Nuclear Weapons (1999), pp. 28–35 P.O. Savoie, “La CIJ, l’avis consultative et la function judiciaire: entre décision et consultation”, in Canadian YIL (2004) B. Sloan, “Advisory Jurisdiction of the International Court of Justice”, California LR, vol. 38 (1950), pp. 830–859

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P.C. Szasz, “Enhancing the Advisory Competence of the World Court”, in L. Gross (Ed.), The Future of the International Court of Justice, vol. 2 (1976), pp. 499–549 R. Tamayo Franco, “El Desarrollo del Derecho Internacional a través de la función consultiva de la Corte Internacional de Justicia”, Anuario Colombiano de Derecho Internacional, vol. 3 (2010), pp. 71–87 H. Thirlway, “The Nuclear Weapons Advisory Opinions: the Declarations and Separate and Dissenting Opinions”, in L. Boisson de Chazournes & P. Sands (Eds.), International Law, the International Court of Justice and Nuclear Weapons (1999), pp. 390–434 Sir H. Waldock, “Aspects of the Advisory Jurisdiction of the International Court of Justice”, in Alexandre de Gusmao Foundation-Ministry of External Relations of Brazil, Gilberto Amado Memorial Lectures, pp. 107–122 G. Ziccardi Capaldo, “International Court of Justice, Advisory Opinions: Advisory Proceedings of Decisive Character,” in The Global Community: Yearbook of International Law and Justice (2001), pp. 249–266

List of Boxes Part 1 Foundations of the Litigation 1 Access Box # 1-1 Granting the individual access to the ICJ? 8 Box # 1-2 Yugoslavia and the question of access in the Genocide Convention and Kosovo cases 29 Box # 1-3 Effects of Article 59 on States parties to a case 36 2 Jurisdiction Box # 2-1 State consent to jurisdiction 41 Box # 2-2 Consent and jus cogens 45 Box # 2-3 “matters specially provided for in the Charter of the United Nations” 48 Box # 2-4 Doubts as to the existence of jurisdiction and the “test of preponderance” 50 Box # 2-5 The definition of “dispute” 55 Box # 2-6 Legal disputes having political implications 62 Box # 2-7 Hypothetical questions 72 Box # 2-8 Multiplicity of titles of jurisdiction 76 Box # 2-9 Interpretation of the special agreement 85 Box # 2-10 The “consensual bond”: Nature and effects of Optional Clause declarations 95 Box # 2-11 Transferred jurisdiction 98 Box # 2-12 Entry into force of declarations under the Optional Clause 103 Box # 2-13 Shielding declaring State from the effects of termination on notice 108 Box # 2-14  Forum prorogatum in the Court’s case law 111 Box # 2-15 The Court on the mechanics of “unilateral arraignment” 120 Box # 2-16 Unilateral arraignment and provisional measures 122 Part 2 Preparing for and Starting the Litigation 3 Governing Instruments Box # 3-1 International custom v. practice of the Court in the case law of the Inter-American Court of Human Rights 144 Box # 3-2 “General principles of procedure” in the PCIJ Rules 147 Box # 3-3 Flexibility on matters of form and procedure 151 Box # 3-4  Travaux préparatories of the Statute 156

1278

4

5

List of Boxes

Box # 3-5 The interpretation of the Statute and the question of language 158 Box # 3-6  Travaux préparatoires of the Rules of Court 167 Box # 3-7 Aspects of procedure governed by the Practice Directions 172 Box # 3-8 Decisions delegated to the President of the Court 175 Box # 3-9 Rules v. Practice 178 Procedure: General Aspects Box # 4-1 Pieces of procedure 187 Box # 4-2 “Hearing the parties”: Interlocutory proceedings in the Rules of Court 192 Box # 4-3 Questions resolved through interlocutory proceedings: Samples 195 Box # 4-4 Disqualification of members of the Court: Practice 201 Box # 4-5 Challenges to the appointment of a judge ad hoc: Practice 206 Box # 4-6 Parties in the same interest: Review of the Court’s case law 211 Box # 4-7 The role of the judge ad hoc 213 Box # 4-8 Communications with the Court and its President: Practice Directions X and XIII 218 Box # 4-9 Limitations in the choice of agent, counsel and advocate: Practice Directions VII and VIII 222 Box # 4-10 The “closed bar” of the ICJ 225 Box # 4-11 Financing the litigation: The UN Secretary-General’s Trust Fund 228 Institution of Proceedings Box # 5-1 The date of seisin as the “critical date” for purposes of jurisdiction: Departures 237 Box # 5-2 State authority to seise the Court 243 Box # 5-3 Irregular filing of an application as grounds for inadmissibility 245 Box # 5-4 The subject of a claim and the cause of a claim 252 Box # 5-5 Amending or supplementing the application 256 Box # 5-6 Special agreement v. application as methods of seisin 266 Box # 5-7 Language of the special agreement 270 Box # 5-8 Changing the name of the case 281

List of Boxes

1279

Box # 5-9 Contents of the General List 288 Box # 5-10 Disputing the entering of a case in the General List 289 Part 3 Conducting the Litigation (Ordinary Proceedings) 6 Written Proceedings Stage: The Pleadings Box # 6-1 Order of pleadings in special agreement cases: Practice Direction I 308 Box # 6-2 Scope of the pleadings: Practice Directions II and III 313 Box # 6-3 Originals and photocopies 316 Box # 6-4 Translation of annexes 321 Box # 6-5 “New Documents” in the practice of the PCIJ 328 Box # 6-6 New Documents: Practice Direction IX 334 Box # 6-7 Part of a publication “readily available”: Practice Direction IXbis 336 Box # 6-8 Improving the written proceedings stage: The Jennings proposals 344 7 Oral Proceedings Stage: The Hearings Box # 7-1 Resort to Article 61, para. 1 of the Rules: Recent practice 356 Box # 7-2 The verbatim record: Corrections to the transcript 360 Box # 7-3 Measures to accelerate the oral stage of proceedings: Practice Directions VI and IXter 374 8 Evidence Box # 8-1 Judicial notice and facts of public knowledge 388 Box # 8-2 Municipal law as a fact subject to proof 402 Box # 8-3 Criticizing the Court’s attitude towards the standard of proof 409 Box # 8-4 Obtaining evidence in situ: the “descente sur les lieux” in the Court’s Rules and Practice 412 Box # 8-5 The Vienna Convention case and Paraguay’s request for an “order conclusively establishing facts” 416 Box # 8-6 Powers of the Court with regard to the production of evidence: Evolution of the Rules 419 Box # 8-7 Making better use of the Court’s powers with regard to the production of evidence 424 Box # 8-8 Challenging the authenticity of documentary evidence before the Court 428 Box # 8-9 Audiovisual material: Practice Direction IXquater 436

1280

List of Boxes

Box # 8-10 Live testimony by witnesses and experts: Practice 442 Box # 8-11 Maintaining the distinction between experts, witnesses and counsel 445 Box # 8-12 Use of independent experts: Practice 454 Box # 8-13 Subject-matter of an enquiry or an expert opinion 458 Box # 8-14 “Ghost Experts” at the ICJ 460 Box # 8-15 Assessors 461 Box # 8-16 The probative value of ICTY findings in the Genocide Convention case 465 Box # 8-17 Circumstantial evidence in international adjudication 472 Part 4 Ending the Litigation 9 Modes of Termination Box # 9-1 Discontinuance by agreement: Practice 497 Box # 9-2 Discontinuance at the initiative of the applicant: Practice 501 Box # 9-3 The US Hostages case: Discontinuance by agreement or by unilateral act? 504 Box # 9-4 “Conditional Discontinuance” and subsequent re-institution of proceedings 509 Box # 9-5 Suspension of proceedings 519 10 The Decision Box # 10-1 Terminology: “decision” v. “judgment” 525 Box # 10-2 The making of a decision: Deliberation process within the Court 527 Box # 10-3 Anticipated disclosure of the contents of a decision 532 Box # 10-4 Importance of the bilingual presentation of the text of the decision 537 Box # 10-5 Can the operative part of the judgment contain obiter dicta? 541 Box # 10-6 Costs 543 Box # 10-7 Format of orders 547 Box # 10-8 Individual opinions in the documents governing the Court’s practice 563 Box # 10-9 The importance of including individual opinions in the publications of the Court 572 Box # 10-10 Individual opinion v. vote 574 Box # 10-11  Motifs v. dispositif in international jurisprudence 582 Box # 10-12 Is the decision res judicata for the Court itself? 588

List of Boxes

1281

Box # 10-13 Lack of compliance with decisions of the ICJ: Practice 601 Box # 10-14 Inducing compliance with decisions of the ICJ in regional settings 605 Box # 10-15 Practice in the application of Article 94, para. 2 of the Charter 609 Part 5 The Litigation Interrupted (Incidental Proceedings) 11 Provisional Measures Box # 11-1 The rationale for provisional measures 618 Box # 11-2 Provisional measures: A review of the practice 620 Box # 11-3 Evolution of the test of prima facie jurisdiction 627 Box # 11-4 The test of prima facie jurisdiction in practice 632 Box # 11-5 A negative test of prima facie jurisdiction? 636 Box # 11-6 The Request for Interpretation-Temple of Preah Vihear case: Establishing a demilitarized zone as a provisional measure 648 Box # 11-7 Remedies and provisional measures 656 Box # 11-8 “Plausibility” of the rights to be protected as a new condition for the indication of provisional measures: Some criticism 663 Box # 11-9 Contents of the request for provisional measures: From indicating “the rights to be protected” to specifying “the possible consequences if it is not granted” 669 Box # 11-10 Lack of jurisdiction to make recommendations? 683 Box # 11-11 Permissible use of evidence in proceedings on provisional measures 690 Box # 11-12 Length of proceedings on provisional measures 695 Box # 11-13 Contents of argument on provisional measures: Practice Direction XI 698 Box # 11-14 Binding force of provisional measures by the ICJ in certain multilateral treaties 705 Box # 11-15 Binding force of orders on provisional measures 707 Box # 11-16 Invocation of Article 94, para. 2 of the Charter with regard to orders on provisional measures: Practice 719 12 Challenges to Jurisdiction Box # 12-1 Origins of Article 36, para. 6 of the Statute 728 Box # 12-2  “Compétence de la compétence” in the Court’s case law 731 Box # 12-3 Preliminary objections in the Rules of Court: Evolution 735

1282

List of Boxes

Box # 12-4 Manifest lack of jurisdiction v. a “test of reasonableness” 746 Box # 12-5 Filing of formal preliminary objections: Practice 751 Box # 12-6 Preliminary objections and appointment of judges ad hoc 757 Box # 12-7 Separate discussion of questions of jurisdiction and admissibility: Practice 760 Box # 12-8 Separate proceedings on jurisdiction and admissibility: Who pleads first? 765 Box # 12-9 Joinder of objections to the merits by agreement of the parties: Practice 768 Box # 12-10 Objections of jurisdiction or admissibility presented as a plea in bar: Practice 770 Box # 12-11 Objections to jurisdiction and objections to admissibility 778 Box # 12-12 Objections not possessing “an exclusively preliminary character” in the Court’s case law 789 Box # 12-13 Entering proceedings on preliminary objections in the General List: Practice 795 Box # 12-14 Brevity of the oral statements: Practice Direction VI 801 13 Counter-Claims Box # 13-1 On the meaning of the technical term “counterclaim” 809 Box # 13-2 Counter-claims: A review of the practice 812 Box # 13-3 Scope of the jurisdictional requirement in Article 80, para. 1 of the Rules 817 Box # 13-4 The connection test: Further thoughts 820 Box # 13-5 Holding a hearing on the admissibility of a counter-claim 826 Box # 13-6 Counter-claims and new claims 833 14 Intervention under Article 62 of the Statute Box # 14-1 Intervention in domestic and international law 841 Box # 14-2 Article 62: Legislative history 845 Box # 14-3 Intervention under Article 62: A review of the practice 849 Box # 14-4 The object of the intervention: Article 62 of the Statute v. Article 81 of the Rules 856 Box # 14-5 The legal interest: What it is not 866 Box # 14-6 Beyond a “purely informative” intervention? 870

List of Boxes

15

1283

Box # 14-7 The question of the “jurisdictional link” 874 Box # 14-8 Access to the written pleadings and intervention 890 Box # 14-9 The 1999 Resolution of the Institute of International Law (I) 908 Box # 14-10 The 1999 Resolution of the Institute of International Law (II) 917 Box # 14-11 Inadequacy of protection under Article 59: A new requirement for Article 62 intervention? 921 Intervention under Article 63 of the Statute Box # 15-1 Intervention under Article 63: A review of the practice 929 Box # 15-2 Article 63 intervention with regard to the construction of the Charter and the Statute? 932 Box # 15-3 2005 Amendment to Article 43 of the Rules of Court 936 Box # 15-4 Article 63 intervention in proceedings on jurisdiction and admissibility? 943 Box # 15-5 Article 63 intervention and provisional measures of protection 949 Box # 15-6 Article 84 of the Rules: The requirement of a hearing 952

Part 6 The Litigation Revisited (Derivative Proceedings) 16 Interpretation of Judgments Box # 16-1 Interpretation of judgments: A review of the practice 966 Box # 16-2 Article 60: Background 968 Box # 16-3 Interpretation of judgments in the Rules of Court: Evolution 979 Box # 16-4 Special Agreement v. Article 60 982 17 Revision of Judgments Box # 17-1 Conceptual approaches towards revision 1026 Box # 17-2 Revision of judgments: A review of the practice 1030 Box # 17-3 The concept of “facts” in Article 61 1036 Box # 17-4 “Decisive facts” and ratio decidendi 1040 Box # 17-5 The Trial Smelter case and the concept of “essential error” 1041 Box # 17-6 Revision of judgments in the Rules of Court: Evolution 1046

