The International Court of Justice 1849462631, 9781849462631

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THE INTERNATIONAL COURT OF JUSTICE The International Court of Justice (in French, the Cour internationale de justice), also commonly known as the World Court or ICJ, is the oldest, most important and most famous judicial arm of the United Nations. Established by the United Nations Charter in 1945 and based in the Peace Palace in the Hague, the primary function of the Court is to adjudicate in disputes brought before it by states, and to provide authoritative, influential advisory opinions on matters referred to it by various international organisations, agencies and the UN General Assembly. This new work, by a leading academic authority on international law who also appears as an advocate before the Court, examines the Statute of the Court, its procedures, conventions and practices, in a way that will provide invaluable assistance to all international lawyers. The book covers matters such as: the composition of the Court and elections, the office and role of ad hoc judges, the significance of the occasional use of smaller Chambers, jurisdiction, the law applied, preliminary objections, the range of contentious disputes which may be submitted to the Court, the status of advisory opinions, relationship to the Security Council, applications to intervene, the status of judgments and remedies. Referring to a wealth of primary and secondary sources, this work provides international lawyers with a readable, comprehensive and authoritative work of reference which will greatly enhance understanding and knowledge of the ICJ. The book has been translated and lightly updated from the French original, R Kolb, La Cour international de Justice (Paris, Pedone, 2013), by Alan Perry, Solicitor of the Senior Courts of England and Wales.

The International Court of Justice Robert Kolb

OXFORD AND PORTLAND, OREGON 2013

Published in the United Kingdom by Hart Publishing Ltd 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com © Robert Kolb 2013 Robert Kolb has asserted his right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above. British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84946-263-1 Typeset by Hope Services, Abingdon Printed and bound in Great Britain by TJ International Ltd, Padstow

Preface My decision to write the present book on the International Court of Justice perhaps needs no justification, but a word of explanation does seem to be in order. The decision came at the confluence of three streams of my work, each of which contributed, in its own way, to making the book an entirely natural outcome, even if not perhaps an inevitable one. First, those considering any major question of international law are, all too frequently, forced to realise that hardly any monographs have been published in recent times dealing in the round with the particular subject in which they happen to be interested. This is even more true of French language publications than of those in English. The dearth of comprehensive texts on particular issues even extends to the International Court of Justice (ICJ) itself. In this context, little need be said here about the Court’s existence and activities. It is surely enough to note that the ICJ is the oldest permanent international jurisdiction to which States can turn for the resolution of inter-State legal disputes. For decades, the Court has been the principal international jurisdiction, the main judicial organ not only of the United Nations but of public international law itself. Its jurisdiction is general rather than specific, in the sense that it extends to all inter-State disputes that are to be decided according to the norms of public international law. No other international tribunal has so general a jurisdiction: all of them are confined to one or more particular fields, such as the law of the sea, financial claims resulting from particular events, human rights and so on. Nowadays, the International Court is ever more frequently in the international spotlight. It is the subject of considerable media comment, by no means all of it accurate. Consequently, it is often the case that people have vaguely heard of the Court, while knowing very little about it. The increasing interest in the Court is in large measure due to the fact that, in recent years, a series of important and highly political questions have been argued before the judges at The Hague. These questions have been wide-ranging, including the request for an opinion on the legality of the threat or use of nuclear weapons; the Genocide case (BosniaHerzegovina v Serbia and Montenegro); the Serbian bombing case (Serbia v ten NATO States); the case between the Democratic Republic of the Congo and Uganda (military activities and occupation); and requests for consultative opinions on the Israeli wall and Kosovo. The Court’s importance can be assessed in both quantitative and qualitative terms. As the principal judicial organ of the United Nations available for the peaceful resolution of legal disputes, both to UN Member States and to non-Members, and thus playing its part in strengthening understanding between States and peaceful international relations, the Court has never been as busy as it is today. This is so despite the fact that public international law is currently going through a period of crisis. The importance of public international law can be assessed by reflecting that the material rules of international law applicable to dispute resolution are only marginally stronger than the mechanisms for dispute resolution existing to give effect to those rules.1 At the end of the day, it is only through the peaceful resolution 1   Rightly, this maxim of equal strength was strongly highlighted by L Caflisch, ‘Cent ans de règlement pacifique des différends interétatiques’ CCHAIL, vol 288 (2001) 261, 270.

vi  PREFACE

of disputes – as to which the Court plays a pivotal part through its central role in interpreting and applying the relevant rules – that international peace, the international order, and a reasonable degree of mutual confidence between States (all obvious preconditions for civilised international relations) can be safeguarded and developed. For this reason, the settlement of disputes is not just a bilateral concern: it is truly a collective interest of the international community. If one takes a medium- or long-term view, unless peaceful dispute resolution is progressively reinforced, the danger is that, sooner or later, international relations may decline into a kind of primitive anarchy. That grim prospect is the exact opposite of the soothing image presented by the Court. Like the two faces of Janus, anarchy and private ‘justice’ present a flaming contrast to the cool orderliness of institutional international law. The implications for our world, if one thinks them through, are deeply sobering. Efforts to strengthen any social order always involve working to develop appropriate law and institutions. This in turn involves improving the mechanisms for the peaceful settlement of disputes, including, where appropriate, by judicial decisions. In all these respects, the international community is no different from a national one. The most important existing studies of the ICJ are indicated in the Select Bibliography. Amongst general treatises on the Court, particularly noteworthy are A Zimmermann, C Tomuschat, K Oellers-Frahm and CJ Tams, The Statute of the International Court of Justice: A Commentary 2nd edn (Oxford, Oxford University Press, 2012); S Rosenne, The Law and Practice of the International Court, 4th edn (2006; 1st edn 1965, 3rd edn 1997); M Dubisson, La Cour internationale de Justice (1964); G Guyomar, Commentaire du Règlement de la Cour internationale de Justice (1983); and, for the Permanent Court of International Justice (PCIJ), which was the ICJ’s predecessor, MO Hudson, The Permanent Court of International Justice, 1920–1942 (1943); AP Fachiri, The Permanent Court of International Justice, 2nd edn (1932); and AS de Bustamante, The World Court (1925). Mention should also be made of the superbly written and highly influential little book by N Politis entitled La justice internationale (1924). In light of the foregoing, it seems appropriate to try to bring together the law on the Court in a single up-to-date study. Second, to speak personally for a moment, I have always had a strong interest in the Court, to the point where, after my doctoral thesis, I made the Court an offer of my services. My interest has not declined with the passing years. After decades of poring over the relevant materials, it seems only natural to draw the threads together in the present study. It is, of course, easy to admit to an interest in the Court as an institution. It is slightly harder to confess also, especially to English-speaking readers, to a taste for legal subtleties. Perhaps the taste is slightly self-indulgent, but at least it is not (at least I hope it is not) carping or quarrelsome. Indeed, it was already there in a favourite thought-game with which I used, in my student days, to entertain myself while rambling in the countryside. I would act out – quite strenuously – the imagined roles of the various players in a five-judge court responsible for deciding disputes. The disputes were invented ones, derived from my personal activities. The game involved applying a sort of personalised law code. I had to think up five different lines of argument, one for each of the five judges; the overall objective was for each judge to shed his own distinctive light on the issues. The game often threw up subtle procedural and substantive issues. And these were no ordinary judges; each represented one of the nobler (or at least more mentionable) organs of the human body. The personalised law code prohibited, amongst other things, any decision prejudicial to the legal position of a third party, recognising, as it did, their equal status and independent standing. Between them, the members of the court ended up developing quite a dense



PREFACE vii

body of jurisprudence on the inadmissibility of questions affecting such third parties. Subsequently, I came across unexpected traces of many of the same ideas in ICJ rulings on cases such as Monetary Gold (1954) and Nicaragua (1984). The five-judge court also developed some rather subtle doctrines on competence and jurisdiction, on the admissibility or rejection of substantive applications, and especially on the relationships between these concepts. Here too, when I subsequently came to study the ICJ’s judgments, I was often reminded of those adolescent country rambles. The sheer richness and complexity of the Court’s procedural law struck chords right away, and although, over time, I have tended to focus increasingly on substantive issues, the music has never entirely died away. In the end, therefore, it seemed entirely reasonable to write a book about the Court. Third, in order to write about the interpretative function in public international law, I needed to re-read, annotate and categorise the whole corpus of international court judgments since 1923, starting with the Wimbledon case at the PCIJ. This overall review of the two world courts’ jurisprudence was an intense and systematic exercise, carried out just a few short years ago. Helpfully, it prepared me for the task now in hand, and has to a considerable extent lightened my load. In a sense, the writing of this book provided a means of profiting from that still fairly recent work, before its form and shape faded across the horizon of time. Three points remain to be made, one on style, one on the way the material is presented, and one the expression of gratitude. In writing this book I have found it impossible to make any real concession about the use of the necessary technical vocabulary, both procedural and substantive. To that extent, the book is aimed, not at interested members of the general public, but at lawyers (or those aiming to become lawyers), especially international lawyers. Nevertheless, of course I have tried to use the most simple and direct language and grammar possible, avoiding obscurity wherever I can. It is all too easy to forget that unnecessarily complex or luxuriant language is bound to be harmful, not only to style, but also to the substantive thinking itself. There is more than a grain of truth in the saying that the wise think like lawyers, but speak like peasants. As to the presentation, I decided, from the outset, not to load the text with too many footnotes. They would be out of place, and, given the work’s overall length, it is essential to eliminate anything that would make it longer still. To compensate for this, I have included a fairly extensive bibliography, designed to facilitate reference to the legal literature on the Court. And of course the books and articles in the bibliography, in their turn, contain a plethora of general and specific bilbliographical information. I have deliberately adopted a selective approach to the handling of material, trying to be fairly comprehensive in at least a relative sense, but not attempting to cover all possible questions. This approach has inevitable dangers, but was unavoidable if the book was to be kept within reasonable bounds. However the detailed studies cited above, and in particular the Commentary on the Statute of the International Court of Justice, supply much of the material omitted here. The topics this book deals with are the ones which seem to me to be important in debate and in practice. At the same time, I have managed to make space for a number of topics that are rarely discussed, each an interesting legal question and a pioneering exploration of which seems likely to be useful, even if, at least for the time being, the practical applications are limited. Here and there, I have also included occasional digressions into, or developments of, work I had done previously. Sometimes, where it seems helpful, readers are cross-referred to other passages in this book, but on other occasions (I confess that their number is fairly

viii  PREFACE

large, perhaps too large), it has seemed preferable to repeat the substance of a point already made. Of course repetition can be inherently undesirable. But in a book as long and detailed as this, which the overwhelming majority of readers will be using as a reference work to consult as and when a specific problem arises (rather than to read uninterruptedly from start to finish), it is often helpful to repeat particular elements, so that all the relevant arguments are immediately before the reader. If any hardy soul is prepared to read the book from end to end, he will, I hope, excuse the seemingly redundant repetitions. My particular thanks are due to Sandra Krähenmann, who did most of the work on the bibliography, and to Marianne von Senger, whom I cannot thank adequately for having, once again, taken on the heavy burden of re-reading the whole text with a view to eliminating the numerous errors that had escaped me. My particular thanks are also due to Alan Perry, a practising English lawyer with considerable experience of boundary delimitation by the Court, who has translated this extensive work into English. I can easily imagine the many painstaking hours spent seeking the most apposite ways to translate subtle shades of meaning and a wide range of complex concepts from French, which is so different in expression, character and historical development, into the characteristic sobrieties of English legal prose. However, time having passed since the writing of the French text of this treatise, the author took the opportunity to make some additions in the present English text. Finally, two technical points of explanation. Where the bound version of the ICJ Reports has already been published, citations of the Court’s judgments indicate the relevant page numbers. Where the bound version has not yet come out, references are to the relevant paragraphs. I have done this because nowadays it seems unlikely that, prior to the publication of the bound texts, readers will have before them the individual fascicules published by the Court as it goes along; they are much more likely to have accessed the report via the Court’s website. Finally, as to the timing of publication, this book takes account of the Court’s jurisprudence up to the Diallo decision of 30 November 2010. Some subsequent pronouncements of the Court are nevertheless included, on a limited basis, where this has been possible. Robert Kolb Geneva 16th April 2013

Table of Contents Preface v List of Abbreviations xix Table of Cases xxi Table of Legislative and Related Acts xxxi I)  Initial Observations on the Peaceful Resolution of International Disputes 1

1.  Importance and Context 1 a) Disputes are Normal, but Give Rise to Various Dangers 1 b) Ways of Containing Disputes within the Margins of Internationally Acceptable Behaviour 2 c) Nineteenth-Century Mechanisms for Dealing with Disputes 3 d) The Emergence of International Law on the Peaceful Settlement of Disputes 7 e) The Peaceful Settlement of Disputes as a Collective Interest 9 f) Relative Weakness of the Law on the Peaceful Settlement of Disputes 11 g) Consent as a Governing Principle of Dispute Resolution 14 h) Procedures for the Peaceful Settlement of Disputes 17 2.  Chapter VI of the United Nations Charter 19 a) Links between the Peaceful Settlement of Disputes and Non-recourse to the Use of Force Further Examination) 19 b) Types of Dispute Envisaged by the Charter 21 c) A Duty to Seek a Solution to the Dispute? 23 d) The Field to which Chapter VI Applies (Articles 33 et seq) 24 e) Seising the Organs of the UN 28 f) Action by the Security Council or the General Assembly 30 g) Overall Summary 35

II)  Origins and Environment of the International Court of Justice at The Hague 39 1. Arbitration and Organised Justice: Creation of the Permanent Court of International Justice in 1920 a) From Arbitration to International Justice b) Difference between Arbitration and International Justice 2. The Transition in 1945 from the Permanent Court of International Justice to the International Court of Justice a) Reasons for Dissolving the PCIJ b) The Process of Creating the ICJ c) Establishment of the ICJ

39 39 45 51 51 53 58

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3. The International Court of Justice as the Principal Judicial Organ of the United Nations and of Public International Law a) The Court as the Principal Judicial Organ of the United Nations b) The Court as Organ of Public International Law 4. The Main International Jurisdictions based at The Hague a) Other International Tribunals b) A Digression: Definition of ‘International Tribunal’ III)  The Texts Governing the Court’s Activities 1. Constitutive Texts: The Statute and the Charter a) The Significance of Constitutive Texts b) Peremptory Character of the Statute c) Revision of the Statute d) Denouncing or Withdrawing from the Statute e) Participation in the Statute by States which are not UN Members 2. The Rules: Derivative Provisions a) What are the Rules? b) Peremptory Character and Modification of the Rules c) Subordination to the Statute 3. Subordinate Texts: Practice Directions a) Reasons for Issuing Practice Directions b) Content of Practice Directions

59 59 65 67 67 69 77 77 77 80 86 88 93 96 96 99 101 105 105 106

IV)  Composition of the Court 109 1. The Bench 109 a) Fifteen Judges 109 b) Nationalities of the Judges 110 c) Judges from States that are not UN Members 111 d) Personal Qualities of the Judges 111 e) Representation of the Main Forms of Civilization and the Principal Legal Systems of the World 113 f) Ad hoc Judges 118 g) Irremovibility, Resignation and Incompatibility of Judges 132 h) Quorum 137 2. Electing the Judges 138 3. Chambers of the Court 142 a) General Observations 142 b) Types of Chambers 143 c) Relations between the Chambers and the Court 145 d) Jurisdiction of Chambers 146 e) Functioning and Procedure 150 4. The Registry 154



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V) Contentious Procedure: Inter-State Disputes 159 1. First Steps in a Case 159 a) Seising the Court 159 b) Conditions for the Validity of the Document Initiating the Proceedings 164 c) The Court’s Non-formalist Attitude to the Requirements for Starting a Case 165 d) Cases Brought by Non-parties to the Statute 171 e) Recommencing a Case 174 f) Striking from the Court’s List 177 g) Effects of Starting Proceedings 179 h) Amendment of Initial Claims/Requests 180 i) The Court’s Inherent Power to Decide the True Scope of a Claim 188 2. Discontinuing a Case 190 a) The Object of Discontinuance and the Provisions of the Rules 190 b) Formal Requirements for Discontinuance 193 c) The Court’s Practice 193 d) Effects of Bilateral Character of Discontinuance 195 e) The ‘Final’ Nature of a Discontinuance 196 f) The Parties’ Agreement to a Discontinuance is Binding on the Court 197 g) Discontinuance by Virtue of Argument or Pleading? 197 3. Validity of Seising the Court, Jurisdiction of the Court and Admissibility of an Application 199 a) Is the Court Validly Seised? (renvoi) 200 b) The Distinction between Jurisdiction and Admissibility 200 c) The Distinction between Competence and Jurisdiction 211 d) The Distinction between General and Special Competence and General and Special Admissibility 212 e) The Personal, Material, Temporal and Spatial Spheres of Competence and Admissibility 214 f) Questions relating to Competence 215 g) Questions of Admissibility 219 4. Preliminary Objections 224 a) Definition of a Preliminary Objection 224 b) Preliminary Objections and Substantive Defences 226 c) Formalities for Presenting Preliminary Objections 228 d) Effects of Preliminary Objections: Scope of Decisions 235 e) The Not-exclusively-preliminary Character of an Objection (the Old ‘Joining to the Merits’) 240 f) The Priority of Preliminary Objections to Jurisdiction over those relating to Admissibility and the Priority of Preliminary Objections of a Peremptory Nature over Other Ones 247 g) The Principle that the Court is Free to Choose the Order in which it examines Objections in the Same Category 251 h) Objections that are Necessarily ‘Pre-preliminary’? 252 i) Objections necessarily ‘post-preliminary’ (ie objections which in reality are by their very nature defences on the merits)? 256

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5. Personal Jurisdiction (ratione personae): Who can Appear before the Court as a Party? 259 a) General Aspects 259 b) ‘Only states . . .’, Article 34, Paragraph 1 of the Statute 263 c) Participation by International Organisations in Exchanges of Information: Paragraphs 2 and 3 of Article 34 276 d) Member States of the United Nations which are ipso facto Parties to the Statute, Article 93, Paragraph 1 of the Charter and Article 35, Paragraph 1 of the Statute 280 e) States which are not UN Members but are parties to the Statute, Article 93, Paragraph 2 of the Charter and Article 35, Paragraph 1 of the Statute 285 f) States which are not Parties to the Statute, Article 35, Paragraphs 2 and 3 of the Statute 285 g) Effect of Non-recognition of a State 295 6. Subject-matter Jurisdiction (ratione materiae): Which Cases can the Court Decide? 297 a) The Concept of Subject-matter Jurisdiction 297 b) Existence of a Dispute 300 c) Legal nature of a Dispute 319 d) Digression: The Old Distinction between Justiciable Disputes (Legal) and Non-justiciable Ones (Political) 332 e) The Application of Public International Law to Disputes 336 f) Judgment ex aequo et bono 360 7. Consensual Jurisdiction (ratione consensus): When can the Court decide a Case? 370 a) The Concept and Place of Consensual Jurisdiction 370 b) Consent through Bilateral or Unilateral Acts. Optional and Compulsory Jurisdiction. Consent Prior to or After the Start of a Dispute 375 c) The Absence of Formalism 380 d) Exceptions to the Principle of Consent? 382 e) First Head of Jurisdiction: Treaties for the Peaceful Resolution of Disputes 395 f) Second Head of Jurisdiction: Compromissory Clauses 409 g) Third Head of Jurisdiction: The Optional Clause of Compulsory Jurisdiction 447 h) Fourth Head of Jurisdiction: Special Agreements 530 i) Fifth Head of Jurisdiction: The forum prorogatum 546 j) The Overall Position 559 8. Freedom to use Some Other Mode of Dispute Resolution even where there is ‘Compulsory Jurisdiction’ 562 9. Limitation of the Court’s Jurisdiction if the Subject of the Dispute affects the Rights and Obligations of Third States which have not Consented to it 565 a) General Aspects 565 b) Exercise of Jurisdiction Generally Prevented: the Monetary Gold Principle 567 c) Inadmissibility of Applications affecting the Legal Interests of Third Parties? 576 d) Specific Duty to take account of the Rights and Obligations of Third Parties: Jurisprudence on Boundary Delimitation 577 10. Concurrent Titles of Jurisdiction 583



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11. ‘Transitional’ Jurisdiction under Article 36, paragraph 5, and Article 37 of the Statute 589 a) General Considerations 589 b) Article 36, paragraph 5 591 c) Article 37 597 12. Jurisdiction as to Jurisdiction 601 13. The Principle of the Forum Perpetuum or Perpetuatio Fori 606 14. Provisional Measures of Protection 611 a) General Aspects 611 b) Historical Aspects 614 c) The Purpose of Provisional Measures 616 d) Material Conditions for the Indication of Provisional Measures 621 e) Procedure for the Indication of Provisional Measures 633 f) Effects of Provisional Measures 638 g) Provisional Measures in Advisory Opinion Cases 650 h) The Role of the Security Council in the Context of Provisional Measures 652 i) ‘Positive’ or ‘Negative’ Derogation from the Power under Article 41 of the Statute? 657 15. Counterclaims 658 a) Concept and General Aspects 658 b) Conditions for the Acceptance of a Counterclaim 663 c) Procedural Aspects 673 d) Compatibility with the Statute of the Rules and Judicial Practice 676 16. Default Procedure 677 a) General Features 677 b) Field of, and Conditions for, the Application of Article 53 681 c) Particular Obligations under Article 53, Paragraph 2 of the Statute 685 d) Particular Aspects 690 17. Intervention by Third States 694 a) General Features 694 b) Intervention under Article 62 of the Statute 703 c) Intervention under Article 63 of the Statute 730 18. The Power to Pronounce a non liquet 743 19. Judgments and Orders by Consent 751 20. Declaratory Judgments 755 21. Effects of the Decision 760 a) Definitions and Conceptual Features: The Force of res judicata, Binding Character of the Judgment and its Execution 760 b) Legal Scope of Article 59 of the Statute 763 22. Interpretation of the Judgment 776 a) General Features 776 b) Conditions for Interpretation 778 c) Procedure 792 d) Imperative Character of Article 60 798

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23. Revision of a Judgment 802 a) General Features 802 b) Requirements for Revision 807 c) Procedure 819 d) Imperative Character of Article 61 826 24. Implementation of the Judgment 828 a) General Observations 828 b) The Parties’ Obligation to Execute the Judgment (Article 94, paragraph 1 of the Charter) 835 c) Mechanisms for Forcing Compliance with a Judgment (Article 94, paragraph 2 of the Charter) 839 d) Overview and Perspectives 860 25. The Court’s Competence as an ‘Appellate’ Body (Supervisory Jurisdiction) 863 a) General Points, including Typology 863 b) Value and Dangers of the Court’s ‘Appellate’ Proceedings 870 c) Jurisdiction and Procedure 871 d) Degree of Cognisance 875 e) Overview 878 26. Jurisdiction to Review the Legality of Acts of Other United Nations Organs, particularly the Security Council 879 a) General Aspects 879 b) History of the Question 882 c) Arguments for and against Judicial Review 892 d) Competences within the UN System 896 e) Modalities of Review by the Court 897 f) Effects of the Court’s Pronouncement 910 g) Perspectives 912 27. The Competence of the Security Council to order a Party not to Seise the Court 913 VI)  General Principles applicable to Contentious Proceedings 917 1. The Principle ‘ne eat judex ultra petita partium’ 919 a) Definition, Nature and Scope of the Principle 919 b) Limitations of the Principle 923 c) Action infra petita 926 2. Questions concerned with Establishing the Facts, in particular the Burden of Proof 928 a) General Aspects 928 b) The Principle of Free Assessment of the Evidence 930 c) The General Rule ‘onus probandi incumbit actori’ 931 d) Limitations to the General Rule on Burden of Proof 933 e) The Principle that the Parties must Cooperate with the Court to establish the Relevant Facts 942 f) Standard of Proof 944



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3. The Parties’ ‘Duty of Loyalty’ inter se 945 a) General Aspects 945 b) The Duty of Loyalty derived from the Principle of Good Faith 946 c) Prohibition of Abuse of Process 947 d) Estoppel 949 e) The Maxim ‘nemo ex propria turpitudine commodum capere potest’ (No-one can profit from his own wrongdoing) 951 VII) Procedural Aspects of Contentious Cases 953 1. The Concept and Purpose of ‘Procedure’ 953 2. The Various Stages of the Procedure, from the Application to the Decision (Seising the Court, Written Phase, Oral Phase, Deliberation, Judgment) 956 3. The Agents of the Parties 983 4. Orders of the Court 987 5. The Languages of the Court 990 6. Public Character of the Proceedings 993 7. Joinder or Consolidation of Cases 997 8. Costs 1002 9. The Process of Judicial Decision-making 1006 10. Individual and Dissenting Opinions 1011 VIII)  Advisory Opinion Procedure: Opinions given to certain Organs of, or Affiliated to, the United Nations 1. What is an Advisory Opinion? a) Concept and Function of an Advisory Opinion b) Texts Governing the Advisory Function c) Origins of the Advisory Function in the Days of the PCIJ d) From the PCIJ to the ICJ e) Questions of Jurisdiction and Admissibility in the Context of Advisory Opinion Cases 2. Seising the Court: Who can Request an Advisory Opinion? a) Authorised Organs b) Organs which have not been Authorised: the Secretary-General c) Entities that are not Authorised: States d) Persons not Authorised: Individuals 3. The Court’s Jurisdiction: When can the Court give an Advisory Opinion? a) General Aspects b) Authorisation of the Requesting Organ c) The ‘Legal Question’ d) Consent of the Parties when a Request is made for an Advisory Opinion on a Currently Pending Dispute between Them e) Interpretation and Reformulation of the Question by the Court 4. Admissibility of the Request: What Conditions must it Satisfy? 5. The Non-existent Discretionary Character of the Opinion: Is the Court Bound to Render One?

1019 1019 1019 1022 1026 1030 1032 1037 1037 1049 1050 1057 1057 1057 1058 1061 1069 1077 1081 1083

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a) State of the Jurisprudence b) Travaux Préparatoires and Texts c) Legal Doctrine d) The Concept of a ‘Discretionary Power’ e) Critique of the Idea that the Court has a Discretionary Power 6. Legal and Political Effects of Advisory Opinions a) General Effects of Advisory Opinions b) Binding and Executory Advisory Opinions 7. Procedure for Advisory Opinions a) General Aspects b) Steps in the Procedural Process c) Miscellaneous Questions 8. Overall Assessment

1083 1083 1084 1086 1091 1094 1094 1100 1102 1102 1103 1112 1116

IX)  General Principles governing the Court’s Contentious and Advisory Procedures 1119 1. The Fundamental Principle of Equality as between the Parties a) General Considerations b) Equality as a Constitutional Principle c) Equality as a Principle of Reciprocity d) Equality as a Procedural Principle 2. The Maxim concerning the ‘Proper Administration of Justice’ a) General Observations b) Specific Functions of the Principle c) General Function of the Principle: Limits of Judicial Integrity (Negative Aspect) and Balancing of Interests (Positive Aspect)

1119 1119 1121 1123 1124 1127 1127 1128 1136

X)  The Court’s Jurisprudence and its Current Trends 1139 1. The Court’s Contribution: The Development of a ‘Jurisprudence’ 1139 2. General Overview: Jurisprudential Phases and Major Decisions 1144 a) Particular Features of the PCIJ’s Jurisprudence 1144 b) The ICJ: General Considerations 1147 c) First Phase of the ICJ’s Activities: Dynamism and Internationalism (1947–62) 1149 d) The ICJ’s Second Phase: Proceduralist Jurisprudence and a Trend towards Stagnation (1966–86) 1152 e) Third Phase of the ICJ: Renaissance and Hyperactivity (1986–the Present Day) 1155 3. The Handling of Precedents and the Technique of Distinguishing Them 1162 4. Techniques of Judicial Activism and Judicial Restraint 1174 XI)  Miscellaneous Questions 1183 1. The Court’s Publications 2. The Court’s Finances

1183 1187



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3. 4. 5. 6. 7.

Diplomatic Privileges and Immunities of Members of the Court The Court’s Extra-judicial Activities The Court and the Wider Public Relations between the Court and Other International Courts and Tribunals The Question of Reforming the Court

1191 1193 1197 1199 1204

XII)  Conclusion: The Future of the International Court of Justice 1211 Annex to the Conclusion Annex I: The Statute Annex II: The Rules Annex III: Practice Directions

1218 1223 1237 1269

Select Bibliography

1275

Index

1283

List of Abbreviations AFDI Annuaire français de droit international AIOC Anglo-Iranian Oil Company AJIL American Journal of International Law AJPIL Austrian Journal of Public International Law Ann IDI Annuaire de l’Institut de droit international (Yearbook of the Institute of International Law) ASDI Annuaire suisse de droit international ATF Arrêts du Tribunal federal (Suisse) AVR Archiv des Völkerrechts BYIL British Yearbook of International Law CCHAIL Collected Courses of The Hague Academy of International Law CFIEC Court of First Instance of the European Communities CJEC Court of Justice of the European Communities CNUOI Conférence des Nations Unies sur l’Organisation Internationale CYIL Canadian Yearbook of International Law DRC Democratic Republic of the Congo ECHR European Convention on Human Rights ECOSOC Economic and Social Council ECOWAS The Economic Community of West African States EJIL European Journal of International Law EPIL Encyclopedia of Public International Law FAO Food and Agriculture Organization FRY Federal Republic of Yugoslavia FCN Treaty 1956 Treaty of Friendship, Commerce and Navigation GYIL German Yearbook of International Law HC Hague Convention IAEA International Atomic Energy Agency IBRD International Bank for Reconstruction and Development ICAO International Civil Aviation Organization ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICLQ International and Comparative Law Quarterly ICTY International Criminal Tribunal for the former Yugoslavia IDI Institut de droit international IIL Institute of International Law ILA International Law Association ILC International Law Commission ILM International Legal Materials ILO International Labour Organization ILOAT Administrative Tribunal of the International Labour Organization ILQ International Law Quarterly ILR International Law Reports

xx  LIST OF ABBREVIATIONS

IMCO Inter-Governmental Maritime Consultative Organization IMF International Monetary Fund IMO International Maritime Organization IOLR International Organizations Law Review IR Instructions to the Registry IRRC International Review of the Red Cross ITU International Telegraphic Union IUHEI Institut universitaire de hautes études internationales JDI Journal du droit international MAT Mixed Arbitral Tribunal NAFO Northwest Atlantic Fisheries Organization NAFTA North American Free Trade Agreement NATO North Atlantic Treaty Organization NGO Non-governmental organisation NILR Netherlands International Law Review NTIR Nederlands Tijdschrift voor Internationaal Recht NYIL Netherlands Yearbook of International Law OAU Organisation of African Unity ÖZöR(V) Österreichische Zeitschrift für öffentliches Recht (und Völkerrecht) PCA Permanent Court of Arbitration PCIJ Permanent Court of International Justice PD Practice Direction RBDI Revue belge de droit international RCADI  Recueil des cours de l’academie de droit international RDI Rivista di diritto internazionale RDILC Revue de droit international et de legislation comparée REDI Revista española de derecho internacional RGDIP Revue générale de droit international public RHDI Revue hellénique de droit international RIAA Reports of International Arbitration Awards (French: RSA, Recueil des sentences arbitrales) RSDIE Revue suisse de droit international et de droit européen SG Secretary-General UN United Nations UNAT United Nations Administrative Tribunal UNCIO United Nations Conference on International Organization UNESCO United Nations Educational, Scientific and Cultural Organization UNGA United Nations General Assembly UNTC United Nations Treaty Collection UPU Universal Postal Union WIPO World Intellectual Property Organization WMO World Meteorological Organization WHO World Health Organization Yb Yearbook YbILC Yearbook of the International Law Commission ZaöRV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht ZöR Zeitschrift für öffentliches Recht

Table of Cases Access to, or anchorage in, the port of Danzig, of Polish war vessels (1931)..........1077, 1109 Accordance with international law of the unilateral declaration of independence in respect of Kosovo (2010)...........................268, 903, 910, 922–3, 1032, 1038, 1058, 1060, 1063, 1076, 1078, 1080, 1082–4, 1110, 1118, 1161 Acquisition of Polish nationality (1923)...........................................................729, 1034, 1117 Admissibility of Hearings of Petitioners by the Committee on South West Africa (1956)....................................................................................................................1097 Aerial incident of 3 July 1988 (1989/1996)................................................... 195, 231, 279, 391 Aerial incident of 4 September 1954 (1958).........................................................................160 Aerial incident of 7 November 1954 (1959).........................................................................160 Aerial incident of 7 October 1952 (1956).............................................................................160 Aerial incident of 10 August 1999 (2000)....................... 216, 251–2, 396, 453, 493, 948, 1159 Aerial Incident of 10 March 1953 (1956).............................................................................160 Aerial incident of 27 July 1955 (UK v Bulgaria, USA v Bulgaria and Israel v Bulgaria, 1959/60).....................194, 218, 251, 279, 358, 452, 509, 513, 528, 591, 596, 924, 993, 1018 Air services agreement (USA v France, 1978)......................................................................640 Alabama (1874).................................................................................................. 6, 338, 603, 605 Ambatielos (1952/53)....................................................................... 207, 216, 220–1, 242, 372, 413, 422, 432, 436, 442, 866, 948 Andean frontier between Chile and Argentina (1902)......................................................1174 Anglo-Iranian Oil Co (1952)...........137, 216–18, 220, 371, 452, 464, 466, 480–1, 491–3, 496, 506, 521, 550, 553–4, 618, 620, 623, 628, 637, 641, 655, 680, 845–7, 859, 913, 924, 1150, 1195, 1216, 1218–22 Antarctica (UK v Argentina, 1956).......................................................................................160 Antarctica (UK v Chile, 1956)...............................................................................................160 Appeal relating to the jurisdiction of the ICAO Council (1972).............................................................................216, 227, 279, 320, 413, 421, 433–4, 585, 866, 870, 872, 876, 878, 1133 Appeals from certain judgments of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (1932/33)............................................................... 194, 216, 349–50, 413, 734, 998 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, ICJ Reports 1989......................................1062, 1083–4 Applicability of the obligation to arbitrate under Section 21 of the Agreement of 26 June 1947 on the Headquarters of the United Nations Organisation (1988)................................................................................. 302, 307–8, 446, 651, 1049, 1075 Application for review of Judgment No 158 of the UNAT (1973)..................................................................275, 324, 868, 920, 1047, 1063, 1082, 1123 Application for review of Judgment No 273 of the UNAT (1982)........................................................................... 868, 1058, 1079, 1082, 1084, 1122–3 Application for review of Judgment No 333 of the UNAT (1987)............................868, 1083

xxii  TABLE OF CASES

Application of the 1902 Convention on the Guardianship of Minors (Netherlands v Sweden, 1958)...................................................................................338, 452 Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Yugoslavia, Serbia and Montenegro, 1993-2007)...............................................135, 167–9, 187, 198, 216–17, 220, 223, 227, 232, 238–9, 246, 253–4, 260, 263, 274, 293, 296, 302, 315, 318, 359, 413, 422, 425, 433, 438, 541, 554–5, 562, 619, 628, 635, 645, 650, 655, 659–62, 669, 671, 675, 807, 810–12, 816, 820–1, 823, 827, 891, 899, 920, 940, 943–4, 948, 976, 1125, 1131, 1176, 1178–9, 1204 Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia, 2008)......................................... 168, 173, 216–18, 239, 245–6, 248, 253–5, 260, 293, 413, 940, 1134, 1179 Application of the Convention on the elimination of all forms of racial discrimination (Georgia, v Russian Federation, 2011)......................................................................413, 446 Application of the Interim Accord of 13 September 1995 ( Former Yugoslav Republic of Macedonia v Greece, 2011)...........................................................................................413 Arbitral award by the King of Spain dated 23 December 1906 (1960)................................................................................................. 532, 535, 558, 867, 877 Arbitral award of 31 July 1989 (Guinea-Bissau v Senegal, 1991)........................................................................221, 452, 603, 627–8, 867, 873, 878, 948 Arbitration Commission Eritrea/Ethiopia, Western and Eastern Fronts (2005)................935 Armed activities in the territory of the Congo (RDC v Rwanda, 2001/2002/2006)................ 195–6, 217, 372–3, 381, 413, 426, 453, 501, 555, 574, 619, 624, 628, 649, 653, 662, 674, 862, 925, 941, 970, 1132, 1159, 1162, 1177 Armed boundary and transboundary activities (Nicaragua v Costa Rica, 1987)...............194 Aroa Mines (1903).................................................................................................................365 Arrest Warrant of 11 April 2000 (2002).................181, 184, 219–21, 250, 302, 553, 631, 1158 Artico (1980)..........................................................................................................................392 Australia/Salmon (1998)......................................................................................................1132 Avena and other Mexican nationals (2004)................................... 183, 186, 218–21, 223, 227, 233, 302, 311, 413, 627, 630, 776–7, 780, 783–5, 790–2, 796–7, 838, 948, 966 Ayadi (2006)...........................................................................................................................887 Bankovic (2001).........................................................................................................1164, 1179 Banque d’Orient v Government of Turkey (1928)...............................................................939 Barberà, Messegué and Jabardo (1988)................................................................................392 Barcelona Traction (1962, 1970)........... 98, 103, 174, 194, 196, 217–20, 241, 243–5, 349, 392, 396, 529, 595, 598, 601, 761, 920, 924, 948, 957, 992, 1126, 1129, 1131, 1149, 1152, 1167–8, 1185 Beagle Channel (1977)...........................................................................................................365 Belilos v Switzerland (1988)..................................................................................................499 Blaskic (2000/2004).............................................................................................................1173 Borchgrave (1937/38).........................194, 216, 220, 227, 229–30, 535, 588–9, 753, 992, 1146 Border and transborder armed actions (Nicaragua v Honduras, 1988/1992)................................................................ 167, 194, 221–2, 279, 307, 314, 323–4, 331, 374, 396, 398, 401, 585, 588, 934–5, 940, 948 Bosphorus (1966)...................................................................................................................887



TABLE OF CASES xxiii

Boundary between Colombia and Venezuela (1891)...........................................................339 Boundary between Guatemala and Honduras (1933).........................................................339 Boundary dispute (Bénin v Niger, 2005).................................................. 145, 535, 1005, 1161 Boundary dispute (Burkina Faso v Mali, 1985-86)................. 116, 145–7, 190, 341, 345, 348, 364, 367, 372, 535, 563, 569, 579, 581, 618, 628, 633, 936, 941, 991, 1128, 1157, 1161, 1216 Bozano (1986)........................................................................................................................392 BP Exploration Co (Libya) Ltd v Libya (1974)..................................................................1195 Brazilian loans (1929)....................................... 66, 218, 269, 336, 341, 349, 351, 355, 534, 935 Brcko Zone arbitration (1997)..............................................................................70, 369, 1195 Breard (1998)................................................................................................. 627, 630, 646, 739 Bricmont (1989)....................................................................................................................392 British Guiana........................................................................................................................345 Campbell (1931)....................................................................................................................197 Campbell and Fell (1984)......................................................................................................392 Castellorizo (1929/1933)....................................................................... 193, 287, 535, 753, 984 Certain criminal proceedings in France (DRC v France, 2010)................................195, 1125 Certain expenses of the United Nations (1962).......................61, 64, 330, 751, 876, 878, 886, 890, 901, 907–8, 1021, 1032, 1036, 1038, 1061, 1063, 1066, 1078, 1083–4, 1092, 1098–9, 1117, 1151–2, 1180 Certain German interests in Polish Upper Silesia (1925)............... 84, 166, 169, 219–20, 222, 233, 289, 293, 313, 318, 336, 349–50, 412, 432–3, 757, 759, 764, 935, 940, 978, 992, 997, 1054, 1202 Certain Norwegian loans (1957)................................................................. 182, 196, 216, 1143 Certain phosphate lands at Nauru (1992)................... 183–4, 196, 208, 216, 221–3, 248, 372, 452, 571–3, 575, 577, 699, 948, 1132, 1159, 1170 Certain Property (Liechtenstein v Germany, 2005)............216, 219, 302, 396, 401, 422, 1159 Chamizal (1911)...................................................................................................................1163 Chrysostomos et al v Turkey (1991).....................................................................................500 Ciulla (1989)..........................................................................................................................392 Committee of United States Citizens Living in Nicaragua v RW Reagan (1988)...............839 Compagnie des Chemins de fer d’Ouglin (1926)................................................................939 Compagnie du port, des quais et des entrepôts de Beyrouth et de la Société Radio-Orient (1960)..................................................................................................192, 194 Competence of the General Assembly for the admission of a State (1950)........................................................................330, 901, 1041, 1063, 1078, 1098, 1151 Competence of the ILO (1926)...................................................................................322, 1117 Conditions of admission of a State to membership in the United Nations (1948)............................ 324, 901, 1032, 1038, 1041, 1062–3, 1065, 1098, 1104, 1109, 1151 Constitution of the Maritime Safety Committee of the Intergovernmental Maritime Consultative Organization (1960)..........................................................................901, 1066 Continental shelf (Libya v Malta, 1985).................................. 347–8, 535, 544, 578, 696, 699, 703–4, 713, 726–7, 920, 927, 973, 1153 Continental shelf (Tunisia v Libya, 1981-85)........... 62, 85, 120, 122, 124, 321, 341, 343, 347, 366–7, 371, 535, 545, 579, 697, 700, 703–4, 710, 721, 724, 758–9, 768, 773–7, 779, 782–3, 788, 791, 794–6, 799–800, 807,811, 815, 817, 823, 978, 996, 1055–6, 1153

xxiv  TABLE OF CASES

Continental shelf in the Aegean Sea (1978)..........................122, 216, 220, 251, 302, 391, 396, 404–5, 492, 496, 540, 543, 545, 622, 626, 628, 636, 680, 683, 685–6, 689, 756, 1056, 1154, 1159 Continental shelf of the Mer d’Iroise (1977)........................................................................768 Corfu Channel (1947-1949).................... 33, 124, 160–2, 165, 221, 230, 233, 237, 239, 288–9, 292–3, 371–2, 381, 390, 535, 541, 543, 545, 548, 550, 559, 567, 680, 686, 688–9, 693, 769, 840, 842–3, 861, 920–1, 923, 926, 937, 939, 944, 977, 1149, 1188 Corigliano (1983)...................................................................................................................392 Crown Prince Gustaf Adolf (1932).......................................................................................197 Customs regime between Germany and Austria (1931)....................................129, 922, 1038 Danzig Legislative Decrees (1935).............83, 336, 350–1, 355, 1061, 1087, 1108, 1112, 1123 De Jong, Baljet and Van den Brink (1984)............................................................................392 De Wilde, Ooms et Versyp (1971).........................................................................................392 Demir and others (1998).......................................................................................................392 Denunciation of the Sino-Belgian Treaty of 2 November 1865 (1927/1929).................................................................... 194, 452, 616, 629, 634–5, 680, 983 Designation of the Workers’ Delegate for the Netherlands (1922)...................................1117 Deweer (1980)........................................................................................................................392 Diallo (Republic of Guinea v Democratic Republic of the Congo, 2007-2010)......................................................184, 208, 219–20, 228, 350, 453, 938–9, 1216 Dispute concerning navigation and related rights (Costa Rica v Nicaragua, 2009)........................................................................................................... 230, 453, 557, 848 Diversion of water from the Meuse (1936-37).....................................................452, 662, 669 East Timor (1995)....................................................186, 202, 211, 219–20, 279, 302, 307, 372, 452, 502, 573–4, 576, 899, 1016–17, 1157–8 Eastern Carelia Advisory Opinion (1923)............................... 70, 371, 759, 1058, 1068, 1070, 1075–6, 1081–2, 1165–6 Eckle (1982)............................................................................................................................392 Effects of awards of compensation made by the UNAT (1954)....................................................275, 869, 1065, 1078, 1099, 1108, 1117, 1151, 1180 Electricity Company of Sofia and Bulgaria (1939)............. 136, 193–4, 202, 207–9, 216, 220, 247, 315, 402, 452, 462, 479, 496, 506, 584–6, 617, 623, 647, 680, 969–70, 1146 Elettronica Sicula SpA (ELSI) (1987)........... 145, 147, 196, 220, 346, 349, 413, 943, 975, 1161 Employment of women during the night (1932)...............................................................1117 Erdagöz (1997).......................................................................................................................392 Ergi (1998)..............................................................................................................................392 European Commission on the Danube (1927).................................. 77, 125, 306, 1069, 1112 Exchange of Greek and Turkish populations (1925).....................................1105, 1112, 1117 Expulsion of the Oecumenical Patriarch (1925)....................................................193–4, 1039 Ferrandi v Commission (1991).............................................................................................814 Fisheries Jurisdiction case (Spain v Canada, 1998)............................. 374, 455, 481, 488, 490, 492, 495, 500, 508, 934, 964 Fisheries jurisdiction cases (1972–74)....................129–30, 184, 216, 219, 231, 239, 289, 321, 408, 413, 420, 425, 429, 435, 455, 481, 488, 535, 620, 623, 628, 634–7, 680–1, 683, 685, 687, 861, 934, 998–9, 1001, 1016, 1018, 1148, 1154, 1175, 1181, 1188–9



TABLE OF CASES xxv

Foti and others (1982)...........................................................................................................392 Franco-Greek Lighthouse (1934).................................................................. 164, 349, 535, 986 Free City of Danzig and the ILO (1930)...................................................................1077, 1117 Free Zones (1929-32).................................................49, 83–5, 136–8, 190, 196, 218, 309, 320, 366–7, 415, 489, 527, 535, 545, 563, 740, 752, 754, 772–5, 979, 985, 1012, 1055, 1137, 1162, 1183, 1216 French nationals in Egypt (1950)..................................................................................192, 194 Gabcikovo-Nagymaros (1997).................................................... 186, 279, 535, 664, 757, 1159 Gallardo (1981)....................................................................................................................1093 Gautrin and others (1998).....................................................................................................392 Genêt (1793)........................................................................................................................1026 Gerliczy (1939).......................................................................................................................452 Granger (1990).......................................................................................................................392 Greek Stan Refineries (1994).................................................................................................392 Guillemot-Jacquemin (1949)..............................................................................................1164 Güleç (1998)...........................................................................................................................392 Gulf of Maine (1982/1984)..................................... 116–18, 127, 143, 145, 150–1, 344–5, 348, 535, 545, 580, 925, 965, 968, 1153, 1161 Guzzardi (1980).....................................................................................................................392 Hassan (2006)................................................................................................................887, 889 Haya de la Torre (1951)............................................ 217–18, 320, 548, 553, 672, 698, 715–16, 721, 730, 734, 738, 748, 771, 777, 964, 972 Heirs of HRH Mgr le Duc de Guise (1951)........................................................................1164 Hilaire v Trinidad and Tobago (2001)..................................................................................500 Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (1999)....................................................................................................................1161 Interhandel (1957/59).......................... 216, 218, 220, 242, 248–50, 254, 402, 452, 480–2, 496, 503–7, 509–10, 512–16, 523, 526, 558, 628, 642, 966, 1008, 1014, 1150 International Status of South-West Africa (1950).......278, 322, 1040, 1096, 1108, 1117, 1151 Interpretation of Judgments Nos 7 and 8 (Factory at Chorzów, 1927)............. 167, 311, 314, 359, 371, 429, 433–4, 629–30, 636, 638, 662, 665, 667, 669, 671, 753, 758, 762, 776–7, 783, 788, 790, 830, 951, 1002, 1055, 1145, 1201 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (1980)..........................................................................189, 330, 750, 1063, 1066, 1078, 1105 Interpretation of the Greco-Bulgarian Agreement of 9 December 1927 (Caphandaris-Molloff Agreement, 1932)........................... 84, 125, 1054, 1077, 1110, 1137 Interpretation of the Greco-Turkish Agreement (1928)..................................866, 1077, 1104 Interpretation of the Statute for the territory of Memel (1932)..............................................208–9, 217, 320, 349, 413, 434, 759, 967, 1055–6, 1146 Isgrò (1990)............................................................................................................................392 Island of Kasikili/Sedudu (1999)...........................................................................122, 186, 535 Jan Mayen Denmark v Norway, 1993)...................186, 342, 360–1, 452, 580, 862, 1015, 1018 Japan/Agricultural Products II (1999)................................................................................1132 Japanese tax on buildings (1905)..........................................................................................197 Jaworzina (1923)..............................................................................................1077, 1105, 1117 Judgment no 2867 of the Administrative Tribunal of the ILO upon a Complaint filed against the International Fund for Agricultural Development (2012).....1049, 1101, 1123

xxvi  TABLE OF CASES

Judgments of the Administrative Tribunal of the ILO on claims against UNESCO (1956)............................... 64, 201, 275, 867, 1075, 1078, 1082, 1120, 1122, 1128 Judgments of the UNAT (1954)............................................................................................137 Jurisdiction in fisheries matters (Spain v Canada, 1998).....................................216, 452, 455 Jurisdiction of the Courts of Danzig (1928)............................................. 125, 952, 1032, 1110 Jurisdiction of the ILO (agricultural production, 1922)....................................................1077 Jurisdictional immunities (2010-2012)................................................... 396, 662, 669, 674–5, 703, 709, 717, 974, 985, 1161 Kadi (2005)...............................................................................................................886–7, 1142 Kaya (1998)............................................................................................................................392 Kennedy v Trinidad and Tobago (1999)...............................................................................500 Kosovo cases (1999-2008).................................................................................128, 130–1, 268 LaGrand (1999/2001)........................................186, 220–1, 223, 279, 291, 397, 413, 433, 525, 627–8, 630–1, 633–4, 646–8, 655, 739, 753, 767, 786, 797, 824, 847, 963, 988, 993, 1132, 1157, 1181, 1205 Laguna del Desierto (Mount Fitzroy, 1994).......................................................................1174 Land, island and maritime boundary dispute (El Salvador v Honduras, 1990/1992/2002/2003).............................. 103–4, 123–4, 145–8, 186, 345–6, 365, 372, 392, 533, 535–6, 544, 577, 603, 697, 703–5, 707–10, 714, 716, 718–20, 723–7, 787, 807, 810–11, 814–15, 819, 822–3, 826, 937, 959, 961, 964, 970, 992–3, 1016, 1018, 1157, 1159, 1161, 1173 Land and maritime boundary between Cameroon and Nigeria (1996/1998/1999/2002)............... 186, 217, 219–22, 245, 250, 302, 312, 314, 348, 452, 455, 480–1, 483, 486, 519, 576, 579, 582, 617, 619, 624, 628, 655, 662, 670, 674, 699, 702–3, 709–10, 714, 716, 718, 776–7, 782, 785, 787–8, 790, 792, 925, 927, 974, 1001 Land and maritime dispute (Nicaragua v Colombia, 2007).......................... 207–8, 216, 302, 307, 396, 403, 441, 453, 584–5, 588, 703, 968, 1133 Land and maritime dispute between Nicaragua and Honduras in the Caribbean Sea (2007)..................................................................184, 221, 307, 318, 366, 396, 453, 579, 927 Legal status of Eastern Greenland (1931–33)........................... 452, 489, 937, 967, 1003, 1012 Legal status of South-East Greenland (1932-33)..................194, 452, 617, 622, 629, 636, 997 Legality of the use of force (Serbia and Montenegro v Belgium, 1999/2004)............................. 168–9, 172–3, 178, 186, 198, 218, 221, 239, 243, 251–3, 260, 262, 274, 279, 293, 306, 413, 426, 442–3, 452, 481, 493, 496, 502, 598, 600, 632, 739, 923, 927, 940, 948, 967, 974, 999–1001, 1126, 1129, 1135, 1171, 1178–9 Libyan American Oil Co (Liamco) v Libya (1977).............................................................1195 Lighthouses on Crete and Samos (1937)..............................................................................535 Lockerbie (1992–98)................................130–1, 208, 216–17, 222–3, 226, 239, 245, 279, 302, 323, 407, 413, 422, 435, 444, 564, 607–10, 626, 628, 653, 739, 813, 878–9, 886, 896, 899, 914, 969, 999, 1001, 1017, 1056, 1131, 1157, 1159, 1202 Loizidou v Turkey (1995)....................................................................................391, 499, 1164 Losinger (1936).......................................................................... 193–4, 221, 243, 248, 452, 753 Lotus (1927)....................................................... 61, 66, 120, 263, 287, 289, 534, 647, 932, 934, 981, 991, 1014, 1144, 1146, 1163, 1184



TABLE OF CASES xxvii

Mamatkulov v Turkey (2005)................................................................................................646 Mansur (1995).......................................................................................................................392 Maritime delimitation (Eritrea v Yemen, 1999)...................................................................579 Maritime delimitation and territorial questions between Qatar and Bahrain, (1993–2001).............................. 70, 186, 216, 234, 419, 542, 544, 680, 946, 963, 1056, 1159 Maritime delimitation between Canada and France (St Pierre and Miquelon) (1992).....366 Maritime delimitation in the Black Sea (2009)....................................................216, 366, 413 Mavrommatis (1924).......................................20, 25, 103, 166–7, 169–71, 206, 208, 216, 219, 255, 267, 269, 275, 301–3, 305–6, 310, 313–15, 350, 371, 412, 429, 436, 442, 444–6, 449, 517, 534, 544, 1045, 1134–5, 1145, 1179 Mexico City bombardment claims (1930)............................................................................938 Military and paramilitary activities in and against Nicaragua (1984/1986/1991)....................................... 15, 82, 99, 102, 167, 169, 177, 182, 194, 216–18, 220–2, 239, 242, 245, 291, 314, 330, 339, 342, 346, 359, 386, 413, 415, 422, 430, 432–3, 435, 437, 440, 442, 452–3, 455, 457, 467–8, 473, 480, 482, 484, 494, 505, 509, 515, 519–20, 522–4, 526–7, 529, 569–71, 587–8, 595, 598, 607, 628, 635, 680, 685, 687, 690, 692–3, 717, 730, 736, 769, 787, 840, 844, 858–9, 862, 930–1, 934, 938, 940–2, 944, 948, 963, 993, 1016–17, 1120–1, 1130, 1148, 1153–5, 1167, 1176 Minority schools in Albania (1935)............................................................................125, 1112 Minquiers and Ecrehos (1953)...................................120, 340–1, 344, 530, 535, 921, 925, 932 Monastery of Saint-Naoum (1924).............................................................................814, 1117 Monetary gold seized at Rome in 1943 (1954).............179, 198, 209, 222, 230, 287, 289, 371, 373, 402, 476, 535, 567–8, 570–2, 574–8, 580, 582, 699, 707–9, 711, 717, 725, 727, 756–7, 840–1, 861, 908, 915, 924, 927, 1073, 1170–1, 1188, 1194 Moroccan phosphates (1938)......... 136, 202, 216, 221, 250, 402, 452, 479, 490, 495, 506, 987 Mortished (1982).........................................................................................................868, 1123 Mosul (1925).................................................................................. 856, 1032, 1069, 1076, 1117 Mutual Assistance in Criminal Matters (Djibouti v France, 2008)............................................160, 189–90, 216, 372, 381, 549–51, 556, 666, 1005, 1137 Naletilic (2003).....................................................................................................................1173 Namibia (1971)....................................................64, 123, 125, 136–7, 445, 852, 884, 886, 897, 902, 909, 995–6, 1016, 1044, 1065, 1071, 1082–4, 1099, 1103, 1105, 1107–8, 1113, 1117, 1153 Nationality Decrees in Tunisia and Morocco (1923)...................................... 125, 1032, 1072, 1101, 1109, 1117 Nebraska v Iowa (1892).......................................................................................................1163 Nölkenbockhoff (1987).........................................................................................................392 North Sea Continental Shelf (1968–69)........................................ 62, 129, 289, 531, 535, 749, 758–9, 923, 998, 1056, 1153, 1181, 1188 Northern Cameroons (1963)..............................70, 83, 167, 169, 202, 204, 209, 213, 219–21, 249, 252, 254, 301–2, 307, 315–17, 413, 527, 568, 758, 771, 1053, 1055, 1092, 1137, 1150, 1206 Norwegian Fisheries (1951)...................................................................... 136, 452, 1150, 1181 Norwegian loans (1957)............ 182, 196, 216, 243, 251, 341, 358, 388, 395, 452, 480, 503–6, 508–9, 511–12, 514–15, 526, 585, 970, 1014, 1143, 1150

xxviii  TABLE OF CASES

Nottebohm (1953-55)........................ 49, 82, 110, 137, 197, 216, 219, 232, 345, 350, 371, 407, 422, 452, 479, 554, 602–3, 605, 607, 680, 877, 924, 963, 965, 970 Nuclear Tests (1973-1974).....................129, 176–7, 188–9, 196–7, 209, 219, 253–4, 307, 317, 391, 396, 452–3, 488–9, 505, 507, 509, 521, 549, 551, 585, 606, 618, 620, 628, 637, 647, 680–1, 686, 688, 691, 699, 703, 717, 725, 730, 787, 830, 924–5, 937, 968–9, 979, 985, 998, 1000–1, 1018, 1079, 1125–6, 1128, 1153–4 Nuclear Weapons (1996)........................... 77, 321, 324, 331, 410, 652, 749–51, 922, 938, 981, 1001, 1016, 1026, 1035–6, 1038, 1054, 1059–60, 1063–5, 1082–3, 1085, 1089, 1092–4, 1099, 1105, 1107–10, 1118, 1155, 1158, 1161 Obermeier (1990)..................................................................................................................392 Oscar Chinn (1934)...............................................................................................336, 341, 535 Padovani (1993).....................................................................................................................392 Pajzs, Csáky, Esterházy (1936)............................................223, 236, 243, 413, 452, 1003, 1146 Pakistani prisoners of war (1973)..................................192, 195, 396, 624, 628, 630, 680, 739 Panevezys-Saldutiskis Railways (1939).................................................. 219–20, 241, 243, 251, 452, 662, 675, 985, 1130, 1145 Papamichalopoulos (1993)....................................................................................................392 Parker (1926)..........................................................................................................................939 Passage through the Great Belt (Finland v Denmark, 1991).............................. 190, 194, 563, 614, 628, 631–2, 1056, 1216 Peace Treaties with Bulgaria, Hungary and Romania (1950)....... 64, 211, 220, 302, 307, 321, 371, 652, 758, 866, 933, 951, 1042, 1052, 1069–71, 1076, 1078, 1082–3, 1095, 1103–4, 1151, 1165 Petroleum platforms (1996)......................................186, 207, 216, 413, 431–2, 435, 437, 440, 442, 660–2, 669, 671–2, 674–5, 1131, 1160–1 Pfeifer and Plankl (1992).......................................................................................................392 Philips Eindhoven v German Federal Republic (1958)........................................................951 Phosphates in Morocco (1938)............................................................ 136, 167, 216, 221, 250, 402, 452, 479, 490, 506, 987, 1146 Pine Valley Development Ltd (1991)....................................................................................392 Pinson (1928).........................................................................................................................364 Pious funds of California (1902)...........................................................................................391 Polish agrarian reform and the German minority (1933).......................................194, 625–6 Polish postal service at Danzig (1925)..................................................................................767 Prince von Pless Administration (1933)....................................... 183, 194, 235, 243, 634, 637 Pulp mills on the River Uruguay (2006/2010)............................................. 413, 432, 436, 614, 627, 631, 638, 650, 976, 995 Purfürst (1958).......................................................................................................................557 Reparation for injuries (1949)..............................64, 751, 1032, 1078, 1099, 1110, 1117, 1180 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 case (1995)................................................................................... 176–7, 703, 937, 959, 985, 1125 Request for interpretation of the award on delimitation between Eritrea and Ethiopia (2002)..................................................................................................................790 Reservations to the Genocide Convention (1951)................................ 423–5, 588, 751, 1071, 1078, 1082–3, 1099, 1103, 1117, 1151



TABLE OF CASES xxix

Right of Asylum (1950).........................................................278, 346, 535, 548, 552, 662, 669, 671, 776–7, 779, 782, 784, 790, 920, 935, 967 Right of passage over Indian territory (1957-60).................. 208, 210, 216–18, 220, 243, 258, 301–2, 313, 326, 402, 407, 422, 452, 455, 462, 470, 480, 483–4, 486, 495, 504, 506, 508, 518, 520–2, 526, 550, 607, 948, 962–3, 1150 Rights of minorities in Upper Silesia (Minority schools, 1928).......................216, 220, 227, 233, 342, 350, 371, 373–4, 380, 390, 412, 417, 551, 1117 Rights of nationals of the United States of America in Morocco (1952).................................................. 136, 166, 221, 269, 321, 452, 508, 662, 669, 931, 963 Russian indemnity (1912).....................................................................................................220 Sakik (1997)...........................................................................................................................392 Sapphire International Petroleums Ltd v National Iranian Oil Co (1963)...........................70 Schuler-Zgraggen (1993).......................................................................................................392 Serbian loans (1929)..........................................................49, 66, 138, 218, 269, 275, 301, 304, 336, 341, 349–50, 352, 355, 534, 1061 Settlers of German origin in Poland (1923).....................................................992, 1034, 1117 SNCF dispute (1953).............................................................................................................197 Société commerciale de Belgique (1939).................................. 136, 182–3, 218, 396, 761, 867 Société Electricité de Beyrouth (1954)..................................................................................194 Socobelge (1925)..................................................................................................................1195 Sola Tiles (1987).....................................................................................................................939 South-West Africa (1950-66)..................65, 98–9, 112, 125, 129, 136–7, 208, 218–20, 235–8, 243, 247, 253, 301–2, 305–8, 321, 413, 415, 430, 444, 811, 902, 934, 971, 975, 981, 988, 996, 998, 1015–17, 1055, 1078, 1080, 1096–7, 1110, 1116, 1149, 1152, 1172, 1215 Sovereignty over certain frontier land (Belgium v Netherlands, 1959)......................535, 861 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (2008)...............................................................................................................535, 927 Sovereignty over Pulau Ligitan and Pulau Sipadan (2001/2002)............................. 535, 697, 703, 710, 712, 715–16, 718, 723–6, 936, 969, 1159 Stakic (2003)........................................................................................................................1173 Szücs (1997)...........................................................................................................................392 Tadic (1995).........................................................................................................889, 900, 1176 Temple of Preah Vihear (1961/1962)........................122, 184, 218, 385, 395, 452, 457–8, 491, 519, 594, 598, 781–2, 796, 861, 932, 950, 996 Territorial dispute (Libya v Chad, 1994)................122, 403, 535, 579, 581–2, 850, 1016, 1159 Territorial jurisdiction of the International Commission of the River Oder (1929).................................................................................. 129, 535, 848, 950, 1124–5 Tomasi (1990)........................................................................................................................392 Treatment in Hungary of Aircraft and Crew of the United States of America (United States v Hungary, 1954)........................................................................160 Treatment in Hungary of Aircraft and Crew of the United States of America (USA v USSR, 1954)...........................................................................................160 Treaty of Neuilly (1924-25)........................................144, 534, 757, 776, 779, 790, 794–5, 959 United States diplomatic and consular staff in Tehran (1979-81)......... 30, 99, 122, 192, 194, 196, 220, 222, 330, 413, 419, 443–5, 618, 620, 628, 636–7, 655, 680–1, 683, 685–6, 689, 840, 842, 861, 935, 969, 1153–4, 1159, 1186

xxx  TABLE OF CASES

Van Oosterwijck (1980).........................................................................................................392 Vasilescu (1998).....................................................................................................................392 Vienna Convention on Consular Relations (Paraguay v USA, 1998).........................195, 628 Wall (2004).................................................136–7, 331, 652, 759, 802, 903, 909–10, 995, 1032, 1038, 1041, 1058, 1063–4, 1071, 1073–4, 1078, 1082–4, 1094, 1099, 1107–9, 1111, 1118, 1155, 1157, 1161, 1197 Werner (1997)........................................................................................................................392 Western Sahara (1975).....................64, 125–6, 304, 652, 932–3, 1063–4, 1067–8, 1071, 1073, 1076, 1082–4, 1093, 1098, 1106, 1113–14, 1116, 1153 Wimbledon (1923).........................................129, 136, 171, 265–6, 288–9, 293, 306, 349, 376, 412, 448, 696, 699, 703, 717, 730, 830, 1149 Yagci and Sargin (1995).........................................................................................................392 Yakimetz (1987)...........................................................................................................868, 1083 Yusuf and others v the European Council (2005)........................................................... 886–7 Zana (1997)............................................................................................................................392

Table of Legislative and Related Acts As the UN Charter and the Statute of the International Court of Justice are discussed throughout the work, only references to specific Articles have been included in this Table. Additional Act no 10/96 on the Statutes of the Court of Justice of the West African Economic and Monetary Union, 1996...........................................................................68 Additional Protocol No I of 1977 to the Geneva Conventions of 1949 on international humanitarian law    Art 90..................................................................................................................................447 African Charter on Human and Peoples’ Rights, 1981   Protocol, 1998......................................................................................................................68 Agreement between Greece and Italy on the Delimitation of their Respective Continental Shelves, 1977    Art IV..................................................................................................................................411 Agreement between the UN and the Government of Sierra Leone, 2002.............................68 Agreement on the conservation and management of highly migratory fish stocks, 1995....................................................................................................................472 Agreement on the European Commission on the Danube, 1938    Art 21..................................................................................................................................866 Agreement on the Privileges and Immunities of the International Criminal Court, 2002    Art 32(3).............................................................................................................................411 Algiers Agreements, 1981/1982.................................................................................46, 68, 192 Antarctic Treaty, 1959....................................................................................................412, 415    Art 11..................................................................................................................................410    Art 11(2).............................................................................................................................418 Articles on State responsibility, 2001    Art 4............................................................................................................................... 838–9    Art 23(2)(a)........................................................................................................................816    Art 24(1)(a)........................................................................................................................816    Art 25(2)(b)........................................................................................................................816    Art 30..................................................................................................................................766    Art 37..................................................................................................................................649    Art 48..................................................................................................................................841    Art 48(1)(a) and (b)..........................................................................................................841    Arts 49–54..........................................................................................................................840    Art 52(3)(b)........................................................................................................................649    Art 54..................................................................................................................................841 Beneš Decrees.........................................................................................................................402 Berlin General Act, 1885........................................................................................................341 Brussels Convention on questions of criminal law arising from the collision of ships or other accidents of navigation, 1952............................................................................1014 Bryan Treaties (1910-1919).....................................................................................8, 615, 1027

xxxii  TABLE OF LEGISLATIVE AND RELATED ACTS

Charter   Preamble.............................................................................................................................654    Art 1..............................................................................................................................61, 654    Art 1(1).........................................................................................................................61, 844    Art 1(3).............................................................................................................................1040    Art 2......................................................................................................................................61    Art 2(1).......................................................................................................................61, 1119    Art 2(2).....................32, 292, 478, 610, 635, 653, 656, 772, 834, 838, 946, 1038, 1095, 1097    Art 2(3)........................................................................................... 9–10, 19–20, 23, 616, 844    Art 2(4)............................................................................9, 19, 295, 618, 834, 843, 905, 1155    Art 2(5).................................................................................................................................31    Art 2(6).............................................................................................................................1076    Art 2(7)............................................................................. 26–7, 61, 256–7, 882, 904, 1041–2    Art 3............................................................................................................................... 280–1    Art 4...................................................................................... 52, 238, 280–1, 330, 1041, 1063    Art 5......................................................................................................................92–3, 282–3    Art 5(1)...............................................................................................................................834    Art 6..............................................................................................................................23, 284    Art 7(1)..................................................................................................... 59, 896, 1048, 1204    Art 10...................................................654, 840, 842, 844, 858–9, 896, 903, 909, 1040, 1060    Arts 10-14...........................................................................................................................903    Arts 10-17.........................................................................................................................1040    Art 11..........................................................................................................................840, 896    Art 11(2)........................................................................................................................ 29–30    Art 11(3)...............................................................................................................................30    Art 12(1)............................................................840, 844, 858, 896–7, 903, 1041, 1060, 1202    Art 13..................................................................................................................................896    Art 14.................................................................................. 35, 62, 840, 844, 846, 858–9, 896    Art 15..................................................................................................................................896    Art 17(2).........................................................................................................901, 1063, 1188    Art 18(2)................................................................................................. 141, 858, 1043, 1096    Art 18(3)...........................................................................................................141, 858, 1043    Art 19....................................................................................................................................95    Art 22....................................................................................................................31, 60, 1047    Art 23............................................................................................................................... 30–1    Art 24..................................................................................................................................896    Arts 24-26.........................................................................................................................1040    Art 24(1).............................................................................................................................850    Art 24(2)..................................................................................................... 849, 893, 900, 904    Art 25...........................................................31–2, 95, 435, 608, 652, 851–4, 885, 890, 898–9    Art 27(2)........................................................................................... 32, 63, 142, 855, 1043–4    Art 27(3)............................................................................. 31, 34, 63, 141, 855–7, 902, 1043    Art 29....................................................................................................................................31    Art 32..................................................................................................................................902    Art 33................................................................................................ 22–4, 27–8, 31, 335, 860    Art 33(1)..................................................................................9, 14, 17, 22, 33, 37, 845, 1076    Art 33(2)...................................................................................................................29, 33, 35



TABLE OF LEGISLATIVE AND RELATED ACTS xxxiii

   Art 34..............................................................................................................24–5, 29–32, 35    Arts 34-38...........................................................................................................................840    Art 35............................................................................................................25, 28–9, 32, 846    Art 35(1)...............................................................................................................................29    Art 35(2)........................................................................................................................ 29–30    Art 35(3)...............................................................................................................................30    Art 36.................................................................................................................. 25, 29, 32, 35    Art 36(1).........................................................................................................................30, 33    Art 36(3)......................................................................................................... 33, 62, 393, 548    Art 37....................................................................................................................25, 29, 33–5    Art 37(1)...............................................................................................................................34    Art 37(2).........................................................................................................29–30, 32, 34–5    Art 38........................................................................................................32, 34–5, 845, 1076    Art 39.................................................................... 22–3, 27–8, 31, 733, 834, 850, 853–4, 860    Art 40..................................................................................................................652, 655, 849    Art 41..................................................................................................................849, 853, 900    Art 42......................................................................................................................853–4, 900    Art 51..................................................................................................................................843    Art 52(3).............................................................................................................................856    Art 53(1)...............................................................................................................................52    Art 60..................................................................................................................................896    Art 62..................................................................................................................................896    Arts 63-64.........................................................................................................................1048    Arts 75-76.........................................................................................................................1048    Art 80(2).............................................................................................................................322    Art 87..................................................................................................................................896    Art 92...................................................... 19, 45, 53, 59, 61–3, 78–9, 90–1, 94, 283, 394, 543, 606, 608, 632, 643, 653, 799, 891, 946, 1119, 1192, 1203–4    Art 93....................................................................................................................................79    Art 93(1).................................................................................................77, 91–5, 280–1, 284    Art 93(2)......................................................................................... 78, 93–5, 284–5, 288, 836    Art 94...................................... 56, 64, 78–9, 94–5, 146, 151, 286, 288, 290–1, 294, 370, 611, 637, 641–3, 645, 655–6, 678, 721, 753–4, 761–2, 771, 800–1, 828–9, 831–51, 853–60, 863, 874–5, 1156, 1160, 1207    Art 94(1)........................................................................ 64, 94, 641–3, 761, 771, 801, 831–3, 835–8, 840, 842, 847–8, 855, 859    Art 94(2)...........................................................56, 64, 94–5, 146, 151, 294, 637, 643, 655–6, 678, 721, 753–4, 762, 800, 829, 831–2, 834, 836, 839–40, 842–51, 853–60, 863, 874, 1160, 1207    Art 94(3).............................................................................................................................857    Art 95................................................................................................................60, 78–9, 1200    Art 96....................................................56, 78–9, 83, 214, 868, 910, 1019–24, 1030–1, 1033, 1035, 1037–41, 1043–9, 1057, 1060–1, 1063, 1065, 1068–9, 1071, 1079, 1086–7, 1094–5, 1099–1102, 1117    Art 96(1)..................................................... 910, 1022, 1033–4, 1037–8, 1040–1, 1060, 1068    Art 96(2)........................1022, 1033–4, 1037, 1039–40, 1045–6, 1048–50, 1060, 1079, 1101    Art 98..................................................................................................................................896

xxxiv  TABLE OF LEGISLATIVE AND RELATED ACTS

   Art 99............................................................................................................................. 29–30    Art 101..................................................................................................................................60    Art 102....................................................................................................................543–4, 754    Art 102(1)...........................................................................................................................734    Art 102(2)...........................................................................................................................734    Art 103........................................ 63, 67, 95, 394, 435, 487, 585, 608–10, 626, 653, 799, 826, 885, 888, 891, 898–9, 905, 911, 914, 1061, 1203–4, 1209    Art 105..............................................................................................................................1192    Art 105(2).........................................................................................................................1191    Art 107..................................................................................................................................52    Art 108.................................................................................................. 58, 80, 86–7, 95, 1213    Art 109..................................................................................................................................86    Art 111................................................................................................................................993   Ch VI....................................................................8, 10, 12–13, 17, 19–37, 63, 393, 418, 616, 655, 833, 842, 844–6, 849–51, 856–7, 1071, 1194   Ch VII.....................................................13, 20–3, 27–8, 31–2, 60, 63, 384, 393–4, 608, 652, 654–5, 840, 845, 849, 851–5, 857, 879, 883–6, 888–9, 892–3, 895, 898–900, 904–5, 912–13, 1041   Ch VIII..................................................................................................................................10   Ch XIV................................................................................ 78–9, 98, 501, 575, 761, 856, 914 Chicago Convention on international civil aviation, 1944..........................................840, 876    Art 84..................................................................................................................................866    Art 85..................................................................................................................................865    Art 86..................................................................................................................................866 Comprehensive Nuclear Test-Ban Treaty, 1996    Art 6(2) and(3)..................................................................................................................411 Constitution of the ICAO    Art 86..................................................................................................................................840    Art 88..................................................................................................................................840 Constitution of the ILO    Art 33..................................................................................................................................839 Consular Agreement between the United Kingdom and Japan, 1964.................................410 Convention against Corruption, 2003    Art 66(2).............................................................................................................................411 Convention against Discrimination in Education, 1960    Art 8....................................................................................................................................410 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984    Art 30(1).............................................................................................................................411 Convention against Transnational Organized Crime, 2000    Art 35(2).............................................................................................................................411 Convention establishing the Central American Court of Justice, 1907    Art 18..................................................................................................................................614 Convention for the Establishment of the Inter-Governmental Maritime Consultative Organization, 1948    Art 28(a)...........................................................................................................................1066 Convention for the Protection of the Ozone Layer, 1985



TABLE OF LEGISLATIVE AND RELATED ACTS xxxv

   Art 11..................................................................................................................................411 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971    Art 14..................................................................................................................................411 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988    Art 18(1).............................................................................................................................411 Convention on Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, 1946    Art 17..................................................................................................................................410 Convention on Road Signs and Signals, 1968    Art 44..................................................................................................................................410 Convention on Road Traffic, 1949    Art 33..................................................................................................................................410 Convention on the Guardianship of Minors, 1902......................................................338, 452 Convention on the Law of the Sea, 1982............................................ 46, 66, 68, 275, 472, 861    Art 76..................................................................................................................................580    Art 153................................................................................................................................276    Art 170................................................................................................................................276    Art 280(6)...........................................................................................................................647    Arts 286-296.......................................................................................................................275    Art 291(2)...........................................................................................................................276    Ann IV................................................................................................................................276    Ann VI................................................................................................................................276 Convention on the Nationality of Married Women, 1957    Art 10..................................................................................................................................410 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, 1973    Art 13..................................................................................................................................411 Convention on the Prevention and Punishment of the Crime of Genocide, 1948...................................... 103, 168–70, 173, 178, 193, 217, 246, 297, 306, 423, 425–6, 436, 438–9, 501–2, 554–6, 621, 633, 665–6, 672, 812, 1071, 1106, 1151, 1159, 1162, 1171, 1180, 1208    Art I.....................................................................................................................246, 318, 650    Art III..................................................................................................................................433    Art IX................................................ 170, 178, 217, 311, 410–11, 418, 425–6, 429, 433, 443, 501–2, 555–6, 588, 632, 665, 1032, 1162, 1171, 1177, 1208–9    Art V...................................................................................................................................433    Art VI..................................................................................................................246, 433, 436    Art VII................................................................................................................................433 Convention on the Privileges and Immunities of the Specialized Agencies, 1947    Art IX(32).........................................................................................................................1100 Convention on the Privileges and Immunities of the United Nations, 1946......................................................................................................1083–4, 1095, 1185    Art IX(32).........................................................................................................................1038    Art VI(22)...............................................................................................................1062, 1072    Art VIII(30)......................................................................................................................1037

xxxvi  TABLE OF LEGISLATIVE AND RELATED ACTS

Convention on the Protection and use of Transboundary Watercourses and International Lakes, 1992    Art 22(1).............................................................................................................................411 Convention on the Protection of Cultural Property in the event of Armed Conflict, 1954...............................................................................................................1196 Convention on the Protection of the Marine Environment in the Baltic Sea, 1974    Art 18(2).............................................................................................................................411 Convention on the Recovery Abroad of Maintenance, 1956    Art 16..................................................................................................................................410 Convention on the Settlement of Questions arising from the War and Occupation, 1952...................................................................................................... 401–2 Convention on the Status of Refugees, 1951    Art 38..................................................................................................................................410 Convention prohibiting Manufacture etc. of Chemical Weapons, 1993    Art XIV(2)..........................................................................................................................411 Dayton Accord, 1995............................................................................................217, 369, 1195    Art X...................................................................................................................................296    Ann 2..................................................................................................................................369 European Convention for the Peaceful Settlement of Disputes, 1957.................................................................................... 395–6, 399, 401, 405, 407, 422    Art 1....................................................................................................................399, 401, 406    Art 27............................................................................................................................. 401–2    Art 34..................................................................................................................................399    Art 40..................................................................................................................................407 European Convention on Establishment, 1955    Art 31..................................................................................................................................410 European Convention on Human Rights, 1950............................................. 66, 68, 297, 1164    Art 25..................................................................................................................................499    Art 46..................................................................................................................................499    Art 55................................................................................................................................1201    Art 64(2).............................................................................................................................499    Protocol No 11, 1994...........................................................................................................68 European Convention on State Immunity, 1973    Art 34..................................................................................................................................411 Exchange of Letters of 1946    Art 1(a).............................................................................................................................1192    Art 1(b).............................................................................................................................1192    Art 3..................................................................................................................................1192    Art 4..................................................................................................................................1193    Art 5..................................................................................................................................1192 France, Code of Civil Law    Art 4....................................................................................................................................746 General Act for the Pacific Settlement of International Disputes, 1928....................... 176, 216, 252, 391, 395–8, 403–7, 492, 585, 588, 598, 735, 756, 1133    Art 17..................................................................................................................397–9, 405–6    Art 23(3)...........................................................................................................................1194    Art 33(1).............................................................................................................................397



TABLE OF LEGISLATIVE AND RELATED ACTS xxxvii

   Art 33(3).............................................................................................................................617    Art 39..................................................................................................................................586    Art 45(2).............................................................................................................................407   Ch I.....................................................................................................................................404   Ch II....................................................................................................................................406 General Assembly Resolution 50 (I) of 1946......................................................................1047 General Assembly Resolution 89 (I) of 1946......................................................................1047 General Assembly Resolution 90 (I) of 1946......................................................158, 984, 1191 General Assembly Resolution 91 (I) of 1946................................................................94, 1185 General Assembly Resolution 124(II) of 1947....................................................................1047 General Assembly Resolution 171(II) of 1947....................................................................1047 General Assembly Resolution 181 (II) of 1947.......................................................................30 General Assembly Resolution 196 (III) of 1948.................................................................1047 General Assembly Resolution 204 (III) of 1948.................................................................1047 General Assembly Resolution 239 (III) of 1948.................................................................1189 General Assembly Resolution 264 (III) of 1948.....................................................95, 111, 141 General Assembly Resolution 295 (IV) of 1949.................................................................1047 General Assembly Resolution 377 (V) (1950)................................................ 35, 858, 903, 908 General Assembly Resolution 531 (VI) of 1951.................................................................1047 General Assembly Resolution 957 (X) of 1955...................................................................1047 General Assembly Resolution 1116 (XI) of 1957...............................................................1048 General Assembly Resolution 1146 (XII) of 1957..............................................................1047 General Assembly Resolution 1308 (XIII) of 1958................................................................95 General Assembly Resolution 1594 (XV) of 1961..............................................................1048 General Assembly Resolution 1596 (XV) of 1961..................................................................30 General Assembly Resolution 2516 (XXIV) of 1969..............................................................35 General Assembly Resolution 2520 (XXIV) of 1969........................................................87, 95 General Assembly Resolution 2625 (XXV) of 1970...................................................23–4, 616 General Assembly Resolution 2723 (XXV) of 1970...................................................272, 1153 General Assembly Resolution 3346 (XXIX) of 1974..........................................................1047 General Assembly Resolution 32/107 of 1977....................................................................1047 General Assembly Resolution 34/165 of 1979....................................................................1079 General Assembly Resolution 37/10 of 1982..........................................................................24 General Assembly Resolution 40/180 of 1985....................................................................1048 General Assembly Resolution 41/31 of 1986................................................................840, 858 General Assembly Resolution 42/229B of 1987....................................................................651 General Assembly Resolution 45/68 of 1990..........................................................................35 General Assembly Resolution 47/118 of 1992........................................................................35 General Assembly Resolution 50/54 of 1996..........................................................868, 1101–2 General Assembly Resolution 56/83 of 2001........................................................................840 General Assembly Resolution 57/107 of 2002....................................................................1074 General Assembly Rules of Procedure    Art 150................................................................................................................................141 General Treaty of Peace between Honduras and El Salvador, 1980    Arts 31-36 and 39...............................................................................................................411 Geneva Convention on Upper Silesia, 1922    Art 72(3).............................................................................................................318, 551, 665

xxxviii  TABLE OF LEGISLATIVE AND RELATED ACTS

Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949..............................................................................................................................1064 Geneva Protocol of 1924..........................................................................................20, 335, 397 Hague Convention on Prize Courts, 1907    Art 43................................................................................................................................1012    Art 44................................................................................................................................1012 Hague Convention on the Conflict of Nationality Laws, 1930    Art 4....................................................................................................................................110 Hague Convention on the establishment of an International Prize Court, 1907    Art 7(2)...............................................................................................................................361 Hague Convention on the Peaceful Settlement of Disputes 1899...........................................................................41, 140, 237, 414, 614, 696, 730, 805    Art 3(3).................................................................................................................................10    Art 47..................................................................................................................................602    Art 52(2)...........................................................................................................................1012    Art 55..................................................................................................................................805 Hague Convention on the Peaceful Settlement of Disputes 1907.......140, 414, 614, 762–3, 805    Art 14..................................................................................................................................313    Art 37..................................................................................................................................336    Art 37(2).............................................................................................................................831    Arts 41 et seq........................................................................................................................41    Art 45....................................................................................................................................41    Arts 51 et seq........................................................................................................................70    Art 56..........................................................................................................................696, 730    Arts 63 et seq........................................................................................................................41    Art 66..................................................................................................................................994    Art 73............................................................................................................................41, 602    Art 78................................................................................................................................1012    Art 79..........................................................................................................................41, 1012    Art 81..................................................................................................................................762    Art 82....................................................................................................................................41    Art 83....................................................................................................................................41    Art 84....................................................................................................................41, 696, 730    Art 84(1)........................................................................................................................ 762–3    Arts 86-90.............................................................................................................................41 Hague Convention on the Unlawful Seizure of Aircraft, 1970    Art 12........................................................................................................................... 410–11 Havana Convention on the right of asylum, 1928.......................................................715, 734 Hispano-Belgian Treaty, 1927    Art 17(4).............................................................................................................................392 ILOAT Statute    Art 12................................................................................................................................1101    Art 12(1).............................................................................................................................867 Instructions to the Registry.................................................................................................1189    Arts 26-30.........................................................................................................................1189    Art 31................................................................................................................................1189    Art 34................................................................................................................................1189