1284

List of Boxes

Part 7 Other Aspects of the Litigation 18 Other Litigation Devises: Joinder, Lack of Appearance, Appeals and Remedies  [ Joinder] Box # 18-1 Joinder, common proceedings and common action: A review of the practice 1060 Box # 18-2 Joinder distinguished from parties in the same interest 1067 Box # 18-3 The 1999 Resolution of the Institute of International Law 1070  [Lack of Appearance] Box # 18-4 Object and purpose of Article 53 of the Statute 1072 Box # 18-5 Lack of appearance: A review of the practice 1074 Box # 18-6 The 1991 Resolution of the International Law Institute 1078 Box # 18-7 The US Hostages case: A new model for handling questions of jurisdiction in cases of lack of appearance? 1086 Box # 18-8 Lack of equality between the appearing and the nonappearing party 1090 Box # 18-9 Burden of proof in cases of lack of appearance 1097  [Appeals] Box # 18-10 Appellate procedures: A review of the practice 1105 Box # 18-11 Appellate procedures: Evolution of the Rules 1108 Box # 18-12 The ICJ as a court of cassation: The ILC drafts on arbitral procedure 1112 Box # 18-13 Constraints in the exercise of the Court’s appellate jurisdiction 1117  [Remedies] Box # 18-14 Remedies in the ILC’s 2001 Articles on State Responsibility 1129 Box # 18-15 Compensation as a remedy: A review of the practice 1135 Box # 18-16 Compensation for non-material damage: Criteria 1139 Box # 18-17 Satisfaction as punishment: Punitive damages in international law 1147 Box # 18-18 The proper role of declaratory judgments 1169 Box # 18-19 Interim awards of damages 1177

List of Boxes

19

1285

Litigation Before Chambers Box # 19-1 Can a chamber of the Court render advisory opinions? 1184 Box # 19-2 Use of chambers: A review of the practice 1187 Box # 19-3 A special chamber to deal with preliminary objections? 1189 Box # 19-4 The 1972/1978 reforms to the Rules concerning chambers 1193 Box # 19-5 The Gulf of Maine case: A wrong start for ad hoc chambers? 1195 Box # 19-6  ad hoc chambers as de facto arbitral tribunals 1197 Box # 19-7 Judges ad hoc in chamber proceedings: Practice under Article 31, para. 4 of the Statute 1201 Box # 19-8 Doubts as to the constitutionality of the 1972 arrangements concerning ad hoc chambers 1206 Box # 19-9 Residual competence of the Court vis-à-vis a chamber 1213 20 Litigation in Advisory Proceedings Box # 20-1 Specialized agencies authorized to request advisory opinions 1230 Box # 20-2 The distribution of powers between the political organs of the UN and the notion of “legitimate interest” 1239 Box # 20-3 The reformulation of the question by the Court 1248 Box # 20-4 Provisional measures in advisory proceedings? 1251 Box # 20-5 Documentation submitted by non-governmental organizations 1256 Box # 20-6 Preliminary objections in advisory proceedings? 1261 Box # 20-7 Format of Advisory Opinions 1268

Appendixes 1 and 2 List of Decisions

Note: The following appendixes contain listings of all the decisions adopted by the Permanent Court of International Justice (Appendix 1) and the International Court of Justice (Appendix 2) to date. They comprise judgments, advisory opinions and orders concerning questions of procedure that may be of general interest. The decisions and arranged by cases, following the order in the Court’s General List, in which the cases are listed chronologically by date of introduction. The relevant reference to the P.C.I.J. Series and the I.C.J. Reports, as the case may be, is included for each decision, save for the most recent decisions, which have not yet been printed or published. Each entry contains the following headings: – Number in General List – Name of the case (abbreviated title and full title, as appropriate)1 – Decision(s) taken by the Court and their source in the Court’s publications. The full text of each decision can be downloaded from the (excellent) Court’s web page, at: www.icj-cij.org

1  For an explanation concerning the abbreviated names of cases see “A note on the quotation of decisions by the ICJ,” at the beginning of this work. When the official name of the case differs from the abbreviated name the former is included in square brackets.

Appendix 1

List of Decisions of the Permanent Court of International Justice (1920–1939) CASE No 1 Appointment of the Workers’ Delegate to the International Labour Conference Advisory Opinion No. 1, 31 July 1922, P.C.I.J. Series B, No. 1 CASE No 2 ILO and Agricultural Labour [International Labour Organization and the Conditions of Agricultural Labour] Advisory Opinion No. 2, 12 August 1922, P.C.I.J. Series B, No. 2 CASE No 3 ILO and AgriculturalProduction [International Labour Organization and the methods of agricultural production] Advisory Opinion No. 3, 12 August 1922, P.C.I.J. Series B, No. 3 CASE No 4 Nationality Decrees in Tunis and Morocco Advisory Opinion No. 4, 7 February 1923, P.C.I.J. Series B, No. 4 CASE No 5 S.S. “Wimbledon” (Great Britain, France, Italy, Japan v. Germany)

• •

Judgment of 28 June 1923 (Admitting Polish intervention), P.C.I.J. Series A, No. 1, p. 11 Judgment No. 1, 17 August 1923 (Merits), P.C.I.J. Series A, No. 1, p. 15 CASE No 6 German Settlers in Poland Advisory Opinion No. 6, 10 September 1923, P.C.I.J., Series B, No. 6 CASE No 7 Eastern Carelia [Status of Eastern Carelia] Advisory Opinion No. 5, 23 July 1923 P.C.I.J., Series B, No. 5

1288

Appendix 1

CASE No 8 Acquisition of Polish Nationality Advisory Opinion No. 7, 15 September 1923, P.C.I.J., Series B, No. 7 CASE No 9 Jaworzina [Polish-Czechoslovakian Frontier (question of Jaworzina)] Advisory Opinion No. 8, 6 December 1923, P.C.I.J., Series B, No. 8 CASE No 10 Mavrommatis Concessions (Merits) [Mavrommatis Palestine Concessions (merits)]2 (Greece v. Great Britain) Judgment No. 5, 26 March 1925 (Merits), P.C.I.J., Series A, No. 5 CASE No 11 Treaty of Neuilly [Treaty of Neuilly, Article 179, Annex, Paragraph 4 (Interpretation)] Judgment No. 3, 12 September 1924, P.C.I.J. Series A, No. 33 CASE No 12 Mavrommatis Concessions ( Jurisdiction) [The Mavrommatis Palestine Concessions (jurisdiction)] Judgment No. 2, 30 August 1924 (Objection to the Jurisdiction of the Court), P.C.I.J., Series A, No. 2 CASE No 13 Monastery of Saint-Naoum [Question of the Monastery of Saint-Naoum (Albanian Frontier)] Advisory Opinion No. 9, 4 September 1924, P.C.I.J., Series B, No. 9 CASE No 14 Request for Interpretation—Treaty of Neuilly [Interpretation of Judgment No. 3 Judgment No. 4, 26 March 1925, P.C.I.J. Series A, No. 4

2  As a result of the decision on jurisdiction of 30 August 1924 (See case No 12), the name of this case was changed into “Mavrommatis Jerusalem Concessions.” 3  Subsequently, Greece requested the interpretation of this decision. See case No 14.

Appendix 1

1289

CASE No 15 Exchange of Greek and Turkish Populations [Exchange of Greek and Turkish Populations (Lausanne Convention VI, January 30th, 1923, Article 2)] Advisory Opinion No. 10, 21 February 1925, P.C.I.J., Series B, No. 10 CASE No 16 Polish Postal Service in Danzig Advisory Opinion No. 11, 16 May 1925, P.C.I.J., Series B, No. 11 CASE No 17 Expulsion of the Oecumenical Patriarch The request was withdrawn by the Council and the case was struck off the session list on 12 June 1925 (P.C.I.J. Series C, No. 9-II; Series E, No. 1, p. 237) CASE No 18 Polish Upper Silesia (Merits) [Certain German Interests in Polish Upper Silesia (Merits)] Judgment No. 7, 25 May 1926, P.C.I.J. Series A, No. 7 CASE No 19 Polish Upper Silesia ( Jurisdiction) [Certain German Interests in Polish Upper Silesia (Jurisdiction)] Judgment No. 6, 25 August 1925, P.C.I.J. Series A, No. 6 CASE No 20 Mosul [Article 3, Paragraph 2, of the Treaty of Lausanne (Frontier between Turkey and Iraq)] Advisory Opinion No. 12, 21 November 1925, P.C.I.J. Series B, No. 12 CASE No 21 Competence of ILO on Personal Work [Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employer] Advisory Opinion No. 13, 23 July 1926, P.C.I.J. Series B, No. 13 CASE No 22 Denunciation of Sino-Belgian Treaty [Denunciation by China of the Treaty of November 2nd, 1865, between China and Belgium]

1290

Appendix 1

• •

Order indicating measures of interim protection, 8 January 1927, P.C.I.J. Series A, No. 8 Order recording the Belgian Government’s withdrawal of the suit, 25 May 1929, P.C.I.J. Series A, No. 18 CASE No 23 European Commission of the Danube [Jurisdiction of the European Commission of the Danube between Galatz and Braila] Advisory Opinion No. 14, 8 December 1927, P.C.I.J. Series B, No. 14 CASE No 24 S.S. Lotus Judgment No. 9, 7 September 1927, P.C.I.J. Series A, No. 10 CASE No 25 Chorzów Factory (Merits) [The Factory at Chorzów (Claim for Indemnity) (The merits)]

• • • •

Order regarding a request by the German Government for the indication of a provisional measures of interim protection, 21 November 1927, P.C.I.J., Series A, No. 12 Judgment No. 13, 13 September 1928, P.C.I.J., Series A, No. 17 Order recording the agreement concluded between the parties, 25 May 1929, P.C.I.J., Series A, No. 19 Orders concerning the institution of an expert enquiry and the appointment of experts: 13 September 1928, 16 October 1928, 14 November 1928 and 15 December 1928 CASE No 26 Chorzów Factory ( Jurisdiction) [The Factory at Chorzów (Claim for Indemnity) (Jurisdiction)] Judgment No. 8, 26 July 1927, P.C.I.J. Series A, No. 9 CASE No 27 Readaptation of the Mavrommatis Concessions (Merits) [Readaptation of the Mavrommatis Jerusalem Concessions (merits)] Judgment No. 10, 10 October 1927, P.C.I.J. Series A, No. 114

4  Decision upholding a preliminary objection raised by Great Britain. See Case No 28.

Appendix 1

1291

CASE No 28 Readaptation of the Mavrommatis Concessions ( Jurisdiction) [Readaptation of the Mavrommatis Jerusalem Concessions (jurisdiction)] Judgment No. 10, 10 October 1927, P.C.I.J. Series A, No. 11 CASE No 29 Jurisdiction of the Courts of Danzig [Jurisdiction of the Courts of Danzig (Pecuniary claims of Danzig Railway officials who have passed into the Polish Service, against the Polish Railway Administration)] Advisory Opinion No. 15, 3 March 1928, P.C.I.J. Series B, No. 15 CASE No 30 Request for Interpretation—Chorzów Factory [Interpretation of Judgments Nos. 7 and 8 concerning the case of the Factory at Chorzów] Judgment No. 11, 16 December 1927, P.C.I.J. Series A, No. 13 CASE No 31 Minority Schools [Rights of Minorities in Upper Silesia (Minority Schools)] Judgment No. 12, 26 April 1928, P.C.I.J. Series A, No. 15 CASE No 32 Free Zones [Free zones of Upper Savoy and the District of Gex]

• • •

Order according to the parties a period for negotiation, 19 August 1929, P.C.I.J. Series A, No. 22 Order according to the parties a further period for negotiation, 6 December 1930, P.C.I.J. Series A, No. 24 Judgment, 7 June 1932, P.C.I.J. Series A/B, No. 46 CASE No 33 Brazilian Loans [Payment in Gold of Brazilian Federal Loans contracted in France] Judgment No. 15, 12 July 1929, P.C.I.J. Series A, No. 21 CASE No 34 Serbian Loans [Payment of Various Serbian Loans issued in France] Judgment No. 14, 12 July 1929, P.C.I.J. Series A, No. 20

1292

Appendix 1

CASE No 35 Greco-Turkish Agreement (1926) [Interpretation of the Greco-Turkish Agreement of December 1st, 1926 (Final Protocol, Article IV)] Advisory Opinion No. 16, 28 August 1928, P.C.I.J. Series B, No. 16 CASE No 36 The Oder Commission [Territorial Jurisdiction of the International Commission of the River Oder] Judgment No. 16, 10 September 1929, P.C.I.J. Series A, No. 23 CASE No 37 The Greco-Bulgarian “communities” [Interpretation of the Convention between Greece and Bulgaria Respecting Reciprocal Emigration, signed at Neuilly-sur-seine on November 27th, 1919 (Question of the “Communities”)] Advisory Opinion No. 17, 31 July 1930, P.C.I.J. Series B, No. 17 CASE No 38 Danzig and ILO [Free City of Danzig and International Labour Organization] Advisory Opinion No. 18, 26 August 1930, P.C.I.J. Series B, No. 18 CASE No 39 Railway Traffic Lithuania-Poland [Railway Traffic between Lithuania and Poland (Railway Sector LandwarówKasisiadorys)] Advisory Opinion, 15 October 1931, P.C.I.J. Series A/B No. 42 CASE No 40 German Minority Schools in Upper Silesia [Access to German Minority Schools in Upper Silesia] Advisory Opinion, 15 May 1931, P.C.I.J. Series A/B, No. 40 CASE No 41 Austro-German Customs Régime [Customs Régime between Germany and Austria (Protocol of March 19th, 1931)] Advisory Opinion, 15 May 1931, P.C.I.J. Series A/B No. 40

Appendix 1

1293

CASE No 42 Treatment of Polish Nationals in Danzig [Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory] Advisory Opinion of 4 February 1932, P.C.I.J. Series A/B, No. 44 CASE No 43 Eastern Greenland [Legal Status of Eastern Greenland] Judgment of 5 April 1933, P.C.I.J. Series A/B, No. 53 CASE No 44 Polish War Vessels in the Port of Danzig [Access to, or Anchorage in, the Port of Danzig, of Polish War Vessels] Advisory Opinion of 2 December 1931, P.C.I.J. Series A/B, No. 43 CASE No 45 Interpretation of Greco-Bulgarian Agreement (1927) [Interpretation of the Greco-Bulgarian Agreement of December 9th, 1927 (CaphandarisMolloff Agreement)] Advisory Opinion of 8 March 1932, P.C.I.J. Series A/B, No. 45 CASE No 46 Delimitation of Territorial Waters [Delimitation of the Territorial Waters between the Island of Castellorizo and the Coasts of Anatolia] Order of Court recording the fact that the Parties intend to break off the proceedings, 26 January 1933, P.C.I.J. Series A/B, No. 51 CASE No 47 Memel Territory, Merits [Interpretation of the Statute of the Memel Territory (Merits)] Judgment of 2 August 1932, P.C.I.J. Series A/B, No. 49 CASE No 48 Employment of Women during the Night [Interpretation of the Convention of 1919 Concerning Employment of Women during the Night] 15 November 1932, P.C.I.J. Series A/B, No. 50

1294

Appendix 1

CASE No 49 Prince von Pless Administration (Merits)

•

Order of Court declaring that a request of German Gvt. Asking for the indication of a measure of interim protection ceased to have any object, 11 May 1933, P.C.I.J. Series A/B, No. 54 Order of Court recording the German Govt,’s withdrawal of the suit and the Polish Govt.’s acquiescence in this withdrawal, 2 December 1933, P.C.I.J. Series A/B, No. 59

•

CASE No 50 Memel Territory, Jurisdiction [Interpretation of the Statute of the Memel Territory (Jurisdiction)] Judgment of 24 June 1932, P.C.I.J. Series A/B, No. 47 CASE No 51 Hungaro-Czechoslovak Mixed Arbitral Tribunal I (Merits) [Appeals against two Judgments delivered on Dec. 21st, 1931, by the HungaroCzechoslovak Mixed Arbitral Tribunal (merits)] Order of Court recording the Czechoslovak Govt.’s withdrawal of the suit and the Hungarian Govt.’s acquiescence in this withdrawal, 12 May 1933, P.C.I.J. Series A/B, No. 56 CASES No 52–53 South Eastern Greenland [South-Eastern Territory of Greenland]5

• • •

Order joining the suits concerning South-Eastern Greenland, 2 August 1932, P.C.I.J. Series A/B, No. 48 Order on the Norwegian request for the indication of interim measures of protection, 3 August 1932, P.C.I.J. Series A/B, No. 48  Order of Court recording the withdrawal by the Parties of their respective Applications, 11 May 1933, P.C.I.J. Series A/B, No. 55 CASE No 54 Hungaro-Czechoslovak Mixed Arbitral Tribunal II (Merits) [Appeal against a judgment delivered on April 13th, 1932, by the Hungaro-Czechoslovak Mixed Arbitral Tribunal (merits)]

5  Two applications were filed on the same day by each of these States against the other. The Court joined the two suits.

Appendix 1

1295

Order of Court recording the Czechoslovak Govt.’s withdrawal of the suit and the Hungarian acquiescence in this, 12 May 1933, P.C.I.J. Series A/B, No. 56 CASE No 55 Prince von Pless Administration ( Jurisdiction) Order joining the preliminary objection raised by the Polish Govt. to the merits of the suit, 4 February 1933, P.C.I.J. Series A/B, No. 52 CASE No 56 Hungaro-Czechoslovak Mixed Arbitral Tribunal I ( Jurisdiction) [Appeal against two judgments delivered on Dec. 21st, 1931, by the HungaroCzechoslovak Mixed Arbitral Tribunal (jurisdiction)] Order of Court recording the Czechoslovak Govt.’s withdrawal of the suit and the Hungarian Govt.’s acquiescence in this withdrawal, 12 May 1933, P.C.I.J. Series A/B, No. 56 CASE No 57 Hungaro-Czechoslovak Mixed Arbitral Tribunal II ( Jurisdiction) [Appeal against a judgment delivered on April 13th, 1932, by the Hungaro-Czechoslovak Mixed Arbitral Tribunal (jurisdiction)] Order of Court recording the Czechoslovak Govt.’s withdrawal of the suit and the Hungarian acquiescence in this, 12 May 1933, P.C.I.J. Series A/B, No. 56 CASE No 58 Peter Pázmány University [Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University v. The State of Czechoslovakia)] Judgment of 15 December 1933, P.C.I.J. Series A/B, No. 61 CASE No 59 Lighthouses case (France-Greece) Judgment of 17 March 1934, P.C.I.J. Series A/B, No. 62 CASE No 60 Polish Agrarian Reform [The Polish Agrarian Reform and the German Minority]

• •

Application by the German Govt. for indication of interim measures of protec­ tion, Order of 29 July 1933, P.C.I.J. Series A/B, No. 58 Order of Court recording the German Govt.’s withdrawal of the suit and the Polish Govt.’s acquiescence in this withdrawal, 2 December 1933, P.C.I.J. Series A/B, No. 60

1296

Appendix 1

CASE No 61 Oscar Chinn Judgment of 12 December 1934, P.C.I.J. Series A/B, No. 63 CASE No 62 Minority Schools in Albania Advisory Opinion of 6 April 1935, P.C.I.J. Series A/B, No. 64 CASE No 63 Danzig Legislative Decrees [Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City]

• •

Order of 31 October 1935 (Judge ad hoc), P.C.I.J. Series A/B, No. 65, p.70 Advisory Opinion of 4 December 1935, P.C.I.J. Series A/B, No. 65, p. 40 CASE No 64 Losinger [Losinger & Co. (merits)] Order of Court recording the dioscontinuance of the proceedings, 14 December 1936, P.C.I.J. Series A/B. No. 69 CASE No 65 Pajzs, Csáky, Esterházy (Merits) Judgment of 16 December 1936, PCIJ Series A/B, No. 68 CASE No 66 Pajzs, Csáky, Esterházy (Preliminary Objection) Order of Court joining the preliminary objection raised by the Yugoslav Govt. to the merits, 23 May 1936, P.C.I.J. Series A/B, No. 66 CASE No 67 Losinger (Preliminary Objection) [Losinger & Co. (preliminary objection)] Order of Court joining the preliminary objection raised by the Yugoslav Govt. to the merits, 27 July 1936, P.C.I.J. Series A/B, No. 67

Appendix 1

1297

CASE No 68 Phosphates in Morocco (Merits) Judgment of 14 June 1938, deciding that the Application could not be entertained. See Case No. 71 CASE No 69 Water from the Meuse [Diversion of Water from the Meuse] Judgment of 28 June 1937, P.C.I.J. Series A/B, No. 70 CASE No 70 Lighthouses in Crete and Samos Judgment of 8 October 1937, P.C.I.J. Series A/B, No. 71 CASE No 71 Phosphates in Morocco (Preliminary Objections) Judgment of 14 June 1938, P.C.I.J., Series A/B, No. 74 CASE No 72 Borchgrave (Merits) Order of Court recording the discontinuance of the proceedings, 30 April 1938, P.C.I.J., Series A/B, No. 73 CASE No 73 Borchgrave (Preliminary Objections) Judgment of 6 November 1937, P.C.I.J. Series A/B, No. 72 CASE No 74 Railway Panevezys-Saldutiskis (Merits) Judgment of 28 February 1939, declaring that the claim of the Estonian Govet. Could not be entertained, P.C.I.J. Series A/B, No. 76 CASE No 75 Electricity Company of Sofia (Merits) [The Electricity Company of Sofia and Bulgaria (merits)] Order of 5 December 1939, Interim measures of protection, P.C.I.J. Series A/B, No. 79

1298

Appendix 1

CASE No 76 Railway Panevezys-Saldutiskis (Preliminary Objections) Order of 30 June 1938, joining the preliminary objections raised by the Lithuanian Govt. to the merits, P.C.I.J. Series A/B, No. 75 CASE No 77 “Société commerciale de Belgique” Judgment of 15 June 1939, P.C.I.J. Series A/B, No. 78 CASE No 78 Electricity Company of Sofia (Preliminary Objection) [The Electricity Company of Sofia and Bulgaria (preliminary objection)] Judgment of 4 April 1939, P.C.I.J. Series A/B, No. 77 CASE No 79 Gerliczy

Appendix 2

List of Decisions of the International Court of Justice (1948–2013) CASES # 1, 1A, 2 Corfu Channel [United Kingdom v. Albania]1

• • • • •

Judgment of 25 March 1948, Preliminary Objection, I.C.J. Reports 1947–1948, p. 15 Order of 17 December 1948, Expert Opinion, I.C.J. Reports 1947–1948, p. 124 Judgment of 9 April 1949, Merits, I.C.J. Reports 1949, p. 4 Order of 19 November 1949, Assessment of the Amount of Compensation Due from the People’s Republic of Albania: Appointment of Expert, I.C.J. Reports 1949, p. 237 Judgment of 15 December 1949, Assessment of the Amount of Compensation Due from the People’s Republic of Albania to the United Kingdom of Great Britain and Northern Ireland, I.C.J. Reports 1949, p. 244 CASE # 3 Conditions of Admission to the UN [Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter)] Advisory Opinion of 28 May 1948, I.C.J. Reports 1948, p. 57 CASE # 4 Reparation for Injuries [Reparation for Injuries Suffered in the Service of the United Nations] Advisory Opinion of 11 April 1949, I.C.J. Reports 1949, p. 174 CASE # 5 Fisheries [United Kingdom v. Norway] Judgment of 18 December 1951, I.C.J. Reports 1951, p. 116 1  The numbering of this case in the Court’s General List was very unorthodox. The main proceedings on the merits appear as Case # 1 and the derivative proceedings on the assessment of the amount of compensation as Case # 1/A. The incidental proceedings on a preliminary objection appear as Case # 2. In all subsequent cases where preliminary objections were made the resulting proceedings were not the object of an independent entry into the General List, but were treated as a phase in the proceedings concerning the principal case. The same occurs with derivative proceedings on reparations or compensation.

1300

Appendix 2

CASE # 6 Protection of French Nationals in Egypt [Protection of French Nationals and Protected Persons in Egypt (France v. Egypt)] Order of 29 March 1950, Discontinuance, I.C.J. Reports 1950, p. 59 CASE # 7 Asylum [Colombia/Peru] Judgment of 20 November 1950, I.C.J. Reports 1950, p. 2662 CASE # 8 Interpretation of Peace Treaties [Interpretation of Peace Treaties with Bulgaria, Hungary and Romania]

• •

Advisory Opinion of 30 March 1950 (first phase), I.C.J. Reports 1950, p. 65 Advisory Opinion of 18 July 1950 (second phase), I.C.J. Reports 1950, p. 221 CASE # 9 Admission to the UN [Competence of the General Assembly for the Admission of a State to the United Nations] Advisory Opinion of 3 March 1950, I.C.J. Reports 1950, p. 4 CASE # 10 Status of South West Africa [International Status of South West Africa] Advisory Opinion of 11 July 1950, I.C.J. Reports 1950, p. 128 CASE # 11 US Nationals in Morocco [Rights of Nationals of the United States of America in Morocco (France v. USA)]

• •

Order of 31 October 1951, Withdrawal of Preliminary Objection, Fixing of timelimits: Counter-Memorial, Reply and Rejoinder, I.C.J. Reports 1951, p. 109 Judgment of 27 August 1952, I.C.J. Reports 1952, p. 176

2  Subsequently, Colombia requested the interpretation of this decision. See Case # 13.

Appendix 2

1301

CASE # 12 Reservations to Genocide Convention Advisory Opinion of 28 May 1951, I.C.J. Reports 1951, p. 15 CASE # 13 Request for Interpretation—Asylum [Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru)] Judgment of 27 November 1950, I.C.J. Reports 1950, p. 395 ­ ASE # 14 C Haya de la Torre [Colombia v. Peru] Judgment of 13 June 1951, I.C.J. Reports 1951, p. 71 CASE # 15 Ambatielos [Greece v. United Kingdom]

• •

Judgment of 1 July 1952, Preliminary Objection, I.C.J. Reports 1952, p. 28 Judgment of 19 May 1953, Merits: obligation to arbitrate, I.C.J. Reports 1953, p. 10 CASE # 16 Anglo-Iranian Oil Co. [United Kingdom v. Iran]

• •

Order of 5 July 1951, Request for the indication of interim measures of protection, I.C.J. Reports 1951, p. 89 Judgment of 22 July 1952, Preliminary Objection, I.C.J. Reports 1952, p. 93 CASE # 17 Minquiers and Ecrehos [France/United Kingdom] Judgment of 17 November 1953, I.C.J. Reports 1953, p. 47 CASE # 18 Nottebohm [Liechtenstein v. Guatemala]

• •

Judgment of 18 November 1953, Preliminary Objection, I.C.J. Reports 1953, p. 111 Judgment of 6 April 1955, Second Phase, I.C.J. Reports 1955, p. 4

1302

Appendix 2

CASE # 19 Monetary Gold [Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America)] Judgment of 15 June 1954, Preliminary question, I.C.J. Reports 1954, p. 19 CASE # 20 “Electricité de Beyrouth” Company [France v. Lebanon] Order of 29 July 1954, Removal from the list, I.C.J. Reports 1954, p. 107 CASE # 21 Awards of Administrative Tribunal [Effect of Awards of Compensation made by the United Nations Administrative Tribunal] Advisory Opinion of 13 July 1954, I.C.J. Reports 1954, p. 47 CASE # 22 Aircraft and Crew of USA (USA v. Hungary) [Treatment in Hungary of Aircraft and Crew of United States of America (United States of America v. Hungarian People’s Republic)] Order of 12 July 1954, Removal from the list, I.C.J. Reports 1954, p. 99 CASE # 23 Aircraft and Crew of USA (USA v. USSR) [Treatment in Hungary of Aircraft and Crew of United States of America (United States of America v. Union of Soviet Socialist Republics)] Order of 12 July 1954, Removal from the list, I.C.J. Reports 1954, p. 103 CASE # 24 South West Africa, Voting Procedure [Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa] Advisory Opinion of 7 June 1955, I.C.J. Reports 1955, p. 67 CASE # 25 Aerial Incident (USA v. Czechoslovakia) [Aerial Incident of 10 March 1953 (United States of America v. Czechoslovakia)] Order of 14 March 1956, Removal from the list, I.C.J. Reports 1956, p. 6