TABLE OF LEGISLATIVE AND RELATED ACTS xxxix

   Art 35................................................................................................................................1189 Inter-American Convention on Human Rights, 1991    Art 8(2)(h)........................................................................................................................1093 Inter-American Convention on the Rights of Man, 1969......................................................68 Inter-American Pact of Bogotá, 1948.....................395–6, 398–9, 401, 403, 405, 407, 584, 588    Art VI................................................................................................ 399, 403, 441, 585, 1133    Art XXXI................................................................................. 398–9, 401, 403, 406, 585, 588    Art XXXII...............................................................................................................398–9, 401    Art XXXIV..................................................................................................................399, 403    Art XXXV...........................................................................................................................399 International Agreement on Olive Oil, 1979    Art 14(2).............................................................................................................................411 International Air Services Transit Agreement, 1944    Art II...................................................................................................................................866    Art II(2)..............................................................................................................................410 International Convention for the Elimination of all forms of Racial Discrimination, 1966    Art 22..................................................................................................................................410 International Convention for the Prevention of the Pollution of the Sea by Oil, 1954    Art XIII...............................................................................................................................410 International Convention on the Suppression of Financing of Terrorism, 1999    Art 24(1).............................................................................................................................411 International Convention on the Suppression of the Traffic in Women, 1947    Art 4....................................................................................................................................410 International Covenant on Civil and Political Rights (ICCPR), 1966................................................................................................420, 499–500, 646, 888    Art 4....................................................................................................................................420 International Health Regulations, 1969    Art 106................................................................................................................................410 Iran–USA Treaty on Friendship, Trade and Consular Rights, 1955    Art XXI(2)..............................................................................................................419, 445–6 Italo-Argentine Treaty of arbitration, 1898    Art 13..................................................................................................................................805 Jay Treaty, 1794.........................................................................................................................40 Kellogg Pact, 1928....................................................................................................................20 League of Nations, Covenant................................................8, 20, 45, 51, 93, 334–5, 353, 357, 654, 762, 831–2, 838, 846, 882, 1026, 1067    Art 1................................................................................................................................9, 264    Art 1(3).................................................................................................................................89    Art 2........................................................................................................................................9    Art 5(1).......................................................................................................................141, 264    Art 6..................................................................................................................................1188    Art 11................................................................................................................................1076    Art 12................................................................................................ 9, 43, 60, 309, 335, 1027    Arts 12-15.........................................................................................................10, 1027, 1200    Arts 12-16.............................................................................................................................20    Art 12(1)...........................................................................................................450, 842, 1027    Art 13............................................................................................................353–4, 417, 1143

xl  TABLE OF LEGISLATIVE AND RELATED ACTS

   Art 13(1).............................................................................................................................450    Art 13(2)........................................................................................................................ 357–8    Art 13(4)...................................................................................................55, 762, 831–4, 838    Art 14....................... 43, 45, 58, 264, 336, 353–4, 1027–31, 1054–5, 1067, 1085, 1087, 1143    Art 15..........................................................................................................................310, 417    Art 15(1).............................................................................................................................417    Art 15(8).....................................................................................................................258, 882    Art 17............................................................................................................1059, 1070, 1075    Art 18..................................................................................................................................543 Locarno Agreements, 1925............................................................................................325, 397 Montreal Convention on the Safety of Civil Aviation, 1971.........................216–17, 223, 435, 609, 899, 914, 1056, 1131    Art 14..................................................................................................................................412    Art 14(1).............................................................................................................................443 North American Free Trade Agreement, 1992........................................................................68 Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, 1963...................................................................410 Paris II Agreement, 1930    Art X...................................................................................................................................223 Peace Treaty between Japan and Indonesia, 1958    Art 6....................................................................................................................................410 Practice Directions (PDs)..............................78, 88, 104–7, 121, 155–6, 187–8, 957, 971, 975, 1017, 1025–6, 1108–9, 1128, 1135, 1185, 1205   I(1)..............................................................................................................................960, 965   II(2)....................................................................................................................................960   III................................................................................................................................107, 957   III(2)...................................................................................................................................962   IV........................................................................................................................................156   VI ........................................................................................................................107, 971, 975   VII.....................................................................................................................121, 135, 1136   VIII...........................................................................................................................155, 1136   IX ............................................................................................................................106, 187–8   IX-2.............................................................................................................................106, 187   IX-3.........................................................................................................................106, 187–8   IX-4.....................................................................................................................................107   XI ........................................................................................................................................106   XII.....................................................................................................................................1022   XII(1)................................................................................................................................1025   XII(2)................................................................................................................................1025   XIII.....................................................................................................................................107 Protocol to the Convention on the Contract for the International Carriage of Goods by Road, 1978    Art 8....................................................................................................................................411 Regulations for the execution of the 1954 Convention on the Protection of Cultural Property in the event of Armed Conflict    Art 4..................................................................................................................................1196 Resolution concerning the Internal Judicial Practice of the Court, 1976...........................104



TABLE OF LEGISLATIVE AND RELATED ACTS xli

   Arts 2 et seq........................................................................................................................979    Art 3(i)..............................................................................................................................1006    Art 3(ii).............................................................................................................................1006    Art 3(iii)............................................................................................................................1006    Art 5........................................................................................................................1007, 1009    Art 6..................................................................................................................................1008    Art 6(i)..............................................................................................................................1008    Art 7(i)..............................................................................................................................1009    Art 7(ii).............................................................................................................................1009    Art 8......................................................................................................................980–1, 1010    Art 9(ii).............................................................................................................................1010    Art 10....................................................................................................................980–1, 1010 Rules for the settlement by arbitration of disputes between States parties to the Permanent Court of Arbitration,1992    Art 25(4).............................................................................................................................994 Rules of the Court............78, 83, 87, 98–111, 137, 153, 155, 286, 459, 552, 607, 661, 736, 754    Arts 1 et seq..........................................................................................................................98    Art 3(2)-(4)................................................................................................................142, 989    Art 4....................................................................................................................................121    Art 6....................................................................................................................................132    Arts 7-8.................................................................................................................................98    Art 7(3)...............................................................................................................................121    Art 8....................................................................................................................................121    Art 9......................................................................................................................................98    Arts 10 et seq........................................................................................................................98    Art 13..................................................................................................................................989    Art 13(1)...........................................................................................................................1194    Art 14(5).............................................................................................................................155    Art 15..........................................................................................................................143, 151    Arts 15 et seq........................................................................................................................98    Art 16(1).............................................................................................................................150    Art 16(2).............................................................................................................................151    Art 16(3).............................................................................................................................150    Art 17..................................................................................................................................988    Art 17(1).............................................................................................................................153    Art 17(2).....................................................................................................................104, 150    Art 18..................................................................................................................................103    Art 18(1).............................................................................................................................151    Art 18(2).............................................................................................................................151    Art 18(3).............................................................................................................................152    Arts 19-21.............................................................................................................................98    Art 20..................................................................................................................................137    Art 20(1).............................................................................................................................981    Art 20(3).............................................................................................................................138    Art 21(2).............................................................................................................................156    Arts 22 et seq................................................................................................................98, 155    Art 22(1).............................................................................................................................155

xlii  TABLE OF LEGISLATIVE AND RELATED ACTS

   Art 22(4).............................................................................................................................155    Art 23..................................................................................................................................155    Art 25..................................................................................................................................156    Art 25(1).............................................................................................................................155    Art 26..................................................................................................................................156    Art 26(1)(c)........................................................................................................................286    Art 26(1)(e)........................................................................................................................985    Art 26(1)(k)..............................................................................................................995, 1197    Art 26(1)(m)....................................................................................................................1197    Art 27..................................................................................................................................156    Art 28(1).............................................................................................................................155    Art 28(2).............................................................................................................................155    Art 28(3).............................................................................................................................155    Arts 30 et seq........................................................................................................................98    Art 31.............................................................................................. 107, 675, 958, 963–5, 985    Arts 32 et seq..............................................................................................................98, 1124    Art 32(1).............................................................................................................................989    Art 32(2).............................................................................................................................183    Art 34(2).............................................................................................................................137    Art 35........................................................................................................................164, 1136    Art 35(1).............................................................................................................................122    Art 35(3).............................................................................................................................123    Art 35(4).............................................................................................................................123    Art 36..................................................................................................................................127    Art 36(1)(a)........................................................................................................................988    Art 37..................................................................................................................................530    Art 37(1).....................................................................................................................123, 989    Art 37(2).............................................................................................................................127    Art 38..........................................................................................................................182, 984    Arts 38 et seq........................................................................................................................98    Art 38(1).............................................................................................................................164    Art 38(1)-(3)......................................................................................................................956    Art 38(2)................................................................................................. 161, 164, 1132, 1135    Art 38(3).....................................................................................................................163, 986    Art 38(4).............................................................................................................................956    Art 38(5)................................................................160–1, 179, 189, 374, 475, 956, 985, 1137    Art 39..................................................................................................................................956    Art 39(1).............................................................................................................................163    Art 39(2).............................................................................................................................164    Art 40..................................................................................................................................985    Art 40(1).....................................................................................................................165, 985    Art 40(2).............................................................................................................................165    Art 40(3).............................................................................................................................165    Art 41..........................................................................................................................159, 286    Art 42..................................................................................................................................163    Art 42(2).............................................................................................................................101    Art 43..............................................................................................................163, 276–7, 739



TABLE OF LEGISLATIVE AND RELATED ACTS xliii

   Art 43(1).............................................................................................................................739    Art 43(2).............................................................................................................................277    Art 44..........................................................................................................................955, 988    Arts 44 et seq................................................................................................................98, 957    Art 44(1).............................................................................................................958, 963, 988    Art 44(2).............................................................................................................................958    Art 44(3)........................................................................................................................ 966–7    Art 44(4).....................................................................................................................965, 989    Art 45(2).............................................................................................................................661    Art 46..................................................................................................................................101    Art 46(1).............................................................................................................................964    Art 46(2).............................................................................................................................965    Art 47........................................................................................................306, 702, 997–1001    Art 48..................................................................................................................................988    Art 49..................................................................................................................................976    Art 50(1).............................................................................................................................961    Art 50(2).............................................................................................................................962    Art 50(3).............................................................................................................................960    Art 51(1).............................................................................................................................991    Art 51(2).............................................................................................................................992    Art 51(3).............................................................................................................................992    Art 52(1).............................................................................................................................986    Art 52(2).............................................................................................................................966    Art 53(1).............................................................................................................................968    Art 53(2)................................................................................................... 967, 969, 995, 1111    Arts 54 et seq................................................................................................................98, 957    Art 54(1).....................................................................................................................723, 970    Art 54(3).............................................................................................................................970    Art 55..................................................................................................................................973    Art 56..........................................................................................................................187, 690    Art 56(1).....................................................................................................185, 187–8, 962–3    Art 56(2).........................................................................................................185, 187–8, 963    Art 56(3).....................................................................................................................185, 963    Art 56(4).................................................................................................................187–8, 975    Art 57..........................................................................................................................185, 973    Art 58(2).........................................................................................................101, 973–4, 986    Art 59......................................................................................................................101, 993–5    Art 60(1).............................................................................................................................972    Art 60(2).............................................................................................................................986    Art 61..........................................................................................................................943, 978    Art 61(1).............................................................................................................................975    Art 61(2).............................................................................................................................976    Art 61(2)-(4)......................................................................................................................986    Art 62..................................................................................................................................978    Art 62(1).............................................................................................................................943    Art 62(1) (former).............................................................................................................231    Art 62(5).............................................................................................................................243

xliv  TABLE OF LEGISLATIVE AND RELATED ACTS

   Art 63 (former)..................................................................................................................663    Art 64(1).............................................................................................................................722    Art 64(a).............................................................................................................................977    Art 64(b).............................................................................................................................977    Art 65..................................................................................................................................986    Art 67(1).....................................................................................................................872, 988    Art 69(1)-(3)......................................................................................................................276    Art 69(2).............................................................................................................................277    Art 69(3).............................................................................................................................989    Art 69(4).............................................................................................................................278    Art 70(2).............................................................................................................................992    Art 71(4).............................................................................................................................986    Art 72..................................................................................................................................978    Art 73..........................................................................................................................165, 655    Arts 73 et seq........................................................................................................98, 613, 633    Art 73(1).....................................................................................................................633, 722    Art 73(2).............................................................................................................................634    Art 74................................................................................................................................1086    Art 74(1).............................................................................................................631, 634, 970    Art 74(2).....................................................................................................................631, 634    Art 74(3).............................................................................................................................972    Art 74(4).....................................................................................................................634, 988    Art 75..................................................................................................................................655    Art 75(1).....................................................................................................................631, 972    Art 75(2).............................................................................................................................637    Art 75(3).............................................................................................................................635    Art 76..................................................................................................................................786    Art 76(1).....................................................................................................................635, 820    Art 76(2).............................................................................................................................635    Art 77..........................................................................................................................634, 655    Art 78..................................................................................................................................634    Art 79............................. 98, 226, 228–9, 232, 256, 557, 668, 725, 959, 972, 989, 1032, 1114    Art 79(1).............................................................................................224–5, 227–8, 231, 722    Art 79(10)...........................................................................................................................230    Art 79(2).....................................................................................................................228, 234    Art 79(3).............................................................................................................................228    Art 79(5).............................................................................................................227, 235, 989    Art 79(7).............................................................................................................................178    Art 79(9).............................................................................................................236, 244, 256    Art 80............................................................................ 98, 661, 664, 667–8, 675–6, 961, 972    Art 80(1)...............................................................................................................663, 669–70    Art 80(2).................................................................................................673–4, 676, 722, 961    Art 80(3)........................................................................................................................ 668–9    Art 81..................................................................................................................104, 152, 738    Arts 81 et seq................................................................................................................98, 699    Art 81(1).............................................................................................................716, 722, 969    Art 81(2).............................................................................................................152, 724, 984



TABLE OF LEGISLATIVE AND RELATED ACTS xlv

   Art 81(2)(b)........................................................................................................................716    Art 81(2)(c)................................................................................................................104, 718    Art 82..........................................................................................................................125, 152    Art 82(1).............................................................................................................152, 732, 738    Art 82(2).....................................................................................................................738, 984    Art 82(3).............................................................................................................................740    Art 83..................................................................................................................................125    Art 84(2).....................................................................................................................726, 972    Art 85..................................................................................................................................719    Art 85(1).....................................................................................................................723, 969    Art 85(3).............................................................................................................................730    Art 86(1).............................................................................................................................969    Art 87....................................................................................................................................98    Art 88.............................................................................................. 191, 195, 198, 753–4, 988    Arts 88-89.............................................................................................................................98    Art 88(2).............................................................................................................................752    Art 89.......................................................................................................... 191, 195, 198, 988    Art 89(2)..................................................................................................... 180, 192, 195, 682    Arts 90 et seq........................................................................................................................98    Art 91(1).............................................................................................................................153    Art 92.......................................................................................................... 144, 154, 959, 972    Art 92(1).............................................................................................................................147    Arts 94 et seq........................................................................................................................98    Art 94(2).....................................................................................................................761, 768    Art 95(1).................................................................................................................981–3, 986    Art 95(2)...........................................................................................................................1011    Art 97..........................................................................................................................768, 988    Art 98(1).............................................................................................................................785    Art 98(2).............................................................................................................................819    Art 98(3).............................................................................................................................792    Art 98(4).....................................................................................................................792, 972    Art 99(1).....................................................................................................................815, 820    Art 99(2).............................................................................................................................820    Art 99(3)........................................................................................................................ 821–2    Art 99(4).....................................................................................................................822, 972    Art 99(5).....................................................................................................................821, 988    Art 100....................................................................................................................148–9, 806    Art 100(1)...................................................................................................................794, 821    Art 100(2)...................................................................................................................793, 822    Art 101............................................................................ 83, 98, 100–1, 149, 926, 972–3, 979    Art 102............................................................................................................149, 1024, 1062    Arts 102 et seq..................................................................................................98, 1022, 1116    Art 102(2)........................................................................................... 1025, 1062, 1103, 1105    Art 102(3)..................................................................................... 125, 996, 1062, 1105, 1112    Art 103..........................................................................................................1024, 1105, 1109    Art 104....................................................................................................................1024, 1039    Art 105....................................................................................................................1024, 1106

xlvi  TABLE OF LEGISLATIVE AND RELATED ACTS

   Art 105(2).........................................................................................................................1109    Art 105(2)(a)....................................................................................................................1110    Art 106....................................................................................................................1024, 1111    Art 107....................................................................................................................1025, 1116    Art 107(1).................................................................................................................982, 1111    Art 107(2).........................................................................................................................1111    Art 107(3)...............................................................................................................1011, 1111    Art 108....................................................................................................................1025, 1111    Art 109....................................................................................................................1025, 1111 Rules of the Permanent Court of International Justice...................... 122, 125, 138, 144, 149, 243, 633–4, 664, 671, 722, 779, 793    Art 35(2).............................................................................................................................183    Art 38..................................................................................................................................227    Art 43..................................................................................................................................960    Art 57..................................................................................................................................634    Art 58..........................................................................................................................700, 722    Art 59..................................................................................................................................700    Art 61(4).............................................................................................................................617    Art 62(5).............................................................................................................................243    Art 66(2).............................................................................................................................779    Art 66(5).............................................................................................................................793    Art 71..................................................................................................................................125    Arts 71-74.........................................................................................................................1030    Art 72................................................................................................................................1055    Art 73..................................................................................................................................146    Art 75..................................................................................................................................768    Art 81..................................................................................................................................793    Art 82..................................................................................................................................651    Art 83..................................................................................................................................125 Rules on Arbitration of the United Nations Commission on International Trade Law......70 Security Council Resolution 4 (1946).....................................................................................31 Security Council Resolution 9 (1946)....... 168, 171–4, 262, 286–8, 290–4, 486–7, 1004, 1185   para 1..................................................................................................................................288   para 2..................................................................................................................................290   para 3..................................................................................................................................291   para 4..................................................................................................................................292 Security Council Resolution 15 (1946)...................................................................................31 Security Council Resolution 47 (1948)...................................................................................33 Security Council Resolution 58 (1948).................................................................................111 Security Council Resolution 91 (1951)...............................................................................1194 Security Council Resolution 93 (1951)...................................................................................33 Security Council Resolution 132 (1959).................................................................................31 Security Council Resolution 138 (1960).................................................................................34 Security Council Resolution 242 (1967).................................................................................34 Security Council Resolution 284 (1970)...............................................................................902 Security Council Resolution 461 (1979)...............................................................................655 Security Council Resolution 502 (1982).................................................................................33



TABLE OF LEGISLATIVE AND RELATED ACTS xlvii

Security Council Resolution 637 (1989).................................................................................34 Security Council Resolution 731 (1992).................................................................................34 Security Council Resolution 748 (1992).........................................................609–10, 899, 914 Security Council Resolution 819 (1993)...............................................................................655 Security Council Resolution 827 (1993)...........................................................................60, 68 Security Council Resolution 883 (1993)...............................................................................609 Security Council Resolution 910 (1994)...............................................................................850 Security Council Resolution 915 (1994)...............................................................................850 Security Council Resolution 955 (1994)...........................................................................60, 68 Security Council Resolution 1244 (1999).............................................................................268 Security Council Resolution 1757 (2007).........................................................................60, 68 Single Convention on Narcotic Drugs, 1961    Art 48..................................................................................................................................410 Sino-Belgian Treaty, 1865.................................................. 194, 452, 616, 629, 634–5, 680, 983 Slavery Convention, 1953    Art 8....................................................................................................................................410 Statute of the Court of Justice of the European Communities, 2004...................................68 Statute of the International Court of Justice    Art 1........................................................................................................................59, 79, 799    Art 2...................................................................................... 109, 111–12, 115–16, 897, 1033    Arts 2 et seq..........................................................................................................................79    Art 3......................................................................................................................87, 111, 163    Art 3(1).......................................................................................................................109, 122    Art 3(2)........................................................................................................................ 109–10    Art 4(1).............................................................................................................................1040    Art 4(2)...............................................................................................................................139    Art 4(3)...............................................................................................................................111    Art 5....................................................................................................................................139    Art 6............................................................................................................................. 139–40    Art 7....................................................................................................................................140    Art 7(1)...............................................................................................................................139    Art 7(2)...............................................................................................................................139    Art 8............................................................................................................................... 140–1    Art 9.............................................................................. 104, 109, 113–16, 140, 146, 151, 892    Art 10............................................................................................................................. 140–1    Art 10(2).......................................................................................................................63, 141    Art 11..................................................................................................................................140    Art 12............................................................................................................................. 140–1    Art 13(1)........................................................................................................................ 138–9    Art 13(3).......................................................................................................1109, 1190, 1192    Art 13(4).............................................................................................................................132    Art 14..................................................................................................................................139    Art 15..................................................................................................................................139    Art 16(1).............................................................................................................................133    Art 17............................................................................................................................. 136–7    Art 17(1)........................................................................................................................ 134–5    Art 17(2).......................................................................................................123, 135–6, 1135

xlviii  TABLE OF LEGISLATIVE AND RELATED ACTS

   Art 17(3).............................................................................................................................137    Art 18....................................................................................................................................79    Art 18(1).....................................................................................................................132, 155    Art 19......................................................................................................................79, 1191–2    Art 20....................................................................................................................................82    Art 21....................................................................................................................................79    Art 21(2).............................................................................................................................155    Art 21(3).............................................................................................................................155    Art 22....................................................................................................79–80, 88, 1190, 1207    Art 23....................................................................................................................................79    Art 24..................................................................................................................123, 134, 137    Art 24(1).............................................................................................................................135    Art 24(2)........................................................................................................................ 134–5    Art 24(3).............................................................................................................................134    Arts 25-29.............................................................................................................................79    Art 25(1).............................................................................................................................109    Art 25(2).............................................................................................................................137    Art 25(3).....................................................................................................................137, 981    Art 26.................................................................................... 109, 116, 146–7, 154, 988, 1116    Art 26(1)....................................................................................... 116, 144–5, 150, 153, 1116    Art 26(2)................................................................... 99, 104, 116–17, 144–6, 150, 153, 1116    Art 26(3).............................................................................................................................149    Art 27..........................................................................................................................146, 149    Art 29.......................................................................................... 143, 146–7, 149, 151, 153–5    Art 30............................................... 79, 98, 101–5, 661, 673, 726, 752–3, 786, 793, 804, 821    Art 30(1)....................................................................................... 96, 251, 701, 778, 973, 987    Art 30(2).............................................................................................................................153    Art 31...............................................79, 118, 121, 123, 125, 135, 1024, 1112–13, 1124, 1136    Art 31(2).............................................................................................................120, 124, 164    Art 31(2)-(4)......................................................................................................................721    Art 31(4).....................................................................................................................126, 152    Art 31(5).......................................................................................................127–30, 531, 998    Art 31(6).............................................................................................................................120    Art 32....................................................................................................................................79    Art 32 (former)....................................................................................................................83    Art 32(7)...........................................................................................................................1190    Art 32(8)...........................................................................................................................1191    Art 33..........................................................................................................................79, 1188    Art 34.................................................................88, 203, 252, 254, 260, 272, 275–8, 686, 726    Arts 34 et seq..................................................................................................79, 212, 214–15    Art 34(1).........................................60, 259, 261–4, 266–70, 272–3, 275–6, 280–1, 296, 337, 471, 575, 699, 726, 764, 897, 1003, 1021, 1057, 1082, 1101, 1206    Art 34(2)...................................................................................................................... 276–80    Art 34(3).......................................................................................................276–80, 959, 968    Art 35............................................................................. 170–1, 203, 215, 252–4, 260–2, 267, 270, 293–4, 686, 699, 726, 731, 1004, 1106    Art 35(1)................................................................................... 168, 173, 280, 285, 294, 1171



TABLE OF LEGISLATIVE AND RELATED ACTS xlix

   Art 35(2)...................................................................... 93, 156, 159, 168, 172–3, 283, 285–8, 291, 293–4, 424, 487, 836, 1121–2, 1171    Art 35(3)...............................................................................................268, 285–7, 289, 1188    Art 36................................................ 203, 212, 214–15, 297–8, 353, 355, 358, 373, 375, 386, 394, 397, 457, 459, 479, 484, 507, 519, 589, 686, 697, 737    Art 36(1)............................... 161, 212, 273, 290, 298, 319–20, 337, 350, 353–5, 375–6, 380, 382, 394, 398, 401, 414–15, 427, 476, 517, 547, 557, 585, 915, 1124    Art 36(1)-(5)......................................................................................................................604    Art 36(2)................... 176, 182, 208, 212, 215, 249, 290, 296, 298, 304, 311, 319–20, 337–8, 346, 353, 355–8, 375–6, 378, 380, 383, 385–6, 390, 398–9, 401–2, 405–7, 422, 427, 447–8, 450–1, 453, 455, 457–9, 461–2, 472, 474–6, 478–80, 484, 487, 490, 492, 494, 497, 504–7, 516–17, 521, 525–6, 528, 535, 547, 556, 574, 585, 587, 592, 603, 734–5, 825, 872–4, 993, 1014, 1033, 1124, 1133, 1201    Art 36(2)(c)................................................................................................................349, 354    Art 36(3)..................................................................447, 457, 459, 461, 474–5, 478, 480, 484    Art 36(4)....................................................................................................... 44, 447, 457, 459    Art 36(5)........................................57, 218, 294, 386–8, 390, 460, 528–9, 589–601, 1167–70    Art 36(6)................................... 44, 123, 239, 293, 312, 400, 416, 421, 428, 460, 497, 504–5, 510–11, 516, 551, 600, 603–6, 662, 673, 714, 914, 1057    Art 37............... 58, 218, 294, 392, 397, 529, 589–91, 593, 595, 597–600, 686, 1167–8, 1194    Art 38.........................................................57, 203, 212, 214–15, 297–8, 353, 355, 915, 1033    Art 38(1)...................................................... 299, 311, 320, 337, 340, 355, 359, 366, 434, 748    Art 38(1)(a)....................... 57, 66, 271, 338–9, 341–2, 346, 355–6, 587, 611, 701, 748, 1201    Art 38(1)(b)..........................................................................................................................66    Art 38(1)(c).......................................................................................... 66, 113, 340, 360, 466    Art 38(2).................. 70, 183, 299, 311, 319, 340–2, 360–1, 366, 368–70, 729, 748, 757, 926    Art 38(5)...............................................................................................................549–50, 633    Art 39................................................................................................................79, 990–1, 993    Arts 39 et seq........................................................................................................................79    Art 39(3)........................................................................................................................ 991–2    Art 40...........................................................................79, 163, 166, 183, 398, 676, 699, 1124    Art 40(1)............................................................161, 163–4, 183, 311, 531–2, 956, 984, 1132    Art 40(2)..................................................................................................... 163, 183, 956, 984    Art 40(3).............................................................................................................................984    Art 41.......................................... 79, 164, 172, 509, 604, 615–19, 622–3, 626, 628, 630, 634, 646–8, 652–3, 655, 657, 796–7, 847, 956, 1132, 1181, 1205    Art 41(1).....................................................................................................................613, 620    Art 41(2)..................................................................................... 613, 615, 634, 639, 643, 655    Art 42..........................................................................................................................79, 1124    Art 42(1)........................................................................................................................ 983–4    Art 42(3)...........................................................................................................................1192    Art 43...................................................................................... 80, 188, 272, 957–8, 975, 1124    Art 43(1).....................................................................................................................272, 972    Art 43(2).....................................................................................................................959, 964    Art 43(4).....................................................................................................................954, 967    Art 43(5).....................................................................................................................971, 976    Art 44(2)...........................................................................................................................1191

l  TABLE OF LEGISLATIVE AND RELATED ACTS

   Art 45..................................................................................................................976, 986, 989    Art 46........................................................................................................80, 954, 971, 993–7    Art 48.........................................................................80, 104, 643, 836, 956, 965, 987–8, 995    Art 49.......................................................................................................... 929, 943, 959, 976    Art 49(1).............................................................................................................................960    Art 49(2).............................................................................................................................960    Art 49(3).............................................................................................................................960    Art 53...................................................................80, 195, 636, 677–87, 689, 691–2, 938, 983    Art 53(1).............................................................................................................................682    Art 53(2).................................................................................................................679, 683–6    Art 54(1).....................................................................................................................974, 978    Art 54(2)...............................................................................................................83, 631, 978    Art 54(3)........................................................................................... 83, 213, 954, 978–9, 995    Art 55............................................................................................................................80, 979    Art 55(2).....................................................................................................................110, 981    Art 56............................................................................................................................80, 979    Art 56(1).....................................................................................................................980, 982    Art 57................................................................................................................................1011    Art 58............................................................................................................ 80, 83, 985, 1010    Art 59.................................64, 80, 174, 237, 239, 317–18, 348, 370, 566, 570, 572, 575, 579, 581–2, 641, 646, 678, 695, 713–14, 716, 741–2, 757, 759–72, 831, 835–7, 840–2, 850–1, 854–5, 857, 911, 940, 949, 1056, 1094–5, 1102    Art 60...................................... 80, 148, 238, 311–12, 552, 641, 683, 721–2, 762, 768–9, 772, 776–90, 793, 795–802, 804, 806, 811, 824, 826, 828, 1115    Arts 60-61...........................................................................................................................370    Art 61............................................ 80, 148, 240, 604, 617, 684, 690, 693, 721–2, 762, 768–9, 785, 796, 802, 804, 806–12, 814–17, 820, 822–8, 851, 1115–16    Art 61(1)...............................................................................................................812–13, 819    Art 61(2).................................................................................................................812, 822–3    Art 61(3).................................................................................................................821–3, 827    Art 61(4).............................................................................................................................818    Art 61(5).............................................................................................................................818    Art 62................................................ 104, 124, 152, 183, 230, 293–4, 306, 347, 369–70, 392, 577–8, 694–708, 711–13, 715–20, 722–3, 726–9, 731–3, 735–8, 764, 780–1, 787, 837, 968–9, 1115, 1157, 1161, 1173    Arts 62-63.............................................................................................................80, 604, 676    Art 62(1)..................................................................................................... 706, 708, 712, 726    Art 62(2).............................................................................................................................704    Art 63..........................................124, 152, 183, 193, 277, 293–4, 369, 566, 694–702, 704–5, 710, 717, 720, 725–42, 757, 764, 767, 780–1, 787, 837, 968–9, 1115    Art 63(1)............................................................................................. 163, 276, 732, 735, 739    Art 63(2).................................................................................................700, 728, 740–1, 772    Art 64..................................................................................................................80, 987, 1002    Art 65..............................................................................56, 80, 214, 297, 370, 1023–4, 1033, 1035, 1037–8, 1065, 1083, 1085–6, 1100–1    Arts 65 et seq........................................................................................................80, 83, 1022    Art 65(1)......................................................1021, 1023, 1031, 1033, 1036, 1068, 1073, 1081



TABLE OF LEGISLATIVE AND RELATED ACTS li

   Art 65(2)...................................................................................................1023–4, 1039, 1104    Art 66.......................................................................... 80, 1023–4, 1026, 1105–6, 1109, 1115    Art 66(1)...........................................................................................................................1106    Art 66(2)..................................................................................... 989, 1050, 1106, 1111, 1123    Art 66(3)...........................................................................................................................1111    Art 66(4)............................................................................................... 989, 1024, 1106, 1110    Art 67................................................................................................................80, 1023, 1111    Art 68............. 80, 125, 981, 996, 1001, 1023, 1025, 1030, 1039, 1102–3, 1111–12, 1114–15    Art 69...........................................................80, 87, 95, 163, 272, 277, 540, 739, 912, 1204–7    Arts 69-70.......................................................................................................................58, 80    Art 70....................................................................................................................................80 Statute of the International Criminal Court..........................................................68, 436, 913    Art 16..................................................................................................................................913    Art 36(8).............................................................................................................................115 Statute of the International Tribunal on the Law of the Sea    Art 2(2)...............................................................................................................................115    Art 20(2).............................................................................................................................276    Art 33(1).............................................................................................................................874 Statute of the Permanent Court of International Justice.................. 52, 54–5, 59, 86–9, 91–2, 97, 109–10, 114, 133, 145–6, 276, 280, 294–5, 337, 596–7, 745, 762, 805, 818, 994, 1012    Art 3..............................................................................................................................87, 110    Art 9....................................................................................................................................110    Art 10(1).............................................................................................................................141    Art 33................................................................................................................................1188    Art 34..................................................................................................................................267    Art 34(1).................................................................................................................264–5, 267    Art 36....................................................................................................................................58    Art 36(2).......................................................................................................................57, 358    Art 38..........................................................................................................................336, 340    Art 46..........................................................................................................................994, 996    Art 57................................................................................................................................1013    Arts 65-67.........................................................................................................................1030 Statute of Westminster, 1931.................................................................................................264 Treaties on the Harmonisation of Business Law in Africa, 1993...........................................68 Treaty establishing the Common Market for Eastern and Southern Africa, 1993................68 Treaty for the Prohibition of Nuclear Weapons in Latin America, 1967    Art 24..................................................................................................................................410 Treaty of friendship, conciliation and judicial settlement of 14 March 1949 between Italy and Turkey    Arts 18-24...........................................................................................................................396 Treaty of Friendship, Trade and Navigation (Nicaragua/USA), 1956...................................................................................... 182, 413, 437, 440, 587, 1157    Art XXI(d)..........................................................................................................................440    Art XXIV(2)...............................................................................................................433, 437 Treaty of Friendship and Cooperation between Djibouti and France, 1977......................550 Treaty of Lausanne, 1923........................................................................... 169, 255, 1076, 1134

lii  TABLE OF LEGISLATIVE AND RELATED ACTS

  Protocol XII........................................................................................................169, 255, 436 Treaty of Saint-Germain-en-Laye, 1919...............................................................................341 Treaty of Versailles, 1919.................................................74, 84, 172, 322, 367, 740, 1061, 1144    Art 256................................................................................................................................665    Art 435(2)...........................................................................................................................320   Pt XIII.........................................................................................................................322, 409 Treaty on conciliation, judicial settlement and arbitration between Switzerland and the United Kingdom, 1965..................................................................................................396 Treaty on the European Communities, 1957    Art 177 (former)......................................................................................................869, 1207    Art 234..............................................................................................................................1207    Art 292..............................................................................................................................1201 Treaty on the Southern African Development Community, 1992    Special Protocol, 2000..........................................................................................................68 Treaty on the Status of the Uruguay River between Uruguay and Argentina, 1975    Art 1....................................................................................................................................432    Art 41..................................................................................................................................432    Art 60..................................................................................................................................411 UN Headquarters Agreement, 1947..........................................................................1049, 1100    Art VIII(21).............................................................. 302, 307–8, 446, 651, 1049, 1075, 1100    Art VIII(21)(a).....................................................................................................60, 446, 651    Art VIII(21)(b).................................................................................................................1049 UN Staff Regulations    Art 109(1)(a)....................................................................................................................1194 UNAT Statute.............................................................................................................1101, 1181    Art 11................................................................................................................................1047    Art 11(1)...........................................................................................................................1079 Universal Copyright Convention, 1952    Art XV................................................................................................................................410 Vienna Convention on Consular Relations, 1963........................................ 195, 410, 416, 627 Vienna Convention on Diplomatic Relations, 1961....................................................159, 416 Vienna Convention on the Law of Treaties, 1969/1986.............. 340, 424, 427, 439, 488, 496, 498, 508, 539, 597, 701, 804, 889, 912, 1102    Art 18.......................................................................................................... 437, 612, 642, 735    Arts 19-23...........................................................................................................................424    Art 19(c).............................................................................................................................425    Art 20(4)(b)........................................................................................................................427    Art 21(1).............................................................................................................................427    Art 21(3).............................................................................................................................427    Art 25..........................................................................................................................422, 424    Art 28..................................................................................................................................422    Arts 31-33...................................................................................................................488, 544    Art 31(4).....................................................................................................................489, 937    Art 33..........................................................................................................................596, 646    Art 35..........................................................................................................................197, 735    Art 36..........................................................................................................................197, 735    Art 44(3)......................................................................................... 497–8, 504, 508, 528, 701



TABLE OF LEGISLATIVE AND RELATED ACTS liii

   Art 44(3)(b)........................................................................................................................507    Art 45..................................................................................................................................539    Art 46..................................................................................................................................223    Arts 46 et seq......................................................................................................................539    Art 53...........................................................................81, 412, 501, 769, 804, 889, 911, 1100    Art 56.............................................................................................................. 88, 91, 456, 463    Art 60..........................................................................................................................283, 420    Art 60(4).....................................................................................................................408, 420    Art 62..................................................................................................................................420    Art 64........................................................................................................................412, 1100    Art 66........................................................................................................................412, 1102    Art 66(2)(a)........................................................................................................................412    Art 66(a).............................................................................................................................804    Art 66(b)-(e)....................................................................................................................1100    Art 69(2).............................................................................................................................895    Art 79..................................................................................................................................768   Art18...................................................................................................................................438 Washington Convention for the Settlement of Investment Disputes between States and Nationals of other States, 1965    Art 64..................................................................................................................................410 Westphalia Treaties, 1648.............................................................................................4, 40, 601 WHO Agreement, 1994...........................................................................................................68 WHO Constitution    Art 2..................................................................................................................................1060 Yalta Agreements, 1945............................................................................................................54

I Initial Observations on the Peaceful Resolution of International Disputes 1.  IMPORTANCE AND CONTEXT

a)  Disputes are Normal, but Give Rise to Various Dangers Despite the hyperbole that often surrounds them, there is nothing dramatic, and nothing remotely unusual, about differences or disputes between States. The two words have different nuances, ‘difference’ emphasising the underlying roots of the problem. A difference exists whenever there are differing opinions as to obligations, conduct or interests. Differences, then, are the necessary corollary of the liberty of a ‘subject-of-law’, and thus of pluralism itself. In any group of individuals, one inevitably finds a range of differences – differences of views, interest and will. From time to time there are bound to be clashes. In this sense, differences are essential elements of any society, however small it may be. They are also highly instructive for those directly involved, enabling them to register the views of others and so to participate properly in society, reducing the element of narcisstic autism that, to some degree, afflicts us all, enriching perspectives, providing opportunities to think about the implications of opposing attitudes, and maturing peoples’ ideas, so that, in various ways, they emerge the stronger for having been involved. In short, a difference can be both a disaster and an opportunity. This is true both for individuals and for States. By contrast, the word ‘dispute’ tends to connote the other, more legal side of the coin. Like a difference, a dispute involves the pain of argument, irritation and difficulty. It sets people at odds. It creates ill will, undermines mutual confidence, and creates artificial barriers. It gives rise to the kind of mutual ill feeling that can break out even after long dormant periods, especially if the dispute is a profound and long-lasting one.1Sometimes it sets in motion violent reactions. Far from being an opportunity, a dispute, seen in this light, has many of the characteristics of a kind of gangrene, swollen with fear and menace. If we pause to think about the wondrous ambivalence of these phenomena, reflecting, as they do, the profound relativity of human realities, we have to conclude that differences are, at one and the same time, inevitable (even salutary) and dangerous. It follows that although we must accept their existence, we need to create structures to contain them and prevent their degenerating to the detriment of all concerned.2 On the one hand, therefore, steps to ensure that the number of existing differences does not become excessive are obviously desirable. Even the friendliest and most amicable inter-State relations will inevitably   Confucius tells us to be careful about our ideas and our feelings – they are the origins of our actions.   As to the tendencies of individuals and communities (even the most primitive ones) to conceptualise violence and have recourse to it, cf R Girard, La violence et le sacré (Paris, 1990). 1 2

2  PEACEFUL RESOLUTION OF INTERNATIONAL DISPUTES

suffer if the atmosphere is soured by a great number of differences; by contrast, the emergence over time of one or two more or less isolated differences will not normally do any real harm. On the other hand, it is obviously necessary to establish social or institutional mechanisms to deal with the differences that do arise. Although the emergence of a difference is, as noted above, not normally a dramatic event per se, only an inadequately organised society will allow it to persist, develop and fester. If it is not treated properly, it starts to suppurate.3 At every stage in the development of human society, there have always been solutions, that is ways of resolving differences. They need close and continuing attention.

b)  Ways of Containing Differences within the Margins of Internationally Acceptable Behaviour Various mechanisms can be used to help ensure that the differences existing at any one time do not exceed the capacity of society to cope. The most important is a legal order. In the international community, consisting primarily of sovereign States, the preventive function of the legal order is fulfilled by public international law. The rule of law, that is, of known and identifiable norms, is designed to reduce the frequency with which differences to turn into disputes. It does this by laying down rules of conduct and by defining categor­ ies applicable to a wide range of concrete circumstances. Thus people do not need, for example, to think out the law of ownership de novo each time round, with all the attendant risks and dangers that would involve. In this way, the rule of law extracts, from the jumble of competing interests within the community, a number of normative points that will, in future cases, be of general application. The legal stability created by this process cements relationships in every field it concerns. Of course law does more than just lay down rules. It also embodies open and transparent standards, in accordance with which rules and principles, which in themselves are sometimes fairly vague, can be applied to concrete circumstances. In addition, it provides for discretionary powers, for equitable rules, for the principles of good faith, proportionality, equitable interpretation and so on. At all times, lawmakers must, in order that the law can succeed in its primary aim of ensuring the peace of the community,4 take care to strike a reasonable balance between, on the one hand, the strictness of the law (ensuring certainty), and, on the other hand, its flexibility (enabling law to be adapted to circumstances and to the needs of fairness and equity). The nature of the balance depends fundamentally on the topics governed by the legal regime in question and on the nature of the society or community that is subject to that regime. As a general proposition, the clearer and stricter the rules, the more effectively they tend to prevent differences from arising. Nevertheless, this idea should not be taken to extremes, since an   See M Bourquin, Vers une nouvelle Société des Nations (Neuchâtel, 1945) 107–108.   The first objective of all law is to ensure social peace and thus reduce the primacy of force. The first test of its efficacy is its capacity to achieve this objective. The German legal philosopher H Coing puts it very well: ‘Die Rechtsordnung ist Friedensordnung. Das zeigen uns vor allem ihre Anfänge. Der Friede und das Recht kommen gemeinsam; das Recht bringt den Frieden, und Herstellung des Friedens ist Voraussetzung für die Entfaltung des Rechts. Überall, wo Recht sich entwickelt, löst es den gewaltsamen Kampf ab und setzt eine friedliche Lösung an seine Stelle. Rechtsverfahren tritt an die Stelle von Selbsthilfe. In diesem Sinn kann man sagen, dass das Verbot der Eigenmacht der Beginn und die dauernde Grundlage der Rechtsordnung ist.’ See H Coing, Grundzüge der Rechtsphilosophie, 4th edn (Berlin/New York, 1985) 142. See also the Message of Pope John-Paul II for the international day of peace, 1 January 2004, (published by the Vatican) 7: ‘La pace ed il diritto internazionale sono intimamente legati fra loro: il diritto favorisce la pace.’ 3 4



IMPORTANCE AND CONTEXT 3

excessively prescriptive regime, laying down too many strict and precise rules, can have similar effects to its polar opposite – too few rules or none at all. It is difficult or impossible for an inflated plethora of rules to give usable guidance as to the conduct either of individuals or of States. We are, however, on safe ground in recognising that anything which strengthens international law, or which assists in its codification (making the rules clearer and more accessible), and which extends the fields regulated by it, does, to some extent, tend to prevent the emergence of disputes. If we take this analysis a step further, it becomes clear that the development of inter­ national law has a particular tendency to prevent a certain type of difference from arising. Where there are no legal rules, differences often arise directly from the clash of individual interests. No State is in a position to insist that its own claims must prevail, even if only because of the principle of equality between States. In such circumstances, differences over claims to assets, to resources or to powers, are relatively sharp, and relatively difficult to resolve through conciliation. Each State is conscious of having excellent reasons that justify its sovereign intransigence. Each believes it has the right to impose its will, on the principle that everything not actually prohibited to a sovereign State is permissible to it. Such differences are primarily political in nature: the law itself leaves the field to the free action of each State and imposes no restrictions, since ex hypothesi no legal rules apply. Such differences can of course be resolved by conciliation, if the States involved consent. But in the past, acts of violence, if not open war, often resulted. However, as soon as legal rules develop, the number of such differences declines. Of course, from a purely technical point of view, the growing number of legal rules can increase the number of ‘differences’ in the broad sense of that term, on the basis that the more rules you have, the more possibilities exist for disagreement about their meaning and consequences. So, differences about the interpretation of the rules will become more frequent, at least to some extent. This effect is partly quantitative but also qualitative: a new culture emerges of ‘advancing one’s point of view’ and so claiming one’s rights. However, differences of this latter kind are really in a second category, more ‘domesticated’ and altogether less worrying, since they are legal differences – they relate to the interpretation and application of the law. In such cases, the difference is ‘mediatised’ by the law, which effectively strips it of its sharpest and ugliest thorns. The differences wear a relatively demure garb, making it easier to reconcile conflicting interests and so find solutions. States are more willing to submit such disputes to international tribunals; recourse to violence is relatively rare. Except, therefore, for certain subjects which, in political terms, are particularly sensitive (such as rules of law on the preservation of peace and on non-recourse to the use of force), the development of international law has a tendency to improve the typology of the disputes that arise. This enables the international community increasingly to move over, from conflicts about the primary rights of States, into a field of secondary conflict, about the interpretation of legal norms. Peace and international understanding are the gainers, formalistic legal rituals replacing the often brutal perorations of power policies.

c)  Nineteenth-Century Mechanisms for Dealing with Disputes The effects of a difference on a society or community also depend, to a considerable extent, on what mechanisms are available for resolving them, and thus for heading off the potential

4  PEACEFUL RESOLUTION OF INTERNATIONAL DISPUTES

threat to mutual understanding and ultimately even to peace. Legal history shows that, in primitive societies, the resolution of a difference is normally left to the person wronged, or to his clan.5 The main way of achieving such ‘resolution’ of differences is through reprisals, particularly bloodshed (Blutrache or blood feud). Such reprisals are relatively small-scale when the only actor is the person injured. But things get much more serious if his entire family (or clan) seeks vengeance against the author of the wrongful act. Society in general is not concerned with such acts of vengeance, except in the specific case where they degenerate into a ‘little war’, involving the entire tribe. This was still the way of things in the early history of Rome (up at least to the Twelve Tables of the Law in the fifth century BC). But, little by little, with the consolidation of political society, this right to make what in fact amounted to one’s own ‘judgment’ was transferred to the organs of public justice.6 It is clear that early law was not heavily focused on what we would now call the ‘resolution of the difference’, and still less on its ‘peaceful resolution’. The system’s real concern was with vengeance. The word itself is predicated upon a wrong, an illicit act. The mechanisms for dealing with it were thus concerned not with prevention, but with the appropriate response: differences were not to be ‘regulated’ – rather, the injured party was to be recompensed because the difference had led to a violation of his rights. The remedy, moreover, was as bad as the wrong itself. The concept of a reprisal was exactly that, retribution for the wrong done. Also, reprisals were a decentralised affair, and consequently fairly anarchic. Violence begat violence, through spirals of reprisal. This, of course, far from preserving the peace, severely undermined it. Such systems left no scope for the law-as-pacifier. As regards private differences, all it did was to allow private vengeance. Looking no further back than the classic nineteenth-century manuals of international law,7 one searches in vain for a full chapter on the peaceful settlement of disputes. Such chapters could not be written, because their contents were simply alien to the contempor­ ary system of international law. International law on the subject of peace was limited. Disputes were overwhelmingly considered on the political (not legal) plane, as issues affecting the sovereign rights of the disputing States. It should moreover be remembered that, a century and a half ago, the use of force to resolve disputes was not prohibited. On the contrary, war was the ultimate sanction for the existing rules of international law, that is a legitimate instrument of national policy. The international community of the time was, in this respect, underdeveloped by comparison with the civil society of the period. Ever since the Peace of Westphalia in 1648, the dominant doctrine of each State’s independent sovereignty had been reflected, as its natural corollary, in an international community of States which were, from the legal perspective, equal, with no authority superior to any individual State. Above all, each State, superiorem non recognoscens, was considered free to act as it thought fit, and the right to declare war and resort to armed force was considered an inalienable attribute of its sovereignty.8 International law was considered not so much a   See B Malinowski, Crime and Custom in Savage Society (London, 1926).   For a rapid view of this topic, see N Politis, La justice internationale (Paris, 1924) 8 et seq. 7   See as regards this and subsequent periods WG Grewe, The Epochs of International Law (Berlin/New York, 2000) 93 et seq., 199 et seq., 363 et seq., 517 et seq., 611 et seq., 667 et seq. 8   ‘Sovereignty killed off the theory of the justum bellum. States’ claim not to have to account for their actions caused them also to claim the right to use their strength in whatever way they saw fit’ [our translation]: N Politis, Les nouvelles tendances du droit international (Paris, 1927) 100–101. This jus ad bellum was so fundamental that it merged into the inalienable and imprescriptible right of survival, developed on the model of individual rights as proclaimed in the US and French declarations of the rights of man. To take away that right would have been tantamount to destroying the State, depriving it of one of its essential attributes. 5 6



IMPORTANCE AND CONTEXT 5

limitation on that right, as an instrument in its service.9 In other words, international society was, above all, united (or disunited) by ties that were political rather than legal in nature. This quite classical form of international society thus remained what philosophers termed a ‘natural’ as opposed to a ‘civil’ one.10 As a matter of categorisation, it might be said that this exalted view of sovereignty led to the primacy of private justice as the mechanism for settling disputes (notably by reprisals and war), and that this state of affairs did much to keep the international community in a primitive state of development.11 Force was used to resolve political disputes, that is to resolve the numerous clashes of interest that were not governed by the international law of the time. Given the context, this was only natural. Violence was also used to resolve even disputes that were legal in nature, for example, over the applicability of rights and duties, and those arising from States’ reactions to violations of their rights. This made it possible for authors such as Hans Kelsen12 to write that force was, par excellence, the sanction of international law, a statement which puts the primitive character of the whole system into the spotlight. The law allowed recourse to a mechanism (violence) which was in itself antijudicial, and in effect gave it priority. Far from assisting in the preservation of the peace, the way to ensure respect for the law was to have recourse to war. Peace and justice were thus polar opposites, with a sharp conflict between them. The upshot was this, that there was no possibility of insisting, as a matter of international law, on the peaceful resolution of legal disputes. The sense of communal solidarity between States was not sufficiently strong to throw up common institutions, and only these could have provided more developed mechanisms for the peaceful resolution of international disputes. The settlement of disputes was thus either a matter of diplomacy and transaction, or, failing agreement among the concerned States, a matter of violence or war. And so it was treated in the old textbooks. 9   Classical international law is modelled on realism. Unable to domesticate either sovereignty or the use of force, it accommodates them, even their paradoxes. In other words, this classical law is above all the servant of the States. Unsurprisingly, the violation of international law is seldom an issue, because such law is so easy to ‘obey’. It arises simply from the will of States and legitimises everything they do: quod fieris, ipsum valet. It contains relatively few rules, and makes no attempt to transcend the way things visibly are. It is concerned with the ‘is’ rather than with the ‘ought’. It gives States the right to do things, rather than trying to prevent their doing them. Its slant is thus towards the positivist model. In truth, it represents a great synthesis of norms which are both extremely diverse and often directly contradictory, eg as regards respect for the territorial sovereignty of other States. 10   See I Kant, Towards Perpetual Peace (1795) section II of the articles. Various authors emphasised the way in which international life lent itself to the misdeeds of power politics and the politics of violence. For an early example, see E Burke, A Vindication of Natural Society (1756). 11   This is what H Kelsen implied when he argued that international law was still ‘primitive’ (from this point of view): see particularly H Kelsen, ‘Théorie générale du droit international public’ Collected Courses of the Hague Academy of International Law (CCHAIL), vol 42, 1932-IV, 131; H Kelsen, ‘Théorie du droit international public’ CCHAIL, vol 84, 1953-III, 32, 44, 96; H Kelsen, Reine Rechtslehre (Leipzig/Vienna, 1934) 131 et seq. The same standpoint was adopted by numerous authors, eg P Guggenheim, Traité de droit international public, vol I (Geneva, 1953) 22 et seq. P Guggenheim, ‘Les principes du droit international public’ CCHAIL, vol 80, 1952-I, 27; JB Whitton, ‘La règle Covenanta sunt servanda’ CCHAIL, vol 49, 1934-III, 219; H Lauterpacht, The Function of Law in the International Community (Oxford, 1933) 406; R Ago, Scienza giuridica e diritto internazionale (Milan, 1950) 106, fn 2; JP Cot, ‘La bonne foi et la conclusion des traités’, (1968) 4 RBDI 141 ; J Kunz, ‘The Meaning and Range of the norm Covenanta sunt servanda’, (1945) 39 AJIL 196; Q Wright, ‘The Strengthening of International Law’ CCHAIL, vol 98, 1959-III, 112; B Simma, Das Reziprozitätselement im Zustandekommen völkerrechtlicher Verträge (Berlin, 1972) 17 et seq. H Hart, The Concept of Law (Oxford, 1961) 226. It was already found in the 19th century: R Piédelièvre, Précis de droit international public, vol I (Paris, 1894) 7. 12   H Kelsen, ‘Théorie générale du droit international public’ CCHAIL, vol 42, 1932-IV, 129–31; H Kelsen, ‘Théorie du droit international public’ CCHAIL, vol 84, 1953-III, 33 et seq.

6  PEACEFUL RESOLUTION OF INTERNATIONAL DISPUTES

This primitive system of ‘settling’ disputes was still possible in the nineteenth century, because its effects were still relatively limited. In the twentieth century, with the technical progress in the means of destruction, the growth of nationalism and the advent of mass conscription, not to mention growing international inter-dependence, war became far more cataclysmic in its implications and consequences.13 The old law was shown to be inadequate. The twentieth-century international community was no longer able to accept resort to war as a means of settling disputes. War had become too destructive to be acceptable for this purpose. In modern conditions, it was simply inappropriate. In consequence, international law entered an entirely new phase. The law gave birth to twin rules: nonrecourse to force and peaceful settlement of disputes. The legal position in the nineteenth century can be summarised as follows: −− Where there was a difference between States, they were permitted to negotiate and to engage in conciliation. The available means of peaceful settlement consisted of dip­ lomacy and international agreements (treaties). The law did not concern itself directly with the settlement of disputes, which was not part of the current legal regime. Instead, it approached the subject – and was able to gain a foothold in it – from a phenom­ enological perspective, focusing on the two key instruments used by States, namely diplomacy and treaties. The international law of the period developed instrumental rules telling States how (if they would) they should negotiate, and how (if they could) they might make treaties. But it imposed on them no obligations. It merely indicated, in a purely permissive way, their powers, and the instruments by which such powers might be exercised. The central pivot of the system remained the sovereignty of the individual State. At the same time, throughout the nineteenth century, the ‘Concert of Europe’ was engaged in ‘multilateralising’ the discussion of European problems. The so-called Concert did so, however, less for the purpose of settling disputes than of acting as a directorate of the powers, imposing territorial solutions to protect their common interests.14 Consequently, although the Concert was a precursor of the League of Nations and of the United Nations in so far as multilateral diplomacy and the definition of collective interests was concerned, it was no precursor to mechanisms for the settlement of disputes in the sense we nowadays give to the term. −− Nineteenth-century diplomatic exchanges could, as in our own day, lead to a situation in which the States concerned did not want to resolve, by direct agreement between themselves, a dispute which was too technical or legal in nature. It was already possible to refer such questions to arbitral tribunals with the necessary expertise. That, for example, is how the Alabama case was handled.15 Here again, in relation to international arbitration, international law developed instrumental rules. States could take their disputes to arbitration if they wished, but the law in no way obliged them to do so. −− If neither direct diplomacy nor indirect diplomacy (via conciliation or arbitration) led to a solution satisfactory to both sides, either had the right to use coercive methods short of war (in particular, armed reprisals), or even to declare war. This was a discretionary

  On this aspect, see R Kolb, Introduction au droit des Nations Unies (Basle/Brussels, 2008) 15–16.   On the functioning of the Concert and its role as precursor of the 20th-century international organisations, see S Hoffmann, Organisations internationales et pouvoirs politiques des Etats (Paris, 1954) 23 et seq.; and M Schulz, Normen und Praxis, Das Europäische Konzert der Grossmächte als Sicherheitsrat, 1815–1860 (Munich, 2009). 15   See N Politis, La justice internationale (Paris, 1924) 36 et seq. 13 14



IMPORTANCE AND CONTEXT 7

power vested in each State.16 Politically, it was a measure of last resort; but legally, the declaration of war was a formal act which did not require any other legal justification. To sum up, the international law of the nineteenth century contained no discrete regime on the peaceful settlement of disputes. There were two reasons for this. The first was that other legal institutions performed the same function – diplomacy, treaties, violence short of war, and war itself, operating so to speak in crescendo. The second was that there was no obligation to behave peacefully, since war was permitted as the ultimate means of resolving political or legal differences. What we find in the nineteenth century are precursors, but only precursors, of an international regime for the settlement of disputes. These precursors were then developed in the twentieth-century system, along lines that were new, and on the basis of new equilibria.

d)  The Emergence of International Law on the Peaceful Settlement of Disputes The main reason for the rapid evolution of international law on this subject, from its classical into its modern form, was the transformation of war. It evolved from a limited duel that enabled disputes to be resolved, into a cataclysmic phenomenon that was unacceptable to the international community, not only for the settlement of disputes, but also for any other purpose. The international community felt the need to limit recourse to war, rolling back a degree of violence which had taken on the proportions of a collective catastrophe. The First World War was emblematic, in a decisive way, of what modern war had come to imply. But already the development had been gathering pace with the Hague Conferences of 1899 and 1907,17 giving rise to a true international jus contra bellum,18 and, as a companion-piece, a law on the peaceful settlement of disputes.19 The international law on the maintenance of peace and the international law on the peaceful resolution of disputes make a pair, not only because of the historic ties between the two, but also for systemic reasons.20 To some extent they are, functionally, twin sides of the same coin. There are several ways in which to look at this. From one point of view, as we have seen, so long as international law permitted recourse to war, a discrete regime on the peaceful settlement of disputes could not be developed, because there was no point in it. International law could, of course, concern itself with the settlement of disputes, which were after all an ineluctable reality in the life of the international society. But the act of ‘settlement’, itself, was always left to the parties, since the international community was not yet sufficiently consolidated or institutionalised to take on any such burden. The fact that individual States were allowed to use force is the clearest testimony to this absence of any sufficient sense of communal 16   Almost every contemporary manual on international law passed in review through the three topics of diplomacy, coercive measures short of war and then war itself, as the means of giving effect to States’ claims. This was the case both of the great classic works (eg H Bonfils Manuel de droit international public, 3rd edn (Paris, 1901) 363 et seq., 513 et seq.) and of shorter works intended for a wider public (eg P Resch, Das europäische Völkerrecht der Gegenwart (Graz/Leipzig, 1885) 114 et seq., 195 et seq.). 17   See in this regard, amongst many others, JB Scott, Les Conférences de la Paix de la Haye de 1899 et 1907 (Paris, 1927). 18   See R Kolb, Ius contra bellum – Précis de droit international relatif au maintien de la paix, 2nd edn (Basle/ Brussels, 2009). 19   M Bourquin, Vers une nouvelle Société des Nations (Neuchâtel, 1945) 85 et seq. 20   See also below, section 2 (a).

8  PEACEFUL RESOLUTION OF INTERNATIONAL DISPUTES

responsibility. From another perspective, as soon as international law began to prohibit (or at least limit) recourse to war or the use of force, it had, as a necessary concomitant, to develop rules on the peaceful settlement of disputes. It had no choice, because the peace of the international community (or, in negative terms, a regime of non-recourse to force) could be effectively maintained only if States which felt they had just claims had an alternative means of obtaining satisfaction. Of course wars and violence do not arise exclusively from unresolved disputes.21 Nevertheless, they sometimes do. In the long run, it is impossible to expect a State which is denied any means of enforcing its claims to agree to be disarmed in face of an insolently recalcitrant ‘debtor’. The ‘creditor’ will naturally be tempted to use force to obtain what it considers is legitimately owing to it, if no peaceful means of settlement or enforcement is available. Consequently, for the international community to concern itself with the maintenance of the peace also meant concerning itself with, amongst other things, the poisoning of inter-State relations by unresolved disputes. There is thus a correlation between the strength of the mechanisms for the peaceful settlement of disputes and the strength of the rules forbidding ‘private’ violence. The stronger the former, the greater the chance that the latter will be respected. The more anaemic the former, the greater the risk that the latter will break down. The history of the United Nations provides an eloquent example: the weakness (admittedly a relative one) of Chapter VI of the Charter has resulted in a concomitant weakness in Article 2, paragraph 4.22 To sum up, then, it is the dominating fundamental value of ‘peace’ in modern international law which explains, and is responsible for, the pattern of rules, both on non-recourse to the use of force (the direct maintenance of peace, ‘negative peace’23), and on the peaceful settlement of disputes (the indirect maintenance of peace, ‘positive peace’24). The dual functionality we are considering here is reflected in all the relevant texts. The Bryan Treaties of the twentieth-century’s second decade provided for a moratorium on war, in exchange for a procedure on enquiries and conciliation;25 the League of Nations Covenant did not permit Member States to have recourse to war (other than for selfdefence) until they had unavailingly worked through a procedure for the peaceful resolution of the relevant dispute;26 the Paris (or Briand/Kellogg) Covenant of 1928 renouncing 21   RY Jennings, ‘General Introduction; in A Zimmermann, C Tomuschat and K Oellers-Frahm, The Statute of the International Court of Justice, A Commentary, 35: ‘[I]t was simplistically supposed that wars were about “disputes”.’ 22   It has even been possible, albeit exaggerated, to ask who killed Art 2, §4: TMFranck, ‘Who Killed Article 2, § 4?’ (1970) 64 AJIL 809 et seq. 23   ‘Negative peace’ involves the absence of violence, and is concerned primarily with the short term. In this regard peace, as a categorical imperative, precedes justice. 24   ‘Positive peace’ involves the suppression of anything which might lead to violence, and is concerned primarily with the medium and long term; in this regard, peace as a regulatory concept is the fruit of justice. 25   From 1912, the USA started entering into bilateral treaties in which the two sides undertook to renounce resort to war whilst the workings of a commission of enquiry were under way, examining the matters in dispute. It was obligatory for the commission to sit, and to make its report within a year of being seised of the matter. The commission was established on a permanent basis and not constituted on an ad hoc case-by-case basis. Its remit extended to every dispute that was not resolved by diplomatic means. Its report was not binding on the parties, but it had the effect of freezing recourse to hostilities for a period of 12 months. See J Stone, Legal Controls of International Conflicts (London, 1954) 167. More generally, see JB Scott, Treaties for the Advancement of Peace between the United States and other Powers negotiated by the honorable William J Bryan, Secretary of State of the United States (New York, 1920); A de Saint Seine, La conciliation internationale (Paris, 1930) 32 et seq.; C Vulcan, La conciliation in le droit international actuel (Paris, 1932) 14 et seq.; JG Hette, L’évolution de la conciliation internationale, thesis (Dijon, 1934) 35 et seq. See also C Denfeld, Hans Wehberg (Baden-Baden, 2008) 99. 26   The essential basis of the Covenant system was as follows: no war without prior examination of the conflict by an international organ. No war unless and until a prior procedure for settling disputes had failed to resolve the matter. Otherwise the war was unlawful, ie a war of aggression. The rule was: no surprise wars. The Covenant did



IMPORTANCE AND CONTEXT 9

war as an instrument of national policy contained two provisions: Article 1 prohibiting recourse to war, and Article 2 containing an obligation to resolve disputes by peaceful means;27 the UN Charter contains Article 2, paragraph 3, providing for the peaceful resolution of disputes, and Article 2, paragraph 4, prohibiting the use of force.28 Article 2, paragraph 3 provides that: ‘All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.’ Article 2, paragraph 4 provides that: ‘All Members shall refrain in their inter­national relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’. To some extent, these two provisions of the Charter are sides of a single coin. Placing the emphasis on the expression ‘peaceful’ in paragraph 3, we can see it as the positive expression of an obligation formulated in negative terms in paragraph 4: if disputes must be settled peacefully, this is because the use of force is prohibited. But that is by no means a comprehensive statement of the relationship between the two provisions. For example, Article 2, paragraph 3 is confined to disputes, whereas Article 2, paragraph 4 is of general application. The use of force is always prohibited, not only in relation to the settlement of disputes. Also, Article 2, paragraph 3 postulates (up to a point) a duty to make efforts to resolve the dispute if it reaches the point where it might endanger international relations. That duty is referred to again in Article 33, paragraph 1. On this reading, the emphasis is more on the words ‘shall settle’ in paragraph 3, than on the word ‘peaceful’. Thus, if, on one reading, paragraph 3 is narrower than paragraph 4 (confined to disputes), on another, its scope is broader, envisaging a positive effort to resolve disputes. In this way, today’s positive law involves a series of subtle relationships between the two elements of peaceful resolution of disputes and non-recourse to force.29

e)  The Peaceful Settlement of Disputes as a Collective Interest The rule on peaceful settlement of disputes was developed in the context of the need to maintain international peace as a collective interest of the international community. Once the international community started growing progressively more open to the idea of ordering inter-State relations so as to put an end to a state of anarchy, once it had developed a not make it obligatory to settle the dispute; what it required was that the parties should go through a procedure in an attempt to find a settlement. The obligation was not substantive, but procedural. Thus Art 12 of the Covenant provided that: ‘The Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial settlement or to an enquiry by the Council’. Hence the idea that the Covenant was based on a concept of bellum legale (Kunz) rather than the old concept of a iustum bellum, for the iustum in the Covenant is defined not as regards the substantive claims of the parties but as regards the execution (or non-execution) of the procedural duty to submit the dispute for settlement to an international organ as provided for in Art 12. Rather than providing precise and effective criteria for making wars illegitimate, the law was oriented to a procedure for the peaceful settlement of disputes. Failure to follow the procedures became the specific criterion for unlawfulness. ‘Surprise wars’ were strictly outlawed. 27   There is a rich literature on this Covenant. For contemporary analyses, cf R Le Gall, Le Covenante de Paris du 27 août 1928 (Paris, 1930); H Wehberg, ‘Le problème de la mise de la guerre hors la loi’ CCHAIL, vol 24, 1928-IV, 234 et seq.; Q Wright, ‘The Meaning of the Covenant of Paris’ (1933) 27 AJIL 39 et seq. For a more recent appreciation, cf B Roscher, ‘The ‘Renunciation of War as an Instrument of National Policy’ (2002) 4 Journal of the History of International Law (Revue d’histoire du droit international) 293 et seq. 28   See B Simma (ed), The Charter of the United Nations – A Commentary Vol I (Oxford, 2002) 101 et seq. 29  See below, section 2(a), where these questions are considered further.

10  PEACEFUL RESOLUTION OF INTERNATIONAL DISPUTES

desire to start moving, however slowly, from a ‘natural’ towards a ‘civil’ society, and once a certain degree of definition had been given to various common interests, a lack of interest in the outcome of disputes between particular States could no longer be afforded. If the maintenance of peace and international order depended on it; if civilisation could not progress without making provision for international peace and order; and if the settlement even of relatively minor disputes had a significant part to play, then the international community needed to concern itself with the question, laying down some rules. Disputes could no longer be seen as private concerns of the disputing States, concerns they could resolve by means of their own choosing, whether peaceful or violent. On the contrary, disputes now affected the proper functioning of the entire international community, perceived as an entity in itself. The handling of disputes was becoming everybody’s business, a matter of public interest. In consequence, all members of the international community had to be given a voice. To sum up, then, international disputes had been, so to speak, ‘collectivised’; they were now subjected to a degree of collective discipline and to the activities of inter­ national institutions responsible for overseeing common interests. These developments can be traced quite clearly through the development of international law since Grotius. In the nineteenth century, such thinking was dominated by a kind of sovereign individualism. True, third parties could, taking appropriate care, intervene in disputes as mediators or even advocates, but only if the parties to the dispute consented. The ‘Concert of Europe’ could, in effect, take charge of a dispute, but more by acting as a de facto international government than by the exercise of any imagined legal competence. Article 3, paragraph 3, of the 1899 Hague Convention on the Peaceful Settlement of Disputes took the first timid steps towards changing these attitudes. It declared that: ‘The exercise of this right [to offer good offices or mediation] can never be regarded by one or the other of the parties in conflict as an unfriendly act.’ With these words, the idea finally ripened that the settlement of international disputes should be regulated internationally. This came about because the significance of the problem was highlighted by a new awareness of the international community’s collective interest. The next major step was nothing less than a straightforward affirmation of the collective interest, in the Covenant of the League of Nations (Articles 12–15), followed by the UN Charter (Article 2, § 3, Chapter VI) and numerous other international agreements setting up regional organisations as contemplated in Chapter VIII of the Charter. All international political institutions would henceforth need to pay attention to the question of peaceful dispute settlement, arguing for it, refining relevant rules and if necessary supplementing them, so as to clear away encumbrances and obstacles. One key point to note is that, once a negotiation falls under the auspices of an international institution, its characteristics change. The weaker of the States is no longer entirely alone in the face of the stronger. The collectivisation of the process under the auspices of a political body tends to ensure that issues are aired publicly, and to create a less unequal balance between the disputing parties. In other words, as one great internationalist of the inter-war period put it, ‘peace results from a collection of institutions, from the existence of a corpus of law, from the functioning of a system of justice, and from the pooling of strength in order to ensure that laws are applied and judicial decisions respected. Peace can only be the product of collective effort, as indeed are the institutions which make peace possible.’30 That pithy paraphrase sums up the entire philiosophy of 30   N Politis, conference at Lyons in May 1928, on ‘The problem of peace and the League of Nations’ (League private archives of N Politis, Box no 217, file 50).



IMPORTANCE AND CONTEXT 11

modern international law in the twentieth century – a complete break with the classical international law of the nineteenth century.

f )  Relative Weakness of the Law on the Peaceful Settlement of Disputes By one of those paradoxes which are not unfamiliar in human affairs, the legal regime for the peaceful settlement of disputes, a matter of such importance to the international community, remains one of the feeblest in international law. If we look a little more closely, however, the apparent paradox is not difficult to understand. The resolution of disputes directly affects one of the key concepts underlying the political organisation of the planet, namely State sovereignty. Today, as in the past, States and their peoples remain viscerally attached to national sovereignty, fiercely determined to protect it. Only with difficulty can they be persuaded to set limits to it. A strong legal regime for the peaceful resolution of disputes would necessitate the international community’s endowing itself with the means of actually resolving disputes in a definitive way, that is, of imposing a solution decided upon by someone other than the parties themselves. Legally, that would mean that a decision of an international body would be compulsory and binding on the disputing States; they would simply have to submit. But this would amount to a frontal attack on the concept of sovereignty itself. The essence of the legal conception of sovereignty is that, in the last resort, a sovereign has the right and the power to make its own final decisions. If, every time a dispute gives rise to international friction, one of the organs of the international community were in a position to impose a binding decision, that organ would amount to a kind of global super-State. It would be the sovereign of the planet, since individual States would have lost the essence of their own sovereignty. Even in our own times, that is not the real world, either politically or legally. No State is obliged to accept that any international organ can sit in judgment on any of its disputes, issuing a binding ruling that such a dispute is resolved, for example that the boundary of State X lies here and not there. That is not to say, however, that the means for the binding resolution of disputes do not exist in international law. Of course, for example, the decisions of the ICJ are binding on States, and that is logical, since they are the judgments of a court of law. Nevertheless, States are not obliged to submit their disputes to the jurisdiction of the Court. Its jurisdiction depends upon their consent. State sovereignty is thus inherently protected by the fact that States have a choice: they can submit to the jurisdiction of the Court, or they can decline to do so. If they decline, the Court cannot go against their will and decide cases against them. Where the Court is not able to make a decision on the merits, the State is not going to be bound by any judicial resolution of the dispute. If, on the other hand, the parties accept the Court’s jurisdiction, the Court has the power to decide the case, provided that the other conditions of jurisdiction and admissibility are satisfied. In that case, the Court’s decision on the merits is binding on the contending States since they have accepted its binding jurisdiction. As a matter of legal analysis, then, sovereignty amounts, in this field, to a discretionary power (absent an undertaking by treaty or otherwise) to engage (or decline to engage) in a procedure for the dispute’s collective resolution. That discretionary power translates, in legal terms, into the State’s will being predominant. Wherever sovereignty is strong, the principle of State will predominates: conversely, where sovereignty is in retreat, so too is the voluntary principle. Sovereignty and the will of the State are twin concepts, sovereignty

12  PEACEFUL RESOLUTION OF INTERNATIONAL DISPUTES

implying, first and foremost, the exclusive and supreme power to take decisions. Such decisions are acts of will. Since the settlement of disputes concerns precisely that – the taking of decisions – it is governed and informed by the sovereignty and will of the States concerned. The word ‘will’ itself has connotations of freedom of action, fluctuations, pursuit of individual interests, uncertainty and changeability. A particular will can either exist or not exist. It can be formed, and can dissolve. It can be open or concealed, intransigent or bargained for. In this context the possibility of common action is, at best, weak. The individual prevails over the collective; the interests of particular States prevail over the general interest. The State as it were dictates its own law to the international community. If it has truly been said that we live in a ‘system of relationships which depends above all else on the primacy of sovereign wills’, it has also been said that nothing solid or durable can be built on such a foundation.31 It is difficult to over-emphasise the evident truth that the price of national independence is the international anarchy in which all nations continue to flounder. You can have that little coin. Or you can have this bread roll. But you can’t have both at the same time, since you have to spend the money to buy the roll. It is tempting to conclude that sovereignty is the main obstacle to the harmonious development of international relations and the healthy development of the law on the peaceful settlement of disputes. And, in fact, a number of international lawyers, especially in the inter-war years, have thought just that.32 However, we need not debate that issue here. A more limited question may help to resolve some of the ambiguities. If one really thinks about it, it does seem to be actually impossible to resolve any dispute in a binding manner, that is, without the disputing parties cooperating to at least some degree. It is one thing to decide on the solution, but quite another to impose it. Unless the disputing parties accept it, unless they are genuinely prepared to live with the solution, the dispute will not be truly resolved. In such circumstances, the flame of disagreement will continue to flicker insidiously beneath the surface elegance of an apparently imposed solution. This will have a deleterious impact on daily exchanges between the States concerned. Such a dispute may flare up again whenever the opportunity occurs. Wisely, therefore, Chapter VI of the Charter does not attempt to impose solutions. All it seeks to do is to help the parties, through their own continuing cooperation, towards a solution of their own. The institutional collectivity is not indifferent to the dispute. On the contrary, it is concerned, and it does act. It recommends to the parties steps they can take if they are unable to reach a solution unaided, either because of the objective difficulties, or because the situation is too fraught with ill feeling and anger. However the collectivity confines itself to recommendations, proposing but not disposing. Any attempt to impose its solution would resolve nothing – indeed, in many cases it would simply aggravate the situation. International disputes are delicate affairs. Even more than disputes governed by municipal law, they tend to concern highly complex situations, often of vast and dangerous dimensions with ramifications often reaching far back into the distant past. Of course not all international disputes are like that, but the most difficult ones certainly are, for example the Israeli–Palestinian dispute. It is obviously possible for the international community to impose binding interim measures, such as imposing a ceasefire by sending an international force. It is also possible to impose embargoes or other 31   C Rousseau, ‘Un siècle d’évolution du droit international, 1873–1973’ in C Rousseau, Le droit international demain (Neuchâtel, 1974) 22. 32   See, eg the particularly strong words of S Séferiadès, ‘Principes généraux du droit international de la paix’ CCHAIL, vol 34, 1930-IV, 353 et seq.; or of N Politis, ‘Le problème des limitations de la souveraineté et la théorie de l’abus de droits dans les rapports internationaux’ CCHAIL vol 6, 1925-I, 10 et seq.



IMPORTANCE AND CONTEXT 13

measures against the side that is in the wrong, for example against a State which has unjustifiably taken up arms. But such measures, contemplated by Chapter VII of the UN Charter, in no sense ‘resolve’ the underlying disputes. The aim is merely to bandage the wound, a kind of holding exercise. A ceasefire, for example, restoring a minimum peace (in the negative sense of the word, and however precariously) does directly serve the primary concern of the UN Charter, but unambiguously recognises the UN’s inability to resolve the substantive issues in a binding manner. The Charter does provide for compulsion when it is a question of acting like a firefighter in Chapter VII. Powers of the same type are not available, however, when it is a question of actually resolving disputes under Chapter VI. In other words, it is not solely the issue of sovereignty, but also the very nature of things, that imposes peremptory limits on any imposition by the international community of a binding ‘resolution’. It would be interesting to consider, at this point, to what extent the experience of municipal law suggests the opposite. After all, municipal law deals every day with a great number of disputes. Real and effective dispute resolution can be just as difficult at this level as for international disputes, since inter-personal relationships can be just as difficult as interState ones. A decisive stage in the evolution of national communities was reached when States’ courts and tribunals were finally given general and compulsory jurisdictions, and the role of resolving private disputes on the basis of law. Their decisions are compulsory for all persons over whom they have jurisdiction. Is there, then, any reason to doubt that, in a similar way and for similar reasons, the international community needs dispute resolution mechanisms that are equally binding? There are two main points to be made here. First, across-the-board compulsory jurisdiction in any system of municipal law applies only to private suits. In public law, not everything is justiciable: a series of issues, which it pleases those concerned to call ‘political’, always escapes the jurisdiction of the law courts. But international differences give rise to the most political disputes of all, since international law is ‘the political law of nations considered in the context of their inter-relationships’.33 The argument is that binding methods of dispute resolution on the basis of pre-established rules are therefore not appropriate for all international disputes. Second, even municipal courts and tribunals cannot resolve disputes ‘definitively’; but States do not need them to do so. In developed societies, individuals are under no general obligation to enter into or maintain relationships. If a litigant’s aversion to his opponent goes beyond a certain point, he is fully entitled (and will be well-advised) to break off all communications and ties. In other words, human beings can walk away from each other. They can avoid each other. It may be difficult, but it always can be done to at least some degree. In international relations, this is simply not the case. Each State has an existence that its peers cannot ignore. Of course the relationship between particular States can be reduced to a minimum. But it can never be completely eliminated. There are always exchanges of one kind or another. The hated neighbour remains a neighbour. A State that feels itself to have been deeply wronged cannot decamp from its territory and move to the other end of the earth. If, therefore, an international dispute is to be effectively resolved, it really does have to be dealt with completely, not just partially. This is an infinitely more burdensome task than the parallel one faced internally within a national society. For these reasons, international disputes tend to retain high profiles until they are completely resolved, which in effect means for as long as the resulting animosity between the two States continues. This is why the wider public so   C de Montesquieu, De l’esprit des lois, Book X, ch I (our translation).

33

14  PEACEFUL RESOLUTION OF INTERNATIONAL DISPUTES

frequently has a strong sense of the real difficulty of resolving such disputes, and so readily expects proposed solutions to fail. Admittedly, the task is often almost titanic. Only if we recognise these facts can we draw the right conclusions. Above all, therefore, the international law on the peaceful settlement of disputes needs to stimulate goodwill between litigants, both claimants and defendants. Pride or arrogance does not serve its development. It has to act humbly, putting itself in a position to assist the disputing parties. This is a long-term process, fraught with traps and pitfalls, crevasses and precipices, where although the sourness of disappointment is from time to time dispelled by spells of brightness, everything happens under an unquietly changeable sky. International law and institutions can do no more than organise modalities for settling disputes. They can only try to resolve them; they cannot impose a solution, and there is in any case no guarantee of success. International society, and the law that governs it, are, so to speak, perpetually on the road.

g)  Consent as a Governing Principle of Dispute Resolution One necessary consequence of State sovereignty is that the start of a dispute resolution process always presupposes the consent of the States concerned, whether the method is a political one (leading to a non-binding result), or a judicial one (leading to a binding decision).34 Examples are mediation (a political mechanism), and recourse to the ICJ (a judicial and also a jurisdictional mechanism). The most important rule for political mechanisms is the rule of the ‘triple consent’ necessary for a solution to be achieved; by contrast, the most important rule for judicial mechanisms is ‘double consent’. What do these rules mean? In order to resolve any international dispute, even a relatively small one, it is necessary to navigate successfully through three stages. We start by considering by such political means as negotiation, mediation and con­ ciliation. bla In the first place, the States (or other litigants) concerned need to agree to seek a peaceful settlement through some recognised mechanism. That much is obvious, but it often poses difficulties. Sometimes a State will simply balk at taking part in any ‘talks’ whatsoever with the opposing State, especially during periods of acute conflict. Accumulated layers of bad temper and ill feeling sometimes prolong such periods. In such circumstances, the first thing is to try to improve the atmosphere. Disinterested States, international organisations or influential personalities can, and should, try to persuade the disputing States to end their sterile confrontation and endeavour to resolve the dispute, or at least to reduce its scope and effects. This is not always easy, and nor is it always achieved swiftly. But, in any event, the first consent required involves declarations by the parties that they are ready for a constructive phase, one in which a solution will be sought actively. Obviously it would be pointless to force a State to engage in such a process, since it can succeed only if there is an 34   The different possibilities for dispute resolution are set out in Art 33, para 1 of the Charter. As the text states, the list provided is not exhaustive. For example, ‘good offices’ are not included. The text reads as follows: ‘The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.’ The political means of resolution are negotiations, good offices, mediation, conciliation and enquiry. The legal ones are arbitration and recourse to a court. See below, section(h).



IMPORTANCE AND CONTEXT 15

inner willingness to consider compromise and think about possible solutions. If the parties are not willing, not only is everyone wasting their time, but there is a real danger that the dispute will be exacerbated by the resulting bitterness. Second, assuming that the first step has been successfully taken (or is for some reason unnecessary), the disputing States will still need to agree on the specific mechanism of settlement. Is it to be direct negotiation? Mediation or conciliation? Arbitration? An international court? Until they agree on the mechanism, or, in other words, for so long as they disagree about it, resolution of the dispute will remain blocked,35 since no State can be compelled to accept a particular means of settlement against its will. So the States concerned need to agree on the same specific mechanism, or at least to reach a definitive agreement dealing with this issue. That is the second necessary consent. The reason for the principle of free choice as to the mechanism is that the latter can have a major impact on the outcome. Take, for example, a major dispute between a weak State and a powerful one. The former has every interest in taking the case to the ICJ, where the imbalance of strength is an irrelevance, the procedure is strictly even-handed, and a weak State can succeed, without assistance from others, against a powerful one, as for example, in the case of Nicaragua v United States of America, (1984/1986). Obviously, the powerful State has the opposite interest, that is, in avoiding the ICJ and preferring direct negotiations, where it can expect, through its relative strength, to extort maximal concessions from its opponent. There is no reason to condemn either strategy: each merely reflects the legitimate interests of the State concerned. Another example is where there is a complex issue between two States. The first believes it has the stronger case as a matter of positive law, so that if it goes to court, it is sure to win. The other State dislikes the current state of the law; perhaps it is an old rule of law, one the State would like to see modified. It believes that this is a fundamental issue. The application of the current law will therefore not suffice to resolve the dispute – what is really needed, from the latter’s State perspective, is for consideration to be given to changing the law. The second State therefore thinks the ICJ, whose role is simply to apply the law, is not the right forum for the resolution of the dispute, since an essential element in the State’s argument will not be decided there. So it prefers political resolution through means such as a mediation in which the mediator is not bound by the law and can make proposals that, in effect, modify it. It is easy to see from these two examples how the choice of mechanism can profoundly influence the anticipated result. For these reasons it is not only understandable, but entirely legitimate, for States to prefer some mechanisms and reject others, in light of how they see the dispute and of the interests they are seeking to advance or defend. It would therefore be wrong to suppose that disagreement about the mechanism invariably results from the sheer obstinacy of States that simply cannot bear to admit to the same preference as their opponent. The problem goes much deeper than that, and the solution is, therefore, all the more difficult. Indeed, from the perspective of an uncommitted bystander, it is difficult to see how one view could be preferred to the other, since each of the respective States’ views is based on its legitimate view of its own interests. Here again, the only way forward is by the hard work of persuading the parties to reconcile their points of view and reach a compromise they can both live with. In the first example cited above, the solution might be direct negotiations between the weak State and the powerful one, but under the auspices of an international organisation as a kind of control and safety net. In the second example, it might be a request to the ICJ for an advisory opinion where a   On this principle of free choice of means, see below, section 2.