Appendix 2

1303

CASE # 26 Antarctica (UK v. Argentina) Order of 16 March 1956, Removal from the list, I.C.J. Reports 1956, p. 12 CASE # 27 Antarctica (UK v. Chile) Order of 16 March 1956, Removal from the list, I.C.J. Reports 1956, p. 15 Case # 28 Aerial Incident (USA v. USSR) [Aerial Incident of 7 October 1952] Order of 14 March 1956, Removal from the list, I.C.J. Reports 1956, p. 9 CASE # 29 Norwegian Loans [Certain Norwegian Loans (France v. Norway)]

• •

Order of 28 September 1956, Joinder of Objections to the merits, fixing of timelimits: Counter-Memorial, Reply and Rejoinder, I.C.J. Reports 1956, p. 73 Judgment of 6 July 1957, I.C.J. Reports 1957, p. 9 CASE # 30 ILOAT Judgments [Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO] Advisory Opinion of 23 October 1956, I.C.J. Reports 1956, p. 77 CASE # 31 Committee on South Africa, Admissibility of Hearings [Admissibility of Hearings of Petitioners by the Committee on South West Africa] Advisory Opinion of 1 June 1956, I.C.J. Reports 1956, p. 23 CASE # 32 Right of Passage [Right of Passage over Indian Territory (Portugal v. India)]

• •

Judgment of 26 November 1957, Preliminary Objections, I.C.J. Reports 1957, p. 125 Judgment of 12 April 1960, Merits, I.C.J. Reports 1960, p. 6

1304

Appendix 2

CASE # 33 Convention on Guardianship of Infants [Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden)] Judgment of 28 November 1958, I.C.J. Reports 1958, p. 55 CASE # 34 Interhandel [Switzerland v. USA]

• •

Order of 24 October 1957, Request for the indication of interim measures of Protection, I.C.J. Reports 1957, p. 105 Judgment of 21 March 1959, Preliminary Objections, I.C.J. Reports 1959, p. 6 CASE # 35 Aerial Incident (Israel v. Bulgaria) [Aerial Incident of 27 July 1955 (Israel v. Bulgaria] Judgment of 26 May 1959, Preliminary Objections, I.C.J. Reports 1959, p. 127 CASE # 36 Aerial Incident (USA v. Bulgaria) [Aerial Incident of 27 July 1955 (United States of America v. Bulgaria)] Order of 30 May 1960, Removal from the list, I.C.J. Reports 1960, p. 146 CASE # 37 Aerial Incident (UK v. Bulgaria) [Aerial Incident of 27 July 1955 (United Kingdom v. Bulgaria)] Order of 3 August 1959, Removal from the list, I.C.J. Reports 1959, p. 264 CASE # 38 Frontier Land [Sovereignty over Certain Frontier Land (Belgium/Netherlands)] Judgment of 20 June 1959, I.C.J. Reports 1959, p. 209 CASE # 39 Arbitral Award (Honduras v. Nicaragua) [Arbitral Award Made by the King of Spain on 23 December 1906] Judgment of 18 November 1960, I.C.J. Reports 1960, p. 192

Appendix 2

1305

CASE # 40 Aerial Incident II (USA v. USSR) [Aerial Incident of 4 September 1954] Order of 9 December 1958, Removal from the list, I.C.J. Reports 1958, p. 158* CASE # 41 Barcelona Traction [Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain)]3 Order of 10 April 1961, Removal from the list, I.C.J. Reports 1961, p. 9 CASE # 42 Compagnie de Beyrouth [Compagnie du Port, des Quais et des Entrepôts de Beyrouth and Société Radio-Orient (France v. Lebanon)] Order of 31 August 1960, Removal from the list, I.C.J. Reports 1960, p. 186 CASE # 43 Constitution of the Maritime Safety Committee of the IMCO Advisory Opinion of 8 June 1960, I.C.J. Reports 1960, p. 150 CASE # 44 Aerial Incident III (USA v. USSR) [Aerial Incident of 7 November 1954] Order of 7 October 1959, Removal from the list, I.C.J. Reports 1959, p. 276 CASE # 45 Temple of Preah Vihear [Cambodia v. Thailand]

• •

Judgment of 26 May 1961, Preliminary Objections, I.C.J. Reports 1961, p. 17 Judgment of 15 June 1962, Merits, I.C.J. Reports 1962, p. 64 CASES # 46 & 47 South West Africa [Ethiopia v. South Africa, Liberia v. South Africa]5 3  Case reintroduced subsequently. See Case # 50. 4  Subsequently, Cambodia requested the interpretation of this decision. See Case # 151. 5  Cases No. 46 and 47 were joined by the Court.

1306

Appendix 2

• • • • •

Order of 20 May 1961, Joinder of cases and appointment of judge ad hoc, I.C.J. Reports 1961, p. 13 Judgment of 21 December 1962, Preliminary Objections, I.C.J. Reports 1962, p. 319 Order of 18 March 1965, Composition of the Court, I.C.J. Reports 1965, p. 3 Order of 29 November 1965, Inspection in loco, I.C.J. Reports 1965, p. 9 Judgment of 18 July 1966, Second Phase, I.C.J. Reports 1966, p. 6 CASE # 48 Northern Cameroons [Cameroon v. United Kingdom] Judgment of 2 December 1963, Preliminary Objections, I.C.J. Reports 1963, p. 15 CASE # 49 Certain Expenses of the UN [Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter)] Advisory Opinion of 20 July 1962, I.C.J. Reports 1962, p. 151 CASE # 50 Barcelona Traction II [Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain)]

• •

Judgment of 24 July 1964, Preliminary Objections, I.C.J. Reports 1964, p. 6 Judgment of 5 February 1970, Second Phase, I.C.J. Reports 1970, p. 3 CASES # 51 & 52 North Sea Continental Shelf [Denmark/Federal Republic of Germany, The Netherlands/Federal Republic of Germany]6

• •

Order of 26 April 1968, Joinder of cases, fixing of time-limit: Common Rejoinder, I.C.J. Reports 1968, p. 9 Judgment of 20 February 1969, I.C.J. Reports 1969, p. 3 CASE # 53 Namibia [Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)] 6  Cases No. 51 and 52 were joined by the Court.

Appendix 2

1307

• • • • •

Order of 26 January 1971, Order no. 1: Composition of the Court, I.C.J. Reports 1971, p. 3 Order of 26 January 1971, Order no.2: Composition of the Court, I.C.J. Reports 1971, p. 6 Order of 26 January 1971, Order no.3: Composition of the Court, I.C.J. Reports 1971, p. 9 Order of 29 January 1971, Judge ad hoc, I.C.J. Reports 1971, p. 12 Advisory Opinion of 21 June 1971, I.C.J. Reports 1971, p. 16 CASE # 54 ICAO Council [Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan)] Judgment of 18 August 1972, I.C.J. Reports 1972, p. 46 CASE # 55 Fisheries Jurisdiction (UK v. Iceland)

• • • •

Order of 17 August 1972, Provisional Measures, I.C.J. Reports 1972, p. 12 Judgment of 2 February 1973, Jurisdiction of the Court, I.C.J. Reports 1973, p. 3 Order of 12 July 1973, Continuance of interim measures of protection, I.C.J. Reports 1973, p. 302 Judgment of 25 July 1974, Merits, I.C.J. Reports 1974, p. 3 CASE # 56 Fisheries Jurisdiction (Germany v. Iceland)

• • • •

Order of 17 August 1972, Provisional Measures, I.C.J. Reports 1972, p. 30 Judgment of 2 February 1973, Jurisdiction of the Court, I.C.J. Reports 1973, p. 49 Order of 12 July 1973, Continuance of interim measures of protection, I.C.J. Reports 1973, p. 313 Judgment of 25 July 1974, Merits, I.C.J. Reports 1974, p. 175 CASE # 57 Review of UNAT Judgment No. 158 [Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal] Advisory Opinion of 12 July 1973, I.C.J. Reports 1973, p. 166

1308

Appendix 2

CASE # 58 Nuclear Tests (Australia v. France)

• • • •

Order of 22 June 1973, Request for the indication of interim measures of protection, fixing of time-limits: Memorial and Counter-Memorial, I.C.J. Reports 1973, p. 99 Order of 12 July 1973, Application by Fiji for Permission to Intervene, I.C.J. Reports 1973, p. 320 Judgment of 20 December 1974, I.C.J. Reports 1974, p. 253 Order of 20 December 1974, Application by Fiji for Permission to Intervene, I.C.J. Reports 1974, p. 530 CASE # 59 Nuclear Tests (New Zealand v. France)

• • • •

Order of 22 June 1973, Request for the indication of interim measures of protection, fixing of time-limits: Memorial and Counter-Memorial, I.C.J. Reports 1973, p. 135 Order of 12 July 1973, Application by Fiji for Permission to Intervene, I.C.J. Reports 1973, p. 324 Judgment of 20 December 1974, I.C.J. Reports 1974, p. 457 Order of 20 December 1974, Application by Fiji for Permission to Intervene, I.C.J. Reports 1974, p. 535 CASE # 60 Pakistani POW [Trial of Pakistani Prisoners of War (Pakistan v. India)]

• •

Order of 13 July 1973, Request for the indication of interim measures of protection and fixing of time-limits: Memorial and Counter-Memorial, I.C.J. Reports 1973, p. 328 Order of 15 December 1973, Removal from the list, I.C.J. Reports 1973, p. 347 CASE # 61 Western Sahara

• •

Order of 22 May 1975, Judge ad hoc, I.C.J. Reports 1975, p. 6 Advisory Opinion of 16 October 1975, I.C.J. Reports 1975, p. 12 CASE # 62 Aegean Sea Continental Shelf [Aegean Sea Continental Shelf (Greece v. Turkey)]

Appendix 2

1309

• •

Order of 11 September 1976, Request for the Indication of Interim Measures of Protection, I.C.J. Reports 1976, p. 3 Judgment of 19 December 1978, Jurisdiction of the Court, I.C.J. Reports 1978, p. 3 CASE # 63 Tunisia/Libya Continental Shelf [Continental Shelf (Tunisia/Libyan Arab Jamahiriya)]

• •

Judgment of 14 April 1981, Application by Malta for Permission to Intervene, I.C.J. Reports 1981, p. 3 Judgment of 24 February 1982, I.C.J. Reports 1982, p. 187 CASE # 64 US Hostages [United States Diplomatic and Consular Staff in Tehran (USA v. Iran)]

• • •

Order of 15 December 1979, Request for the indication of Provisional Measures, I.C.J. Reports 1979, p. 7 Judgment of 24 May 1980, I.C.J. Reports 1980, p. 3 Order of 12 May 1981, Removal from the list, I.C.J. Reports 1981, p. 45 CASE # 65 Agreement between the WHO and Egypt [Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt] Advisory Opinion of 20 December 1980, I.C.J. Reports 1980, p. 73 CASE # 66 Review of UNAT Judgment No. 273 [Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal] Advisory Opinion of 20 July 1982, I.C.J. Reports 1982, p. 325 CASE # 67 Gulf of Maine [Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/USA)]

7  Subsequently, Tunisia requested the interpretation and the revision of this decision. See Case # 71.

1310

Appendix 2

• • •

Order of 20 January 1982, Constitution of Chamber, I.C.J. Reports 1982, p. 3 Order of 30 March 1984, Appointment of Expert, I.C.J. Reports 1984, p. 165 Judgment of 12 October 1984 given by the Chamber constituted by the order made by the Court on 20 January 1982, I.C.J. Reports 1982, p. 246 CASE # 68 Malta/Libya Continental Shelf [Continental Shelf (Libyan Arab Jamahiriya/Malta]

• •

Judgment of 21 March 1984, Application by Italy for Permission to Intervene, I.C.J. Reports 1984, p. 3 Judgment of 3 June 1985, I.C.J. Reports 1985, p. 13 CASE # 69 Burkina Faso/Mali [Frontier Dispute (Burkina Faso/Mali)]

• • • •

Order of 3 April 1985, Constitution of Chamber, I.C.J. Reports 1985, p. 6 Order of 10 January 1986, Requests for the indication of Provisional Measures, I.C.J. Reports 1986, p. 3 Judgment of 22 December 1986, I.C.J. Reports 1986, p. 554 Order of 9 April 1987, Nomination of Experts, I.C.J. Reports 1987, p. 7 CASE # 70 Nicaragua [Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA)]

• • • • •

Order of 10 May 1984, Request for the indication of Provisional Measures, I.C.J. Reports 1984, p. 169 Order of 4 October 1984, Declaration of Intervention of the Republic of El Salvador, I.C.J. Reports 1984, p. 215 Judgment of 26 November 1984, Jurisdiction of the Court and Admissibility of the Application, I.C.J. Reports 1984, p. 392 Judgment of 27 June 1986, Merits, I.C.J. Reports 1986, p. 14 Order of 26 September 1991, Removal from list, I.C.J. Reports 1991, p. 47 CASE # 71 Application for Revision and Interpretation—Tunisia/Libya Continental Shelf [Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya)] Judgment of 10 December 1985, I.C.J. Reports 1985, p. 192

Appendix 2

1311

CASE # 72 Review of UNAT Judgment No. 333 [Application for Review of Judgment No. 333 of the United Nations Administrative Tribunal] Advisory Opinion of 27 May 1987, I.C.J. Reports 1987, p. 18 CASE # 73 Armed Actions (Nicaragua v. Costa Rica) [Border and Transborder Armed Actions (Nicaragua v. Costa Rica)] Order of 19 August 1987, Removal from list, I.C.J. Reports 1987, p. 182 CASE # 74 Armed Actions (Nicaragua v. Honduras) [Border and Transborder Armed Actions (Nicaragua v. Honduras)]

• • •

Order of 31 March 1988, Withdrawal of Request for the Indication of Provisional Measures, I.C.J. Reports 1988, p. 9 Judgment of 20 December 1988, Jurisdiction of the Court and Admissibility of the Application, I.C.J. Reports 1988, p. 69 Order of 27 May 1992, Removal from list, I.C.J. Reports 1992, p. 222 CASE # 75 El Salvador/Honduras [Land, Island and Maritime Frontier Dispute (El Salvador/Honduras)]

• • • • •

Order of 8 May 1987, Constitution of Chamber, I.C.J. Reports 1987, p. 10 Order of 13 December 1989, Composition of Chamber, I.C.J. Reports 1989, p. 162 Order of 28 February 1990, Application for Permission to Intervene, I.C.J. Reports 1990, p. 3 Judgment of 13 September 1990, Application by Nicaragua for Permission to Intervene, I.C.J. Reports 1990, p. 92 Judgment of 11 September 1992, I.C.J. Reports 1992, p. 3518 CASE # 76 Elettronica Sicula S.p.A. (ELSI) [USA v. Italy] (Ch)

•

Order of 2 March 1987, Constitution of Chamber, fixing of time-limits: Memorial and Counter-Memorial, I.C.J. Reports 1987, p. 3 8  Subsequently, El Salvador requested the revision of this decision. See Case # 127.