35

16  PEACEFUL RESOLUTION OF INTERNATIONAL DISPUTES

well-balanced set of questions is presented to the Court; or a judgment of the Court (or an arbitrator) on certain disputed questions of law suitable for adjudication, accompanied by a mediation that is capable of taking account, in its context, of the amalgam of legal and extra-legal issues involved. If and when the disputing States agree on the mechanism, then at last the second consent will be in place. Third, it is also necessary for the disputing States to accept concrete proposals made by the political actor to settle the substantive issues. These can be only proposals, not decisions, because they consist of some kind of transaction, not of a solution based simply on the application of law to facts. The logical corollary is that the parties are free either to accept the proposed solution or to refuse it; neither side can be obliged to enter into an agreement restricting or abandoning its rights. In other words, the dispute will not be definitively resolved until the disputing parties have also consented to the proposed solution, which may of course involve its being amended in order to satisfy their requirements. If one disputing State refuses the proposals, the dispute remains unresolved. It is then necessary to continue the search for a solution, perhaps after a pause, in which all concerned can reflect on what has been learned from the process so far, and on perspectives for the future. There are thus three sets of necessary consents, that is three sets of obstacles to overcome. If, at bottom, the disputing States are well disposed to each other, it may be that the three layers will pose no noticeable difficulty. But where there is a serious dispute, especially between States with a long history of mutual animosity, it can be almost impossible to obtain such consents. In such cases the search for dispute resolution becomes a Herculean task, as decades of twists and turns in the Israeli–Palestinian dispute so clearly illustrate. Turning now to dispute resolution through legal means, by arbitration or by an inter­ national court or tribunal, the first thing to note is that the first two layers of consent are the same: it is essential that the States concerned contemplate resolving the dispute in a constructive way, and also that both sides consent to its being resolved by one or more agreed arbitrators or judges. However, the third layer of consent disappears. The decision of the arbitrator or Court is already binding on the parties by virtue of an agreement to arbitrate, and/or the statutes and other texts governing the activities of courts and tribunals. Because the arbitrators or judges are declaring the law, and the law is by its very nature binding on the parties, it is logical that the decision or judgment binds them. It is not a judge’s role to propose agreements or compromises that could become binding on the disputing parties only as a result of political bargains they might (or might not) then choose to strike. When a dispute is referred to a court or tribunal, it instantly shrinks in scope: the political aspects are now excluded, and the issue is reduced to the legal ones. The corollary is that the decision, when it finally comes, is binding on the parties. By contrast, if it is a question of examining the various political aspects of a dispute, the appropriate result is a recommendation. If the examination is narrowly confined to the legal issues, the appropriate result is not a recommendation but an actual decision. The price you pay is that you forego the examination of wider extra-legal considerations. Whether in any particular case it makes sense to narrow the scope of a dispute in this way depends on the circumstances, and on the parties’ objectives.36 At the end of the day, the binding character of a court deci36   Sometimes the reduction is a considerable one. For a detailed analysis of a particular example, see R Kolb, ‘Note sur certaines caractéristiques du différend international’ in The Global Community, Yearbook of International Law and Jurisprudence, vol I (2004) 227–42. An extract is cited in the annex to the concluding section of the present book.



IMPORTANCE AND CONTEXT 17

sion is a reflection of the parties’ wishes. In taking their dispute to the court or tribunal, they are, by definition, asking for a binding solution, and that is what the judges or arbitrators have to provide. To sum up, then, jurisdictional procedures, whether involving a court or an arbitral tribunal, require only two layers of consent, not three. What we have just been saying finds confirmation in the UN Charter. As discussed in section 2, in relation to Chapter VI of the UN Charter, some UN organs (in this case the Security Council and the General Assembly) have the right to seise themselves of disputes motu proprio, with a view to making recommendations as to how they might be resolved. This is an important role, and the drafters of the Charter wanted to entrust it to the UN precisely because of the importance of the concern that international disputes cause to the whole international community (a matter considered above). The UN bodies in question are political organs, and this explains why, in a perfectly consistent way, the Charter here gives them only the power to make recommendations, not to decide the dispute. Not only that, but the Security Council and the General Assembly have an automatic competence under the Charter itself, thus outflanking the general rule requiring the parties’ consent. The Council and Assembly are given the power to act in this way by a particular rule of international law, contained in the UN Charter in its character as a treaty. This fact confirms, if confirmation were needed, that the organs in question can do no more than make recommendations. The political nature of their activities, and their automatic right to intervene, leads to the same conclusion. By contrast, the UN’s judicial organs have not, so far, had automatic powers or automatic jurisdiction. Given that their role is solely to state the law, and that only if the parties consent will they have jurisdiction, there was and is no reason to deny their decisions binding authority as what are termed ‘executory judgments’.

h)  Procedures for the Peaceful Settlement of Disputes The immediately preceding section contains mentions of the various relevant existing instruments. It is perhaps useful at this point to give a brief summary of their essential elements. Article 33, paragraph 1 of the UN Charter provides: The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

States are free to mix and match, for example, by combining enquiry and conciliation. As the text says, the list is not exhaustive (‘or other peaceful means of their own choice’); one important method that seems to have been forgotten is ‘good offices’. But how are these various methods defined,37 and what are their essential features? Negotiation, where it is directly between the parties, consists of talks of a more or less formal nature, in which the agents or delegations of the disputing States exchange views as to how the dispute might be resolved. Such negotiations are subjected to certain legal rules, albeit highly flexible ones. The parties’ freedom of action is the lodestar of the process, and 37   For definitions, see J Salmon (ed), Dictionnaire de droit international public (Brussels, 2001). For concrete examples in each of the categories, which cannot be reproduced here for want of space, see, eg P Dailler, M Forteau and A Pellet, Droit international public, 8th edn (Paris, 2009) 923 et seq.

18  PEACEFUL RESOLUTION OF INTERNATIONAL DISPUTES

the law interferes with it as little as possible, precisely so as to give them the necessary flexibility. It should not be thought that such negotiations are always highly formalised. Sometimes disputes are resolved simply by a telephone call from one minister of foreign affairs to another, or by discussion amongst small groups in restaurants (as has happened in Swiss practice). Good offices consist in the exercise of moral or political influence on the disputing parties by a personality, a State, or some other entity, either to set up direct negotiations or to get the parties to resume them after they have been broken off. Very often, the use of good offices includes logistic support, for example making available a villa where the delegations can meet, perhaps with a range of supporting services to facilitate such contacts. Good offices are normally confined to enabling contact to be made and providing a favourable context for exchanges between the parties. They do not include getting involved in the subject matter of the negotiation. The party providing good offices does not take part in the negotiation: if it did, it would be going beyond good offices and would become a mediator. Mediation consists of facilitating direct negotiations between the parties, normally by holding meetings with them and making procedural and/or substantive proposals designed to help them find a solution. A good mediator needs a remarkable number of skills, including a detailed understanding of the dispute and of the parties’ respective cultures, and long experience of international politics and diplomacy. He also needs, in principle (though not always in practice), to be equidistant from both sides, so that neither sees him as biased in favour of the other. His primary role is to propose possible solutions. If the parties refuse to negotiate directly, the mediator may have to shuttle between capitals, or between different floors of the same hotel. Conciliation is a more formal procedure. It involves a commission, usually of three or five members. The commission examines the dispute on the basis of documentation submitted by the disputing States. It can also hold oral hearings. The commission then retires and produces a report which proposes a concrete solution to the dispute. Unlike mediation (which is very frequently used), conciliation is relatively rare. If the parties were prepared to engage in such a formal procedure, they would normally prefer an arbitration, in which the arbitrators’ powers are designed to suit their requirements. An enquiry is a procedure designed for disputes about the existence of a fact or about its nature. Sometimes that is all that is in dispute, and when the question is resolved, the legal consequences are automatic. Has State A expropriated that property? Has it sunk that boat? Has it arrested that person? A commission of enquiry can shed light on the question. In principle, such a commission’s role is limited to deciding what has happened. If the commissioners have the power to go further, to make proposals about how future incidents of a similar nature can be avoided, or about how the internal law of one of the States that caused the problem might be modified, or simply to propose other measures, they become commissions of enquiry and conciliation. In bilateral relations, commissions of enquiry are very rare. States are very sensitive about admitting international ‘detectives’ to poke their noses into intimate internal affairs. However, international bodies have created a whole series of commissions of enquiry. For example, the League of Nations did so in relation to the Demir Kapou and Mossul incidents (1925), and the UN did so on the Greek Civil War (1946–49) and again on Darfur (2004–2005) and Gaza (2009). Arbitration and court procedures are analysed in a later section. Arbitration is a procedure under which the disputing parties choose the persons who are to decide the dispute



CHAPTER VI OF THE UNITED NATIONS CHARTER 19

according to law. Courts of justice operate in a similar way, except that the judges are preselected and the procedure is formalised in pre-established texts. The political procedures mentioned above can operate either at inter-State level or in the context of a regional or global international organisation. For example, there is a difference between negotiating directly and doing so under the auspices of an assembly or organisation; nor (another example) is it at all the same thing for a mediator to act in a purely personal capacity as to know that he represents the UNor the United States. The effect is not so much on the process itself as on its context and political weight. Of course a great deal depends on the strength and prestige of the organisation or State in question, on how important the disputing States consider that organisation or State to be, on whether it involves major powers, on the organisation’s or State’s degree of engagement, on the importance of resolving the dispute for securing certain advantages, and so on. To sum up, political mechanisms enable both the legal and political aspects of a dispute to be taken into account with a view to an overall solution; the resulting proposals for resolving the dispute are consequently proposals for an agreement or ‘deal’; and for this reason, they are not binding in themselves, only becoming so if and when the parties agree, either in advance or ex post facto. In contradistinction to all this, jurisdictional mechan­ isms are unable to take account of the politics, and are confined to the legal issues; the result may, in consequence, be a comprehensive settlement, or it may be only a partial one, depending on the nature of the dispute; but the decisions of the judges or arbitrators will be based on the law (at least unless the parties agree otherwise, for example to a binding decision ex aequo et bono). For these reasons, judicial or arbitral resolution is automatically binding on the parties.

2.  CHAPTER VI OF THE UNITED NATIONS CHARTER

Since under Article 92 of the Charter, the ICJ is the principal judicial organ of the UN, it is useful, at this point, to provide a bird’s eye view of the role the UN plays in dispute resolution, and of the methods and intentions underlying the drafting of the Charter. For this purpose we need to take a closer look at Article 2, paragraph 3, and at Chapter VI (Articles 33–38), so as to examine the institutional and normative context in which the Court has to operate. Readers interested only in the ICJ may therefore feel it unnecessary to give the present section more than limited attention.

a)  Links between the Peaceful Settlement of Disputes and Non-recourse to the Use of Force (Further Examination) As in the general law, so also in the Charter, the peaceful settlement of disputes is tightly bound up with the principle of non-recourse to the use of force.38 This applies even to the layout – paragraphs 3 and 4 of Article 2 follow consecutively, without any rupture of the inter-connecting umbilical cord. Nevertheless, although from a functional point of view 38   See above, section 1(d). Here the text returns, for the convenience of readers, to certain aspects that have already been mentioned in this chapter, with a view to examining the relationship in greater detail.

20  PEACEFUL RESOLUTION OF INTERNATIONAL DISPUTES

the two principles go together, they are, on analysis, different and distinct. They are in some senses reverse sides of the same coin, but that is not the whole story. The functional link between the principles contains two elements: one static, one dynamic. First (the static perspective), paragraph 3 provides that disputes must be resolved exclusively by peaceful means, which amounts to a positive but indirect statement that force must not be used. Second (the dynamic perspective), paragraph 3 lays down a condition essential to the working of paragraph 4. The prohibition against the use of force cannot be effective unless States, which consider their rights to have been violated, have some alternative means available to them of obtaining satisfaction for their legitimate claims.39 To the extent that the rule requiring peaceful settlement works effectively, that is an indication that there are adequate practical alternatives to the (prohibited) use of force. These connections explain why the two principles made their debuts simultaneously in the growing body of modern international law. They are oriented towards the same fundamental objective, namely the maintenance of peace. They were closely intertwined in Articles 12 to 16 of the League of Nations Covenant, and the same goes for the Geneva Protocol of 1924, the Kellogg Pact of 1928, and finally the UN Charter (Art 2 §§3 and 4, and Chapters VI and VII). The functional tie between peaceful settlement and non-recourse to force is, however, only one aspect. The principle of peaceful resolution has its own characteristics, and its own legal facets, which are not the same as for non-recourse to force. First, Article 2, paragraph 3 is confined to disputes. The concept of a dispute connotes a crystallised opposition between the views of two or more parties, the difference being focused on a particular question.40 It is important to realise that, in international relations, there are many situations in which disagreement is not (or not yet) focused on a particular issue in dispute. There can be ‘tensions’ between States without there being any clearly defined issue, tensions based more on generally antagonistic values and policies. This was the position between the superpowers during the cold war. In such situations, almost any contact between the two States, even if it is only indirect, can cause friction. Sometimes, though not always, such friction will lead to a defined dispute, as, for example, in the Cuban missile crisis of 1962. Naturally, such general antagonism tends to generate disputes. But, in itself, it does not amount to a dispute or set of disputes: rather, it precedes and informs specific disputes. As for non-recourse to force, the field in which it applies is a wider one than the peaceful settlement of disputes. The wider principle applies generally, to all inter-State relations, and not only to the specific cases of crystallised legal or political disputes. A dispute is thus only one of the situations to which the wider principle applies. Second, the principle of peaceful settlement can go beyond the simple rejection of violent methods for settling disputes. It can impose a legal obligation to attempt to resolve the dispute. When one examines the settlement of disputes in light of the principle of non-recourse to force, the emphasis is on the word ‘peaceful’ – the peaceful settlement of disputes. Considered in the context of the principle that disputes should be settled, which is after all what it is all about, the emphasis shifts to the word ‘settlement’ – the peaceful settlement of disputes. It has indeed been argued that Article 2, paragraph 3 imposes a duty 39   See H Grotius, De jure belli ac Pacis (1625), Book II, Ch I, no 1: ‘Ac plane quot actionum forensium sunt fontes, totidem sunt belli: nam ubi iudicia deficiunt incipit bellum’ (Every time there is a legal claim, there is a motive for war: where there is no judicial decision, war breaks out). 40   As the PCJ said in the Mavrommatis case (1924): ‘A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons’: PCIJ, Series A, no 2, 11.



CHAPTER VI OF THE UNITED NATIONS CHARTER 21

to attempt to resolve every crystallised dispute capable of constituting a threat to world peace, the attempt to be made by peaceful means.41 Of course, an obligation of this kind is a ‘soft’ one, and very difficult to enforce; it is a species of lex imperfecta. Nevertheless there is, here, an insistent obligation on the part of States, which reminds them of the import­ ance of cooperating over disputes or clashes. This norm has proved its value. It would be wrong to underestimate its importance, particularly since, for reasons already discussed, exhortation and recommendation tend often to be more important for the resolution of disputes than orders and decisions. Third, the stress on the settlement of disputes is based on the concept of positive peace, that is, on a strategy of medium- and long-term peace. It is not confined to peace-keeping in the very short term, which is commonly achieved by emergency measures. For this reason, Article 2, paragraph 3 contains the phrase ‘in such a manner that international peace and security, and justice, are not endangered’ (italics added). Obviously there can be no medium- and long-term peace unless the dispute settlement is a just one. By contrast, in the short term, it is possible to follow the practical maxim peace before justice, which is concerned with a negative conception of peace. The maxim underlies Chapter VII of the Charter, which is mainly concerned with the adoption of urgent measures to bring about the cessation of hostilities. In such a context there is no time to debate the causes of the conflict, or to seek the justest resolution. Urgent action is necessary. The Security Council has the power to decide on such urgently appropriate measures. By contrast, the spirit of Chapter VI is quite different. Here the concept of ‘negative’ peace gives way to its ‘positive’ counterpart. When one is looking to maintain the peace over the longer term, any degree of injustice is counter-productive, containing the seeds of further conflict.42 Here, therefore, there is a different and complementary maxim, namely ‘peace through justice’. It underlies paragraph 3. It is of course all too obvious that, in real life, the efforts made to resolve disputes often fall short of this high ideal. In addition, each player will have its own particular conception of what a just solution involves, and will be disappointed if that conception is not realised. But that is not the real point, which is that the Charter sets before us the nature and character of the effort that must be made if there is to be durable long-term peace. The more its words are heeded, the better the practical work of preserving the peace (and vice versa). In essence, what the Charter provides us with here is a wise suggestion. It is for statesman and politicians to heed these words.

b)  Types of Dispute Envisaged by the Charter The Charter envisages three types of dispute, each of which is treated differently by international law. First, there are purely local disputes of a kind unlikely to disturb international relations. The line between such disputes and others can be difficult to draw; indeed, an apparently insignificant dispute can, if it persists and is not sorted out, weigh heavily upon the relations even of otherwise friendly States. Be that as it may, purely internal disputes (for example, the Jura dispute in Switzerland in the 1970s), and also technical disputes between   cf eg C Tomuschat, ‘Article 2(3)’ in Simma, above n 28, 106.   According to the maxim of Ramon Lull, Liber proverbiorum (circa 1296), pars III, cap L, § III: ‘Iustitia procurat pacem et iniuria bellum’ (Justice brings peace, and injustice brings war). 41 42

22  PEACEFUL RESOLUTION OF INTERNATIONAL DISPUTES

States which have friendly relations, are phenomena with which the Charter is not concerned. From the perspective of the international community, they are not serious enough to merit UN intervention. This category is interpreted in a restrictive way, so as to exclude only disputes that are clearly minor – where, if the UN did intervene, it would be both useless and dangerous. Indeed, for a party to take a dispute of this kind to the UN would be to attach undeserved importance to the issue, and could only make it more serious than it actually is. It would amount almost to the creation of an international dispute where, until then, there had not really been one. Second, there are disputes ‘the continuance of which is likely to endanger the maintenance of international peace and security’ (Article 33, § 1). In this scenario, there is no direct present threat to peace, but it is reasonable to foresee that if the situation is not dealt with, the situation will fester to the point where, at some future date, it will disturb world peace. This kind of reasoning can be seen as an application of ‘domino’ or ‘chain of events’ theory: today the dispute is inoffensive, and perhaps will be easy to resolve, but tomorrow, it could, through the snowballing pressure of unforeseen events, develop into a serious conflict that is difficult to resolve. Recognising this possibility, the Charter concerns itself, from the ‘positive’ peace perspective, with attempts to resolve such conflicts. This is a kind of early-warning system, one of the aims of Chapter VI of the Charter on the settlement of disputes. The chapter is concerned with the provision of services by the collective organs of the UN, to assist parties to resolve their disputes. The instrument it has in contemplation is the power to make recommendations to the parties as to the best way of reaching a resolution. Nevertheless the parties themselves remain free to accept or reject the proposals put to them. They become binding only if the parties accept them. Third, there are disputes that pose an immediate threat to international peace – the wound is festering, previous attempts to treat it having failed. In such cases, one needs to intervene urgently, with the powers of coercion provided for Chapter VII. It is not a matter of resolving the dispute, but simply of taking the necessary steps to keep the peace, or, if it is too late for that, to re-establish it. Even so, the peaceful resolution of so sharply developed a conflict will still remain the core issue, highly visible even through the veil of urgent measures. If a halt is called after the Security Council has adopted such measures (if indeed it does so), without treating the causes of the conflict, the likelihood is that, at some later time, peace will once again be imperilled or collapse. So Chapter VI remains relevant, alongside Chapter VII. In this sense Chapter VI applies both to disputes ‘the continuance of which is likely to endanger the maintenance of international peace’ (Article 33) and to those which are a ‘threat to the peace, breach of the peace, or act of aggression’ (Article 39). Chapter VII does not mandate the Security Council to impose a solution of the dispute: it is essentially limited to urgent measures for keeping or restoring the peace. However, the Security Council can continue mediating between the parties even if it pursues its activities under Chapter VII. Article 39 clearly indicates this power by providing that the Council can ‘make recommendations, or decide’ even within the framework of action under Chapter VII. The Council’s power to make recommendations is not confined to the resolution of differences under Chapter VI. It includes that Chapter and goes beyond it. In short, the Council can continue its diplomatic activity for the purpose of settling disputes, by means of recommendations made in parallel to its activities under Chapter VII. The underlying purpose in drafting the Charter this way was to give greater powers to the Council; it would have been absurd to deprive it of the powers it already had, taking away options derived from Chapter VI, once action under Chapter VII became necessary. In purely



CHAPTER VI OF THE UNITED NATIONS CHARTER 23

practical terms, it would be senseless to eliminate some of the Council’s diplomatic functions simply because it had exercised its power to take urgent action under Chapter VII. If you have wide powers, you also have to have the right to do something more limited. And, diplomatically, it is important that the Council can resort to the full panoply of possible political action. The objective is always the same – the most appropriate solution in the given circumstances.

c)  A Duty to Seek a Solution to the Dispute? Modern international law imposes on States an obligation to seek peaceful resolution of their disputes when the latter are in either the second or third of the above categories, that is, when their prolongation could lead to a threat to peace and international security (Article 33), and a fortiori when they constitute a direct threat to peace or have already led to violence (Article 39). Article 2, paragraph 3 uses imperative language: ‘All Members shall settle their international disputes’ (italics added). Article 33 is just as clear (clearer still in the French language version), stating that the parties to any dispute that might threaten the peace ‘shall, first of all, seek a solution’ (italics added). Resolution 2625 of the UN General Assembly on Friendly Relations among States (1970) is equally clear. However, we need to add three qualifications to that. First, in practice there are virtually no sanctions for breach of the duty, so that the obligation is, in that sense, an imperfect one. In such situations, the UN presses on with its diplomatic efforts, trying to stimulate movement in the parties’ respective positions. In such a context, sanctions of any kind would make very little sense; they would simply put the Government they were aimed at firmly in the spotlight, and make constructive solutions all the harder. Only if a State is persistently failing to comply with its obligations under the Charter, including the obligation to negotiate, are sanctions possibly to be envisaged. In such cases, the other UN Member States can at any time decide more or less to ostracise the recalcitrant State, isolating it within the UN system. This was, for example, done to South Africa in the 1970s, over the Namibian mandate and South Africa’s policy of apartheid. The other Member States did not, however, go so far as to exclude South Africa from the UN altogether, although that was a possibility under Article 6 of the Charter. Second, the obligation to seek a peaceful resolution of the dispute goes only to the means; it is not an ‘obligation of result’. A State must try to resolve the dispute, but it is under no obligation to reach agreement on any particular solution. Whether a Government can, or should, accept a particular proposal for a solution, whether it can agree to a compromise affecting its rights, as is often necessary, these are matters for that Government and that Government alone. The obligation to try to find a solution means you must make the effort, but is thus heavily qualified by the fact that there is no obligation to agree. Nevertheless, that in no way detracts from the intrinsic value of the obligation. The road to be followed, the constant effort to be made in a constructive spirit, are, in themselves, already useful obligations. The obligation points to the only way in which progress can be made towards a solution. Furthermore, proposals which at one stage were rejected, have frequently been revived later, enabling the parties to re-open their discussions at a clearer and higher level, ultimately leading more easily to a satisfactory solution. In this field particularly, therefore, hasty and impatient conclusions are to be avoided. The just settlement

24  PEACEFUL RESOLUTION OF INTERNATIONAL DISPUTES

of disputes is a complex affair. It takes a long time. The ‘resolution’ of a conflict without the real and full-hearted assent of the States concerned (and indeed also to some extent of their peoples) will often prove neither solid nor lasting. Third, and this is a particularly important point, the obligation to seek a solution is qualified by the principle of ‘free choice as to the means’. Not only are the disputing States not individually obliged to consent to any concrete solution they dislike, but also, they are under no obligation to use any particular mechanism for resolving the dispute unless they individually agreed to do so. This principle is emphasised in Resolution 2625: International disputes shall be settled on the basis of the sovereign equality of States and in accord­ance with the principle of free choice of means. Recourse to, or acceptance of, a settlement procedure freely agreed to by States with regard to existing or future disputes to which they are parties shall not be regarded as incompatible with sovereign equality.

Paragraph 3 of the operative provisions of General Assembly Resolution 37/10 of 1982 on the peaceful resolution of disputes between States (often called the Manila Resolution) insists on the same principle, which protects the sovereignty of States involved in disputes. We need not be blind to the fact that the principle of free choice as to means has, contrary to its underlying intention, often been invoked by Member States as a means of avoiding what might have been useful cooperation in resolving disputes. By doing this they have, in a number of cases, turned the principle from a legitimate protection for equal sovereignty into a pretext for scuttling attempts at progress towards settlement. To some extent, therefore, the principle of free choice as to means has hampered the smooth working of Chapter VI of the Charter. Sometimes it has prevented the organs of the United Nations – excessively deferential towards State sovereignty – from fulfilling their role under the Charter of steering the parties towards a solution of their dispute. Attempts have been made to minimise the scope for obstructive use of the free choice principle, by arguing that it is a simple minor right and not truly a principle at all, or that it is a matter of practice and not of law.43 It should, however, be recognised that, in the practice of States, the free choice of means has indeed operated as a principle, and that well-intentioned attempts at progress have frequently been frustrated by it.44

d)  The Field to which Chapter VI Applies (Articles 33 et seq.) Three aspects of this question call for analysis. – ‘Dispute or situation’: Depending on the context, Chapter VI as a whole applies to ‘disputes’ or to ‘situations’. Article 33, on the means of resolution, very logically concentrates on ‘disputes’ and makes no mention of ‘situations’. Article 34 is different, using the two expressions side by side. This is because Chapter VI is not confined to the resolution of disputes that have already crystallised. It has a more extensive preventive function, designed to nip in the bud the potentially negative early shoots of ‘situations’ which have not yet taken on the shape of actual disputes. The UN organs have the right to take 43   See AA Cançado Trindade, ‘International Law for Humankind: Towards a New Jus Gentium’ CCHAIL, vol 317, 2005, 211. 44   See particularly, E Jiménez de Aréchaga, ‘International Law in the Past Third of a Century’ CCHAIL, vol 159, 1978-I, 143 et seq.



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preventive measures, that is, to prevent disputes from crystallising. They can, for example, enquire into any dispute or any situation which might lead to a disagreement between States, with a view to deciding whether the prolongation of the dispute or situation seems to threaten the maintenance of international peace and security (Article 34). In this way, the Charter distinguishes between the treatment of disputes (the final links in the chain of preventive action provided for in Chapter VI), and the treatment, not of disputes themselves, but of their forerunners (the earlier links in the chain). Articles 34, 35 and 36 are thus concerned with both ‘disputes’ and ‘situations’. How, then, are we to distinguish the two expressions. What is a ‘dispute’? What is a ‘situation’? Neither of these two expressions is defined in the Charter itself, but when it comes to the application of the law, the first has been given a fairly clear definition in the jurisprudence of the ICJ. In this connection, commentators usually refer to the pioneering decision of the Permanent Court of International Justice in the Mavrommatis case of 1924: ‘A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons’.45 Only the lightest of retouching is needed to make this definition entirely satisfactory for present purposes. First, a dispute can relate not only to questions of law and fact, but also to matters of political orientation; second, it can involve more than two parties. The essence of a dispute, then, is that the parties have developed opposing and clearly delineated positions on the issue. One side formulates its claim; the other resists it. By contrast, the word ‘situation’ has a wider and more general meaning, which becomes apparent when one considers its function and its objective. It would not have been adequate to prevent the UN organs from examining a highly charged animosity between States just because no clearly defined ‘dispute’ had yet crystallised. On the contrary, it is better to take action before the dispute crystallises, because by then it will already be very late in the day to intervene, and the issue will have become harder to resolve. The UN cannot be expected to have its reaction conditioned by so subjective a matter as the speed (or otherwise) with which the parties define the issues in dispute. To sum up, therefore, every state of affairs that disturbs relationships between States is a ‘situation’, unless it has already become a ‘dispute’. The word ‘situation’ thus has an essentially residual (and in this sense negative) meaning; if there is friction without there being a dispute, then we are faced with a situation. ‘Friction’ means any kind of difficulty in relationships between two or more States. In practice, however, the United Nations has seldom paid much attention to these subtle distinctions in the Charter. It considers itself charged with dealing with ‘anything’ that might endanger peace and understanding between nations. The UN hence seldom needs, in its own view, to be burdened with sage distinctions between ‘disputes’ and ‘situations’. Often, it is relatively easy to clothe the issue in the necessary garb by setting out the parties’ concrete positions in the form of a dispute. This kind of procedural subterfuge enables the UN, acting under Articles 36 and 37, to make recommendations for resolving the substance of disputes. So, for example, the UN organs treated the controversy in 1956 to 1958 between India and Pakistan over the territories of Jammu and Kashmir as a ‘dispute’ although India, wanting to limit the UN’s role, argued that it was no more than a ‘situation’. Although in the hands of the UN’s political organs the distinction between disputes and situations is thus fairly fluid and tenuous, the same cannot be said of legal organs such as the ICJ. The Court can only decide disputes. It cannot be seised of ‘situations’ until they   PCIJ, series A, no 2, 11.

45

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have evolved into disputes. So the Court has been careful to define a (legal) ‘dispute’ far more rigorously than is necessary for the UN’s political organs. Fundamentally, all the latter need to do is to satisfy themselves that there is a ‘bad’ relationship between States, and having ascertained that there is, to satisfy themselves whether it is opportune and wise to intervene at any given moment. By contrast, a court of justice has to decide between the concrete claims of parties who are in continuing mutual opposition. It has no discretion as to whether or not it should make up its mind and give judgment. Consequently, and as we shall see, the existence of a dispute is an essential condition for proceedings before the Court, whether as a matter of substantive jurisdiction or of the admissibility of a claim. Reserved domain46 Article 2, paragraph 7 of the Charter states that nothing in the Charter shall authorise the UN to intervene in matters that are essentially within the domestic 46  On this important concept, see amongst others, MS Rajan, United Nations and Domestic Jurisdiction (Bombay/Calcutta/Madras, 1958) (2nd edn, London, 1961); L Kopelmanas, L’organisation des Nations Unies (Paris, 1947) 207 et seq.; G Sperduti, Il dominio riservato (Milan, 1970); G Arangio-Ruiz, ‘Le domaine réservé – L’organisation internationale et le rapport entre droit international et droit interne’ CCHAIL, vol 225, 1990-VI, 9 et seq.; and N Politis, ‘Le problème des limitations de la souveraineté et la théorie de l’abus des droits dans les rapports internationaux’ CCHAIL, vol 6, 1925-I, 43 et seq.; G Scelle, ‘Critique du soi-disant domaine de “compétence exclusive”’ (1933) 14 RDILC 365 et seq.; S Ségal, ‘Le domaine réservé’ (1933) 14 RDILC, 704 et seq. and (1934) 15 RDILC 25 et seq.; P Berthoud, ‘La compétence nationale des Etats et l’Organisation des Nations Unies’ (1947) 4 ASDI 17 et seq.; C Fincham, Domestic Jurisdiction: The Exception of Domestic Jurisdiction as a Bar to Action by the League of Nations and the United Nations (Leiden, 1948); L Preuss, ‘Article 2, Paragraph 7, of the Charter of the United Nations and Matters of Domestic Jurisdiction’ CCHAIL, vol 74, 1949-I, 553 et seq.; A Ross, ‘The Proviso Concerning ‘Domestic Jurisdiction’ in Article 2(7) of the Charter of the United Nations’ (1950) 2 AJPIL 562 et seq.; H Kelsen, The Law of the United Nations (London, 1951) 769 et seq.; C Rousseau, ‘La détermination des affaires qui relèvent essentiellement de la compétence nationale des Etats’, Rapport définitif, Annuaire IDI, vol 44-I, 1952, 137 et seq.; J Ludovicy, ‘L’article 2, § 7, de la Charte des Nations Unies et la notion de domaine réservé’, (1957/8) 8 AJPIL 175 et seq.; JHW Verzijl, ‘Le domaine réservé de la compétence nationale exclusive’ in Essays T Perassi, vol II, (Milan, 1957) 391 et seq.; R Bindschedler, ‘La délimitation des compétences des Nations Unies’ CCHAIL, vol 108, 1963-I, 391 et seq.; R Higgins, The Development of International Law Through the Political Organs of the United Nations (London/New York/Toronto, 1963) 58 et seq.; A Ross, ‘La notion de ‘compétence nationale’ dans la pratique des Nations Unies’ in Essays H Rolin (Paris, 1964) 284 et seq.; A Verdross, ‘La ‘compétence nationale’ dans le cadre de l’Organisation des Nations Unies et l’indépendance des Etats’ (1965) 69 RGDIP 314 et seq.; A Verdross, ‘The Plea of Domestic Jurisdiction before an International Tribunal and a Political Organ of the United Nations’ (1968) 28 ZaöRV 33 et seq.; F Ermacora, ‘Human Rights and Domestic Jurisdiction (Article 2 § 7 of the Charter)’ CCHAIL, vol 124, 1968-II, 371 et seq.; N Ouchakov, ‘La compétence interne des Etats et la non-intervention dans le droit international contemporain’ CCHAIL, vol 141, 1974-I, 34 et seq.; AA Cançado Trindade, ‘The Domestic Jurisdiction of States in the Practice of the United Nations and Regional Organizations’ (1976) 25 ICLQ 715 et seq.; A D’Amato, ‘Domestic Jurisdiction’ EPIL, vol I (A–D), (1992) 1090 et seq.; B Conforti, Le Nazioni Unite, 5th edn (Padua, 1996) 134 et seq.; HG Schermers and NM Blokker, International Institutional Law, 3rd edn (The Hague/London/Boston, 1999) 142 et seq.; G Nolte, ‘Article 2(7)’ in Simma, above n 28, vol 1, 148 et seq.; G Guillaume, ‘Article 2, § 7’, in JP Cot, A Pellet and M Forteau (eds), La Charte des Nations Unies, Commentaire, 3rd edn, vol I (Paris, 2005) 485 et seq. See also P Mariotte, Les limites actuelles de la compétence de la Société des Nations (Art 15, §§ 7 et 8 du Pacte) (Paris, 1926) 110 et seq.; A Verdross, Die Verfassung der Völkerrechtsgemeinschaft, (Vienna/Berlin, 1926) 168 et seq.; A Van Deth, Etude sur l’interprétation du paragraphe 8 de l’article 15 du Pacte de la Société des Nations (Amsterdam, 1928); S Tachi, La souveraineté et l’indépendance de l’Etat et les questions intérieures en droit international (Paris, 1930); F Ullmann, Die ausschliessliche Zuständigkeit der Staaten nach dem Völkerrecht (Bonn/Cologne/Berlin, 1933); E von Thadden, Der vorbehaltene Betätigungsbereich der Staaten (domaine réservé): eine völkerrechtliche Untersuchung (Göttingen, 1934); JL Brierly, ‘Matters of Domestic Jurisdiction’ in BYIL, vol 6, (1925) 8 et seq.; CG Fenwick, ‘The Scope of Domestic Questions in International Law’ (1925) 19 AJIL, 143 et seq.; LB Schapiro, ‘Domestic Jurisdiction in the Covenant and the Charter’, Transactions of the Grotius Society, (1947) 33 195 et seq.; L Gross, ‘The ‘Domestic Jurisdiction’ Limitation in the United Nations Charter’ (1947) 47 Columbia Law Review 268 et seq.; P Vallindas, ‘The Concept ‘Matters which are essentially within the Domestic Jurisdiction’ Contained in Article 2, Section 7 of the United Nations Charter’ (1948) 1 Revue hellénique de droit international 375–77; J Nisot, ‘Article 2, Par. 7, of the United Nations Charter as Compared with Article 15, Par. 8, of the League of Nations Covenant’ (1949) 43 AJIL 776 et seq.; H Wehberg, ‘Der nationale Zuständigkeitsbereich der Staaten nach der Satzung der Vereinten Nationen’ (1950) 2 AVR 259 et seq.; A Verdross, ‘Die ausschliessliche Zuständigkeit der Staaten nach der Satzung der Vereinten Nationen’, Essays T Perassi, vol II (Milan, 1957) 379 et seq.; Cornell Law School (ed), The Status of Domestic



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jurisdiction of any State or shall require the Members to submit such matters to settlement under the present Charter.47 An exception is made only for enforcement measures under Chapter VII. Article 2, paragraph 7 resulted from a political concession made to certain States, including the USA and the USSR, which otherwise would not have been prepared to ratify the Charter. It is obvious, however, that if the dispute or the situation might endanger the maintenance of international peace in the sense of Article 33, the UN must be and is, authorised to take action. From the legal perspective, it is impossible to say that a question which has the potential to threaten the peace is a matter of the relevant States’ ‘domestic jurisdictions’.48 Quite the contrary: the Charter, through precise and positive provisions laid out in Chapter VI, makes such questions matters of collective concern. States are not in a position to argue that because, from their point of view, the dispute is an internal issue, the UN cannot take action under Chapter VI. In fact the question is really the other way round: if the dispute or situation might endanger peace, then one is not dealing with a merely internal issue; if there is no threat to the peace, then, by contrast, it is indeed an internal matter. The criterion of the ‘reserved domain’ of domestic jurisdiction thus adds nothing to the criterion of the dispute’s character in relation to international peace and security. The UN’s practice, in a whole series of situations, has been to examine them from the broad perspective of a potential threat to the peace, without giving any close consideration to the limits of the ‘reserved domain’. The long line of such situations began with the examination of the ‘situation’ in Spain under the Franco government49 (which, moreover, was an extreme example, since if the ‘reserved domain’ means anything, this was a case to which it ought sensibly to have applied). – ‘the continuance of which is likely to endanger the maintenance of international peace’. This criterion is one of considerable substance. It is not only the most important one for defining the field to which Chapter VI applies, but also the one yielding with greatest difficulty to minute analysis. The concept at its heart is a vague one, centring around a prognostication which, at the time the judgment is made, is often quite an open question. The necessary assessment is essentially political in nature, and gives rise (if positive) to a discretionary power. In cases of this kind, when it comes to assessing whether the condition is satisfied, the question ‘who decides?’ is far more important than the question of how the decision is to be made. Manifestly, the threshold is lower than in Article 39 (‘existence of any threat to the peace’), which makes perfect sense at a stage when one is looking simply at preventive Jurisdiction (New York, 1962); GJ Jones, The United Nations and Domestic Jurisdiction of States (Cardiff, 1979); B Cheng, ‘La jurimétrie: sens et mesure de la souveraineté juridique et de la compétence nationale’ (1991) 118 JDI 579 et seq.; MH Ansari, ‘Some Reflections on the Concepts of Intervention, Domestic Jurisdiction and International Obligation’ (1995) 35 Indian Journal of International Law 197 et seq. For the general courses of the Academy of International Law at The Hague, cf R Kolb, Les cours généraux de droit international public de l’Académie de La Haye (Brussels, 2003) 36, 44, 71, 83, 85–86, 93, 105, 121, 135, 150, 174–75, 206, 207, 230–31, 250, 261–62, 284, 326–27, 396–97, 510, 768, 843 et seq., 1041, with references to the original passages. Almost all manuals on international law have a section on this problem. It is impossible to provide a bibliography here. For the exception of the ‘reserved domain’ in proceedings before the ICJ, see G Arangio-Ruiz, ‘The Plea of Domestic Jurisdiction before the International Court of Justice: Substance or Procedure?’ in Essays RY Jennings (Cambridge, 1996) 440 et seq. See also R Kolb, ‘Du domaine réservé: Réflexions sur la théorie de la compétence nationale’ (2006) 10 RGDIP 597 et seq. 47   ‘Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.’ 48   See H Lauterpacht, ‘The International Protection of Human Rights’ CCHAIL, vol 70, 1947-I, 33 et seq. 49   Ibid, 38 et seq.

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action. The underlying idea is that, to justify international intervention, a conflict needs first to have attained a certain level of gravity. That kind of gravity arises if, and when, the dispute or situation become a matter of international concern, putting relations between States under pressure by creating tensions or feelings of hostility. From this perspective, the phrase ‘the continuance of which’ needs to be understood in the light of three considerations. First, it excludes minor and purely local disputes between States which enjoy otherwise good relations. Such disputes should be addressed at local level, since even the mere fact of bringing them onto the global stage can result in their being treated with an import­ ance which in truth they do not have and do not merit. Second, the criterion is a functional one: is it reasonable to try to resolve this dispute by the means provided for in Chapter VI? If it is, then the organs of the United Nations will provide themselves with the means, on the basis that the ‘continuance of which’ test is satisfied. Third, the criterion leads straight to the question of political will: do the organs of the United Nations have the will to take political action in an attempt to resolve the dispute, or at least to reduce tension? If so, they will invoke the test in this sense, claiming that in the circumstances it is satisfied. These three elements are capable of working in perfect harmony; nevertheless, each provides a distinctive perspective of its own, and it is useful to take account of all three. When one analyses the degree of gravity of various conflicts, the question depends on a series of contextual criteria which have to be assessed on a case-by-case basis, with the kind of political wisdom which is the art of the statesman. Relevant factors include the following: (1) the subject matter of the dispute, for example political tensions which could easily spill over into other areas; (2) the past relations between the States in question, which may weigh heavily on the present; and (3) the methods used by one or more of the States involved to defend their interests, for example the adoption of an unconstructive or aggressive posture, creating a poor climate which could only be improved by the intervention of an impartial third party. The judgment as to the threat to the peace, as provided for in Article 39, is invariably a matter of degree, so that in practice the decision largely depends on the wishes of the UN organs, especially the Security Council. The Charter presents them with a fork in the road. Do they think there is still time to resolve the dispute, and to make proposals to that end? If so, they will take the fork represented by Chapter VI, treating the dispute as satisfying the test laid down in Article 33. If, by contrast, they think that there is no time left for conciliation, and that, in view of the gravity of the situation, they should move directly to coercive measures and sanctions, then they will take the other fork, under Chapter VII, and treat the dispute as satisfying the test in Article 39. The tests are equally ‘discretionary’ in the sense of being a matter of judgment, and are thus essentially functional in relation to the aim pursued. In conclusion, one should also note that the test under Article 33 is based neither on the concept of ‘positive peace’ (addressing all the wider causes of the conflict) nor on ‘negative’ peace (dealing only with the direct danger of war). It in fact lies somewhere between the two. In footballing terms, this allows the UN team to take various kinds of action in mid-field, with a game plan that is neither fully defensive nor fully offensive.

e)  Seising the Organs of the UN Who can bring a ‘situation’ or ‘dispute’ to the UN for possible action? On this subject, Article 35 of the Charter is very liberal. It gives the right to inform the UN to every Member



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State, and, under slightly more restrictive conditions, also to every State that is not a Member. In addition, the UN organs have various powers to act motu proprio: for the General Assembly there is Article 11, paragraph 2 of the Charter, and for the Security Council, Article 33, paragraph 2, and Articles 34, 36, and 37, paragraph 2. In addition, the Secretary-General has an important political role under Article 99. That Article allows him to draw the Security Council’s attention to anything which, in his view, might threaten the maintenance of international peace and security. In these various ways, the Charter casts its net as widely as possible over the field of dispute resolution. It is designed to ensure that there is no impediment to bringing to the UN any situation which imperils international peace, instituting a kind of actio popularis for the benefit of all States.50 There are thus various categories: – Any Member State (Article 35, § 1): ‘Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or the General Assembly’. From a very early stage, it was accepted that this provision amounted to giving the Council a right to act motu proprio. It is, after all, composed of the representatives of States. If any member of the Council wants to put a question on the agenda, logically this means that a Member State has seised the Council of the matter. One case in which this happened was the dispute between the USSR and Iran in 1946, when Iran complained of the stationing of Soviet troops in its territory.51 But it should be noted that Member States, although they have the right to seise the Council, are not under any obligation to do so. They are free to refrain. Sometimes the disputing States feel there is little point in taking the matter to the UN. Sometimes they feel that, if the UN did involve itself, it would be interfering in their affairs (though this view would in most cases hardy be tenable as a matter of international law). For such reasons, it may, at any given moment, seem inadvisable to take a dispute to the UN. Where it does seem advisable, several States will often act in concert, so as to give additional weight to the démarche. This has happened many times, including in the following cases: India and Australia seising the Security Council of the decolonisation dispute between Indonesia and the Netherlands (1947); the USA, Norway, Portugal and the United Kingdom sesising the Council of the dispute between Cambodia and Vietnam following the latter’s military intervention (1979); Mexico and Norway seising the Council of the Iran–Iraq dispute (1980); and the group of non-aligned States seising the Council of the situation in Namibia (1985). – One or more non-Member States (Article 35, § 2): ‘A state which is not a Member of the United Nations may bring to the attention of the Security Council or the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter.’ In such cases the conditions for seising the UN are a little stricter: (1) there has to be a ‘dispute’, not just a simple ‘situation’; (2) the State seising the Council must be a party to the dispute; (3) it must first accept, as regards the particular dispute in question, the obligations relating to the peaceful settlement of disputes provided for in the Charter. In this way, the scope of the actio popularis is, in principle, severely reduced. These limitations, hardly very relevant from the point of view of the overall objectives of Chapter VI, are explained by the historical considerations that influenced the drafting of the Charter. In   T Schweisfurth, ‘Article 35’ in Simma, above n 28, vol I, 611 et seq.   See the 33rd session of the Council, first year.

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1945 it was argued that, if Members and non-Members were placed on a footing of equality, this would put the former enemy States in a position to call on the organs of the United Nations in the hope of redress for wrongs alleged to have been done to them in the post-war settlement. It was also argued that a non-Member State might, without any tangible risk to itself, bring issues to the Council with the sole objective of discrediting the UN. Worries of this kind explain why paragraph 2 is more limited in scope than paragraph 1.52 In any event, the Charter does provide, in paragraph 2, that during resolution procedures, the non-Member State will enjoy complete equality with the Member State. In practice, this provision has become largely obsolete, since there are hardly any non-Members left. Moreover, there will always be Member States ideologically sympathetic to the few States which are not Members, and such Member States have the right to bring the dispute to the Council under the favourable conditions of paragraph 1. Between 1946 and 1980, a period during which a significant number of States remained non-Members, paragraph 2 was used in only four cases. In 1983, South Korea seised the Council of the case of the airliner shot down by the USSR; at that time, South Korea was not a Member State.53 Since then, paragraph 2 has fallen into disuse. – The General Assembly (Article 35, § 3, in conjunction with Art 11, para 3): Article 11, paragraph 3 reads as follows: ‘The General Assembly may call the attention of the Security Council to situations which are likely to endanger international peace and security.’ This power has been frequently used, for example in Resolution 181 (1947) on Palestine; and in Resolution 1596 (1961) on the situation in Namibia. The Assembly defers to the Council, because the Charter provides in Article 11, paragraph 2 that any concrete action will be undertaken by the Council rather than the Assembly. Broadly speaking, the division of powers is that the Council acts, and the Assembly debates and discusses. – The Secretary-General (Article 99): Article 99 reads as follows: ‘The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.’ The word ‘matter’ encompasses both the ‘disputes’ and the ‘situations’ mentioned in Article 34. This provision, too, has been frequently applied, for example:54 Cyprus (1947); Congo (1960); and the Teheran hostage crisis (1979).

f)  Action by the Security Council or the General Assembly The powers exercised by the UN organs under Chapter VI are almost exclusively confined to the making of recommendations about how to find a solution for the dispute or situation. Such recommendations can be procedural (as to the mechanisms for resolving the dispute, Article 36, § 1) or can also be substantive (Article 37, § 2). To be precise, the Security Council (or the General Assembly) can exercise the following functions: – Establishing the facts (Article 34):55 It is often useful to attempt to ascertain the facts more clearly, before recommending action or taking a decision. Article 23 enables the Council 52   See LM Goodrich and E Hambro, Charter of the United Nations, Commentary and Documents, 2nd edn (London 1949) 252–53; 3rd edn with a contribution by AP Simons (New York/London, 1969) 275–76. 53   It became a Member in 1991. 54   See W Fiedler, ‘Article 99’ in Simma above n 28, vol II, 1223 et seq. 55   T Schweisfurth, ‘Article 34’, in Simma, ibid, 594 et seq.



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to investigate the facts whenever it is felt necessary to do so. The nature of such an enquiry can be either general or specific. The objective of a general investigation, whether under Chapter VI or under Chapter VII, is to elucidate facts that are disputed or unclear. The results then enable the Council, now better informed, to take substantive action, that is, to make recommendations or decisions about the dispute or situation in question. Such an investigation was carried out in 1977, in relation to mercenary attacks in Benin. By contrast, a special investigation is designed to clarify the facts that will enable the Council to decide whether a dispute or situation is of sufficient gravity for Article 33 to come into play, that is, whether the continuance of the dispute is likely to endanger the maintenance of international peace and security. The purpose of an investigation of this kind is to clarify whether Chapter VI comes into play. More often than not, however, the two aspects are run together, the investigation serving both objectives by stages. The practice of the UN shows that investigations have often been used for wide-ranging objectives, and have been carried out in contexts that are both ambitious and flexible. Thus, for example, in Resolution 4 (1946), the question was whether the Franco regime was a threat to the peace; in Resolution 15 (1946), whether the Greek civil war was a threat to the peace; and in Resolution 132 (1959), whether infiltration by Laotian guerillas was a threat to the peace. In 1983, the Secretary-General was requested to carry out an inquiry into mass poisoning in the Arab territories occupied by Israel.56 The questions covered by investigations under Article 34 are considered non-procedural, and are consequently subject to the right of veto provided for in Article 27 paragraph 3 of the Charter. However, it is quite easy to get round such a veto by creating a commission of enquiry, as a subsidiary body under (depending on which UN body is concerned) Article 22 or Article 29, since it seems that this question is a purely procedural one, both Articles falling under the heading ‘Procedure’. Whether such subsidiary bodies can be charged with investigations within the meaning of Article 34 is, however, a matter of some controversy. Does an investigation give rise to obligations on the part of Member States? Is the Council’s decision to hold an investigation legally binding on them? Must they admit the Council’s investigating mission into their territories? Such questions arose in the case of the Greek civil war (starting in 1946), when the neighbouring communist States refused to cooperate. On one side it was argued that Chapter VI conferred only powers of a recommendatory nature, to the point where each State remained free to withhold its cooperation. The opponents of this view invoked Article 2, paragraph 5 and Article 25 of the Charter, which give binding authority to Security Council decisions, and oblige Member States to cooperate in giving them effect. Although it is not possible to give a simple answer to the question of an investigation’s legal status, it is nevertheless helpful to distinguish between two scenarios. If the Council decides on an investigation under Chapter VII, it can give its decision binding force. In this way, Article 34 can be drawn into Chapter VII. That, however, does pre­ suppose that the conditions of Article 39 are satisfied, that is, that the Council considers that there is a threat to the peace, or that the peace has broken down, or an act of aggression has occurred. The Council has to have power to take all necessary action to carry its sanctions under Chapter VII into effect: the power is implicit rather than explicit, but cannot be denied. The investigation may be one of those necessary actions, since without the   Doc S/15’680 of the UN Security Council.

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appropriate information, the Council’s measures may prove seriously inadequate. Thus, there are only two possible solutions to this question. Either there is an implicit power to carry out investigations under Chapter VII, or else that power arises directly under Article 34. Either way, the result is the same: the decision under Chapter VII is legally binding on all Member States. If, on the other hand, the Council opts for an investigation purely in the context of Chapter VI, the conclusion must be that only certain obligations will be legally binding on Member States.57 They will be under no obligation to provide secret military information or to admit the investigating mission into their territory. If the Charter had intended such a serious limitation on the sovereignty of Member States, doubtless it would have said so clearly. Besides, the practice of States offers no real basis for the claim that the Council has a general power to order enquiries that are binding in these respects. However apart from these two exceptions, the Council’s particular role and mission, especially under Article 34, does impose on Member States a duty to take note of the investigating commission and to cooperate with it. In a situation where the Security Council is not in a position to exercise its powers under Chapter VI, or even Chapter VII, until it has received clarificatory information from the investigating commission, the duty of Member States follows as a necessary consequence. The creation of the commission is an act based, not on a simple recommendation, but on a decision. It is therefore binding under Article 25 of the Charter. Quite apart from this, by virtue of Article 2, paragraph 2 (the duty to act in good faith) and paragraph 5 (the duty to give the UN ‘every assistance’ in any action it takes in accordance with the Charter), Member States are duty bound to act in all the solidarity with the UN that is necessary to enable it to discharge its functions. −− The adoption of substantive recommendations as to the dispute or situation in question. The Security Council has a discretionary power to decide whether or not to make a substantive recommendation. The texts are perfectly clear: ‘The Security Council may . . .’ (Article 36; Article 38); ‘If the Security Council deems . . .’ (Article 37, § 2). If the Council is properly seised of the matter (Article 35), a meeting must be called. But that does not oblige the Council to act, that is, make a recommendation. It may indeed decide that the problem does not justify action, or that a recommendation would, for the moment, be premature. The first question for debate will be whether the dispute should formally be placed on the Council’s agenda. That debate relates to a question that is procedural in nature, and thus not subject to the right of veto (Article 27, § 2). It is quite normal for the States concerned to resist the inclusion of the matter on the Council’s agenda, fearing the adverse publicity and that a domino effect might result. It is nevertheless relatively easy to get a matter onto the agenda, but more difficult to have it deleted. Once the matter is on its agenda, the Council decides whether to recommend an investigation or a solution, or the two in succession. The practice varies quite a lot, in response to political criteria. If the Council does decide to make recommendations on the dispute, it then has three options.

57   Numerous authors, especially in the early years of the UN, took the view that an investigation under Art 34 of the Charter is binding on Member States: cf eg H Kelsen, ‘The Settlement of Disputes by the Security Council’ (1948) 2 International Law Quarterly 185; E Jiménez de Aréchaga, ‘Le traitement des différends internationaux par le Conseil de sécurité’ CCHAIL, vol 85, 1954-I, 45–46. The present author does not consider this point of view wrong in principle, but that it needs to be qualified by what the text says.



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(i) A  rticle 33 paragraph 2: a General Exhortation to the Parties to Resolve their Dispute by Methods of their own Choosing: In this case the Security Council reminds the parties of their primary obligation to seek a solution to the dispute by the means of their own choice, as mentioned in Article 33, paragraph 1. Specific means are not identified; the exhortation is a general one, not a specific recommendation. In this way, the Council is showing the parties that it is following their dispute and taking an interest, and it urges them to take matters forward. The States concerned now know that an international body is watching them, and that it might take more decided measures if they do not move forward with their own attempts to resolve it. This can stimulate them to renewed efforts. An example of recourse to Article 33, paragraph 2 is to be found in the first phase of the Indonesian dispute (1947), in which the United Nations left the matter to direct negotiations between the Netherlands and the Republic of Indonesia. The Council did the same in the dispute over the Falklands/Malvinas, calling, in Resolution 502 (1982) (§ 5) for a ‘diplomatic solution’ to the crisis. (ii) Article 36 paragraphs 1 and 3: A Specific Invitation to the Parties to Resolve their Dispute, or any Analogous Situation (that is one that might be a threat to peace) by one particular method (Article 36 § 1): This procedure is particularly appropriate where the resolution of the dispute has at first been left to the parties themselves, but they have failed to reach a satisfactory result. The principle of ‘free choice as to the means’ can be an obstacle to the resolution of a dispute if the States in dispute disagree not only on the substantive issue, but also about the means to resolve it. In such cases, the Security Council can try to unblock the situation by recommending a particular mechanism. So, in the Israel–Syria conflict, the Council recommended (Resolution 93, 1951) that questions about the 1948 armistice and its execution should be referred to the Armistice Commission. Article 36 paragraph 3 requires the Security Council to take into consideration that legal disputes should, as a general rule, be referred to the ICJ, the UN’s principal judicial organ. The Court is available to provide a judicial resolution of inter-State disputes. Regrettably, the Council has made this type of recommendation on only one occasion – in the event successfully – namely in the 1947 Corfu Channel case between the United Kingdom and Albania. By contrast, the Security Council has frequently referred parties, not to a pre-established mechanism or body, but to subsidiary ones, specially created by the Council itself for the resolution of the particular conflict concerned. This happened, for example, in Resolution 47 (1948), when the Council created a Good Offices Commission with a view to pacifying the conflict between India and Pakistan. (iii) Article 37: Recommending Concrete Terms of Settlement (Article 37 § 2):58 This provision was included in the Charter at the San Francisco Conference, in other words at a relatively late stage.59 By implication, it gives the Security Council a recognised function as regards mediation or conciliation. At the same time, Article 37 endeavours to erect certain barriers against excessively forthright action by the Council. In principle, there are two conditions: (1) that the continuance of the dispute is in fact likely to 58   Art 37 reads as follows: ‘1. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council. 2. If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate.’ On Art 37, see T Stein, ‘Article 37’ in Simma, above n 28, vol I 629 et seq. 59  See UNCIO, vol 12, 181.

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endanger the maintenance of international peace and security; and (2) that one of the parties to the dispute has referred the dispute to the Council (§ 1). In addition, paragraph 1 seems to require the prior exhaustion of the means of settlement contemplated in Article 33. However, all these obstacles have in effect been swept aside by the practice of the Council, which has given Article 37 a very broad interpretation. One example of the Council’s practice is to be found in the fact that it suffices for any State whatever to seise the Council. This means, as we have seen, that in practice the Council can act motu proprio, which in turn means, in legal terms, that Article 37, paragraph 2 is applied without regard to whether the condition as to seising the Council, laid down in paragraph 1, has been satisfied. The Council’s broad reading of the provisions is useful for the purposes of its mediating function. It would be unhelpful to confine it to recommendations about the principle of peaceful settlement, or the appropriate means for the particular case. Sometimes, the mediating function does need to extend to substantive issues. The sovereignty of Member States is sufficiently protected by the fact that the Council’s resolutions adopt what are only recommendations. The Council’s recommendations need not be aligned with the international law applicable between the parties. The Council can propose political compromises, or in other words solutions that it considers appropriate (Article 37§ 2). In other words, the Council’s role is not simply to give effect to the law; it can propose agreements to compromise the parties’ claims. The Security Council has often resorted to Article 37, but its success has been fairly patchy. One of the first occasions in which the Article was applied was in the second phase of the Indonesian dispute, in 1949, after the good offices process failed to deliver results. Numerous Security Council resolutions under this Article have recommended terms of settlement, for example, Resolutions 47, 80, 91, 122 (1948–57) in the Indo-Pakistani conflict, including a recommendation for a plebiscite under UN control; Resolution 138 (1960) on reparation by Israel to Argentine for violating the latter’s territorial integrity in abducting Adolf Eichmann; Resolution 242 (1967) on the Arab–Israeli conflict, with its principle of ‘land for peace’; Resolution 637 (1989) approving an agreement for peace, democratisation and reconciliation in Guatemala; and Resolution 731 (1992), establishing the principle of Libya’s cooperation in establishing responsibility for the terrorist events at Lockerbie. Voting on such recommendations is considered voting on a non-procedural matter; consequently veto rights apply (Article 27, § 3). Article 3860 has hardly ever been applied: ‘Without prejudice to the provisions of Articles 33 to 37, the Security Council may, if all the parties to any dispute so request, make recommendations to the parties with a view to a pacific settlement of the dispute.’ In reality, this provision adds very little to the Council’s powers under Article 37. In formal terms, Article 38 differs in not requiring the dispute to be of a kind that threatens the maintenance of peace and international security. However if the words ‘likely to endanger the maintenance of international peace and security’ in Article 37, paragraph 2 are interpreted widely enough, there is no reason to use Article 38 rather than Article 37. Article 38 provides that the Council can make recommendations at the request of the parties to a dispute. Where the parties are agreed that the Council can take action, any type of action is a possibility. If the agreement between the parties allows it, the action concerned might even involve a   T Stein, ‘Article 38’ in Simma, above n 28, vol I, 643 et seq.

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solution that is binding on the parties. In such a case, however, one is already outside the scope of Article 38, which provides for nothing stronger than recommendations. In fact, Article 38 remains a dead letter, apart, that is, from a single proposal put forward under it by the USA and Colombia, in relation to the dispute between India and Pakistan (1948). Article 38 has, in effect, been absorbed into the wider interpretation of Article 37. Besides, if all parties to a dispute were to agree to withdraw the case from the Council, the latter would arguably have no further powers under Article 38, but its powers under Article 37 paragraph 2, Article 34 and Article 36 would continue. So those other provisions have their own value from this perspective as well. Article 38 is however interesting, because it reminds us that, if the parties wish, the Security Council can involve itself, as mediator, in the settlement of a dispute, whatever the nature of the dispute, and whether or not it poses a threat to international peace. The General Assembly’s powers as regards the settlement of disputes are approximately the same as those of the Security Council. Article 14 of the Charter is the sedes materiae of the Assembly’s powers.61 The Article provides that the Assembly ‘may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations’. This formula is wide enough to give the General Assembly powers corresponding to those of the Security Council under Article 33 paragraph 2 and Articles 34, 36, 37 and 38. It may seem surprising that Article 14 provides a generic formula giving the Assembly the same amount of powers as the Security Council. The Assembly’s practice shows that this reading of the Charter does correspond to practical realities. The General Assembly has, for example, intervened with recommendations to explore Korean reunification (Resolution 2516, 1969), to support the peace process in Central America (Resolution 47/118, 1992), and in the complex context of the Arab–Israeli conflict (for example, Resolution 45/68, 1990). Sometimes the General Assembly has based its action in extraordinary session on Resolution 377(V) of 1950 (the ‘Dean Acheson’ Resolution). Solutions have been recommended in this way for various acute crises, including Hungary (1956), Suez (1956), India/Pakistan (1971), Afghanistan (1980), Bosnia (1992) and others. In these cases, use of the veto was preventing the Security Council itself from discharging its primary responsibility for the maintenance of peace.

g)  Overall Summary Drawing on the various episodes in which Chapter VI has been applied to the settlement of disputes, the conclusion has to be that the UN has adapted its role in light of the constraints posed by the political environment and by States’ pervasive attachment to national sovereignty. It must always be borne in mind that, in this field, the UN’s organs can act only by persuasion, not through coercion. They do not themselves make decisions, only recommendations. It is frequently difficult to blame them for the defects and weaknesses of their actions, when they simply do not have the powers to act in a more directive way. 61   This provision too was included in the Charter at a late stage in the drafting, at the San Francisco Conference, when the small and medium-sized States insisted that the General Assembly’s role should, at least to some extent, be reinforced: cf E Luard, A History of the United Nations, vol I (London, 1982) 55. And see O Kimminich and M Zöckler, ‘Article 14’ in Simma, above n 28, vol I, 318 et seq.

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Equally, one needs to take account of the fact that States are sometimes peculiarly obstinate and headstrong when they get involved in disputes (though are we ourselves, as individuals, truly any wiser?). The UN’s record in this field deserves neither the contempt sometimes visited upon it by over-demanding commentators, nor the honour paid to it by over-optimistic ones. Chapter VI, more than any other part of the Charter, operates in a sphere somewhere between the high heavens and the pit of hell: in other words, in the real world. The original idea was that the UN organs, with all their prestige, would be able to add pace and direction by intervening, bringing decisive pressure to bear to assist the resolution of disputes. This was thought particularly helpful in situations where the parties were, at least for the time being, blocked by the difficulties in their paths. In this context, the Security Council was thought of as a kind of stationmaster, an authority-figure who would blow his whistle and start the trains. The Great Powers, as members of the Security Council, would lend their support, through the powerful means of persuasion open to them, so that trains departed briskly and on the right tracks. However, the brakes were all too soon slammed on again, often through excessive deference to the sovereignty of the parties, especially the principle of ‘free choice of the means’. The UN has not always been sufficiently active in assuming the burden of pressurising parties, particularly when to do so might irritate them, shake them out of their lethargy, or interfere with their dilatory maneuverings. But its overall record remains as impressive as it could be. The UN has indeed, on numerous occasions, taken action in the field of conflict management and dispute settlement. The record is by no means one of invariable failure, and in any case, what does the word ‘failure’ really mean in this context? Collective action is necessary, in the strictest sense of the term, because attempts must always be made to find solutions for disputes. Disputes exist, and we cannot refuse to address them simply because they look difficult or tricky. Right from the start, what has often been called ‘failure’ has, in truth, been only a relative disappointment. Immediate resolution of the conflict is not normally the sole objective of the action taken, and it cannot be the only yardstick for measuring success. Solutions that are discussed unavailingly today might, tomorrow, become new points of departure. Progress is by stages, a step-by-step affair. The final resolution of a dispute is often the reward for efforts made over a long period of time, during which there is a progressive ripening of the parties’ positions, of the problem itself, and of proposals for solutions. The UN’s work, even where it seems, at first sight, to yield disappointing results, will often have its effect, in clarifying and crystallising the respective positions of the parties, so that problems and obstacles are better calibrated, the positions of third States better understood, and better account taken of the practicalities of any solution. In short, the intervention of a third agency such as the UN can be valuable and constructive in many different ways, making it easier to reach an eventual solution. The first and most decisive step is to acquire an exact understanding of the problems and the possible solutions. Many a time, UN good offices or mediation has helped move the parties forward in the direction of a solution. Does anyone ever remember, when finally a solution is reached, the many obscure steps, that contributed to the final success? Indeed, does anyone reflect on the preventive action taken by the international community? Without UN intervention, would the situation have got much worse? Would there not have been more frequent and more serious explosions of violence? In this imperfect world, patience and perseverance are essential, even though (at least in the modern West) hasty, ignorant, and occasionally pretentious critics are not always overburdened with these admirable qualities. We should



CHAPTER VI OF THE UNITED NATIONS CHARTER 37

remember the good offices work of the United Nations in the Cuban missile crisis (1962), Vietnam (1965–71), between India and Pakistan (1965–71), and between Cambodia and Thailand (1961–68), not to mention its mediation work in Palestine (1947–49), Cyprus (1964) and the Middle East (1967). There are so many extremely serious and sometimes violent situations in which the UN’s work has at least contributed to containing the problem, sometimes postponing or limiting explosions of violence, maintaining contacts between the parties, and thus contributing to the search for solutions to problems which are often of an extremely political nature. Nor should it be forgotten that the UN confines its efforts to disputes of a certain gravity, in which it is much more difficult to achieve a resounding and rapid success. If the UN were the kind of organisation that concentrated on relatively minor issues, where the reciprocal goodwill of the parties so often permits a mutually satisfactory solution to be found rapidly, the popular assessment of its record would be quite different. However the UN concerns itself with serious or even dramatic disputes: the minor ones can usually be settled by the parties themselves, relatively swiftly and quietly, through the means referred to in Article 33, paragraph 1 of the Charter. The settlement of disputes requires a steady supply of goodwill. One needs faith, courage, patience, discretion, and an understanding of the cultures, the history, and the dispute itself. The results are rarely spectacular, but that does not make them any less important. More than any other part of the Charter, Chapter VI is based, so far as practicable, on the art of the necessary-made-possible. Before a question can be intelligently judged, it is first essential to understand the exact parameters of possible action, and the complexity of the activities undertaken. Regrettably, that imperative need is not always understood; and when it is, it is not always respected.

II Origin and Environment of the International Court of Justice at The Hague 1.  ARBITRATION AND ORGANISED JUSTICE: CREATION OF THE PERMANENT COURT OF INTERNATIONAL JUSTICE IN 1920

a)  From Arbitration to International Justice For centuries the solution of international disputes, on the basis of law, by a decision binding on the parties, fell under the general heading ‘arbitration’. International interdependence and solidarity had not yet reached the point where a permanent tribunal could be seriously contemplated. Of course arbitration itself has a long history. It was already known in Antiquity to the Mediterranean peoples, and was a practice of the Hittites, the Persians, the Greeks, and in due course the Romans (in the capacity of arbiter).1 Often this was less arbitration in the modern sense of the term, than a mixture of what we would call arbitration and conciliation. In the Europe of the Middle Ages, arbitrations took place quite frequently.2 They were encouraged by the Pope and the Holy Roman Emperor. Arbitrators were often nominated in disputes between the cities of Italy. The law they applied comprised, on the one hand, the law of agreements or treaties (including local or regional customary law); on the other (at successively subsidiary levels), first the jus commune (the law of nations, canon law, or Roman law, all of them being ‘common’ to the States of the West); and finally, the general principles of natural (or divine) law. Not all such arbitrations were inter-State affairs. The political structures of the Middle Ages depended on a complex set of interlocking collectivities (normally personalised), connected to each other by either lord–vassal relationships or relationships which often had at least some of the same elements. In most cases, these structures were consolidated into territorial entities only in a slow and gradual way. Consequently the leaders of society in the Middle Ages had a rather different conception of the difference between internal and international relations than is current in the modern world. Given the relatively fluid and personalised medieval view of territorial sovereignty and jurisdiction, international and internal public arbitration in Europe were less distinct than they later became. From the sixteenth to the seventeenth centuries, the use of international arbitration declined, though it never completely

1   See generally, JH Ralston, International Arbitration from Athens to Locarno (Stanford/London, 1929); JB Scott, Les Conférences de la Paix de la Haye de 1899 et 1907 (Paris, 1927) 166 et seq. On Greece, see amongst others, A Raeder, L’arbitrage international chez les Hellènes (Christiana, 1912); V Martin, La vie internationale dans la Grèce des Cités (Paris, 1940) 487 et seq.; GC Ténékidès, Les relations internationales dans la Grèce antique (Athens, 1993) 298 et seq. 2   WG Grewe, The Epochs of International Law (Berlin/New York, 2000) 93 et seq.

40  ORIGIN AND ENVIRONMENT OF THE ICJ

disappeared.3 Doubtless the explanation is that the crises of the age caused much mediaeval thinking either to fall into complete desuetude or to evolve in new directions, as men groped their way towards a changed world view based, more exclusively than hitherto, on a clear and simple conception of territorial sovereignty. A point it may be useful to mention is that arbitration was sometimes used at this period to liquidate the consequences of a war. The emergence of that new world view may perhaps be dated from the Westphalia Treaties in 1648. However, it was only in 1794 that international arbitration made a serious return to the scene. The United Kingdom and the United States of America used arbitration to clear up questions left open by the American War of Independence, including, in particular, the boundary between the newly independent republic and (British) Canada, and various claims resulting from alleged violations of the law of war. The Jay Treaty was concluded in 1794, and with it, arbitration came back into significant international use.4 Thereafter, the nineteenth century saw a great variety of international arbitrations.5 It is worth noting, however, that many of them were appreciably different from the modern concept of arbitration, in particular in the following respects:6 (i) the arbitrators’ role was not exclusively to apply strict rules of law, they also had a function of conciliation; (ii) the only type of arbitration in use was arbitration ad hoc – there was no institutionalised arbitration going beyond the scope of any particular agreement to arbitrate; (iii) express reservations in relation to vital interests, the honour of the State, its constitutional principles and so on, all operated in such a way as to limit arbitrators’ jurisdiction, indeed carrying with them the implicit danger of obstructing the whole arbitral exercise.7 By means of such vital interests clauses, States retained the right to decide whether a particular question should be sent to arbitration (because it did not affect the State’s vital interests), or vice versa. This was true even when a ‘framework’ provision in a treaty made advance provision for arbitration and created the general impression that arbitration was more an obligation than a facultative possibility. From the legal perspective, what this meant was that ‘jurisdiction as to jurisdiction’8 was not conferred on the arbitrator, but remained vested in the parties, in particular, practically speaking, in the Respondent State. In this way, arbitration was not really obligatory; it always remained facultative, even if a treaty made provision for what on the face of it seemed like an ‘obligation’ to arbitrate. In other words, arbitration was based on the logic of the pacta de contrahendo or of the forum prorogatum. At the Hague Conferences of 1899 and 1907, the central objective was to move from arbitration by specific agreement to obligatory arbitration, at the same time giving arbitrators 3  Ibid, 199–200; see, for further details on the period prior to the Jay Treaty, CH Lingens, Internationale Schiedsgerichtsbarkeit und Jus Publicum Europaeum, 1648–1794 (Berlin, 1988). 4   Grewe, above n 2, 365–66; N Politis, La justice internationale (Paris, 1924) 31; JB Scott, Les Conférences de la Paix de la Haye de 1899 et 1907 (Paris, 1927) 189 et seq. For a more recent assessment, see Y Daudet (ed), Actualité de la Conférence de La Haye de 1907 (Leiden, 2008); A Eyffinger, The 1907 Hague Peace Conference: ‘The Conscience of the Civilized World’ (The Hague, 2007). 5   A de La Pradelle and N Politis, Recueil des arbitrages internationaux, vol I (Paris, 1905); Politis, La justice international, above n 4, 34. See also, H La Fontaine, Pasicrisie internationale, 1794–1900 (Bern, 1902). 6   See JB Scott, Les Conférences de la Paix de la Haye de 1899 et 1907 (Paris, 1927) 276 et seq.; L Caflisch, ‘Cent ans de règlement pacifique des différends interétatiques’ CCHAIL, vol 288, 2001, 308 et seq. 7   See the critique of the reserved domain as regards vital interests in H Lauterpacht, The Function of Law in the International Community (Oxford, 1933, 1966) 290–91; GG Fitzmaurice, ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’ CCHAIL, vol 92, 1957-II, 59 et seq. See also, JH Ralston, International Arbitration from Athens to Locarno (Stanford/London, 1929) 31 et seq. 8   See U Iaccarino, Della c. d. competenza della competenza dei tribunali internazionali (Naples, 1962) 31 et seq.



ARBITRATION AND ORGANISED JUSTICE 41

greater powers.9 However, it rapidly became apparent that it was premature to expect decisive advances towards compulsory arbitration. Certain powers balked at any such obligation, and firm resistance by the German Empire finally killed the idea. The Conference had therefore to confine itself to organising arbitration by consent. The result was Hague Convention (HC) I of 1899, which laid down rules of arbitration (subsequently revised in 1907), based on a set originally drafted, as far back as 1875, by the Institute of International Law. The Hague Convention rules contained certain innovations. These included the creation of a permanent court of arbitration (in reality a list of arbitrators and a secretariat), making it easier for States wanting to settle disputes by arbitration to constitute tribunals (Articles 41 et seq. HC I, 1907). ‘Jurisdiction over jurisdiction’ was conferred on arbitrators (Article 73 HC, 1907); parties could now be assured that, unless they agreed otherwise, a majority of the arbitrators would be non-nationals, apart from those they themselves nominated (Article 45 HC I, 1907); the rules provided for distinct written and oral phases of the proceedings, adversarial in character (Articles 63 et seq. HC I, 1907); arbitrators were obliged to give reasons for their decisions (Article 79 HC I, 1907); the rules recognised the possibility of intervention by a third State which could demonstrate it had a legal interest in the case (Article 84 HC I, 1907); particular provision was made for going back to the tribunal, if necessary in cases of doubt, for the interpretation of its decision (Article 82 HC I, 1907); there was a right, in certain circumstances, to seek revision of the award (Article 83 HC I, 1907); and the rules provided a summary procedure for urgent issues (Articles 86–90 HC I, 1907). Although the possibility of obtaining just­ ice via arbitration remained optional, and although many of the rules were largely suppletive and could be superseded by agreement between the parties, nevertheless one plainly sees the emergence, in the two Hague Conventions of 1899 and 1907, of clearly drawn rules of arbitration, in fact the emergence of arbitration in the modern sense of the term, that is the settlement of disputes through an adversarial trial in which the rules of law are applied. After the two Hague Conferences, the critical problem was to establish a permanent court of justice. As in the case of arbitration, so here, the question of compulsory jurisdiction remained firmly on the table. A permanent tribunal means a tribunal set up in advance, to deal with future disputes that parties wish to submit to it. Such a court’s existence is ongoing; the judges are always there, ready to hear cases in accordance with procedures established in advance. This saves a great deal of time and considerably facilitates the proceedings. It makes it unnecessary for disputing States to get involved in the difficult and irritating task of negotiating the terms on which an ad hoc tribunal should be set up, a task the more unwelcome given that, ex hypothesi, it has to be undertaken at a time when the political tension between the two States may well make even a technical exercise of that kind difficult and unpredictable. The word ‘permanent’, as used, for example, in the very title of the ‘Permanent Court of International Justice’ (PCIJ) does not have quite the meaning that relatively uninformed people often suppose, that is, a rather vainglorious claim to have established a tribunal that is, so to speak, ‘eternal’. In fact, ‘permanent’ simply denotes the objective existence of the tribunal, independent of ad hoc agreements between the parties to any dispute, an existence which will continue indefinitely, and does not come to an end with any particular case. The key point after the Hague Conferences was that the new tribunal was to be an institutionalised one. At the time, the internationalist leitmotiv was that if one could provide for the compulsory settlement of all international disputes on the 9   L Calfisch, ‘Cent ans de règlement pacifique des différends interétatiques’ CCHAIL, vol 288, 2001, 308 et seq.; Politis, La justice international, above n 4, 95 et seq.; AS de Bustamente, The World Court (New York, 1925) 41 et seq.

42  ORIGIN AND ENVIRONMENT OF THE ICJ

basis of international law, it would be possible to ensure international peace (as had already been achieved internally, at municipal level, when States established their own municipal courts and tribunals). The realisation of this visionary expectation would, it was hoped, be greatly facilitated by the existence of a permanent tribunal, one, moreover, that would be able to hear any party at very short notice if the urgency of the situation required it. Nevertheless, in 1907 the attempt to establish a permanent international maritime prize court failed.10 The first obstacle was disagreement between the delegations about the selection of the judges. The small powers insisted on strictly egalitarian representation, which was unacceptable to the greater ones. Other disagreements followed as to the law to be applied, since the international law of the day contained numerous important lacunae in relation to maritime issues. The United Kingdom, which had for over a century been the greatest of the maritime powers, did not want the tribunal to have the right to fill these lacunae with equitable principles. It was worried that its freedom of action, and its own Admiralty law, would be constrained by a developing body of international law which, being based on equity, might prove dangerously unpredictable. For some years, therefore, the international community had to content itself with only one permanent tribunal, and a purely regional one at that, namely the Central American Court of Justice.11 It was set up in 1907, and began its work the following year. The Central American Court had a somewhat turbulent history, in the course of which it did some real service. But its existence was not renewed in 1918. After years in the gestation, a permanent international tribunal was finally born in the aftermath of the First World War. The conflict had shown that the world of the twentieth century was very different from that of the nineteenth. Interdependence had now become so important a feature of international life, and there had been such a grave failure to foresee the destructive power of modern warfare, that it was impossible, after a war fought ‘to end all wars’, to continue with the outdated institutions of the nineteenth century. The time was ripe for the creation of a global political organisation, whose supreme objectives would be to keep the peace between the nations and to serve as a platform for international cooperation in the growing number of fields where it seemed essential for States to work together. So it was that, in 1920 to 1922, the Permanent Court of International Justice was established, the body which would ultimately be the precursor of the present International Court of Justice.12 The creation of the PCIJ went hand in hand with the creation of the 10  Politis, La justice international, above n 4, 129 et seq.; JB Scott, Les Conférences de la Paix de la Haye de 1899 et 1907 (Paris, 1927) 398 et seq. 11  Politis, La justice international, above n 4, 139 et seq.; AS de Bustamante, The World Court (New York, 1925) 68 et seq. 12   On the creation of this jurisdiction, see, eg O Spiermann, ‘Historical Introduction’ in A Zimmermann, C Tomuschat and Oellers-Frahm, The Statute of the International Court of Justice, A Commentary, (Oxford, 2006) 42 et seq.; O Spiermann, ‘A Permanent Court of International Justice’ (2003) 72 Nordic Journal of International Law 399 et seq.; Politis, La justice international, above n 4, 155 et seq.; MO Hudson, The Permanent Court of International Justice, 1920–1924. A Treatise (New York, 1943) 90 et seq.; AS de Bustamante, The World Court (New York, 1925) 79 et seq.; AP Fachiri, The Permanent Court of International Justice, 2nd edn (London, 1932) 1 et seq.; DG Nyholm, ‘La Cour permanente de Justice internationale’ in P Munch, (ed), Les origines et l’œuvre de la Société des Nations, vol II (Copenhagen, 1924) 241 et seq.; Lord Phillimore, ‘Scheme for the Permanent Court of International Justice’ in (1920) 6 Transactions of the Grotius Society 89 et seq.; E Root, ‘The Constitution of an International Court of Justice’ (1921) 15 AJIL 1 et seq.; G Salvioli, La Corte permanente di giustizia internazionale (Rome, 1924); JB Scott, The Project of a Permanent Court of International Justice and Resolutions of the Advisory Committee of Jurists (Washington, 1920).



ARBITRATION AND ORGANISED JUSTICE 43

League of Nations, which is hardly surprising, since a permanent political institution is likely to need a permanent judicial organ. Article 14 of the League’s Covenant provided as follows: The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.13

In compliance with this provision, the Council appointed a Committee of Jurists to draft a Statute for the new Court. The Committee was composed of 10 lawyers with global reputations, drawn from 10 different nationalities and representing the main legal systems which, at the time, were thought important. In 1920, the Committee adopted a draft Statute, which was then examined by the Council. Some aspects of the draft were amended to make it compatible with the Covenant. The Council rejected the idea that the PCIJ would have any compulsory jurisdiction, which had been desired by the small States, but opposed by the great powers. To eliminate any question of compulsory jurisdiction, the Council invoked Article 12 of the Covenant, which permitted the parties to a dispute to choose, for its resolution, between a number of different mechanisms, in particular, arbitration, the PCIJ, and the Council itself. The Council took the view that a compulsory jurisdiction of the PCIJ would have overridden that freedom of choice. Once the draft Statute had been finalised, the next step was to adopt it. Doubts were expressed as to whether it sufficed for it to be formally adopted by the League Assembly, perhaps on a unanimous basis. Article 14 of the Covenant provided that the draft would be submitted to the Member States. Under the internal law of some Member States, that would have necessitated a separate ratification process. So an international treaty was needed, and for that, a resolution by the Assembly would be insufficient. In any event, it would have been necessary to supplement the Assembly’s vote by the adherence of a certain number of States (in particular the USA) which, although not members of the League, wished to be affiliated to the PCIJ. An Assembly Resolution would have made it more difficult for those States to be associated with the Court, since the Covenant made no provision for non-Members to participate at meetings or to vote on Assembly texts. It was therefore decided to create a special protocol for signature, incorporating the Statute. The protocol would constitute a treaty. It was dated 16 December 1920.14 Under an Assembly Resolution of 13 December, the Protocol would enter into force as soon as it was ratified by a majority of Member States.15 On 25 February 1921 this threshold was passed. The second Assembly of the League thus found itself in a position to proceed to the election of the judges. Finally, the Court started work on 15 February 1922.

13   As to Article 14 of the Covenant, see amongst others, J Ray, Commentaire du Pacte de la Société des Nations (Paris, 1930) 432 et seq.; JM Yepes and P Da Silva, Commentaire théorique et pratique du Pacte de la Société des Nations, vol II (Paris, 1935) 120 et seq.; W Schücking and H Wehberg, Die Satzung des Völkerbundes, 2nd edn (Berlin, 1924) 535 et seq. 14  Hudson, The Permanent Court of International Justice above n 12, 124 et seq. 15   A question of law arose as to whether the relevant majority was one that existed on 13 December 1920, at the moment when the Assembly voted to mandate the Council to prepare the protocol, or the majority at a later date, namely when ratifications were lodged: cf Hudson, The Permanent Court of International Justice above n 12, 125–26.

44  ORIGIN AND ENVIRONMENT OF THE ICJ

The main advances represented by the new Court were as follows: −− its institutional character, which was expected not only to enable it to function smoothly, but to lead to a corpus of jurisprudence which would, in its turn, contribute to the general development of international law; −− a character of permanence, which made it possible to seise the Court unilaterally, and, by so doing, opened up access to a true system of international justice. Unlike arbitration, where a recalcitrant State could easily block the constitution of the arbitral tribunal by refusing to cooperate, the Permanent Court provided the possibility of obtaining a judicial hearing at any time; −− the Court took advantage of (and consolidated) the ‘legal’ procedures for settling disputes that had been inaugurated in 1899/1907 with the Permanent Court of Arbitration. In particular, the judges’ ‘jurisdiction over jurisdiction’ was unequivocally affirmed (Article 36, § 4 – subsequently § 6, in the ICJ Statute – of the Court’s Statute). In consequence, the Court at least seemed to be a more developed and stronger institution than the Permanent Court of Arbitration; −− the development of a compulsory jurisdiction over cases between those States that wished to submit to it, in particular through the ‘optional clause’ on compulsory jurisdiction (we will return to this later). This represented a compromise between those wanting to establish a compulsory jurisdiction for all States that were parties to the Statute, and those who refused to commit themselves in advance to the jurisdiction of the Court; −− it was accepted and recognised that the Court could, on request from the Assembly or the Council, issue non-binding opinions that would shed light on the legal aspects of the League’s international activities, and help to put them on firm foundations; −− the development and reinforcement of international law, and thus of the rule of law on the international plane. By issuing statements on various questions, the Court would reinforce the power of law; by interpreting and developing the law, the Court would increase its capacity to regulate the most diverse aspects of international life, the propensity of States to take account of it and to submit disputes to it, and its own technical ability (through the precision and quality of its own rules) to play a growing part; and −− the facilitation of direct negotiations between disputing parties, and of the resulting possibility that they would reach solutions bilaterally. The Court provided an element that was supplemental to direct and amicable settlement by the disputing States themselves. Sometimes, the mere fact of threatening to seise the Court, or of having done so, might resolve a deadlock and take the parties forward. For example, a government, feeling uneasy about the reactions of its own population, might hesitate to comply with its obligations under international law. Or it might find its efforts bogged down because it did not dare to intervene to right a wrong caused to another State, simply because the wrong had been done by a judicial body and the government felt its hands were tied by the principle of separation of powers. In such cases, recourse to the PCIJ might be a decisive way of stimulating fresh movement. The defendant State would no longer be able to sit on the fence; it would realise that it would now have to take the problem seriously, and respond accordingly; perhaps negotiations would be renewed and lead to a rapid solution. If not, the Court’s decision would make it easier for the vacillating government to take necessary steps, enabling it to argue that it was now obliged to do so, and indeed that it had no alternative. In many cases a decision by the Court might not even be



ARBITRATION AND ORGANISED JUSTICE 45

needed. The parties, having finally reached agreement, could withdraw the proceedings. But the existence of the Court would still have made a decisive contribution, even if that contribution was almost imperceptible and not widely understood. The Court was named the ‘Permanent Court of International Justice’ by Article 14 of the Covenant.16 At the Hague Conference in 1907, various other names had been proposed for the court which at that time it was proposed to create: High Court of International Justice; International Court of Justice; Court of Arbitral Justice. Later, in the course of the reorganisation of world institutions following the First World War, various other names were proposed: including International Court, Permanent International Court; International Tribunal; International Court of Law; and International Court of Justice. Prophetically, the Italians proposed ‘International Court of Justice’. The words ‘permanent court of international justice’ first made their appearance in a draft convention prepared in the UK and dated 20 January 1919. The draft used the expression not as a formal name, but as a descriptive phrase. From there it was lifted into the ‘Hurst-Miller’ Draft of the League of Nations Covenant. After finding its way through successive subsequent drafts, it was finally enshrined in Article 14 of the Covenant. At that point, what made the name stick was sheer inertia. By 1945 times had changed. It no longer seemed revolutionary to have a ‘permanent’ court. Hence, the name was simplified to ‘International Court of Justice’. Institutionally, the PCIJ was tied to the League itself.17 It was in fact the League’s creature, and Geneva financed it. Conceptually, the Court was a part of the League’s new machinery for the governance of the world.18 At the same time, however, the PCIJ was always an independent international institution. It was never incorporated into the organic structure of the League. Those who created the PCIJ wanted not only to emphasise its independence from the League’s political institutions, but also to facilitate collaboration with the Court by States that were not Members of the League itself. The position of the modern ICJ is not the same. The ICJ is indeed an integral part of the UN’s institutional structure, and its principal judicial organ (Article 92 of the Charter). Its judicial independence is, however, guaranteed. This is so even at a symbolic level: it continues to have its seat at The Hague, the old seat of arbitration, sometimes called the legal capital of the world,19 a city which is a considerable distance from the political institutions of the UN at New York and Geneva.

b)  Difference between Arbitration and International Justice When the PCIJ was created, the distinction between arbitration and organised justice was not very clear.20 The two expressions were often confused. The similarities between them  Hudson, The Permanent Court of International Justice above n 12, 103.   Ibid, 111–12. 18   This was recognised by the first President of the PCIJ, the Dutch Judge Loder, when he presented the Court as one of the League’s principal organs, with a position comparable to that of the judicial arm within many States. Ibid, 112. 19   PJ Van Krieken and D McKay (eds), The Hague: Legal Capital of the World (The Hague, 2005). 20   See, eg Hudson, The Permanent Court of International Justice above n 12, 109, arguing that the difference between the two modes is somewhat artificial. For contemporary texts, see BCJ Loder, La différence entre l’arbitrage international et la justice internationale (Paris, 1923); J Garnier-Coignet, ‘Procédure judiciaire et procédure arbitrale’ (1930) 6 Revue de droit international (Paris) 123 et seq. For G Morelli, ‘La théorie générale du procès inter­ national’ CCHAIL, vol 61, 1937-III, 311–17, the difference between the two forms of justice was less substantive 16 17

46  ORIGIN AND ENVIRONMENT OF THE ICJ

seemed more striking than the differences, the common element being the fact that, normally, the arbitrator’s or judge’s decision constituted a legal judgment binding on the parties.21 Differences were noted especially in the permanence of a court compared with the ad hoc character of arbitral justice; the appointment of judges by means of elections, as opposed to the selection of arbitrators by the parties; the fixity of judicial procedure compared with the parties’ freedom to choose the procedure to be followed in an arbitration; and the fact that courts can and do develop jurisprudence, whereas arbitral tribunals find it difficult to do so.22 But, with the passing of time, and the growing experience of judicial proceedings, the differences became more apparent. Before analysing them, it is worth emphasising that, while some of them are very marked, others are much more questions of gradation and degree. The most extreme difference is the fact that arbitration always means, and is thus limited by, the constitution of an ad hoc tribunal, which will be dissolved once the case has been decided. Here we have a diametric opposition between arbitral justice, the private concern of the disputing parties, and the existence of a general judicial regime representing the international community as a whole. The difference is much less marked, however, when arbitral tribunals are created to deal, over a period of time, with a series of questions that are important internationally, procedural and functional rules being adopted for purposes that go beyond the needs of any one particular case. In such circumstances, arbitration becomes institutionalised, and more closely resembles the organised justice of courts and tribunals. The difference between the Iran–US Claims Tribunal (an arbitration tribunal created by the Algiers Agreement of 1982) and the International Tribunal for the Law of the Sea (constituted under the UN Convention on the Law of the Sea, 1982, representing international justice and sitting at Hamburg) is thus only one of degree. The former continues to ‘belong’ to the disputing parties, and exists for their benefit; the latter is an institution representing the international community as a whole. The former is destined to disappear when all the disputes within its remit have been dealt with; the latter is destined to exist indefinitely, so that it can deal with future cases. However, in so far as the concrete functioning of the two types of justice is concerned, the difference reduces to something of a blur; unlike one-off arbitrations, both types function on the basis of elected judges and a preconstituted procedure. If an institutionalised arbitral tribunal of this kind needed to be created by a great number of States, and not just by two of them, the difference from a permanent international court would be even less. At the end of the day, one is nevertheless always left with the fact that arbitration, even on an institutional basis, concerns only one particular category of dispute, between parties who, than formal; an agreement which was the basis for an arbitration was wider in scope, since it had to constitute the totality of the law relating to the case; an agreement which was the basis of the Court’s jurisdiction was narrower, since it could be confined to the commencement of the case: ‘It is only the scope of the norms that is different: in one case the norm relates to a single decision relating to a concrete dispute; in the other, the norm envisages an indefinite number of decisions relating to an indefinite number of disputes’ (ibid, 314, our translation). This was an indirect way of invoking the pre-existing institutional structure of a permanent international jurisdiction. 21   Obviously the arbitrator sometimes had the more flexible role of an amiable compositeur. This was the case with the ‘joint arbitral commissions’ provided for in the Jay Treaties. On those Treaties, see the entry in the EPIL. This psychological point of arbitration as a flexible means to adjust international law to the needs of the parties and to adapt it to change (whereas international justice sticks to objective law and to the development of a jurisprudence) was stressed by G Kaeckenbeeck, ‘La Charte de San-Francisco dans ses rapports avec le droit international’ CCHAIL, vol 70, 1947-I, 197–98. 22   The Advisory Committee of Jurists, in presenting its draft on the PCIJ, insisted, in this respect, on three differences: (1) nomination of the arbitrators by the parties; (2) the parties’ right to choose the principles governing procedure; and (3) the necessarily voluntary or consensual nature of arbitral justice. See O Spiermann, ‘Historical Introduction’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 12, 43.



ARBITRATION AND ORGANISED JUSTICE 47

together, constitute a particular international group, not the international community as a whole. The irreducible difference between the two forms of justice thus resides in this: (1) arbitration is not designed to create institutions of indefinite duration, to decide a whole series of future disputes that are not yet foreseeable;23 and (2) arbitration is the creature of specific parties, and is not representative of the international community as a whole, whereas international judges, in the strictest sense of the term, originate with the international community as a whole, derive their authority from it and give judgment in its name. Nevertheless it would be wrong to conclude from point (2) that tribunals of public justice cannot exist at a regional level. The Court of Justice of the European Communities (CJEC) (now Court of Justice of the European Union) is certainly a ‘public’ court, not a ‘private’ arbitration panel. But, looking at the matter the other way round, it is difficult to conceive of arbitration as a ‘universal’ exercise. The idea of organising the arbitration of all disputes between the various members of the international community would be very bizarre indeed. Organised justice is much more appropriate. At this point, more detailed examination is called for, of the general differences between public justice on the one hand, and arbitration between specific parties on the other. There are three main differences: −− Different constitution: Organised public justice is created, and functions, in the name of the legal community of the States of a particular region, or of the States of the inter­ national community as a whole. Arbitration remains the creature of the parties constituting it. ‘Public’ justice is conceptually opposed to ‘private’ justice; the utilitas publica to the utilitas singulorum; the general to the particular. A very sound contemporary comment on the PCIJ’s position reads as follows: ‘[The permanent jurisdiction] is no longer just the work of the Parties appearing before it; it is no longer just a simple body created by the disputing States. It is, par excellence, the power of international justice instituted by the legal community of States in the League of Nations. As a result of the way it has been constituted, it is virtually external to the Parties.’24 Another commentator said this: Moreover, emanating from the League and functioning in its name, the PCIJ is one of the principal cogs in the organisational machine of which it is part. Its right to intervene does not depend solely on the claims of the parties, since its justice is the fruit of a higher will, the will of all members of the League. Unlike arbitral awards, which, whatever their legal value, are in the ultimate resort no more than arrangements sought by the parties, the Court’s judgments are true judicial decisions, giving expression to the universal legal conscience.’25

Finally, as to the ICJ itself, one finds the following: ‘[The ICJ] is the organ of the legal order of that community and not of the parties to the dispute before it; it is an instrument put by the international legal order at the disposal of the litigants, without however depending on them in its structural and functional properties or in its judicial policy.’26 23   As the point was put by H Kelsen, The Law of the United Nations (London, 1951) 464: ‘Judicial settlement, in the specific sense of the term as used in the Covenant, signified the decision of a tribunal established not, or not directly, by the parties, and not only for a single dispute after it had arisen, but for an unlimited number of future disputes . . . and, hence, for an unlimited or a relatively lasting period of time.’ 24   E Borel, Les problèmes actuels dans le domaine du développement de la justice internationale, (Zurich/Leipzig, 1928) 12 (our translation). 25  Politis, La justice international, above n 4, 19 (our translation). See also, 157, 180. 26   G Abi-Saab, ‘The International Court as a World Court’ in M Fitzmaurice and AV Lowe (eds), Fifty Years of the International Court of Justice. Essays in Honour of Sir Robert Jennings (Cambridge, 1996) 7.

48  ORIGIN AND ENVIRONMENT OF THE ICJ

This is, inter alia, another way of saying that public justice is the final link in the chain of societal evolution. It presupposes the capacity to conceive of a community of interests, and a body of judges capable of giving expression to it. Only at a relatively late stage did human thought achieve this degree of abstraction (and, at least in a sense, perfection). This fundamental difference in turn gives rise to a difference that is a legal one in the strictest sense of that term. It is as follows. −− Legal difference: Given that a system of international public justice is representative of an international community, not just of agreement between particular States setting up a particular arbitral tribunal, it follows that the role and influence of the will of the disputing parties will be different in the two cases.27 A distinguished commentator notes ‘the predominant role of the parties, who control the composition of the arbitral tribunal and the unfolding of the process from start to finish, reserving, for their own benefit in case of need, various escape clauses which they can invoke at any time’.28 In arbitrations, and particularly in ad hoc ones, the parties are, in effect, indisputably in control of the entire procedure; they, and they alone, are the domini negotii. It is they who decide the exact nature of the dispute. It is they who choose the arbitrators, just as they please. It is they who agree the procedures to be followed by the arbitration tribunal. It is their views that decide any other question arising during the course of the proceedings, for example, whether the final award should be made public. The arbitrators are, and remain, agents of the parties. They represent the parties, and decide the case in the name of the parties, not in the name of any collectivity or community. The procedural law they apply is purely suppletive; it gives way before any agreement by the parties to the contrary. The arbitrators are not independent: they act only as a function of the parties’ will and consent. It is no accident that agreements to take cases to arbitration (‘compromis’) have often been called the ‘law of the arbitration’,29 sometimes even the ‘arbitrator’s law’. It goes without saying that the ‘law’ of the compromis binds the arbitrator. We can thus say that, in the classic model, the arbitrator deciding the case is neither ‘superior’ to the parties nor encroaching on their sovereignty. Quite the reverse, he is their mandatory, or, in other words, by virtue of the mandate jointly conferred on him by the parties, he acts as their agent in deciding the dispute. Indeed, in the nineteenth century, sovereign States frequently chose, as arbitrators, someone of equivalent rank – a prince, a king, a sovereign. Symbolically, this emphasised the equal status of the parties and the arbitrator. By contrast, a judge who has been elected in an institutional context such as the ICJ, the principal legal organ of the United Nations, is not the common agent of any set of parties from time to time before him, and does not decide cases in their name. He represents the collectivity of the States which are parties to the ICJ Statute, and acts in strict compliance with the objective rules laid down in the Court’s constitutive texts. The rules are available to, and designed for, not individual States but the parties to the Statute as a collectively. That collectivity can, if it wishes, modify them at any time, through the appropriate processes. The particular parties to a specific case, however, cannot do that: the Court’s rules are beyond their control. They are not mere suppletive law which must give way to contrary agreement between the parties: on the contrary, they are peremptory, and even the

  For further treatment of this theme, see R Kolb, Théorie du ius cogens international (Paris, 2001) 212 et seq.   G Abi-Saab, ‘Cours général de droit international public’ CCHAIL, vol 207, 1987-VII, 246 (our translation). 29   R Kolb, Théorie du ius cogens international (Paris, 2001) 215. 27 28



ARBITRATION AND ORGANISED JUSTICE 49

Court cannot alter or dispense with them.30 As the ICJ itself has stated ‘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’.31 Consequently, international judges are, in a sense, much better placed than are arbitrators, since the judges can analyse and bring together the general interests of the collectivity in whose name they act, and so develop autonomous and distinct ‘legal policy’. In the process, the judges take proper account of notions reflective of their objective responsibilities vis-à-vis the Statute, concepts such as ‘due administration of justice’. Such concepts are relatively unknown in the field of arbitration. To sum up, therefore, judges have a markedly greater degree of autonomy from the parties than arbitrators do. In other words, the degree to which judges are ‘superior’ to parties, in terms of authority and of the vertical relationship between them, is much greater than it is for arbitrators. −− Functional difference: the somewhat different functions of arbitrators (rooted in the parties’ will) and judges (rooted in the law of a wider community) also have fairly marked effects on the ways in which they work. Two examples will suffice here. First, judges are much better placed to generate true jurisprudence, thus developing international law itself. By contrast, the role of arbitrators, especially in ad hoc arbitrations, is to decide only the particular dispute submitted to them. Since they do not have the same longterm perspectives as judges with continuing functions, it is difficult for their legal reasonings to become links in the chain of continuous jurisprudence and precedent.32 When 30   AS De Bustamante, La Cour permanente de justice internationale (Paris, 1925) 152: ‘[The] judge or tribunal, established in advance, [is] subject to rules which are prior and superior to the wills of the respective parties . . . The person charged with ruling on the dispute is not the special creature of the various parties, but on the contrary, exists, so to speak, “prior to” and “above” them, exercising his powers from above to below.’ (our translation) G Schwarzenberger, International Law As Applied by International Courts and Tribunals, vol IV (London, 1986) 723: ‘Individual parties to cases before the Court have only a limited choice: they may take the Statute as they find it, or they may leave it.’ This aspect can also be analysed, at a more theoretical level, as resulting from differing judicial orders of things, in one case applicable to isolated arbitrations, and in the other to permanent tribunals. For G Morelli, ‘isolated’ arbitrations, especially bilateral ones, do not create a new judicial order of things. All that happens is that the internal legal orders of the States in question govern the setting up of the arbitral tribunal. The relations between the arbitrators and the States are based exclusively on an arrangement for services. The creation of a permanent tribunal, by contrast, supposes the creation of a special legal system, the same in its nature as internal law, but without any ‘State’ character. This is the system that regulates the activity of the judges and establishes their rights and obligations. After all, it is impossible to say that the obligations of the Court’s judges are owed only to the parties to particular disputes: that conception would lead to a continual metamorphosis in the judges’ legal position, agents now of this State and now of that one – a conclusion which, at least for the Italian internationalist Morelli, is completely impossible. Here, the greater distance between the judicial body and the parties’ wishes is explained as the effect (or the cause) of a normative mediatisation. This is a judicial order of things which erects a screen between the international judges and individual States. See G Morelli, ‘La théorie générale du procès international’ CCHAIL, vol 61, 1937-III, 282–83. 31   Nottebohm case, Preliminary Objection, ICJ, Reports, 1953, 119. See also the Pessôa dissenting Opinion in the Serbian Loans case, PCIJ Series A, no 20/21, 65; the Novacovitch dissenting Opinion, ibid, 80; the Observation of Juge Pessôa annexed to the order in the Free Zones case, PCIJ Series A no 22, 48–49; and the Observation of Judge Kellogg in the same case, PCIJ Series A, no 24, 32–33. 32  Politis, La justice internationale, above n 4, 93: ‘The system of facultative justice . . . has one great defect. It is of little efficacy as a guarantee of the peace, and has only a very feeble influence on the development of the law, because it does not permit the creation of true jurisprudence. In truth, it provides neither a single judicial organ, nor continuous functioning, nor any conscious link between various cases. Arbitrators come and go, in succession, without knowing each other and without any real knowledge of the work of their predecessors. Precedents, being unknown to them, cannot serve as guidelines’. (our translation) Thanks, however, to the regular publication of arbitral awards, and the development of international jurisprudence through the cases of international courts, the situation today is quite different.

50  ORIGIN AND ENVIRONMENT OF THE ICJ

the PCIJ was first set up, it was widely supposed that it would supply this deficiency, having both a better capacity to perceive the need for an international corpus of jurisprudence, and the will to make a substantial contribution to the development of international law.33 This was particularly important in 1920, given the then very patchy state of international law. Seen in this light, the ‘public’ system of justice, by developing objective international law, contributes, more than arbitration can, to a greater degree of legal certainty and to a reduction in the general scope for future disputes to arise.34 Second, some authors think that ad hoc arbitration, because the arbitrator is naturally concerned not to leave potentially inflammatory questions undecided when he comes to decide the particular dispute which is, after all, his exclusive point of reference, is excessively prone to make accommodations that are either political in themselves, or are politically opportune. Such considerations are to a greater extent irrelevant where the decision is taken by judges who are strictly (indeed severely) confined to legal considerations.35 Those who take this view consequently conclude that arbitration is inferior to international justice. The criticism is comprehensible in light of the conception, current in the early twentieth century, that peace can be achieved by the application of international law (‘Peace through Law’). However, the truth surely is this, that everything depends on the context in which the decision is made. In a given case, arbitrators might perfectly well prove more ‘judicial’ than a court of justice that has lost its way in the field of ‘judicial policy’. Furthermore, to the extent that the criticism is valid, we ought surely to see, in the divergence of approach (‘political’ arbitration as against more truly ‘judicial’ court jurisdiction), a valuable element of pluralism, enabling parties to choose the type of forum that they feel is most appropriate to the needs of their particular cases. From the overall perspective, arbitration and public justice are like oscillating parabolas, now coming together, now moving apart. Nothing is to be gained by bringing one into line with the other, or by seeing one as somehow superior per se. We need both. Their coexistence offers prospective litigants a rich palette of different modes and mechanisms, capable of responding to the multiple facets that are the reality of international relations. There is little to be said for ‘judicialising’ arbitration, with a view to making it more appropriate for today’s more integrated international community. Nor is there much to be said for ‘arbitralising’ justice, with a view to making it more attractive through greater responsiveness to the wishes of this or that particular State. The availability of both mechanisms enriches the international community, in the same way (and to the same degree) as attempts to make one more like the other would impoverish it.

33   Ibid, 180; E Borel, Les problèmes actuels dans le domaine du développement de la justice internationale (Zurich/ Leipzig, 1928) 12. 34   H Wehberg, Das Problem eines internationalen Staatengerichtshofes in W Schücking (ed), Das Werk vom Haag, first series, vol II (Munich/Leipzig, 1912) 7. 35   In particular, H Wehberg: cf C Denfeld, Hans Wehberg (1885–1962) (Baden-Baden, 2008) 122 et seq. This view was shared by other eminent jurists, as for example Politis, La justice internationale, above n 4, 157: ‘a true and genuinely permanent jurisdiction . . . making its decisions in an atmosphere redolent of justice, set apart from any political preoccupation’. (our translation)



THE TRANSITION FROM THE PCIJ TO THE ICJ 51

2.  THE TRANSITION IN 1945 FROM THE PERMANENT COURT OF INTERNATIONAL JUSTICE TO THE INTERNATIONAL COURT OF JUSTICE

The international community’s transition from the old Court to the new has been related elsewhere;36 so only a brief commentary is needed here.

a)  Reasons for Dissolving the PCIJ The state of war since 1939 had put an end to the activities of the PCIJ, which had withdrawn from The Hague to Geneva, but had not been wound up. The United Kingdom and France, in particular, wanted, so far as possible, to maintain the continuity of the League of Nations organs. At the end of the war, the victorious powers opted to create a new global political organisation, the United Nations, and to dissolve its predecessor, the League.37 There were various reasons for this decision. One was the wish to ‘turn the page’ on an organisation whose record in maintaining peace had been not only a chequered one, but also was an unwelcome reminder to some countries of their earlier disavowals, ditherings and cowardice. There was therefore a widespread preference for a clean organisational 36   See the detailed account in M Dubisson, La Cour internationale de Justice (Paris, 1964) 13 et seq. See also O Spiermann, ‘Historical Introduction’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 12, 44 et seq. 37   On the transition from the League of Nations to the United Nations: P Barandon, Die Vereinten Nationen und der Völkerbund in ihrem rechtsgeschichtlichen Zusammenhang (Frankfurt-am-Main, 1948); M Bourquin, Vers une nouvelle Société des Nations (Neuchâtel, 1945); PF Brugière, La sécurité collective, 1919–1945 (Paris, 1946) 266 et seq.; C Eagleton, Covenant of the League of Nations and Charter of the United Nations; Points of Difference (Washington, 1946) 14; H Friedmann, Vom Völkerbund zur UNO (Gerabronn, 1953); H Lehner, Der Völkerbund, die Vereinten Nationen (Lucerne, 1960); G Murray, From the League to the UN (Oxford, 1948); A Nemours, La Charte des Nation Unies – Etude comparative de la Charte avec les propositions de Dumbarton Oaks, le Pacte de la Société des Nations, les Conventions de La Haye, les propositions et les doctrines inter-américaines (Port-au-Prince, 1945); JM Yepes, El Covenanto de la Sociedad de las Naciones y la Carta de las Naciones Unidas (Bogotà, 1946). Amongst the articles, see A Berenstein, ‘La Charte des Nations Unies et le Pacte de la S.d.N.’ (1945) 45 FriedensWarte 393 et seq.; R Cassin, ‘Vers l’organisation de la vie internationale: De la Société des Nations aux Nations Unies d’aujourd’hui’ in Institut d’étude du développement économique et social (ed), Les Nations Unies, chantier d’avenir, vol II (Paris, 1962) 35 et seq.; L Cavaré, ‘Les sanctions dans le Pacte de la S.D.N. et de l’O.N.U.’ (1950) 54 RGDIP 646 et seq.; LM Goodrich, ‘From League of Nations to United Nations’ (1947) 1 International Organization 3 et seq.; T Ruyssen, La société internationale (Paris, 1950) 112 et seq.; S Hoffmann, ‘Deux directoires des grandes Puissances du XXe siècle’ (1954) 58 RGDIP 230 et seq.; S Hoffmann, Organisations internationales et pouvoirs politiques des Etats (Paris, 1954) 263 et seq.; H Kelsen, ‘The Old and the New League: The Covenant and the Dumbarton Oaks Proposals’ (1945) 39 AJIL 45 et seq.; PB Potter, ‘The United Nations Charter and the Covenant of the League of Nations’ (1945) 39 AJIL 546 et seq.; W Schätzel, ‘Vom Völkerbund zu den Vereinten Nationen’ (1948/49) 1 Archiv des Völkerrechts, 1 et seq.; FP Walters, ‘Dumbarton Oaks and the League: Some Points of Comparison’ (1945) 21 International Affairs 141 et seq.; H Wehberg, ‘Historische und grundsätzliche Betrachtungen zur Völkerbundsfrage’ (1945) 45 Friedens-Warte 1 et seq.; H Wehberg, ‘Einführung in die Satzung der Vereinten Nationen’ (1945) 45 Friedens-Warte 329 et seq.; H Wehberg, ‘L’interdiction du recours à la force. Le principe et les problèmes qui se posent’ CCHAIL, vol 78, 1951-I, 7 et seq.; R Ago, ‘L’Organizzazione internazionale: dalla Società delle Nazioni alle Nazioni Unite’ (2004) 59 Comunità internazionale 505 et seq. On the technical aspects of the transition, cf VY Ghebali, ‘La transition de la Société des Nations à l’Organisation des Nations Unies’ in La Société des Nations, Rétrospective (Berlin, 1983) 73 et seq. For the system of collective security in particular, cf M Virally, L’Organisation mondiale (Paris, 1972) 456 et seq. A whole series of other comparative mentions can be found in a wide range of texts, as for example in the courses of the Academy of International Law at The Hague. A list would be too long to reproduce here, but among the most recent contributions, see A Fleury, ‘La création d’une nouvelle organisation internationale en 1945: Continuité et rupture par rapport à la Société des Nations’ in Centre Universitaire du Luxembourg (ed), L’ONU, un instrument de paix au service de qui?, fascicule VI (Luxembourg, 1996) 1 et seq.

52  ORIGIN AND ENVIRONMENT OF THE ICJ

slate, which would give both symbolic and material expression to the idea of making a new start. In addition there was little appetite amongst States which, like the USA, had not been members of the League, for being associated with an organisation of which they had not previously wanted to be members. The bitter hostility of the USSR to the League, from which it had been excluded in 1939 after invading Finland, pointed in the same direction. In the end, it is often easier to draft a new statute, and organise a new structure, than to struggle to amend old texts and out-of-date institutional arrangements, which had long since generated a range of effects that by 1945 were subject to the general law of inertia and resistance to change. What, then, was to be done with the PCIJ? In formal terms, it was not an organ of the League, and in principle could therefore survive its dissolution. But, in institutional terms, the PCIJ vessel was moored alongside the League and tied to it by a number of cables. This threw up a number of problems, both practical and legal. The main ones were as follows:38 −− Institutional transformation: the new international Court was intended to become the principle judicial organ of the United Nations Organisation. The draftsmen of the Charter wanted the two to be more closely associated than the PCIJ had been with the League, both for greater prestige and to give the UN the judicial reach essential to its high role and profile in the post-war world. Although, from a technical point of view, the former marriage between the PCIJ and the now defunct League was no reason to forbid the bans with the UN, it did nevertheless have this consequence, that the ‘transfer’ of the Court to the new international organisation could hardly be thought politically opportune. The outlook was poor: in effect, the PCIJ would have been widely perceived as a continuation – the only one – of the old League within the new United Nations. This was politically unacceptable, and for that reason it was decided to create a new Court. −− Technical reasons: the UN was not, at the outset, a global organisation with universal membership. Quite the reverse, it was the peacetime continuation of the wartime alliance against the Axis, an extension of the united-nations-at-war. The Allies’ former enemies would not be immediately admitted to membership. It was intended that, in the fullness of time, they might apply, and that at that point they would have to adduce evidence of, amongst other things, their peaceful intentions (Article 4 of the Charter). In fact, the Charter even contained rigorous measures against the former enemy States, particularly in Article 53, paragraph 1 and Article 107. In 1945, of the 43 States parties to the PCIJ Statute, 17 were not to become immediate members of the UN, and of those 17, eight were former enemy States and five more were neutrals. From the legal perspective, it was impossible to force these States to renounce their participation in the PCIJ Statute, which they had duly ratified. The only legally practicable way of excluding them at the outset was thus to create a new Court. If no provision had been made for the revision of the PCIJ Statute, very considerable difficulties would have arisen, the general rule being that any revision required the unanimous consent of all States parties. These difficulties had been clearly highlighted by the 1929 revision of the Statute, which finally entered into force only in 1936, after a long succession of difficulties. That experience militated against any attempt at a new revision.39

  See the excellent résumé in Dubisson, above n 36, 21.   MO Hudson, ‘The Twenty-Fourth Year of the World Court’ (1946) 40 AJIL 6 et seq.

38 39



THE TRANSITION FROM THE PCIJ TO THE ICJ 53

The decision to dissolve the PCIJ did not, however, imply any disavowal of its work, nor indeed of the PCIJ itself as a court. It had, in fact, been remarkably effective, all of its decisions being carried into execution. Its jurisprudence was considered by the specialist circle of international lawyers to have made an extremely valuable contribution, and the original creation of a permanent court continued to be thought of as having been a decisive step forward. Committee IV/1 at the San Francisco meetings, working on the creation of the new Court, made clear the debt of gratitude owed to the PCIJ (and in doing so made a clean break with the regrettably negative view of the League that was so prevalent at the new UN). Consequently, Article 92 of the UN Charter expressly provided that the Statute of the new Court was to be ‘based upon the Statute of the Permanent Court of International Justice’.40 The Statute of the old Court was, in fact, re-adopted almost word for word, with only a few modifications, which were either necessary because of the League’s disappearance from the scene, or suggested in light of past experience. Finally, the new Court, whose first President, JG Guerrero, had been the last President of the old Court, decided that the PCIJ’s jurisprudence would be taken into account, without any break in continuity. That is why the ICJ has always cited PCIJ precedents as its own, and continues to do so.

b)  The Process of Creating the ICJ: The creation of the ICJ involved a number of stages. 1) London Committee of Experts. The first major step was the result of an initiative taken by the United Kingdom in 1943. The UK decided to invite various foreign experts in this field to constitute, in conjunction with their UK colleagues, an official committee. This ‘London Committee of Experts’ was to examine questions relating to the organisation of a post-war international court of justice.41 It met from 20 May 1943 to 10 February 1944, presided over by Sir William Malkin. At the time, the main lineaments of the future UN were insufficiently clear for the Committee to adopt any very firm and precise positions. Consequently, its initial draft contained many proposals that would ultimately be rejected. The most important proposals to emerge from the Committee were as follows: (1) not to integrate the Court into the organic structure of the new global political organisation, but, on the contrary, to have it take its distance (more so indeed than the PCIJ) from the swings of fortune that would inevitably be the fate of the UN in the coming years; (2) at least in the initial stages, the judges were to be elected directly by the governments, not by national groups of the Permanent Court of Arbitration; (3) no State should be in a position to have one or more judges ‘permanently’ on the Court, and there should be no provision designed to ensure the adequate representation of the various legal systems of the world; (4) 15 was considered too high a number of judges, and the proposal tended towards limiting the number to nine, with a quorum of seven; 40  This continuity is also highlighted by K Oellers-Frahm, ‘Article 92 of the Charter’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 12, 142. From the positive law perspective, the addition obviously adds nothing: cf H Kelsen, The Law of the United Nations (London, 1951) 465. 41   See the Committee’s report on its work in (1945) 39 AJIL Supplement 1–42; Dubisson, above n 36, 15–16; G Marston, ‘The London Committee and the Statute of the International Court of Justice’ in Fitzmaurice and Lowe, n 26 above, 40 et seq.; RY Jennings, ‘General Introduction’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 12, 4–5.

54  ORIGIN AND ENVIRONMENT OF THE ICJ

(5) the Court’s jurisdiction should be limited to questions that were truly legal or justiciable in character, excluding any that were essentially political (these, and issues concerning the vital interests of States were to be resolved by political means42); (6) the Court should continue to have the power to give advisory opinions, the power even being extended so that it could be exercised on request from all kinds of international organisations and groups of States; and (7) the new Court should work on the basis of the old Court’s Statute, which was considered broadly satisfactory. 2) The Dumbarton Oaks Conference. At the four-party Dumbarton Oaks Conference from August to October 1944, the structure and principles of the new global political organisation were examined in detail. Starting out with only the USA, the UK and the Soviet Union, the Conference subsequently admitted China. From these meetings, the Dumbarton Oaks Project emerged as the first basis for discussing what would become the UN Charter. The Project bore the stamp of the great powers, and at the time was much criticised by the small and medium States for treating them unequally. The Project was brought to fulfilment by the Yalta Agreements of 11 February 1945. In particular, the Yalta Agreements added a power of veto for the five permanent members of the Security Council. As regards the new Court, the Dumbarton Oaks arrangements were as follows:43 (1) the new Court would be the principal legal organ of the United Nations – this was at the insistence of both the USA and the USSR – and so the Court’s Statute would be annexed to the Charter; the Court would be one of the main bodies in the UN; (2) its Statute would be either an amended version of the PCIJ Statute or, if necessary, a new text modelled on the old one; (3) members of the UN would be considered ipso facto to be parties to the Statute; (4) the conditions for adherence to the Statute by States that were not UN members would be decided by the General Assembly, on a case-by-case basis, on the recommendation of the Security Council; and (5) the Chapter on dispute resolution was to provide that legal disputes must generally be submitted to the ICJ, and that the Security Council must have the power to bring issues to the Court for advisory opinions. To sum up, then, at Dumbarton Oaks it was finally decided to fix the new Court firmly in the bosom of the UN, and to give it an important role in the new organisation’s affairs. However, at that point, the question whether to retain or dissolve the PCIJ was still an open one. It was formally decided to ask a committee of jurists to draft a Statute for the future Court in time for the San Francisco Conference. 3) The Washington Committee.44 The Dumbarton Oaks decision was followed up by the formation of the Committee of Jurists, which met in Washington from 9 to 20 April 1945. The Committee was presided over by Mr Hackworth (representing the USA) and appointed Mr Basdevant (the French representative) to act as its rapporteur. The Committee made the following proposals: (1) it thought the question whether to dissolve the PCIJ was a political one, and referred it back to the Conference; (2) from 42   Although doubting the wisdom of including such a limitation in the Statute, Jennings, ibid, 5 shared the substance of this view, in the following words: ‘The rule of law in a community requires ways of making two different kinds of decisions, both of them needed and both complementing each other: the decisions made by applying rules of law; and decisions made by applying reasons of policy. The notion once taught by academic international lawyers, that a court of law can and should deal with any kind of dispute is, in this writer’s opinion, fundamentally erroneous. The organs of government must include, alongside courts, other organs for making policy decisions, and in respect of those policy decisions the function of the court of law should be confined to determining whether the political organ is acting intra vires its powers as defined by the applicable constitutional and administrative law.’ 43   See generally, Dubisson, above n 36, 16–17. 44   Ibid, 18–20.



THE TRANSITION FROM THE PCIJ TO THE ICJ 55

various suggestions as to how judges should be elected, the Committee chose two alternative texts, one based on retaining the old and relatively depoliticised system (nomination by national groups of the Permanent Court of Arbitration), the other based on a new and more politicised system (nomination of candidates directly by States); (3) as to the Court’s compulsory jurisdiction, the Committee was faced with the usual division between the small and medium-sized States (generally in favour) and the greater powers (which were against it), and therefore again prepared two alternative texts. One continued the PCIJ system of an optional clause on compulsory jurisdiction; the other provided a true system of compulsory jurisdiction based exclusively on the Statute, but also envisaging opt-out clauses; (4) the Committee drew the impending Conference’s attention to the issue of how to enforce the Court’s decisions; (5) as regards advisory opinions, the Committee thought this activity of the Court should be retained, and finally proposed extending it, adding the General Assembly to the list of the bodies entitled to request advisory opinions and suggesting that the same right be given to other international organisations and even, in certain circumstances, to States; and (6) finally, mindful of the difficulties that had arisen in 1929 when, in the absence of special rules for the revision of the Statute, the League had sought to modify its Statute, the Committee proposed including such provisions in the text constituting the new Court. To sum up, then, the Committee avoided the strategic decisions, and referred them back to the Conference itself. It did, however, undertake the fine legal draftsmanship, preparing texts (sometimes in the alternative) designed for incorporation into the new Statute. 4) The San Francisco Conference.45 The San Francisco Conference was convened for the purpose of creating the United Nations as the new global political organisation. The nations invited to the conference were those which had fought in the war under the ‘United Nations’ banner or had ‘declared war on the common enemy before 1 March 1945’, together with Denmark. The Conference met from 25 April to 25 June 1945. In a series of difficult negotiations, the small and medium States had to work hard to make their voices heard. A series of compromises resulted, finally resolved upon by an unofficial committee of the five great powers. The small States’ were disadvantaged by the Conference’s voting system, under which the proposals in the Dumbarton Oaks and Yalta plans (themselves the work of the great Powers) could be reversed only by a majority of two thirds of the States present and voting. The Conference’s work was divided between a number of Commissions. The task of considering the UN’s judicial organisation fell to Commission IV. That Commission immediately created a Committee (IV/1) to draft the provisions of the Charter relating to the Court. The President of the PCIJ, and the US judge MO Hudson, took part in the work, thus providing a bridge between the PCIJ and the Conference. Committee IV/1’s chief task was to resolve the questions left open by the Washington Committee’s alternative drafts. The first such question was whether to create a new Court or to stay with the PCIJ. The Committee decided that it would be better to create a new Court and wind up the old one. The reasons have already been discussed (see (a) above). The next question was the one, already drawn to the Conference’s attention, about enforcing the Court’s decisions. The Committee had taken the view that it would not be right to adopt the terms of the former Article 13, paragraph 4 of the Covenant, imposing on the League’s Council a duty to take steps (which incidentally were non-binding) to give effect to arbitral awards   Ibid, 20 et seq.

45

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and judgments of the PCIJ. Instead, the Committee had chosen more flexible provisions, which became Article 94, paragraph 2 of the Charter. These empowered the Security Council, at the request of the injured party, to recommend, or take, steps to enable execution of the Court’s judgments. This power was to be discretionary. The Council was no longer obliged to act as the enforcement mechanism for international judgments. It could make a contribution, if it wanted to; but it was under no obligation. In (and between) the lines of these new arrangements we can read the entire relative decline in the role given to international law in 1945. The Council was given the right to abstain from exercising its powers, even to make simple recommendations. It seemed possible for it to recommend something other than the full execution of a judgment. Such recommendations or decisions as it might contemplate were to be classified as non-procedural questions, so that the power of veto applied. True, the Security Council could, in principle, adopt binding measures and even proceed to the use of force to enforce a judgment. But these increased powers remained highly theoretical; it would be difficult to regard such measures, in the context of the execution of a judgment, as proportionate (and thus practical) options. Perhaps the key point about these provisions is their diaphanous, smoke-and-mirrors character: behind the veil of words, it is very easy to discern the great Powers’ reluctance to be dragged into the enforcement of decisions of an independent court, one whose activities they would be unable to control directly through use of the veto. Finally, there was the question who was to be entitled to request an advisory opinion. At first, this right was going to be given only to the most important bodies within the UN itself, the General Assembly and the Security Council. However, under provisions adopted on 6 June 1945 at a meeting of Committee II/2 (the committee responsible for political and security questions), a wider compromise was accepted, extending the right not only to the Economic and Social Council and other UN bodies, but also to other international organisations affiliated to the UN, provided they were authorised by the General Assembly. The wording of Articles 96 of the Charter and 65 of the Statute was amended accordingly. The Committee turned next to the election of judges. To a very considerable extent, it retained the PCIJ system. Having fixed the number of judges at 15, it decided that they should be elected simultaneously in the General Assembly and Security Council. The old nine-year judicial mandate was retained, but at the same time it was decided that, every three years, one third of the judges’ mandates should come up for renewal (a proposal that Judge MO Hudson had already made in the days of the PCIJ). The objective was to ensure a certain level of continuity, both of personnel and of the Court’s jurisprudence. The staggering of elections was designed to avoid situations in which, at the end of their mandates, all (or almost all) of the judges would step down, leaving the Court almost entirely in the hands of new judges, relatively inexperienced in the work of the Court, who might not have available to them a sufficient level of support from the expertise and recollections of their predecessors. With this end in view, transitional arrangements were introduced for the first elections. The judges’ mandates were fixed, by drawing lots, respectively at three, six and nine years. The result was that five judges would sit for three years, five for six, and five for the full normal term of nine years.46 Fresh elections of one third of the judges, every three years, would then follow automatically. 46   The draw worked out as follows. The five following judges would serve for three years: Badawi (Egypt), Hsu Mo (China), Read (Canada), Winiarski (Poland); and Zoricic (Yugoslavia). The five following would serve for six



THE TRANSITION FROM THE PCIJ TO THE ICJ 57

The Committee also decided to associate other international bodies more closely with the functioning of the Court. Provision was made allowing the Court to make requests for information. In addition, copies of the Court’s written proceedings would be delivered to other bodies in all cases where the Court was called upon to interpret either the instrument constituting the body concerned, or a text directly connected with its activities. In Article 38 of the Statute, listing the sources of international law, the Committee wanted to reemphasise the ICJ’s character as an organ of international law. It therefore inserted the words ‘whose function is to decide in accordance with international law such disputes as are submitted to it’, before carrying on to list the sources that most jurists recognised. In this way, the draftsmen resolved an old controversy about the Court as an ‘organ of international law’.47 They made it clear that they considered the listed sources to be rules of positive international law (which was already accepted as regards treaties and customary law, but remained controversial as regards the general principles of law mentioned in paragraph 1(c)).48 Once again, the question debated longest was the one about the new Court’s compulsory jurisdiction. Some proposals favoured compulsory jurisdiction on the basis, however, that certain exceptions would be specifically allowed by the Statute. Others preferred to retain the old system of an optional clause, in the sense of Article 36, paragraph 2 of the PCIJ Statute. A majority of States were in favour of a compulsory jurisdiction, and of the break with the old system that this would have implied. However, it was also clear that the great powers remained just as opposed to compulsory jurisdiction as they had been 25 years previously. It was therefore decided to retain the old system of the optional clause, the reason for the decision being a pragmatic one: to prevent the creation of the new Court and the adoption of a Statute for it, being blocked by the fact that some of the major States were simply too resistant to the compulsory principle. As a result, the Court’s compulsory jurisdiction would continue to be based on acceptance by all States prepared to go that far. Mere ratification of the Statute did not, in itself, oblige any State to submit to the Court’s jurisdiction over disputes in which that State was involved. Having decided to establish a new Court, the Committee naturally included in the Statute provisions on the transition from the PCIJ to the ICJ. There was a particular concern to preserve, as far as possible, those elements of the PCIJ’s jurisdiction that were embodied in optional declarations within the meaning of Article 36, paragraph 2, or that had previously been included in various treaties. The Committee’s aim was to prevent these declarations’ being effectively nullified by the substitution of the new Court for the old one. For this reason, Article 36, paragraph 5 of the Statute, on the subject of optional clauses, provides that: years: Visscher (Belgium), Fabela (Mexico), Hackworth (USA), Klaestad (Norway) and Krylov (USSR). And the five following would serve for nine years: Alvarez (Chile), Azevedo (Brasil), Basdevant (France), Guerrero (El Salvador) and McNair (United Kingdom). 47   For contemporary uncertainties about the PCIJ, see Hudson, The Permanent Court of International Justice above n 12, 603–605. The question was whether the Court was a true organ of public international justice, applying collective rules of law (ie as an organ of international law), or whether it was in fact closer to the old system of arbitration, applying particular rules selected by the parties, including even ‘equity’. Up to a point, this was a sterile debate, given that the special rules chosen by the parties constitute ‘international conventions, whether general or particular, establishing rules expressly recognized by the contesting parties’ within the meaning of Art 38 § 1 (a) of the Statute. Nevertheless, a nuance remains. 48   On learned opinions as to the general principles of law, see R Kolb, La bonne foi en droit international public (Paris, 2000) 24 et seq., and B Vitanyi, ‘Les positions doctrinales concernant le sens de la notion de “principes généraux de droit reconnus par les nations civilisées”’ (1986) 86 RGDIP 48 et seq.

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Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.

Article 37, on jurisdiction clauses in treaties, provides that: Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.

The expression ‘tribunal to have been instituted by the League of Nations’ is a reference to Article 14 of the Covenant. Some treaties had made provision in these terms even before the PCIJ was created and given its official name. In order to avoid any doubt about the effects of out-of-date formulations of this kind, Article 37 was deliberately drafted in wideranging terms. Finally, the Committee included two provisions on procedures for amending the Statute (Articles 69–70). These provisions aligned the procedures with those for amending the UN Charter (Article 108), while at the same time enabling the Court itself to propose amendments it considered necessary. Given the technical and legal issues involved, which required considerable expertise, the Committee felt that Court would be the body best placed to understand what amendments might become necessary or desirable. The San Francisco Conference thus enabled the new Court to be created, and at the same time ensured a certain continuity between it and the old PCIJ. Nevertheless, in overall terms, the Conference was not favourable to a judicial approach to international relations. This made a marked contrast with the pioneering early days of the League of Nations, when the watchword had been ‘Peace through Law’. The draftsmen of the Charter wanted to save the United Nations from excessive ‘legalism’ which they thought had been one of the reasons for the League’s failure. This explains why the Court would remain, paradoxically, more marginal to the new United Nations than the PCIJ had been to the old League – despite the facts that the ICJ is the principal judicial organ of the UN, and that the PCIJ had never enjoyed a comparable status under the League of Nations system. This rejection of ‘legalism’, which was now seen as a threat, reappeared in the rejection of all proposals to strengthen the Court, for example to allow it to issue judgments on the legality of the Security Council’s actions.49 In 1945, the dominant idea was not to have a strong Court, representing the ‘idealist’ (judicial) approach to international relations; on the contrary, it was to have a strong Security Council, representing a ‘realist’ (political) approach. The ‘realist’ approach was dominant throughout the cold war, and continues to be influential to the present day: proposals to reinforce the Court’s position in the UN system still do not meet with success.

c)  Establishment of the ICJ At this point it remained only to establish the new Court and dissolve the old one. To make this easier, the judges of the PCIJ collectively resigned on 31 January 1946, opening the way for a final League Assembly, held at Geneva in April 1946, to recognise that the PCIJ was   See particularly, the Belgian proposal: UNCIO, vol XII, 52 et seq.

49



THE ICJ AS THE PRINCIPAL JUDICIAL ORGAN 59

now dissolved. Technically, this would have been so anyway, since there was no procedure for nominating new judges after the League’s dissolution, which the Assembly was on the brink of recognising. Prima facie it would have been more straightforward for the Assembly simply to resolve that the PCIJ be dissolved. However the Assembly was not in a position to do that: it did not have the power. The States parties to the PCIJ system had ratified the Protocol creating the PCIJ, and they alone were in a position, by actus contrarius, to dissolve it. That would have meant inviting participation in the decision by the former enemy States, and by other parties to the PCIJ Statute who were not members of the League and would have involved unnecessary complications. Doubtless the Assembly’s recognition of the PCIJ’s dissolution was not binding on the States parties to the PCIJ Statute that were not represented at the April 1946 meeting. To resolve this legal problem, special clauses were introduced into the peace treaties with some of those States. Under these clauses, the States in question accepted the dissolution of the PCIJ. As regards third States with whom peace treaties were not entered into, the situation was regularised with their admission to the United Nations, or with their separate admission to the ICJ Statute, carrying the implication that they accepted the dissolution of the PCIJ. On 5 February 1946 the General Assembly and Security Council elected the judges of the new ICJ. The Court was then able to take possession of the former PCIJ premises in the Peace Palace at The Hague, and held its inaugural session on 18 April. This was the formal passing of the baton from the old Court to the new one. But, in any event, it is difficult to overstate the continuity of ideals that welds the two so closely together.

3.  THE INTERNATIONAL COURT OF JUSTICE AS THE PRINCIPAL JUDICIAL ORGAN OF THE UNITED NATIONS AND OF PUBLIC INTERNATIONAL LAW

a)  The Court as the Principal Judicial Organ of the United Nations Under Article 7, paragraph1 and Article 92 of the Charter, the International Court of Justice is the principal judicial organ of the UN. Article 92 reads as follows: The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.

Article 1 of the Court’s Statute echoes these provisions. Prior to the creation of the ICJ, at the time of the travaux préparatoires, a deliberate decision was made to associate the new Court more closely with the UN. The reasons have already been discussed. One aim was to increase the new Court’s prestige and reinforce its status, to create an automatic link between it and all Member States of the UN, and to further integrate it into the institutional functioning of the UN (intended to be a better constructed and more complete structure than the defunct League of Nations, and consequently in need of a solid legal pillar). The expression ‘principal judicial organ’ reflected the Court’s ‘judicial’ role and its character as a ‘principal’ organ of the UN. The word ‘judicial’ also reflected the fact that the ICJ was to be a permanent legal tribunal (the differences between public justice and arbitration have been discussed above50). The word ‘principal’ highlights the fact that the ICJ   See above section 1(b).

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was not necessarily to be the UN’s only judicial organ, and was not given a monopoly. Since then, the UN has created other international tribunals, generally because the ICJ has no jurisdiction over litigation of the type the UN has in mind. This was why the General Assembly created the United Nations Administrative Tribunal (UNAT), on the basis of implicit powers under Articles 22 and 101 of the Charter.51 UNAT, like the International Labour Organization’s (ILO’s) administrative tribunal, has jurisdiction over disputes between the organisation and its officials, especially on employment issues. Since one of the parties to such a dispute is necessarily an individual, the ICJ is prevented by Article 34, paragraph 1 of its Statute from taking on the case: individuals cannot be parties to ICJ cases. The position is similar as regards the ad hoc criminal tribunals created by the Security Council in 1993 under Chapter VII of the Charter and by virtue of the UN’s mission to maintain and re-establish international peace: hence the International Criminal Tribunal for the former Yugoslavia (ICTY),52 the International Criminal Tribunal for Rwanda,53 and the Special Tribunal for Lebanon.54 These are unquestionably UN ‘judicial’ tribunals. In these cases too, the jurisdiction, quite apart from being limited to international criminal law, is solely concerned with individuals. However, that does not alter the fact that the UN could also, under the Charter, create other international tribunals whose jurisdiction would at least partially overlap with that of the ICJ. The wisdom of such a step might be debatable, but not its legality. The UN could also back the creation of other tribunals operating outside the UN institutional framework. There are hybrid criminal jurisdictions such as the Special Court for Sierra Leone, and there is the Law of the Sea Tribunal at Hamburg. Similarly, the UN can assist in establishing arbitral tribunals, for example to deal with disputes with its own host State under the agreements governing the presence of UN institutions in that State’s territory.55 Various kinds of legal tribunals begin to be needed as the concept of the primacy of law extends through international bodies of various kinds, a trend one can only applaud. The Charter in no way inhibits this trend, which is perfectly consistent with its spirit as understood today. As a corollary to that, Article 95 provides, echoing Article 12 of the League’s Covenant, that the parties remain free to have their disputes resolved by organs other than the ICJ, whether by courts or arbitral tribunals (the Charter uses the neutral word ‘tribunals’): ‘Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future.’ The UN enjoys the same freedom, and can also have recourse to ‘agreements which may be concluded in the future’ – an expression which must be taken to include resolutions of UN organs. To sum up, then, the ICJ is the principal legal organ of the UN, and that does (albeit rather vaguely) imply a hierarchy of jurisdictions, not a monopoly jurisdiction. What, then, are the legal and practical consequences of the ICJ’s being the ‘principal legal organ of the United Nations?’

51   Resolution 351(IV) of 24 November 1949. The ICJ has itself given effect to this creation: case of the Effect of awards made by the United Nations Administrative Tribunal, ICJ, Reports 1954, 56 et seq. 52   Resolution 827 (1993). 53   Resolution 955 (1994). 54   Resolution 1757 (2007). 55   See, eg the case of the Applicability of the agreement to artibrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, ICJ, Reports 1988, 12 et seq.



THE ICJ AS THE PRINCIPAL JUDICIAL ORGAN 61

−− First, in exercising its judicial functions, the Court, as an organ of the United Nations, is obliged, whether dealing with contentious or consultative matters, to be guided by, and indeed to apply, the principles and objectives of the Charter as set out in Articles 1 and 2. This means that the Court must play its part in realising the UN’s general objectives, namely the preservation of peace, the peaceful resolution of disputes, the facilitation of international cooperation and friendly relations between States, the self-determination of peoples, and respect for fundamental human rights. For two reasons, these general objectives, which are part of modern international law, can (indeed must) inform the Court’s activities. One reason is that they are norms under the Charter, to which the Court is firmly tied as the UN’s principal judicial organ; the other is that they are norms of international customary law, which the Court is bound to apply in its capacity as an international law jurisdiction.56 That is not to say, however, that in every case before it, the Court is in a position to apply these principles and objectives in a more or less direct way. Indeed, the Court’s obligation is to decide disputes before it on the basis of the applicable law, which may, in a given case, prove quite distinct from these principles and objectives. Nevertheless, whenever it comes to interpret the law, the Court must always take them into account, at least in an underlying way, and ensure that the coloration of its judicial policy is derived from and consistent with them. In these respects, the Court has less ‘margin of appreciation’ than an arbitration tribunal, since, in this as in other respects, public justice differs from arbitration. The Charter’s principles and objectives are relatively community-oriented (save for Article 2, § 1 and § 7). It follows that the Court itself is bound by an overall conception of international law that is quite strongly coloured by the concept of international solidarity. This can lead to frontal collisions with State sovereignty, a concept to which the Court is, to a considerable extent, obliged to defer by Article 2, paragraph 1 of the Charter and general international law. However the ICJ has given noticeably more weight to this ‘community-orientation’ than did the PCIJ: there is a world of difference between the ICJ’s judgments in cases such as the Admission of new members (1948) and Certain Expenses (1962), and the PCIJ’s judgment in the Lotus case (1927). Doubtless this is one of the reasons why the most rigorous legal positivists, attracted more by power than by law, argue that the Court is in the habit of ‘adulterating’ pure international law, which they see as simply the timeless practice of States pursuing sacred and selfish interests of their own. −− Among these principles and objectives, Article 1, paragraph 1 is particularly important for the Court, because it touches directly on the Court’s function ‘to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace’. The ‘justice/adjustment’ phraseology has particular reference to the 56   Nevertheless, especially where the Court’s jurisdiction is based on a compromissory clause in a treaty, it can be confined to the treaty rules in question, to the exclusion of wide swathes of international customary law. This does not mean, however, that the Court is in a position to misread these principles or misapply them. Some of them are matters of jus cogens and automatically prevail over treaty norms; the interpretation and application of the treaty require them to be taken into account. In other cases, treaty norms can, and must, be read in conjunction with customary norms bearing on the same question or on the law of treaties. In yet other cases, the Court can, and must, have regard to certain general norms, even if it does not say so explicitly. Article 92 of the Charter might be the legal basis here, the Court being obliged, by its ties to the Charter, to take account of these great principles. In some cases, the Court might argue that it lacks jurisdiction because the compromissory clause cuts so strongly at the scope of its material jurisdiction as to make it impossible to make a decision that is correct and justified in law. Obviously this could happen only in an extreme case. This subject has yet to receive the kind of detailed analysis and comment, academic and other, that it deserves.

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resolution of disputes by political means, when rights and interests are negotiated and bargained over. Justice is essential here, so that the solution can be accepted by the parties and thus be lasting. Moreover, ‘adjusting’ a situation – an expression the Charter uses again in Article 14 when speaking of the powers of the General Assembly – evokes the idea of a political solution through an overall compromise on a basis that is considered fair. By contrast, the ‘international law/settlement’ phraseology is concerned particularly with the legal resolution of disputes through a legal decision which, in that sense, ‘settles’ the matter. Such a ‘settlement’ is achieved by applying the rules, which suggests a much stricter method of resolution than an ‘adjustment’. In such a case, the dispute is resolved on the basis of preconceived norms. In general terms, this differentiation doubtless makes a great deal of sense, but it is not an absolute one. Although the Court ‘rules’ on disputes, it also sometimes ‘adjusts’ them. Everything depends on the nature of the legal rule that is to be applied. If it is clear, the dispute will be ‘ruled upon’, as, for example, in the case on the immunity from jurisdiction of a special rapporteur of the Human Rights Commission.57 If, however, the legal rule is flexible or bordering on the uncertain, the Court will have to ‘adjust’ to calibrate its decision, as for example in the first cases on delimitation of the continental shelf, especially the North Sea58 and Tunisia/Libya cases.59 In addition, the Court cannot ignore the general concept of justice, with its companion ideas of equality, impersonality, equity and suum cuique tribuere. The concept of justice, although a very general one, does tie together the various UN organs. Unless it is taken very seriously, the resolution of a dispute, whether by adjustment or settlement, will be neither effective nor durable. That does not mean that, with those ends in view, ‘justice’ as a concept can prevail over the rules of positive law: in truth, the reverse is the case. Justice, in order to be effective, clothes itself in the rules of law (‘Justice through Law’), and, at the same time, legal norms have to be interpreted in light of considerations of equity and fairness. In this dual respect, there is no absolute distinction between dispute resolution through a political organ of the UN and judicial resolution by the ICJ. The relative difference between the two must nevertheless be understood and taken into account. Unless this kind of discipline is practised, the separ­ ate and distinct methods of resolving disputes will become confused, the palette of possibilities impoverished rather than enriched, and States will be deprived of real choices that would otherwise be open to them. −− Second, the fact that the Court is the principal legal organ of the United Nations has another consequence. The Court’s Statute is an integral part of the UN Charter (see its Article 92): hence the fact that, as already noted, the Court’s activity is conditioned by the UN’s principles and objectives. But there is more than this to the relationship between the Statute and the Charter. Three further aspects are worthy of at least brief consideration. First, the Court is bound, in very diverse ways, by a whole series of provisions, in Chapters I, II, III, VI, VII and XIX of the Charter. So, for example, it is under an obligation to respect the roles of the other principal bodies (the principle of equality and mutual respect between the various UN organs60). Moreover, Article 36, paragraph 3 of the Charter states that: ‘In making recommendations under this Article the Security   ICJ, Reports 1999, 62 et seq. (advisory opinion).   ICJ, Reports 1969, 3 et seq. 59   ICJ, Reports 1982, 18 et seq. 60   Dubisson, above n 36, 94 et seq. 57 58



THE ICJ AS THE PRINCIPAL JUDICIAL ORGAN 63

Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.’ This provision does not give the Court compulsory jurisdiction but it is certainly obliged to give the Security Council’s recommendations serious consideration, and not to place obstacles in their paths by restrictive interpretations. Furthermore, given the status of the Statute as an integral part of the Charter, and of equal legal weight with it, certain specific provisions of the Statute may prevail, as leges speciales, over more general provisions in the body of the Charter. Given their equal weight, each of the two texts has the capacity to derogate from the other. So, for example, Article 27, paragraph 3 of the Charter,61 on voting rights in the Security Council, is modified by the particular provision in Article 10, paragraph 2 of the Statute,62 which provides that, in elections for the judges of Court, the veto does not apply. Since such elections are obviously not purely ‘procedural matters’ within the meaning of Article 27, paragraph 2 of the Charter,63 Article 27, paragraph 2 cannot be the reason why the veto is unavailable. The true reason is that Article 10, paragraph 2 of the Statute itself contains a specific provision to this effect. It should be emphasised, however, that the legal relationship between the Statute and the Charter is altogether exceptional, indeed unique. No international treaty can derogate from the Charter: quite the reverse, the latter prevails, by virtue of its Article 103.64 Since, however, the Statute is an ‘integral part’ of the Charter (see Article 92 of the Charter), Article 103 has no effect on Article 10, paragraph 2 of the Statute. The wording of Article 103 applies it only to the relationship between ‘the present Charter . . . and any other international agreement’. The Statute is not ‘other’. It thus enjoys a privilege unique amongst international treaties, in not yielding automatically to the wording of the Charter, and even being capable of derogating from the latter. Finally, the Statute, ranking equally with the Charter, can itself benefit from the normative primacy provided for in Article 103 of the Charter. In other words, there can be no derogation from the Statute under any other international treaty. This is an additional reason why parties appearing before the Court cannot make arrangements whose effect would be that the Court would apply any law other the law provided for in the Statute (a peremptory text65). This has legal consequences. For example, if a decision of another court were to conflict with an ICJ judgment, then, as between UN Member States, the execution of the ICJ decision would prevail,66 precisely in consequence of Article 103 of the 61   ‘Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.’ 62   ‘Any vote of the Security Council, whether for the election of judges or for the appointment of members of the conference envisaged in Article 12, shall be taken without any distinction between permanent and non-­ permanent members of the Security Council.’ 63  ‘Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.’ 64   ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ 65   As to this aspect, see below ch III 1(b). 66   The most attentive commentators foresaw this clearly: cf J Verhoeven, ‘Considérations sur ce qui est commun. Cours général de droit international public (2002)’ CCHAIL, vol 334, 2008, 169, 334–37. The question would remain an open one if the other tribunal were also part of the UN system, eg if it had been created under Chapter VII of the Charter. In that case, Art 103 is neutralised, since both jurisdictions are derived from the Charter. What might then carry the day in favour of giving primacy to the ICJ’s decision would be the ICJ’s status as the UN’s principal judicial organ.

64  ORIGIN AND ENVIRONMENT OF THE ICJ

Charter, read in conjunction with Article 94, paragraph 167 of the Charter and Article 59 of the Statute.68 −− Third, a whole series of other institutional ties between the Court and the UN, not explored in extenso here, need to be taken into account: they will be dealt with in separate chapters. The following are the most important ones. The judges of the Court are elected by the General Assembly and the Security Council, which means that they are chosen by the most important organs of the UN, working together. The Court is called upon to participate fairly closely in the concerns and workings of the UN, through consultative activities of various kinds. Even more than when the PCIJ was advising the League of Nations, the opinions requested of the present Court have to deal with the inner workings of the UN and the interpretation of important provisions of the Charter. One has only to think of the Court’s great opinions on Reparation for injuries (1949), Admission of new members (1948), Competence of the General Assembly regarding admission to the United Nations (1950), Certain expenses (1962) or indeed Namibia (1971). UN organs (particularly the main ones) and affiliated organisations have the right to seek opinions from the Court. Also, the Court has always insisted that it considers itself bound in principle to respond favourably to requests for opinions, so contributing, as a UN organ, to the organisation’s activities. The response to a request for advice represents, as the Court stated in the Interpretation of Peace Treaties case (1950), ‘its participation in the activities of the Organization, and, in principle, should not be refused’.69 This principle of non-refusal was further reinforced in 1956, in the case of the Judgments of the Administrative Tribunal of the ILO upon complaints made against UNESCO (1956). The Court indicated that only ‘compelling reasons’ could bring it to refuse a request for a consultative opinion.70 The execution of the Court’s judgments is entrusted to the Security Council, the UN’s executive organ. This is provided for in Article 94, paragraph 2 of the Charter: 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.

The Court’s budget is based on contributions from the UN. It includes personnel salaries and the Court’s other running costs. The Court is available to Member States at what might be called a bargain rate. They have access to a true international court at the lowest possible cost, since the Court’s expenses are defrayed from the overall UN budget: parties need find only the money to pay their counsel and their own costs and travel expenses. Compared with arbitration, where the disputing States have to pay all the tribunal’s costs and expenses, the financial advantage of using the Court is far from negligible, as a number of developing countries have already realised. By encouraging disputing States in this way to take their 67   ‘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.’ 68   ‘The decision of the Court has no binding force except between the parties and in respect of that particular case.’ 69   ICJ, Reports 1950, 71. See also the case on Certain expenses of the United Nations, ICJ Reports, 1962, 155; the Namibia case, ICJ, Reports 1971, 27, § 41; the Western Sahara case, ICJ, Reports 1975, 21, § 23; case on the Applicability of Article VI, Section 22 of the Convention on privileges and immunities of the United Nations, ICJ Reports 1989, 191, § 37. 70   ICJ, Reports 1956, 86. See also the cases cited in the preceding note, at the places indicated.



THE ICJ AS THE PRINCIPAL JUDICIAL ORGAN 65

cases to the Court, or at least by not discouraging them, the UN can thus be said to be making its own financial contribution to the peaceful settlement of disputes. By contrast with the Court’s financial dependence on the UN, its judicial independence is complete and entire. It is not answerable for its activities to the UN’s political organs. Indeed, until 1968 it was alone amongst the principal organs of the UN in not even submitting annual reports on its activities to the General Assembly. Since 1968 it has done so every year, in the process reinforcing its ties with the rest of the UN system. The Court’s annual report is directly discussed in a plenary session of the Assembly. These relationships were in no sense designed to subject the Court to the Assembly’s control, either political or legal.71 The purpose was to enable the Court to present its activities to the Assembly, to make its role better known to Member States, and also to make them aware of its difficulties and its wishes, thus making possible a more fruitful relationship between the organisation that provides the funds, and the Court as an institution. The annual report is presented to the Assembly by the President of the ICJ. The President often takes advantage of the opportunity to keep Member States informed of major developments in the world of international law, for example the creation of new tribunals and its consequences. To sum up, the Court is an integral and active part of the enormous global structure constituted in the early twenty-first century by the United Nations. Although the Court is involved at many levels in the activities of the UN itself, and thus in its fortunes, thanks to its judicial character, the Court nevertheless maintains a markedly independent position. The UN’s political organs have no power to influence either the Court’s decisions or its jurisprudence. The Court has its physical seat far away from the UN power centres, a great distance from New York or even Geneva. Until relatively recently, the Court was the only UN organ which did not submit an annual report to the General Assembly. The World Court is in this sense a hybrid: both an independent judicial organ representing the international community of States bound by the Statute, and at the same time the principal judicial organ of the United Nations, that is, of the organised international community. So the Court is both independent and an organ of the UN; a court of justice responsible only to the law, and an integral organ of a wider international organisation.

b)  The Court as Organ of Public International Law The question whether the Court’s substantive jurisdiction is exclusively concerned with the application of public international law and of other legal norms to which public international law refers will be dealt with in the chapter on the ICJ’s jurisdiction. What needs emphasis here is the particularly intimate link between the ICJ and public international law. Every international jurisdiction (see below, section 4) does, to some extent, apply international law, at the very least on an incidental basis. The law to be applied by other international jurisdictions is laid down in their constitutive texts. But this is not so for the 71   There is no such control, except this, that judges whom a majority of the Assembly consider not to be doing a good job might not be re-elected, as was shown by the South-West Africa case in 1966. After that decision, the mandates of some judges, including the President (P Spender), were not renewed. This was extremely regrettable, tempered only by the fact that one of the objectives of the new elections at the end of the 1960s was to increase the number of judges from developing countries, so as better to reflect the membership of the UN. But no encroachment on the Court’s judicial independence can ever be acceptable. In any event, from the legal (as opposed to political) perspective, specialist opinions on the merits of the 1966 decision do differ.

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ICJ, which can apply any special international law decided upon by the States before it. Any such decision by the States as to the applicable substantive law is, in formal terms, itself public international law, since it takes the form of a treaty. It matters little whether the subject matter of such a decision is private law, or straddles the boundary between private and public law, as does, for example, ‘private international law’. Up to a certain point, States acting in this way can be said to be investing the special rules they have agreed upon with the character of public international law. The Court then applies these special rules under Article 38, paragraph 1(a) of the Statute. The Court is, after all, under an obligation to apply ‘international agreements, whether general or specific, establishing rules expressly recognised by the disputing States’. It follows that disputing States can bring with them to Court legal regimes of the most diverse kinds which they have specially designed. The Court has followed them a long way down this path, perhaps indeed going too far, as can be seen from the Serbian Loans and Brasilian Loans cases.72 At the same time, the Court applies general public international law, independently of the parties’ special stipulations. This general law is constituted by the rules of international customary law (Article 38 § 1 (b)) and the general principles of law (Article 38 § 1(c)). The first occasion on which the Court went through such an exercise in any meaningful way was in the Lotus case in (1927):73 the case was based exclusively on customary law, and not on treaties. Nevertheless, in the above respects the Court behaves no differently from some other international tribunals, which, likewise, can apply special rules agreed by the parties, alongside general international law. There is this difference, however. Except for the ICJ itself, international tribunals’ subject-matter jurisdictions are invariably ‘special’: they are restricted. The European Court of Human Rights (ECHR), for example, can make decisions only under the 1950 Convention which established it. It can take cognisance of international customary law, but only incidentally to the Convention for which it is responsible, and even then, only when the Convention’s own rules bring in a customary norm by way of explicit or implicit renvoi. The Law of the Sea Tribunal at Hamburg takes cognisance not only of the UN Convention on the Law of the Sea (1982), but of other treaties on the law of the sea, and of international customary law directly relating to the Convention. However, in overall terms, its subjectmatter jurisdiction is confined to the international law of the sea. For similar reasons, the jurisdictions of all other international tribunals are severely limited. In many cases they do not have jurisdiction to deal with particular questions that the parties before them want them to address. The European Court of Human Rights, for example, can hand down judgments only on the basis of the Convention of which it is the guardian, even if the parties want it to look into other matters, for example international humanitarian law. The ECHR cannot take general cognisance of international customary law, even if the parties invite it to do so, but only of the very restricted areas that relate to the Convention itself. Such limited subject-matter jurisdiction is extremely different in scope from the almost unlimited jurisdiction of the ICJ. The latter takes cognisance of all legal agreements between States; it is not confined to the interpretation or application of any particular convention. The ICJ also takes cognisance of international customary law in its entirety, and does so on an unlimited basis. In practice, therefore, any international legal dispute whatever can be brought to the Court. Within those parameters, the only limitation on its jurisdiction is the   PCIJ, Series A, no 20, 5 et seq.; PCIJ, Series A, no 21, 93 et seq.   PCIJ, Series A, no 9.

72 73



THE MAIN INTERNATIONAL JURISDICTIONS 67

need for consensual acceptance of its jurisdiction. The Court is thus in a position to handle a virtually unlimited variety of different matters, including diplomatic and consular disputes, maritime delimitation, the law of space, UN law, the law of treaties, the natural environment, state responsibility, head of state immunity, extradition of individuals and so on. This makes the Court, par excellence the organ by which public international law is applied. It is the Court of public international law. So it is natural that one turns first of all to the Court’s own jurisprudence to find out what are the judicially recognised rules of international law in any particular field. It is not that the Court’s decisions are in themselves technically ‘superior’ to those of other international jurisdictions (except as regards Article 103 of the Charter in the case of conflicting decisions). However, it has to be said that the Court’s decisions on general international law enjoy a high level of authority and prestige, given that the ICJ is the one international judicial institution that specialises in applying the entire range of international law. The Court’s generalist mandate thus does much to explain its prestige and reputation. However difficult prestige and reputation may be to quantify, the Court’s are nonetheless obvious and real.

4.  THE MAIN INTERNATIONAL JURISDICTIONS BASED AT THE HAGUE

a)  Other International Tribunals The ICJ is not the only international tribunal based at The Hague, and should not be confused with the others. In the course of what has sometimes been called the proliferation of international tribunals in recent years (one might equally well speak of the growing importance of law in international affairs), various new tribunals have been created.74 As was only natural, a number of them have their seats at The Hague. The city has long been established as the seat of arbitration and international justice, and, in a sense, the ‘legal capital of the world’, with all the facilities needful for a corps of international judges. A great and growing number of international tribunals, of various kinds, have come into existence since 1945,75 and the trend continues in our own day.76 At the present time, we have, first, the various international administrative tribunals whose role is to decide disputes affecting the international public service. Examples are the Administrative Tribunal of the United Nations itself and its two-tier successor bodies, of first instance and of appeal; 74   There have been numerous studies of this multiplication of tribunals. See, eg PM Dupuy, ‘L’unité de l’ordre juridique international, Cours général de droit international public (2000)’ CCHAIL, vol 297, 2002, 460 et seq.; AA Cançado Trindade, ‘International Law for Humankind: Towards A New Jus Gentium. General Course of Public International Law’ CCHAIL, vol 317, 2005, 239 et seq.; M Bedjaoui, ‘L’humanité en quête de paix et de développement, Cours général de droit international public’ CCHAIL, vol 325, 2008, 98 et seq. See also S Karagiannis, ‘La multiplication des juridictions internationales; un système anarchique?’ in Société française pour le droit international, Colloque de Lille, La juridictionnalisation du droit international (Paris, 2003) 82 et seq. For a more complete bibliography, see catalogue.ppl.nl/DB=1/SET=13/TTL=1/CMD?ACT=SRCHA&IKT=4&SR T=YOP&TRM=proliferation+tribunals. The question often arises, if only partially, under the theme of ‘fragmentation of international law’: see, eg A Gattini, ‘Un regard procédural sur la fragmentation du droit international’, (2006) 110 RGDIP 303 et seq. For a useful critique on this point, see B Conforti, ‘Unité et fragmentation du droit international –  “Glissez mortels, n’appuyez pas! ” (2007) 111 RGDIP 5 et seq. 75   For the situation at the start of the 1960s, see Dubisson, above n 36, 118. 76   See the views of M Bedjaoui, ‘L’humanité en quête de paix et de développement, Cours général de droit international public’ CCHAIL, vol 325, 2008,79–81, which the author has found very valuable.