1312

Appendix 2

• •

Order of 20 December 1988, Composition of Chamber, I.C.J. Reports 1988, p. 158 Judgment of 20 July 1989, I.C.J. Reports 1989, p. 15 CASE # 77 Obligation to Arbitrate [Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947] Advisory Opinion of 26 April 1988, I.C.J. Reports 1988, p. 12 CASE # 78 Jan Mayen [Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway)] Judgment of 14 June 1993, I.C.J. Reports 1993, p. 38 CASE # 79 Aerial Incident (Iran v. USA) [Aerial Incident of 3 July 1988 (Iran v. USA)]

• •

Order of 13 December 1989, Fixing of time-limits: Memorial and Counter-Memorial, I.C.J. Reports 1989, p. 132 Order of 22 February 1996, Removal from list, I.C.J. Reports 1996, p. 9 CASE # 80 Phosphates in Nauru [Certain Phosphate Lands in Nauru (Nauru v. Australia)]

• •

Judgment of 26 June 1992, Preliminary Objections, I.C.J. Reports 1992, p. 240 Order of 13 September 1993, Discontinuance, I.C.J. Reports 1993, p. 322 CASE # 81 Convention on Privileges and Immunities of the UN [Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations] Advisory Opinion of 15 December 1989, I.C.J. Reports 1989, p. 177 CASE # 82 Arbitral Award (Guinea-Bissau v. Senegal) [Arbitral Award of 31 July 1989 (Guinea Bissau v. Senegal)]

Appendix 2

1313

• •

Order of 2 March 1990, Request for the Indication of Provisional Measures, I.C.J. Reports 1990, p. 64 Judgment of 12 November 1991, I.C.J. Reports 1991, p. 53 CASE # 83 Libya/Chad [Territorial Dispute (Libyan Arab Jamahiriya/Chad)] Judgment of 3 February 1994, I.C.J. Reports 1994, p. 6 CASE # 84 East Timor [Portugal v. Australia] Judgment of 30 June 1995, I.C.J. Reports 1995, p. 90 CASE # 85 Guinea-Bissau v. Senegal [Maritime Delimitation between Guinea-Bissau and Senegal (Guinea-Bissau v. Senegal)] Order of 8 November 1995, Removal from list, I.C.J. Reports 1995, p. 423 CASE # 86 Passage through the Great Belt [Finland v. Denmark]

• •

Order of 29 July 1991, Request for the Indication of Provisional Measures, I.C.J. Reports 1991, p. 12 Order of 10 September 1992, Removal from list, I.C.J. Reports 1992, p. 348 CASE # 87 Qatar v. Bahrain [Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)]

• • • •

Judgment of 1 July 1994, Jurisdiction and Admissibility, I.C.J. Reports 1994, p. 112 Judgment of 15 February 1995, Jurisdiction and Admissibility, I.C.J. Reports 1994, p. 6 Order of 30 March 1998, concerning content of Replies; fixing of time-limits: interim report and Replies (Merits), I.C.J. Reports 1998, p. 243 Judgment of 16 March 2001, Merits, I.C.J. Reports 2001, p. 40

1314

Appendix 2

CASE # 88 Lockerbie (Libya v. United Kingdom) [Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom]

• • •

 Order of 14 April 1992, Request for the indication of Provisional Measures, I.C.J. Reports 1992, p. 3 Judgment of 27 February 1998, Preliminary Objections, I.C.J. Reports 1998, p. 9 Order of 10 September 2003, Removal from the list, I.C.J. Reports 2003, p. 149 CASE # 89 Lockerbie (Libya v. United States) [Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States)]

• • •

Order of 14 April 1992, Request for the indication of Provisional Measures, I.C.J. Reports 1992, p. 114 Judgment of 27 February 1998, Preliminary Objections, I.C.J. Reports 1998, p. 115 Order of 10 September 2003, Removal from the list I.C.J. Reports 2003, p. 152 CASE # 90 Oil Platforms [Iran v. USA]

• • •

Judgment of 12 December 1996, Preliminary Objection, I.C.J. Reports 1996, p. 803 Order of 10 March 1998, Counter-claim, I.C.J. Reports 1998, p. 190 Judgment of 6 November 2003, I.C.J. Reports 2003, p. 161 CASE # 91 Genocide Convention (Bosnia) [Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)]

• •

Order of 8 April 1993, Request for the Indication of Provisional Measures, I.C.J. Reports 1993, p. 3 Order of 13 September 1993, Further Requests for the Indication of Provisional Measures, I.C.J. Reports 1993, p. 325

Appendix 2

1315

• • • •

Judgment of 11 July 1996, Preliminary Objections, I.C.J. Reports 1996, p. 5959 Order of 17 December 1997, Counter-Claims, I.C.J. Reports 1997, p. 243 Order of 10 September 2001, Withdrawal of Counter-claims, I.C.J. Reports 2001, p. 572 Judgment of 26 February 2007 CASE # 92 Gabčíkovo-Nagymaros [Gabčíkovo-Nagymaros Project (Hungary/Slovakia)]

• •

Order of 5 February 1997, of the Court concerning site visit, I.C.J. Reports 1997, p. 3 Judgment of 25 September 1997, I.C.J. Reports 1997, p. 710 CASE # 93 Nuclear Weapons (WHO) [Legality of the Use by a State of Nuclear Weapons in Armed Conflicts] Advisory Opinion of 8 July 1996, I.C.J. Reports 1996, p. 66 CASE # 94 Cameroon v. Nigeria [Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria)]

• • • • •

Order of 15 March 1996, Request for the Indication of Provisional Measures, I.C.J. Reports 1996, p. 13 Judgment of 11 June 1998, Preliminary Objections, I.C.J. Reports 1998, p. 27511 Order of 30 June 1999, Finding regarding Counter-claims; on submission of Reply and Rejoinder; fixing of time-limits: Reply and Rejoinder, I.C.J. Reports 1999, p. 983 Order of 21 October 1999, on intervention; fixing of time-limits: Written Statement and Written Observations, I.C.J. Reports 1999, p. 1029 Judgment of 10 October 2002, I.C.J. Reports 2002, p. 303

9  Subsequently, Serbia and Montenegro requested the revision of this decision. See Case # 122. 10 Subsequently, Hungary requested an “additional judgment”. The case was still open at the time of writing. 11  The interpretation of this decision was subsequently requested by Nigeria. See Case No. 101.

1316

Appendix 2

CASE # 95 Nuclear Weapons (UNGA) [Legality of the Threat or Use of Nuclear Weapons] Advisory Opinion of 8 July 1996, I.C.J. Reports 1996, p. 226 CASE # 96 Fisheries Jurisdiction (Spain v. Canada)

• •

Order of 8 May 1996, to not authorize filing of Reply and Rejoinder on question of jurisdiction, I.C.J. Reports 1996, p. 58 Judgment of 4 December 1998, Jurisdiction of the Court, I.C.J. Reports 1998, p. 432 CASE # 97 Nuclear Tests—Request for an Examination [Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case] Order of 22 September 1995, Request for an examination of the situation—Request for the Indication of Provisional Measures, I.C.J. Reports 1995, p. 288 CASE # 98 Botswana/Namibia [Kasikili/Sedudu Island (Botswana/Namibia)] Judgment of 13 December 1999, I.C.J. Reports 1999, p. 1045 CASE # 99 Vienna Convention [Vienna Convention on Consular Relations (Paraguay v. USA)]

• •

Order of 9 April 1998, Request for the Indication of Provisional Measures, I.C.J. Reports 1998, p. 248 Order of 10 November 1998, Removal from List, I.C.J. Reports 1998, p. 426 CASE # 100 Immunity form Legal Process [Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights] Advisory Opinion of 29 April 1999, I.C.J. Reports 1999, p. 62

Appendix 2

1317

CASE # 101 Request for Interpretation—Cameroon v. Nigeria [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), Preliminary Objections] Judgment of 25 March 1999, I.C.J. Reports 1999, p. 31 CASE # 102 Indonesia/Malaysia [Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)]

• •

Judgment of 23 October 2001, Application by the Philippines for Permission to Intervene, I.C.J. Reports 2001, p. 575 Judgment of 17 December 2002, I.C.J. Reports 2002, p. 625 CASE # 103 Diallo [Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo)]

• •

Judgment of 24 May 2007, Preliminary Objections Judgment of 30 November 2010, Merits CASE # 104 LaGrand [Germany v. USA]

• •

Order of 3 March 1999, Request for the Indication of Provisional Measures, I.C.J. Reports 1999, p. 9 Judgment of 27 June 2001, I.C.J. Reports 2001, p. 466 CASE # 105 Kosovo (Serbia and Montenegro v. Belgium) [Legality of Use of Force (Serbia and Montenegro v. Belgium)]

• •

Order of 2 June 1999, Request for the Indication of Provisional Measures, I.C.J. Reports 1999, p. 124 Judgment of 15 December 2004, Preliminary Objections, I.C.J. Reports 2004, p. 279

1318

Appendix 2

CASE # 106 Kosovo (Serbia and Montenegro v. Canada) [Legality of Use of Force (Serbia and Montenegro v. Canada)]

• •

Order of 2 June 1999, Request for the Indication of Provisional Measures, I.C.J. Reports 1999, p. 259 Judgment of 15 December 2004, Preliminary Objections, I.C.J. Reports 2004, p. 429 CASE # 107 Kosovo (Serbia and Montenegro v. France) [Legality of Use of Force (Serbia and Montenegro v. France)]

• •

Order of 2 June 1999, Request for the Indication of Provisional Measures, I.C.J. Reports 1999, p. 363 Judgment of 15 December 2004, Preliminary Objections, I.C.J. Reports 2004, p. 575 CASE # 108 Kosovo (Serbia and Montenegro v. Germany) [Legality of Use of Force (Serbia and Montenegro v. Germany)]

• •

Order of 2 June 1999, Request for the Indication of Provisional Measures, I.C.J. Reports 1999, p. 422 Judgment of 15 December 2004, Preliminary Objections, I.C.J. Reports 2004, p. 720 CASE # 109 Kosovo (Serbia and Montenegro v. Italy) [Legality of Use of Force (Serbia and Montenegro v. Italy)]

• •

Order of 2 June 1999, Request for the Indication of Provisional Measures, I.C.J. Reports 1999, p. 481 Judgment of 15 December 2004, Preliminary Objections, I.C.J. Reports 2004, p. 865 CASE # 110 Kosovo (Serbia and Montenegro v. Netherlands) [Legality of Use of Force (Serbia and Montenegro v. Netherlands)]

• •

Order of 2 June 1999, Request for the Indication of Provisional Measures, I.C.J. Reports 1999, p. 542 Judgment of 15 December 2004, Preliminary Objections, I.C.J. Reports 2004, p. 1011

Appendix 2

1319

CASE # 111 Kosovo (Serbia and Montenegro v. Portugal) [Legality of Use of Force (Serbia and Montenegro v. Portugal)]

• •

Order of 2 June 1999, Request for the Indication of Provisional Measures, I.C.J. Reports 1999, p. 565 Judgment of 15 December 2004, Preliminary Objections, I.C.J. Reports 2004, p. 1160 CASE # 112 Kosovo (Serbia and Montenegro v. Spain) [Legality of Use of Force (Serbia and Montenegro v. Spain)] Order of 2 June 1999, Request for the Indication of Provisional Measures (Removal from List), I.C.J. Reports 1999, p. 761 CASE # 113 Kosovo (Serbia and Montenegro v. UK) [Legality of Use of Force (Serbia and Montenegro v. United Kingdom)]

• •

Order of 2 June 1999, Request for the Indication of Provisional Measures, I.C.J. Reports 1999, p. 826 Judgment of 15 December 2004, Preliminary Objections, I.C.J. Reports 2004, p. 1307 CASE # 114 Kosovo (Serbia and Montenegro v. USA) [Legality of Use of Force (Serbia and Montenegro v. USA)] Order of 2 June 1999, Request for the Indication of Provisional Measures (Removal from List), I.C.J. Reports 1999, p. 916 CASE # 115 Armed Activities (DRC v. Burundi) [Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Burundi)] Order of 30 January 2001, Removal from List, I.C.J. Reports 2001, p. 3 CASE # 116 Armed Activities (DRC v. Uganda) [Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda)]

1320

Appendix 2

• • •

Order of 1 July 2000, Request for the Indication of Provisional Measures, I.C.J. Reports 2000, p. 111 Order of 29 November 2001, Finding on Counter-claims; fixing of time-limits: Reply and Rejoinder, I.C.J. Reports 2001, p. 660 Judgment of 19 December 2005, I.C.J. Reports 2005, p. 168 CASE # 117 Armed Activities I (DRC v. Rwanda) [Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda)] Order of 30 January 2001, Removal from List, I.C.J. Reports 2001, p. 612 CASE # 118 Genocide Convention (Croatia) [Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia)] Judgment of 18 November 2008, Preliminary Objections, I.C.J. Reports 2008, p. 412 CASE # 119 Aerial Incident (Pakistan v. India) [Aerial Incident of 10 August 1999 (Pakistan v. India)] Judgment of 21 June 2000, Jurisdiction of the Court, I.C.J. Reports 2000, p. 12 CASE # 120 Nicaragua v. Honduras [Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras)] Judgment of 8 October 2007, I.C.J. Reports 2007, p. 659 CASE # 121 Arrest Warrant [Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)]

• • •

Order of 8 December 2000, Request for the Indication of Provisional Measures, I.C.J. Reports 2000, p. 182 Order of 27 June 2001, Rejection of Preliminary Objections; extension of time-limit: Counter-Memorial, I.C.J. Reports 2001, p. 559 Judgment of 14 February 2002, I.C.J. Reports 2002, p. 3 12  Case reintroduced subsequently. See Case # 126.