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the Administrative Tribunals of the International Labour Organization, the Organization of American States, the World Bank, the Organisation for Economic Cooperation and Development, and the Asian Development Bank; there is also the NATO appeals tribunal. Amongst other international tribunals there are, for example, the International Tribunal on the Law of the Sea,77 the Iran-United States Claims Tribunal,78 the Appellate Body of the World Trade Organization,79 the ICTY,80 the International Criminal Tribunal for Rwanda,81 the Special Tribunal for Lebanon,82 the International Criminal Court itself,83 various mixed international tribunals, in particular the tribunal on Sierra Leone84 and so on. At regional and sub-regional levels, there are, amongst other institutions, the European Court of Human Rights,85 the Court of Justice of the European Communities,86 the Inter-American Court of Human Rights,87 the Court of Justice of the Andean Community,88 the Central American Court of Justice,89 the NAFTA Panels,90 the Caribbean Court of Justice,91 the African Court on Human and Peoples’ Rights,92 the Court of Justice of the African Union,93 The Court of Justice of the West African Economic Community,94 The Common Court of Justice and Arbitration of the Organisation for the Harmonisation of Business Law in Africa,95 the Court of Justice for the Common Market of Eastern and Southern Africa,96 the Court of Justice of the West African Economic and Monetary Union,97 the Tribunal of the Southern Africa Development Community98 and so on. As already mentioned, some of the numerous and varied international judicial institutions have their seats at The Hague.99 They are often confused by the wider public with the International Court of Justice itself. In particular, they include the Permanent Court of Arbitration (which, although it has its own secretariat, is in truth neither a court nor permanent: it constitutes a tribunal whenever one is needed, drawn from a list of arbitrators

  UN Convention on the Law of the Sea (1982).   Under the Algiers Agreement between Iran and the USA, 1981. 79   Under the WHO Agreement, Marrakesh, 1994. 80   Under Security Council Resolution 827 (1993). 81   Under Security Council Resolution 955 (1994). 82   Under Security Council Resolution 1757 (2007). 83   Under the Rome Statute of 1998. 84   Under the Agreement between the UN and the Government of Sierra Leone, dated 16 January 2002. 85   Under the European Convention on Human Rights, 1950, and Protocol No 11 of 1994, restructuring the Court. 86   Under the Statute of 15 June 2004, the Court of Justice of the European Communities. 87   Under the Statute adopted in 1979, following the Inter-American Convention on the Rights of Man, San José, 1969. 88   Under the Treaty of 19 August 1983. 89   Under the Statute of 10 December 1992. 90   Under the Treaty establishing NAFTA, the North American Free Trade Agreement of 17 December 1992. 91   Under the Treaty of 14 February 2001. 92   Under the Protocol of 10 June 1998 to the African Charter of 27 June 1981 on Human and Peoples’ Rights. 93   Under the Protocol of 11 July 2003. 94   Under the Protocol of 6 July 1991 in the context of ECOWAS, The Economic Community of West African States. 95   Under the Treaty of 17 October 1993 on the Harmonisation of Business Law in Africa. 96   Under the Treaty establishing the Common Market for Eastern and Southern Africa, of 5 November 1993. 97   Under Additional Act no 10/96 on the Statutes of the Court of Justice of the West African Economic and Monetary Union, dated 10 May 1996. 98   Under the Treaty on the Southern African Development Community of 11 August 1992, Special Protocol of 7 May 2000. 99   See PJ Van Krieken and D McKay (eds), The Hague: Legal Capital of the World (The Hague, 2005). 77 78



THE MAIN INTERNATIONAL JURISDICTIONS 69

with the aid of a dedicated secretariat100); the PCIJ/ICJ itself;101 the Iran-United States Claims Tribunal (dealing with issues arising from demands for reparation by US subjects who suffered losses following the Islamic revolution in Iran and the hostage crisis there);102 the ICTY;103 the International Criminal Court;104 and the Special Criminal Tribunal for Lebanon.105 In consequence, we now have at The Hague, a centre for international justice which continues to attract new courts and tribunals to the city.

b)  A Digression: Definition of ‘International Tribunal’ The preceding passages are based on the assumption that the concept of an ‘international tribunal’ is both clear and well understood. However, the concept does give rise to various questions. What exactly is an international tribunal? How does it differ from a national one? Can States participate in shared or joint tribunals that nevertheless are only ‘joint’ tribunals, not international ones? The question is thus rather more complex than might appear at first sight. There are essentially two limbs to it: what makes a ‘tribunal’?, and what makes one ‘international’? A tribunal: The concept of a tribunal need not detain us long, since there is sufficient general agreement about what the term means. Of course that general agreement is at a superficial level and begs certain questions, but, for present purposes, it would be disproportionate to devote much space to them. It is generally accepted that a tribunal is a body which decides disputes by means of binding decisions which result from the application of law. So there are three essential elements to the definition: (1) a dispute; (2) the binding nature of the decision; and (3) the fact that the decision is based on law.106 According to modern thinking, moreover, point (3) results from point (2): the decision is binding only because the judge declares what the law (which is binding) provides; it is binding to that extent only, and no further.107 The binding nature of the decision is an immediate consequence of the fact that the law itself is binding; the law is, so to speak, ‘translated’ into the judgment without either addition or subtraction – an idea expressed in the classic formula that the   Ibid, 127 et seq.   Ibid, 181 et seq. 102   Ibid, 241 et seq. 103   Ibid, 278 et seq. 104   Ibid, 345 et seq. 105   See A Azar, ‘Le Tribunal spécial pour le Liban: une expérience originale?’ (2007) 111 RGDIP 643 et seq.; A Lelarge, ‘Le Tribunal spécial pour le Liban’ (2007) 53 AFDI 397 et seq. See also F Mégret, ‘A Special Tribunal for Lebanon: The UN Security Council and the Emancipation of International Criminal Justice’ (2008) 21 Leiden Journal of International Law 485 et seq. 106   Hence the three following definitions which emerge from French ‘doctrine’. According to L Cavaré, ‘La notion de juridiction internationale’ (1956) 2 AFDI 503–504, a ‘tribunal’ is any body which decides on disputes or differences and which gives binding and definitive decisions. According to H Ascensio, ‘La notion de juridiction internationale en question’, Société Française pour le droit international, Colloque de Lille, La juridictionnalisation du droit international, (Paris, 2003) 167 ‘A tribunal is habitually presented as a body charged with declaring what the law is (jurisdictio), in a binding manner (imperium).’ (our translation) According to C Santulli, ‘Qu’est-ce qu’une juridiction internationale?’ (2000) 46 AFDI 61 ‘A tribunal is a body which puts an end to a dispute by giving a binding decision in application of the law.’ 61 (our translation) For Cavaré, the application of the law remains implicit: for Ascensio the dispute remains implicit; Santulli mentions all three elements. See also AP Sereni, Diritto internazionale, vol IV (Milan, 1965) 1692 et seq. 107   Hence the procedures for annulling, or declaring null, judicial rulings which involve the judge in exceeding his power, or in a manifestly ultra vires act. 100 101

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judge is the mouthpiece of the law.108 Furthermore, the judicial function is not confined to delivering a binding decision. That decision has to be based on certain principles and rules of law, both as regards the substantive issues and as regards procedural questions.109 Recently, the International Court of Justice has cast a great deal of helpful light on this point. It has reminded us that an arbitration, in as much as it performs judicial acts, is not the same thing as a simple decision that is accepted as binding by those concerned. The elements which particularly distinguish an arbitration from a simple decision are such matters as agreement by the parties on the judges of their choosing, the fact of making a decision based on law (or ex aequo et bono) and of following (pre-) established rules of procedure.110 In the case the ICJ was considering, the disputing parties had agreed only that the question would be resolved, with binding force, by the UK Government. In consequence, that government’s decision should certainly be considered binding, but it should not be categorised as an exercise of jurisdiction. The three criteria identified above should not be applied too rigidly, but in a relatively open and flexible way. Some tribunals may assume functions going beyond them. For example, in municipal law, some tribunals are more and more to be found playing the part of go-between, or amiable compositeur, as a role to which parties have consented. In international law, a number of different tribunals can and do provide advisory opinions. This activity is not strictly speaking ‘judicial’ in the sense defined above, since the tribunal’s ‘decision’ is not binding, even when firmly founded in law (that is, in such cases the classic requirement that the two elements be inseparable is not satisfied). Moreover, certain international tribunals sometimes make decisions based on equity, by analogy with the provisions of Article 38, paragraph 2 of the ICJ Statute.111 In both cases (advisory opinions and judgments in equity), the tribunal is performing jurisdictional acts.112 But such acts are, from the perspective of the ordinary judicial function, atypical. In the case of advisory opinions, the ruling is not binding; in the case of judgments based on equity, the tribunal does not stick to the law. Such ‘deviations’ are accepted when grafted onto activities that  Montesquieu, De l’esprit des lois, Book XI, ch VI.   cf Ascensio, above n 106, 170–71, 186 et seq. 110   Maritime Delimitation and Territorial Questions between Qatar and Bahrein (merits), ICJ, Reports 2001, § 114: ‘The Court observes that in the present case no agreement existed between the Parties to submit their case to an arbitral tribunal made up of judges chosen by them, who would rule either on the basis of the law or ex aequo et bono. The Parties had only agreed that the issue would be decided by “His Majesty’s Government”, but left it to the latter to determine how that decision would be arrived at, and by which officials. It follows that the decision whereby, in 1939, the British Government held that the Hawar Islands belonged to Bahrain, did not constitute an international arbitral award.’ The parties do not necessarily have to decide the procedural rules themselves. They can leave this job to the arbitrator. The latter will then have to adopt appropriate rules of procedure before hearing any argument on the dispute itself. Absent a special agreement between the parties, arbitrators normally choose either the internal procedural law of the place of arbitration, which is especially common in commercial arbitrations such as Sapphire International Petroleums Ltd v National Iranian Oil Co (1963), cf (1962) 19 Schweizerisches Jahrbuch fur Internationales Recht (ASDI) 273 et seq, or else they choose one of the following: (1) Hague Convention IV (1907) on the peaceful settlement of disputes, Chapter III, Arts 51 et seq., rules of arbitration procedure; (2) The Arbitration Rules proposed by the ILC (cf YbILC, 1958-II, 12 et seq.); (3) the Rules on Arbitration of the United Nations Commission on International Trade Law (cf (1976) 15 ILM 701 et seq.). See also the Optional Rules for Arbitrating Disputes Between Two States’ of 20 October 1992, adopted by the Permanent Court of Arbitration (cf (1993) 32 ILM 572 et seq. 111   See, eg the arbitration on the Brcko Zone (1997), in (1997) 36 ILM 396 et seq., especially 427 et seq. 112   Thus the PCIJ stated at a very early stage that: ‘The Court, being a Court of Justice, cannot, even in giving advisory opinions, depart from the essential rules guiding their activity as a Court’, Eastern Carelia Advisory Opinion (1923), PCIJ Series B, no 5, 29). See also the Northern Cameroons case, ICJ, Reports 1963, 30. This is so because the Court also, in such cases, is pronouncing as an act of jurisdiction. cf C de Visscher, ‘Les avis consultatifs de la Cour permanente de Justice internationale’ CCHAIL, vol 26-I, 1929, 23 et seq. 108 109



THE MAIN INTERNATIONAL JURISDICTIONS 71

are indisputably judicial in character. If, on the other hand, the institution in question were to confine itself exclusively to giving consultative opinions, it could not be considered a judicial body. One must also remember that perceptions change with the passing of time. Many bodies which, in various parts of the world, and in different legal cultures, were formerly considered tribunals, will today be considered lacking in essential elements of the current model, founded, as it is, on the experience of modern States that are endowed with constitutions, the separation of powers, the rule of law, a conception of positive law that excludes all extra-positive considerations, and so on. This is demonstrated by the link (discussed above) between points 2 and 3 of the definition: the binding nature of the judgment and the fact of deciding the case according to law. This indicates a view which plainly reflects a particular social organisation and representation of society. If we were looking for a historically more universal definition, it would be necessary to eliminate from it precisely the element which nowadays is thought to be the most indispensable one, namely that the tribunal must decide according to ‘law’. In primitive societies, disputes were often decided by a council of village elders, or by a person noted for his or her wisdom, and their verdicts were considered binding. The group or individual taking the decision judged the matter according to equity and took account of social usage and social norms.113 In England, which kept its distance from positivism of the continental type, there were, for centuries, jurisdictions which decided, amongst other things, on the basis of ‘equity’. As was natural, that concept itself, in due course, evolved its own body of more or less strict norms, even though it had initially been brought in to temper the formalism of the common law system of writs and causes of action.114 Also, throughout the mediaeval period, courts were not confined to ‘positive’ law, but took account of other norms, including utility, morality, natural law and so on. In international law, the concept of a tribunal is not a formalistic one.115 The only thing that counts is the true nature of the activities carried out by the body in question. In the   cf S Roberts, Order and Dispute – An Introduction to Legal Anthropology (New York, 1979).   In English jurisprudence equity played such an important role that it ended up creating its own body of rules. The medieval common law was concerned purely with actions. The plaintiff would ask the court for a writ (which in Latin would be called a breve) ordering the defendant to satisfy the plaintiff or else to present himself at the court. This exercise, in a sense a ‘discretionary’ one, became the subject of a rigid formalism, based on stereotyped forms of writ, developed to respond to a series of typical types of issue. This state of affairs limited the development of the law and militated against socially necessary adaptations. It was reformed, rather on the model of the Roman praetor, by recognising a special jurisdiction in the Lord Chancellor, himself a royal official. He was given responsibility for the equitable jurisdiction, which existed, in singular fashion, as an extraordinary jurisdiction, alongside the king’s ordinary justice. The Lord Chancellor could not only fill in various lacunae in the rigid system of writs, he could also act, more generally, as a means of recourse against inequities resulting from the strict application of the common law of the day. These functions of the Lord Chancellor, initially carried out on an extraordinary basis as a matter of royal grace, evolved over time into a true jurisdiction, the Court of Chancery. cf H Potter, Introduction to the History of Equity and its Courts (London, 1931). JS Critcheley, ‘The Early History of the Writ of Judicial Protection’ (1972) 45 Bulletin of the Institute of Historical Research 196 et seq.; RM Jackson, The Machinery of Justice in England, 7th edn (London/New York, 1977) 24 et seq. FW Maitland, Equity (Cambridge, 1969); JL Barton, ‘Equity in the Medevial Common Law’ in RA Newman (ed), Equity in the World’s Legal Systems (Brussels, 1973) 139 et seq. 115   This is one of the reasons why the author cannot accept the very restrictive and formalistic analysis of Santulli, above n 106, 64 et seq. The parameters he proposes are not justified in municipal law (nor, a fortiori, in historical perspective), and even less so in international law. In effect, according to Santulli, neither ad hoc criminal tribunals, nor the International Criminal Court itself, are proper courts; the same goes for the WTO’s organ for dispute resolution. In internal law, it is sometimes necessary to formalise the concept of a tribunal in order to decide whether a particular case is admissible. But this kind of procedural formalism is unknown to international law. 113 114

72  ORIGIN AND ENVIRONMENT OF THE ICJ

same way as for the definition of a ‘treaty’, the actual word used is of secondary import­ ance: what counts is the substance. What makes a tribunal is the exercise of judicial functions. If the body is labelled ‘tribunal’ or ‘court’, that is a very strong indicator that it is judicial in its nature, almost (but not quite) a conclusive one.116 But if it is called something different, that does not amount to a decisive argument the other way. A commission can be given judicial functions. One has to analyse the precise nature and functions of the particular body. It is worth adding that, when parties are before a particular body, their opinion as to its status is also relevant. If they think of it as a tribunal, that needs to be taken into account. International character: It is not easy to identify what it is that makes a tribunal ‘inter­ national’ as opposed to ‘national’.117 For the great dualists of the early twentieth century, the distinction was a straightforward one; today, however, in a world whose various legal systems are becoming ever more of a tangle, the line of demarcation has become blurred, in some places even to the point of vanishing. According to the dualist theory of the relationship between international and municipal law, the distinction depends solely on the nature of the parties before the tribunal. A tribunal deciding inter-State disputes is necessarily international, since no internal judicial power could deal with them – that would be contrary to the principle of equal State sovereignty. Indeed, which internal law could one choose anyway? The plaintiff’s system? Or the defendant’s? In any event, once it was accepted that an individual could be party in a case before an indubitably international tribunal (for example, the European Court of Human Rights), this formal criterion no longer worked. Also, more and more international tribunals were being created, and given functions that formerly had been the exclusive preserve of national ones. The dualist approach was for a long time prevalent in Italy. Consequently, it is not surprising to find, in the Italian literature, numerous studies postulating a clean separation between the national and the international. Thus D Anzilotti was able to write that the Mixed Arbitral Tribunals (MATs) of the period following the First World War, established in 1919 by international agreement between States to decide claims against States by foreign nationals, were not international courts.118 According to Anzilotti, they were merely ‘joint organs’ of the States concerned. They depended on the internal laws of those States, since they were deciding the claims of individuals, and their decisions had effect only within the internal law of the States Parties. For example, in the case of a MAT between Greece and Turkey, the decision would have no effect beyond the legal systems of the two countries, and would not affect the international legal order. Strictly speaking, therefore, it would be wrong to call the tribunal ‘international’ or ‘inter-State’. Here we see the personal element prevailing over the substance of the issue: on this argument, the nature of the parties dictated the conclusion that the MATs were ‘internal’ tribunals. In fact, however, the inter-State agreements on which the MATs were based pointed the other way. Commentators such as Anzilotti placed little emphasis on that aspect. The doctrine of the

  See Cavaré, above n 106,, 498–501; Ascensio, above n 106, 168–69.   For an antique example of an ‘international tribunal’, cf W Ullmann, ‘The Medieval Papal Court as an International Tribunal’ (1970/71) 11 Virginia Journal of International Law 356 et seq. 118   D Anzilotti, Corso di diritto internazionale (Rome, 1928) 124 et seq. 116 117



THE MAIN INTERNATIONAL JURISDICTIONS 73

‘joint body’ was defended by a series of commentators,119 but rejected by others.120 One can see, however, how the dualist dogma, concentrating exclusively on the nature of the parties, led certain commentators to make a trenchant distinction between tribunals they classified as international, and those they classified as internal. Today, the debate has moved on. The choice is now between two approaches, one unitary, the other pluralist. Some commentators prefer a single criterion, while others prefer to apply more than one, at which point the decisive factor is the way they connect and combine. The unitary approach delivers clear and decisive single answers, since it is always possible to classify a tribunal as either international or internal. The pluralist approach opens up a continuum, in which tribunals can be classified as international to some extent, the question being one of degree. The unitary approach is most often based on a rigorous theory (whether monist or dualist) of international and internal law, as three examples demonstrate. First example: the dualist positivist theory already discussed, championed by D Anzilotti. A tribunal is international if it is the forum for resolving a dispute ratione personae between two or more States. The decisive criterion is who is justiciable; ‘international’ is equivalent to ‘inter-State’. Second example: the Kelsen theory,121 adopted by many others,122 under which an international jurisdiction is one whose function is derived from an international legal instrument (in particular, from a treaty). This theory makes it possible to view the tribunal’s judgment as the act of a community of States, and not as the act of one particular State. The essential point here is the source of the tribunal’s authority. If that authority derives from an instrument under internal law, the tribunal will be giving judgment in the name of the State creating it, and will not be acting as an international tribunal. If the authority derives from an instrument under international law, the tribunal will give judgment in the name of an international community, whose membership may, indeed, be a restricted one, but will nevertheless comprise at least two States. Such a tribunal will consequently be operating under international law. Here the question turns on who creates the tribunal: if it is a State, we have an internal tribunal; if it is two or more States, we have an international one. It is easy to see that, in this scheme of things, the characteristics of the justiciable parties have no immediate legal consequences: States can agree to establish a tribunal to judge even disputes between individuals. If the creating instrument is a treaty, the tribunal is an international one, even if its jurisdiction is entirely over such private disputes. On this basis, the MATs were international tribunals. It should also be noted that the question whether such a tribunal applies international law is irrelevant. An ‘international function’ does not in 119   cf amongst others: C Baldoni, ‘Gli organi e gli istituti nelle unioni internazionali’ (1931) 23 Rivista di diritto internazionale 381. A Cavaglieri, Corso di diritto internazionale, 3rd edn (Naples, 1934) 125 et seq.; P Fedozzi, Diritto internazionale, 4th edn (Padua, 1940) 473. See also references in R Quadri, Diritto internazionale pubblico, 5th edn (Naples, 1968) 412; and Sereni, above n 106, 1677–78. Various Italian authors continued holding such views into the 1950s, in the face of the ECHR: cf G Morelli, ‘Cours général de droit international public’ CCHAIL, vol 89, 1956-I, 509 et seq., which agrees with Anzilotti also on the character of the MATs (ibid, 510). The Egyptian mixed tribunals, however, had particular characteristics which made then national tribunals: cf T Heyligers, ‘L’organisation des Tribunaux mixtes d’Egypte’ CCHAIL, vol 17, 1927-II, 44 et seq. See, similarly, Cavaré, above n 106, 508, basing himself on the tribunal procedure. 120   cf eg A Verdross, Die Verfassung der Völkerrechtsgemeinschaft (Vienna/Berlin, 1926) 160. M Bourquin, ‘Règles générales du droit de la paix’ CCHAIL, vol 35, 1931-I, 44 et seq. H-J Hallier, Völkerrechtliche Schiedsinstanzen für Einzelpersonen und ihr Verhältnis zur innerstaatlichen Gerichtsbarkeit (Cologne, 1962) 15, and the references there provided. For other references, see R Quadri, Diritto internazionale pubblico, 5th edn (Naples, 1968) 412. 121   cf H Kelsen, ‘Théorie générale du droit international public’ CCHAIL vol 42, 1932-IV, 168. 122   See, eg Hallier, above n 120, 15.

74  ORIGIN AND ENVIRONMENT OF THE ICJ

itself make a tribunal international. Conversely, if a tribunal applies national law only, that would not, under this theory, be an obstacle to its being considered an international body if it had been established by international agreement. On this view, the German Supreme Court at Leipzig, which, under the provisions of the Versailles Treaty, tried German war criminals after the First World War,123 in the process applying a number of norms of international law, was not ipso facto an international tribunal. But if the Versailles Treaty had itself created a criminal court to exercise jurisdiction on German soil, it would, on this view, have been an international tribunal, even if it had applied only the German criminal code. Third example: G Scelle’s theory,124 based on dédoublement fonctionnel, enabled him to recognise the international character of a series of internal jurisdictions on account of their international function, that is on the basis that they gave judgments on matters of international law. According to the proponents of this theory125 international law is above all a ‘constructive’ (normative) system. But international law has no system of courts to give it effect: it has to leave that to municipal legal systems. Consequently the internal systems themselves have a dual role, applying both municipal and international law. Seen in this light, they may be considered to be, at least partially, organs of the international community, by virtue of the international part of their functions. In order to limit the effects of its structural deficiency, international law refers the matter of enforcement to municipal legal systems. It does this so wholeheartedly that it is better to think of municipal and inter­ national law as a kind of fusion or merger. As far as judicial tribunals are concerned, the two systems therefore also become one: each municipal tribunal is also an international one. The consequence is that, whenever an internal tribunal applies international law, it ipso facto becomes an international jurisdiction also. Here, then, the fact of applying international law is the decisive criterion. As we have seen, these three conceptions are tied, in a mutually exclusive manner, respectively to the justiciable parties, to the instrument constituting the tribunal, and to the tribunal’s function (the application of international law). In a summary manner, the Kelsen concept leads to results that are satisfying and reasonably clear. But do single and exclusive criteria suffice, in modern conditions, to categorise the mushrooming diversities of our times? In other words, does a combination of several criteria provide a more promising approach? As opposed to the ‘unitary’ approach, there is the ‘elemental’ one, which seeks to combine a number of indices of a tribunal’s ‘internationality’. Here the evidence is circumstantial. The most widely accepted criteria are as follows:126

123   W Schwengler, Versailler Vertrag und Auslieferungsfrage (Stuttgart, 1982) 344 et seq. The judgments are published in (1922) 16 AJIL 674 et seq. For a contemporary account, see C Mullins, The Leipzig Trials (London, 1921). 124   G Scelle, Cours de droit international public (Paris, 1948) 690. 125   G Scelle, Précis de droit des gens, vol I (Paris, 1932) 56. G Scelle, Manuel élémentaire de droit international public, vol I (Paris, 1943) 21 et seq. G Scelle, ‘Règles générales du droit de la paix’ CCHAIL, vol 46, 1933-IV, 358–59. G Scelle, ‘Théorie et pratique de la fonction exécutive en droit international’ CCHAIL, vol 55, 1936-I, 99–100. For a critique of this conception from a ‘realist’ standpoint, ie from the perspective of contingent and particularist political interests, which make it impossible to see internal jurisprudence as truly ‘managing’ international affairs, cf Ch de Visscher, Théories et réalités en droit international public, 3rd edn (Paris, 1960) 175–76. 126   See in particular, Cavaré, above n 106, 505 et seq.



THE MAIN INTERNATIONAL JURISDICTIONS 75

1. the composition of the tribunal (whether national judges or judges from several States); 2. the nature of the justiciable parties (whether States, individuals, commercial entities and so on); 3. the nature of the dispute; 4. the applicable law; 5. the procedure followed; and 6. the source of the tribunal’s authority (internal legal instrument/international legal instrument). Some of these criteria overlap with others, to a greater or lesser extent. Thus, for example, the nature of the dispute, whether it is an international or national matter, depends largely on who the parties are and what law is applicable. Conversely, the applicable law is normally a function of the nature of the dispute, and so on. It should be noted that some criteria are markedly more important than others. The applicable procedure is normally a subordinate consideration, especially at a time, like the present, when the procedures of international tribunals are growing more and more to resemble those of national ones. The really important criteria are: (1) the organic structure of the tribunal (the source of its authority, and the status of its judges – whether they are international or internal functionaries); and (2) the function of the tribunal, and the applicable law (international law or just internal law). Faced with this multiplicity of criteria, few of the most respected commentators hesitate to conclude that the distinctive element making a tribunal ‘international’ has yet to be identified with any certainty.127 In any event, this elemental approach makes it possible to think in terms of ranking tribunals’ ‘internationality’ by degree. If all the criteria point in one direction or the other, one could conclude with confidence that the jurisdiction is (or is not, as the case may be) a truly international one. If some indicators point one way, others in the opposite direction, this would indicate that the tribunal in question is a ‘mixed’ one. That is the logic of greater and lesser degrees, and of partial analogies. It is of course possible to apply such criteria on a weighted basis, attaching greater significance to some than to others. Overall, the ‘elemental’ approach does not provide very clear or exact results, but it does have the merit of addressing itself to the real situation. It reflects the growing inter-penetration of national and international jurisdictions. The choice between a unitary and an elemental approach is a real one; it is not dictated by any obvious scientific rule. Here, once again, we have a tension between, on the one hand, efforts to light upon definitions giving certainty, and, on the other, efforts to take the closest possible account of the facts of the real world. We can at least say this, that, obviously, the ICJ itself is an ‘international tribunal’, indeed the ideal type of an international tribunal, however that term may be defined.

127   And to add: ‘Indeed, it has become extremely difficult to establish clear boundaries between the inter-State, the international which is not strictly-speaking inter-State (especially international human rights law and international economic law) and the trans-national, all three of them being spheres removed from the control of individual States and consequently no longer falling within individual States’ monopoly control of municipal justice.’ (our translation) See Ascensio, above n 106, 174.

III The Texts Governing the Court’s Activities 1.  CONSTITUTIVE TEXTS: THE STATUTE AND THE CHARTER

a)  The Significance of Constitutive Texts No international body or organisation is sovereign.1 None enjoys a clutch of ‘original’ powers derived simply from the fact that it exists as a ‘subject of international law’.2 States alone are sovereign, possessed of such original powers. By contrast, an international institution exists, and functions, only as a result of its constitutive treaty. The treaty creates the institution, organises it, grants it powers and imposes limits on those powers. Unlike a State, an international body or intergovernmental organisation is always fundamentally a legal creation. Most States were born as factual phenomena, to which the law attaches certain consequences. But international institutions are born of treaties making them the offspring of legal instruments. Another way – a more superficial one – of looking at it is to say that an international tribunal or other organisation is no different from a State: both owe their existence to, and base their activities on, a constitution. In the case of a State, it may or may not be a written one, but in the case of a tribunal or other international organisation it is always a written document. In the case of the ICJ, the constitutive treaty is the Court’s Statute, which is annexed to the UN Charter itself. All Members of the United Nations are automatically parties to the Statute. Article 93, paragraph 1 of the Charter 1   An ‘international organ’ is an institutionalised group of persons normally selected, in light of their particular expertise, to carry out particular functions. An ‘international (inter-governmental) organisation’ is an association of States, established by treaty, pursuing the common objectives of the Member States through permanent organs and with a legal personality distinct from the Member States. Every such organisation has a plenary assembly comprising the representatives of the Member States. The ICJ is an international organ, and the UN is an inter­ national organisation. 2   In law, this state of affairs is qualified by the principle of specialism. This principle means that international organisations possess only the competences that have been conferred upon them; they cannot go beyond those attributed to them in their constitutive instrument with a view to achieving the common objective. From a legal perspective, there is a double limitation: (1) the only competences of the organisation are those that have been conferred upon it; and (2) even those limited competences can be exercised only for the specific objectives assigned to the organisation in a given field of activity. As the ICJ put it in the case on the Legality of the use by a State of Nuclear Weapons in Armed Conflict (WHO) (1996): ‘The Court need hardly point out that international organizations are subjects of international law which do not, unlike States, possess a general competence. International organizations are governed by the “principle of speciality”, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them’ (ICJ Reports 1996, 78, § 25). See also the case of the European Commission of the Danube (1927), PCIJ, Series B, no 14, 64: ‘As the European Commission is not a State, but an international institution with a special purpose, it only has the functions bestowed upon it by the Definitive Statute with a view to the fulfilment of that purpose’. Consequently such competences are inherently limited from the first. Other principles of international law, as for example that of implied powers, do, however, permit a certain degree of flexibility in the exercise of its powers by an international organisation.

78  THE TEXTS GOVERNING THE COURT’S ACTIVITIES

provides as follows: ‘All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.’ At the same time, the Statute is technically a separate treaty from the Charter. States which are not UN Members can adhere to it. Article 93, paragraph 2 of the Charter provides for this: ‘A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council’ (as to this question, see below section 2). There are thus two respects in which the Statute is not an entirely independent treaty. First, it is annexed to the Charter and adherence to the latter automatically carries with it adherence to the former. In addition, the Statute refers in several places to the Charter, and must be read in conjunction with it, particularly with Chapter XIV, entitled ‘The International Court of Justice’. That is why States which adhere to the Statute without being Members of the UN are obliged to give undertakings to respect the rules of the Charter relating to the functioning of the Court. The Statute regulates the fundamental questions concerning the existence and functioning of the Court. It gives body and form to the very summary provisions in Chapter XIV of the Charter itself, and is in its turn further fleshed out by the Rules of the Court. To sum up, then, the normative structures concerning the Court are contained in a four-tier pyramid: at the top is Chapter XIV of the UN Charter; its provisions are given concrete form in the Statute, containing fundamental rules concerning the Court; the Statute, in its turn, is given greater shape and form by the Rules of the Court, which contain the detailed rules necessary to the practical functioning of the institution; finally, at the lowest level of the pyramid, we have the Practice Directions, first adopted in 2001 and above all designed to accelerate proceedings by eliminating or reducing certain recurrent obstacles. However, this normative pyramid does not correspond, at all points, to a strict legal hierarchy. The Charter and the Statute are placed on a footing of equality. That is why the Statute, as we have seen, contains derogations from the rules laid down in the Charter. Such derogations are, however, highly exceptional. Although the relationship between the Charter and the Statute is closely coordinated, the same cannot be said of the other two texts, which are clearly subordinate. The Rules have to conform to the Statute, and if a ‘Rule’ failed to do so it would be inapplicable, being legally a nullity. Practice Directions, in turn, have to be kept within the framework permitted by the Rules. If there is an inconsistency, they are, to that extent, likewise null and void. Nevertheless, contrary to the position as regards the Statute, as regards the Rules, the Court is in exclusive control. At any time, it can modify the Rules in order to enable a Practice Direction to be issued or subsist. The relative juridical ranking of Statute and Rules is thus very clear. The relative ranking of Rules and Practice Directions is somewhat more nuanced. – The Charter, in Chapter XIV, contains the following norms, which are of general interest for the UN, and do not relate exclusively to the functioning of the Court. Chapter XIV covers questions concerning the place of the Court in the UN’s organisation (Article 92); participation by the Court, and the ties between it and the UN Member States (Article 93); the obligation to execute the judgments of the Court (Article 94); the provision that the Court does not have a monopoly in the peaceful resolution of international legal disputes (Article 95); and the power to give advisory opinions to the organs and organisations of the UN system (Article 96). The text reads as follows:



CONSTITUTIVE TEXTS 79

Chapter XIV The International Court of Justice Article 92 The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter. Article 93 1. All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice. 2. A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council. Article 94 1. 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. 2. 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. Article 95 Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future. Article 96 1. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. 2. Other organs of the United Nations and specialised agencies, which may at any time be so authorised by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.

– The Statute is structured as follows. Article 1 echoes Article 92 of the Charter. Chapter I (Article 2 onwards) deals with the organisation of the Court. The election and status of the members (judges) takes pride of place here. The Statute also deals, amongst other things, with incompatibilities affecting the judges (Article 18); their privileges and immunities (Article 19); with the President, Vice-President and Registrar (Article 21); with the seat of the Court (Article 22); with judicial vacations (Article 23); the composition of the Court and its Chambers (Articles 25–29); the Court’s power to make rules (Article 30); ‘national’ judges and judges ad hoc (Article 31), the judges’ salaries and allowances (Article 32); and the financing of the Court’s expenses (Article 33). Chapter II (Article 34 onwards) deals with the competence of the Court in contentious matters, that is its jurisdiction to decide disputes between States by binding orders. Chapter III (Article 39 onwards) deals with the Court’s procedure in contentious cases. It is here that, among other matters, the text deals with the Court’s official languages (Article 39); the bringing of new cases (Article 40); provisional measures (Article 41); the agents, counsel and advocates of the parties (Article 42); written and oral proceedings

80  THE TEXTS GOVERNING THE COURT’S ACTIVITIES

(Article 43); public access to hearings (Article 46); the power to make orders for the conduct of cases (Article 48); proceedings when a party fails to appear or to defend its case (Article 53); judicial voting on decisions (Article 55); the obligation to state the reasons for judgments (Article 56); the reading of the judgment in open court (Article 58); the scope of Court decisions’ binding character (Article 59); finality of judgments apart from the possibility of a request for interpretation (Article 60); the procedure for revision of judgments (Article 61); the procedure for third States to intervene (Articles 62–63); and the parties’ costs (Article 64). Chapter IV (Articles 65 et seq.) deals very succinctly with advisory opinions. It contains provisions concerning the power of the Court to give such opinions (Article 65); the procedure (Article 66); delivery of the opinion (Article 67); and the application by analogy of the provisions for contentious proceedings, to the extent the Court recognises them to be applicable (Article 68). Finally, Chapter V (Articles 69–70) deals with amendments to the Statute. Article 69 aligns the procedure for doing so with the procedure for amending the Charter (the latter’s Article 108). Article 70 provides that the Court itself can propose amendments it considers necessary.3 b)  Peremptory Character of the Statute Legal norms are either peremptory or non-peremptory. A non-peremptory norm (jus dispositivum) yields in face of a contrary stipulation. A general norm of that kind simply acts as a residual rule. It applies unless citizens or other subjects of law derogate from it by legal acts inconsistent with it – in particular (as regards municipal law) by contracts, and (as regards international law) in treaties by which they agree, as between themselves, on another legal regime than the one provided by the general (non-peremptory) rule. Such particular agreements operate as derogations prevailing over the general rule, in accordance with the principle ‘lex specialis derogat legi generali’. Technically, then, non-peremptory norms are general norms, applicable provided that the parties concerned do not adopt a special regime of their own. In technical legal language, the special norm is said to ‘derogate’ from the general (nonperemptory) one. The law permits such a normative substitution when no overriding public interest is prejudiced, that is when there is no public interest to the contrary. Some norms are concerned only with private interests. It would in fact be possible not to adopt any of them, and leave the question to be directly resolved by particular agreement. However, that would be inconvenient in two important respects. First, such contracts (or their equivalents in international law) would involve very heavy drafting, given the need to provide for every eventuality without relying, as a default mechanism, on applicable general rules. The division of the burden would be seriously unbalanced, the general law being entirely absent and referring all questions to a proliferation of special rules selected by the parties. This would be an inefficient outcome in terms of legal economy and effort. Second, it is always possible for the parties to an agreement to leave a question unprovided for, either by an oversight, or because 3   The Court has taken the initiative in this way only once, in 1969, when it proposed that Art 22 of the Statute, relating to its seat, should be made more flexible. Art 22 fixed the seat of the Court at The Hague. The Court proposed that its seat be either at The Hague or at any other place agreed upon by the General Assembly. This proposal reflected certain problems then existing between the Court and its host State. The Court wished to strengthen its negotiating position vis-à-vis the Netherlands Government, with a view to obtaining the terms it was looking for, in particular the construction of a new building as an annex to the Peace Palace (which had become too small). In the end, the Statute was not amended. cf W Karl, ‘Article 70’ in A Zimmermann, C Tomuschat and Oellers-Frahm, The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 1489.



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the question is too intractable. Such lacunae can give rise to major legal complications. These are avoided, however, if the lawyers are permitted to fall back, in such cases, on the rules that apply in default of special agreement. By contrast, many norms are peremptory or imperative (jus cogens). Legal systems forbid parties to replace norms of this kind by special stipulations. The general norm always prevails, and anything to the contrary is null and void. Here we go beyond private interests into the realm of ‘public’ law. Legal systems use such norms to pursue and protect collective interests which individuals cannot be allowed to dispense with. So, if the legislator decides to fix a minimum wage, the law in question will make sense only if employers are forbidden to enter into contracts for salaries at a lower level. As a matter of legal analysis, therefore, peremptory rules are distinguished from non-imperative ones by the fact that, so far as peremptory ones are concerned, there can be no derogation. The lex specialis principle does not apply to them, no derogation by private agreement being possible. To sum up, then, peremptory norms are protected by a technique designed to maintain their integrity and prevent their being fragmented into private regimes which would prevail under the lex specialis rule. This applies in all cases where there is a public interest in making the rule peremptory. This distinction between peremptory and non-imperative norms also exists in inter­ national law. It was already an accepted distinction in the days when majority opinion thought of it in terms of natural law. Subsequently, it was masked by the principle that stipulations contrary to morals (contra bonos mores) could not be recognised as valid. Finally, the distinction was enshrined in Article 53 of the 1969 Vienna Convention on the Law of Treaties, and then in other texts and contexts. The only school of thought that has always been opposed to it is the school of radical positivism. Imperative international law is usually referred to nowadays as jus cogens. Doctrine and practice have concentrated on the jus cogens of what might be called international public policy, that is on international rules that cannot be derogated from because they embody, and reflect, fundamental values of the international community, especially the irreducible necessities of civilised existence. This category of jus cogens is the most obvious one, and has the highest profile, and perhaps it is here that it is easiest to imagine some kind of sacrifice being demanded of the pricklier devotees of State sovereignty. At all events, it is via this route that the world has developed a small corpus of peremptory norms, such as the prohibitions against the unlawful use of force, slavery, genocide and the most important human rights norms. The relatively small number of such norms has made it possible for them to co-exist with the predominant element of international law, that is the principle of State sovereignty. If States are sovereign, they can freely agree to anything they choose, and it is difficult to see how that freedom can be limited. The sole exception consisted of these elementary norms of civilised life that could not possibly be left to the discretion of the individual State. However, the international community did not yet seem sufficiently integrated to develop a doctrine of the public interest, similar to the doctrine developed within States. This fact seemed to rule out the development of a more robust body of international jus cogens. Nevertheless, if we focus excessively on the above rules of jus cogens, the ones relating to international public policy, we will be in danger of overlooking the existence of a whole series of other peremptory international norms, even though they do not reflect the highest interests of the inter­ national community. Notable examples are to be found in the statutes of various inter­ national organisations and organs.4   See R Kolb, Théorie du jus cogens international (Paris, 2001).

4

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In this regard, the ICJ Statute is not only binding on the Court, which cannot depart from it, but is also binding on parties appearing before the Court. Certainly, the Statute can be amended, but only by the procedures laid down in the text, not by the (legally quite distinct) method of derogation by particular agreement. It is therefore accepted that the parties to cases before the Court cannot make agreements between themselves which would require the Court to behave inconsistently with its Statute. On several occasions the Court has explicitly refused to follow the parties down that road, or has at least indicated that it might refuse if the request were to be made. In this sense, the Statute is, for litigating States, imperative law. Stipulations contrary to it will be of no avail: possibly they are not null and void in themselves, but they have no effect as regards the Court, and this, as a practical matter, certainly makes them sterile nullities. The ICJ is the collective organ of the States which are parties to the Statute. It is also the principal judicial organ of the UN. The Court’s job, and the interests which it is the Court’s mission to protect, normally go well beyond the wishes and interests of particular parties in particular cases. The Court’s Statute is, so to speak, at the disposal of all the parties to it, not of the parties to any particular dispute. Particular parties cannot derogate from it by private agreement between them. Also, the Court has to be vigilant to preserve its own judicial integrity. In this regard, A Bustamante y Sirven wrote in 1925: [T]he judge or tribunal, established in advance, [is] subject to rules . . . [that are] . . . prior and superior to the will of any party appearing before them. The judge and tribunal are not special creations of the parties, but have an existence prior to and higher than theirs, exercising their powers from above. (our translation)5

Hence the fact that there can be no derogation from the Statute, as emphasised by G Schwarzenberger: ‘[I]ndividual parties to cases before the Court have but a limited choice: they may take the Statute as they find it or leave it.’6 In its practice, the Court has frequently reaffirmed the imperative nature of its Statute. The fundamental underlying reason was first explained with clarity in the Nottebohm case (Preliminary Objection, 1953): The seising of the Court is thus dominated by the declarations of the parties . . . But the seising of the Court is one thing, the administration of justice is another. The latter is governed by the Statute, and by the Rules which the Court has drawn up by virtue of the powers conferred upon it by Article 20 of the Statute7

and then in the case of the Military and paramilitary activities in and against Nicaragua (merits, 1986): ‘The Court is bound by the relevant provisions of its Statute and its Rules . . . provisions devised to guarantee the sound administration of justice, while respecting the equality of the parties.’8 Respect for the Statute and the Rules is a matter of the inter­ national public interest in the proper administration of justice. This cannot be left to the desires and idiosyncrasies of parties. In this regard, the Court, and the Court alone, has to   A de Bustamante, La Cour permanente de justice internationale (Paris, 1925) 152.   G Schwarzenberger, International Law – As Applied by International Courts and Tribunals, vol IV (London, 1986) 723. In the same sense, see MO Hudson, The Permanent Court of International Justice, 1920-1924. A Treatise (New York, 1943) 413; M Dubisson, La Cour internationale de Justice (Paris, 1964) 205–206, 211: ‘However the provisions agreed between the parties in the compromis, whether they relate to the procedure or the substance of the case, can never derogate from the Court’s Statute, which, as is well known, is binding on all parties just as it is on the Court itself.’ (our translation) 7   ICJ Reports 1953, 122. 8   ICJ Reports 1986, 39, § 59. 5 6



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be the guardian. If the Statute and the Rules were not respected, the ICJ would cease to act as a court of justice. The Statute gives the Court no power to deviate from the text. As the Court itself put it in the case on the Compatibility of certain Danzig Legislative Decrees with the Constitution of the Free City (1935): ‘Whereas the decision of the Court must be in accordance with its Statute and with the Rules . . .’.9 Or, as it said in 1963 in the Northern Cameroons case: ‘The Court itself, and not the parties, must be the guardian of the Court’s judicial integrity.’10 This is not the place for a comprehensive list of the cases in which the Court has invoked the imperative character of the Statute when faced with a wide range of contrary wishes on the part of litigating parties.11 A few examples must suffice. (i) A special agreement between the parties, agreeing to submit their dispute to the Court, cannot contravene an imperative provision of the Statute. In the Free Zones case (Order, 1929) the special agreement contained a provision contrary to the Statute. The parties had jointly asked the Court to provide a non-official indication of the results of its deliberations prior to the giving of formal judgment. But under Article 54, paragraph 3 of the Statute, the Court’s deliberations were secret. The Court therefore refused this request: The spirit and letter of its Statute, in particular Articles 54, paragraph 2, and 58, do not allow the Court “unofficially” to communicate to the representatives of the Parties to a case “the result of the deliberation” upon a question submitted to it for a decision; as, in contradistinction to that which is permitted by the Rules (Article 32 [now 101]), the Court cannot, on the proposal of the Parties, depart from the terms of the Statute’.12

It would be difficult to find a clearer expression of the Statute’s peremptory character. (ii) States, even on the basis of an agreement between them, do not have the right to request an advisory opinion. Articles 96 of the Charter and 65 to 68 of the Statute confine that right to certain organs of the UN and to certain affiliated organisations. This limitation is peremptory. Other entities, particularly States, cannot make such requests. At the time of the travaux préparatoires on the Statute, the idea was in fact proposed, but it was firmly rejected, for a number of reasons. One was that making advisory opinions available to States would have profoundly disturbed the functioning of the Court. States could have obtained judicial pronouncements without being under the corresponding duty to carry them out. This would have imperilled the Court’s prestige. It would in effect have been turned into a legal advisory service for States. Its function in contentious disputes would have suffered from the weight of the advisory work that could be anticipated. Also, it might have become possible to consult the Court on an advisory basis, with a view to finding out, in advance, the likely tenor of a decision in a future application for actual resolution of the dispute. States might then decide whether to agree to submit their cases to the Court, as a function of the advance knowledge thereby obtained: ‘Tell me whether I’m going to win, and I’ll tell you whether I’m prepared to play.’ In addition, a kind of de facto res judicata would be established, with highly dubious effects. No tribunal likes to limit its future freedom of judgment by adopting advance positions on an abstract basis, where the   PCIJ, Series A/B, no 65, 70.   ICJ Reports 1963, 29. 11   As to this, see R Kolb, Théorie du ius cogens international (Paris, 2001) 209 et seq. 12   PCIJ, Series A, no 22, 12. 9

10

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case has not been sifted by the demanding processes of contentious proceedings in which claims have to be proved. The consensual nature of the Court’s jurisdiction might also, in effect, have been undermined, if unilateral requests for opinions had been allowed. The step would have threatened the principle of equality between the parties, the more so since the requesting State would have been the sole judge of the tenor and formulation of the question put to the Court. It would have been necessary to anticipate intervention proceedings, and counter-requests for opinions, leading to procedural difficulties of various kinds. Finally, the consultative procedure would not have had, for States, the importance it can sometimes have for international organisations. The latter can take action only on the basis of their constitutive texts, and so it is vital for them to know how to interpret those texts correctly. It is not the same for States – their internal laws apply to their internal affairs. The Court has always considered this limitation on the right to seek advisory opinions a rule of imperative law. It has refused to respond to requests which appear to be simply seeking an opinion, whether the request is unilateral13 or made jointly.14 However a distinction must be made between a simple request for an opinion, and a request for a declaratory judgment. The latter decides the judicial status of a particular situation, while still leaving it to the parties to deal with the practical consequences. Nevertheless, a declaratory judgment is executory in nature, in that the law, as declared by the Court, is fixed and no longer open to question. (iii) In some cases, the advance interpretation of a text can be incompatible with the Court’s judicial function and consequently also with its Statute. In the Free Zones case (Order, 1929), the parties had asked the Court to declare whether the Versailles Treaty had abrogated, or was designed to abrogate, the free zones. The Court refused to allow itself to be boxed in by a predetermined interpretation, since the Treaty might have neither of those effects: ‘The Court cannot as a general rule be compelled to choose between constructions determined beforehand none of which may correspond to the opinion at which it may arrive’.15 The Court recognised that its rules contained an element of flexibility, it being accepted that the parties could limit its role, and thus have some influence on the law that would be applied. But the proposed restriction was considered excessive, the more so since the multilateral Treaty of Versailles had a far wider ambit than the relationship between the present parties. Such limitations will always be excessive if they would make it impossible for the Court to reach an adequate appreciation of the situation before it, thus placing the Court in a false position; or if the predetermined interpretation would be so partial as to prevent a reasonable application of the law – part-interpretation becoming partial interpretation! In all these cases, the limitations imposed by the law on parties’ freedom are, plainly, derived from the need to maintain the Court’s judicial integrity. (iv) Parties are not allowed to subordinate the binding or executory character of the judgment to conditions not recognised by the Statute. In the Free Zones case, (1929–32), the special agreement provided that, if the judgment countenanced the importation of merchandise in bond or at reduced customs duties, that aspect of it would be subject to the assent of both parties. The Court considered that condition to be contrary   Case on Certain German interests in Polish Upper Silesia, (1925), PCIJ, Series A, no 6, 21.  Case on the Interpretation of the Greco-Bulgarian Agreement of 9 December 1927 (Caphandaris-Molloff Agreement, 1932) PCIJ, Series A/B, no 45, 87. 15   PCIJ, Series A, no 22, 15. 13 14



CONSTITUTIVE TEXTS 85

to the Statute.16 It went beyond merely providing for possible renegotiation. It amounted to giving binding force, in the Court Order itself, to the idea that there would have to be subsequent agreement for the ruling of the Court to become binding. In the circumstances, therefore, the Court refused to make the Order. The same question arose much later, in the Continental Shelf case (Tunisia/Libya, 1982). Libya interpreted the special agreement to mean that the Court’s task would be confined to giving directions, on the basis of which the parties would then renegotiate while retaining almost complete freedom of maneouvre. In the process of interpreting its decision, the Court reduced that view to proportions compatible with the Statute.17 Judge Gros expressed greater doubts still about the validity of the Libyan argument, because he took Libya’s oral declarations literally.18 Unlike in the Free Zones case (see above), in this case, the parties were not attempting to subordinate the Court’s order to a subsequent agreement between them. One party was simply making an advance statement that the judgment would be only the basis for negotiation, and would not have immediate executory status. But parties are not free to ignore the Court’s findings of law. The judgment and order, as an exercise of jurisdiction, have to be distinguished from the substance of the dispute they relate to. If the Court is warned in advance that the parties intend to nullify the executory character of the decision by negotiations on the very subject matter of the rights and obligations ruled upon, it must refuse to decide the case. It is true that the parties are always free to decide, ex post facto, not to give effect to the Court’s order, in the same way as any ordinary judgment creditor can decide not to execute his judgment. That is not, however, the point. If that intention is known in advance, the Court must refuse to rule,19 because to do so puts in issue its judicial integrity. In effect, its decision would simply amount to providing the States with an advisory opinion, which would be contrary to the Statute. The parties can reserve to themselves a maximum degree of freedom of manoeuvre, by asking the Court for a declaratory judgment. But even in that case, they cannot declare in advance that they do not necessarily intend to adhere to the Court’s decision. If that is their wish, they can choose either to invest an intermediary (amiable compositeur) with special powers, or to refer the dispute to an arbitrator. To sum up, then: (1) a peremptory rule of law prohibits the parties from subordinating the validity of the Court’s decision to their consent, or from modifying ex post facto the findings of law in the judgment; (2) the Court cannot give judgment if the parties have declared in advance their intention not to give effect to the judgment in its entirety, or if that intention is established by other means; and (3) the parties do not lose the right to renegotiate the substantive issues – but not to renegotiate the judgment – by coming to an agreement on new terms, after judgment has been given. The above examples show that these rules, necessary to protect the integrity of the Statute, were applied just as zealously by the PCIJ as they have subsequently been by the ICJ. In other words, the PCIJ realised from the outset the gulf between itself and an ordinary court. It behaved, from the first, as a tribunal of ‘public justice’. That was not a foregone conclusion in 16   PCIJ, Series A/B, no 46, 161: ‘[I]t would be incompatible with the Statute, and with its position as a Court of Justice, to give a judgment which would be dependent for its validity on the subsequent approval of the Parties’. See also PCIJ, Series A, no 24, 14. 17   ICJ Reports 1982, 40. 18   Dissenting opinion of Judge Gros, ibid, 143–46. 19   Ibid, 145.

86  THE TEXTS GOVERNING THE COURT’S ACTIVITIES

that still formative period, in which ‘sovereignism’ and positivism were the predominant doctrines. The PCIJ’s attitude thus shows very clearly that no institutional international tribunal can allow itself to depart, in any way, from a cluster of functional rules centring upon the concepts of judicial integrity and the proper administration of justice – in other words, upon the public interest, of which the PCIJ was, and the ICJ now is, the sole and ultimate guardian.

c)  Revision of the Statute In the days of the PCIJ,20 the Statute did not contain provisions for its own modification or revision. The law of treaties normally speaks of ‘amendment’ when referring to minor changes or to changes to specific points only. ‘Revision’, by contrast, denotes a fundamental reworking of the text by a new diplomatic conference. This distinction is reflected in the UN Charter itself, in Articles 108 (amendments) and 109 (revision). It goes without saying that this distinction is one of degree only, so that a series of significant amendments would in the end amount to a true revision. As to the form, the two modalities (amendment and revision) are often subject to different rules of procedure and competence.21 In the absence of any express provision in the PCIJ Statute, the general rule, applicable on a residual basis, was that any amendment or revision required the consent of the States which were Parties to the Protocol on the Statute (which had originally been signed on 16 December 1920). The amendment or revision could not, in practice, become operative until all those States had voted, and then ratified, the modifications in question. Given that the Court was financed by the League of Nations, and its budget voted by the League Assembly, the Assembly’s consent was also a practical necessity. If all the States Parties to the Statute had been members of the League (which was never the case), the amendment might, according to the case, have been adopted by an Assembly Resolution, subsequently opened for ratification. An attempt was made to revise the PCIJ Statute towards the end of the 1920s. In 1928 France proposed not a revision, but a number of amendments. In the Court’s early years, certain difficulties had indeed cropped up, such as delays in handling some cases; difficulty in ensuring the presence of judges (especially those from distant countries) during the winter sessions; and the growing frequency of recourse to judge-assessors. These problems, amongst others, gave rise to a climate favourable to the attempt to amend the Statute. By a resolution of 20 September 1928, the League agreed. A Committee of Jurists was set up and asked to prepare the desired amendments: it met between 11 and 19 March 1929; in the end it proposed the modification of 18 provisions, and suggested adding four new ones on advisory opinions, a subject on which the Statute had so far been silent. On 12 June 1929, the Council submitted these proposals to the Member States of the League and to the other States Parties to the Statute, and decided to call a conference of all the States that were parties to the Statute. The Conference took place at Geneva from 4 to 12 December 1929. It submitted a draft amended Statute to the Assembly, which on 14 September 1929 voted through the amendments. That same day, a revisory Protocol 20   On the question of amendment and revision of the Statute in this period, see Hudson, above n 6, 130 et seq. See also R Zacklin, The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies (Leiden, 1968) 67 et seq. 21   This is the case as regards Arts 108 and 109 of the UN Charter, though Art 109 has until now been a dead letter.



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was opened for signature. It was designed not to replace the original Statute, but to make the amendments applicable as lex specialis and posterior. After various delays, the revisory Protocol entered into force on 1 February 1936. There is little value now in examining the details of these amendments, most of which were of only limited importance. The most significant reform related to the composition of the Court and the judges’ salaries.22 The number of judges was increased to 15 (from 11), and the four supplemental judgeships were abolished, implying a modification of Article 3 of the Statute. At the 1930 elections, the League Assembly was already proceeding, in the absence of any objection, on this new basis, despite the fact that the amendments were not yet formally in force. In addition, the permanent character of the Court was reinforced. It was to sit all year round. Measures were adopted to ensure the presence of the judges, one being an increase in their salaries. The ICJ Statute, by contrast, does contain provisions for its amendment or revision (Article 69).23 However these provisions have never been used.24 As in the case of the UN Charter itself, there are various reasons for this. First, most of the elements of the ICJ Statute were, by the time it was adopted, already tried and tested: there was no need for the Statute to be drafted in haste. The necessary flexibility was ensured by the adoption and modification of the Rules of the Court, a technique already in use after 1929, when there were delays in implementing the amendments to the Statute itself. It was also ensured, as and when the need arose, by interpreting the Statute in a liberal spirit. There was even some scope for modifying the text of the Statute through well-consolidated judicial practices, where these were accepted, at least tacitly, by the States Parties.25 Secondly, the revision procedure, modelled on that of the Charter, was drafted in a very cumbersome way, and was difficult to apply. The risk was that it would lead to prolonged delay and might ultimately fail to work. In effect, it would be necessary to have the amendments adopted by a two-thirds majority in the General Assembly, including the five permanent members of the Security Council. In addition, the amendments would need to be ratified by two thirds of the UN Member States, again including the five permanent members of the Security Council. These requirements, resulting from Article 108 of the Charter, were modified by the effects of Article 69 of the Statute and of General Assembly Resolution 2520 (XXIV). The two-thirds majority required to amend the Statute is of the parties to the ICJ Statute, whether or not they are UN Members. The five permanent members of the Security Council, however, retain their privileged position. In the face of such rules on amendment, the risk is that a great deal of energy might be invested but lead, at the end of the day, to no tangible result. Third, the States Parties to the Statute attach great value to legal certainty about questions relating to the Court. They are apprehensive that one amendment might lead to another, in the end opening up a kind of Pandora’s box. Moreover, as every lawyer knows, the amendment of a text frequently leads to consequential problems. First, it is a break in continuity, which is a particularly serious problem when one is dealing with a court of justice. But quite apart from that, each time a text is amended, the changes have to be accompanied by transitional provisions of greater or lesser complexity.   See O Spiermann, ‘Historical Introduction’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 3, 57.   See W Karl, ‘Article 69’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 3, 1469 et seq. 24   In passing, it is worth noting a historical irony: the PCIJ Statute, containing no provision for amendments, was nevertheless amended, while the ICJ Statute, which does contain provision, has not been. This does imply, however, that, generally speaking, the Statute has proved a workmanlike and effective text. cf Jennings, General . . ., op. cit, 37. 25   Absent any protest or objection, that is by acquiescence. 22 23

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The fact that the ICJ Statute has not so far been modified does not mean that there have been no proposals to do so. There have been frequent suggestions by academic and other commentators, such as learned societies. Official circles have also come up with proposals,26 including, amongst others: one to increase the number of judges so as to reflect the increasing number of States, the result of decolonisation (1956/1957); a proposal to make Article 22 of the Statute, on the seat of the Court, more flexible, in order to enable it to chose another seat in case of need (1969);27 and the proposal to widen the Court’s jurisdiction to cover disputes concerning the United Nations and other intergovernmental organisations, instead of confining it to States alone (modification of Article 34 of the Statute) (1997). The reaction to this last proposal, put forward by Guatemala and Costa Rica in the Special Committee on the Charter of the United Nations and Strengthening the Role of the Organisation, was a negative one. It was argued that the mechanisms for resolving disputes concerning international organisations were already satisfactory, and gave rise to no particular problems. Moreover, it was emphasised that the Court no longer suffered, as it had in the past, from an insufficient workload. On the contrary, its services were now very much in demand. It was also argued that the advantages of the amendment were dis­ proportionately small compared with the risks, expense and dangers. Overall, one can conclude from this accumulation of experience that amendments to the Statute will continue to be very exceptional, and that necessary changes will continue to be made by informal amendments (subsequent practice) and via the Rules and Practice Directions. If there were felt to be some urgency about modifying the Statute in circumstances where the UN’s political bodies would not, or could not, do so, the chances are that the Court would modify its practices and amend its Rules in a way that might tend towards a crossing of the line subordinating the Rules to the Statute – a line which the Court is basically bound to respect.

d)  Denouncing or Withdrawing from the Statute Neither of the Statutes (of the PCIJ and the ICJ) has ever contained a clause allowing a State to denounce or withdraw from it, and no State has ever attempted to do so. Absent any relevant practice, the question nevertheless raises some interesting legal issues. To some extent they overlap. (i) The first question is whether, in the absence of a clause permitting denunciation or withdrawal, it is prevented by Article 56 of the Vienna Convention on the Law of Treaties,28 applicable as the expression of customary law. The principle is that treaties containing no clause on withdrawal are considered to prohibit it, unless it is the implicit wish of the   Ibid, 1481 et seq.   At that time the Court was in dispute with its host State, the Netherlands, over the financing of an annex to the Peace Palace. The purpose of considering a possible change of the Court’s seat was to increase pressure on the host State, so that the latter would agree to pay for the construction work. 28   ‘1.  A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: 26 27

(a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty. 2.  A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under paragraph 1.’



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parties to allow it,29 or unless it is in the nature of the treaty itself to imply such a right of withdrawal.30 In the present case, there is no question of the treaty permitting withdrawal by its very nature. Treaties in that category are essentially linked to a set of particularly mobile political and social circumstances, such as treaties of alliance, where it must be supposed that the parties always wish to have the possibility of withdrawing if circumstances change. The implicit wish to allow withdrawal, for its part, can be apparent as early as the travaux préparatoires; this was the case, as we shall see in a moment, when the Charter itself was being drawn up. Equally, it can appear at a later stage. If a State attempted to withdraw from the Statute, it is possible that the other States Parties would not object. That might, depending on the circumstances, be seen as acquiescence, and thus an ‘unfolding will’ (one that crystallises only after the event) to accept the withdrawal. A very clear implicit will to accept withdrawals was apparent at the San Francisco Conference, in relation to the Charter itself. However the States concerned nevertheless agreed not to include express provision for it. There were various reasons for this, all of them relating to the particular regime of that great treaty. The Covenant of the League of Nations permitted voluntary withdrawal. Article 1, paragraph 3, provided as follows: ‘Every Member of the League may, after two years’ notice of its intention so to do, withdraw from the League, provided that all its international obligations and all its obligations under this Covenant shall have been fulfilled at the time of its withdrawal.’ There is no analogous provision in the Charter. The experience of the Covenant showed that it was better to be silent on the subject of withdrawal. To point out to States that they could withdraw at will, freeing themselves (even perhaps doing so ‘heroically’) from their obligations as members, and depriving the organisation of the means to pressurise them, seemed unwise. Any State intending to violate the international order had simply withdrawn from the League before pursuing its aggressive policy, now shielded from the League’s sphere of action. At the San Francisco Conference, the great powers insisted that, nevertheless, an implicit right to withdraw must be conceded.31 An inter­ pretative declaration, in that sense, was adopted. The USA argued that, in certain circumstances (for example, if there was a major amendment to the Charter), it would be unjust to prevent a State from withdrawing, if it fundamentally disapproved of the new provisions. The compromise consisted of not inserting such a provision into the Charter itself, while nevertheless affirming the implicit right of withdrawal. Until now, only one State has ‘withdrawn’ from the UN, namely Indonesia, which did so for an 18-month period from 20 January 1965 to 19 September 1966.32 On that occasion, the General Assembly accepted the common interpretation of the Secretary-General and Indonesia that the latter had only suspended its cooperation with the UN, and had not properly withdrawn. Consequently Indonesia was in a position to resume full cooperation without having to submit to a 29   In 1926, at the Conference of signatories of the 1920 Protocol on the PCIJ Statute, some delegates thought that States could withdraw from the Statute and that this was an implicit legal right. This view gave rise to objections. It shows that no clear subsequent will had emerged in this respect. cf Hudson, above n 6, 128. 30   On this provision and its interpretation, see T Christakis, ‘Article 56’ in O Corten and P Klein (eds), Les Conventions de Vienne sur le droit des traités, Commentaire article par article, vol III (Brussels, 2006) 1951 et seq. 31   See H Wehberg, ‘Einführung in die Satzung der Vereinten Nationen’ (1945) 45 no 5/6 Friedenswarte, 344–45; E Luard, A History of the United Nations, vol 1, The Years of Western Domination, 1945–1955 (London, 1982) 64; S Rosenne, The Law and Practice of the International Court, 1920–2005, vol I (Leiden, 1965) 276–77. See particularly, UNCIO vol VII, 267; vol VI, 206 et seq. and vol I, 616, 613. 32   The situation arose from the Indonesian Government’s dissatisfaction that its regional rival, Malaysia, was elected a non-permanent member of the Security Council. See the exchange of letters with the UN SecretaryGeneral published in UN (ed), Everyman’s United Nations, 8th edn (New York, 1968) 144–45.

90  THE TEXTS GOVERNING THE COURT’S ACTIVITIES

humiliating procedure of readmission.33 The question of its participation in the Statute was not raised. Obviously, in light of the mild view, that its membership was only suspended and not broken, its participation in the Statute did not become an issue.34 Can we conclude that this will to admit withdrawal from the Charter extends to the Statute as an integral part of it under the highly significant formula in Article 92 of the Charter? In such a case, a withdrawal would be possible from the Charter and/or from the Statute. Or is the right view that the requisite will was confined to the Charter in the narrow sense, since the reasons for it did not extend beyond the Charter itself, the Statute remaining a distinct treaty between a different community of States Parties? Or, a third possibility, should one conclude that withdrawal from the Charter, or denunciation of it, ipso facto implies withdrawal from the Statute, because of the ‘integral part’ link between the two texts, as recognised in Article 92 of the Charter?35 It is possible to argue that, since the Statute is an integral part of the Charter, the two go together in this regard. But there are two questions here. First, does withdrawal from, or denunciation of, the Charter automatically include the Statute? Is it really necessary to suppose that a State desiring to quit the United Nations will necessarily wish also to burn its bridges with the ICJ? If that is not obviously the case (the more so since historically a whole series of States that were not UN Members have been parties to the Statute), nevertheless we should remember that Member States have normally ratified the Statute and the Charter by a single instrument, not separately. Their participation in the Statute flows from their ratification of the Charter. If they denounce the Charter, then, technically, their participation in the Statute will terminate at the same time, unless they take the opportunity to adhere separately to the Statute, as they are entitled to do. Secondly: does the implicit right to withdraw from the Charter extend, in the same terms, to the Statute? Following the approach taken here, since the Statute is technically an ‘integral part’ of the Charter, the outcome is the same for both, whatever precise ideas the original draftsmen and negotiators may have had. Since one can withdraw from the Charter, one can withdraw from the Statute. However, that is a legal answer without practical consequences, because it is impossible in such cases to withdraw from the Statute and yet remain a member of the United Nations – the Statute being integral to the Charter (see below, (ii)). Consequently, if a State remains a party to the Charter, it automatically remains a party to the Statute. Manifestly, however, this is not the case for States which have adhered to the Statute without being UN Members. In such a case, the implicit right to withdraw from the Charter might apply to the Statute by analogy. To sum up, then, it is legally impossible for a State to withdraw from the Statute while remaining a member of the UN. Withdrawal from the Statute alone is impossible unless a State is not a UN Member, or until it ceases to be one. However, the question can also be considered from another perspective.   Repertory of the Practice of United Nations Organs, Supplement III, vol I, §§ 29 et seq.   A markedly more difficult problem arises in the context of State succession. Thus, when the former Federal Socialist Republic of Yugoslavia was dissolved, Serbia and Montenegro claimed that, taken together, they were not a new successor State (which would have had to apply for admission to the UN), but a continuation of the former Republic (thus continuing to hold its position as a UN Member State). Seeing the situation in this light, Serbia and Montenegro did not seek admission and did not adhere to the Statute of the Court, since they considered that their ‘new’ State was already a party. This view was challenged at the UN, for political as well as other reasons, and failed to persuade the majority. For many years, the precise legal status of Serbia and Montenegro as a Member of the UN and a party to the Statute of the Court thus remained uncertain. This problem, not directly relating to withdrawal from or denunciation of the Statute, but concerning the continuity of a party to the Statute, will be further considered below. 35   In this sense, see Rosenne, above n 31, 276. 33 34



CONSTITUTIVE TEXTS 91

The general principle inherent in Article 56 of the Vienna Convention is that a treaty may not be denounced except in limited circumstances. Applying that rule, it might be tempting to argue that States cannot withdraw from the Statute, since there are no clearly established exceptional circumstances. At the same time, it makes doubtful sense even to wish, let alone to try, to force an unwilling State – not (or no longer) a Member of the United Nations – into the obligatory minimum level of cooperation with the Court that is required by participation in the Statute. To do so would scarcely serve any useful purpose. In light of that, one might perhaps take the view that, one way or another, it is always possible to denounce or withdraw from institutional treaties, either because this is inherent in their intrinsic nature, or as a matter of established practice. At the same time, it might seem strange to admit that States can withdraw from the Charter, and yet to argue that they cannot withdraw from the Statute, which is, after all, relatively speaking a less important instrument. The fact that the Court is a more ‘technical’ body than the UN’s political organs might well lead to the same conclusion. To sum up, then, it seems difficult to give a clear answer to this question, which at the present time is a purely hypothetical one. As regards the various options, it is uncertain whether a State can denounce or withdraw from the Statute. The parties’ ‘implicit will’ to allow it is far from clear, and there is no explicit formula in the Statute itself. Applying the general rules, the view that States may not unilaterally and automatically withdraw from or denounce the Statute (the two expressions are used interchangeably here) is a tenable one. In that case, an attempt to do so would have to be accepted by the collective body of continuing parties to the Statute,36 or, at least, it would be necessary that none of them objected. Otherwise the withdrawal would be invalid, and arguments based on it would fail. Overall, the better view is perhaps still to allow a denunciation on the basis of ‘implicit will’, but having effect only for non-Members of the UN. Member States cannot denounce the Statute while remaining parties to the UN Charter. Only if they withdraw from the latter they will also withdraw from the former. However that may be, the application by analogy of the ‘implicit will’ to permit withdrawal from the Charter must in any event be allowed in one particular situation. At the San Francisco Conference, it was accepted that any State could withdraw from the United Nations if the Charter were to be amended or revised and the State declared itself unable to accept the resulting modifications to the UN’s constitution. It is possible to conclude, on a similar basis, that if the Statute were amended or revised by a two-thirds majority under the same conditions, a State declaring itself unable to accept the changes would be in a position to withdraw from the Statute itself.37 (ii) The second question that arises is whether, if a State ceases to be a member of the United Nations by withdrawing from or denouncing the Charter, it thereby ceases to be a party to the ICJ Statute as an integral part of the Charter under Article 92, ratification of the latter amounting ipso facto to ratification of the former as well (Article 93, § 1 of the Charter). In the days of the League of Nations, this was not the position: the signature Protocol of 16 December 1920, relating to the PCIJ Statute, was ratified separately from the Covenant of the League itself. There was thus no reason for withdrawal from the Covenant to automatically entail withdrawal from the Statute. And, in fact, various States that retired 36   That is the general principle under the law of treaties, already accepted by Hudson, above n 6, 128: ‘the general principle would seem to be that in the absence of a provision authorizing it a denunciation of an international instrument can be effected only with the assent of all the parties to the instrument’. 37   Rosenne, above n 31, 277.

92  THE TEXTS GOVERNING THE COURT’S ACTIVITIES

from the League declared their express wish to continue participating in the PCIJ Statute. Such statements did not constitute the legal mechanism by virtue of which they continued to participate, but were merely declarative, made ex abundante cautela. This was the case of Chile in 1938 and of Hungary and Peru in 1939. Japan’s position, after its withdrawal from the League, was not so clear, but there is no reason to think that it detracts from the above principle.38 Nowadays, the legal position is different. The ICJ Statute is an integral part of the Charter; as we have already seen; ratification of or adherence to the latter includes the former. Certainly, one might argue that, unless the State in question explicitly indicates its wish to withdraw from both Charter and Statute, it should be presumed that its withdrawal from the former is not intended to include the latter.39 Yet, even if one entirely accepts this interpretation, and the reasons on which it is based, the argument still runs up against an insurmountable technical obstacle, namely that Member States ratify only the Charter. They do not ratify the Statute separately, but only by implication, as an integral part of the Charter. Withdrawal from, or denunciation of, the Charter thus leaves them with no subsisting legal tie to the Statute. If they want to continue as parties to the Statute, such States ought to say so explicitly at the time of withdrawing from the Charter, by adhering to the Statute. If they make a declaration that they wish to remain bound by the Statute that might perhaps constitute a sufficient implied ratification. Unlike in the days of the PCIJ, such a declaration would be not only declarative, but also constitutive. In light of this analysis, it would be preferable, from a technical point of view, for States ratifying or adhering to the Charter also to ratify or adhere to the Statute, by means of a separate legal instrument. If that were the practice, denunciation of the Charter would not have the unsatisfactory result of involving an eo ipso denunciation of the Statute. (iii) Can a Member State of the United Nations denounce or withdraw from the Statute without renouncing membership of the UN itself? As we have seen, that is legally impossible: the Statute is an integral part of the Charter, and ratification of (or adherence to) the Charter ipso facto extends to the latter (Article 93, § 1 of the Charter). It is possible to be a party to the Statute without being a Member of the United Nations, but not vice-versa. To sum up, the UN view is that every one of its Members must recognise the Court, in the public interest of the international community of Member States. Every Member State must participate in both the UN’s political and judicial aspects, and no Member can sever the two. (iv) A related problem should be mentioned, albeit only briefly. What, as regards the Statute, and the provisions of the Charter relating to the ICJ, is the effect of a suspension of rights under Article 5 of the Charter, on the legal position of the State being sanctioned?40 Article 5 provides that: A Member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of mem  Ibid, 129.   The argument could be put forward on several counts. First: denunciation of a treaty containing no clause for the purpose is a grave and exceptional act which cannot be presumed without a clear expression of will; the facts should therefore be interpreted in dubio mitius. Second: the Statute remains, technically, a separate treaty from the Charter, and can operate perfectly well vis-à-vis a non-Member. Third: the Court is not only the principal judicial organ of the UN, but also the principal judicial organ of international law generally. It is difficult to see why a State which no longer wishes to be a member of the UN politically, should necessarily no longer wish to be a party to the technical and jurisdictional machinery. It should surely be presumed that denunciation of the Charter does not also cover the Statute, unless an express statement or request to that effect is included. 40   Not very clear, and probably diverging from the views expressed here, see Rosenne, above n 31, 277. 38 39



CONSTITUTIVE TEXTS 93

bership by the General Assembly upon the recommendation of the Security Council. The exercise of these rights and privileges may be restored by the Security Council.41

The better interpretation is that such a suspension of rights, constituting a political sanction, relates, given its purpose, to political rights and not to rights relating to the Court. When parties are before the ICJ, legal inequalities between them are outlawed. Article 35, paragraph 2 of the Statute42 restates, albeit in another context, the fundamental importance of the principle of equality, which is one of the most important principles applied by the Court in the course of its activities.43 A State which has been suspended from the enjoyment of its political rights thus remains able to bring and defend cases before the Court; and the execution of the Court’s judgments must be pursued by the Security Council without any discrimination. However, the question whether the Security Council can, by a binding resolution, prohibit a State from seising the Court, should be examined separately.44 e)  Participation in the Statute by States which are not UN Members The Court is not only the principal legal organ of the UN, but also the main legal organ of public international law generally. Hence its role in the resolution of legal disputes. In this way, the Court underpins one of the UN’s principal objectives, leading in turn to better relations between States, to the development of the role of law in international affairs, and to the maintenance of peace. For these reasons it was agreed that the Court’s jurisdiction, so beneficial to the international community, should not be open solely to UN Member States. The more it was also made accessible to non-Members, the greater the contribution that the UN would be able to make to the realisation of these high aims, reaching out, beyond its own membership, to the wider international community. In other words, the universal value of the UN’s aims dictated that it open the Court to non-Members. The PCIJ system already showed the way. The signature Protocol of 16 December 1920 was separate from the League’s Covenant. The community of States that were parties to the Statute was thus different from the membership of the League. With the coming of the ICJ and the Court’s transformation into the principal legal organ of the UN, doubts might have arisen as to the mutual independence of the two legal communities. However, the decision to maintain a degree of separation was confirmed by Article 93 of the Charter. Article 93, paragraph 1 provides as follows: ‘All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.’ There was no equivalent provision in the time of the PCIJ; no such community existed ipso jure. Article 93, paragraph 2 then goes on to establish the difference between the two communities: A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.45 41   On the meaning of this provision, see the commentaries on the Charter of B Simma (2002) and of Cot, Pellet and Forteau (2005), cited in the bibliography. 42   ‘The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.’ (italics added) 43  See below ch IX, section 1. 44   See below ch V, section 27. 45   For an analysis of this provision, cf K Oellers-Frahm, ‘Article 93’ in Zimmermann, Tomuschat and OellersFrahm, above n 3, 153 et seq.

94  THE TEXTS GOVERNING THE COURT’S ACTIVITIES

Although they are of course numerically preponderant, the Members of the United Nations are thus only one contingent in the overall composition of the community of States Parties to the Statute. States which are not Members of the UN can adhere to the Statute separately. Legally, participation in the Statute under Article 93, paragraph 1 trumps adherence to the Statute under paragraph 2. All UN Members are parties to the Statute by virtue of paragraph 1, not of paragraph 2. This matters, because the States that are parties to the Statute without being members of the UN are obliged to respect certain conditions laid down by the General Assembly at the time of their adherence to the Statute. These conditions, discussed below, become obsolete if and when the State concerned becomes a UN Member. But a State which is a party to the Statute without first having been a UN Member nevertheless continues to be a party to the instrument embodying the particular conditions in question, and that gives its legal position an element of continuity. At the same time, however, its legal position undergoes a kind of novation when the State becomes a UN Member. From that point onwards, it is in the ordinary position of a UN Member, and no longer in the same position as other non-Members which are parties to the Statute. The precise conditions under which third States can become parties to the Statute are determined, on a case-by-case basis, by the General Assembly, on the recommendation of the Security Council. Once they have been admitted to UN membership, such States enjoy, so far as concerns the Statute and their rights and obligations in relation to the Court, perfect equality with the other Members of the United Nations. Since 1946, five non-Members have been admitted to the Statute, namely Switzerland (1946), Liechtenstein (1949), San Marino (1953), Japan (1953) and Nauru (1987).46 All these States are now also UN Members. The Security Council, following its recommendation to the General Assembly, imposed three conditions for the admission of each of these States to the Statute. Since the conditions were the same each time, they may be considered archetypal, resulting from UN practice and consolidated by it. Legally, the Assembly and the Security Council would be entitled to modify the conditions for future adherence to the Statute by non-Members of the United Nations. They could, for example, increase the number of conditions. However, they are unlikely to depart from the existing precedent unless they have powerful reasons to do so. The next new party to the Statute may be Kosovo. What, then, are the conditions? They were fixed for the first time in General Assembly Resolution 91(I) of 1946, the new party to the Statute being at that time Switzerland. First, the State in question must become a party to the Statute and must unreservedly accept all its provisions. The instrument of adherence to the Statute must be deposited with the UN Secretary-General. The condition also applies to Members of the UN itself, but is implicit in the famous expression of Article 92 of the Charter, declaring the Statute an ‘integral part’ of the Charter. Second, the State concerned must signify its special accept­ ance of all obligations arising from Article 94 of the Charter as regards the execution of the Court’s judgments. This provision comprises two limbs. The first relates to the duty of disputing parties to comply with the Court’s decisions (Article 94, § 1); the second concerns the power of the UN Security Council to take cognisance of the non-execution of any such decision, and to take steps, if it so decides, to ensure that effect is given to the judgment in question (Article 94, § 2). At the time of the Swiss adherence to the Statute, it was accepted that the recognition of Article 94 of the Charter also necessarily implied   ICJ Yearbook 2006/2007, no 61, 107–108.

46



CONSTITUTIVE TEXTS 95

recognition of Articles 25 and 103, respectively relating to the undertaking to accept Security Council decisions (meaning those that the Council might make under Article 94, § 2), and to the primacy of obligations under the Charter over those arising under any other international agreement (applicable in these circumstances to decisions the Council might make under § 2). Third, the State in question has to promise to contribute to the expenses of the Court, on an equitable basis fixed at intervals by the General Assembly. It seemed inequitable that these expenses should be borne solely by UN Members, which would have meant that non-Members participated in the Statute, and perhaps indeed actually used the services of the Court, free of any contribution whatever. It seemed much fairer to require all States Parties to the Statute to pay a share of the Court’s operating costs. The amount to be contributed was fixed by the General Assembly as a function of the percentage which the States in question would have had to pay towards the expenses of the United Nations if they had been Members; that same percentage was applied mutatis mutandis to the expenses of the Court.47 In the 1950s, at a time when such non-Members were being admitted to participation in the Statute, the percentages were modest, below 1 per cent (in 1958, Switzerland paid 0.97 per cent, under General Assembly Resolution 1308 [XIII]). When these States became parties to the Charter itself, their legal standing vis-à-vis the Court changed, as explained above. Article 93, paragraph 1 of the Charter now applied to them, in lieu of Article 93, paragraph 2. The provisions applicable to States Parties to the Statute which are not UN Members show, above all, the scrupulous efforts made to ensure that they are placed on an equal legal footing with all other States. The applicable legal regime is set out in General Assembly Resolution 264 (III), adopted on 8 October 1948.48 The equal status of all parties to the Statute, whether or not UN Members, is manifest in the following contexts: (1) when candidates for judgeships on the Court are to be proposed, States which are not UN Members are in exactly the same position as the rest; (2) when the General Assembly elects judges to the Court, States which are not UN Members can participate on an equal footing; and (3) if a non-Member State gets into arrears of payment, equal to or greater than its contribution for the two preceding years, this right to participate in the election of judges is suspended unless the General Assembly otherwise decides, which might happen if, for example, the Assembly accepted that the failure to pay was due to conditions beyond the defaulting State’s control (by analogy with Article 19 of the Charter). States Parties to the Statute which are not Members of the UN can participate on a footing of equality in procedures to amend the Statute. The modalities for this are set out in General Assembly Resolution 2520 (XXIV),49 adopted on 4 December 1969 following a recommendation of the Security Council.

  Rosenne, above n 31, vol II (1997) 459.   ICJ Yearbook 2006–2007, no 61, 108. 49   The operative text is as follows: 47 48

‘(a) A State which is a party to the Statute of the International Court of Justice, but is not a Member of the United Nations, may participate in the General Assembly in regard to amendments to the Statute in the same manner as the Members of the United Nations; (b)  Amendments to the Statute of the International Court of Justice shall come into force for all States which are parties to the Statute when they have been adopted by a vote of two thirds of the States which are parties to the Statute and ratified in accordance with their respective constitutional processes by two thirds of the Sates which are parties to the Statute and in accordance with the provisions of Article 69 of the Statute and Article 108 of the Charter of the Untied Nations.’

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The conditions under which a State may be admitted to participate in the Statute can thus imply that, even before the applicant has requested membership of the United Nations itself, the General Assembly has to pronounce on the delicate question of whether it is, or is not, a ‘State’. Only States can become parties to the Statute. The assessment of whether or not an entity satisfies the criteria for statehood is carried out by applying the classic criteria of public international law: the existence of a territory, a population, a government and sovereignty. In controversial cases, the decision is more than just a mechanical exercise, involving, as it does, a certain margin of appreciation. However, the Assembly can also refuse permission to participate in the Statute for discretionary (and thus political) reasons. That being so, the Assembly could refuse, not only because in its judgment the applicant did not (or did not yet) possess the attributes of statehood, but also because the Assembly felt that it would not serve any sufficiently useful purpose, given the particular circumstances, to give the applicant access to the Court. In short, the problem of States Parties to the Statute who are not Members of the United Nations is no longer very topical, and therefore not of great importance. States which do not wish to be Members of the UN are not usually governed with the degree of openness that would be needed before they could agree to submit to an international jurisdiction. It is therefore only in quite specific and transient situations, such as that of Switzerland during the cold war, or those of micro-States wishing to become Members of the UN but who have long been denied the right to do so, or of new States still in a transitional phase (Kosovo, for example), that the legal possibility of participating only in the Statute in fact comes up.

2.  THE RULES: DERIVATIVE PROVISIONS

a)  What are the Rules? Under Article 30, paragraph 1 of the Statute: ‘The Court shall frame rules for carrying out its functions. In particular, it shall lay down rules of procedure.’ The rules set out in the Statute itself are rather summary, insufficiently detailed to govern the procedure of the Court. So it is necessary to flesh them out with supplemental rules that give concrete form to the general provisions in the Statute, at the same time developing the law where it contains lacunae. The constitutions of sovereign States tend to be designed in much the same way. They do not contain all the details of public and administrative law. They have to confine themselves to laying down broad orientations. Subsequently, ordinary legislation is enacted in an endeavour to cover all the consequential provisions necessary for the proper ordering of the State. The ‘lacunae’ in the ICJ Statute are particularly marked as regards procedural matters – how cases will unfold, the procedural steps required, the rules applicable to incidental procedures, the highly important question of preliminary objections to jurisdiction or admissibility, and the procedure as regards advisory opinions. All these subjects are dealt with in the Rules. Article 30, paragraph 1 of the Statute expressly recognises that the Statute itself is insufficient as regards procedure, inviting the Court, as it does, to frame rules ‘[i]n particular . . . rules of procedure’. The expression ‘in particular’ shows that establishing rules of procedure is only one aspect of the organisational powers devolved onto the Court itself. The scope of Article 30, paragraph 1 is thus quite general, giving the Court a series of autonomous rule-making powers.



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Proper and detailed rules are more important for a court of justice than for any other body or institution. It is true that, in the last resort, all international law dispute resolution mechanisms depend on the consent of the parties; but that does not make the Court free, having obtained such consent, to respond spontaneously whenever it considers it politically opportune to do so. As a legal jurisdiction, firmly tethered to the principles of the pre-eminence of law and equality between the parties, the Court regulates the details of its own procedure in order to respond properly to those principles. In doing so, it acts as the embodiment of the first principle, and out of natural concern for the second. It is also useful in a practical sense for the Court to make its own rules of functioning and procedure. Only the Court is fully conversant with the intricate practical requirements of the due administration of justice; the Court alone is in a position to adjust the rules in order to respond to the necessities of its day-to-day practice; and only the Court is in a position to react, in an adequate way, to the unfolding practical developments of daily life as they affect its practice and procedure. If all the detailed rules on the functioning of the Court had been included in the Statute, they would be virtually set in stone. The process of modifying the Statute is subject to rules so strict that to do so is nearly impossible. By delegating to the Court the task of drawing up its own procedural rules, so as to give the Statute concrete form through an exercise of legislative power that is unfettered except for the requirement that the Statute must not be contradicted, a remarkable degree of legal flexibility has been conferred upon the ICJ. This flexibility is made possible by the balance between the Statute, firmly representing the stability of the law, and the Rules, which are more flexible and potentially more dynamic. The need for flexibility was already accepted by the Committee of Jurists which drafted the PCIJ Statute. It was accepted that procedural questions should be left to be regulated by the Court, giving the latter considerable freedom of action. Since the days of the PCIJ,50 the Court has worked hard to fulfil these underlying requirements. The purpose of the ‘Rules of Court’ was, and is, to regulate the detailed procedure and organisation of the Court, in particular its relationship with litigants, giving the latter all the information they need to handle their cases. The first set of Rules was adopted on 24 March 1922,51 and they were subsequently revised in 1925, 1926 and 1927, and then again in 1931 (following the amendment of the Statute itself). A new set of Rules was adopted on 11 March 1936, following the entry into force of the amendments to the Statute. These new Rules were used as the template for drafting the first set of ICJ Rules, which was adopted on 6 May 1946. Since then, a number of changes of form and substance have been made.52 The Rules were amended to a significant degree in 1972, although, even then, the Court confined itself to the most urgent and immediately necessary changes. The amended Rules came into force on 1 September 1972.53 The work of revising the Rules more widely was then pursued, leading finally to the adoption of a new set on 14 April 1978.54 The general objective underlying the reforms of 1972/1978 was to make the Court a more attractive forum for States, by simplifying proceedings and speeding them up, for example, reducing the scope for ‘joining to the merits’ certain kinds of preliminary objection, and facilitating

  On the Rules of the PCIJ, see particularly, Hudson, above n 6, 270 et seq.   Some rules on the ‘legal practices of the Court’ had been separated out: ibid, 270–71. 52   ICJ Yearbook 1946/1947, 102–103. 53   ICJ Yearbook 1971/1972, 3 et seq. 54   ICJ Yearbook 1977/1978, 111 et seq., with a historical perspective. 50 51

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access to Chambers of the Court.55 A minor revision was adopted on 5 December 2000, in order to shorten certain kinds of interlocutory procedure, on preliminary objections (Rule 79) and on counterclaims (Rule 80).56 At the present time, the 1978 Rules are still in force. There are 109 Articles. The text is an impressive document; it is reproduced in Annex II to the present work. Given the scope of the Rules, it would obviously be inappropriate for this book to comment on them in detail, but various Rules are referred to as and when corresponding aspects of the Court’s procedure are examined in more detail. At this point, however, all that is required is a general overview of the Rules’ overall structure. −− The Preamble refers to Chapter XIV of the Charter and to the Statute of the Court (particularly Article 30) and introduces a rule of intertemporal law tied to the entry into force of the new Rules. −− Part I provides for the organisation of the Court: the judges (Article 1 et seq.); judges ad hoc (Articles 7–8); assessors (Article 9); the Presidency of the Court (Articles 10 et seq.); Chambers of the Court (Articles 15 et seq.); the internal functioning of the Court (Articles 19–21), dealing with matters such as quorum, judicial vacations and the deliberations of the judges. −− Part II deals with the Registry (Articles 22 et seq.). −− Part III provides for proceedings in contentious cases (Articles 30 et seq.), including communications with the Court and consultations (Articles 30–31); the composition of the Court for particular cases (Articles 32 et seq.); the institution and pursuit of proceedings (Articles 38 et seq.), in particular the written phase (Articles 44 et seq.) and the oral one (Articles 54 et seq.); incidental proceedings (Articles 73 et seq.), including prelim­ inary objections (Article 79), counterclaims (Article 80) and interventions (Articles 81 et seq.); special reference to the Court (Article 87) and discontinuance (Articles 88–89); procedures before Chambers (Articles 90 et seq.); judgments, interpretation and revision (Articles 94 et seq.); and modifications to the Rules proposed by the parties (Article 101). −− Part IV deals with advisory proceedings (Articles 102 et seq.). The revision and adoption of the new Rules in 1978 was a response both to the preoccupations of the moment, and also to more fundamental ones.57 After the 1966 decision in the South West Africa case had been very ill-received in the United Nations, plunging the Court into a serious crisis,58 a detailed effort was needed to reconcile the ICJ with a disaffected section of the international community, and to make the Court generally more attractive to States. Moreover the Barcelona Traction case (1962, fresh application 1970), like the South West Africa one (1962–66), had highlighted the complexity and slowness of the Court’s proceedings. This had finally resulted in the Court’s refusing to give judgment on the substantive issues because of the inadmissibility of the application (no locus standi). It   See text below.   ICJ Yearbook 2006/2007, no 61, 3. In this regard, see S Rosenne, ‘The International Court of Justice: Revision of Articles 79 and 80 of the Rules of Court’ (2001) 14 Leiden Journal of International Law 77 et seq. 57   On these new Rules, see E Jiménez de Aréchaga, ‘Amendments to the Rules of Procedure of the International Court of Justice’ (1973) 67 AJIL 1 et seq.; M Lachs, ‘Revised Procedure of the International Court of Justice’ in Essays H Panhuys (Alphen aan den Rijn, 1980) 21 et seq.; K Oellers-Frahm, ‘Die Verfahrensordnung des IGH vom 14 April 1978’ (1979/80) 18 AVR, 309 et seq.; H Thirlway, ‘Procedural Law and the International Court of Justice’, Essays RY Jennings (Cambridge, 1996) 389 et seq. See also, generally, H Thirlway, ‘Article 30’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 3, 481 et seq. For a commentary on these Rules, see in particular, G Guyomar, Commentaire du Règlement de la Cour internationale de Justice adopté le 14 avril 1978 (Paris, 1983). 58   See, eg G Fischer, ‘Les réactions devant l’arrêt de la ICJ concernant le Sud-Ouest Africain’ (1966) 12 AFDI 144 et seq. 55 56



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was possible to argue that the mountain had now brought forth its famous mouse, yielding a virtually nil result in return for so much effort and expense. It was thought that the Court’s procedures needed to be reconsidered, with a view to avoiding, so far as possible, similar future ‘misadventures’, so costly in time and effort, and so damaging to the Court’s image and prestige. The time was now therefore ripe for re-thinking the Rules. Furthermore, having lost the goodwill of its best clients, and having been deserted by them in consequence of its decision in the South West Africa case, the Court had time on its hands, and could now settle down to a careful revision of its Rules. In the 1970s, very few cases came before the Court, whether contentious or advisory. It might almost be said that the Court was killing time by using it to revise the Rules, in the process making active preparation for the better days that were to come. At a more fundamental level, three objectives drove the amendments: 1) to make it easier to bring cases before Chambers of the Court, especially Chambers set up under Article 26 § 2 of the Statute; 2) to simplify procedures, and speed them up so as, so far as possible, to reduce both delay and expense; 3) in the process, and this is true above all of the 1978 revision (compared with that of 1972), to restructure the Rules, so as to make them clearer and more logical, using better terminology.59

The emphasis on the Chambers was designed to attract to the Court States that had not previously brought cases to it; to permit the composition of a judicial bench on an ad hoc basis, comprising the judges preferred by the parties; and to speed proceedings up, thereby reducing some of the cumbersome characteristics of proceedings before the full Court. The fundamental aim, to simplify and speed up the Court’s procedures, was apparent well before the reforms relating to the Chambers, and underpinned the entire exercise. The Court hoped thereby to avoid some of the pitfalls it had encountered in the 1960s. Having sunk (albeit undeservedly) into a trough of the waves, it hoped, by this means, to lift itself out again. And indeed the wind changed rather swiftly. Starting at the end of the 1970s and in the early 1980s, major cases again began coming to the Court, including the Teheran Hostages crisis case (decided in 1980), and, in particular, the monumental Nicaragua case (decisions in 1984 and 1986).

b)  Peremptory Character and Modification of the Rules The Statute represents imperative international law, in the sense that there can be no derogation from it by agreement between particular litigants. Any agreement to do so, if not a nullity, as it would be in the case of a jus cogens rule of international public policy, would be pointless and unavailing in argument before the ICJ. Are the Rules of this same nature? It is important not to confuse this question (one of derogation) with the question of modifying the Rules. Obviously the Rules, like the Statute, can be modified. Modifications to the Statute must be carried out by the community of States that are parties to it. Modifications to the Rules can be made by the Court itself. Clearly, therefore, modifications to the Rules are much easier to make than changes to the Statute. Derogations, however, are not concerned with ‘legislative’ processes. They leave the Rules intact, as a collection of objective regulations, the intention being merely to set aside some of them, as between the parties,   Guyomar, above n 57, XIII (our translation).

59

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for the purposes of a particular matter. Can that be allowed? Can an agreement between the parties be permitted to set aside the application of one of the Rules, albeit without abrogating it generally, but purely for the purpose of a particular case the parties bring to the Court? Whereas the Statute represents imperative (or peremptory) law, with no possibility of modifying it or dispensing with it, the Rules represent imperative law in relation to which such a possibility does exist. Even so, both texts are peremptory. The Statute is binding both on the Court and on parties before it. It permits neither derogations by the parties nor modifications by the Court. The Rules remain imperative for the parties, who cannot derogate from them by private agreement. Such agreements do not bind the Court, which, in most cases, is obliged to disregard them. However, Article 101 of the 1978 Rules60 does permit the parties, as regards certain provisions of the Rules,61 to invite the Court to modify them, or not to apply them, in the particular case in question. It is, however, the Court, and the Court alone, which decides. It retains exclusive mastery over its own Rules, and for this reason they remain peremptory for the parties, whose private agreement does not, in itself, create the desired derogation. All their agreement does is to invite the Court to make the decision, the Court alone having power to modify its rules of procedure (and even then, the Court will be unable to do so if the modification is inconsistent with the Statute). The difference between the Statute and the Rules is not, therefore, a matter of whether they are imperative. There is no doubt about that in either case. The true difference resides in the possibility of requesting the Court to modify (or disapply) one or more rules for the purposes of the particular case, in the simple hope that the Court will be willing to do so. As a matter of legal analysis, therefore, such a request does not lead to any derogation, although it may result in a modification or dispensation by order of the Court. The Rules themselves (Article 101) provide merely that the parties can ask the Court for such an order. Such situations must, however, be distinguished from other ones. Some provisions of the Rules refer to agreements between parties. Such agreements thereby take on a particular ‘constitutive’ value for the purposes of the rule in question. In other words, alongside the peremptory rules, from which there can be no derogations, the Rules also recognise rules of jus dispositivum, rules which allow the parties not directly to derogate from them, but to make private agreements which have effects under the rule in question. Such rules thus take on the character of non-peremptory norms, variable according to the agreement of the parties: the general rule of the lex specialis applies. This is the case, for example, under Article 46 of the Rules, which deals with the number and order of written pleadings. It provides as follows: 1. In a case begun by the notification of a special agreement, the number and order of the pleadings shall be governed by the provisions of the agreement, unless the Court, after ascertaining the views of the parties, decides otherwise. 2.  If the special agreement contains no such provision, and if the parties have not subsequently agreed on the number and order of pleadings, they shall each file a Memorial and Counter-memorial, within the same time limits. The Court shall not authorize the presentation of Replies unless it finds them to be necessary. (italics added) 60   This provision is as follows: ‘The parties to a case may jointly propose particular modifications or additions to the rules contained in the present Part (with the exception of Articles 93 to 97 inclusive), which may be applied by the Court or by a Chamber if the Court or the Chamber considers them appropriate in the circumstances of the case.’ See Guyomar, above n 57, 635 et seq. 61   Arts 30–92 and 98–101.



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The Rules refer these matters to the joint wishes of the parties; paragraph 2 is a very pure example of dispositive (or non-peremptory) law, applying only in default of contrary agreement between the parties to the case.62 The Rules are binding not only on the parties but also, to some extent, on the Court itself. Although the Court is always free to amend the Rules, it would not do so as regards a case already pending before it. There is, however, one obvious exception to this rule against retroactivity, namely if the parties agree to apply the new rule rather than the old one, or if, even, it was they who requested the modification in the first place (under Rule 101), and they declare they are willing to accept it with immediate effect. Finally, it should be noted that a Chamber of the Court does not have the power to make changes to the Rules. Consequently it cannot accept a proposal to that effect if one is made to it by the parties under Rule 101; acceptance would involve an encroachment upon the rights of the plenary Court. Within the limits contemplated by Rule 101, a Chamber might, however, be able to give a dispensation, provided the dispensation applied only to the particular case before it.63 As regards questions relating to the due administration of justice or to the Court’s judicial integrity and image, it is, however, possible to argue that every such decision ought to be referred by the Chamber back to the plenum. The general rule is that each organ decides on its own competence, and that the organ seised of the main dispute must also decide incidental questions. On that basis, it would be for the Chamber itself to decide the point. If the proposed dispensation is from an important rule, or is, for some reason, of a delicate nature, the Chamber will do well to consult the plenum. It is also possible for the full Court to decide such questions as preliminary matters, if the request is made by the parties at the outset of the proceedings, before the Chamber is yet constituted.

c)  Subordination to the Statute64 The Rules of Court are subordinate to the Statute, because the Rules are made under a derived power. The Rules cannot therefore contain provisions which are at odds with the Statute itself. There is a clear hierarchy between the two texts: lex inferior legi superiori derogare non potest. For the same reason, parties certainly cannot propose, under Article 101, any modification to the Rules which would be contrary to the Statute.65 However, although that is a clear and simple point, it nevertheless gives rise to a whole series of delicate legal problems. In the first place, Article 30 of the Statute gives the Court express power to ‘frame rules for carrying out its functions’ and in particular ‘rules of procedure’. There is no limitation on the subject matter of such rules. They must, obviously, be made for the two purposes specifically mentioned in Article 30, but the first purpose – ‘for carrying out its functions’ – is so widely expressed as to cover more or less all the rules necessary for the functioning 62   Rules 42, § 2, and 46 are further examples of this legal phenomenon. The parties can be represented by counsel or advocates (Rule 58, § 2). The hearing will not be public if the parties so request (Rule 59). The decision on this is left to the parties. 63   See P Palchetti, ‘Article 26’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 3, 453. 64   See particularly, the excellent commentary of Thirlway, ‘Article 30’ above n 57, 482 et seq. 65   This aspect of things was already perceived and addressed in the time of the PCIJ: B Schenk Graf von Stauffenberg, Statut et Règlement de la Cour permanente de Justice internationale. Eléments d’interprétation (Berlin, 1934).

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of the Court. The text of the Rules bears witness to this. It includes provisions on almost all imaginable subjects, from the organisation of the Court to the incidental elements of its procedures. That is not to say, however, that the Court’s power in this regard is an unlimited one. The Rules could not, for example, contain rules for the election of the judges, since the procedures for their nomination and election are outside the Court’s competence and are not ‘rules for carrying out its functions’. Secondly, the question arises whether the Court’s power to make rules is exhaustively stated in Article 30 of the Statute, or to what extent the Court also has an implied power to make certain types of rule. The question has two facets, one relating to the instrument (that is, to the power to adopt texts other than the Rules), the other relating to the content (that is, to the possible power to go beyond Article 30). The primary purpose of the Rules is to give concrete expression to the Statute. The point of this is to follow up the general provisions of the Statute by making the detailed rules which are, by implication, required so that the Court has smoothly running procedures. It is rather as if the Statute were just an initial monochrome sketch, one that needed to be progressively coloured in so that, in the end, one had a picture that is properly true to life. Can the Court also ‘colour in’ lacunae in the Statute? To do so would be more than a matter of giving the Statute concrete expression: it would be a matter of completing it. If the Court could do that, it would be more than an exercise in subsidiary legislation under the strict control of the Statute: it would be a complementary exercise, which would involve taking certain liberties with the founding text. The very word ‘lacuna’ is open to a number of different interpretations, which can be relatively strict, or relatively broad. On the one hand, the Court might ‘complete’ the Statute by referring to an existing rule: in that case, the ‘complementary’ aspect would be subsumed into the act of giving the Statute concrete expression, the existing rule in question being developed in a more or less limited way. On the other hand, the Court might also ‘complete’ the Statute in a wider sense, without reference to any very precise rule. In that case, the complementary exercise would become an autonomous one, the Court taking to itself the role of a primary legislator. Rules, ranking (from the material point of view) equally with the Statute itself, might thus be adopted, not by following the procedures for amending the Statute, but by the Court alone, operating at a regulatory level. This would give the Court a very wide field of potential ‘primary’ legislation. Is that permissible under Article 30 of the Statute? Does the Court have implied rulemaking powers going beyond that Article? (i) As to the purpose of the Rules, the Court seems to suggest that the legal answers vary according to the nature of the questions. As regards ‘procedure’, that is, the concrete functioning of the Court in relation to a dispute or consultative case, the Court seems to accept that it has power to regulate any question that arises, according to what the Court perceives as necessary for the due administration of justice. This would amount to a kind of ‘natural domain’, within which the Court could make rules on an apparently unlimited basis. The legal justification would be found either in Article 30 or in an implied power. Thus, in the case of the Military and paramilitary activities in and against Nicaragua (Merits, 1986), the Court stated that: 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



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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’.66

Here the Court was invoking Article 30, and it was the more natural for it to do so since that Article specifically refers the making of rules of procedure to the regulatory power of the Court. However the Court’s additional words ‘and generally’ may refer to an implied power whose source is to be found, not in Article 30, but elsewhere. The Court’s practice provides no very clear answers to the other relevant questions. Individual judges have taken a variety of different positions. For some, the Court is obliged to exercise its legislative function in strict adherence to the terms of the Statute;67 for others, the Court has a wide discretionary power, going beyond the provisions of the Statute, but nevertheless limited by its letter and spirit.68 So, for some, the Court’s powers are limited by Article 30, and, for others, it has wider implied powers.69 It is difficult to offer a definitive view on this point. Indeed, it is impossible to reduce it to abstract formulae and propositions, since the only reasonable approach to the question is a graduated one. It must therefore be emphasised that the Court does have the legislative powers necessary for the effective carrying out of the judicial functions assigned to it. Those legislative powers arise both under Article 30 of the Statute, and from the general principle applicable to all international bodies, namely the principle of implied powers. As regards any question going beyond the carrying out of the Court’s functions and the regulation of procedure in the strict sense (both expressly covered by Article 30), those powers must be exercised with restraint, somewhere in the median zone between strict adherence to the Statute and the free right to legislate praeter legem. The essential criterion for this question of developing the statutory provisions seems to be the ‘necessity’ of the rule, that is, its necessity for the due administration of justice. The Court has to assess that in the evolving context of circumstantial reality. In the legal context, ‘necessity’ is both a relative and a human concept, far removed from the inexorable and inflexible necessities of the natural world. Since, in the present context, we are not dealing with physical laws governing the movement of the spheres, the word ‘necessary’ has a certain tendency to take on the flavour of words such as ‘useful’ and ‘appropriate’. (ii)  So far as concerns the legal instruments the Court has the right to adopt, it has long been accepted that the Court is not limited to issuing a set of Rules. It has very ample implied powers, going well beyond Article 30 of the Statute. Since 1931, in the days of the PCIJ, that Court has adopted ‘rules of judicial practice’70 that are separate from the Rules, and managed in a very flexible way. As early as 1946, the ICJ adopted ‘Instructions for the Registry’, and then, in 1947, ‘Staff Regulations for the Registry’ (based on Article 18 of the 1946 Rules). These were administrative texts, not adopted under Article 30 of the Statute (which is essentially concerned with judicial functions), but under the Court’s implied 66   ICJ Reports 1986, 29, § 38, in which the Court referred to the PCIJ’s Mavrommatis decision (PCIJ, Series A, no 2, 16). 67   cf eg the Individual Opinion of Judge Bustamante y Rivero in the Barcelona Traction case, ICJ Reports 1964, 78. 68   cf eg the Individual Opinion of Judge Ajibola, in the Genocide Convention case, ICJ Reports 1993 397. 69   On the difficulty that can arise in deciding whether there is a lacuna and the extent of the Court’s powers, see the dissenting Opinion of Judge Shahabuddeen in the case of the Land, island and maritime boundary dispute (El Salvador/Honduras, Request to intervene Order), ICJ Reports 1990, 18 et seq., 24–25. 70   Hudson, above n 6, 270.

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powers. The ICJ has also adopted and amended the PCIJ’s rules on judicial practice. The most recent version dates from 12 April 1976 (Resolution concerning the Internal Judicial Practice of the Court). That Resolution is addressed not to parties before the Court, but to the judges themselves, and to the Registry. It was adopted under the Court’s implied powers. It is doubtful whether States involved in cases can invoke these rules, since the rules are not addressed to them. Finally, mention must also be made of the Court’s ‘Practice Directions’ which are nowadays the most important source of procedural rules not governed by the Statute. Given the purpose of the Practice Directions, the Court’s authority to issue them is directly derived from Article 30 of the Statute as well as from its implied powers.71 Practice Directions are considered in the next section. A small number of provisions in the Rules give rise to real or apparent problems of compatibility with the Statute. This is not the place to examine those issues more closely. It is sufficient to mention the most important cases:72 Rule 17, paragraph 2, on the parties’ influence over the composition of ad hoc Chambers;73 and Rule 81, paragraph 2(c) on requests to intervene under Article 62 of the Statute.74 In any case, a general rule of interpretation applies, namely that the two texts should not be presumed to be incompatible, especially if the consequence would be to invalidate the ‘derived’ rule. The texts should be interpreted so as to be in conformity with each other, following the maxim in dubio pro validitate.

71   Art 48 of the Statute has also been invoked, but that is unnecessary since Art 30 was perfectly sufficient: see Thirlway, ‘Article 30’above n 57, 485, fn 19. 72   For further details, see the excellent analysis by Thirlway, ibid, 489 et seq. 73   Under the 1978 Rules, Art 17, § 2, the President consults the wishes of the parties as to the composition of the Chamber they desire. Art 26, § 2 of the Statute provides for them to be consulted only as to the number of judges who are to sit. This sparked a lively controversy. The dominant school of thought, and the Court itself, resolved the problem as follows: the parties can propose a particular composition of the Chamber, but it is for the Court alone to make the actual decision. It will not depart from the parties’ wishes unless the interests of judicial integrity require it. There is no reason to refuse to listen to the parties’ wishes, if it is no more than a matter of their informing the Court without binding it. A minority was opposed to this view, particularly including Judge Shahabuddeen (Dissenting opinion in the case of the Land, island and maritime frontier dispute (El Salvador/ Honduras, Request to intervene Order), ICJ, Reports 1990, 18 et seq., 22–49, 53–54). According to Judge Shahabuddeen, the Statute does not allow the parties any influence over the choice of judges to sit in a Chamber. He considered any such interference deleterious to the Court’s integrity, arguing that de facto it amounted to constraint. Chambers would then tend to be composed with an eye to regional and political considerations, thus putting at risk the authority of the Court itself, since they are organs of it. The better view seems to be represented by the majority’s more flexible solution: the integrity of the Court is sufficiently protected by reserving to itself complete freedom of decision. One does have to accept, however, that the Court ought to be highly vigilant in this regard. On the whole question, see R Kolb, Théorie du ius cogens international (Paris, 2001) 354 et seq., and below (re Art 9 of the Statute). 74   Rule 81 reads as follows: ‘1. An application for permission to intervene under the terms of Article 62 of the Statute, signed in the manner provided for in Article 28, paragraph 3 of these Rules, shall be filed as soon as possible, and not later than the closure of the written proceedings. In exceptional circumstances, an application submitted at a later stage may however be admitted. 2. The application shall state the name of an agent. It shall specify the case to which it relates, and shall set out: (a) the interest of a legal nature which the State applying to intervene considers may be affected by the decision in that case; (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.’ The problem was whether an intervention under Art 62 presupposes a head of jurisdiction between the disputing parties and the intervening party. The Statute does not say so explicitly; to interpret the Rules to mean that such a head of jurisdiction is required would have meant, in some cases, contradicting the Statute, certainly if it were necessary to interpret the Statute as not requiring such a head of jurisdiction. The Rules, however, nowhere require such a head of jurisdiction; all they provide is that, if such a head of jurisdiction exists, the Court should be informed. There is thus no incompatibility between the two texts.



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3.  SUBORDINATE TEXTS: PRACTICE DIRECTIONS

a)  Reasons for Issuing Practice Directions The Court has been issuing Practice Directions since 2001. The legal basis for this is to be found in Article 30 of the Statute, not in the Rules: indeed, the Rules themselves make no provision for Practice Directions. In the hierarchy of regulation, the Practice Directions rank below the Rules. This means they must be compatible with the Rules and not attempt to alter them. The relationship between Practice Directions and Rules is thus similar to the relationship between the Rules themselves and the Statute. There is a triple hierarchy of sources: Statute – Rules – Practice Directions. The Rules themselves, however, can be modified by the Court unilaterally. So, if the Court wished to issue a Practice Direction that was incompatible with the Rules, it could alter them first. The position as regards the Statute is of course different, because the Court has no power to modify it. Consequently Practice Directions must conform strictly to the Statute. To the extent that any Practice Direction were inconsistent with the Statute, it would be a nullity and could not be applied. The use of Practice Directions tends also to show that the expression ‘rules’ in Article 30 of the Statute should not be interpreted too strictly. Legally, all it means is any rule giving concrete effect to the Statute as regards the functioning of the Court. It is therefore unnecessary for the Court to base its power to issue Practice Directions on an implied power going beyond the scope of Article 30. In any event, this is a purely theoretical question, and has no practical consequences. The reasons for issuing Practice Directions are different from those which caused the Court, back in the 1970s, to revise its Rules, but similar as regards the results. The 1990s saw a steady growth of the Court’s role. Its contentious workload mushroomed, some of the cases being particularly long and complicated: one thinks particularly of the various cases arising from the dissolution of the former Yugoslavia. These developments brought the Court face to face with a congested timetable and consequent delays. Furthermore, given budgetary constraints that were not likely to be relaxed, there could be no question of engaging additional personnel. For these reasons, both the Court and its users became ever more conscious of the consequences of the Court’s growing role. As in 1972/1978, therefore, the Court decided that it would be useful to issue rules, the main purpose of which would be to speed up and simplify its procedures. However, the underlying reason was a new one. Back in 1972/1978, the ICJ was moved to action by widespread dissatisfaction with the Court itself, and by its own lack of business. In 2001 it was the opposite, the sheer burden of the caseload, that was slowing down the Court’s work. Why, then, did not the Court simply amend the Rules, as it had done in the past? The answer is that the Court did not think it necessary. The Rules were already a well-ordered text which had proved itself over the years. To load that text with practical directions of a very specific kind might have been unwise, upsetting the well-balanced economy of the whole set of Rules. Also, modification of the Rules is a more formal process than the adoption, amendment or withdrawal of a Practice Direction. By instituting the use of Practice Directions, as a third ‘derived’ source of rules, the Court gave itself the greatest possible room for future maneouvre.

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b)  Content of Practice Directions The initial Practice Directions were issued on 31 October 2001, and entered into force immediately.75 Essentially they required the parties in cases before the Court to append to their written pleadings only strictly selected documents and to provide it with any available translation (even a partial one only) of those pleadings, into the other official language of the Court. It insists on the succinct character that oral arguments must retain. It wishes to discourage the practice of simultaneous filing of pleadings in cases brought by special agreement (that is, by two States jointly)76

It finally states that, with the aim of expediting the consideration of preliminary objections on grounds of lack of jurisdiction or admissibility raised by one party, the time-limit for the presentation by the other party of its written observations shall generally not exceed four months.77 In 2004 and 2006, some of the existing Practice Directions were modified, and new ones introduced. The 2004 modifications were made for the following reasons: The new measures essentially concern the internal functioning of the Court and provide practical means for increasing the number of decisions that can be given each year, in particular reducing the duration of the period between the closure of the written proceedings and the opening of the oral ones. So the four month time limit given to a party to present its observations and arguments relating to preliminary objections will run from the lodging of the preliminary objections; agents convened by the President of the Court with a view to ascertaining the parties’ views on a procedural decision that is to be taken must meet him as soon as possible; the cases presented by the parties at hearings on requests for interim measures must be confined to questions concerning the conditions to be fulfilled for the purposes of the measures; finally, the written presentations and other documents presented by non governmental organisations on their own initiative, in the context of an advisory opinion, must not be considered part of the dossier in the case, and will be treated as readily available publications.78 (our translation)

The changes made in 200679 were essentially designed to counteract certain tendencies that were particularly noticeable in the Genocide case (Bosnia-Herzegovina v Serbia & Montenegro), but were also features of other cases. Above all, parties’ lawyers had an annoying tendency to submit voluminous pleadings and supporting documents for the attention of the judges, and also a tendency to the late lodging with the Court of new documents. Practice Direction IX, paragraph 2 reminds all concerned that any party wishing to produce new documents after the close of the written phase of the proceedings, including during the oral phase, must comply with Rules 56, paragraphs (1) and (2). Practice Direction IX, paragraph 2 informs parties about their right to cite, during the oral phase, the words of documents available in a ‘publication readily available’, in conformity with Rule 56(4). Practice Direction IX also provides certain indications as to the practice of creating ‘judges’ folders’, for the convenience of members of the Court.80   See Annex III.   Author’s comment: where the documents are lodged simultaneously, neither side being aware of its opponent’s arguments, further documents will be necessary to enable them to take a position on the opposing points. 77   ICJ Press Release 2001/32. 78   C Dominicé, ‘La jurisprudence de la Cour internationale de Justice en 2004’, RSDIE, vol 15, (2005) 81. 79   As regards 2006, Practice Directions IX and XI were amended, and new Practice Directions IX(2) and IX(3) were issued. See Press Communiqué 2006/43 and its annexure, available on the Court’s website. 80   These new or amended texts are reproduced in annexure to the article. 75 76



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A fresh revision of the Practice Directions was prepared in 2009. The years 2008 and 2009 saw a large number of cases, with the accompanying documents, hearings and meetings for deliberation. An ever-growing problem was presented by large bodies of documentation, and by long hearings in which the parties repeated themselves, often showing a tendency to ramble. The Court could see that it was mired in a morass of documents and speeches, much of it of little value to the judges in making their decisions. For this reason, it modified Practice Directions III and VI, as well as issuing a new one, numbered XIII.81 In January 2009, the Court modified Practice Direction III, asking parties not only to ‘append to their pleadings only strictly selected documents’, but also to ‘keep the written pleadings as concise as possible, in a manner compatible with the full presentation of their positions’. As to Practice Direction VI, the Court reaffirmed the need, as set out in Rule 60, paragraph 1, to be vigilant about keeping oral pleadings as brief as possible. More specifically, it asked parties to give priority, in the first round of oral pleadings, to ‘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, as well as on those which each party wishes to emphasize by way of winding up its arguments’. The new Practice Direction XIII laid down the way in which parties’ views on procedural questions could be sounded under Rule 31. It provided: 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.

Clearly, the essential purpose of these reforms was to simplify and accelerate proceedings before the Court. It is difficult to overstress the serious problems that arise from the (still too widespread) illusion that a plethora of written and oral pleadings makes one’s case stronger. The opposite is the case: it too easily becomes a matter of being unable to see the wood for the trees. In time, even the best of judges gets tired, and consequently their receptivity, and perhaps some of their sympathy too, is eventually bound to fade. The impression made by the most impressive branch is undermined by a mess of feeble lesser growths, whose shadows end up starving the finest branches of light and nutrients. More often than not, the judges are obliged to fritter away much of their attention on a series of points that are of little or no real relevance to their decision. Indeed, even arguments so implausible as to be almost discreditable are sometimes lobbed at the Court, all bundled up with the more meritorious elements of the party’s case. The resulting danger is that the treatment the judges are able to give to the truly important arguments will suffer, at least at times. The Latin imperatoria brevitas encapsulates precious advice, stressing, by implication, the importance of high calibre thinking and tactical wisdom. The Court is therefore to be praised for emphasising this point, albeit doing so in a relatively veiled way. On 11th April 2013, the ICJ issued PD IX quater with regard to the presentation of audiovisual or photographic material at the hearings, which was not previously included in the case-file of written proceedings. The timing and conditions for such presentation are therein set out in five paragraphs. The Court thereby seeks to put a check on a practice which was running the risk of becoming somewhat disorderly.   Press Communiqué 2009/8 of 30 January 2009.

81

IV Composition of the Court 1.  THE BENCH

The ICJ Bench comprises 15 judges. Article 3, paragraph 1 of the Statute provides: ‘The Court shall consist of fifteen members, no two of whom may be nationals of the same State.’ Article 3, paragraph 2 provides for the situation in which a judge has more than one nationality (a problem that until now has had little practical impact): A person who for the purposes of membership in the Court could be regarded as a national of more than one state shall be deemed to be a national of the one in which he ordinarily exercises civil and political rights.

Article 2 lays down the conditions that must be satisfied by candidates for judgeships, and the individual qualities required of them: ‘The Court shall be composed of a body of independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial office, or are jurisconsults of recognized competence in international law.

Finally, Article 9 adds a consideration of public policy, essential to the legitimacy of a World Court: ‘At every election, the electors shall bear in mind not only that the persons to be elected should individually possess the qualifications required, but also that in the body as a whole the representation of the main forms of civilisation and of the principal legal systems of the world should be assured.’

a)  Fifteen Judges1 The ICJ normally sits in plenary session (Article 25 § 1 of the Statute). This means that the full bench of 15 judges is the body handling both contentious matters and advisory opinion cases. The number of judges sitting on any particular case can, however, vary, from nine – the quorum – to 17 when the full bench is sitting with two additional judges ad hoc. Chambers of the Court can, however, be created under Article 26 of the Statute. The number 15 is a throwback to the abortive attempt at the 1907 Hague Peace Conference to create an international court. The proposal then was for a court of 15 judges.2 The figure was taken up by the Committee of Jurists when the PCIJ Statute was drawn up, but what then emerged was a bench of 11 full judges and four supplemental ones. It was only with the 1   See M Aznar-Gómez, ‘Article 3’ in A Zimmermann, C Tomuschat and K Oellers-Frahm, The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 219 et seq. 2   N Politis, La justice internationale (Paris, 1924) 131.

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1936 Revision of the PCIJ Statute that the number of full judges was increased to 15, the supplemental posts being abolished. When the ICJ itself was created, the figure came under renewed scrutiny.3 There were proposals to reduce the number of judges to nine, but in the end the number 15 was retained. The main arguments for this were as follows: (1) the pull of tradition and familiarity (or inertia), or in other words, the desire for continuity with the PCIJ; (2) the need to provide adequate representation for a variety of civilisations and legal systems (which implied more than nine judges); and (3) the more developed arrangements for creating Chambers of the Court, resulting in a need to draw on a more extensive reservoir of judicial capacity. It was, moreover, obvious that, whether the Court had nine or 15 judges, it was better to have an odd number, so as to avoid possible deadlock. Equally obviously, however, the danger of deadlock could not be entirely avoided, given that the Court could, on any particular occasion, comprise a different number of judges, most likely between 13 and 17. As we shall see, where the Bench is divided equally, the President has a casting vote (Article 55 § 2 of the Statute).

b)  Nationalities of the Judges As already noted, Article 3 paragraph 2 of the Statute provides that, if a judge has more than one nationality, the one taken into account is the one in respect of which that judge exercises civil and political rights. The PCIJ Statute, in Article 3, contained no restriction on the judges’ nationalities, and so, in those days, it was possible to imagine a Bench including more than one judge of the same nationality. However, in practical terms that situation was never likely to arise. The electors were already obliged, under Article 9 of the PCIJ Statute, to ensure an equitable representation of the major forms of civilisation and legal systems in the world. So it was difficult to imagine any single State ‘enjoying a multiplicity of seats’ on the Bench; and in fact, no State ever did so. At the time of the travaux préparatoires on the new ICJ Statute, the limitation to one judge per State was expressly written in.4 However this, in turn, raised the question of how to determine a particular judge’s nationality, especially if it was disputed. On the one hand, it was accepted that the members of the various Commonwealth States would not be considered nationals of the same State. This was obviously reasonable, given the very widespread independence of the contemporary Commonwealth States. It was also accepted that, in cases of double or multiple nationality, the governing nationality would be the one in respect of which the judge exercised his civil and political rights. This was to be an ‘effectiveness’ (or relative effectiveness) criterion of nationality in disputed cases. It had already been adopted in 1930 in Article 4 of the Hague Convention on the Conflict of Nationality Laws, made under the auspices of the League of Nations, in relation to international claims.5 It would be confirmed by the ICJ itself, in a rather different context, in the Nottebohm case (1955).6 It should be noted, however, that effective nationality was tied, in the 1930 Convention, to residence or any other criterion establishing the closest connection to one State rather than another. The position decided upon in the Nottebohm case was much the same, the most effective societal ties   UNCIO, vol XIV, especially 189 et seq. and 821 et seq.   UNCIO, vol XIV, 824, vol XIII, 136. 5   cf L Oppenheim (RY Jennings and A Watts ed), International Law, 9th edn, vol I (London, 1992) 516. 6   ICJ Reports 1955, 16 et seq. See now Art 7 of the projected ILC Articles on diplomatic protection (2006). 3 4



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being identified in the light of a panoply of varying criteria. The Statute itself, by contrast, identifies a single determining criterion, namely the State in which the judge exercises his civil and political rights. This regime is thus based on a particular kind of link. If a Judge exercised political and civil rights in several different States, the Statute would not cover his case. In such circumstances, the judge would probably be obliged to choose the State he considered himself to belong to for the purposes of Article 3 of the Statute. Finally, it should be emphasised that the frequent selection of judges from the lists of members of the Permanent Court of Arbitration has, until now, made it possible to avoid real problems. It is unlikely that serious problems will arise in the future, but if they did, they would doubtless be resolved with the speed and flexibility appropriate to their relatively minor importance. c)  Judges from States that are not UN Members Judges can be chosen from the nationals of any State that is a party to the Statute, irrespective of whether that State is or is not a UN Member. In formal legal terms, despite the fact that the Court is the principal judicial organ of the United Nations, the Bench represents the community of Statute States, not the community of Charter States. Article 4 paragraph 3 of the Statute provides as follows: The conditions under which a state which is a party to the present Statute but is not a Member of the United Nations may participate in electing the members of the Court shall, in the absence of a special agreement, be laid down by the General Assembly upon recommendation of the Security Council.

This provision concerns the right to vote in elections, but its corollary is the right to be elected. Paragraph 1 of Security Council Resolution 58 (1948), confirmed by General Assembly Resolution 264(III), provides that, in the context of this provision of the Statute, every non-Member State of the UN that is a party to the Statute must be placed on an equal footing with the UN Members as regards the provisions of the Statute governing the nomination of candidates, and their election by the General Assembly. Since the Members of the UN can both nominate and elect candidates, non-Members that are on an equal footing can do the same. For fairly obvious reasons, the prevailing practice has never given effect to the legal possibility, under the texts, of electing members of the Court from States which are not UN Members. The Court is the principal judicial organ of the UN, whose membership comprises a growing number of States. The number of seats on the Court remains limited to 15. It was always obvious, from a political point of view, that, in any election, preference would be given to Member States, and that seats would not be ‘awarded to’ third States, however meritorious their claims. d)  Personal Qualities of the Judges Article 2 of the Statute7 requires judges to possess certain individual qualities. They must be such persons as will ensure: (1) the independence of the Court (implying that individual   See M Aznar-Gómez, ‘Article 2’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 1, 205 et seq.

7

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judges should have personalities inclined to strengthen or guarantee that independence); (2) the highest moral standards (to ensure the integrity of the Bench and their own personal loyalty to the Court); and (3) the general characteristics appropriate for holders of the highest judicial office in their respective countries, or of the office of a highly reputed legal adviser on international law. The assessment of conditions (1) and (2) is in large measure a subjective and individual matter; the third condition must, however, be assessed by more objective criteria. The Statute covers only, on the one hand, national judges at a high level, or legal practitioners, and on the other, legal advisers (especially to Ministries of Foreign Affairs) or university professors. The practice has always been to treat high level diplomats as eligible, whether they have, in the course of their careers, served their own countries or an international organisation. The largest group of the judges has always been the one comprising academics, legal advisers and professors (between 40 and 50 per cent.). Legal practitioners (including judges) and diplomats have been represented approximately equally on the Bench, with slightly over 25 per cent each. Since the 1960s, and from time to time even before then, there has been a tendency to lament the politicisation of the selection process.8 To the extent that the complaint is justified, the politicisation has been caused by the ‘globalisation’ of the Court. In the 1940s and 1950s, the Bench was dominated by western jurists, reflecting the character of the United Nations at that time. Then the developing countries emerged onto the scene, claiming a role commensurate not only with their sheer numbers, but also with the ambitions to which their numbers entitled them. Gradually, the Court adjusted to this situation, as time went by reflecting the independence of numerous new States with greater adequacy. It would not be fair to blame the electors of those days for the fact that, in the early stages, it was not easy to identify and integrate into the Court jurists from developing countries with the highest professional qualifications. Often, the colonising powers had not permitted the training of suitable local elites. Faculties of law were rare in colonial territories. So there were sometimes complaints, to the effect that apparently less qualified judges were being elected to replace western jurists who, at least on paper, had superior qualifications. However understandable, such complaints were not really justified. Although it might fairly be regretted that better qualified candidates were not always elected, it was essential for the Court to represent the international community in its entirety. That is vital for its credibility and legitimacy. A Euro-American court could not, in modern times, be considered a global body. Also, it was only fair and right that jurists from developing countries should have their voices heard, and emerge gradually into greater prominence. If it had been otherwise, the Court would have lost its universality and would not have been respected as fully ‘international’. In short, the qualitative loss during a transitory phase, the loss itself being only a relative one, was counterbalanced by other, and more fundamental, considerations. There is consequently no reason to condemn this politicisation of the election process. However, the exercise of personal influence is quite another matter, as indeed is the settling of accounts. The failure to re-elect judges such as P Spender (Australia) and GG Fitzmaurice (UK), resulting from a desire to punish them for the ‘unsatisfactory’ decision in the 1966 South-West Africa decision, can only be regretted. These were judges whose independence and integrity were undisputedly of the highest. The desire to make room on 8   In particular the non-re-election of that extremely eminent professor of international law, Charles de Visscher. cf M Dubisson, La Cour internationale de Justice (Paris, 1964) 38.



THE BENCH 113

the Bench for judges from developing countries9 does do a little to palliate the unpleasant taste left in the mouth by the punishment meted out to these judges for the way they had exercised their jurisdiction – punishment they suffered despite the fact that all judges are under an obligation to remain entirely free from every type of political influence. One should not overlook the requirement that judges must be adequately conversant with public international law. This criterion is applied in a flexible way, since judges coming to The Hague from some countries’ supreme courts are not always ready-made specialists in the subject. Indeed, the same can be said of diplomats, and of professors of private international law. The admixture into the Court of such ‘interdisciplinary’ expertise is not necessarily a bad thing. It has made the Court, as a whole, more aware than it would otherwise have been of diplomatic and other aspects of its caseload. For the same reasons, the international private law specialisation of some members is particularly welcome. Eminent lawyers, mature in years, are well placed to rapidly acquire and expand the knowledge and understanding of public international law that is required of them. It is sufficient that they have an adequate initial knowledge of the subject, and what is ‘adequate’ for these purposes needs to be judged in the light of the circumstances. Having said that, however, it is clearly out of the question for judges in this category to be in the majority; it is essential that the electors continue to ensure the existence of a substantial majority of public international law specialists on the ICJ Bench. So far, at least, no real problem has arisen in this respect.

e)  Representation of the Main Forms of Civilisation and the Principal Legal Systems of the World Article 9 of the Statute,10 dating from the time of the PCIJ, is extremely important both to the ICJ’s legitimacy and to its practical functioning: At every election, the electors shall bear in mind not only that the persons to be elected should individually possess the qualifications required, but also that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured.

The Court cannot be truly global, and thus universally acceptable, unless it is genuinely representative of the international community in its full extent. To feel attached to an institution and really understand it, you have to engage with it properly; otherwise such understanding as you do have is that of a stranger, distant and in a sense ‘imposed’. ‘No taxation without representation’; ‘no jurisdiction without representation’, the analogy is a perfectly valid one. At the same time, Article 9 also contributes, at a more practical level, to ensuring the Court’s proper functioning. Article 38 paragraph 1(c) enables the Court to apply the ‘general principles of law recognised by civilized nations’ throughout the world. Obviously the Court cannot be expected to engage in detailed studies of comparative law. However if the Bench is composed of jurists brought together from all parts of the globe, it will have no great difficulty in identifying and following the principles and rules common to the various legal systems. 9   See E McWhinney, ‘“Internationalizing” the International Court: The Quest for Ethno-Cultural and LegalSystemic Representativeness’ in Essays TO Elias, vol I (Dordrecht, 1992) 277 et seq. 10   See Fassbender, ‘Article 9’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 1, 261 et seq.

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The requirement of fair representation gives rise to a significant number of legal questions. c First, from a historical perspective, it is important to note the considerable amount of conceptual evolution that has occurred. In 1920, when the Statute of the PCIJ was drawn up, the representation of the various civilisations was still centred on the western world. The principal legal systems of the ‘civilised nations’ were the traditions of the common law countries and the civil law ones. Other systems were ignored, as not properly ‘civilised’. Vestiges of the old idea of the three types of humanity – the civilised, the barbarous and the savage – continued, in one way or another, to influence the minds even of progressive jurists.11 With the coming of the ICJ, however, a more universal approach was adopted. The Islamic and Asian systems of law were better represented from the very outset.12 They were progressively joined by the African countries, with their mixtures of local and colonial traditions. Progressively, therefore, the Court has become much more truly universal. The following is the ‘compositional key’ to the modern distribution of seats on the Court:13 three judges from the Americas, one always being from the USA, the two others normally both from Latin America, occasionally with a Canadian;14 three Africans, always including one from a North African Arab State; three Asians, always including one from the Peoples’ Republic of China and another from an Arab State; four from western Europe, always one each from France and the United Kingdom; and two from Eastern Europe, one always from the USSR/Russia. This overall balance continues to give a certain degree of over-­ representation to the European continent, as a kind of homage to the historic cradle of modern public international law. One element in it is that the permanent members of the Security Council each always have a judge on the Court.15 That is an unwritten rule of the Charter and the Statute. The distribution of seats on the Court corresponds to the regional groupings within the UN itself.16 In short, the most noticeable development since 1946 has been the reduction in the number of European judges, in favour of other parts of the world. The Court is also less homogenous than it used to be, both culturally and legally. The resulting gains in depth, pluralism and universalism are, however, counter-balanced by the greater difficulty in finding a common legal idiom, and in reconciling the particular views of so heterogeneous a Bench, on which the various shades of opinion co-exist in a kind of suspension, each with a critical eye on the others. Second, what criteria could possibly be applied in order to decide on the ‘main forms of civilization’ and the ‘principal legal systems of the world’? The question is all the more thorny since Article 9 of the Statute depends on criteria that are not only qualitative but also relative: the ‘main’ forms, the ‘principal’ systems. This paves the way for assessments that are, at least partially, subjective. Also, should account be taken of culturally distinct 11   See, eg H Bonfils, Manuel de droit international public, 3rd edn (Paris, 1901) 572. The distinction was very topical in the 19th century, and was presented in its final form by J Lorimer, The Institutes of the Law of Nations, vol I (Edinburgh, 1883) 101. 12   The States of this civilisation have insisted on this since 1945: UNCIO, vol XIV 379. 13   This method of allocating seats on the Court has been applied in elections since 1969, cf Fassbender, ‘Article 9’, above n 10, 271–72. 14   As was the case of Judge Read in the early years of the ICJ. As to the judges’ biographies, see the work of Eyffinger, cited in the bibliography. 15   See H Kelsen, The Law of the United Nations (London, 1951) 473. See also G Abi-Saab, ‘Substantive Requirements, or The Portrait of the Jurist as an International Judge’ in UNITAR (ed), Increasing Effectiveness of the International Court of Justice (The Hague, 1997) 166 et seq. 16   I Winkelmann, ‘Groups and Groupings in the UN’ in H Volger (ed), A Concise Encyclopedia of the UN (The Hague, 2002) 158–61 (and 2nd edn, Leiden, 2009).



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sub-regions within each group of civilisations? In that respect, the very word ‘civilization’, used in Article 9, is at least partially the reflection of a now out-of-date world-view. Nowadays, the conceptual heart of the rule would be formulated in different language, probably using the formula ‘equitable geographical distribution’.17 It is also noteworthy that Article 9 states only that the ‘electors shall bear in mind’ the criteria when electing members of the Court. In other words, there is no obligation of result, and the electoral body is also entitled to take account of other considerations, including ties with regional sub-groupings. To sum up, then, the ‘compositional key’, as described above, answers the requirements of Article 9 in a way that is both practical and flexible. Third, Article 9 represents an objective norm of international public policy (or ordre public). In that respect it may be contrasted with Article 2, which focuses on the judges’ qualities. Obviously those elected must possess high moral, technical and professional qualities. The assessment of those qualities is, however, in large measure a subjective exercise, both in the sense that one is assessing the individual personality of a particular candidate, and in the sense that it leaves the electors a certain margin of appreciation. Although it is so important, the norm in Article 2 thus gives rise to a situation which, at bottom, is fairly discretionary. But that is not enough. In order to be credible, the world’s Court must also reflect the various forms of civilisation and legal system. It translates into a value fundamental to the organisation of the Court, one that the electors cannot dispense with. Article 9 is based on the typically twentieth-century idea that public international law should result from, and reflect, the international community as a whole, that is, a crystallisation of the visions, needs and aspirations of all its component parts.18 This idea was translated into the language of the Statute, with a view to making the Court itself an agent of this community-minded international law. In this way, Article 9 implies that it is necessary to design an objective method of evaluating the Court’s composition – a kind of grid that will yield the concrete results required by the Article. The compositional key mentioned above is the response to this need. It must, however, be realised that the elite from which the international judges are recruited is much more homogenous, in terms of education and culture, than the civilisations from which the individual judges are drawn. Fourth, there is the question of numbers. Why 15 judges? Should there now not be more, to better reflect the rapid expansion of the international community? The PCIJ started out with 11 judges, the ICJ with 15. That was already an increase of four, designed precisely to give effect to Article 9 of the Statute. In any decision-making body, as shown by the experience of both the League of Nations Council and the UN Security Council, a reduced number of members tends to increase the speed and effectiveness of action, whereas a higher number tends to increase the body’s representivity and legitimacy. A small body is normally effective but not very representative; a large one the reverse. The dilemma is age-old. The best compromise for the ICJ seems to have been to have 15 judges. Nowadays it seems unthinkable to reduce the number, but, at the same time, to increase it seems too adventurous and rather out of place. With 15 members, the Court is already functioning at the limit of its practical capacity. To have more judges would be to endanger the functioning of the Court. There would be a risk that, with a view to avoiding such difficulties, litigants might increasingly avoid the full plenum by taking their cases to Chambers of the Court 17   See Art 2, § 2 of the Statute of the International Tribunal on the Law of the Sea, or Art 36, § 8 of the Statute of the International Criminal Court. 18   Abi-Saab, above n 15, 171.

116  COMPOSITION OF THE COURT

under Article 26. The paradox would then be that the five judges of a Chamber would necessarily be far less representative than the present (or any enlarged) plenary bench. Fifth, Article 9 must also apply, by analogy, to the composition of Chambers under Article 26, paragraph 1 of the Statute. Such Chambers are set up by the Court itself, to deal with certain types of disputes, for example those concerned with labour questions, with communications, or with the environment. The electors contemplated by Article 9 are, in this case, the judges of the full Court: it is they who set the Chamber up. When they decide on its composition, reflecting by analogy on Articles 2 and 9, the judges of the plenum will naturally take into account both the particular expertise of specific judges in the fields concerned, and the equitable geographical representation of the various civilisations and legal systems of the world. This requirement does not, however, apply to Chambers established under the following paragraph of the Statute (Article 26, § 2). Paragraph 2 is concerned with Chambers set up to decide particular cases, in response to the wishes of the parties. The reason the parties prefer their cases to be sent to a Chamber is presumably to reduce the delays, expense and general vagaries of plenary proceedings. That is allowed by the Statute. The plenary Court’s practice shows it reserving to itself the right to select the judges of all such Chambers. This results from interpreting the sentence: ‘The number of judges to constitute such a chamber shall be determined by the Court with the approval of the parties.’ The word ‘number’ has been extended to the ‘identity’ of the judges, so that the Court decides both. However, the Court is obliged to act in this context by consent of the parties. It has interpreted that requirement to mean that, in selecting the judges, the parties propose, the Court disposes. Theoretically, the Court could choose judges other than those proposed to it. In reality it has never done so, conscious of the fact that, if it did, it would simply make it likely that the parties would take their case to arbitration rather than submit tamely to a rebuff of that kind. In practice, this means that the parties can choose to have their case decided by ‘regionalist’ Chambers, predominantly drawn, say, from Africa and developing countries as in the case of the Burkina Faso/Mali boundary dispute, 1986), or from Europe and North America, as in the Gulf of Maine Chamber in 1984. Some fairly sharp exchanges took place at the time of the Gulf of Maine case – which incidentally was the first one in which a Chamber was con­ stituted under Article 26, paragraph 2. It was widely felt difficult to swallow what many saw as a distortion, both of Article 9 and of the very character of the ICJ itself. The Court could have decided that it must remain true to its universal character, that the decisions of Chambers have, in formal terms, the same authority as those of the full Court and are cited as decisions of the Court itself, and that consequently the parties’ wishes must yield to the ‘public policy’ requirements of Article 9 as regards the representative composition of the Chamber. Otherwise they must just take their cases to arbitration instead. Against all this, it was argued that it would be a pity for the ICJ to lose, to ad hoc arbitration, cases which it was very much the Court’s role to decide in accordance with its own jurisprudence, and that it sufficient for the Court to have the definitive right to consider the composition of the Chamber, that right being exercisable at the time the Chamber was constituted. So the Court could always refuse to accept the parties’ proposals, if it thought they amounted to a manifest abuse. In the event, the flexibility of the latter view prevailed. As mentioned above, the question arose when the Court came to make the order constituting the Chamber for the Gulf of Maine case.19 The USA and Canada had stipulated in 19  Case of the Delimitation of the maritime boundary in the area of the Gulf of Maine (Constitution of a Chamber) ICJ Reports 1982, 3 et seq.



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their amended special agreement, that, if the Court did not comply with their wishes as to the composition of the Chamber and the timetable, they would withdraw their case from the ICJ and take it to arbitration along lines already agreed.20 Some members of the Court doubted whether attitudes of the kind demonstrated by the special agreement were compatible with the Statute and the Rules.21 The majority, however, skirting that question quite lightly, constituted the Chamber comprising the judges the parties had requested.22 Judge Oda, although voting with the majority, nevertheless regretted that the Court did not make a greater show of its independence by explicitly stating that it approved the composition of the Chamber for reasons proper to the Court.23 Judges Morozov and El-Khani went much further than Judge Oda, vigorously dissociating themselves from the majority and taking the view that the parties had tried to impose on the Court their own preference as to judges, by means which amounted to an undue attempt to limit the Court’s freedom of choice.24 In their view, the two States’ clear intention was to deprive the Court of any autonomous judgment in the composition of the Chamber, and amounted to an attempted diktat, backed up by an ultimatum as to the timetable and the consequences for the subsequent course of the action. Leading commentators were very interested in this question, following it closely but coming to differing conclusions. For some (the majority), the influence that the two States were trying to exercise over the Court was not excessive. All they had done was to announce that they might exercise a right which, on any view, they would enjoy anyway, namely to withdraw the case from the Court if they did not approve of the Chamber’s composition. While taking due account of this risk, which exists whenever the Court decides the composition of a Chamber, the Court retained a truly unfettered freedom of choice.25 Others (the 20   Ibid, 6, 12. For the text of the special agreement, Art III, cf ILM, vol 20, 1981, 1377–78. For the history of the matter, cf G Guyomar, ‘La constitution au sein de la Cour internationale de Justice d’une chambre chargée de régler le différend de frontières maritimes entre les Etats-Unis et le Canada’, (1981) 27 AFDI 213 et seq. 21   Case on the Delimitation of the maritime boundary in the area of the Gulf of Maine (Constitution of a Chamber) ICJ Reports 1982, 4. 22   Ibid, 9. 23   Ibid, 10. 24   Ibid, 11 (Morozov); ibid, 12–13 (El-Khani). Judge Morozov (ibid, 11) explained his view as follows: ‘[I]n substance, the Special Agreement between the United States of America and Canada clearly took as point of departure the erroneous presumption that, contrary to Article 26, paragraph 2, of the Statute, the Parties who present a request to create a Chamber for consideration of a particular case may not merely choose what would be the number of the members of the Chamber, but also formally decide and propose the names of the judges who should be elected by secret ballot, and even present these proposals to the Court in the form of some kind of ‘ultimatum’ . . . In this situation, the sovereign right of the Court to carry out the election independently of the wishes of the Parties, by secret ballot in accordance with the provisions of the Statute and Rules of Court, becomes in substance meaningless.’ Judge El-Khani (ibid, 12) put it as follows: ‘I find that the imposition of an unduly close time-limit for the Chamber’s formation and of a particular composition renders the Court no longer master of its own acts, deprives it of its freedom of choice and is an obstacle to the proper administration of justice. Furthermore it diminishes the prestige of the Court and is harmful to its dignity as the principal judicial organ of the United Nations. It results in its regionalization by depriving it of its basic and essential characteristic of universality and produces the indirect result of there being more than one judge of the same nationality acting in the name of the Court, one in the Chamber and the other in the Court, which does not correspond to the Statute. On these grounds I find that this ought not to constitute a precedent, as it would be a dangerous course to follow in the future.’ 25   cf eg E Zoller, ‘La première constitution d’une chambre spéciale par la Cour internationale de Justice: Observations sur l’Ordonnance du 20 janvier 1982’ (1982) 86 RGDIP 321–22: a special agreement between the parties (and the treaty provisions on which it is founded) is permissible, provided that the Court remains, even in such a case, formally free not to comply with the parties’ wishes. See also C Escobar Hernandez, ‘Las salas ad hoc del Tribunal internacional de justicia’ in Essays M Diez de Velasco (Madrid, 1993) 296. SM Schwebel, ‘Ad Hoc Chambers of the International Court of Justice’ (1987) 81 AJIL 845. R Ostrihansky, ‘Chambers of the International Court of Justice’ (1988) 37 ICLQ 1988, 43–44. GD Nied, ‘International Adjudication: Settlement of the United

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minority), such as E McWhinney, found the dissenting judges’ opinions persuasive. They emphasised, amongst other things (as indeed Judge El-Khani had done26), the weakening of the Court’s prestige that the majority decision implied.27 Obviously there are sound arguments each way. From a pragmatic standpoint, the Court was doubtless justified in avoiding a procedural incident the very first time it constituted a Chamber, since this might have done considerable damage to the entire future of the system of Chambers. The overall conclusion has to be that the Court consciously made a deliberate choice of judicial policy.

f)  Ad hoc Judges When two disputing States appear before the Court, there are three possibilities: the Court may already include (1) a judge from each nationality; (2) a judge of only one of them; or (3) a judge from neither. In cases (1) and (3), the question is whether it would be useful to have the nations in question represented on the Court. In case (2) there is the additional question of achieving equality between the parties. It was decided that in case (1) the two ‘national’ judges should continue to sit: it was not necessary for them to withdraw. In cases (2) and (3), the decision was to allow the party without a ‘national’ judge to choose one. Such a judge would sit only on the case in question, and his functions would cease when the Court gave its final judgment. Such a person is called an ad hoc judge, meaning that he is a judge for a specific case only. As a result of adding judges ad hoc, the Bench hearing any particular case can rise to a maximum of 17 (15 elected judges and two nominated ad hoc). To this effect, Article 31 of the Statute provides: 1. Judges of the nationality of each of the parties shall retain their right to sit in the case before the Court. 2. If the Court includes upon the Bench a judge of the nationality of one of the parties, any other party may choose a person to sit as judge. Such person shall be chosen preferably from among those persons who have been nominated as candidates as provided in Articles 4 and 5. 3. If the Court includes upon the Bench no judge of the nationality of the parties, each of these parties may proceed to choose a judge as provided in paragraph 2 of this Article.

States – Canada Maritime Boundary Dispute’ (1982) 23 Harvard International Law Journal 142–43, argued (despite certain reservations) for the legitimacy of the parties’ attitude, on the basis of the mistaken idea that the travaux préparatoires had envisaged giving unlimited power to the parties as to the constitution of Chambers. K Oellers-Frahm, ‘Die Bildung einer ad-hoc Kammer des internationalen Gerichtshofes gemäss Artikel 26, Abs. 2 des Statuts’ (1983) 21 AVR 320–21 accepted that parties have exercised massive influence (massiver Einfluss) over the Court’s freedom of choice and timing, and that this gives rise to problems (bedenkliches Vorgehen). However, she concluded that the majority of the Court were right not to allow these questions to become stumbling blocks, since the parties do, in any event, have an essential role in the composition of Chambers (ibid, 321). In the view of DM McRae, ‘Adjudication of the Maritime Boundary in the Gulf of Maine’ in CYIL, vol 17 (1979) 297, the parties’ agreement is legitimate because they have the right of discontinuance. 26   ICJ Reports 1982, 12. 27   E McWhinney, ‘Special Chambers within the International Court of Justice: The Preliminary, Procedural Aspect of the Gulf of Maine Case’ (1985) 12 Syracuse Journal of International Law and Commerce 1 et seq., especially 8–10. cf also G Schwarzenberger, International Law – As Applied by International Courts and Tribunals, vol IV, International Judicial Law (London, 1986) 397: ‘The constituent instruments in the Gulf of Maine case spell out the risks for maintaining the Court’s prestige and dignity that may result from giving to potential parties influence on the composition of ad hoc Chambers beyond the strict limits laid down in the Court’s Statute. Furthermore, was the effort worth the frictions caused inside the Court?’; also ibid, 398.



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Why should the Bench include judges who are appointed only for particular cases? Why not require ‘national’ judges simply to withdraw, rather than nominate additional ones? And why allow the nomination of two judges ad hoc in cases where the composition of the Bench already ensures equality between the parties? The reasons arise from the particular nature of international justice. It is often concerned with highly complex matters, sometimes diplomatically sensitive ones, and often ones that are subjectively important to the parties. If, for example, a boundary is to be fixed, the fate of whole communities can be at stake. Sensitive issues of particular kinds can also arise within the context of wider disputes: if, for example, the internal laws of a State have to be considered, and will indirectly be adjudicated upon. In such circumstances, it was considered that there was a dual need to ensure that, amongst the judges hearing the case, there would be one with the particular expertise either of a ‘national’ judge or at least a person in whom the State in question had confidence. The Court itself would benefit, because it would be able to profit, when it came to its private deliberations, from the particular knowledge of the judge in question. In appropriate cases he would be able to explain to his colleagues important aspects of the internal law in question, and also the points that were diplomatically sensitive for his country. These are far from negligible matters. They increase the chances that justice will be done, or at least that the decision will be based on full information. But the Court itself is not the only gainer since, at the same time, the State concerned is reassured. It can be certain that its problems, interests and wishes will be better understood by the Court. This leads to greater trust, and thus to a greater propensity to submit to the Court’s judgment. The Court is no longer seen as simply a set of foreign judges. A litigating party sees itself not only as a party, but as a participant in the process of judging. The psychological importance of these factors cannot be overestimated in international relations, where prestige and respect play a part that is as important as it is difficult to measure. These aspects may, in themselves, seem anodyne or even out of place, at least to casual observers who are relatively unfamiliar with the more arcane elements of international affairs. But these matters are important underpinnings to the composition of the Court. At all events, that was the view of those who drafted the Statute.28 For these reasons, the criticisms of the institution of ad hoc judges that were voiced in the early years of the PCIJ (accusing the institution of being a backward-looking relic of the world of arbitration, defiling the otherwise pristine temple of modern international justice) did not prevail. E Borel took the view that, in a court of justice, it is not the people that judge, but the institution, that is, the personalities of the judges being subsumed into the collectivity of the Court; by contrast, in arbitration, where the arbitrators are chosen by the parties, justice remains a personal matter, since there is nothing to eliminate an arbitrator’s dependence on the State that nominates him.29 In this scheme of thought, ad hoc judges are an echo of the old arbitral justice. Their image is that of decision-makers who are not entirely impartial, and are the servants of the parties. This concession to the past was expected to decline with the passing of time. At any rate, President Loder, a judge of the PCIJ, took that view. On 13 December 1920, in a speech to the Assembly of the League of 28  ‘[T]here is a practical interest in making it possible for the national judges to listen, right up to the last moment, to the arguments of their countries and to contribute, in the drafting of the judgment, an understanding of the concern for forms that is responsive to national susceptibilities’ (our translation): Politis, above n 2, 165. See also, MO Hudson, The Permanent Court of International Justice, 1920–1924. A Treatise, (New York, 1943) 354–55. 29   E Borel, Les problèmes actuels dans le domaine du développement de la justice internationale, (Zurich/Leipzig, 1928) 13–14.

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Nations, he emphasised that the institution of the ad hoc judges was a temporary concession, one which would decline as the Court gradually consolidated its position.30 It should be noted that criticisms of the institution have never in fact been completely silenced.31 The relative partiality of ad hoc judges, who despite their oath of impartiality have natural leanings in favour of their own States’ cases,32 is, however, more than compensated by the technical and diplomatic advantages. The relative ‘arbitralisation’ of the Court, which in other contexts would be retrograde, is, in this particular regard, easier to accept since the truth is that ad hoc judges almost never have a decisive influence on the outcome of a case.33 Qualities required of ad hoc judges. To be eligible to be a judge ad hoc, a person must have the same qualities as are required of any elected judge of the Court, namely independence and impartiality. No-one should be appointed a judge ad hoc who has already worked on the dispute prior to the start of the case, nor indeed if there would be any other reason for the person to recuse himself from sitting. While he is sitting, a judge ad hoc has a status analogous to that of the other judges. Article 31, paragraph 6 of the Statute deals with these two aspects as follows: Judges chosen as laid down in paragraphs 2, 3 and 4 of this Article [judges ad hoc] shall fulfil the conditions required by Articles 2, 17 paragraph 2, 20 and 24 of the present Statute. They shall take part in the decision on terms of complete equality with their colleagues.

Article 31, paragraph 2 provides that the person selected ‘shall be chosen preferably from among those persons who have been nominated as candidates as provided in Articles 4 and 5’, that is in the national groups of the Permanent Court of Arbitration. This is not, however, an obligation of the States. They, for their part, are free to choose as they think fit. In fact, States have, in the great majority of cases, exercised their right of nomination without   Cited in Politis, above n 2, 165.   eg Dubisson, above n 8, 65: ‘Defined in this way, the institution of the ad hoc judge cannot fail to give rise to numerous criticisms. At the level of principle, if one considers the Court to be a truly impartial judicial body, deciding independently of the judges who compose it, the presence of an ad hoc judge is not absolutely necessary . . . Furthermore, to the extent that one accepts, as until now experience has demonstrated, that an ad hoc judge will most often pronounce in favour of the arguments put forward by his country, he is, although operating within the bosom of the Court, no more than an additional advocate for that country . . . In truth, the institution of the judge ad hoc reflects, at least in part, the regrettable but marked reserve of certain States towards a body composed of members who are independent and thus outside their control, and which gives judgment on the basis of existing law.’ (our translation) See also the insights of DD Nserenko, ‘The International Court of Justice, Impartiality and Judges ad hoc’ (1973) 13 Indian Journal of International Law 207 et seq.; JL Renault, Le juge ad hoc au sein de la Cour internationale de Justice, (thesis, University of Orléans, 1973); SM Schwebel, ‘National Judges and Judges ad hoc’ in Essays N Valticos (Paris, 1999) 319 et seq.; H Thierry, ‘Au sujet du juge ad hoc’ in Essays JM Ruda (The Hague, 2000) 285 et seq. 32   One must, however, place in context this ‘partiality’ on the part of the judges, whether national or other. Statistical studies show the judges voting in what is, overall, a relatively unaligned way, even if one has to qualify that statement as regards judges ad hoc. There have been cases in which national judges have voted against their State’s case, eg Judge J Basdevant (French, and not an ad hoc judge) in the case on the Minquiers & Ecréhous (1953) and his daughter, S Bastid (French), as judge ad hoc in the case on the request for revision and interpretation of the Judgment of 24 February 1982 in the case on the Continental Shelf (Tunisia/Libya, 1985). As to the judges’ own attitudes, see in particular the studies by LV Prott, Der internationale Richter im Spannungsfeld der Kulturen: eine rechtssoziologische Studie über die Elemente des Selbstverständnisses des internationalen Gerichtshofs (Berlin, 1975); LV Prott, The Latent Power of Culture and the International Judge (Abingdon, 1979). See also H Mosler, ‘Nationale Richter in internationalen Gerichten’ in Essays R Bernhardt (Berlin, 1995) 713 et seq. As to the PCIJ, see Hudson, above n 28, 355 et seq. 33   An exception may arise if there is an equal division of votes or if the majority comprises only one vote. This was the position in, eg, the Lotus case of 1927 (PCIJ), when the decision was made by the President’s casting vote. The Turkish judge ad hoc thus had a decisive voice. However, if the French judge had been obliged to recuse himself, the same result would have been reached. cf Hudson, above n 28, 360. 30 31



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giving any great weight to the national groups’ suggestion. In the days of the PCIJ it was the same.34 One problem that has emerged in the last 15 years is that of States wanting to nominate, as ad hoc judges, people who have been counsel and advocates pleading cases frequently before the Court. This development poses problems, in the sense that it involves a certain tendency towards confusion between Bench and Bar, those pleading one case sitting as judges in the next. The development creates connections which might have damaging effects on the image of the ICJ’s judicial independence. Suspicions might arise about undue influence or inappropriate bargains. The position is similar if the same judge ad hoc sits on more than one case at a time. Both circumstances endanger the good and due administration of justice, and the necessary trust and confidence of litigants. For this reason, Practice Direction VII (2002) provides as follows: The Court considers 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. Accordingly parties, when choosing a judge ad hoc pursuant to Article 31 of the Statute and Article 35 of the Rules of Court, 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. 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 Court does not have the power to use Practice Directions as a means of imposing binding legal obligations on States. For that reason, the text takes an exhortatory tone, stipulating that when they nominate an ad hoc judge, parties ‘should refrain from nominating’ certain persons. If, nevertheless, a State were to nominate a judge ad hoc who was incompatible with Practice Direction VII, what legal sanctions would be available to the Court? Could it refuse the nomination, even though the Practice Direction does not impose a true legal obligation? From a legal point of view, the answer to this question is not clear. Either the Court might accept the parties’ choice whilst insisting on the text of the provision and making clear its disapproval; or perhaps, in light of the particular circumstances of the case, the Court might conclude that the nomination was incompatible with the principle of the proper administration of justice, of which the Court alone is the guardian, and might consequently refuse, on that legal basis, to accept the nomination. This question can be answered only by events, and by the Court’s decision if and when such a case does come up. In any event, it seems that, from the legal perspective, there is nothing to stop the Court refusing to accept a nomination on the basis mentioned. The need to behave prudently when dealing with ‘difficult’ litigants (an expression which applies to most States), does suggest, however, that the circumstances ought to be quite grave before the Court takes this course. Judges ad hoc make the same solemn declaration with regard to their judicial functions as their elected colleagues (Article 8 of the Rules, read in conjunction with Article 4). It is solemnly pronounced in open Court at the beginning of the oral hearings. In the order of precedence, judges ad hoc come after the elected judges, ranking inter se according to their age.35 This means that, at the end of the deliberation process, it is they who vote first.   Ibid, 363.   Rule 7, § 3: ‘Judges ad hoc shall take precedence after the Members of the Court and in order of seniority of age.’ 34 35

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Nationality of ad hoc judges. A judge ad hoc need not necessarily possess the same nationality as the party choosing him. Thus, for example, in the case of the Territorial dispute (Libya/Chad, 1994), Judges Sette-Camara (Brasilian, and a former judge of the ICJ) and Abi-Saab (Egyptian) were chosen ad hoc by the two States that were parties in the case, Libya and Chad. The draftsmen of the Statute do not seem initially to have envisaged the nomination of persons of different nationality from the nominating State. The expectation is also reflected in Article 4 of the 1922 Rules, in the words ‘judge ad hoc of their nationality’ [the nationality of the Party]. But the ICJ Statute itself did not contain that restriction. For some time the practice has been a liberal one.36 Nowadays it is specifically enshrined in Article 35, paragraph 1 of the Rules: ‘The judge ad hoc may be of a nationality other than that of the party which chooses him.’37 In modern conditions, this flexibility is important for small developing States that do not always have experts in international law of the right level to sit on the Court. Although it is desirable for a judge ad hoc to understand the law and culture of the State nominating him, that is not a decisive reason for denying such States the freedom to select the person of their choice, provided of course that he has the appropriate qualities. Article 3, paragraph 1 of the Statute provides that the Court shall not include more than one national of the same State. Does this provision apply only to the elected members of the Court, or also to the judges ad hoc? In other words, can a State choose an ad hoc judge of the same nationality as another member of the Court? The Court’s practice provides a clear answer. The Statute and the Rules contain no express limitation, and the Court has accepted the nominations of judges ad hoc whose nationality was the same as that of an existing member. This happened in relation to the request for interpretation and revision of the decision of 24 February 1982 in the case of the Continental Shelf (Tunisia/Libya, 1985), in which Tunisia nominated Mme Suzanne Bastid, of French nationality as judge ad hoc, when an elected judge of the same nationality was already sitting, namely Judge de Lacharrière. In other words, Article 3, paragraph 1 must be interpreted as applying only to elected judges. So far as judges ad hoc are concerned, the State’s freedom to choose the person in whom it has most confidence prevails over all other considerations. Nomination of judges ad hoc. The Court does not take the initiative in such nominations. The question is left to the parties. However, in case of need, the Registrar can draw parties’ attention to their rights under the Statute. Since 1931, however, Registrars have rarely done this. It must be said that parties, advised by their advocates, are usually aware of their rights in this regard. The Statute gives them the right, but no obligation to exercise it. So the text is permissive, not mandatory. It is, however, very unusual for parties not to make a nomination. The only circumstance in which they do so with any frequency is when they refuse to appear before the Court, for example, as Turkey did in the Aegean Sea case (1978) or Iran did in the Teheran Hostages case (1980). Usually, for reasons of balance, a decision not to nominate judges ad hoc is made by agreement between the parties. In this way, Cambodia and Thailand (Siam) renounced the right to nominate judges ad hoc in the Temple of Preah Vihear case (1961/1962); similarly, Botswana and Namibia in the end renounced the right in the case of the Island of Kasikili/Sedudu (1999). Such an agreement between the parties, if binding, makes it legally impossible to nominate a judge ad hoc. The Court, applying the agreement the parties have freely entered into, must refuse to accept any such nomination 36   This was the case from the time of the PCIJ, when V Bruns was nominated by Danzig as judge ad hoc in three cases: cf Hudson, above n 28, 366. 37   See as early as the 1936 PCIJ Rules.



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if a party then changes its mind unilaterally. However, if there is no such agreement, a party can, when entitled to do so, ask to nominate a judge ad hoc. The Rules require this to be done ‘as soon as possible’. In any event the request must be made not later than two months before the final date fixed for delivery of the Counter-Memorial (Rule 35, § 1).38 The procedure and associated details for nominations are governed by Rule 35.39 Judges ad hoc are simply nominated by the States entitled to do so, by notification to the Court. However, in doubtful cases, it is for the Court to determine whether the conditions for the nomination of an ad hoc judge are satisfied.40 This question, touching on the Court’s composition, obviously takes priority over any other issue, and is in a sense ‘pre-preliminary’. All other questions, whether procedural, or relating to jurisdiction or merits, must be decided by the properly constituted Bench, including or excluding the judge ad hoc according to law. As the Court stated in the Namibia case (1971): Now the question whether a judge ad hoc should be appointed is of course a matter concerning the composition of the Bench, and possesses . . . absolute legal 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 must be treated as a preliminary matter on the basis of a prima facie appreciation of the facts and the law.41

If an elected judge recuses himself, or is for some other reason incapable of sitting,42 a party of the same nationality has the right to nominate a judge ad hoc to take his place.43 Similarly, a judge ad hoc who has resigned can be replaced. For example, Judge Virally, who, after a serious illness passed away on 27 January 1989, was replaced by ad hoc Judge Torres Bernárdez in the case of the Land, island and maritime frontier dispute (El Salvador/ Honduras, 1992).44 Once he has been nominated, a judge ad hoc cannot be changed at the   Since the days of the PCIJ, late nominations have sometimes been accepted: See Hudson, above n 28, 364.   The provision reads as follows:

38 39

1. If a party proposes to exercise the power conferred by Article 31 of the Statute to choose a judge ad hoc in a case, it shall notify the Court of its intention as soon as possible. If the name and nationality of the judge selected are not indicated at the same time, the party shall, not later than two months before the time-limit fixed for the filing of the Counter-Memorial, inform the Court of the name and nationality of the person chosen and supply brief biographical details. The judge ad hoc may be of a nationality other than that of the party which chooses him. 2. If a party proposes to abstain from choosing a judge ad hoc, on condition of a like abstention by the other party, it shall so notify the Court which shall inform the other party. If the other party thereafter gives notice of its intention to choose, or chooses, a judge ad hoc, the time-limit for the party which has previously abstained from choosing a judge may be extended by the President. 3. A copy of any notification relating to the choice of a judge ad hoc shall be communicated by the Registrar to the other party, which shall be requested to furnish, within a time-limit to be fixed by the President, such observations as it may wish to make. If within the said time-limit no objection is raised by the other party, and if none appears to the Court itself, the parties shall be so informed. 4. In the event of any objection or doubt, the matter shall be decided by the Court, if necessary after hearing the parties. 5. A judge ad hoc who has accepted appointment but who becomes unable to sit may be replaced. 6. If and when the reasons for the participation of a judge ad hoc are found no longer to exist, he shall cease to sit on the Bench. 40   See Art 35, §§ 3 and 4, of the Rules, and Art 36, § 6 of the Statute, by analogy. 41   ICJ Reports 1971, 25, § 36. 42   See Arts 17, §§ 2, and 24 of the Statute. 43   Rule 37, § 1 provides: ‘If a Member of the Court having the nationality of one of the parties is or becomes unable to sit in any phase of a case, that party shall thereupon become entitled to choose a judge ad hoc within a time-limit to be fixed by the Court, or by the President if the Court is not sitting.’ 44   ICJ Reports 1992, 359, § 8.

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will of the State nominating him. That would imperil both his judicial independence and the proper administration of justice, since any replacement would not have participated in the previous stages of the proceedings. In the very exceptional circumstances of the Corfu Channel case, Albania was, however, able to change its judge ad hoc between the prelim­ inary objections phase and the substantive hearings (1948/1949) – incidentally, both nominees were of Czechoslovak nationality. The first ad hoc judge resigned to open the way for the second. Thus, in reality, the limitation is a rather theoretical one, since an ad hoc judge always has the right to resign ‘freely’. Happily, the practice of the Court has not to date thrown up any really troublesome precedent on the question. The party with a right to nominate a judge ad hoc. In principle, only a State which is a ‘party’ to the case has the right to nominate an ad hoc judge (Article 31, § 2 of the Statute). However three delicate questions, arising in this context, have given rise to the expenditure of considerable quantities of ink.45 First question: intervention. Can an intervening party, in the sense of Articles 62 and 63 of the Statute, nominate a judge ad hoc? The Statute and the Rules contain no provisions about this. As will be seen in the chapter on intervention, one must distinguish between two forms of intervention: intervention as a principal, where the intervening State becomes a party, and accessory intervention, where the intervening State confines itself to making known its views, on a point of fact or law in relation to which it has a legal interest, without becoming a party to the case. An intervention under Article 62 of the Statute can be of either type, but Article 63 concerns only the latter. Since a judge ad hoc can, under the Statute and the Rules, be proposed only by a ‘party’, it seems logical that only an intervener which becomes a party can nominate one. However this form of intervention has never, so far, occurred. Since a State intervening as a party must, in any event, have a jurisdictional link to do so, as against the existing parties, it is usually easier and more advantageous to bring a new case against them rather than intervene as an additional party in a case that is already under way. Until now, therefore, the Court has been faced only with accessory interventions. Prior to 1990, it interpreted Article 62 of the Statute so strictly, that it rejected every request to intervene. The question of a judge ad hoc did, however, arise in the case of the Continental Shelf (Tunisia/Libya), in relation to Malta as the intervening State. Malta wished to nominate a judge ad hoc. The Court refused to allow the nomination, since it rejected the very request to intervene46 and consequently there ceased to be any point in the Maltese request to be allowed to nominate a judge ad hoc. The question involved the interpretation of the Statute, and was prior to and independent of the concrete elements of the case, so the Court sat without the judges ad hoc then in contemplation. Subsequently, in the case of the Land, island and maritime frontier (El Salvador/Honduras, Request to intervene, Order, 1990),47 the full Court referred the intervention question to the Chamber seised of the case. The Chamber decided that a State intervening on an accessory basis could not nominate a judge ad hoc, since it did not become a party to the proceedings. That decision was implicit rather than explicit, since the parties were not actually asking for the right to nominate ad hoc judges. The way the Chamber put the point did, however, rule out any possibility of an 45   See PH Kooijmans, ‘Article 31’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 1, 501 et seq.; H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’ BYIL, Part 11 (2000) 162 et seq. 46   ICJ Reports 1981, 3 et seq., 6. 47   ICJ Reports 1990, 135–36.



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accessory intervener being considered a ‘party’ and thus having the right to do any more than lay before the Court its position on the facts and the law. Quite apart from the parties’ status, there is another reason to consider the Chamber’s decision a sound one. If, in a case before it, the Court were to decide otherwise, its composition might in theory increase to an unlimited number, as a function of the number of interveners, whether or not they made common cause amongst themselves. A Court with more than 17 judges would not be able to function properly. In addition, the weight of the intervening States, and their influence on the Bench, would be disproportionate to the real degree of their interest in the case. Second question: advisory opinions. Can a judge ad hoc be nominated in an advisory opinion proceeding?48 Rule 102, paragraph 3, giving effect to Article 68 of the Statute, provides that: ‘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.’49 The crucial point is thus to know whether the opinion is on a ‘legal question actually pending between two or more States’. If it is, the States concerned are entitled to nominate ad hoc judges; if not, they are not. It can be difficult to decide to what degree the question relates to a dispute that is currently pending, since questions put to the Court for its opinion relate in varying degrees to real disputes between the States concerned. From the time of the PCIJ onward, the Court has decided, in some cases, to accept the existence of such a currently pending dispute, and thus to permit the nomination of judges ad hoc: for example, in the cases of the Jurisdiction of Dantzig tribunals (1928);50 Interpretation of the Greco-Bulgarian Agreement (1932);51; or, at the ICJ, the Western Sahara case (1975)52 in which the Court admitted a Moroccan ad hoc judge, but not a Mauritanian one. Conversely, the Court refused to accept that there was a currently pending dispute, and consequently refused the nomination of judges ad hoc, in the case of the Minority Schools in Albania (1935)53 and later in the Namibia case in 197154 (but, in that case, were its reasons really clear, apart from the wish to exclude South Africa?55). Where 48   See the very detailed analysis in G Guyomar, Commentaire du Règlement de la Cour internationale de Justice, adopté le 17 avril 1978: Interprétation et pratique, 2nd edn (Paris, 1983) 653 et seq. 49   This was the tenor of Art 71 of the 1926 Rules (as amended in 1927) and subsequently of Art 83 of the 1936 Rules. The PCIJ had thought it necessary to include such a Rule following advisory opinions such as those in the Nationality Decrees case of 1923 (in which, moreover, the disputing States had agreed to treat the Court’s opinion, formally requested by the Council, as binding upon them), and later the case on the Jurisdiction of the European Commission of the Danube (1927), in which a real dispute between three States and a fourth underlay the request for the opinion: see PCIJ, Series E, no 4, 68–74 and 290. 50   PCIJ Series B, no 15, 4 (no reasons stated). 51   PCIJ Series A/B, no 45, 72. 52   ICJ Reports 1975, 6–8. 53   PCIJ Series A/B, no 64, 6. 54   ICJ Reports 1971, 25–27, § 35 et seq. 55   The following are the key arguments (apparently incompatible with those the Court was to give some years later in the Western Sahara case), above n 52, 24, § 32: ‘Nor does the Court find that in this case the Security Council’s request relates to a legal dispute actually pending between two or more States. It is not the purpose of the request to obtain the assistance of the Court in the exercise of the Security Council’s functions relating to the pacific settlement of a dispute pending before it between two or more States. The request is put forward by a United Nations organ with reference to its own decisions and it seeks legal advice from the Court on the consequences and implications of these decisions.’ And, ibid, § 34: ‘The fact that, in the course of its reasoning, and in order to answer the question submitted to it, the Court may have to pronounce on legal issues upon which radically divergent views exist between South Africa and the United Nations, does not convert the present case into a dispute nor bring it within the compass of Articles 82 and 83 of the Rules of Court. A similar position existed in the three previous advisory proceedings concerning South West Africa: in none of them did South Africa claim that there was a dispute, nor did the Court feel it necessary to apply the Rules of Court concerning

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there are current disputes between States and international organisations,56 the States have, until now, abstained from proposing ad hoc judges. This is not the place to explore all the intricacies of argument raised in particular cases as to whether a dispute is or is not currently pending between two or more States. It is perhaps regrettable that the Court has not so far attempted to clarify the concept in a sufficiently precise way. Doubtless it prefers to leave itself a certain margin of appreciation from one case to the next. It will be noted that the text of the Rules leaves the question relatively open, requiring only that a ‘legal question’ should be currently pending between States, and not that the question should have hardened into a difference or dispute. This may suggest a fairly liberal approach. But there are reasons that point in the opposite direction. There is no value in allowing questions, when they are only distantly connected with those pending in inter-State relations, to influence the composition of the Court in an advisory opinion case, especially if they give rise to complex procedural argument about the Bench’s composition. This is a fortiori so if one bears in mind that, in advisory cases, the Court has always been very concerned to act swiftly – its record in this regard must be acknowledged to have been exemplary. Furthermore, ad hoc judges have specific functions in contentious proceedings, namely to make known the position of the State nominating them, so as to facilitate that State’s acceptance of a binding decision. Advisory opinions, by contrast, are given not to States, but to organs of the United Nations. Judges that in some way represent ‘national interests’ have no place here. They would alter the ordinary composition of the Court. There is no apparent justification for doing so unless the advisory procedure is seen as an indirect way of dealing comprehensively with a dispute that has already arisen between States. Anyway, at present it is always possible to argue that a ‘dispute’ between two States constitutes a ‘legal question actually pending’ between them, as was clearly shown by the Western Sahara case (1975).57 Nevertheless, requests for advisory opinions are not usually based directly on the dispute itself, but, more commonly, on the action of a UN organ in the context of that dispute. On that basis, the Court can reject the nomination of an ad hoc judge, taking the view that the dispute itself is before the Court only on an indirect basis, mediated through the question actually put to the Court, that question being one which relates to the powers of the requesting organ in dealing with the dispute. On the other hand, it seems difficult to say in what sense any other ‘legal question actually pending’ might suffice to permit the nomination of a judge ad hoc. Perhaps the true test is the exist­ ence of a present dispute, one whose existence is apparent not only behind the formal veil of a request for an advisory opinion, but is itself the very subject of that request. Third question: Nomination of judges ad hoc to sit in Chambers of the Court. Article 31, paragraph 4 of the Statute provides: 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. “a legal question actually pending between two or more States”. Differences of views among States on legal issues have existed in practically every advisory proceeding; if all were agreed, the need to resort to the Court for advice would not arise.’ Numerous dissenting and individual opinions departed from the majority view: cf the opinions of Judges Petren (128–30); Onyeama (139–41); Dillard (152–53); Fitzmaurice (308–17); and Gros (323–30). 56   See, eg ICJ Reports 1999, 62 et seq. 57   Order of 22 May 1975, ICJ Reports 1975, 7–8.