Appendix 2

1321

CASE # 122 Application for Revision—Genocide Convention (Bosnia) [Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections] Judgment of 3 February 2003, I.C.J. Reports 2003, p. 7 CASE # 123 Certain Property [Liechtenstein v. Germany] Judgment of 10 February 2005, Preliminary Objections, I.C.J. Reports 2005, p. 6 CASE # 124 Nicaragua v. Colombia [Territorial and Maritime Dispute (Nicaragua v. Colombia)]

• • • •

Judgment of 8 December 2007, Preliminary Objections, I.C.J. Reports 2007, p. 832 Judgment of 4 May 2011, Request for permission to intervene (Costa Rica), I.C.J. Reports 2011, p. 348 Judgment of 4 May 2011, Request for permission to intervene (Honduras) Judgment of 19 November 2012 CASE # 125 Benin/Niger [Frontier Dispute (Benin/Niger)]

• • •

Order of 27 November 2002, Formation of Chamber; fixing of time-limit: Memorials, I.C.J. Reports 2002, p. 613 Order of 16 February 2005, Composition of Chamber, I.C.J. Reports 2005, p. 84 Judgment of 12 July 2005, I.C.J. Reports 2005, p. 90 CASE # 126 Armed Activities II (DRC v. Rwanda) [Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda)]

• •

Order of 10 July 2002, Request for the Indication of Provisional Measures, I.C.J. Reports 2002, p. 219 Judgment of 3 February 2006, Jurisdiction of the Court and Admissibility of the Application, I.C.J. Reports 2006, p. 6

1322

Appendix 2

CASE # 127 Application for Revision—El Salvador/Honduras [Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening)]

• •

Order of 27 November 2002, Formation of Chamber; fixing of time-limit: written observations on admissibility, I.C.J. Reports 2002, p. 618 Judgment of 18 December 2003, I.C.J. Reports 2003, p. 392 CASE # 128 Avena [Avena and Other Mexican Nationals (Mexico v. United States of America)]

• •

Order of 5 February 2003, Request for the Indication of Provisional Measures, I.C.J. Reports 2003, p. 77 Judgment of 31 March 2004, I.C.J. Reports 2004, p. 1213 CASE # 129 Criminal Proceedings [Certain Criminal Proceedings in France (Republic of the Congo v. France)]

• •

Order of 17 June 2003, Request for the Indication of a Provisional Measure, I.C.J. Reports 2003, p. 102 Order of 16 November 2010, Discontinuance, I.C.J. Reports 2010, p. 635 CASE # 130 Malaysia/Singapore [Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)] Judgment of 23 May 2008, I.C.J. Reports 2008, p. 12 CASE # 131 Construction of a Wall [Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory]

13  The interpretation of this decision was subsequently requested by Mexico. See Case No. 139.

Appendix 2

1323

• •

Order of 30 January 2004, Composition of the Court, I.C.J. Reports 2004, p. 3 Advisory Opinion of 9 July 2004, I.C.J. Reports 2004, p. 136 CASE # 132 Romania v. Ukraine [Maritime Delimitation in the Black Sea (Romania v. Ukraine)] Judgment of 3 February 2009, I.C.J. Reports 2009, p. 61 CASE # 133 Navigational Rights [Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua)] Judgment of 13 July 2009, I.C.J. Reports 2009, p. 213 CASE # 134 Status of Diplomatic Envoy [Status vis-à-vis the Host State of a Diplomatic Envoy to the United Nations (Commonwealth of Dominica v. Switzerland)] Order of 9 June 2006, Removal from List, I.C.J. Reports 2006, p. 107 CASE # 135 Pulp Mills [Pulp Mills on the River Uruguay (Argentina v. Uruguay)]

• • •

Order of 13 July 2006, Provisional Measures, I.C.J. Reports 2006, p. 113 Order of 23 January 2007, Provisional Measures, I.C.J. Reports 2007, p. 3 Judgment of 20 April 2010, I.C.J. Reports 2010, p. 14. CASE # 136 Mutual Assistance [Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France)] Judgment of 4 June 2008, I.C.J. Reports 2008, p. 177 CASE # 137 Peru v. Chile [Maritime Dispute (Peru v. Chile)] Judgment of 27 January 2014 CASE # 138 Aerial Spraying [Aerial Herbicide Spraying (Ecuador v. Colombia)] Order of 13 September 2013, Removal from list

1324

Appendix 2

CASE # 139 Request for Interpretation—Avena [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)]

• •

Order of 16 July 2008, Provisional Measures, I.C.J. Reports 2008, p. 311 Judgment of 19 January 2009, I.C.J. Reports 2009, p. 3 CASE # 140 CERD [Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation)]

• •

Order of 15 October 2008, Provisional Measures, I.C.J. Reports 2008, p. 353 Judgment of 1 April 2011, Preliminary Objections, I.C.J. Reports 2011, p. 70 CASE # 141 Kosovo, Declaration of Independence [Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo] Advisory Opinion of 22 July 2010, I.C.J. Reports 2010, p. 403 CASE # 142 Interim Accord [Application of the Interim Accord of 13 September 1995 (former Yugoslavian Republic of Macedonia v. Greece)] Judgment of 5 December 2011, I.C.J. Reports 2011, p. 644 CASE # 143 Jurisdictional Immunities [Jurisdictional Immunities of the State (Germany v. Italy)]

• • •

Order of 6 July 2010, Counter-claims, I.C.J. Reports 2010, p. 310 Order of 4 July 2011, Application to intervene, I.C.J. Reports 2011, p. 494 Judgment of 3 February 2012 CASE # 144 Obligation to Prosecute or Extradite [Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal)]

Appendix 2

1325

• •

Order of 28 May 2009, Provisional Measures, I.C.J. Reports 2009, p. 139 Judgment of 20 July 2012 CASE # 145 Jurisdiction and Enforcement [Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v. Switzerland)] Order of 5 April 2011, Removal from List, I.C.J. Reports 2011, p. 341 CASE # 146 Review of ILOAT Judgment 2867 [Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development] Advisory Opinion of 1 February 2012 CASE # 147 Diplomatic Relations [Certain Questions Concerning Diplomatic Relations (Honduras v. Brazil)] Order of 12 May 2010, Removal from List, I.C.J. Reports 2010, p. 303 CASE # 148 Whaling in the Antarctic (Australia v. Japan) Order of 6 February 2013, Declaration of Intervention by New Zealand CASE # 149 Burkina Faso/Niger [Frontier Dispute (Burkina Faso/Niger)] Judgment of 16 April 2013 CASE # 150 Activities in the Border Area14 [Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)]

• • •

Order of 8 March 2011, Provisional Measures, I.C.J. Reports 2007, p. 6 Order of 17 April 2013, Joinder of proceedings Order of 18 April 2013, Counter-claims 14  Case joined with Case # 152.

1326

Appendix 2

• •

Order of 16 July 2013, Modification of provisional measures Order of 22 November 2013, Request presented by Costa Rica for the Indication of new Provisional Measures CASE # 151 Request for Interpretation—Temple of Preah Vihear [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)]

• •

Order of 18 July 2011, Provisional Measures, I.C.J. Reports 2011, p. 537 Judgment of 11 November 2013 CASE # 152 Construction of a Road 15 [Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica)]

• • •

Order of 17 April 2013, Joinder of proceedings Order of 18 April 2013, Counter-claims Order of 13 December 2013, Request by Nicaragua for the Indication of Provisional Measures CASE # 153 Obligation to Negotiate Access [Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile)] CASE # 154 Delimitation of the Continental Shelf beyond 200 nautical miles [Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia)] CASE # 155 Alleged Violations in the Caribbean Sea [Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia)] CASE # 156 Seizure and Detention of Documents and Data [Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-­Leste v. Australia)] 15  Case joined with Case # 150.

Index Access and jurisdiction 7, 11, 34, 1038, 1116 access, question of in advisory proceedings 1228 access to pleadings 176, 339 ad hoc chambers 199, 213 n. 73, 373 n. 82, 1054, 1182, 1186, 1187, 1189, 1191–1197, 1199, 1200 n. 38, 1202–1203, 1205–1208, 1210–1213, 1216, 1218–1219, 1221–1225 ad hoc chambers as de facto arbitral tribunals Box # 19-6 ad hoc chambers, Gulf of Maine case  Box # 19-5 ad hoc title of jurisdiction, special agreement 75, 80 additional pleading 163, 188, 306, 310, 324, 757, 803, 823, 834–836, 1047 n. 42 admissibility, objections of 777–780, 980 advisory opinion 4–5, 8–10, 22 n. 43, 25 n. 49, 61, 84 n. 83, 86, 140 n. 6, 144–145, 175 n. 90, 202 nn. 42–43, 203, 213, 274, 285–288, 343, 462, 562, 567, 578, 589, 608, 932, 974, 976, 987, 996, 1019, 1029, 1070, 1166, 1184–1185, 1192 n. 25, 1227–1230, 1232, 1235–1243, 1245–1251, 1253–1257, 1259–1273, 1268–1274 advisory opinions, format Box # 20-7 advisory proceedings access 1228–1232 documentation by NGOs Box # 20-5 evidence 1263–1268 jurisdiction 1232–1242, 1263 n. 118 legal effects of opinion 1270 preliminary objections Box # 20-6 procedure 1242–1274 provisional measures Box # 20-4 reformulation of question by Court  Box # 20-3 requests by specialized agencies  Box # 20-1 agent, appointment of 221, 224, 216–223 aggravation of dispute, prevention of  639–645 annexes to pleadings 187, 315, 319, 413 annexes, translation of Box # 6-4

ante hoc title of jurisdiction treaties and agreements 89 Optional Clause system 48, 95–109, 599, 728, Box # 2-12 appeals (special reference to Court) jurisdiction 1115–1116 procedure 1117–1118 appellate jurisdiction, constrains in exercise of Box # 18-13 appellate procedures, evolution of rules  Box # 18-11 appellate procedures, practice Box # 18-10 application instituting proceedings amendment of or supplement to  Box # 5-5 and characterization of dispute 263 and new claims 258 contents of 247 filing of 245, 247 irregular filing Box # 5-3 reference to title of jurisdiction in 74, 79, 253 Article 94, para. 2 of Charter, practice in application of Box # 10-15 Article 94, para. 2 of Charter, practice on provisional measures Box # 11-16 assessors Box # 8-15 audiovisual material Box # 8-9 bar of the ICJ Box # 4-10 bench for a case 191, 197–215, 562 binding f0rce of judgments 36–37, 578–590, 901, 903 bilingual presentation of decisions  Box # 10-4 burden of proof 242, 309, 391–405, 409, 422, 425–426, 510, 864–865, 1097, 1099 capacity to be a party 4–10, 13, 15 cassation, ICJ as a court of Box # 18-12 cause of claim Box # 5-4 casting vote 16, 200, 530, 573 certified copy 218, 265, 270–271, 274, 276, 320, 322, 330, 360, 428, 505, 687, 892, 1195 n. 32

1328 cessation 485, 685, 1128, 1130, 1133–1134, 1146, 1150–1153, 1157, 1163–1164, 1165 n. 266, 1166, 1170 challenges to jurisdiction (preliminary objections) compétence de la compétence principle 64, 728–737 ex officio consideration of jurisdictional matters 738 “manifest lack of jurisdiction” 29 n. 62, 119, 123, 481–483, 635, 638, 741–748, 1063 methods for challenging jurisdiction 748 procedure 794–805 chambers ad hoc chambers 199, 213 n. 73, 373 n. 82, 1054, 1182, 1186–1187, 1189, 1191–1218, 1221–1225 assessment of chambers system  1222–1225 chamber of summary procedure 184, 538 n. 37, 966, 971, 987–988, 1183, 1184 n. 8, 1185–1188, 1193–1194, 1212, 1216–1222, 1224, 1225 n. 93, 1250 n. 80 practice in use of Box # 19-2 residual competence of Court Box # 19-9 special chambers 776, 1182–1184, 1187–1191, 1193–1194, 1220, 1224, 1225 n. 93 changes in the composition of the Court 197, 980, 1048, 1202 characterizating preliminary objections 776 characterization of dispute 83 n. 78, 263, 618, 766 Charter of the United Nations 38, 43 n. 5, 47 n. 14, 48, 63, 81, 156, 579, 596, 620, 932, 935, 1116, 1217, 1229 circumstantial evidence Box # 8-17 closed hearings 195, 201, 354, 1254 closure of oral stage 377–380 of written proceedings 324–327 of proceedings 377 communications to and from the Court 216, 276, Box # 4-8 common action, other forms of 1069 compensation 73, 258, 454–455, 487, 600–601, 658, 671, 912, 962, 1122–1125,

Index 1127–1128, 1134–1135, 1143–1149, 1159, 1175, 1299 n. 1, Box # 18-15, Box # 18-16 competence 3, n. 1, 19, 72, 86, 102, 106 n. 122, 125, 127, 129, 179–180, 469, 611, 624–625, 627, 719, 725, 734, 759, 777, 815, 851–852, 868, 877–878, 883, 895, 911, 969, 983, 986–988, 1010, 1106, 1124–1125, 1206, 1213–1214, 1227–1228, 1232–1233, 1238, 1240, 1243, 1261–1262 compétence de la compétence (jurisdiction as to jurisdiction) 64, 142, 177 n. 93, 728, 730–731, 731–735, 1072, 1168, Box # 12-2 compliance with decisions 594–612, Box # 10-13, Box # 10-14 with orders on provisional measures  713 n. 236, 716–720, 1009 components of procedure 183 composition of the Court 38, 145, 183, 197–215, 291, 354, 545, 758–759, 980, 1011, 1048, 1202, 1206, 1306–1307, 1323 compromis (special agrement) 75, 80–89, 265–271, 309, 733 compulsory jurisdiction, declarations accepting 17–18, 48, 51, 67, 76, 78, 95–109, 245–247, 969–970, 1022 conditions for the indication (of provisional measures) 648, 650–674, 1081 conducting the litigation 223, 295 “consensual bond”, Optional Clause declarations Box # 2-10 consent, principle of 40–53, 116, 125, 142, 590, 876, 879, 883–884, 886, 912–913, Box # 2-1 consent and jus cogens Box # 2-2 consequential orders in cases of State responsibility 1156 in cases not involving issues of 555 State responsibility 1157, 1164, 1172 construction of jurisdictional clauses 93 of multilateral treaties 90 contentious proceedings 3, 5, 7 n. 14, 20, 24, 40, 58, 61, 69, 71, 186, 233, 272 n. 87, 296, 330 n. 83, 387, 438, 468, 470, 480, 544, 700, 803, 838–839, 878, 1063, 1171, 1185, 1193, 1209, 1217, 1228, 1233, 1254, 1259, 1261–1264 contents of pleadings 311, 1021