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This means that the parties to the case, having chosen to plead it before a Chamber, can nominate judges ad hoc for the purpose. The first case in which this provision was applied was the Gulf of Maine (1982, Merits decision 1984)58 between the USA and Canada: as a first step, five elected judges were appointed to the Chamber, one from the USA; as a second step, Judge JM Ruda gave up his seat in order to permit the choosing of a Canadian judge ad hoc; and as a third step, Mr Cohen was nominated to be the Canadian judge ad hoc.59 Since then, the procedure has been simplified, the Court directly appointing to the Chamber both the elected and ad hoc judges who are in contemplation. If an intervening party (proposing to intervene as a full party) is permitted to nominate an ad hoc judge, the situation could arise in which a Chamber would comprise three elected judges and three more ad hoc.60 If there were to be several interveners as full parties, and they did not make common cause amongst themselves, a difficult problem could, in theory, arise as to the composition of the Bench, the judges ad hoc being, in such a case, more numerous than the elected ones. Could such a Chamber, which would in effect be an ‘arbitral’ one, still give a judgment that would be truly considered a judgment of the ICJ? In such a case, one could envisage an amendment being made to the Rules, to provide that a plurality of States intervening qua parties are obliged to choose one or two (the latter guaranteeing an odd number) ‘joint’ judges ad hoc. Fourth question: parties making common cause. This is the most thorny and troublesome issue. Article 31, paragraph 5, of the Statute stipulates that: ‘Should there be several parties in the same interest, they shall, for the purpose of the preceding provisions, be reckoned as one party only. Any doubt upon this point shall be settled by the decision of the Court.’ Rule 36 adds: 1. If the Court finds that two or more parties are in the same interest, and therefore are to be reckoned as one party only, and that there is no Member of the Court of the nationality of any one of those parties upon the Bench, the Court shall fix a time-limit within which they may jointly choose a judge ad hoc. 2. Should any party amongst those found by the Court to be in the same interest allege the existence of a separate interest of its own, or put forward any other objection, the matter shall be decided by the Court, if necessary after hearing the parties.

Finally Rule 37, paragraph 2 provides: Parties in the same interest shall be deemed not to have a judge of one of their nationalities upon the Bench if the Member of the Court having one of their nationalities is or becomes unable to sit in any phase of the case.

The problem arises where there is a plurality of applicants or of respondents, whether in the same case, or in two cases that have been consolidated, or in two cases which, although they have not been formally consolidated, are nevertheless closely interconnected. It would not be adequate to allow each of them to nominate a judge ad hoc. Rather than resulting in some sort of balance, the consequence would be a disequilibrium of a more or less pronounced nature, in the Court’s composition. To sum up, the Statute requires parties with the ‘same interest’ to be legally considered a single party for the purposes of the Court’s composition and the nomination of judges ad hoc.   ICJ Reports 1982, 8–9.   ICJ Reports 1984, 252, §§ 3–4. 60   Kooijmans, above n 45, 506. 58 59

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How should we interpret the expression ‘same interest’ in Article 31, paragraph 5 of the Statute? There are two ways of looking at it.61 Formalistic interpretation. On the one hand, the expression can be interpreted in a formalistic way. So long as the cases are separate, in the sense that applicants have initiated them separately, and so long as the Court has not consolidated them,62 it is impossible to say that the parties have the same interest. Each case remains a separate one, and each applicant and each respondent State has the right, in the absence of an elected judge of its own nationality, to nominate a judge ad hoc. The disadvantage of this formalistic view is that it can easily result in an infringement of the principle of equality between the parties, a principle which, amongst other things, is the reason and justification for the institution of the ad hoc judge in the first place. If States A and B separately bring a case to the Court against State C, and there is already an elected judge who is a national of State A but none from State B, the result will be as follows: (1) in State A’s proceedings against State C, the former will not nominate a judge ad hoc but the latter will; so there will be balance; and (2) in State B’s proceedings against State C, the former, with no national judge on the Bench, will be entitled to nominate a judge ad hoc, as will State C. The national judge of State A will continue to sit. The danger is that his views will be favourable to State B, because, as far as the subject matter of the case is concerned, State B and State A have the same interest, even though the two cases remain formally separate. This means that the two ‘national’ judges will, in this case, be faced by one opposing ‘national’ judge. The greater the number of States involved, the greater the potential disequilibrium. Interpretation in light of material implications. The second way to interpret the provision is to look at the material implications. States are considered to have the same interest when they are agreed on the submissions to be made to the Court. When what they are asking of the Court appears to be virtually identical, and relates to virtually identical facts, the States have the same interest, even if the particular proceedings by which they pursue them remain formally separate. The advantage of this way of looking at the question is that it avoids the problem highlighted above. However, that does not exempt it from all difficulties. In the example given above, State B would not have a national judge on the Court, but State A would. That too is an imbalance, perhaps one that cannot be justified, but an imbalance less serious from the legal perspective, since the elected judge of State A in a sense also represents State B, by virtue of the fact that the two governments have the same interest. In this way it seems that the formal consolidation of the cases almost always results in the parties’ being considered to have the same interest (itself the very reason for consolidation), but that, in cases where there is no consolidation, the converse is not necessarily the case – there may or may not be ‘same interest’. To sum up, then, whatever the interpretation, in one way or another one it runs counter to the principle of equality between the parties to the proceedings. This is a pitfall which could be avoided only by allowing the numerically disadvantaged State to nominate more than one judge ad hoc. But that idea is open to other serious objections. One is that the Bench might then comprise 18, 20 or 23 judges, which is simply impractical. We shall return to this question later, in the context of the Kosovo and NATO cases. However one looks at it, the answer to this question involves reconciling difficult solutions in a way which will often leave an unsatisfactory aftertaste. The Court will therefore be exposed to criticism, which can only be harmful to its prestige.   Kooijmans, ibid, 501 et seq.; Thirlway, above n 45, 501.   See Rule 47.

61 62



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The ‘same interest’ rule applies only to the nomination of judges ad hoc. If parties with the same interest each have elected judges of their nationality on the Bench, there is no question of those judges concerting their attitude in order to decide that one or other should recuse themselves.63 Both remain in place. If several parties have the same interest, and one of them has a national judge on the Court while the others do not, the question of nominating a judge ad hoc will also not arise. The national judge of the State which is one of those several parties, will sit as an elected judge, his position reinforced by simultaneously performing, de facto, the functions of a judge ad hoc for the other applicant States. So, in the case of the Territorial jurisdiction of the International Commission of the River Oder (1929), six States made common cause – Czechoslovakia, Denmark, France, Germany, Sweden and the United Kingdom. Since one of the elected judges was Danish, there was no scope for the Court to accept the nomination of additional judges ad hoc.64 In advisory opinion cases, there is no possibility of consolidating cases. The application of the words ‘same interest’ is not really possible if the interpretation is a formalistic one. As to the ‘material’ approach to interpretation, if the opinion relates to a legal question currently pending between States, the arguments they put forward will make it possible to determine to what extent, if indeed at all, they are making common cause. This was the approach taken by the PCIJ in the case on the Customs regime between Germany and Austria (1931).65 What light does the Court’s jurisprudence shed on this question? When parties with the same interest are co-applicants in the same case, the answer is easy. It is different if parties with the same interest bring their cases separately, in circumstances where it is nevertheless clear that, as to the substantive merits, the two cases are connected. Can this difficulty be resolved according to whether or not the two cases are consolidated into a single action? In the North Sea Continental Shelf cases (1969), Denmark and the Netherlands recognised, in a duly agreed Protocol, that they were ‘in the same interest’ within the meaning of Article 31, paragraph 5, of the Statute.66 The German Federal Republic was the respondent in both cases, and so the two could be consolidated. As already noted, joinder of actions, even if ordered by the Court without the parties’ agreement, usually establishes a ‘same interest’.67 But what if consolidation is not ordered? If the applicant States agree that they have the same interest and that they will nominate only one ad hoc judge even though their cases have not been consolidated, the problem is, to that extent, resolved. This was the position in the Nuclear Tests cases in 1973 to 1974, between Australia and New Zealand on the one hand, and France on the other.68 When the position is different, however, problems can arise, as shown by the Fisheries jurisdiction case (1973–74). The German Federal Republic and the UK were the applicants, Iceland the respondent. The Court decided that, despite the non-consolidation of the two cases, the two applicant States had the ‘same interest’ within the meaning of the Statute. The Court therefore declined to allow Germany to nominate a judge ad hoc, the elected UK judge operating de facto as the German judge ad 63   The proposal to proceed in this way was made by Judge Pessôa in 1926, but was not adopted: cf Hudson, above n 28, 362, fn 8. Thus, in the Wimbledon case (1923), a single case was brought by four States, each of which had a national judge on the Court; all of them participated in the judgment. 64   PCIJ, Series C, no 17-II, 8–9. 65   PCIJ, Series A/B, no 41, 89. 66   ICJ Reports 1969, 7. See also ICJ Reports 1968, 9–10. 67   So, when Ethiopia and Liberia brought the South West Africa case to the Court in 1962 and 1966, the Court was able to give them time to agree on the nomination of a single judge ad hoc: ICJ Reports 1961, 13. 68   ICJ Reports 1973, 100, § 4, and 136, § 5.

130  COMPOSITION OF THE COURT

hoc.69 The objective was to avoid the possibility that, in the ‘German’ case, the UK judge, who would continue to sit, would be ‘accompanied’ by an ad hoc judge nominated by Germany. This would have even more deeply unbalanced the composition of the Court in Germany’s favour since Iceland refused to participate in the case, and thus refused to nominate its own judge ad hoc. In this case, the Court preferred the substantive rather than formalistic interpretation of the words ‘same interest’. In the more recent jurisprudence of the Court, these difficulties have increased. In the Lockerbie case (1992–98), the elected UK judge had to recuse himself, and the Court, deciding that the UK did not have the same interest as the USA, permitted the UK to nominate an ad hoc judge.70 The UK and USA applications were not consolidated. In relation to the UK application, the elected US judge and the UK judge ad hoc sat simultaneously. This resulted in a certain inequality, detrimental to the respondent, since Libya, as respondent, had nominated only one judge ad hoc. The Court did not explain its decision on this point. It would seem that it simply adopted the formalistic approach (on the basis that there were separate applications), in the process distinguishing (or at least departing from) its earlier jurisprudence in the Fisheries jurisdiction case (1973–74). The fact that the decision concerned a judge who was a national of a permanent member of the Security Council may, perhaps, have had some bearing on the decision: according to an unwritten rule, each of these five States always has a presence on the Court. Did the Court perhaps feel ill at ease with the prospect of a permanent member’s elected judge being excluded (recusing himself) without being replaced? In the Kosovo cases of 1999, things became even more complicated. Serbia and Montenegro (as a single State) brought no less than 10 cases, each formally separate from the others, against 10 members of NATO. The terms of the applications were largely identical. Five NATO States had national judges on the Court. Four of those NATO States that did not, nominated ad hoc judges for the interim measures phase.71 But when it came to the preliminary objections phase, the Court refused to allow the four ad hoc judges to sit. It took the view that the four States had the same interest as the five others with elected judges.72 In consequence, the Court, during the interim measures phase, had a different composition from each case to the next, and yet had the same composition throughout the preliminary objections phase. The decision to proceed in this way was taken as an administrative measure, not by an Order that went through the Court’s formal deliberative procedures. There was no real legal basis for discriminating between the composition of the Court on interim measures and its composition on the preliminary objections: it was merely that, at the interim measures stage, the Court had not yet had time to decide the ‘same interest’ point, and so had accepted the ad hoc judges on a provisional basis. The explanation does not alter the fact that this was one anomaly (though only one of many) of the Yugoslav cases. Another arose from the manifest problem of balance and equality between parties.73 Serbia and Montenegro had nominated a judge ad hoc; that judge was faced by five judges from NATO States, States which, in substance had the same interest. As already noted, Article 31, § 5 does not apply to elected judges, only to judges ad hoc. There was thus no basis for any elected judge to recuse himself. The Statute works by adding judges, not by subtracting   ICJ Reports 1973, 51, § 7.   ICJ Reports 1998, 13, § 9. 71   See, eg ICJ Reports 1999, 130, § 12. 72   See, eg ICJ Reports 2004, 287, § 18. 73   cf P Puoti, ‘Causa comune e principio di uguaglianza processuale delle parti nei casi relativi alla liceità dell’uso della forza’ (2002) 22 Comunicazioni e studi 801 et seq. 69 70



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them. The disequilibrium could have been remedied only by allowing Serbia and Montenegro to appoint five judges ad hoc.74 However that was impossible at the time, and still is, since it would be contrary to the Statute. In other words, inequalities of this kind are at present irremediable, and nor is it at all easy to see what remedy could be found at some future date. Even supposing a State were allowed to nominate several judges ad hoc, that would not necessarily mean a return to equality. No real comparison is possible between elected judges, whose independence is in many cases almost tangible, and a potential group of ad hoc judges whose independence is opaque, or at least relatively so. It may be added that the ordinary judges on the Bench may be more influential within the judicial body than the ad hoc newcomers. In addition, serious problems would arise as to the functioning of the Court. For one thing, the sheer number of judges would probably lead to an excessive fragmentation of the Bench. For another, the Court would come to resemble an arbitral tribunal, to the point where one might reasonably doubt whether the resulting decision was truly being made by the UN’s principal judicial organ. Equality between the parties, itself an issue of international public policy – of ordre public – would not be the only point at issue. The very character and integrity of the Court would be imperilled. It is also interesting, although of course not decisive, to note that the Yugoslav cases enabled an ad hoc judge to sit on the Court for a longer period than any elected judge. Judge ad hoc Kreća was nominated by Serbia at the beginning of the 1990s, in the context of the virtually interminable series of cases on the former Yugoslavia. So far, he has had a seat on the Court (admittedly only in relation to Yugoslav cases and thus with a certain intermittency) for almost 20 years! The analysis thus shows that the jurisprudence remains tied to specific considerations applicable in particular cases (even when this is not clearly spelled out). It has developed, not in a straightforward linear way, but in a fluctuating, broken and uncertain one. It would perhaps be useful if, in future, the Court were to adopt a more principled position, based more on legal considerations and less on factual ones. As already noted, even such an approach could not resolve all imbalances and inequalities, since there is no perfect way to square this circle. But some such approach to the problem would at least mean that the Court’s current jurisprudence no longer contained contrasting decisions that are very difficult to justify, such as the contrast between the Fisheries case of 1974 and the Lockerbie case of 1998. In general, the ‘material’ approach is the one to follow, because it leads to more satisfactory results. Moreover, if a judge has to recuse himself, as happened in Lockerbie, there is no need to replace him with a judge ad hoc so long as there is still an elected judge from another State with the same interest. However, there is a risk that States would put forward arguments which were different only for artificial reasons, designed to dig them out of a ‘same interest’ hole and thus retain the right to nominate a judge ad hoc. There would probably be no way of preventing that, since it is difficult to see the Court deciding that such tactics amount to an abuse. Finally, in cases where there is a plurality of applicants or respondents, as in the Kosovo case in 1999, one must rule out the idea of nominating more than one judge ad hoc to balance a plurality of elected judges of the nationalities with a ‘same interest’. At that point, one has reached the outer limits of what can be allowed as regards the Court’s composition, even though the resulting imbalance is eminently to be regretted. A great deal of space has been devoted to the question of judges ad hoc. One advantage of doing so is that it enables one to see, from hard experience, how an apparently very   This, at least, was what ad hoc Judge Krecaća considered necessary, ibid, 416 et seq., §§ 67 et seq.

74

132  COMPOSITION OF THE COURT

simple concept and institution gives rise to a series of sharply delineated legal problems – questions that are both interesting and, at times, intractable.

g)  Irremovability, Resignation and Incompatibility of Judges75 Once elected, the Judges of the Court are irremovable during the periods of their mandates.76 This is an essential guarantee of their independence. However, it does not follow that every judge can sit on every case, nor that any particular judge will necessarily reach the end of his mandate. There are various reasons for this. Resignation.77 A judge can resign, whether he has been elected or has been nominated on ad hoc basis. The normal reasons for resignations are ill-health or election to another post.78 Of course a judge must take account of the fact that, as a member of the Bench, he does not represent himself alone. To some degree he is also elected having regard to his nationality, given the Bench’s ‘compositional key’ discussed above. In his own country, his participation on the Bench often ensures him a certain diplomatic or political prestige. It is not unusual for judges’ national States to have invested time and money in campaigning for their election. Once a judge has resigned, his country may have to forego the advantages of having a judge on the Court, perhaps for several decades. Doubtless the judges owe a moral duty to take these considerations into account before taking the decision. But in the last result, the decision to resign is for the particular judge, and for him alone. Article 13, paragraph 4 of the Statute confines itself to providing for the possibility of resignation, regulating the procedure in summary manner: ‘In the case of the resignation of a member of the Court, the resignation shall be addressed to the President of the Court for transmission to the Secretary-General. This last notification makes the place vacant.’ The expression ‘last notification’ shows that the resignation takes legal effect only on being notified to the Secretary General. Rule 5 follows suit.79 75  As to the PCIJ, see Hudson, above 28, 369 et seq. For the present Court, Dubisson, above n 8, 45–48; S Rosenne, The Law and Practice of the International Court, 1920–2005, vol I, 1997 4th edn (Leiden, 2006), 408 et seq.; and the Commentary on the Statute by Zimmermann, Tomuschat and Oellers-Frahm, above n 1, under Articles 16, 17 and 24. 76   Only a unanimous Court can relieve a judge of his functions for incapacity or some other serious failing. Art 18, § 1 of the Statute provides that: ‘No member of the Court can be dismissed unless, in the unanimous opinion of the other members, he has ceased to fulfill the required conditions.’ See also Rule 6 and Guyomar, above n 48, 32–35. This provision in the Statute has never been applied. India raised a claim against the Pakistani Judge Sir Muhammad Zafrulla Khan resulting from a political speech that he was said to have given in 1968, but if this was a failing, it was certainly not of the gravity required to bring about his dismissal: cf (1968) 72 RGDIP 1121. It also happened that the Soviet Judge Morozov ostentatiously read a Russian daily newspaper instead of listening to certain speeches with which he was out of sympathy. This was certainly a more serious fault, since it affected the Court’s image and prestige. It was, however, a delicate matter to take steps under Art 18, and the Court wisely refrained from doing so. It must be said, however, that certain judges (whom we will not name) have, for reasons of ill-health or in consequence of medication, from time to time fallen asleep during hearings. Temporary incapacity of this kind has obviously not given rise to steps under Art 18. One must suppose that in cases of more permanent physical incapacity, the judge in question would be likely to hand in his resignation. 77   Hudson, above n 28, 376–77; Guyomar, above n 48, 29–31; J Dugard, ‘Article 13’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 1, 311. 78   eg the US judge Hughes, elected in 1930 to his country’s Supreme Court. 79  ‘1.  A Member of the Court deciding to resign shall communicate his decision to the President, and the resignation shall take effect as provided in Article 13, paragraph 4, of the Statute. 2.  If the Member of the Court deciding to resign from the Court is the President, he shall communicate his decision to the Court, and the resignation shall take effect as provided in Article 13, paragraph 4, of the Statute.’



THE BENCH 133

The original Statute of the PCIJ contained no rule on resignation. It was thought that the right to resign was automatic, and that there was no need for a rule. But this view was mistaken. When Judge Moore resigned in 1928 – the burden of work at the Court and of travelling to and fro between the United States and The Hague having become too heavy for him, given his age – the League of Nations Secretary General was faced with an embarrassing legal question. Did the resignation take immediate effect, making the seat vacant, so that a new election could take place? Or did the resignation need to be confirmed (or at least registered) by the Council and Assembly before it could take effect, only the body which elected him being able formally to terminate a judge’s mandate? The precaution was taken of having the resignation accepted by the League bodies, while at the same time orienting future procedures towards resignations with effect immediate on notification (the League organs merely noting the fact). For these purposes, additional wording was included in the Statute via the 1929 amendments, which came into force in 1936. The same text can now be found in the ICJ Statute. There is no need for a judge to state the reasons for his resignation. By courtesy, however, he normally does give a general indication. In the history of the two Courts at The Hague, the PCIJ and the ICJ, resignations have not been frequent, but they have not been unusual either. The following judges have resigned: Moore (1928), Hughes (1930), Kellogg (1935), Wang (1936), Urrutia (1942), Nagaoka (1942), Golunski (1953), Morozov (1985), Jennings (1995), Schwebel (2000), Bedjaoui (2001) and Guillaume (2005). Absolute incompatibility.80 Article 16, paragraph 1, of the Statute provides as follows: ‘No member of the Court may exercise any political or administrative function, or engage in any other occupation of a professional nature.’ Paragraph 2 adds: ‘Any doubt on this point shall be settled by the decision of the Court.’ When elected to the Court, judges must resign such functions: they are incompatible with the functions of a judge on the Bench. This is obviously a matter of guaranteeing both judicial independence and that the judges concentrate their activities exclusively on the Court. The exact line between permissible activity, consistent with the status of the judge, and activity forbidden as irreconcilable with that status, is not always easy to draw. In the days of the PCIJ, the question was managed with a certain degree of flexibility, the fundamental criterion being whether any burden of whatever nature, external to the Court, was compatible, in an entirely full and satisfactory way, with the judicial function. In particular, an activity was considered incompatible if it interfered, even lightly or only potentially, with a judge’s independence or impartiality. The mere appearance of incompatibility was enough: justice must not only be done, but be seen to be done. The question of incompatible functions has often been the subject of argument, especially at the PCIJ, where the judges used more frequently to continue with other activities, so that in many cases they were not present at The Hague for periods any longer than was strictly required. The question has continued to be a live one at the ICJ. Thus, for example, at the PCIJ it was considered that a judge could not take part in national discussions about a case; by contrast, he could, however, participate on a commission drafting national legislation on authorial rights; he could sit on an arbitration or conciliation commission (unless it was contemplated that the case might subsequently come before the Court itself); but he could not participate as a State delegate at an international 80   See Hudson, above n 28, 372–74; P Couvreur, ‘Article 16’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 1, 323 et seq.; G Guillaume, ‘De l’indépendance des membres de la Cour internationale de Justice’ in Essays B Boutros-Ghali, vol I (Brussels, 1998) 475 et seq.

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conference, because in that case he would be under the instructions of the State he rep­ resented.81 These continued to be the general views at the ICJ,82 except that the Bench’s growing workload, and the judges’ obligation to be present at The Hague, have in practice set tighter limits on what is seen as compatible with their roles as ICJ judges.83 So, for example, a judge could not retain a professorial chair in an academic institution, both because his judicial independence might be imperilled by the opinions he would be teaching, and also because it would take too much time from his judicial role. On the other hand, the post of honorary professor, on an unremunerated basis, but allowing a judge to give occasional lectures and seminars, notably on the work of the Court, has been seen as not incompatible with the judicial function.84 Self-evidently, any work as legal adviser, whether to a private business or otherwise, is incompatible with the judicial role, as is any permanent employment, even at reduced or modest pay. To sum up, then, only two types of external activity have been consistently accepted by the Court: (1) occasional contributions to bodies whose role is the peaceful resolution of disputes, such as arbitration or conciliation commissions; and (2) limited academic work, that is, the giving of occasional courses, professional writing and participation in learned societies such as the Institute of International Law.85 Such restrictions do not apply to judges ad hoc. Their presence is required at The Hague only for limited periods. It goes without saying that there is no reason to require them to resign their professional posts. The Court does its best to cooperate with them in making the arrangements necessary to enable them to exercise properly the functions for which they have been appointed. Such arrangements are particularly important where judges ad hoc are, at the same time, ambassadors or legal advisers. Relative incompatibility.86 Article 17, paragraph 1 of the Statute provides that: ‘No member of the Court may act as agent, counsel, or advocate in any case.’ Paragraph 2 adds that: No member may participate in the decision of any case in which he has previously taken part as agent, counsel or advocate for one of the parties, or as a member of a national or international court, or of a commission of enquiry, or in any other capacity.

Paragraph 3 contains the inevitable provision reserving the ultimate decision to the Court: ‘Any doubt on this point shall be settled by the decision of the Court.’ More purely procedural aspects are governed by Article 24 of the Statute. Paragraph 1 reads as follows: ‘If, for some special reason, a member of the Court considers that he should not take part in the decision of a particular case, he shall so inform the President.’ Paragraph 2 provides: ‘If the President considers that for some special reason one of the Members of the Court should not sit on a particular case, he shall give him notice accordingly.’ Paragraph 3 again reserves the ultimate decision to the Court: ‘If in any such case the member of the Court and the   Hudson, above n 28, 373–74.   eg, on conciliation commissions: cf Dubisson, above n 8, 46, participation by President Guerrero in an ad hoc commission set up by the UN General Assembly to seek a humanitarian solution for the plight of certain prisoners of war. 83   Couvreur, ‘Article 16’, above n 80, 331 et seq. 84   Ibid, 327. 85   Ibid, 335. 86   See Hudson, above n 28, 369–72; Dubisson, above n 8, 46–47; Guyomar, above n 48, 183 et seq.; P Couvreur, ‘Article 17’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 1, 337 et seq.; H Thirlway, The Law and Procedure of the International Court of Justice 1960-1989’ BYIL, Part 12 (2001), 38 et seq.; JD Morley, ‘Relative Incompatibility of Functions in the International Court’ (1970) 19 ICLQ 316 et seq. 81 82



THE BENCH 135

President disagree, the matter shall be settled by the decision of the Court.’ Finally one should note Practice Direction VII, which reads as follows: The Court considers 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. Accordingly, parties, when choosing a judge ad hoc pursuant to Article 31 of the Statute and Article 35 of the Rules of Court, 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. 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.

‘Relative incompatibility’ concerns the impartiality of a judge in a particular case, and thus only the question whether he can sit on the Bench hearing that particular case. It goes without saying that a judge who has previously handled a case, for example as legal adviser to his government, cannot, having been elected to the Court, sit in judgment on that same case, given that, however much he might strive to be impartial, he would be perceived as judge and party in the same case. In order to demonstrate judicial impartiality, a peculiarly delicate feature of international relations, it is advisable to give a fairly wide interpretation to Article 17, paragraph 2 of the Statute. In municipal law, one frequently finds a mandatory principle that the ordinary judicial system should not lightly be disturbed by composing courts and tribunals in an ad hoc manner; but this principle carries less weight in international affairs. Indeed, in municipal tribunals the ordinary judges are generally replaced by other ones, and it is that which can give rise to embarrassment, and to the feeling that there has been manipulation. At the ICJ it is different: judges who recuse themselves are simply not replaced. The Court’s composition is sufficiently large that it can function without one, two or even three of its members. It is highly improbable that more than a small number of judges will ever need to recuse themselves in the same case. The provisions on relative incompatibility fall into two categories: (1) the ‘objective’ ones, referred to in Article 17, paragraphs 1 and 2 of the Statute, which gave rise to a clear and strict practice at the PCIJ and now at the ICJ: disqualification is immediate if a judge has participated in the relevant case as agent, counsel or advocate; and (2) the ‘subjective’ ones, that is, those to which Article 24 at least in part refers:87 in such cases the President or a judge can suggest recusal in a series of possible circumstances which cannot be codified precisely, but which might prejudice a judge’s independence or impartiality, or otherwise make it difficult or impossible for him to sit.88 Objective incompatibility disqualifies a judge automatic­ ally; subjective incompatibility requires to be assessed in light of the context. Finally it must be noted that judges who have (directly) been counsel or advocates for one of the parties prior to the start of the proceedings have always recused themselves spontaneously.89 Doubts have arisen only in situations where the participation has been indirect, at the preliminary stages of a dispute. These situations are covered by the expression ‘taken part . . . or in any 87   See P Couvreur, ‘Article 24’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 1, 420 et seq., as to the practice. 88   Thus in the case on the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Serbia and Montenegro, 2007), Judge Parra-Aranguren was unable, for medical reasons, to participate in the final stages of the deliberations. He informed the President of the Court that he did not think he could participate in the judgment, given the provisions of Art 24, § 1. The President took the view that the Court should respect and accept Judge Parra-Aranguren’s view – see § 63 of the judgment. 89   See Couvreur, ‘Article 17’above n 86, 347, fn 56.

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other capacity’ in Article 17, paragraph 2 of the Statute. In this latter respect, as will be seen in a moment, the practice of both the ICJ and its predecessor at The Hague has been relatively liberal. Since the days of the PCIJ, a number of judges have informed the Court of situations which might, in the circumstances, justify their recusal.90 As regards Article 17, paragraph 2 of the Statute, the PCIJ’s attitude was highly restrictive: normally it preferred to allow the judges in question to sit. It thus saw no incompatibility in the fact that a judge had been a legal adviser to one of the governments in question at the time the dispute crystallised, although without having directly handled the particular case (Judge Huber, Free Zones cases, 1929–32; Judge Ténékidès, ad hoc, Société commerciale de Belgique case, 1939); nor in the fact that a judge had participated in drafting an agreement which now required interpretation (Judge Weiss, Wimbledon case, 1923); nor in the fact that a judge had been a member of an arbitral tribunal deciding on certain claims which, having been assigned to Italian citizens, had given rise to a case before the Court (Judge Fromageot, Moroccan phosphates case, 1938); nor in the fact that a judge had been a member of an arbitral tribunal whose awards were invoked in the present proceedings (Papazoff, judge ad hoc, in the case of the Electricity Company of Sofia and Bulgaria, 1939). The ICJ has continued along the same lines:91 a judge continued to sit, even though he had previously been a member of his country’s Supreme Court, which had given a decision invoked in ICJ proceedings and rele­ vant to them (Judge Klaestad, Norwegian Fisheries case, 1951); two judges participated in a case although they had been legal advisers to their ministries of foreign affairs at the time the case was under diplomatic discussion (Judges Basdevant and Hackworth, in the Case concerning the rights of nationals of the United States of America in Morocco, 1952); and so on. Given the size of the ICJ bench, this liberal practice is perhaps not very worrying, in the sense that it does not prejudice either the proper functioning of the Court or the impartial image it needs to preserve. Also, it can be difficult to disqualify a judge who is a national of a great power. However, at the level of principle, liberal practice is not entirely to be recommended. It can arouse legitimate suspicion. One delicate question is raised by the (sometimes very firm) political positions that some members of the Court may have expressed, perhaps at one of the UN’s political bodies, before they were elected, in relation to a case later coming before them as judges of the Court. In these circumstances, can such a judge be considered impartial? The question was of particular importance in the interminable South West Africa cases. South Africa repeatedly objected to certain judges, for example the Mexican Judge Padilla Nervo. Judge Nervo had pronounced very clearly on the South West African question at the General Assembly, where he was his country’s delegate. The Court refused to uphold these objections,92 no doubt from fear of opening a Pandora’s box. One would indeed be quite a long way from the spirit of the Statute if, prior to every substantive argument, parties were to attempt to eliminate from the Court all the judges who had ever been ‘politically’ unfavourable to them.

  Hudson, above n 28, 369–71.   Dubisson, above n 8, 46–47; Couvreur, ‘Article 17’, above n 86, 346 et seq. 92   See, eg the Namibia case, ICJ Reports 1971, 18–19. In rejecting the South African request, the Court relied, amongst other things, on the fact that the objections were not based on grounds under Art 17 of the Statute. See also the similar situation in the case on the Wall case, ICJ Reports 2004-I, 142, § 8, Israel having objected to the participation of Judge Elaraby. 90 91



THE BENCH 137

The President of the Court can raise incompatibility questions under Article 24 of the Statute.93 President D Anzilotti exercised this power in relation to Judge H Fromageot in the Free Zones case (Judge Fromageot, who was French, had previously represented his country in negotiations with Switzerland over these frontier zones). There is nothing to stop a Judge’s bringing relevant facts about a colleague to the President’s attention. Under Article 24, any judge can also raise such a question concerning himself. He has the right to do so at any stage of the proceedings, although he must try to do it at as early as possible, even if sometimes the reasons for a recusal do not emerge until the hearings are already under way. Article 24, moreover, allows such a judge to raise personal reasons for not sitting, that is, grounds other than the ‘objective’ incompatibilities of Article 17. It should be noted that a number of scrupulous judges have exercised this right and obtained the dispensations requested: Judge B Rau in the Anglo-Iranian Oil Co case (1951–52), on the basis that he had participated as the Indian representative in the Security Council sessions dealing with the dispute; Judge H Lauterpacht, who indicated that he had been consulted on the Nottebohm case (1953–55), in relation to which he consequently stood down; and Judge J Basdevant, who requested leave to stand down in the case of the Judgments of the UNAT (1954) because of his close relationship to the President of that Tribunal,94 whose judgments were reviewed by the Court. Paragraph 3 of Article 17 provides that, in cases of doubt, it is for the Court to decide the question. This reflects the inherent power of a court, necessarily linked to its duty to ensure the proper administration of justice. Who can raise such a doubt? Given the collective interest in the proper functioning of the Court, the right to raise such questions needs to be widely spread. It must extend to the President, to any other judge, and also to governments, especially to those whose countries are parties to the case. The Court showed, in the Namibia opinion (1971) and even more so in the Wall opinion (2004) that it will consider challenges by governments even though such a right to challenge its composition is not provided for in the Statute. Provision was made in Rule 34, paragraph 2.95 Finally, when the Court comes to take a decision under Article 17, paragraph 3, the judges in question do not take part in the vote.

h) Quorum96 Article 25, paragraph 3 of the Statute provides that: ‘A quorum of nine judges shall suffice to constitute the Court.’97 Rule 20 adds: ‘The quorum specified by Article 25, paragraph 3, 93   This can sometimes give rise to problems, as happened when President P Spender requested Judge Zafrulla Khan withdraw from the South West Africa cases in 1966. cf AO Adede, ‘Judicial Settlement in Perspective’ in AS Muller, D Raic and JM Thuransky (eds), The International Court of Justice, Its Future Role after Fifty Years (The Hague/Boston/London, 1997) 53, but the real facts have never been entirely clarified. See also Couvreur, above n 87, 425, with further references. 94   His daughter, Mme S Bastid. 95   ‘If a party desires to bring to the attention of the Court facts which it considers to be of possible relevance to the application of the provisions of the Statute mentioned in the previous paragraph, but which it believes may not be known to the Court, that party shall communicate confidentially such facts to the President in writing.’ 96   See generally, Guyomar, above n 48, 91 et seq. 97   Art 25, § 2 of the Statute provides that: ‘Subject to the condition that the number of judges available to constitute the Court is not thereby reduced below eleven, the Rules of the Court may provide for allowing one or more judges, according to circumstances and in rotation, to be dispensed from sitting.’

138  COMPOSITION OF THE COURT

of the Statute applies to all meetings of the Court’, whether they are judicial, administrative, or of any other kind. Judges ad hoc do not count towards the quorum.98 This is so because the quorum needs to guarantee the presence of a minimal number of elected judges, representing the continuity of the Court and its judicial integrity, whereas the ad hoc judges are more representative of the ‘arbitral’ element. No particular quorum is provided for in relation to Chambers of the Court. One must therefore conclude that the latter cannot function unless all members are present. That is, moreover, comprehensible, given that the number of members is already small. If a member were to withdraw or die, the Court would have to work with the parties to select a replacement, whether an elected judge or a judge ad hoc. The 1972 edition of the Rules contained a Rule 32 (abolished in 1978, no doubt because the problem had become academic), providing that if there was no quorum, the President at the sitting must record the fact and adjourn the meeting. That is always the law. The President alone records the absence of members of the Court.99 The Court itself cannot function, precisely for the reason that it is inquorate. The quorum problem was more serious at the PCIJ than it is at the ICJ. In those days, the number of elected judges was smaller than in it is today (11 as opposed to 15), and they were not obliged to reside at The Hague. Thus, in the Serbian Loans case, in 1928, and in the Free Zones case in 1931, the Court had to adjourn for want of a quorum.100 Since then, the problem has virtually disappeared. The present Court has never been faced with it, and there is little chance that it will do so in the future.

2.  ELECTING THE JUDGES

The election of judges (other than ad hoc) is only marginally related to the functioning of the Court. For this reason the present section is much briefer than the one on judges ad hoc. There is plenty of literature dealing with the details, and the interest of it is more political than legal.101 Members of the Court are elected for nine years. A third of the membership comes up for renewal every three years. Judges are eligible for re-election.102 The one-third renewal every three years is designed to avoid the entire Bench being renewed simultaneously. That would have a deleterious effect on the continuity of the Court’s jurisprudence, which is vital. It would also be prejudicial to the Court’s activities, since there would be no experienced judges able to give the benefit of their experience to newly elected ones. The present system of staggered elections was not a feature of the PCIJ, but was introduced for the ICJ. Under it, five judges are elected every three years. Since they are eligible for re-election, not 98   Rule 20, § 3: ‘Judges ad hoc are likewise bound to hold themselves at the disposal of the Court and to attend all meetings held in the case in which they are participating. They shall not be taken into account for the calculation of the quorum.’ 99   This was decided at the time of the revision of the 1936 Rules: Guyomar, above n 48, 92. 100   cf Hudson, above n 28, 337; Guyomar, ibid, 94–97. See also V Bruns, ‘La Cour permanente de Justice internationale – Son organisation et sa compétence’ CCHAIL, vol 62, 1937-IV, 547 et seq. 101   For the PCIJ, see in particular Hudson, above n 28, 241 et seq. For the early years of the ICJ, see Dubisson, above n 8, 31 et seq. For the present situation, see Zimmermann, Tomuschat and Oellers-Frahm, above n 1, 205 et seq., and the numerous references given there. See also Rosenne, above n 75, vol I, 1997, 372 et seq.; and ICJ Yearbook, under the heading ‘Members of the Court’. 102   Art 13, § 1 of the Statute begins ‘The members of the Court shall be elected for nine years and may be reelected . . .’



ELECTING THE JUDGES 139

all of them will necessarily be new faces on the Bench. Given the ages of members of the Court, and their relatively long mandates, no judge has so far served more than two terms,103 but there is no statutory prohibition against it, and theoretically a judge could be re-elected on an unlimited number of occasions. The Latin American States have, however, agreed on a rotation of their membership, and therefore Latin American judges do not present themselves for re-election. To ensure that the system of re-electing one third every three years would apply from the outset, what happened was that, at the first election (in 1946) the judges drew lots to decide which five would have a mandate of three years, which five of six years, and which five would have the ordinary nine-year mandate.104 If a seat becomes vacant, a new election takes place. The new judge completes his predecessor’s mandate.105 He can then be re-elected, even, indeed, if there is an intervening period for which he is not elected.106 When their mandates expire, judges nevertheless continue to sit on those cases, still pending, of which they were seised during the period of their mandates.107 In this way, the Statue ensures continuity in the Bench’s composition throughout the particular case, since obviously a judge who has been sitting throughout the proceedings should remain in place until the final decision. For the purposes of each election, the UN Secretary-General draws up a list of the candidates proposed under Articles 5 and 6 of the Statute.108 He sends the list to the General Assembly and the Security Council, which are the electing bodies.109 Article 5 reads as follows: 1. At least three months before the date of the election, the Secretary-General of the United Nations shall address a written request to the members of the Permanent Court of Arbitration belonging to the states which are parties to the present Statute, and to the members of the national groups appointed under Article 4, paragraph 2, inviting them to undertake, within a given time, by national groups, the nomination of persons in a position to accept the duties of a member of the Court.

103   The Polish Judge B Winiarski was elected for three mandates, but the first one was only for three years. He sat on the Court from 1946 until 1967. As mentioned below, at the first election, in order to ensure that a third of the mandates could be renewed every three years, lots were drawn, for five three-year mandates, five six-year mandates, and five mandates for the normal nine years. Judge Winiarski drew a three-year lot, but was subsequently re-elected for two full mandates. 104   Art 13, § 1 of the Statute reads as follows: ‘The members of the Court shall be elected for nine years and may be re-elected, provided, however, that of the judges elected at the first election, the terms of five judges shall expire at the end of three years and the terms of five more judges shall expire at the end of six years.’ In this way it was decided that Judges Badawi (Egypt), Hsu Mo (China), Read (Canada), Winiarski (Poland) and Zoricic (Yugoslavia) would stay on for three years; that judges Visscher (Belgium), Fabela (Mexico), Hackworth (USA), Klaestad (Norway) and Krylov (USSR) would stay on for six years, and that Judges Alvarez (Chile), Azevedo (Brasil), Basdevant (France), Guerrero (El Salvador), and McNair (UK) would stay on for nine years. 105   Art 14 of the Statute: ‘Vacancies shall be filled by the same method as that laid down for the first election, subject to the following provision: the Secretary-General shall, within one month of the occurrence of the vacancy, proceed to issue the invitations provided for in Article 5, and the date of the election shall be fixed by the Security Council.’ 106   Thus Judge Sir Muhammad Zafrulla Khan (Pakistan) was elected in 1953 to replace Sir Bengal Rau (India), who had died, and whose mandate would have terminated in 1961. In 1964, Sir Muhammad was re-elected, and he sat until 1973. 107   Art 15 of the Statute: ‘A member of the Court elected to replace a member whose term of office has not expired shall hold office for the remainder of his predecessor’s term.’ 108   Art 7, § 1 of the Statute: ‘The Secretary-General shall prepare a list in alphabetical order of the persons thus nominated. Save as provided in Article 12, paragraph 2, these shall be the only persons eligible.’ 109   Art 7, § 2 of the Statute: ‘The Secretary-General shall submit this list to the General Assembly and to the Security Council.’

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2. No group may nominate more than four persons, not more than two of whom shall be of their own nationality. In no case may the number of candidates nominated by a group be more than double the number of seats to be filled.

Article 6 provides: Before making these nominations, each national group is recommended to consult its highest court of justice, its legal faculties and schools of law, and its national academies and national sections of international academies devoted to the study of law.110

This system, with its reference to national groups at the Permanent Court of Arbitration (PCA), is an old and honourable one, designed above all to ensure that candidates are people of high moral and professional reputation. The national groups are distinct from the States, even though the members are nominated by their governments for their capacity to fulfil judicial functions on the Permanent Court. At the end of the day, the national groups each select a maximum of four candidates, at least two of whom are of the same nationality as the group. The members of the groups performing these functions are, by definition, potential arbitrators, eligible to sit on arbitral tribunals under the auspices of the PCA which was established by the Hague Conventions I of 1899 and 1907. The point of this system is to ensure that neither impulse nor patronage play an excessive part in the nomination of candidates for the ICJ Bench. However, this does not mean that impulse and patronage are entirely excluded from the election process. Too often, alas, there is very little discussion of a candidate’s individual intrinsic qualities, much more attention being paid to the country and the system he is considered to represent. Nevertheless, overall, the procedure of nomination by national groups has proved itself. That is why the system continues, faute de mieux, at least for the time being. The ICJ Judges are elected by the UN General Assembly and Security Council. The two bodies hold separate but simultaneous votes.111 States that are parties to the Statute of the Court but not Members of the UN participate in the General Assembly vote on a footing of 110   Such wider consultations are very rare, since the persons named on the PCA lists are generally of inter­ national stature, and the desire to review the persons on the list would therefore be pointless and tiresome, indicating an excessive preoccupation with procedure. 111   Arts 8–12 of the Statute. Art 8 reads: ‘The General Assembly and the Security Council shall proceed independently of one another to elect the members of the Court.’ Art 9: ‘At every election, the electors shall bear in mind not only that the persons to be elected should individually possess the qualifications required, but also that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured.’ Art 10: ‘1. Those candidates who obtain an absolute majority of votes in the General Assembly and in the Security Council shall be considered as elected. 2. Any vote of the Security Council, whether for the election of judges or for the appointment of members of the conference envisaged in Article 12, shall be taken without any distinction between permanent and non-permanent members of the Security Council. 3. In the event of more than one national of the same state obtaining an absolute majority of the votes both of the General Assembly and of the Security Council, the eldest of these only shall be considered as elected.’ Art 11: ‘If, after the first meeting held for the purpose of the election, one or more seats remain to be filled, a second and, if necessary, a third meeting shall take place.’ Art 12: ‘1. If, after the third meeting, one or more seats still remain unfilled, a joint conference consisting of six members, three appointed by the General Assembly and three by the Security Council, may be formed at any time at the request of either the General Assembly or the Security Council, for the purpose of choosing by the vote of an absolute majority one name for each seat still vacant, to submit to the General Assembly and the Security Council for their respective acceptance. 2. If the joint conference is unanimously agreed upon any person who fulfills the required conditions, he may be included on its list, even though he was not included in the list of nominations referred to in Article 7. 3. If the joint conference is satisfied that it will not be successful in procuring an election, those members of the Court who have already been elected shall, within a period to be fixed by the Security Council, proceed to fill the vacant seats by selection from among those candidates who have obtained votes either in the General Assembly or in the Security Council. 4. In the event of an equality of votes among the judges, the eldest judge shall have a casting vote.’



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equality with Members, in accordance with General Assembly Resolution 264 (III) of 8 October 1948. The draftsmen of the Charter decided to associate the Security Council with the elections because they thought elections were important, and that the UN’s executive organ (with the five Permanent Members) ought therefore to be involved. So they continued the PCIJ system, under which the Assembly and the Council of the League of Nations took part in the election of judges. Under Article 8 of the Statute, the election in each of the two bodies takes place ‘independently’ of the other. This reflects the idea that the two bodies are on a footing of equality and that neither is subordinate to the other. The independent double election sometimes poses problems of coordination between the two bodies. In principle, each should wait for the other to notify it of its election results. It has happened, however, for example in 1951, that the Presidents of the two bodies concerted action prior to the election, with the result that the elections were no longer ‘independent’ within the meaning of the Statute. In any case, it will be noted that it has never, at least so far, been necessary to set up a joint conference, as provided for in Article 12 of the Statute, after the third election meeting. The election often ends with the first meeting. However, it can happen that, at one of the meetings, a series of votes is needed in order to elect the candidates. This happened in 1966. In that year, 20 votes were needed in the Security Council before a sufficient majority was able to elect five candidates.112 It was not obvious that multiple votes might be necessary at the same meeting, and so the question was controversial. Finally, however, that relatively liberal interpretation was accepted.113 Voting is secret. It is by absolute majority, meaning that the candidates who obtain an absolute majority in both bodies are elected. As to the voting rules, the absolute majority in the General Assembly is not calculated, as it usually is, on the basis of States present and voting,114 but on the basis of States entitled to participate in the vote.115 The requisite majority is thus a little more difficult to obtain than it usually is. These arrangements also reflect the fact that various States which are not Members of the United Nations are members of the electoral body. As to voting in the Security Council, the most important modification of the ordinary rules is that the veto provided for in Article 27, paragraph 3 of the Charter does not apply. This results from Article 10, paragraph 2 of the Statute, which provides that: ‘Any vote of the Security Council, whether for the election of judges or for the appointment of members of the conference envisaged in Article 12, shall be taken without any distinction between permanent and non-permanent members of the Security Council.’ From the legal perspective, Article 10 of the Statute – as lex specialis – in this respect derogates from Article 27, paragraph 3 of the Charter, the election of judges being itself a nonprocedural question.116 Alternatively, one might argue that, by virtue of the provision in 112   SD Bailey and S Daws, The Procedure of the UN Security Council, 3rd edn (Oxford, 1998) 312. Where there are multiple votes and divergences between the General Assembly and the Security Council, it is usually the General Assembly whose views prevail, and the Security Council which yields. cf S Rosenne, The World Court – What it is and How it Works, 6th edn (Leiden, 2003) 52; Bailey and Daws, ibid, 313 et seq. 113   As to the details, see Dubisson, above n 8, 40–41. 114   Art 18, §§ 2 and 3 of the Charter. 115   This is how the General Assembly (following indications from the San Francisco Conference: UNCIO, vol XVII, 330) interpreted Art 10, § 1 of the Statute, which provides that candidates must be supported by ‘an absolute majority of votes in the General Assembly’. Moreover Art 150 of the General Assembly’s Rules of Procedure stipulates that, in elections for the ICJ, the Assembly will proceed in accordance with the Statute of the Court. Legally, this is a case of renvoi. 116   It should be noted that, in the days of the PCIJ, Art 10, § 1 of the Statute worked by derogation from Art 5, § 1 of the League’s Covenant (the latter provided for the principle of a unanimous vote).

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the Statute, the election of judges is ipso jure considered a procedural question within the meaning of Article 27, paragraph 2 of the Charter. What happens if, at an election meeting, more than five candidates (the number of seats to be filled at each triennial election) obtain an absolute majority? This happened for the first time in 1951,117 when six candidates did so. On a proposal by the USA, it was decided to hold a fresh vote, which resolved the problem. This practice has become generalised. Fresh votes are organised until only five members, and no more, obtain the requisite absolute majority.118 Members of the Court elected at the same General Assembly session, and entering upon their functions at the same time, rank, amongst themselves, according to their respective ages. Members elected at earlier meetings have precedence over the others. If a judge is immediately re-elected, he retains his existing ranking. These matters are provided for in Rule 3, paragraphs 2 to 4.

3.  CHAMBERS OF THE COURT

a)  General Observations A Court of either 11 or 15 members is a large one. The ICJ does not differentiate between the personal skills and expertise of particular judges, and is not always able to act with the speed that urgent situations demand. The sheer size of the Bench makes a certain amount of cumbersome behaviour an unavoidable element of the way the Court functions. Although this is the price which must inevitably be paid if the Court’s justice is to be representative of all forms of civilisation and legal thinking, it can, in particular cases, be unacceptable to the parties. So can the related fact that the full Court has no structure whereby cases can be assessed as a function of the individual skills of particular judges. For that reason it had already been envisaged, back in the days of the PCIJ, that the Court might, in some cases, function with reduced numbers, through the formation of Chambers. At the ICJ, this concept underwent a considerable degree of development during the crisis of the 1970s. The revised Rules of 1972 – and again in 1978 – very firmly opted to give parties the right to request the establishment of Chambers to decide their cases. This was a gamble – that greater flexibility would attract more cases to the Court. In the same way as with the judges ad hoc, the possibility of referring cases to a Chamber is an element of ‘arbitralisation’ in the life of the Court.119 One of the distinctive features of arbitration is the parties’ right freely to choose the arbitrators. Up to a certain point, the constitution of a Chamber of the Court gives them similar rights. As a matter of de facto practice, they can, in reality, choose the elected judges they want, and in addition can each choose a judge ad hoc. In consequence, some States that were previously hesitant or even hostile to the ICJ may be attracted by the fact that they can feel greater confidence in the Chamber that decides their case, and/or by the swifter procedures that are possible in Chamber cases. That, at least, was the view in 1972 and in 1978. In reality, however, such forecasts proved accurate only   See an assessment of various cases in Bailey and Daws, above n 112, 310–12.   See B Fassbender, ‘Article 10’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 1, 292. 119   G Abi-Saab, ‘Cours général de droit international public’ CCHAIL, vol 207, 1987-VII, 265–66. 117 118



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in part. It is true that, from 1983 onwards, a certain number of Chambers were created, starting with the Gulf of Maine case (1984). It is, however, doubtful whether the right to send one’s case to a Chamber – which, anyway, existed even before 1972 – has really attracted additional States to submit contentious cases to the Court. A stronger reason (indeed the biggest single reason) for the renewal of interest in the Court was the emergence of the world from the cold war, and the resulting development of international affairs. However that does not alter the fact that Chambers can provide a valuable service in technical cases, urgent cases, and cases where the parties have other reasons for wishing to restrict the composition of the Bench. The Court’s procedural law contains a presumption in favour of the jurisdiction of the full Court in plenary session. Absent some agreement between the parties to the contrary, only the plenary Court has jurisdiction to decide cases. Its jurisdiction has priority, but is legally dispositive. It yields before a contrary agreement between the parties, but only if there is one. A party cannot unilaterally request the establishment of a Chamber unless it has entered into a legally binding agreement with the other party for the establishment of that Chamber. An intervening State, even one intervening as a full party, cannot require the case to be referred to a Chamber. Such a State is intervening in a case which is already afoot, and must do so before the Court or Chamber that is already seised of the matter.

b)  Types of Chambers The Statute contemplates three different kinds of Chamber. The first is the Chamber of summary procedure. This is provided for in Article 29 of the Statute, which reads: With a view to the speedy despatch of business, the Court shall form annually a chamber composed of five judges which, at the request of the parties, may hear and determine cases by summary procedure. In addition, two judges shall be selected for the purpose of replacing judges who find it impossible to sit.

Rule 15 provides that the President and Vice-President are ex officio members and that the other members (including the substitute members) are elected. These rules consolidate what has been the practice since the time of the PCIJ.120 The main purpose of this Chamber is to enable the ‘speedy despatch of business’. It offers States wishing to take advantage of it an accelerated procedure for dealing with disputes. The Statute leaves the question to the choice of the parties. It never requires them to have recourse to the Chamber, but merely opens up the possibility. Two factors make it possible for such a Chamber to deal rapidly with disputes. As is always the case when a Chamber is seised of a case, the smaller number of judges reduces the time needed to manage and hear the case, and the time taken by the judges’ deliberations. In addition, the summary procedures are more streamlined and more linear than the procedures of the full Court, and are designed precisely to speed up the process of disposing of cases. In practice, however, experience has shown that procedures which are excessively summary in nature are difficult to reconcile with the Court’s judicial integrity, with the judges’ wish to be properly informed about the issues, and with the parties’ wish to lay everything they consider important before their judges. Consequently, under the   Hudson, above n 28, 346.

120

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1922 Rules, the summary character of the procedure consisted principally of the fact that the parties could lodge only a single written Memorial. In the rare cases where the parties took their dispute to a Chamber of summary procedure, they still wanted to present their arguments in greater detail than that, and, in particular, they wanted to file Counter-Memorials. For this reason, the Rules of 1972 and 1978 finally aligned the procedures of the Chamber of summary procedure with all the other Chambers.121 The Rules do, however, include supplemental provisions designed to lead to fairly condensed procedures; and those rules can be altered by agreement between the parties.122 These arrangements, which are the fruit of practical experience, explain why Chambers of summary procedure are really not so very distinct from the other Chambers, in particular from those provided for in Article 26, paragraph 2 of the Statute. Not surprisingly, therefore, States do not use them. At the PCIJ, such a Chamber was requested in the case on the Interpretation of the Treaty of Neuilly (1924),123 and then for the interpretation of the judgment in that case (Interpretation of Judgment No 3, 1925).124 In the ICJ, no Chamber of summary procedure has ever been constituted, and it is unlikely that we will see one in the near future. The second type is the ‘thematic’ Chamber. Article 26, paragraph 1 of the Statute provides that: The Court may from time to time form one or more chambers, composed of three or more judges as the Court may determine, for dealing with particular categories of cases, for example, labour cases and cases relating to transit and communications.

Chambers of this type are set up by the Court prior to the emergence of a particular dispute or to the request of a particular State. Here, the objective is to bring together the particular skills of certain judges in relatively technical matters. In this context, the choice of judges with particular expertise or interests serves both to relieve the plenary Court of some of its burdens and to inspire confidence on the part of litigating States. The Statute refers, in this connection, to issues relating to labour, transit and communications. These categories seemed particularly important in 1920, when the PCIJ was set up. That was so because of the creation of the ILO and of the negotiations then under way on transit questions.125 These two categories are, however, mentioned only for illustrative purposes, and not exhaustively. The Statute makes this abundantly clear by introducing the relevant phrase with the words ‘for example’. Since the adoption of the 1920 Statute, certain other categories have become important, and   P Palchetti, ‘Article 29’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 1, 476–77.   Rule 92:

121 122

‘1. Written proceedings in a case before a Chamber shall consist of a single pleading by each side. In proceedings begun by means of an application, the pleadings shall be delivered within successive timelimits. In proceedings begun by the notification of a special agreement, the pleadings shall be delivered within the same time-limits, unless the parties have agreed on successive delivery of their pleadings. The time-limits referred to in this paragraph shall be fixed by the Court, or by the President if the Court is not sitting, in consultation with the Chamber concerned if it is already constituted. 2. The Chamber may authorize or direct that further pleadings be filed if the parties are so agreed, or if the Chamber decides, proprio motu or at the request of one of the parties, that such pleadings are necessary. 3. Oral proceedings shall take place unless the parties agree to dispense with them, and the Chamber consents. Even when no oral proceedings take place, the Chamber may call upon the parties to supply information or furnish explanations orally.’ 123   PCIJ, Series A, no 3, 4 et seq, the Chamber being composed of only three judges – Loder (President), Weiss (Vice-President) and Huber (judge). The dispute was between Greece and Bulgaria. 124   PCIJ, Series A, no 4, 4 et seq., the Chamber having the same composition as in 1924. 125   Hudson, above n 28, 347–48; P Palchetti, ‘Article 26’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 1, 454.



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this in 1993 led the Court, in exercise of its powers under Article 26, paragraph 1, to establish a special Chamber for disputes on environmental issues.126 Here again, the Chamber will hear a case only at the parties’ request, that is, only if they are agreed. Just as in the case of the Chamber of summary procedure,127 an environmental Chamber has never been used.128 The overall conclusion has to be that States prefer to freely constitute Chambers of their own under Article 26, paragraph 2 of the Statute, rather than submit their dispute to a preconstituted Chamber. Besides, it is rare for a case before the Court to concern only one aspect of international law: usually, several legal issues are involved. It is nevertheless difficult to form a view as to whether, in the relatively near future, the way Chambers are set up under Article 26, paragraph 1 of the Statute is likely to change. The third type is the special Chamber, set up as a result of the free choice of the disputing States. Such Chambers are provided for in Article 26, paragraph 2, of the Statute: ‘The Court may at any time form a chamber for dealing with a particular case. The number of judges to constitute such a chamber shall be determined by the Court with the approval of the parties.’ Such Chambers are not pre-constituted. The parties are free to choose not only whether to take their case before such a Chamber, but also the judges to compose it. Such Chambers ad hoc were an innovation in the ICJ Statute: the PCIJ Statute made no provision for them. The proposal came from the USA, and was designed to encourage more States to take their cases to the ICJ. Given the disappointing history of preconstituted Chambers at the PCIJ, it was hoped that, by this means, the idea of a smaller bench would be made more attractive. Special Chambers took on their present definitive form with the Rules revisions of 1972 and 1978. Ad hoc Chambers of this type were set up in the following cases: Gulf of Maine (1982); Boundary dispute Burkina Faso v Mali (1985); Elettronica Sicula SpA (ELSI) (1987); Land, island and maritime frontier dispute El Salvador v Honduras (1987); and in 2002 the request for revision of that judgment; and the Boundary dispute Benin v Niger (2005).129 A Chamber was also envisaged for the dispute between Belgium and Switzerland that came before the Court in December 2009 (now discontinued). Overall, in about 30 years, less than 10 such Chambers have been set up. This suggests that, although the institution of such Chambers is not the major asset that was hoped for in the 1990s, nevertheless there is a real need for such small benches to which States, whether western or from developing countries, can have recourse with a certain degree of regularity. It is, however, not clear (except, probably, for the Gulf of Maine case) whether such States would have deserted the Court in favour of arbitration, if the Chambers mechanism had not been available to them.

c)  Relations between the Chambers and the Court The informing principle is that the Chambers and the Court are juridically equivalent. Under the Statute, the connection between the Chambers and the Court is an extremely close one. Chambers are not distinct bodies that, once created by the Court, have some kind of autonomous existence bordering on independence. Rather, Chambers are considered to be limited  See ICJ Yearbook, 2006/2007, no 61, 29.   And in even greater contrast to the latter, there being no precedent for a thematic Chamber, even at the PCIJ. 128   This is why the Court decided in 2006 not to hold elections to renew the membership of the environmental Chamber, which since that time has existed only on paper – see ICJ Yearbook, 2006/2007, no 61, 29. 129  See ICJ Yearbook 2006/2007, no 61, 30–31. 126 127

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embodiments of the Court itself. The strong assertion that this is a ‘relationship of identity’ is manifest in several different contexts. In the first place, decisions of Chambers are considered to be decisions of the whole Court. Article 27 of the Statute130 provides, in this regard, that: ‘A judgment given by any of the chambers provided for in Articles 26 and 29 shall be considered as rendered by the Court.’ Legally, this implies that all the provisions of the Statute on decisions and judgments of the Court apply also to decisions and judgments of Chambers. This includes, in particular, Article 94, paragraph 2 of the Charter, on measures the Security Council can take to ensure that judgments are carried into effect. Moreover, neither authoritative commentators nor the Court itself make any distinction between Chambers and the Court so far as concerns the weight attaching to their respective jurisprudence. Quite the contrary: in some cases the judgment of a Chamber is cited as the locus classicus on a particular legal question. This is particularly the case as regards the role of title and of ‘effectivités’ (acts evidencing the exercise of public power), as regards the doctrine of uti possidetis, and as regards the importance of cartography in territorial disputes, as defined in the influential judgment of an ad hoc Chamber in the case of the Boundary dispute, Burkina Faso v Mali (1986). Second, the plenary Court’s power to review the activities of its Chambers is reduced to a minimum, a clear indicator of their legal equivalence. In particular, the full Court has no jurisdiction to control the manner in which a Chamber carries out its judicial functions. Plainly, the plenary Court enjoys a certain pre-eminence as regards the composition of Chambers, since only the full Court selects the membership of a Chamber and, if necessary, replaces any judge who is incapable of discharging his duties.131 It is easy to see how far the ‘arbitral’ element is, in this regard, integrated into the structure of the Court. A Chamber of three elected judges and two judges ad hoc (perhaps even three ad hoc, if a third State intervenes qua party) is treated as the legal equivalent of the plenary Court, even though the constitution of such a Chamber has little chance of responding in any significant way to the requirement of Article 9 of the Statute as to the representation of various geographical regions. It would have been possible to take the view that, given this failing in regard to a fundamental feature of the world court’s legit­ imacy, the Chambers should, in one way or another, have been made subordinate to the plenary Court. Nothing of the kind occurred. The draftsmen of the Statute thought that the loss of such representativity posed no particular problem where the parties themselves agreed to it. This does not alter the fact that, from the point of view of the restricted composition of Chambers, it was a bold decision to treat their judgments as jurisprudentially equivalent to those of the full Court.

d)  Jurisdiction of Chambers The jurisdiction of the Chambers is aligned on the jurisdiction of the full Court. A Chamber must, for example, find that it has personal, material and consensual jurisdiction to decide the merits of the dispute. Its jurisdiction covers all the incidental procedures, in conse130   There was no equivalent provision in the Statute of the PCIJ. In those days, Art 73 of the 1936 Rules did contain a rule with roughly the same tenor. On a proposal from the USA, it was included in the new Statute: UNCIO, vol XIV, 111, 335. 131   Land, island and maritime boundary (El Salvador/Honduras), ICJ Reports 1990, 4: ‘[U]nder 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’.



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quence both of Rule 90132 and of the Court’s jurisprudence. In the case of the Land, island and maritime boundary dispute (El Salvador/Honduras), the Court took the view that ‘it is for the tribunal seised of a principal issue to deal also with any issue subsidiary thereto; whereas 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’.133 The rule is thus that the accessory follows the principal.134 That is surely reasonable: the Chamber seised of the case is best placed to form a view of the case’s collateral ramifications. Given the rule of equivalence between the Chambers and the full Court, there is no reason to substitute the latter for the former in the exercise of such powers. Some incidental procedures can, however, affect the composition of a Chamber. It would therefore be possible to take the view that the full Court should deal with them, given that the plenary Court has exclusive responsibility for the composition of the Chambers. For that reason, in the El Salvador/Honduras case, Nicaragua addressed its request to intervene to the plenary Court, and not to the Chamber. However the Court decided that, by virtue of the principle of incidental jurisdiction, the question ought to be decided by the Chamber.135 Judges Shahabuddeen136 and Tarassov137 dissociated themselves from this view. They emphasised that the principle of equality between States was being distorted. Only El Salvador and Honduras had had any say in the composition of the Chamber. Nicaragua had not. So Nicaragua found itself subject to the jurisdiction of a Chamber which it had not chosen, and over whose composition it had had no influence. Also, in the minority view of these two judges, the question of intervention was closely connected with the question of the Chamber’s (re)composition. If the intervention were allowed, it might potentially be necessary partially to reconstruct the Chamber. Only the full Court could do that. The ‘economy of the process’ and the unity of the case’s subject matter, required that the plenary Court should deal with the whole question. Therefore, for reasons of equality between the parties and of a presumption in favour of the plenary Court’s jurisdiction on questions of composition, the full Court ought to decide on Nicaragua’s request to intervene. These arguments, however, are not entirely convincing. The choice of a Chamber rests with the parties. The intervening State, even if it intervenes qua party, takes the case as it finds it. If a Chamber is seised of the case, then the intervening State must plead before the Chamber. The initial parties, who, more often than not, have chosen the Chamber in order to speed the proceedings up, should not be required to forego that privilege just because one or more third States intervene. Besides, the Chamber is, in this respect, no more partial than the plenary court. The argument as to the composition of the Chamber is also rather fragile, given that an intervention on a non-party basis (the situation in the case in question) gives the intervener no right to nominate an ad hoc judge. If it becomes necessary to adjust the composition of the Chamber because there has been an 132   ‘Proceedings before the Chambers mentioned in Articles 26 and 29 of the Statute shall, subject to the provisions of the Statute and of these Rules relating specifically to the Chambers, be governed by the provisions of Parts I to III of these Rules applicable in contentious cases before the Court.’ Parts I–III cover incidental proceedings. 133   ICJ Reports 1990, 4. See also the Boundary dispute (Burkina Faso v Mali), ICJ Reports 1986, 3; and the case of Elettronica Sicula SpA (ELSI), ICJ Reports 1989, 42). 134   An exception, the reasons for which are not very clear, is to be found in Rule 92, § 1: ‘. . . The time-limits referred to in this paragraph shall be fixed by the Court, or by the President if the Court is not sitting, in consultation with the Chamber concerned if it is already constituted.’ There seems no reason why the Chamber, once it has been constituted, should not fix these time-limits itself. 135   ICJ Reports 1990, 4–6. 136   Ibid, 57–58. 137   Ibid, 12–13.

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intervention qua party, the plenary Court must deal with the nomination of the additional judge. There are other incidental questions in relation to which it can be difficult to know whether jurisdiction remains in the plenary Court or is in the Chamber. For example, if there is a preliminary objection on the basis that the Chamber has not been validly constituted, is it for the Chamber itself to decide the question?138 Or is it for the full Court, given that the full Court creates the Chamber in the first place? Is there a distinction to be made between incidental procedures relating to the dispute and those relating to the constitution of the Chamber, the former falling within the Chamber’s competence under the rule that the ‘accessory follows the principal’, the latter falling to the full Court under the principle reserving to the plenary Court all questions relating to the composition of Chambers? In any event it would seem that a challenge to the validity of a Chamber’s constitution should be decided by the full Court, on the basis that it is a parallel decision: the full Court having decided on the formation of the Chamber, it should also decide challenges to what it has done. This also avoids the rather singular possibility of the Chamber being ‘judge in its own cause’ as to whether it is validly constituted. On the other hand, if the parties agree to transfer a case from a Chamber to the plenary Court, it is for the Chamber itself to hear that application and, having been informed of the agreement, to transfer the case ipso jure to the full Court. It would then be necessary to repeat a whole series of procedural steps before the full Court, where there would be a large group of judges who had not previously been following the case. For this reason, there would have to be very solid reasons before the parties could apply to disseise the Chamber in favour of the plenum. In the ultimate analysis, however, that is a question that the parties alone can decide. Once a Chamber has given judgment, any request for interpretation under Article 60 of the Statute, and any demand for revision under Article 61, will be submitted to the same Chamber.139 The body which has decided the case, and only that body, is the one with the legal power (not to mention the one best placed in terms of material knowledge) to give an interpretation or consider the possibility of revision. Rule 100 consequently provides: If the judgment to be revised or to be interpreted was given by the Court, the request for its revision or interpretation shall be dealt with by the Court. If the judgment was given by a Chamber, the request for its revision or interpretation shall be dealt with by that Chamber.

The words ‘that Chamber’ clearly refer to the Chamber and not to the full Court; they can also be interpreted as referring to the Chamber as it was constituted at the time of the judgment now coming up for interpretation or revision. As far as concerns interpretation, it seems to go without saying that, so far as possible, the Chamber should be of identical composition as when judgment was given. As to revision, the need is somewhat less obvious. Nevertheless, legally the Court is not obliged to constitute a Chamber of the same composition as the one that gave the original judgment.140 Sometimes, moreover, that is impossible, if, for example, one or more of the judges has died. It may, in any event, be difficult where judges have ceased to exercise their functions. However, the Court will consult the parties and do its utmost to comply with their wishes. In the El Salvador/Honduras case cited above, a request for revision led the Court to constitute a Chamber to hear it. That Chamber was constituted de novo, with a different membership from the Chamber that   Palchetti, ‘Article 26’, above n 125, 446.   Ibid, 470–71. 140   See Guyomar, above n 48, 631–33. 138 139



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had given the original judgment.141 If, however, the parties agree that the plenary Court should deal with the interpretation or revision, there is no reason for the Court to refuse, since, indeed, the jurisdiction of a Chamber depends, from the first, on the wishes of the parties. If they do not want a Chamber, they will not have one, and in default of a Chamber, the plenary Court automatically has jurisdiction, on a residual basis. Rule 100 is no obstacle to this. First, it does not provide that only the Chamber is competent to deal with this type of request. All it provides for is the ordinary rule of parallel decision, without imposing the choice of a Chamber. So the parties can decide otherwise. Moreover there is also Rule 101, which gives the Court power to allow derogations from certain Rules where a case is pending. Amongst such dispositive norms is Rule 100 itself. In this case, however, a derogation would not seem to be legally necessary, since Article 100 does not contain any rule making the Chamber the obligatory jurisdiction, and since an essential condition is unsatisfied in the case we are considering, namely the consent of the parties. Can a Chamber of the Court give an advisory opinion? On the one hand, this does not seem to be one of the competences of a Chamber.142 It is true that the Rules contain no express provision in that regard.143 Nevertheless, a careful reading of Article 102 and subsequent Articles, on the procedures for advisory opinions, seems to show that the draftsmen probably did not contemplate it any more than the words of the Statute do. Besides, the creation of a Chamber presupposes the consent of the parties.144 But in the procedure on advisory opinions, there are no parties. Article 27 of the Statute likewise envisages Chambers being used only in contentious cases. Given the institutional importance of advisory opinions, it would be understandable if it were required that they always be the work of the Court in plenary session. Moreover, Rule 103 contains provisions for accelerating advisory procedures if circumstances require it.145 Unlike in contentious cases, where speed is a central argument for taking the case to a Chamber, speed is significantly less important in advisory cases. This is so since the Court normally gives its opinions fairly swiftly. It is only in contentious cases, in which States frequently seek adjournments, that delays tend to build up, sometimes to a remarkable degree. So much, then, for the case against using Chambers in advisory cases. We will now consider the reverse side of the coin. If the body requesting the advisory opinion were itself to ask for a thematic Chamber or an ad hoc one, should that request be granted?146 What weight would it carry with the Court? Given that, when the 1978 Rules were being prepared, a draft rule expressly reserving jurisdiction in advisory cases to the full Court was actually struck out, it might be possible to argue that, since there seems to be no conflict between the request and any principle of inter­national public policy (ordre public) or judicial integrity, the Court might be justified in allowing such a request. It is equally obvious that, in such circumstances, the provisions requiring the   ICJ Reports 2002, 618 et seq.   Palchetti, above n 125, 446–47; Hudson, above n 28, 346; SM Schwebel, ‘Chambers of the International Court of Justice Formed for Particular Cases’ in Essays S Rosenne, (Dordrecht, 1989) 764–66. 143  The 1922 Rules, as amended in 1926/1927, excluded in Art 71, a contrario, the constitution of such Chambers; ‘Advisory opinions shall be given after deliberation by the full Court.’ 144   Art 26, § 3 and Art 29 of the Statute. 145   ‘When the body authorized by or in accordance with the Charter of the United Nations to request an advisory opinion informs the Court that its request necessitates an urgent answer, or the Court finds that an early answer would be desirable, the Court shall take all necessary steps to accelerate the procedure, and it shall convene as early as possible for the purpose of proceeding to a hearing and deliberation on the request.’ 146   For a favourable answer, see E Lauterpacht, Aspects of the Administration of International Justice (Cambridge, 1991) 97–98. 141 142

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consent of the parties in the case before a Chamber can be constituted would not apply. Since neither the Statute nor the Rules impose conditions for the creation of a consultative Chamber, it would necessarily be for the Court itself to take the decision. However, the Court could, and perhaps should, comply with the requesting body’s wishes unless there were serious countervailing reasons connected with the circumstances of the particular case. Finally, could the Court, on a motu proprio basis, itself refer a request for an advisory opinion to a Chamber, if it seemed appropriate in the particular circumstances of the case (for example, if the request relates to environmental matters, there being a thematic Chamber under Article 26, § 1, of the Statute)? The answer is not clear. The Court doubtless has an inherent power to do so, deriving from its power to constitute Chambers. The Statute and the Rules, alike silent on this point, pose no significant obstacle to such a decision. Nevertheless, the Court would need to think twice about it, and to exercise serious restraint, before it took any such step. The giving of an advisory opinion by a smaller bench would necessarily be seen as the kind of anomaly that could only be justified by strong circumstantial reasons – unless, that is, it was requested by the requesting organ itself.

e)  Functioning and Procedure It is the Court that sets up thematic and summary Chambers, deciding their character and composition. Rule 16, paragraph 1 provides in this regard that: When the Court decides to form one or more of the Chambers provided for in Article 26, paragraph 1, of the Statute, it shall determine the particular category of cases for which each Chamber is formed, the number of its members, the period for which they will serve, and the date at which they will enter upon their duties.

So the Court is also free to decide to close down a Chamber, subject to the completion of cases of which it is already seised. Rule 16, paragraph 3 provides: ‘The Court may decide upon the dissolution of a Chamber, but without prejudice to the duty of the Chamber concerned to finish any cases pending before it.’ Ad hoc Chambers are created by the Court on the request of the parties. The Statute contains no provisions as to the influence of the parties’ wishes other than in relation to the number of the judges that are to sit. The second sentence of Article 26, paragraph 2 provides that: ‘The number of judges to constitute such a chamber shall be determined by the Court with the approval of the parties.’ However, the 1978 Rules contain a significant extension to the influence the parties can exercise. By virtue of this change they were given the right to make concrete proposals as to the Chamber’s composition, although the ultimate decision is reserved to the Court. Rule 17, paragraph 2 provides: ‘When the parties have agreed, the President shall ascertain their views regarding the composition of the Chamber, and shall report to the Court accordingly.’ Although this increased influence of the parties was challenged in the Gulf of Maine case on the basis of an argument that it was incompatible with the Statute,147 the Court’s consistent practice nowadays is to give all ad hoc Chambers the composition the parties request.148 If the Court did otherwise, the risk would be that they would withdraw the case and take it to arbitration instead. Doubtless   See above text at n 19 et seq.   See Thirlway, above n 86, 46 et seq.

147 148



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the Court takes the view that there is neither a peremptory reason under the Statute nor any peremptory requirement of judicial integrity that is inimical to this practice, and thus feels able to avoid taking a step that might encourage the parties to look for a different jurisdiction. It is nonetheless the case that, since the parties have this influence (in current practice a decisive one) on the composition of the Chamber, the Court is effectively relegated to the role of a rubber stamp. This represents a marked advance in the process of ‘arbitralising’ the ICJ, and that fact does give rise to problems in relation to Article 9 of the Statute. In effect, the modern practice is that parties can decide to have regional Chambers, even ones in which ad hoc judges are almost equal in number to the elected ones – and yet, even so, the Chamber’s decision, when given, will be stamped with the particular authority of a judgment of the International Court of Justice, with the full benefit of the enforcement provisions set out in Article 94, paragraph 2 of the UN Charter. So, for example, western States might constitute a Chamber made up exclusively of western judges, African countries a Chamber with a membership exclusively of judges from developing countries, and so on. The judgments of such Chambers would still be considered judgments of the ICJ. Until now, however, this danger has been avoided. With the sole exception of the Gulf of Maine case, in which the relationship between the parties and the Court was rather a tense one, parties have behaved in a conciliatory and reasonable way. The Court must, nevertheless, remain vigilant to ensure that States’ influence over the composition of Chambers does not degenerate, to the point of putting in issue the ICJ’s character as a global jurisdiction, and as the UN’s principal legal organ. In the last resort, the Court’s power to choose the judges of the Chambers suffices for these purposes, provided it is exercised intelligently. In other words, there is a great deal to be said for the way the ICJ’s pragmatic attitude has so far played out in practice. For the future, however, the Court needs to be careful not to drop its guard. The election of judges to sit in Chambers, whether special, of summary procedure, thematic or ad hoc, is by secret ballot.149 For special Chambers, the electors take account of ‘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’.150 For ad hoc Chambers, they take account, above all, of the parties’ wishes, as ascertained through consultations, and also of the ratio legis of Article 9 of the Statute, applied by analogy.151 The President of the Court is, ex officio, a member and president of the Chamber of summary procedure.152 In relation to thematic or ad hoc Chambers, Rule 18, paragraph 2 provides an alternative: if the President or the Vice-President are elected to the Chamber, they preside over it ex officio; otherwise, the Chamber elects its own president by simple majority in a secret ballot.153 The president of the Chamber has powers analogous to those 149   Rule 18, § 1: ‘Elections to all Chambers shall take place by secret ballot. The Members of the Court obtaining the largest number of votes constituting a majority of the Members of the Court composing it at the time of the election shall be declared elected . . .’ 150   Rule 16, § 2. 151   Despite the fact that a reference to Art 9 in the constitution of Chambers seems to have been eliminated from the Statute in 1945: cf Guyomar, above n 48, 69. Art 9 does not apply directly, it is true: but the Court should not completely disregard the spirit of it. 152   Rule 15, § 1: ‘The Chamber of Summary Procedure to be formed annually under Article 29 of the Statute shall be composed of five Members of the Court comprising the President and Vice-President of the Court, acting ex officio, and three other members elected in accordance with Article 18, paragraph 1, of these Rules.’ 153   Rule 18, § 2: ‘If a Chamber when formed includes the President or Vice-President of the Court, or both of them, the President or Vice-President, as the case may be, shall preside over that Chamber. In any other event, the

152  COMPOSITION OF THE COURT

of the President of the Court.154 One should note that there is now a generalised practice of electing the President of the Court as a member of ad hoc Chambers, which helps to cement the ties between the Chambers and the full Court. As we have seen, the right to nominate a judge ad hoc applies to proceedings before Chambers of the Court.155 Such judges sit only in the Chamber concerned. When the full Court is called upon to decide a question concerning the relationship between the Court and the Chamber, or concerning the latter’s composition, the Chamber’s ad hoc judges do not sit. If a third State intervenes qua party, it has the right to nominate a judge ad hoc. In that event, a certain recomposition of the Chamber may be necessary. This is one reason why it is helpful for requests to intervene to be made as early as possible. In this regard, Rules 81 and 82, dealing respectively with intervention under Articles 62 and 63 of the Statute, provide that a request for intervention must be made ‘as soon as possible, and not later than the closure of the written proceedings’ (Article 81, § 2) or ‘as soon as possible, and not later than the date fixed for the opening of the oral proceedings’ (Article 82, § 1). These time limits are not a wholly inflexible barrier to late applications, since in both cases there is an exception for exceptional circumstances: ‘In exceptional circumstances, an application [in the case of Article 82, the word ‘declaration’ is substituted for ‘application’] submitted at a later stage may however be admitted.’ Such an intervention qua party, involving the nomination of a judge ad hoc, has not so far occurred. If it did, problems would arise as to the composition of the Chamber. In relation to such an intervention, the Chamber would comprise six judges, of which three would be judges ad hoc. Such a balance between elected and ‘arbitral’ judges is inconsistent with the spirit of the Statute. If more than one intervener participated in the proceedings as a full party, it would probably be difficult to conclude that the interveners had the ‘same interest’, since normally the purpose of intervention is to safeguard one’s own particular interests. This implies that a Chamber could end up with more judges ad hoc than elected ones. If ever this problem were to occur, it would give rise to a very tricky question as to the Chamber’s composition. One solution might be to proportionately increase the number of elected judges. However, in that case, the whole point of having a Chamber would be considerably reduced. The interveners would have imposed on the original parties, and against their wishes, a quasiplenary Chamber. Alternatively, it would be possible to make a rule that, if a Chamber exceeds a fixed number of judges (say seven), it automatically loses its jurisdiction and the case returns to the plenary Court. Here too, the question arises of whether it would be fair, by such means, to enable States intervening qua parties to deprive the original parties of the benefit of their decision to take the case to a Chamber. If the interveners become parties to the case, then, given the difficulties of composition that would otherwise arise, this solution might nevertheless be contemplated. It does not, however, entirely resolve the issues, given that the composition of the plenary Court might itself need to go up, to 19, 20 or 21 judges. Here too, a maximum number would surely need to be laid down. In order not to permit an unjustified interference with the equality of the parties, it would be necessary to provide that the interveners must agree on one or two ‘joint’ judges ad hoc. In short, if situChamber shall elect its own president by secret ballot and by a majority of the votes of its members. The Member of the Court who, under this paragraph, presides over the Chamber at the time of its formation shall continue to preside so long as he remains a member of that Chamber.’ 154   Rule 18, § 3: ‘The president of a Chamber 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.’ 155   Art 31, § 4 of the Statute.



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ations of this kind were to crop up in real life, some kind of amendment to the Rules would doubtless be necessary. It is possible for assessors to be coopted to serve on a Chamber. We are talking here about experts with no right to vote. Article 30, paragraph 2 of the Statute provides that: ‘The Rules of the Court may provide for assessors to sit with the Court or with any of its chambers, without the right to vote.’ Rule 9, paragraph 1 and 4 do so: ‘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’; and: ‘The same powers shall belong to the chambers provided for by Articles 26 and 29 of the Statute and to the presid­ ents thereof, and may be exercised in the same manner.’ The presence of assessors might be particularly valuable in thematic Chambers, which often need specialist expertise. However that may be, the right to coopt assessors has yet to be exercised. When a case goes to a special Chamber (whether summary or thematic) things are different from ad hoc Chambers. The request for referral to a special Chamber must be indicated in (or accompany) the document instituting the proceedings. Rule 91, paragraph 1 provides that: When it is desired that a case should be dealt with by one of the Chambers which has been formed in pursuance of Article 26, paragraph 1, or Article 29 of the Statute, a request to this effect shall either be made in the document instituting the proceedings or accompany it. Effect will be given to the request if the parties are in agreement.

By contrast, a request to seise a Chamber ad hoc may be made at any time prior to the closure of the proceedings’ written phase. Rule 17, paragraph 1 provides as follows: ‘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 . . .’. It seems, anyway, that the Court could make some exceptions to these rules, for example, by permitting a case that has already begun to be referred to a thematic Chamber after it has begun. Generally speaking, it is understandable that the parties are required to indicate as early as possible, after the case begins, whether they want it to go to the Chamber of summary procedure, given that speed will be their objective. Nonetheless, excessive rigour as to the timetable seems inappropriate. It could be helpful to manage even a referral to the Chamber of Summary Procedure in a fairly flexible way. Otherwise, dissatisfied parties could discontinue their case, and immediately start a new one before the whole Court, this time round asking at the outset for the Chamber of Summary Procedure. It seems improbable that the Court would see in this a procedural abuse, a device to get round Rule 91, paragraph 1. So it is better to consult the parties as to the best way to transfer the case to the summary procedure Chamber, rather than to refuse, in a way which will probably prove sterile. This is, in any event, the situation as it would be up until the closure of the written procedure. After that, the parties no longer have anything to gain from a transfer. The Court can quickly start deliberating and can then deliver its judgment. There is no way of gaining further time. On the contrary, the transfer would merely create delays and problems, if for example judges ad hoc had to be nominated to serve on the Chamber, and they had not been following the case since the beginning. In addition, a request to withdraw the case from the plenary Court at such a late stage would probably amount to an abuse. Once seised of the case, the Chamber operates – as a default mode – according to the same procedural rules as the plenary Court. Rule 90 puts it as follows:

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Proceedings before the Chambers mentioned in Articles 26 and 29 of the Statute shall, subject to the provisions of the Statute and of these Rules relating specifically to the Chambers, be governed by the provisions of Parts I to III of these Rules applicable in contentious cases before the Court.