1329

Index contestation 54 n. 22, 59, 161, 729, 985, 1000–1002, 1017 n. 139 correction of errors in decision 555 of verbatim record 360 costs Box # 10-6 counsel and advocates 216 n. 77, 220, 223–225, 228, 348, 353, 355, 357, 371, 377, 439–440, 539, 1258 counter-claims admissibility 814–821 and new claims Box # 13-6 connection test Box # 13-4 hearing on admissibility Box # 13-5 meaning of term Box # 13-1 jurisdiction Box # 13-3 procedure 822–836 counter-memorial 190, 205, 242, 262, 272, 297, 301, 304–306, 311, 318–319, 325, 327 n. 81, 343, 427, 524, 750, 757, 760, 764–768, 770–771, 773, 775–776, 801, 804, 814, 818, 822–823, 833–834, 946, 1015, 1061, 1081, 1086 Court-appointed witnesses and experts 446 critical date, for purposes of jurisdiction and admissibility 75, 152 n. 38, 234–240, 370, Box # 5-1 critical date, for purposes of the composition of bench 198 critical date, for application of uti possidetis juris 404 custom, as source of procedural law 139, 142–146, 147 n. 21, Box # 3-1 decisions of the Court as precedent 591 as res judicata 578 aspects of methodology 549–555 compliance and enforcement 594 correction of errors in 555 formal features and contents of 536–548 headnotes 545–547 legal effects 575–594 reading of 526–535 reasoning section 549 decision v. judgment Box # 10-1 decisions delegated to President Box # 3-8 declarations accepting compulsory jurisdiction 95–109

declarations appended to judgment or advisory opinion 559, 564 declaratory judgments 1141–1145 deliberation process Box # 10-2 demilitarized zone as a provisional measures Box # 11-6 derivative proceedings interpretation of judgments 35, 189, 191, 210 revision of judgments 189, 191, 210 “descente sur le lieux” Box # 8-4 diplomatic negotiations, exhaustion of 40, 65–69, 738 diplomatic representative of parties at The Hague 219, 247 disclosure of decision, anticipated  Box # 10-3 discontinuance 129, 242, 250, 480, 481 n. 1, 483, 485–521, 702, 804, 836 n. 76, 1100, 1136, 1178 at the initiative of applicant 480, 488, 499, 515, Box # 9-2 by agreement 497–499 conditional Box # 9-4 evolution of rules 489–497 incidental and derivative proceedings  515–519 discretion, in the exercise of advisory jurisdiction 1235–1242 discretional intervention 839 dissenting and separate opinions 558–575 dismissal of cases, summary 128 n. 166, 481–485, 635 n. 37 dispute, definition 20, 24, 40, 55, 58–59, 68–69, 88, 264 n. 75, 1000 n. 84, 1005, Box # 2-5 disqualification of members of Court  Box # 4-4 document instituting proceedings communications 278 initial assessment 274 documents, challenging authenticity of  Box # 8-8 documentary evidence 187, 315 n. 50, 329–330, 353, 379, 383, 401, 414, 416, 426–427, 1035 n. 24, 1094 early dismissal of cases See summary dismissal

1330 enforcement of decisions 594–612 of orders on provisional measures 716–720 enquiry 175 n. 90, 192, 447, 449, 453–454, 457–458, 802, 1224, Box # 8-13 “essential error” Box # 17-5 evidence action by Court 416 duty of States to cooperate with Court 393 ex parte action 414 production and handling of 410 questions of in case of lack of appearance 1092 types of 426 ex officio consideration of jurisdictional matters 13, 730 n. 14, 738–741 expert evidence 426 experts 220, 229, 315, 348, 353, 361, 413, 415, 419–421, 426 n. 128, 438–441, 443–447, 452–455, 457–463, 546, 600, 802, 983, 1125, 1136, 1178, 1188, 1190, Box # 8-11, Box # 8-12 extra-procedural documentation, lack of appearance 1100 facts of public knowledge Box # 8-1 failure to appear or defend 1070–1072 figures 1, ordinary proceedings 186 1-a, rounds of written pleadings, consecutive 303 1-b, rounds of written pleadings, simultaneous 307 2, incidental proceedings, provisional measures 694 3, incidental proceedings, preliminary objections 798 3-a, separate determination of questions of jurisdiction and admissibility  798 4, incidental proceedings, counter-claims 832 5, incidental proceedings, Article 62 intervention 896 6, incidental proceedings, Article 63 intervention 951 7, derivative proceedings, interpretation of judgments 1018

Index 8, derivative proceedings, revision of judgments 1045 9, proceedings in advisory cases 1259 films 354 n. 19, 434–436 financing the litigation Box # 4-11 final submissions 187, 220, 260, 312–313, 362–371, 377, 539 n. 41, 541, 779, 823, 978 formal features and contents of decision 536 format and printing, questions of 319, 322–323 forum prorogatum 40, 75, 80–81, 109–111, 113–116, 118–121, 122 n. 153, 125, 232, 245–246, 253, 255, 278 n. 103, 482, 635, 687, 727, 775, 779, 988–989, 1112, 1124 foundations of the litigation xvi, 1 General Assembly of the United Nations  27–28, 61, 63, 166, 203, 286, 302, 349, 464, 562, 595, 602, 605, 610–612, 715, 784, 843, 1029, 1107, 1112, 1115, 1192, 1229–1268 General List xxvi, 81 n, 76, 117–119, 121, 123–124, 128, 188, 191, 233, 241 n. 17, 256, 274–275, 278, 286–293, 454, 480–481, 483–484, 497–498, 500, 502, 504, 545, 635, 686–687, 741–743, 745, 763, 795–797, 829, 974, 1008, 1010, 1049, 1061, 1064–1065, 1175, 1178, 1286, 1299 n. 1, Box # 5-9, Box # 5-10 general principles, as sources of procedural law 37–38, 45, 126 n. 160, 127, 139, 143, 146, 148–149, 165, 411, 841, 860, 867, 899, 903, 1012, 1084, Box # 3-2 “ghosts experts” Box # 8-14 governing instruments xii, 82, 128, 139, 177, 259, 276, 291 n. 123, 344, 394, 441, 555, 567, 1046, 1256 guarantees of non-repetition 1128, 1131, 1146, 1150, n. 214, 1153–1156 Gulf of Maine case, ad hoc chambers  Box # 19-5 handling of preliminary objections by Court 750, 782–793, 831 hearings 176, 184, 186–187, 192–195, 201, 204, 206–207, 208 n. 60, 223, 227–228, 279, 291 n. 123, 293, 296, 305–306, 317, 324–325, 327–332, 335–336, 343, 348–380, 391, 411, 414–415, 416 n. 107, 422, 424, 428, 430, 431, 434, 436–441,

1331

Index 443, 445, 447, 512, 528–529, 633 n. 33, 673–674, 677–678, 687–690, 693–694, 696–699, 701, 734, 751, 756, 757, 771, 776, 797, 801–803, 824–826, 827 n. 54, 838 n. 2, 852, 870, 893–894, 897, 923–924, 929–930, 949, 952–953, 1016, 1049–1050, 1062, 1066, 1069, 1071, 1082, 1089, 1178, 1207–1208, 1210, 1221, 1250, 1252, 1254, 1258–1259, 1264 hypothetical questions Box # 2-7 ICTY findings, probatory value Box # 8-16 ILC 2001 Articles on State responsibility  Box # 18-14 incidental and interlocutory jurisdiction 125 incidental proceedings 123, 126, 128–129, 188–190, 194, 232, 261, 268, 271–272, 298, 325, 350, 353, 357, 359, 377, 480, 485, 509, 515, 523–524, 590, 615–617, 619, 623–625, 634, 647–648, 656, 667, 674, 676, 686–687, 690, 698, 735–736, 745, 750, 755–756, 764, 773, 794–795, 803–804, 811, 822, 827, 840, 851, 871, 878, 880, 904, 909–910, 927, 940, 942, 975, 989, 1004, 1009–1010, 1074, 1080, 1082–1083, 1115, 1191, 1212–1213, 1250 indirect or circumstancial evidence  407–408, 426, 470–475 individual opinions 536, 545, 549, 558–575, 1270, Box # 10-8, Box # 10-9, Box # 10-10 Institute of International Law Box # 14-9, Box # 14-10, Box # 18-3, Box # 18-6 institution of proceedings incidental and derivative 232, 271–273 by means of application 232, 241, 245–264 by means of special agreement 232, 241, 265–271 methods for 232 interim awards of damages Box # 18-19 interlocutory proceedings 188, Box # 4-2, Box # 4-3 interlocutory jurisdiction 125 interest (parties in the same interest) 204, 208, 210–212, 902, 957–958, 1061, 1063, 1065, Box # 4-6, Box # 18-2 interest of a legal nature (in intervention proceedings) 15, 839, 845, 851–854,



859–867, 871, 874, 877–878, 881, 883, 890, 892, 904–905, 909–910, 913, 918, 923–924, 927–928, 945, 1070 interim protection 128, 377, 617, 627, 634, 667, 671, 949 international organizations 6, 175–176, 348, 377, 463, 468–470, 802, 932, 937–938, 1115, 1228, 1235, 1245, 1254–1255, 1258, 1268, Box # 20-1 interpretation of judgments and provisional measures 516, 526, 630, 633, 702–703, 967, 970, 975, 1001, 1006–1007, 1009 Article 60 v. special agreement  Box # 16-4 evolution of Rules Box # 16-3 jurisdiction and admissibility 986–1006 practice Box # 16-1 procedure 964, 971–972, 985, 1010–1022 interpretation of Statute and question of language Box # 3-5 interpretation of submissions 313, 369–370 intervention as a party 882–888, 899, 903, 905–911 intervention under Article 62 of Statute and access to written pleadings  Box # 14-8 in domestic and international law  Box # 14-1 jurisdictional link 873–882, Box # 14-7 jurisdiction and admissibility 852–882 legal effects 899–911 object 867–872, Box # 14-4, Box # 14-6 practice Box # 14-3 procedure 888–898 intervention under Article 63 of Statute admissibility 938–947, 951, 953 and construction of Charter and Statute  Box # 15-2 and provisional measures Box # 15-5 in proceedings on jurisdiction and admissibility Box # 15-4 legal effects 954–958 practice Box # 15-1 procedure 947–954 irreparable prejudice, risk of 642, 651, 659, 663, 670–673, 698, 1009

1332 joinder of preliminary objections to merits 767–769, 783–784, Box # 12-9 joinder of cases 35, 129, 1058–1059, 1070, 1083, 1306 judge ad hoc 38, 110, 144–146, 176, 192–193, 197, 200–201, 203–215, 222–223, 230, 290–293, 340, 354, 371, 430, 546, 567, 701–702, 757–759, 909, 957–958, 1011, 1017, 1059, 1061, 1063, 1065, 1067, 1069, 1071–1072, 1076, 1183, 1189, 1196–1197, 1201–1205, 1214–1215, 1219, 1254, Box # 4-7 judge ad hoc in chamber proceedings  Box # 19-7 judicial decisions and doctrine, as sources of procedural law 139, 150–153 judicial notice Box # 8-1 “jurisdictional link”, in intervention proceedings 873–882, Box # 14-7 jurisdiction and propriety 40, 69–72, 1235–1239, 1262–1263, 1267 as to jurisdiction 728–735, Box # 12-2 See also “compétence de la compétence” appeals 1104, 1115–1118 incidental and interlocutory 125–130 interpretation of judgments 35, 969, 984, 986–989 lack of appearance 761, 1071, 1080, 1083, 1084–1088 perfected by means of acts of procedure ( forum prorogatum) 109–125 questions of in advisory proceedings 1232–1242, 1259–1263 and provisional measures 30–31, 35, 78–80, 122–124, 619–620, 623–638, 684–686, 702, 713–714, 744–745, 746–748, 765, 1007, 1010, 1161 remedies 1120–1121, 1125–1127 title of 12, 20, 40, 54, 67, 74–109, 113, 124–125, 232–234, 237, 241, 245–246, 253–255, 269, 275, 482–483, 599, 623, 724, 743, 745, 755, 778, 881, 887, 1071, 1116, 1121 transferred Box # 2-11 lack of appearance and burden of proof Box # 18-9

Index equality between parties Box # 18-8 jurisdiction 771, 1071, 1080, 1083, 1084–1088 practice Box # 18-5 procedure 1088–1092 evidence 1092–1099 extra-procedural documentation  1100–1104 language choice of 226–228 questions of 319–324 legal disputes 11, 40, 42, 49, 54–65, 68–69, 95, 97, 105, 382, 838, 1006, 1233, 1254, 1262, Box # 2-6 legal effects of advisory opinions 1270–1274 of decisions 575–594 of provisional measures 703–716 of intervention under Article 62 899–911 of intervention under Article 63  954–958 of interpretative decisions 1022 legal interest question of standing 14–24 in intervention procedures 859–867, Box # 14-5 legal question 343, 1228–1229, 1233–1235, 1237–1238, 1253–1254, 1259, 1261–1265 legal representation 223–225 limitations in choice of agent, counsel and advocate Box # 4-9 links between alleged rights and measures requested 651–655, 1009 litigation before chambers 162, 184, 1058, 1182, 1209–1225 live testimony Box # 8-10 locus standi in judicio 10–11 “manifest lack of jurisdiction” 741–745, Box # 12-4 maps 229, 432–434, 546, 1223 meeting with agents 192, 278, 351, 677, 759 memorial 179, 190, 248, 262, 297, 301, 304, 306, 311–312, 343, 364, 427, 469, 524, 737, 747, 750, 753–758, 760, 764–766, 769, 772, 801, 891, 937, 1015, 1021, 1089, 1091, 1094 methods for instituting proceedings 240, 270, Box # 5-6

Index methods for challenging the Court’s jurisdiction 748 minutes 360 modalities of provisional measures  674–686 Monetary Gold doctrine 43, 591, 911–920 naming the case 279–286 new claims 196, 258–263, Box # 13-6 new documents 187, 327–336, 338–339, 380, 415, 427, 435, Box # 6-5, Box # 6-6 non-participation of certain members in case 197, 199 notification of special agreement 34, 111, 187, 218, 232, 241, 270, 276, 748, 822, 979, 981, 1013–1015, 1111 number and order of pleadings 83, 301–311, 765, 1085, 1210 obiter dicta 541, 552, 585, 996–997, Box # 10-5 objections not possessing “an exclusively preliminary character” Box # 12-12 objections presented as a plea in bar 769–770, Box # 12-10 onus probandi 149, 391–402, 425 Optional Clause system 48, 95–109, 599, 728, Box # 2-12 oral proceedings stage 183, 186–187, 220, 223, 227, 296, 312, 319, 329, 330, 333, 336, 339, 348–380, 414–416, 433, 439, 528, 1257–1258, Box # 7-3 orders, format Box # 10-7 originals and photocopies 210–211, Box # 6-3 part of a publication “readily available”  Box # 6-7 parties in same interest 210–211, Box # 4-6, Box # 18-2 parties to cases 24–38, 383, 1162 party-appointed witnesses and experts 439 Permanent Court of International Justice 4, 23, 51, 56, 65, 67, 82, 86, 98, 115, 152–153, 156–157, 161, 165, 167, 211, 214, 237, 259, 541, 577, 579, 700, 708, 710, 738, 845–847, 877, 965, 1000–1001, 1019, 1041–1042, 1113, 1266, 1286–1287 phases of a case and interlocutory proceedings 188

1333 photocopies and originals Box # 6-3 pieces of procedure Box # 4-1 plausible character of alleged rights 651, 659–669, 1009, Box # 11-8 plea in bar, objections presented as 769 pleadings annexes 315, 318, 320–321, 323, 327–328, 330, 413–414, 427, 433 consecutive 304, 306, 309, 801, 822, 1221 contents 311, 757, 799, 801, 890, 1021 number and order of 83, 266, 298, 301–311, 765, 1085, 1210 scope Box # 6-2 simultaneous 306–311, 392, 822, 1221, Box # 6-1 practice, Court’s internal judicial 155, 356, 371–372, 563, 568, Box # 10-2 practice directions 154, 170–172, 174, 218–220, 222, 230, 305, 308–310, 313–314, 318, 321, 333–336, 338–339, 344, 363, 374–376, 380, 392, 415, 436–437, 475, 650, 667, 698–699, 735, 799, 801–802, 1244, 1256–1257, Box # 3-7 pre-adjudicative steps by parties 216 by Court 273 pre-provisional measures 674 preliminary objections  and appointment of judges ad hoc  Box # 12-6 as challenges to the Court’s jurisdiction  724 characterizing 776 entering in General List Box # 12-13 evolution of Rules Box # 12-3 filing of 750 handling of by Court 782, 831 procedure 794–805 preparing for the litigation 138, 216–230 President of the Court 110, 155 n. 47, 175, 198, 210, 218, 274–275, 278, 350, 357, 371, 374, 500, 504–507, 511, 514, 517, 520, 530–531, 545, 549, 571, 675–676, 688, 697, 1136, 1189, 1200, 1209, 1211, 1224, 1270, Box # 3-8 presiding judge 175, 198 prima facie jurisdiction, test of 623–638, 651, 1007, 1085, Box # 11-3, Box # 11-4, Box # 11-5

1334 printing and format, questions of 319 priority of cases 350, 688, 949, 967, 1250 probative value of testimony 447 procedural decisions 143, 174–181 procedural law of the icj, sources 139, 141, 158 procedure advisory proceedings 176 appeals 1117–1118 challenges to jurisdiction 794–805 counter-claims 822–836 general aspects 183 interpretation of judgments 1010–1022 intervention under Article 62 888–898 intervention under Article 63 947–954 lack of appearance 1088–1092 provisional measures 686–703 remedies 1174–1178 revision of judgments 1043–1055 procedural decisions 174–181 production and handling of evidence 410 production of evidence–Box # 8-6, Box # 8-7 propriety and jurisdiction in contentious cases 40, 72, 142, 484, 524, 551 in the exercise of advisory jurisdiction (discretion) 69, 1235–1239, 1259 provisional measures conditions for indication 650 compliance and enforcement 716 contents of arguments Box # 11-13 contents of request Box # 11-9 duration 702 fresh measures 679 in advisory proceedings Box # 20-4 indicated by Court proprio motu 677 legal effects 703 length of proceedings Box # 11-12 modalities of measures 674 other than those requested 678 permissible use of evidence Box # 11-11 practice Box # 11-2 proper object 638–650 prospects of jurisdiction on the merits 623 procedure 686 rationale Box # 11-1 revocation or modification of 680–682 punitive damages Box # 18-17

Index quasi-provisional measures (recommendations) 674, 682 questions of language, printing and format (of pleadings) 319 questions put to parties 185, 371 questions of evidence, lack of appearance 382 n. 1, 389, 391, n. 28, 1092–1099 ratio decidendi 552, 585, 996, 1040 reasoning of decision 549–555, 583, 585, 977 reading of the decision 526 recognition of States or of governments 25 recommendations (quasi-provisional measures) 682–683, Box # 11-10 Registrar 4, 28, 49, 101, 122, 124–125, 155, 164, 174, 176, 192, 218, 223, 240, 247, 254–255, 265, 273–280, 286, 289, 297–298, 320, 322, 331–332, 341–342,355, 358, 360, 362, 372–373, 414–415, 424, 437–439, 469, 491, 495, 503–505, 526, 528, 531, 545, 547, 549, 556, 687–688, 743, 745, 749, 754, 795, 800, 824, 892, 931, 934–935, 937–938, 942, 946–950, 952, 974, 979, 997, 1010, 1015, 1208, 1218, 1264, 1268 rejoinder 304, 306, 311–312, 326, 835 remedies  and provisional measures Box # 11-7 in ILC 2001 Articles Box # 18-14 jurisdiction 1120 procedure 1174 types of 1128 removal from General List 124, 128, 274, 288–289, 480–485 reopening of the oral stage 377–380 replacement of judges 199 reply 262, 301, 304, 306, 311–312, 835 request for advisory opinion 1246–1253 res judicata for the Court Box # 10-12 restitution 417, 671, 1126, 1131–1134, 1139, 1144–1145, 1151, 1161, 1163–1164, 1173 revision of judgments admissibility 1032 conceptual approaches Box # 17-1 “decisive facts” and ratio decidendi  Box # 17-4 evolution of Rules Box # 17-6 “facts” in Article 61 Box # 17-3

Index practice Box # 17-2 procedure 1043 risk of irreparable prejudice 670 Rules of Court 35, 37, 117, 127–128, 140, 142–143, 148, 153–154, 162–170, 176, 180, 183, n. 1, 184, 189, 192, 195, 197–198, 233, 300, 350, 364, 375, 377, 426, 449, 482, 485, 488–489, 670, 688, 735, 784, 907, Box # 3-6, Box # 3-9, Box # 15-3, Box # 15-6, Box # 19-4, Box # 19-8 satisfaction 74, 258, 658, 716, 1128–1135, 1150, 1153, 1156, 1158–1159, 1166, Box # 18-17 secret or confidential material 431 Secretary-General of the United Nations 85, 102, 118, 228, 243, 265, 298, 504, 532, 892, 1256, 1268 Security Council 27–29, 38, 47, 49, 63, 254, 595–596, 600, 602, 604, 606, 608–612, 683, 704, 719–720, 790, 1122, 1217, 1229, 1233, 1239–1241 seisin, concept of 232, Box # 5-2 separate discussion of questions of jurisdiction and admissibility 759–760, Box # 12-7, Box # 12-8 separate and dissenting opinions 150, 563, 572–574 settlement 5–6, 11, 42, 47, 59–61, 64–66, 76, 81–82, 84, 88–92, 97, 109, 128, 156, 165–166, 200, 228, 269, 339, 352, 394, 399, 458, 480, 486–491, 493–496, 499, 501–502, 505–507, 508–510, 514, 516, 520, 541, 580, 603, 607, 640, 643, 705, 709, 838, 842, 847, 907, 943, 946, 1137–1138, 1177, 1227 sources of the procedural law of the icj  139, 141 special agreement 15, 34, 54, 80–89, 109, 111–113, 115, 142, 172, 187, 196, 218, 224, 227 n. 106, 229, 232–233, 240–242, 245, 263 n. 72, Box # 2-9, Box # 5-7, 265–271, 276, 280, 284–285, 289, 298–299, 303, 306–309, 309 n. 36, 310, 325–326, 359, 368, 392, 393, n. 37, 457, 487, 517, 551, 599, 619, 624, 630, 732, 748–749, 822, 863, 877, 890, 892, 894, 897, 979–985, 988–989, 994, 1005–1006, 1013–1015, 1071, 1110, 1112, 1124, 1188, 1209–1210, 1212, 1221

1335 special chambers 1182–1184, 1187–1191, 1193, Box # 19-3 specialized agencies 1227, 1229–1230, 1233 special reference to the Court (appeals) 1104–1118 standard of proof 383, 405–410, 471 standing, question of 14–24, 1031 starting the litigation 137 States parties to cases 24, 27, 34, 230, 350, 383, 596, 1162 members of the United Nations 4–5, 7, 24, 26–27, 30, 118, 276, 597, 608, 1268 parties to the Statute (other than members of un) 5, 7, 24, 27–28, 30, 100–102, 277 entitled to appear before the Court (other than parties to Statute) 4–6, 42, 55, 117–118, 265, 276–277, 284, 341, 517, 532, 730, 753, 824, 840, 890, 934, 936, 950, 1049, 1254, 1255 Statute of the Court 3, 5–7, 11, 15, 24, 26–33, 34–35, 38, 41–43, 48–49, 59, 62, 66–67, 70, 72, 74, 82–83, 92, 97, 100–105, 110, 112, 115, 127–129, 139–140, 156, 168–170, 172, 175, 178, 180, 183 n. 1, 184, 186, 192, 194–195, 212–213, 239, 241–242, 245, 254, 273–275, 277, 297, 324, 348, 364, 383, 385, 388, 411, 414, 426, 439, 449, 457, 475, 481, 489, 526, 537–538, 579, 932, 934–935, 965, 974–976, 986, 995, 1002, n. 90, 1003–1004, 1050, 1108, 1011–1012, 1116, 1019, 1029, 1041, 1043, 1177, 1079, 1084, 1103, 1116–1117, 1177, 1183, 1206–1207, 1215, 1220, 1227, 1229, 1243–1245, 1271, Box # 1-3, Box # 3-4, Box # 12-1, Box # 14-2, Box # 14-11, Box # 18-4, Box # 16-2, Box # 16-4 step in the proceedings 488–489, 491–492, 495, 500–501, 503–504, 506, 1100 submissions 116, 187, 190, 211, 220, 249–250, 260–263, 272, 311–314, 356, 362–370, 377, 384, 396, 400, 444, 530, 539, 550, 555, 587, 648, 657–658, 716, 799, 814, 823, 825, 833–834, 855, 872, 898, 978, 993–994, 1020–1021, 1059, 1061–1062, 1068, 1073, 1096–1097, 1123, 1125, 1127, 1156, 1164, 1170–1171, 1174, 1215 See also “final submissions”

1336 summary dismissal 480–485, 524, 635 n. 37, 741 n. 45 summary procedure, chamber of 184, 538 n. 37, 966, 971, 987–988, 1182, 1183, 1184 n. 8, 1185–1188, 1193–1194, 1212, 1216, 1218–1222 suspension of proceedings Box # 9-5 termination of proceedings, modes of  480–481, 508, 523 “test of preponderance” Box # 2-4 testimonial evidence 426, 438–452 third-party evidence 463 time-limits 176, 183, 188, 191 n. 21, 278–280, 288, 296–302, 344, 411, 469, 521, 547, 562, 694, 737, 758 n. 83, 766, 768, 787, 800–801, 825 n. 47, 827–828, 835, 898, 987 n. 47, 1049, 1088, 1090–1091, 1196–1197, 1212, 1215, 1222, 1258 title of jurisdiction  ad hoc, special agreement 43, 75, 80–89, 877 ante hoc, optional clause system 95–109 ante hoc, treaties and agreements 89 multiplicity of Box # 2-8 post hoc, forum prorogatum 75, 109–125, 245–246 transferred jurisdiction  Box # 2-11 translations supplied by parties 271, 321 n. 69

Index treaties  and conventions, Article 36, para. 1 of Statute 48–49, 89, 97, 1121 multilateral, construction of 576, 931, 937, 942, 1012, 1022 as sources of procedural law 138–142 Trial Smelter case Box # 17-5 types of evidence 426 types of remedies 1128 un Charter, Article 94, para. 2 526, 595, 599, 604–607, 611, 714, 719–720 unilateral arraignment Box # 2-15, Box # 2-16 United Nations organs and agencies authorized to request advisory opinions 1227, 1229–1230, 1243 urgency  in advisory proceedings 1250 in proceedings on provisional measures 207, 350, 516, 672 urgent appeals by President 674 verbatim record 227, 360, Box # 7-2 witnesses 176, 185, 229, 348, 353, 361, 415, 419–421, 426, 431, 438–452, 802, 1060, 1069, 1096, 1098, 1264, 1268, Box # 8-11 written proceedings stage 188, 296–346, 1250, 1258, Box # 6-8