The second general principle is that procedure in all three types of Chamber is fundamentally the same, subject to any changes that the parties are free to make. Rule 92 makes no distinctions. This may astonish the casual observer, who might have supposed that the summary procedure Chamber would follow quite different rules from those in the other kinds of Chamber. However, there is nothing to stop the Court taking account of the parties’ wishes, given that the rules do leave it a certain margin of flexibility. The third general principle governing Chambers procedure is that the main objective is to speed the proceedings up. The strongest reason for parties to choose a Chamber, whatever its type, is normally the desire to simplify the procedure and accelerate the pace at which the case is handled. Obviously the Chambers must not fail to respond to this objective, their procedures accommodating it and in any event never working against it. In principle, each party’s case should be presented to the Chamber in a single written document. In addition, the Chamber can, unlike the Court, if the parties agree, dispense with oral argument altogether. Admittedly, however, parties do not, in practice, cooperate with all the efforts Chambers make to simplify and accelerate the procedure. Parties have not wanted to give up the practice of filing Counter-Memorials and Replies, nor the practice of holding oral hearings. For these reasons, the duration of Chambers cases has, more and more, come to resemble the duration of plenary ones.156 This implies that parties may be looking to Chambers proceedings not so much for speed as to get the judges of their choice. For their part, the Chambers have never opposed the parties’ concerted wishes to benefit from the full range of argumentation, both written and oral. Rule 92 lays down the general course of Chambers procedure. It reads: 1. Written proceedings in a case before a Chamber shall consist of a single pleading by each side. In proceedings begun by means of an application, the pleadings shall be delivered within the same time-limits, unless the parties have agreed on successive delivery of their pleadings. The time-limits referred to in this paragraph shall be fixed by the Court, or by the President if the Court is not sitting, in consultation with the Chamber concerned if it is already constituted. 2. The Chamber may authorize or direct that further pleadings be filed if the parties are so agreed, or if the Chamber decides, proprio motu or at the request of one of the parties, that such pleadings are necessary. 3. Oral proceedings shall take place unless the parties agree to dispense with them, and the Chamber consents. Even when no oral proceedings take place, the Chamber may call upon the parties to supply information or furnish explanations orally.

4.  THE REGISTRY

Like any other body, a court of justice needs an administrative organisation. In the case of the ICJ, this body is the Registry or Greffe, headed by the Registrar (Greffier).157 The Statute   Palchetti, ‘Article 26’ above n 125, 453.   For the PCIJ, see Hudson, above n 28, 301et seq. For the ICJ, see Dubisson, above n 8, 69 et seq.; Guyomar, above n 48, 119 et seq.; M Shaw, ‘Article 21’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 1, 384 et seq. Concise information is provided in ICJ Yearbook, 2006/2007, no 61, 191 et seq. The composition of the Registry is 156 157



THE REGISTRY 155

says relatively little on this subject, merely empowering the Court to deal with it. Article 21, paragraph 2 of the Statute provides: ‘The Court shall appoint its Registrar and may provide for the appointment of such other officers as may be necessary.’ Rules 22 to 29 lay down the functions of the Registry, in almost luxuriant detail. The way the Registry is organised is decided by the Court following proposals from the Registrar. Its powers and responsibil­ ities are set out in instructions drawn up by the Registrar and approved by the Court.158 The Registrar is elected for a seven-year term,159 and can then be re-elected.160 The election takes place, by secret ballot, from a list of candidates proposed by members of the Court.161 The Rules do not contain a systematic indication of incompatible activities, similar to those that apply to the judges themselves. However, the judges, as electors, always satisfy themselves that, in addition to having the appropriate aptitudes, candidates will be truly independent.162 The Court also elects a Deputy-Registrar, under the same conditions and following the same procedures.163 The provisions applicable to the Registry apply mutatis mutandis to the Deputy-Registrar. He stands in for the Registrar whenever the latter is absent. the subject of Rule 28, § 1: ‘The Registry shall comprise the Registrary, the Deputy-Registrar, and such other staff as the Registrar shall require for the efficient discharge of his functions.’ On the Registrar’s functions, see P Couvreur, ‘Aperçu du statut et des fonctions du greffier de la Cour internationale de Justice’ in C Apostolidis (ed), Les arrêts de la Cour internationale de Justice (Dijon, 2005) 65 et seq. 158   Rule 28, §§ 2 and 3. 159   In the 1946 Rules, Art 14, § 5 provided that, unlike the judges, who, if elected to fill vacant seats, completed their predecessor’s mandates, the Registrar was always elected for a seven-year term, even if they were filling a vacant place. This provision was not included in the 1978 Rules. 160   Art 21, § 2, of the Statute and Rule 22. He can be dismissed only in the strictly circumscribed circumstances of Rule 29, § 1: ‘The Registrar may be removed from office only if, in the opinion of two-thirds of the Members of the Court, he has either become permanently incapacitated from exercising his functions, or has committed a serious breach of his duties.’ Such incapacity may be physical or otherwise, or result from a breach that is of a certain gravity and undermines the confidence the Court can and must have in the Registrar. Paragraph 2 adds: ‘Before a decision is taken under this Article, the Registrar shall be informed by the President of the action contemplated, in a written statement which shall include the grounds therefore and any relevant evidence. He shall subsequently, at a private meeting of the Court, be afforded an opportunity of making a statement, of furnishing any information or explanations he wishes to give, and of supplying answers, orally or in writing, to any questions put to him.’ The same goes for the Deputy-Registrar (§ 3). Fortunately, these provisions have never needed to be applied. It is, moreover, highly unlikely that they will be applied at some future date, especially since a Registrar to whom the procedure applied would probably resign immediately. Art 29 does, however, fill in a lacuna, given that the Statute provides, in Art 18, § 1, for the dismissal of a judge, but nowhere provides for the dismissal of a Registrar. cf Guyomar, above n 48, 165. 161   Rule 22, § 1: ‘The Court shall elect its Registrar by secret ballot from amongst candidates proposed by Members of the Court.’ Given that the vote must be a secret one, the President will not have a casting vote. Formally speaking, candidatures must be proposed by the members of the Court or by one of their number. A letter of candidature addressed to the President was, however, considered sufficient in the time of the PCIJ, the President transmitting it to the Court: cf PCIJ, Series E, no 13, 136. The vote is by simple majority – Rule 22, § 4. The Registrar makes a solemn declaration before the Court before taking office: ‘I solemnly declare that I will perform the duties incumbent upon me as Registrar of the International Court of Justice in all loyalty, discretion and good conscience, and that I will faithfully observe all the provisions of the Statute and of the Rules of the Court’ (Rule 24, § 1). Similar provisions apply to the staff-members of the Registry under Rule 25, § 2. 162   It is now stipulated that it would be contrary to the due administration of justice if a litigating party were to nominate, as its agent, a former Registrar who had recently left office. Practice Direction No VIII reads as follows: ‘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, judge ad hoc, Registrar, Deputy-Registrar or other 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.’ 163   Rule 23.

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The Registrar’s functions are heavy and complex. They are set out in Rule 26.164 Further duties are imposed by other texts, such as the Practice Directions.165 Article 1 of the Instructions for the Registrar stipulates, moreover, that the Registrar is responsible for all the Registry services, that he has authority over the Registry staff and that he alone is responsible for directing the work of the Registry, of which he is the head. He is assisted by the Deputy-Registrar. In the absence of the Registrar, his place is taken by the DeputyRegistrar, or, if he too is absent, by a staff-member of the Registry designated by the President of the Court.166 The practical burden of ensuring that the Court functions properly thus rest on the shoulders of the Registrar. He needs not only first-class knowledge of international law, but also diplomatic and administrative skills, and the ability to work with people. Registry staff are appointed by the Court on the basis of proposals put forward by the Registrar.167 There are two classifications: permanent and temporary members. All of them must have a sufficient knowledge of the English and French languages, but apart from that, their nationality is not a determining criterion for their appointment. Registry personnel are subject to Staff Regulations in accordance with Rule 28, § 4. The current text of the Staff Regulations was adopted in 1979 and has been revised several times since then.168 In 1997,  ‘1.  The Registrar, in the discharge of his functions, shall: a) be the regular channel of communications to and from the Court, and in particular shall effect all communications, notifications and transmission of documents required by the Statute or by these Rules and ensure that the date of despatch and receipt thereof may be readily verified; 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 proceedings or requesting an advisory opinion are received in the Registry; c) have the custody of the declarations accepting the jurisdiction of the Court made by States not parties to the Statute in accordance with any resolution adopted by the Security Council under Article 35, paragraph 2 of the Statute, and transmit certified copies thereof to all States parties to the Statute, to such other States as shall have deposited declarations, and to the Secretary-General of the United Nations; d) transmit to the parties copies of all pleadings and documents annexed upon receipt thereof in the Registry; e) communicate to the government of the country in which the Court or a Chamber is sitting, and any other governments which may be concerned, the necessary information as to the persons from time to time entitled, under the Statute and relevant agreements, to privileges, immunities, or facilities; f) be present, in person or by his deputy, at meetings of the Court, and of the Chambers, and be responsible for the preparation of minutes of such meetings; g) make arrangements for such provision or verification of translations and interpretations into the Court’s official languages as the Court may require; h) sign all judgments, advisory opinions and orders of the Court, and the minutes referred to in subparagraph f); i) be responsible for the printing and publication of the Court’s judgments, advisory opinions and orders, the pleadings and statements, and minutes of public sittings in cases, and of such other documents as the Court may direct to be published; j) be responsible for all administrative work and in particular for the accounts and financial information in accordance with the financial procedures of the United Nations; k) deal with enquiries concerning the Court and its work; l) assist in maintaining relations between the Court and other organs of the United Nations, the specialized agencies, and international bodies and conferences concerned with the codification and progressive development of international law; m) ensure that information concerning the Court and its activities is made accessible to governments, the highest national courts of justice, professional and learned societies, legal faculties and schools of law, and public information media; n) have custody of the seals and stamps of the Court, of the archives of the Court, and of such other archives as may be entrusted to the Court. 2. The Court may at any time entrust additional functions to the Registrar. 3. In the discharge of his functions the Registrar shall be responsible to the Court.’ 165   See Practice Direction No 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.’ 166   Rule 27. 167   Art 21, § 2 of the Statute, and Rule 25. 168   ICJ Yearbook 2006/2007, no 61, 197–98. 164



THE REGISTRY 157

a sub-committee tasked with rationalising the Registry submitted its conclusions to the Court, which adopted them. The main objective was to rationalise the Registry’s organisation and working methods. The Registry’s organisation reflects the various different services it provides to the Court and the public. There are Departments of Legal Matters, of Linguistic Matters (with interpreters and translators) and a Press and Information Department. In addition, there are particular divisions dealing with the Court’s publications, with its finances, with the Court’s documentation and library, with the archives, with indexation and distribution; with administration questions, with information technology, and with word-processing and the reproduction of documents. Also, the personal assistants assigned to the judges are formally attached to the Registry. Finally one should not forget the telephone operators, receptionists, security guards and messengers. The functions of the Registry and the Registrar can thus be summed up as follows: −− Judicial functions: The Registrar assists the Court in the exercise of its judicial functions. He receives all communications addressed to the Court; he prepares dossiers on each case submitted to the Court; and it is he who sends out all requests for further information. Essentially, he is the general intermediary for communications to and from the Court. He and his staff put together all the documentation necessary for the functioning of the Court, particularly relevant precedents, historical sources that shed light on cases, the texts of relevant treaties and legislation and so on. In addition, the Registry keeps the records of all cases that come before the Court. The Registrar is responsible for the transcripts of public hearings, which are signed by him as well as by the President of the Court. The same goes for the originals of the Court’s decisions. The Registrar is responsible for drafting the minutes of Court sessions not held in public. He also gives assistance to drafting committees that are working on judgments and opinions – a service whose importance and value it is difficult to overstate. −− Diplomatic functions: the Registrar handles correspondence with governments on all matters concerning the Court, and also in relation to individual cases, whether contentious or advisory. He negotiates with States on questions concerning the Court or the Registry, for example with the Netherlands, the Court’s host country. He is also in charge of relations between the Court and the organs of the United Nations, particularly the UN Secretariat. Finally, the Registrar maintains press relations and drafts the Court’s press communiqués. −− Administrative functions: the Registrar and Registry personnel fulfil a whole series of administrative functions. These include, for example, the preparation of the Court’s publications and of its annual reports to the UN General Assembly; financial administration; procurement; dealing with personnel matters; administration of the archives and the library; and administration of the Court’s property at the Peace Palace (which itself belongs to the Carnegie Foundation169). −− Language functions: The official languages of the Court are French and English. The use of the two languages results in a very considerable additional workload. Interpreters and translators are necessary at every stage of the Court’s work. The Court needs translations of all documents submitted to it in the course of each case, including simultaneous translation at oral hearings, and translation of the judgements and other documents of the Court.   For further details, see Dubisson, above n 8, 75–76.

169

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Registry personnel enjoy internationally recognised privileges and immunities.170 In the Netherlands, under the terms of an exchange of letters between the President of the Court and the Minister of Foreign Affairs dated 26 June 1946, the Registrar himself enjoys, for most purposes, the same benefits as diplomatic heads of mission accredited to HM the Queen of the Netherlands. Registry officials are treated as of equal rank with the comparable attachés of diplomatic missions at The Hague. To enable him to perform his functions effectively, the Registrar enjoys immunity, which the Court could, however, waive in an appropriate case. UN General Assembly Resolution 90(I) of 11 December 1946 recommended that the Registrar should also benefit, when travelling on official business, from the privileges, immunities and facilities available to diplomats. It also recommended that Registry officials should enjoy, in the same circumstances, the privileges immunities and facilities for travelling and residence requisite for the independent exercise of their functions. Similarly, passes signed by the President of the Court and the Registrar can be issued to Registry officials on missions. None of these provisions has given rise to dispute, and there is therefore no need to elaborate on them here. The Registry is, so to speak, the Court’s lung, breathing life into its activities. Without it, the Court, for all its intellectual distinction, would simply be helpless, and quite unable to discharge its judicial functions.

  ICJ Yearbook 2006/2007, no 61, 198.

170

V Contentious Procedure: Inter-State Disputes 1.  FIRST STEPS IN A CASE

a)  Seising the Court At a purely factual level, any entity can ask the Court to hear a case in which that entity has a legal interest. Every year, a whole series of individuals apply to bring cases before the Court, asking it to adjudicate on grievances they have against their governments. Under Article 34, paragraph 1, of the Statute, which, for contentious cases, restricts access to the Court to States, the Registrar’s practice is to inform such individuals that they do not have the necessary standing to seise the Court. For that reason he does not enter their cases on the Court’s list. This does not mean, however, that their applications are complete nullities. On the contrary, they do have certain administrative consequences, although the scope of these is very limited. In legal terms, the only entities which can seise the Court are those entitled to do so under the Statute and the UN Charter, and this applies both to contentious and advisory cases. In contentious matters (our sole concern at this point), those entitled to seise the Court are the Member States of the UN, the parties to the Court’s Statute, and non-party States authorised under Article 35, paragraph 2 of the Statute.1 A delicate question can arise as to the legitimate government that is entitled to bring a case. In the dispute between Honduras and Brazil, in 2009, the authorities in Honduras, having overthrown President Zelaya, made an application against Brazil which they claimed had violated the Vienna Convention on Diplomatic Relations (1961) by giving asylum to the overthrown Honduran president. The ousted group, however, insisting it was still the legitimate government, claimed that the ‘illegal Authorities’ had no right to bring a case before the ICJ. In this way the Court was caught, as the organs of the United Nations often are, in the crossfire between rival groups, both of them claiming to be the sole legitimate government. At the time of going to press, the case has still not been entered on the Court’s list of pending matters: diplomatic exchanges are continuing, and it is not impossible that the application will soon be withdrawn. The noteworthy point for present purposes is that the question of what is the legitimate government representing a State can give rise to thorny problems, although happily these have not, until now, had any appreciable impact on the Court’s work and practice. 1   Article 41 of the Rules reads as follows: ‘The institution of proceedings by a State which is not a party to the Statute but which, under Article 35, paragraph 2, thereof, has accepted the jurisdiction of the Court by a declaration made in accordance with any resolution adopted by the Security Council under that Article, shall be accompanied by a deposit of the declaration in question, unless the latter has previously been deposited with the Registrar. If any question of the validity or effect of such declaration arises, the Court shall decide.’

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As we have seen, every application to the Court by an entity which prima facie has no standing to bring a case receives an essentially administrative reply from the Registrar; the reply informs the applicant that it does not have the right to bring a case. No judicial decision is taken. On the other hand, a document establishing that the Court has jurisdiction through the States parties’ agreement to submit to it (a jurisdiction clause, a special agreement, or an optional clause) is not necessarily required at the moment the Court is seised of a case. Certainly, the Court has no definitive jurisdiction unless and until the parties have agreed to it, and in this respect its position is very different from that of a municipal tribunal. However, a State can seise the ICJ of a case even before the respondent is linked up consensually by signifying its agreement to the Court’s jurisdiction. When a case is begun in this way, the initial application to the Court amounts, in effect, to a request to the respondent State to agree, on an ad hoc basis, that the Court will have jurisdiction over the particular case in question: here we are in the domain of the forum prorogatum. Until the Rules were reformed in the 1970s, the Registrar used to enter the case on the Court’s list on a provisional basis. Under the revised Rules, he does not do so until the respondent’s consent to jurisdiction is forthcoming. At the same time, as soon as the documents initiating the case are received, the proposed Respondent State is notified, which gives it the option of accepting the Court’s jurisdiction or declining to do so. If it accepts, the Court is validly seised of the case and the matter proceeds. This happened as early as the Corfu Channel case (1947),2 and more recently in the cases of Certain questions of mutual assistance in criminal matters (Djibouti v France, 2008)3 and Certain criminal proceedings in France (Republic of Congo v France,4 a case which finally ended when the proceedings were withdrawn in 2010). If the prospective respondent declines to give its consent, the Court has to recognise that the necessary consent is not forthcoming. Accordingly, it issues an Order to the effect that it cannot hear the case because it has no jurisdiction. In the past, the Court used to order the case to be struck from the list. In this way it struck out a whole series of matters5 that were initiated for tactical reasons designed to show, very publicly, that while one State was willing to submit its case to the ICJ, its opponent refused to accept the Court’s jurisdiction. In the days of the PCIJ, the Court’s practice did not admit of this degree of flexibility about jurisdiction when cases were just being initiated. The present Rule 38, paragraph 5 allows it in the following terms: 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.

  ICJ Reports 1947/1948, 27.   See §§ 39 et seq. 4   ICJ Press Release 2003/14 of 11 April 2003. 5   Case of the Treatment in Hungary of Aircraft and Crew of the United States of America (United States v Hungary), (ICJ Reports 1954, 101); case of the Treatment in Hungary of Aircraft and Crew of the United States of America (USA v USSR), (ICJ Reports 1954, 105); case of the Aerial Incident of 10 March 1953 (ICJ Reports 1956, 8); case of the Aerial incident of 7 October 1952 (ICJ Reports 1956, 11); the Antarctica case (UK v Argentina), (ICJ Reports 1956, 14); the Antarctica case (UK v Chile), (ICJ Reports 1956, 17); case of the Aerial incident of 4 September 1954 (ICJ Reports 1958, 160–61); case of the Aerial incident of 7 November 1954 (ICJ Reports 1959, 278). 2 3



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Paragraph 2 of the same Rule provides that: The application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based; it 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.6

The words ‘as far as possible’ were deliberately chosen to make possible the particular process under paragraph 5, by which the Claimant State requests that consent be given after it has lodged its application with the Court. This degree of flexibility is entirely justified. Seising the Court is not a formal issue: all that counts is that there should be consent. The actual way in which the Court is seised matters very little: sovereign States are free to do it in the way they choose. Given that the ICJ’s jurisdiction is based on consent, and given the reluctance of States to submit disputes to international justice, the Court’s freedom of action is already far too limited. Anything is welcome that enables the Court to open its doors wider to States that are in some way interested in bringing it cases. The mechanism of the forum prorogatum in relation to a unilateral application to the Court makes it possible to satisfy the needs of judicial policy without sacrificing any part of the Court’s judicial integrity, itself safeguarded by the requirement of consent. We have already noted that parties are free to decide on the precise method of seising the Court that suits them. If there are several different heads of jurisdiction, the parties can select the ones they prefer.7 If a party can justify jurisdiction on any basis, it can unilaterally seise the Court of an application, just as, if it has reached a special agreement with the other party to the dispute, it can decide to proceed by notifying the Court of that agreement. The use of a unilateral application is not confined to cases where the Court has compulsory jurisdiction by virtue of a special agreement, a jurisdictional clause, or the optional clause. It is also available for cases in which the jurisdiction is optional (facultative) through the forum prorogatum mechanism. The Court first decided to allow this procedure in the Corfu Channel case (Preliminary Objections, 1948), deciding that Albania’s argument, to the effect that an applicant State could not proceed with its application if there was no already established head of jurisdiction, was not supported by any provision in the Statute or the Rules, and should therefore be rejected.8 As we have seen, Rule 38, paragraph 5 now makes express provision for this flexible mechanism. It would be strange if the Court were to present States trying to seise it of cases with unnecessary obstacles, given that the path to the Court door is already sufficiently sown with political mines.

6   On these provisions, see G Guyomar, Commentaire du Règlement de la Cour internationale de Justice, adopté le 17 avril 1978: Interprétation et pratique, 2nd edn (Paris, 1983) 234 et seq. 7   As to these heads of jurisdiction (special agreement, compromissory or jurisdictional clauses, optional (facultative) clause or forum prorogatum), see below ch VI, section 7. 8   ICJ Reports 1947/1948, 27: ‘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 particular form. 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.’ Here, as is clear from the citation, the Court’s interpretation was a liberal one, in the sense that the Statute and the Rules were perceived as doing no more than placing a limit on a residually-­permitted field of action. It was not necessary that the action envisaged could be positively based on the terms of the Statute or the Rules; it sufficed that it was not contrary to their letter or spirit. The Court was very clear about this: ibid, 28: ‘The Court cannot therefore hold to be irregular a proceeding which is not precluded by any provision in these texts.’

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If there are various possible heads of jurisdiction, the parties indicate the ones on which they place primary reliance. Sometimes, however, the parties’ wishes in this regard are not expressed openly, and need to be interpreted by examining the situation. The Corfu Channel case is in point. After the decision of 25 March 1948, in which the Court decided it had jurisdiction on the basis of a unilateral application and its ad hoc acceptance by letter, the United Kingdom and Albania reached a special agreement on the jurisdiction issue. In principle the Court’s jurisdiction might thus have been based either on the interplay of the application and its informal acceptance (as recognised in the Court’s decision of 1948), or on the subsequent special agreement. The Court preferred the latter,9 even though it implied a kind of novation in relation to the 1948 decision. The Court took this view because, when it came to interpret the parties’ wishes, it was fairly obvious that they now wanted the Court’s jurisdiction to be based on the special agreement. The Court always leans in favour of allowing a subsequent special agreement to replace a unilateral application. Partly this is because of the principle of the lex posterior, a subsequent legal document giving expression to the parties’ most recent wishes. Partly also, it reflects the Court’s awareness that its jurisdiction is based on consent, and that the most intense expression of consent is a special agreement or compromis, an agreement evidencing the parties’ apparent intentions. There would be no sense in the Court’s setting its face against the parties’ express agreement in order to rely on a unilateral application by one against the other. Where a special agreement is reached after the Court has been seised unilaterally, only in very particular circumstances would the Court refuse to recognise the changed basis of its jurisdiction. If, for example, the agreement were reached only at a very late stage, say after the start of the oral phase, that might justify the Court’s refusal to rely on it. At the end of the day, however, it is normally better for the Court’s jurisdiction to be grounded in a special agreement, which in the great majority of cases enables it to avoid the Preliminary Objections proceedings that are potentially so prolonged and so irritating. These arguments cut the other way if the special agreement precedes the forum prorogatum, the earlier compromis having precedence, unless the circumstances are such that the forum prorogatum mechanism somehow extends the Court’s jurisdiction, in which case it would prevail in the area of ‘surplusage’. The Court, then, can be seised of a case either through the notification of a special agreement establishing its jurisdiction (the notification containing any necessary information not laid out in the special agreement itself); or by a unilateral application in two possible sets of circumstances, one being a compulsory pre-existing jurisdictional agreement, the other an express or implied request to the respondent to agree to the Court’s jurisdiction on the basis of the forum prorogatum principle outlined above. In other words: (1) if there is no pre-existing head of jurisdiction (via a compromissory or jurisdictional clause or agreement, or via the optional clause mechanism) or if such head of jurisdiction is not invoked, the States that are parties to the case can seise the Court by notifying it of their special agreement; (2) if there is a pre-existing head of compulsory jurisdiction (compromissory or jurisdictional clause, optional clause) entitling a party, in certain circumstances, to seise the Court unilaterally, the States concerned can make a unilateral application; and (3) if there is no compulsory jurisdiction in any of the above senses, or if such jurisdiction is too constricted ratione materiae, the Claimant State can request the proposed respondent 9   ICJ Reports 1949, 6–7. The Court wrote: ‘On 26 March 1948 (ICJ Reports 1947/1948, 53) the Court made an Order in which it placed on record that the Special Agreement now formed the basis of further proceedings before the Court, and stated the questions submitted to it for decision.’



FIRST STEPS IN A CASE 163

to indicate its consent, or to broaden the scope of its consent on an ad hoc basis ( forum prorogatum). Article 40 of the Statute therefore provides as follows: ‘Cases are brought before the Court, as the case may be, either by the notification of the special agreement or by a written application addressed to the Registrar’.10 Interlocutory procedures are essentially incidental to the principal case, and are normally begun by a unilateral request of the defendant (becoming the claimant with regard to these proceedings) for example, Preliminary Objections, indication of interim measures of protection and so on. Notifications of special agreements and other applications, are addressed to the Registrar. He transmits them to the Court and notifies the States and/or international organisations that are entitled to be informed.11 It is for applicant States to establish that special agreements have been duly ratified and have entered into force (which, however, will be presumed if, at the same time, the agreement is registered with the UN), and that the signatures of persons other than Ministers of Foreign Affairs, Heads of State, Heads of Government, and diplomatic personnel accredited at The Hague, are binding on the State concerned.12 An originating application is by definition unilateral (or joint where there is more than one applicant13). By contrast, a special agreement is normally notified to the Court jointly by the signatories, that is, the parties in the case. Although that is the normal procedure, a special agreement can nevertheless make provision for a unilateral application by one of the parties. In that way the Court can be unilaterally seised of a special agreement case, and indeed, the same result is possible even where no express clause to that effect appears in the special agreement. Rule 39, paragraph 1 provides in this regard that: When proceedings are brought before the Court by the notification of a special agreement, in conformity with Article 40, paragraph 1, of the Statute, the notification may be effected by the parties jointly or by any one or more of them. (italics added)

If this happens, the Registrar at once notifies the other party that the application has been made on the basis of the special agreement, giving the other party the opportunity to object 10   On the subject of this provision, see the very detailed commentary by S Yee, ‘Article 40’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 84 et seq. 11   Art 40, § 2, and Art 3 of the Statute. Rule 42 provides: ‘The Registrar shall transmit copies of any application or notification of a special agreement instituting proceedings before the Court to: (a) the Secretary-General of the United Nations; (b) the Members of the United Nations; (c) other States entitled to appear before the Court as parties.’ Rule 43, as amended on 29 September 2005, provides:

‘1. Whenever 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. 2. 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. Every public international organization notified by the Registrar may submit its observations on the particular provisions of the convention the construction of which is in question in the case. 3. If a public international organization sees fit to furnish its observations under paragraph 2 of this Article, the procedure to be followed shall be that provided for in Article 69, paragraph 2, of these Rules.’ See Guyomar, above n 6, 273 et seq. 12   Rule 38, § 3: ‘The original of the application shall be signed either by the agent of the party submitting it, or by the diplomatic representative of that party in the country in which the Court has its seat, or by some other duly authorized person. If the application bears the signature of someone other than such diplomatic representative, the signature must be authenticated by the latter or by the competent authority of the applicant’s foreign ministry.’ 13   Such an application is nonetheless a unilateral one vis-à-vis the other party to the case.

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by raising Preliminary Objections, either on substantive grounds or to the validity of the special agreement. Given that ex hypothesi the parties have agreed to submit the dispute to the Court, such challenges are extremely rare. Equally, the parties remain free to submit the special agreement jointly to the Court, even where one of the clauses allows them to apply to the Court severally.14 In other words, the parties to the special agreement are always the domini negotii, and they can make informal modifications to the special agreement at will.

b)  Conditions for the Validity of the Document Initiating the Proceedings Both special agreements and their notification, on the one hand, and applications, on the other, must contain certain information. Article 40, paragraph 1 of the Statute provides as follows: ‘In either case [special agreement or written application], the subject of the dispute and the parties shall be indicated.’15 For unilateral applications, Rule 38 paragraph 2 provides: The application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based; it 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.

As to the notification of a special agreement, Rule 39, paragraph 2, proceeding analogously, provides that: ‘The notification shall also, in so far as this is not already apparent from the agreement, indicate the precise subject of the dispute and identify the parties to it.’ Typically, an application, or the notification of a special agreement, will contain the following sections, which in the case of an application will be amplified to whatever degree is appropriate. First, there will be an introductory formula, indicating that this is a letter addressed to the Registrar: ‘To the Registrar of the International Court of Justice. I, the undersigned, duly authorised by the Government of the Republic of Alphaland, of which I am the Agent, have the honour to submit to the International Court of Justice, under Article 40, paragraph 1 of its Statute and Article 38 of its Rules, an application instituting, in the name of the Republic, a case against the Republic of Betaland in the case indicated below.’ This is then followed by a concise statement of the facts, a presentation of the subject in dispute; an explanation as to the Court’s jurisdiction follows; then there is a brief provisional indication of the legal basis of the claim; an indication of the nature of the orders sought; and an indication of what documentation (if any) is annexed. An application will normally contain, in addition, certain statements and reservations that, although not strictly necessary, are nevertheless usually included. The first item reserves the right to amend and complete the terms of the application: ‘Alphaland reserves the right to amend or supplement the terms of the present Application, subject to the limitations laid down in the Rules and in the jurisprudence of the Court.’ The second item concerns the nomination of a judge ad hoc: ‘Under Article 31, paragraph 2, of the Statute and Article 35 of the Rules, Alphaland reserves the right to nominate a judge ad hoc.’ The third item concerns the right to request the indication of interim measures: ‘In accordance with Article 41 of   Franco-Greek lighthouses case, PCIJ, Series E, no 16, 167–68.   See also, Rule 38, § 1: ‘When proceedings before the Court are instituted by means of an application addressed as specified in Article 40, paragraph 1, of the Statute, the application shall indicate the party making it, the State against which the claim is brought, and the subject of the dispute.’ On this, see Guyomar, above n 6, 229 et seq. 14 15



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the Statute and Article 73 of the Rules, Alphaland reserves the right to request the Court to indicate interim measures of protection.’ Finally, it is essential for the parties to nominate Agents. The Agents will represent them in the proceedings, and it is to them that Court can turn whenever it needs to communicate with the States appointing them: ‘Alphaland has designated the undersigned as its agent for the purposes of the present proceedings. All communications relating to this matter should be addressed to the domicile elected by the Agent of the Republic of Alphaland, Mr Alphatic (Ambassador of Alphaland at The Hague), address: . . .’ Rule 40, paragraph 2 provides that, for all unilateral applications: When proceedings are instituted by means of an application, the name of the agent for the applicant shall be stated. The respondent, upon receipt of the certified copy of the application, or as soon as possible thereafter, shall inform the Court of the name of its agent.

Paragraph 3 adds, in relation to cases begun by notifying a special agreement: When proceedings are brought by notification of a special agreement, the party making the notification shall state the name of its agent. Any other party to the special agreement, upon receiving from the Registrar a certified copy of such notification, or as soon as possible thereafter, shall inform the Court of the name of its agent if it has not already done so.

The functions of an agent are set out in Rule 40 paragraph 1: Except in the circumstances contemplated by Article 38, paragraph 5, of these Rules, all steps on behalf of the parties after proceedings have been instituted shall be taken by agents. Agents shall have an address for service at the seat of the Court to which all communications concerning the case are to be sent. Communications addressed to the agents of the parties shall be considered as having been addressed to the parties themselves.

From the practical point of view, therefore, the nomination of an agent is a very important matter.16

c)  The Court’s Non-formalist Attitude to the Requirements for Starting a Case For proceedings to be validly initiated under the Statute and the Rules, certain conditions are laid down. What, then, if there are defects, lacunae, or omissions? The Court might take notice of them of its own volition, and/or the opposing party might use them as the basis of one or more Preliminary Objections.17 The conditions we are considering here are those that govern the formal admissibility of the proceedings. States must comply with them when submitting the various documents required in order to initiate an international case.18 The Court’s jurisprudence indicates its very liberal attitude, subject always, however, to the principles of equality between the parties and the requirements of the due and proper administration of justice (about which the Court is, because it must be, fundamentally inflexible). It is therefore almost always possible to remedy formal defects pointed out by   cf Guyomar, above n 6, 256 et seq.   Switzerland raised such an objection in the Losinger case (1936): PCIJ, Series A/B, no 67, 22, on the basis of delay. The Court rejected that argument. If the Court thinks a State is deliberately failing to comply with time limits, as a delaying tactic, it will cease to take account of requests that are made late: see the Corfu Channel case (fixing the amount of reparations), ICJ Reports 1949, 248. 18   G Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour internationale (Paris, 1967) 97. 16 17

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the Court itself, without negative consequences either for the opposing party or for the proper administration of justice, and the Court approaches these questions in that spirit. Sound reasons of legal policy underlie this liberal attitude. Access to international justice already poses considerable obstacles. The necessary consent of all the parties is a significant one; another is to be found in governments’ political mistrust of those empowered to sit in judgment on sovereign States; a third is to be found in the complexity of international disputes, which so often contain inextricably mingled legal and political elements. For these reasons, it is relatively rare for international disputes to come before courts and tribunals. One consequence of that fact is that, in international affairs, the prominence of legal considerations in the handling of disputes is correspondingly limited. In these circumstances, it would make little sense if, when access is sought to the Court, the latter adopted a strict and proceduralist approach to minor defects of form that did not in themselves pose any problem for the fundamental principle of the proper administration of justice. The PCIJ accordingly adopted a liberal attitude to these questions, and it has been continued by the ICJ. Three mechanisms come into play, filtering such matters either successively or all at the same time, depending on the circumstances.19 −− Action by the Registrar: Right at the outset, the Registrar may well inform the party concerned that its application or notification lacks some particular document or some particular piece of information. The State concerned can then simply put it right. −− Rejection of Preliminary Objections based on such defects: In most cases where such a defect is the basis of a Preliminary Objection, the Court rejects the idea that defects of form are a fatal bar to its jurisdiction or to the admissibility of a document. In the Mavrommatis case (1924), the PCIJ stressed, in a still much-cited dictum, that: ‘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.’20 It was, of course, necessary to consider whether the case had been validly brought before the Court, because this depended on a heading of jurisdiction (a treaty) that was not yet in force at the time the Court was seised of the case. However, ‘it would always have been possible for the applicant to re-submit his application in the same terms after the coming into force of the Treaty of Lausanne’.21 Even if the ‘grounds on which the institution of proceedings was based were defective for the reason stated, this would not have been an adequate reason for the dismissal of the applicant’s suit’.22 The subsequent ratification of the Treaty had remedied the default and it would have been excessively formalistic to insist, at that stage, that the case should be begun all over again. In the case on Certain German interests in Polish Upper Silesia (jurisdiction, 1925) the PCIJ added, in the same vein, 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’.23 The ICJ proceeded on exactly analogous lines in the case of the Application of the Convention on the Prevention and 19   The Court’s practice in this regard may also have discouraged certain States from persisting in challenges of a formal nature, leading them to withdraw their objections. Thus, in the case of the Rights of United States citizens in Morocco (1952), the USA at first claimed that the French Application did not comply with Art 40 of the Statute, since it did not indicate whether France was acting in its own name or as Morocco’s protecting Power. After France lodged its written observations on this point, the USA withdrew its Preliminary Objections: see ICJ Reports 1952, 179; and Guyomar, above n 6, 234. 20   PCIJ, Series A, no 2, 34. 21  Ibid. 22  Ibid. 23   PCIJ, Series A, no 6, 14.



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Punishment of the Crime of Genocide (Bosnia-Herzegovina v Yugoslavia, Preliminary Objections, 1996).24 The same liberal attitude has been taken with regard to procedural documentation. In the case on the Interpretation of Decisions Nos 7 and 8 (Factory at Chorzów), in 1927, the PCIJ said that it could, ‘within reasonable limits disregard the defects of form of documents placed before it’.25 −− Interpretations in favour of validity : The Court’s tendency is to interpret applications and documents in such a way as to avoid any conflict with the Statute and/or the Rules: the Court takes this view as a matter of liberal interpretation in favorem validitatis. In the Phosphates in Morocco case (1938), France, which was the respondent, had lodged a Preliminary Objection on the basis that Italy had not stated the object of its application with the clarity required by the Rules and necessary for the due and proper administration of justice; and that Italy had not given a proper explanation of the basis upon which it relied to establish that the Court had jurisdiction to entertain its unilateral application.26 The Court’s reasoning, in rejecting this Preliminary Objection, was based on its reading of the documents: ‘The Court considers that the explanations furnished in the course of the written and oral proceedings enable it to form a sufficiently clear idea of the nature of the claim submitted in the Italian Government’s Application.’27 Similarly, in the case on Border and Transborder armed actions (Nicaragua v Honduras, Jurisdiction and Admissibility, 1988), the Court took the view, in interpreting Nicaragua’s application, that the latter satisfied the formal requirements of the Statute and the Rules.28 In the case on the Northern Cameroons (1963), the Court reminded the parties and the wider public that: [The Rules] require[s] the Applicant ‘as far as possible’ to do certain things. These words apply not only to specifying the provision on which the Applicant founds the jurisdiction of the Court, but also to stating the precise nature of the claim and giving a succinct statement of the facts and grounds on which the claim is based;29

and it was this liberal interpretation that the Court applied in the case. In this way the Court successfully carves out for itself, on every side, a wide margin of interpretation, unhampered by any significant degree of formalism. Since the Northern Cameroons case, the Court has applied this principle several times. In the case of Military and Paramilitary activities in and against Nicaragua (Jurisdiction and Admissibility, 1984), Nicaragua had not, in its application initiating the proceedings, set out its claims against the USA under the Treaty of Friendship, Trade and Navigation of 1956. Nor had Nicaragua expressly referred to the Treaty in its negotiations with the USA prior to commencing the proceedings. In the meantime, however, the US government was 24   ICJ Reports 1996-II, 614, § 26. The respondents claimed that the Convention against genocide, whose jurisdiction clause was relied on as the basis for the ICJ’s jurisdiction, became applicable as between the parties only on 14 December 1995, whereas the Application initiating the proceedings dated from 20 March 1993, more than two and a half years before that critical date. The Court’s response was to invoke its jurisprudence in the Mavrommatis case: ‘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, 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.’ 25   PCIJ, Series A, no 13, 16. 26   PCIJ, Series A/B, no 74, 16. 27   Ibid, 21. 28   ICJ Reports 1988, 92, § 56. 29   ICJ Reports 1963, 28.

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made sufficiently aware of Nicaragua’s claims under the Treaty. The Court had also been put sufficiently in the picture, and was thus able to take the view that Nicaragua’s application satisfied the formal requirements of the Statute and the Rules, since: It would make no sense to require Nicaragua now to institute fresh proceedings based on the Treaty, which it would be fully entitled to do . . . ‘the Court cannot allow itself to be hampered by a mere defect of form, the removal of which depends solely on the party concerned’.30

The Court’s practice of accepting cases that are begun in a relatively non-formal way is quite far-reaching. The problem arose in a particularly acute form in the case on the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia, Preliminary Objections, 2008). It is worth following through the intellectual processes by which the Court dealt with the difficulties of this case. The problem arose with regard to Serbia’s legal position in relation to Article 35, paragraphs 1 and 2 of the Court’s Statute. Serbia’s argument was that, since 2000, it had been apparent that Serbia was not a Member of the United Nations at the time the proceedings began in 1999. Serbia therefore argued that Article 35, paragraph 1 of the Statute would be inapplicable to it, since the former Yugoslavia was no longer a party to that instrument. In addition, Serbia argued, the Genocide Convention was not a ‘treaty in force’ within the meaning of paragraph 2 of Article 35, since the Convention was not in force at the date the Statute came into force (see the cases on the Legality of the use of force (2004), in which the Court interpreted Article 35, § 2 in this sense). The other way in which paragraph 2 could give access to the Court to a State which is not a Member of the United Nations, namely under the conditions laid down in Security Council Resolution 9 (1946), was not applicable either, since the former Yugoslavia had never made the required declaration as foreseen in Resolution 9. According to Croatia, the former Yugoslavia had, between 1992 and 2000, enjoyed a legal status that was altogether sui generis, while remaining a Member of the United Nations and thus a party to the Statute of the Court. Be that as it may, since Serbia’s admission to the UN on 1 November 2000, the Court’s jurisdiction was established. From that moment on, Croatia could at any time have filed a new application against Serbia at the ICJ. Therefore, Croatia argued, the Court should stay with the old ‘Mavrommatis’ jurisprudence, and not change direction in a species of formalistic spasm. Instead of requiring Croatia to start a new case, it could simply allow Croatia to continue with the old one. The ICJ’s decision (at § 65 et seq.) stated that the question of access to the Court was a challenge to the jurisdiction, taking priority over all other jurisdictional questions. This fundamental question needed to be resolved before any other issue (§ 67). The question ought anyway, if necessary, to be raised, and examined, by the Court of its own volition (§ 68): see the Genocide case (Bosnia-Herzegovina v Serbia, 2007). If, therefore, the Court were to decide other Preliminary Objections, or indeed substantive issues, it could only be on the basis that any question as to the right of a party to bring its case before the Court had already been affirmatively decided, even if only on an implicit basis (§ 68). The Court had been able to find as a fact, in the Legality cases (2004), that Serbia had not been a member of the United Nations prior to 1 November 2000. Although that finding of fact did not have the force of res judicata in the present proceedings, it nevertheless carried very considerable weight (§ 76). However, Serbia was undoubtedly a party to the ICJ from that date   ICJ Reports 1984, 428–29, § 83.

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onwards. The present case could therefore proceed, since both Croatia and Serbia had a right of access to the Court. Normally, the date on which the initiating Application is lodged is determinative as regards jurisdiction31 (§ 79). In the Mavrommatis case (PCIJ, 1924), the Court had been prepared to depart from the normal rule as to the critical date, in a case in which, by a subsequent act within the power of the applicant, the Court’s jurisdiction might be established at any time32 (see also the cases cited by the Court itself; Certain German interests in Polish Upper Silesia, Jurisdiction, 1925, where the Court held that a condition could be satisfied by a unilateral subsequent act on the part of the applicant; the Northern Cameroons, 1963; Nicaragua, Jurisdiction and Admissibility, 1984; and Genocide, Preliminary Objections, 1996). It rejected the argument that there was an incurable defect, arising (according to Serbia) from the fact that, in the present case, so fundamental a question as access to the Court itself was in issue. The requirements of the due and proper administration of justice here concerned much the same situation as in the Mavrommatis case: there would have been little point in requiring the applicant to begin a new case in lieu of the old one. It is true that the Court did not examine this aspect in the Legality cases (2004); however, in those cases, it was obvious that Serbia did not intend to maintain its demands in the form of new applications, and claimed, moreover, not to be bound by the Genocide Convention (§ 89). Finally, two additional findings of fact buttressed the Court’s decision: (1) Croatia had not shown a want of diligence in bringing its application, since it was entitled to believe that Serbia was a party to the Statute, Serbia having itself brought applications before the Court in the Legality cases (2004); and (2) Croatia’s Memorial, on the substantive issues (a very substantial document) had been lodged on 1 March 2001, that is after the 1 November 2000 critical date. If that Memorial, which was in fact the first significant procedural document in the case, had been a new application, the Court would have had jurisdiction. This confirmed that the Court was entitled to re-apply the Mavrommatis principle to the circumstances of the case now before it. 31   The reasons for this rule are clearly set out in § 80: ‘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.’ 32   The following is the key consideration from the 1924 judgment, cited by the ICJ in § 82 of the present judgment: ‘it must . . . be considered whether the validity of the institution of proceedings can be disputed on the ground that this application was filed before Protocol XII [annexed to the Treaty of Lausanne] had become applicable. This is not the case. Even assuming that before that time the Court had no jurisdiction because the international obligation referred to in Article 11 [of the Mandate for Palestine] was not yet effective, it would always have been possible for the applicant to re-submit his application in the same terms after the coming into force of the Treaty of Lausanne, and in that case, the argument in question could not have been advanced. Even if the grounds on which the institution of proceedings was based were defective for the reason stated, this would not be an adequate reason for the dismissal of the applicant’s suit. 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. Even, therefore, if the application were premature because the Treaty of Lausanne had not yet been ratified, this circumstance would now be covered by the subsequent deposit of the necessary ratifications. Judgment No 2, 1924, PCIJ, Series A, no 2, 34.)’

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The above passage lays out the Court’s reasoning at some length in order to show how truly flexible the Court’s practice is as to the formal conditions that an application must satisfy at the time its claim is first lodged with the Court. There is no doubt that the conditions in Article 35 of the Statute, relating to the persons who are eligible to be parties in cases before the Court, are of major importance. They are matters of international public policy (ordre public). Nevertheless, the Court is still ready to apply to them the principle of non-formalism from the Mavrommatis case. In that case, the requirement of consensual jurisdiction was not satisfied at the time the case was started. In the present case, it was the personal quality of the litigants that was not established at that time. The consensual jurisdiction point is one the Court normally leaves to the parties, who can raise it in a Preliminary Objection or abstain from doing do, the Court itself not raising such questions ex officio. The personal quality question goes to the heart of the Court’s jurisdiction ratione personae, and consequently is one that the Court will raise of its own volition. Nevertheless, the Court extended the logic of ‘non-formalism’ from the first category to the second. This indicates that the Court views the non-formalism logic as applying generally. The option of extending the Mavrommatis principle to all prior, imperative and dispositive questions, however, came in for criticism in Dissenting Opinions recorded by some of the judges. Judge Owada, for example, considered it an ‘abuse’ for the Court to apply the Mavrommatis rule in such a general way to all procedural defects. In earlier cases, the rule had been applied to technical defects relating to consent at the time the case was begun, not to the fundamental question whether a party had the right to appear as such in a case before the Court. In Judge Owada’s view, the question of access to the Court should not be treated in the same way as a consent issue. It was therefore inappropriate, in such a case, to apply the emollient Mavrommatis principle. This critique was echoed by Judge Skotnikov. Should the Mavrommatis rule have been (indeed could it have been) applied in this case? Back in 1924 the Court’s ‘non-formalism’ had two specific objects in view: (1) at bottom, it was a matter of not making unnecessary difficulties for those seeking access to international justice (already something of a minefield because of the requirement that the parties must consent), and thus a matter of enabling the Court to do what it was set up to do, namely to settle disputes in order to preserve the peace and the rule of law at the international level; and (2) at a more practical level, it was economical in procedural terms, and thus represented a way of improving the administration of justice by the Court. As already noted, it has almost always seemed excessively burdensome and formalistic to require a party to begin a case all over again (incidentally annulling all the steps in the previous proceedings), when the Court’s jurisdiction, although lacking at the time that the case was begun, has been properly established in the meantime. These two fundamental reasons apply with equal relevance to the ‘pre-preliminary’ issue of jurisdiction in personam. That is why the application of the Mavrommatis principle, as envisaged by a majority of the judges, can be seen as consistent with the previous jurisprudence. We should not, however, overlook the fact that the starting of a new case, which the Mavrommatis rule presupposes to be a possibility open to the Applicant, is not always possible under the same conditions as the old proceedings. For example, the new basis of jurisdiction may be subject to limits or reservations that did not apply to the old one. This was the case in relation to Article IX of the Genocide Convention, applicable in the case we have just been considering. Serbia had entered a new reservation. The Court got round this difficulty by finding that Serbia was already bound by the Genocide Convention in 1999,



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when the case began, and that, in that respect, 1999 was the critical date. But in other cases there may be no such convenient way out of the problem. This leads, inevitably, to the question whether the Mavrommatis rule should be applied simply because there is a formal possibility of starting a new set of proceedings, or whether account ought to be taken of the concrete nature (including the limitations and reservations) of any such new proceedings that might be contemplated. If it is to be the latter, the application of the rule will be more restricted than it would otherwise be. In effect, in some cases the Court would have to declare that it had no jurisdiction, given that no ‘identical’ application could subsequently be brought. If the Court wants to give its jurisdiction the widest possible scope, in light of the two fundamental reasons cited above for the Mavrommatis decision, it will choose the first interpretation. If, however, the Court thinks it right to give a greater degree of protection to the requirement of consent to its jurisdiction, which of course is a matter for the free sovereign decision of each State, it will go for the second. A compromise solution might be to follow the first interpretation except where the Court’s jurisdiction has, in the interim, been restricted in too significant a way by subsequent acts not done in bad faith. It would then be necessary to decide what meaning to give to the idea of ‘too significant restrictions’, and that idea could, naturally, be interpreted either narrowly or broadly. As to the requirement of good faith, it is surely obvious that the Court would consider restrictions on its jurisdiction, if they were voluntarily imposed by a party solely for the purpose of preventing the application of the Mavrommatis rule, to be irrelevant – on the well-worn principle that a judge should refuse to listen to arguments advanced in bad faith, mala fides non est audienda. We can therefore conclude that the conditions for the formal admissibility of the request initiating the case are treated by the Court as a sort of administrative question, so that almost all defects can be remedied by a simple act of the party concerned. The Court has taken care to ensure that such defects have the least possible effect on its treatment of cases. It rejects obstructive and dilatory Preliminary Objections. In reality it has in fact developed a kind of doctrine of ‘minimum effects’ of defects, applicable in such cases.

d)  Cases Brought by Non-parties to the Statute This question is primarily concerned with the interpretation of Article 35 of the Statute, and thus with the Court’s jurisdiction in personam. It will be explored in more detail below. At present we are concerned only with the elements that are particularly relevant at the outset of cases. In 1993,33 in an Order made in summary proceedings, the Court took the view that the jurisdiction clause in a treaty currently in force (Article IX of the Genocide Convention of 1948) could be invoked against a State which was not a party to the Statute. It sufficed that the State in question was bound by a particular jurisdiction provision in a treaty currently in force. On that basis, it could appear before the Court in the context of the Treaty, independently of the conditions laid down by the Security Council in Resolution 9 of 1946 on the participation of States which are not parties to the Statute in cases before the Court. In support of this view, the Court cited the PCIJ’s Wimbledon case of 1923, in which Germany, not at that date a party to the Statute, was made the respondent on the basis of a jurisdiction   Genocide Convention case, ICJ Reports 1993, 14, § 19.

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clause in the Versailles Treaty of 1919. By taking this line the Court signalled that it would adopt a liberal attitude in allowing parties access to it, in line with the general idea of opening up its services to disputing States that wish to bring it cases. There is some room for doubt as to whether it is right for the Court to be so liberal in allowing access to it outside the conditions laid down by the Security Council Resolution. The purpose of that Resolution was to ensure complete equality between States that are parties to proceedings before the Court, and that each party make its proper financial contribution to the cost of maintaining the Court. On this basis, leading commentators have not hesitated to express doubts about the Court’s liberal attitude.34 They have argued that under Article 35, paragraph 235 of the Statute, it is the Security Council that fixes the conditions under which States which are not parties can participate in cases before the Court. The words ‘special provisions contained in treaties in force’ in Article 35(2) are designed only to preserve such treaty rights from any encroachment by the Security Council Resolution, not to create a right of participation, in a given case, quite outside the conditions laid down by the Security Council and without the State in question’s accepting them. It is also true that various points in support of the Court’s interpretation can be gleaned from the travaux préparatoires.36 However, such commentators think the Court’s view would lead to an unsatisfactory result, in that two States could, at any time, enter into a treaty in which they agree to submit a dispute to the Court, and the Court would then automatically have jurisdiction even as regards States which are not parties to the Statute and are outside the conditions laid down by the Security Council. It is fair to say that the Court’s attitude would work a useful increase in the number of ways in which States can have access to it, and thus make access easier. But it would reduce the effect of Resolution 9 of 1946, enabling States to get round it quite easily. In summary the argument runs that the creation of an additional category of States with access to the Court, independent of the Members of the UN, the parties to the Statute, and the body of States authorised under Resolution 9, would be an unwelcome development. In the cases on the Legality of the use of force (2004),37 the Court reversed this line of jurisprudence. It started by observing that its Order of 1993 was concerned with a State whose status as a Member of the United Nations was at that time uncertain (§ 98). It had, therefore, been impossible to exclude the possibility that Serbia and Montenegro, taken together, constituted a Member of the United Nations and a party to the Statute, just as it was impossible to say with any confidence that this was in fact the case. The Court’s reasoning in 1993 should therefore be read in this factual context, one of uncertainty about the relevant State’s membership. The Court then added that, in 1993, it had made its Order in the context of an incidental and summary procedure, concerned with the indication of interim measures under Article 41 of the Statute (§ 99). That Order did not carry the kind of authority, as res judicata, that is invested in a judgment on the merits of an ICJ case. The Court then re-examined the legal issue in question, and came to the view that the object and purpose of Article 35, paragraph 2, as well as the relevant travaux préparatoires, showed that the words ‘special provisions contained in treaties in force’ were, back in 1920, con34   See H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’ in BYIL, vol 72 (2001) 57–59. 35   ‘The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.’ 36   Including at the PCIJ: see PCIJ, Series E, no 3, 199. 37   See, eg, Serbia and Montenegro v Belgium, ICJ Reports 2004-I, 315 et seq., §§ 94 et seq.



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cerned only with treaties that were already in force at the time that the Statute itself came into force. It was essentially a question of preserving the old treaties (in particular the peace treaties following the First World War) that gave jurisdiction to the PCIJ, a jurisdiction now vested in the new Court under Article 37 of its Statute. In no way was the provision intended to enable States to make new treaties which would enable them to appear before the Court without fulfilling the ordinary requirements of the Statute, whether under Article 35, paragraph 1 (by participating in the Statute), or under paragraph 2 (now by satisfying the Security Council’s conditions). Since there was no reason to believe that anybody wished to disturb this state of affairs in 1945, the Court should continue to interpret paragraph 2 of Article 35 accordingly. Limited to treaties in force (and the Genocide Convention came into force after the ICJ Statute), the Court concluded that it had no jurisdiction ratione personae under Article 35, paragraph 2 of the Statute (§ 114). Subsequently the Court confirmed this interpretation in the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Croatia v Serbia, Preliminary Objections, 2008).38 This interpretation is satisfactory, in that it ensures the efficacy of Security Council Resolution 9, laying down general conditions governing access to the Court by States that are not UN Members. Those conditions do their job of guaranteeing equal legal standing to States in cases before the Court, and so they respect the concomitant requirement of the due and proper administration of justice. Nevertheless, it is possible to criticise this interpretation as not truly within the spirit of Article 35, which is to widen access to the Court for potential parties. In that spirit, the United Nations serves the fundamental principles that disputes should be settled peacefully and that the pre-eminence of law in international affairs should be maintained and enhanced. These are fundamental objectives of the UN Charter. In light of these fundamental principles, the maxim must surely be: boni judicis est ampliare jurisdictionem. From this point of view, there was nothing that obliged the Court to interpret the words in Article 35, paragraph 2 in the historic way, that is in line with the arguments of 1920. The text surely permitted the more liberal interpretation, and the travaux préparatoires made a certain contribution to it. That said, the essential problem was to balance two interpretations, one of which affected the due and proper administration of justice and equality between the parties, the other affecting the possibility of easier access to the Court. Between 1993 and 2004, the Court leaned first one way and then the other. It cannot be said that its 2004 interpretation was an arbitrary one. It gave great weight to certain values that are very important for the judicial resolution of disputes, even if only through its concern for the equality of litigating parties. It is thus possible to say that a State which is not a party to the Statute, but which desires to seise the Court, has the following rights: (1) if the State has accepted the conditions laid down in Security Council Resolution 9 of 1946, and notified that acceptance to the UN Secretary-General, it is permitted to participate in cases before the Court, either as applicant 38   See §§ 57 et seq. As already noted, the problem related to Serbia’s situation vis-à-vis Art 35, §§ 1 and 2 of the Statute. According to Serbia, it had come to appear, since 2000, that Serbia had not been a Member of the UN at the time the case began in 1999. Art 35, § 1 of the Statute would therefore be inapplicable, because the Federal Republic of Yugoslavia was not a party. Also, the Genocide Convention would not constitute a ‘treaty in force’ within the meaning of Art 35, § 2, the Convention not having entered into force at the date when the Statute did so (cf the cases on the Legality of the use of force, 2004, in which the Court interpreted Art 35, § 2 in that sense). The other possibility envisaged by § 2 as opening up access to the Court for States which are not UN Members, namely under the conditions laid down in Security Council Resolution 9 (1946), was likewise inapplicable, because Yugoslavia had never made the necessary declaration of acceptance.

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or as respondent; (2) if the State has not accepted the conditions, it might nevertheless be possible for it to take part in a case before the Court, whether as applicant or respondent, while its status as a Member of the United Nations remained uncertain; in such a case the Court may, in the absence of evidence to the contrary, be prepared to make a presumption of UN membership, and, following its own dictum of 1993, may therefore open its doors to the State concerned; and (3) if the State has not accepted the Resolution 9 conditions, and is clearly not a Member of the United Nations, then it will not be allowed to participate in cases before the Court in any capacity, even if it is entitled to invoke a jurisdiction clause or some other ground giving the Court jurisdiction, unless the treaty or convention conferring jurisdiction on the Court came into force prior to the date the Statute itself came into force, that is prior to 24 October 1945 (at the same moment as the Charter). Can one imagine devising a better solution, embodying a better balance between the competing requirements of equality between the parties and the wish to make access to the Court as wide as possible? The only such solution that can really be envisaged would be to permit a State that is entitled to the benefit of a jurisdictional clause (whenever it dates from) to participate in cases before the Court if it accepts, on an ad hoc basis, before the Court itself, the most essential conditions in Resolution 9, namely those bound up with the equality of States and those concerning financial contributions. Nevertheless, there is no hiding the fact that such an interpretation would reduce the impact of Resolution 9 in a significant number of cases involving the compulsory jurisdiction of the Court, namely all cases where jurisdiction is based on a treaty. Resolution 9 would be fully applicable only in the context of the optional jurisdiction, and of optional clauses committing to binding jurisdiction. Such a state of affairs could be a desirable one only if the objective really was to do everything possible to eliminate obstacles to the bringing of cases before the Court.

e)  Recommencing a Case Analysing the starting of a fresh case is of interest only where it is intimately linked to the old one and gives rise to delicate questions about the relationship between the two. Problems do not really arise in cases begun by the notification of a special agreement, because the parties are ex hypothesi agreed that the Court is to have jurisdiction. Nor does the question whether it is now a truly new case or the continuation of the old one then arise in any very practical way, except perhaps as regards the preservation of the original judgment (res judicata: Article 59 of the Statute). When we come to consider unilateral applications, however, the position is quite different. As the Court’s jurisprudence shows, two particularly interesting situations can arise. Can a party be disqualified from bringing a new Application when an earlier action on the same dispute has been discontinued? This question arose in the Barcelona Traction case (new application, Belgium v Spain, 1964).39 Belgium had made a fresh unilateral application after withdrawing earlier proceedings in order to engage in direct negotiations with Spain. The claim concerned reparation for Belgian shareholders in a business incorporated under Canadian law but domiciled in Spain. Belgium claimed that the company had suffered loss as a result of various internationally illegal acts committed by organs of the Spanish State.   ICJ Reports 1964, 18 et seq.

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Belgium had withdrawn the first case without expressly reserving the right to reintroduce it. Two questions arose, one of a fundamental nature, the other related to the particular circumstances of the case. The fundamental question of principle was whether the withdrawal of a case was necessarily a definitive step, in the sense that thereafter it was not permissible to begin another case based on the same claim. The second question – the one connected to the specific facts – was this: can withdrawal give rise to a legitimate expectation in the respondent that the claim will not be renewed, so that the claimant is estopped from beginning again? What the Court said about the nature of withdrawal was as follows. Withdrawal is not, in itself, necessarily a definitive act. The motive for it can be a remediable defect in the application. Once the problem has been resolved, a fresh application can be lodged with the Court. Moreover, it should be remembered that the point of the rules on withdrawal is to facilitate, so far as possible, the resolution of disputes: ‘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’40 even if direct negotiations or other priority procedures do not yield the expected results. Finally, the Court concluded that Belgium could not have wished definitively to renounce its right to pursue its claim through the Court. It did not seem reasonable to suppose that, on the eve of difficult and uncertain negotiations, Belgium could have intended to renounce the advantage it had in being able to recommence the proceedings. At the end of the day, Spain faced a general presumption that withdrawal is not a definitive step, so that the burden of proving that Belgium intended to withdraw definitively rested on Spain. The Court found that Spain had failed to establish the point. As to the estoppel argument,41 the Court thought there was no evidence that such conduct on Belgium’s part caused any injury to Spain.42 The comparison that needed to be made was not between the respondent’s present situation as compared with its situation if the new proceedings had not been brought, but between its present situation and its situation if the previous proceedings had been continued. Spain had the right to raise any of the same Preliminary Objections it might have raised in the first phase. True, Belgium could now prepare its own case in the knowledge of the objections Spain had raised in the earlier phase. However, proceedings before the Court were organised in such a way that, at the end of the day, this slight advantage would rapidly be neutralised. Besides, even in the first phase, Belgium could always have modified its pleadings in light of Spain’s Preliminary Objections. The conclusion therefore was that no legally relevant damage to the respondent’s position, or advantage to the Applicant, had been shown. We can conclude that the starting of a new case to pursue the same claim as the original one, after the latter has been withdrawn, is indeed often possible, but not in the following three cases: (1) if the respondent can show that the Applicant’s intention was to withdraw   Ibid, 20.   The principle consists in the fact that one party, having based itself on reasonably clear assurances or conduct by the other, is able to establish that its trust in the other’s conduct has altered its position, and to make dispositions, in such a way that it would be prejudicial if the other party were now entitled to go back on its assurances or conduct. A valuable formulation of the principle reads as follows: ‘Estoppel operates on the assumption that one party has been induced to act in reliance on the assurances or other conduct of another party, in such a way that it would be prejudiced were the other party later to change its position.’ H Mosler, ‘The International Society as a Legal Community’ CCHAIL, vol 140, 1974-IV, 147. As to estoppel, see the detailed commentary in R Kolb, La bonne foi en droit international public (Paris, 2000) 357 et seq. 42   ICJ Reports 1964, 24–25. 40 41

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the case definitively – though this will be difficult to prove; (2) if the respondent can show that it will suffer relevant legal prejudice as a result of having trusted in the clear and unequivocal behaviour of the Applicant (or if the latter obtains a corresponding advantage) – though this will very rarely be the case; or (3) if the Applicant brings its claim and then withdraws it solely with a view to obtaining an undeserved advantage, for example, better information about the respondent’s case, before reintroducing its claim (a case of estoppel or abuse of process) – which will be both rare and difficult to prove. A fortiori, an Applicant can, of course, bring a new case on the basis of a different claim from the old one. Can a case be continued after it has ‘ended’? This rather singular question arose in the very particular circumstances of the 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 case (1995).43 It is unlikely to occur again. In the Nuclear Tests case of 1974, the Court had decided that the claims of Australia and New Zealand had no valid object, given that France had promised, in a legally binding way, to discontinue atmospheric nuclear tests in the Pacific. The Court took the view that the Applicants had obtained what they were asking for, and that consequently there was no longer a current dispute for the Court to decide. However, in paragraphs 60 and 63 respectively of its judgments in Australia’s and New Zealand’s cases, the Court added as follows: ‘However the Court observes that if the basis of this Judgment were to be affected, the Applicant could request an examination of the situation in accordance with the provisions of the Statute.’ The Court indicated that ‘the denunciation by France . . . of the General Act for the Pacific Settlement of International Disputes, which is relied on as a basis of jurisdiction in the present case, cannot by itself constitute an obstacle to the presentation of such a request’ (ibid); and nor did France’s withdrawal from the optional clause under Article 36, paragraph 2 of the Statute. This paragraph had a ‘constitutive’ effect when, in the mid 1990s, New Zealand brought an application based on it. France had, indeed, withdrawn its agreement to the bases of the Court’s jurisdiction in the 1970s. Consequently, it was impossible to base a new action on the same jurisdictional foundations. For this reason, New Zealand argued that an autonomous basis of jurisdiction was to be found in paragraph 63 of the 1974 judgment. However, such a basis for jurisdiction is unknown to the Statute. New Zealand’s application was therefore incompatible with that instrument, so that the Court would have been obliged to find that it had no jurisdiction. That would, however, have been a troubling conclusion, given that the Court would in this way be contradicting the rather unusual paragraph that it had included in its judgment in 1974, no doubt as a way of recording its own unease at the rather uncompromising conclusions it felt obliged to reach at that time. In 1995, the legal implication was that this new procedure was a continuation, 20 years later, of one of the elements of the case that had been before the Court in 1973/1974. It was not a new case,

43   ICJ Reports 1995, 288 et seq. On this case, see V Coussirat-Coustère: ‘La reprise des essais nucléaires français devant la Cour internationale de Justice, Observations sur l’ordonnance du 22 septembre 1995’ (1995) 41 AFDI 354 et seq.; MVR Craven, ‘New Zealand’s Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974, Order of 22 September 1995’ (1996) 45 ICLQ 725 et seq.; L Daniele, ‘L’ordonnance sur la demande d’examen de la situation dans l’affaire des Essais nucléaires et le pouvoir de la Cour internationale de Justice de régler sa propre procédure’ (1996) 100 RGDIP 653 et seq.; B Kwiatkowska, ‘New Zealand v France Nuclear Test Case: The ‘Little Big’ Order of the ICJ of 22 September 1995’ in Finnish YBIL, vol 6 (1995) 1 et seq.



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but a ‘revived jurisdiction’44 – admittedly a somewhat idiosyncratic concept. That amounts to saying that the Court, acting under its original jurisdiction and in light of the old claims, and to some extent sailing under the flag of the perpetuatio fori (perpetuation of the forum), could revive the old proceedings only with a view to verifying whether France had complied with the judgment. The scope of the Court’s competence could in no circumstances be enlarged beyond these very narrow limits (except in the context of a forum prorogatum). Moreover, it was far from clear that the Court had the power to include in its judgments clauses that would permit it, at indefinite later dates, to ‘re-open’ the proceedings, since no such power was provided for in the Statute or the Rules. The only way to justify it is to take the view that the Court, as master of its own procedures, has an ‘inherent power’ to do it.

f)  Striking from the Court’s List45 Prior to the Rules revision of the 1970s, every case in which the Court might have jurisdiction ratione personae was entered on the Court’s list of pending matters, even though it might be struck off again if the Court did not have jurisdiction and the Respondent State refused to agree to it by way of forum prorogatum. Then things changed. In the 1978 Rules, Article 38, paragraph 5 provides that cases which are begun before the Court has jurisdiction shall not be entered on the list unless and until the respondent gives its prorogated consent. Obviously the purpose of the new rule was to reduce the scope for States to gain publicity for their causes by starting proceedings that often had no chance of proceeding. Another aim was to hamper the introduction of incidental proceedings once the case is put on the list. Nevertheless, the Court’s new attitude was somewhat unsatisfactory from the legal point of view. It created a category of unenrolled cases, floating, in effect, in a legal limbo. From a legal perspective, it would seem preferable to enrol such cases on a provisional basis, accompanied by a note to the effect that there is no pre-existing basis for jurisdiction. The Court refuses to strike cases from its list just because its jurisdiction is disputed, even if the Respondent State claims that it is quite obvious that no jurisdiction exists. The Nuclear Tests cases (1974) and the 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 case (1995) are eloquent testimony to this attitude, as also was the case on Military and paramilitary activities in and against Nicaragua (1984). In the first two cases it was France, and in the third the USA, which argued that that the Court manifestly had no jurisdiction. The Court’s attitude seems all the more appropriate since, in most of the cases mentioned above, the Court ended up deciding that it did indeed have jurisdiction. The real question is what the Court should do if it has to admit, even on a prima facie basis, that it manifestly has no jurisdiction. Can it then strike the affair from the list motu proprio, as a purely administrative measure, without handing down a decision on the point? The Court’s practice is not to strike out cases except following a judicial decision. This generally entails the making of an Order. The course chosen represents a compromise between purely administrative striking 44   See Thirlway, above n 34, 60 et seq.; and H Thirlway ‘The Law and Procedure of the International Court of Justice 1960–1989’ in BYIL, vol 74 (2003) 16 et seq. 45   Thirlway, above n 34, 69 et seq.; S Rosenne, The Law and Practice of the International Court, 1920–2005, vol III, 4th edn (Leiden, 2006) 1892 (3rd edn, Leiden, 1997, 1226 et seq); Guyomar, above n 6, 245–46, 562 et seq.

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out and striking out after an in-depth examination of the issues: the making of an Order at least allows them to be examined on a summary basis. This was how the Court went about things in some of the cases on the Legality of the use of force (1999), brought by Serbia against a series of NATO States. Some of the respondents (for example, the USA) had inserted a reservation excluding the application of Article IX of the 1948 Genocide Convention, which was the jurisdiction clause on which Serbia relied. In such cases, the Court was in a position to conclude that it manifestly had no jurisdiction, not even prima facie. In the context of a request for the indication of interim measures, it issued an Order striking the case from the list.46 The Court took into account the fact that the Convention itself did not prohibit such reservations, and that Serbia presented no argument against the validity of the USA’s reservation.47 Doubtless the Court thought Serbia was implicitly admitting the validity of the reservation, and thus the concomitant lack of jurisdiction in the Court. The majority’s handling of this question was challenged by Judge Parra-Aranguren, who thought the Court did not have power to strike cases from its list as an incidental element in a summary procedure such as an interim measures application. In his view, jurisdictional issues should be decided by a proper judgment, following either the submission of Preliminary Objections or the Court’s own examination of the issues, at that stage, of its own volition (Rule 79, paragraph 7). He argued as follows: The Court does not have discretionary powers enabling it to depart from the rules laid down in Article 79. The present proceedings have not yet reached the stage of preliminary objections. Consequently, when deciding on a request for the indication of interim measures of protection, the Court cannot in my view give a definitive ruling on jurisdiction, nor can it order the case to be deleted from its list.48

Where its jurisdiction is disputed, the Court does not strike the case from its list without an appropriate jurisdictional act. If there is manifestly no jurisdiction even on a prima facie basis, and the Applicant admits this, either explicitly or by implication, the Court can proceed to strike the case out by means of a summary Order (see the Legality cases). If it is not so obvious that there is no jurisdiction, the Court will not strike the case out until it has examined the question in more detail, in a judgment on jurisdiction. Arguments as to the admissibility of the claim are not dealt with until the stage of judgments on jurisdiction and admissibility. Striking from the roll is not the proper response to inadmissibility arguments, given that such arguments are to a greater degree linked to the substantive issues and cannot be resolved summarily on a preliminary and abstract basis. All in all, there is much to be said for the Court’s restricted practice. It would obviously be problematical for the Court, as a merely administrative or summary measure, to reject a sovereign State’s application on the basis of prima facie considerations. At the same time, the requirements of procedural economy may indicate that a case should be deleted from the list in the course of a summary proceeding, if the Court’s want of jurisdiction seems clear and the Applicant says nothing to counteract that assessment.

  See, eg ICJ Reports 1999-II, 916 et seq., 924–25.   Ibid, 924, § 24. 48   Ibid, 950, § 4. 46 47



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g)  Effects of Starting Proceedings When the claimant lodges its application, or when a special agreement is notified to the Court by the parties, the Court is thereby formally seised of the case. The Court’s procedure then follows its various phases, along the lines laid down by the Statute and, even more, by the Rules. When the Court is seised of a case, this has a series of legal consequences for the claimant, which thereby acquires certain rights and obligations. These include the right to initiate interlocutory procedures, notably for interim measures of protection. The Court is not formally seised of a matter unless and until the case has been regularly introduced and entered on its list. If the application is lodged without any initial jurisdictional basis, in the hope that the Respondent State will subsequently consent, the case is not considered to have been constituted. Under Rule 38, paragraph 5, the case is not entered on the list until the respondent consents. It follows that, until then, the claimant cannot pursue any incidental procedure. That is doubtless as it should be. It would be highly problematical to allow a claimant to start a case simply for political reasons, and then to allow it to add, for additional nuisance value, one or more applications for the indication of interim measures of protection. The Respondent State would be obliged to defend those incidental applications, with all the drawbacks entailed, both of principle and in terms of expense. That does not mean, however, that it would be a bad idea to enter such cases on the Court’s list. On the contrary, doing so would put an end to the situation in which unenrolled cases are to be found floating around weightlessly in the rarified atmosphere of the Registry. All that is really necessary in order to ensure that the Court is ‘seised’ of such cases in a regular way, is the creation of a special category on the Court’s list. In a sense, the seising of the Court would be conditionally suspended, so that the claimant was not entitled to pursue interlocutory procedures until the respondent consented to the jurisdiction. There is thus a clear distinction to be drawn between seising the Court, on the one hand, and its jurisdiction on the other.49 Seising the Court is the necessary initial step – so to speak a condition precedent to the Court’s being able to decide the jurisdiction question. One should particularly note that seising the Court by special agreement in no sense confers jurisdiction on it automatically. The Court has first to assess whether it has the necessary personal jurisdiction (that is whether the parties are States entitled to appear before it), and the necessary subject-matter jurisdiction (the existence of a dispute, a legal question, the applicability of international law, compliance with the Statute). Even from the point of view of jurisdiction by consent, complications can sometimes arise. Certainly, a special agreement generally reflects the most direct kind of agreement between the parties to submit their dispute to the Court. But, as the Monetary Gold case (1954)50 showed (and we will return to it later), it is always possible that one of the parties to a special agreement will nevertheless raise a Preliminary Objection against the Court’s very jurisdiction. There are thus many reasons, both of logic and practice, to maintain a clear distinction between the concepts of jurisdiction on the one hand and seising the Court on the other.

  Contra, M Dubisson, La Cour internationale de Justice (Paris, 1964) 209.   ICJ Reports 1954, 19 et seq.

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h)  Amendment of Initial Claims/Requests Very often a unilateral application initiating proceedings will expressly reserve to the Applicant the right to modify its arguments and claims. Whether or not such express reservations are written in, a party may in certain circumstances be tempted to modify its arguments as the case progresses, if only in light of the way the debate develops. In this context several question arise. First: If the applicant withdraws a claim, an argument or any other element in its case, the respondent will, to that extent, find itself in a more favourable position, since it is relieved of the burden of answering it. The due and proper administration of justice is not affected adversely: the Court simply has fewer questions to decide. For these reasons it is the accepted right of an applicant to withdraw one of the claims or other elements in its case, at any time. The ICJ issues judgments because parties request it to, and not of its own volition. Its procedure is ‘civil’ rather than ‘criminal’ in nature; ‘no judgment without a claimant’ (nemo judex sine actore). From the moment a claim, argument or other element is withdrawn, the Court ceases to have jurisdiction over it, given that, to that extent, there is no longer a ‘dispute’. The respondent cannot require the Court to decide such a point. As between the parties, the Applicant in this sense retains the mastery: it is the dominus negotii with respect to that claim. Certainly, the respondent could, in an appropriate case, bring a ‘counterclaim’ in relation to such withdrawn matters. The potential right to bring such a counterclaim does not prevail over the faculty of the claimant to withdraw his argument. In this respect there is also a notable difference between such a limitation in the scope of a claim and the complete discontinuance of the application (the latter can be analysed as the withdrawal of all the claims formulated in the application). Discontinuance, in order to take formal effect, presupposes the respondent’s consent, at least if the respondent has already taken one or more procedural steps in the action.51 The Rules on this are designed to protect the respondent’s interest in having the proceedings brought to an end, and in being relieved from the possibility of fresh claims later. There is no analogous rule in respect of the withdrawal of individual elements or claims of a party’s case. The Rules distinguish between discontinuing the whole case, which gives rise to a legal linkage between the two parties that cannot be unilaterally undone by one alone, and the withdrawal of a particular element of a claim, which is entirely a matter for the applicant. If the case is begun by notification of a special agreement, both sides are free to develop their respective cases, and to withdraw any particular element at will. However, if the special agreement itself fixes certain questions that are to be put to the Court, these cannot be withdrawn except by agreement between the parties. Second: To the extent that an argument, a claim, or another element in a party’s case is not withdrawn, but is modified or supplemented, the protection of the respondent, and the due and proper administration of justice, will become relevant considerations, since they may be affected. If applicants were entitled as of right to change their claims at will at any 51   Rule 89, § 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.’



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stage in the proceedings, they would be able, by making last-minute changes, to prevent respondents from formulating their positions properly in relation to the revised elements. In such a case, the Court itself might be deprived of the opportunity to hear properly developed arguments from the respondent’s side, and thus prevented from acquiring a proper overview of the issues. The quality of the Court’s justice might suffer in consequence, particularly since the civil and adversarial style of the Court’s procedures rests essentially on the arguments and evidence adduced by the parties themselves, and not on any kind of inquisitorial or administrative enquiry by the Court itself. Since this question raises issues as to the equality of the parties and of judicial integrity, the Court has, since the 1930s, developed a relatively consistent body of jurisprudence on it. The introduction of new elements into a party’s case can take one of several forms, variously going to: (1) new heads of jurisdiction, not previously cited; (2) new claims as to the respondent’s legal obligations; or (3) the subject of the dispute; and (4) new documentation and evidence. The respondent, for its part, can seek to advance new arguments in opposition to the applicant’s case, to raise fresh Preliminary Objections (for example, as to admissibility) or to submit new documentation. As to the first questions – new heads of jurisdiction and new claims – the Court’s fundamental criterion is whether the modifications will turn the dispute before it into a different dispute. In the case concerning the Arrest Warrant of 11 April 2000, the Court noted and confirmed the statement that it ‘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’.52 In such circumstances it is necessary to compare the substance of the respective disputes and to admit new arguments if they amount to only a minor modification in the subject of the dispute, rejecting them if they make too substantial a difference to it and thus endanger the proper application of the Court’s procedures. This comparison is the fundamental criterion. The way the criterion is applied does, however, vary somewhat according to the context. New heads of jurisdiction. The introduction of a new head of jurisdiction may or may not lead to a concomitant enlargement of the subject of the claim. In some cases it may be equivalent to drawing the Court’s attention to a new material question that is connected to the additional head of jurisdiction. For example, the jurisdiction clause in a treaty may both expand the Court’s jurisdiction and at the same time add additional heads of claim arising from the topics covered by the treaty. In other cases, the new head of jurisdiction may merely support and corroborate a head of jurisdiction already mentioned, without materially enlarging the scope of the legal debate. This would be the case for example, if the optional clause were subsequently invoked as an independent basis of jurisdiction, enabling the Court to deal with the substance of the same claims as were previously to be heard by virtue solely of an agreement on jurisdiction. In cases of the first kind, the enlargement goes both to jurisdiction and to substance; in the latter it goes only to jurisdiction (which is the reason for producing the supplementary head). Obviously, therefore, the first category is the more problematical one from the point of view of the due and proper administration of justice and of equality of the parties. Legally, this is very much tied up with the transformation of the subject of a claim, and will, therefore, be dealt with in the next section.

  ICJ Reports 2002, 16, § 36.

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In the case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility, 1984), a new head of jurisdiction not necessarily connected with a material enlargement in the substantive scope of the claim was invoked by Nicaragua. In its original application, Nicaragua had relied on declarations giving the Court compulsory jurisdiction under Article 36, paragraph 2 of the Statute. In its Memorial, however, Nicaragua also invoked, in tandem with the preceding basis, the jurisdiction clause in its 1956 Treaty of Friendship, Trade and Navigation with the USA. Since the Court’s jurisdiction under the optional declarations was a generalised one, it would, taken by itself, have been a sufficient basis on which to bring claims that the Treaty had been violated, provided that none of the reservations in the two States’ declarations under Article 36 affected the question (the USA had included in its own declaration the famous automatic reservation regarding internal affairs as interpreted by the USA itself). Since the position was unclear and it was not obvious that the Court would consider the Nicaraguan declaration a valid one, because it had a number of fairly wayward features, Nicaragua had, in its Memorial, put forward the treaty clause as a subsidiary basis of jurisdiction. The USA opposed this, arguing that Nicaragua could not be allowed to modify the subject of its claim in this manner. Applying the ‘different dispute’ test, the Court rejected the USA’s objection: 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 Reports 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, PCIJ Series A/ B no 78, p. 173). Both these conditions are satisfied in the present case.53

This passage shows the Court taking a fairly liberal line in the Nicaraguan case against the USA, on the basis that the additional head of jurisdiction extended claims that were already mentioned in the original application, so that there was no significantly greater difficulty for the respondent or for the Court in coming to grips with the new arguments. One might add that, in some circumstances, an additional head of jurisdiction may also have the beneficial result of simplifying the judges’ task, sometimes to a considerable degree. If the original head of jurisdiction runs into problems, whether because of reservations made by the parties or because of other matters that lead to difficult issues of interpretation, and if the additional head of jurisdiction presents a much easier alternative basis upon which the Court can proceed with confidence, the addition of the second head can represent a significant saving by the Court in terms of procedural economy. It is not particularly far-fetched to imagine the Court deciding motu proprio, in such circumstances, to disregard the first basis from the moment the second is brought to its attention, simply in the interests of the better management of the case. Although that question does raise some delicate issues of procedural law, one can perhaps accept at least that the Court would be in a position to suggest this course to the party concerned.   ICJ Reports 1984, 426–27, § 80.

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Enlarging the subject matter of the case (additional claims). In principle, the subject matter of the case is fixed by the documents initiating it – that is when the claim is first formulated. The originating documentation ‘selects the battle-ground’ and sets bounds to it: it is to this terrain that the Court and the parties must then address their attention. To allow unilateral changes to the terrain would disrupt the proceedings, leading to delays and opening up the possibility of various kinds of tactical manoeuvring by the parties. This in turn, might prejudice the respondent’s rights and thus the equality of the parties. That in its own turn, undermines the due and proper administration of justice and generally makes the Court’s job harder. It is therefore unsurprising that the Court has been very reticent on this point. As it said in the case on Certain phosphate lands in Nauru, Preliminary Objections (Nauru v Australia, 1992): 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 (Article 40, first paragraph), and of the text of the first Rules of that Court, adopted in 1922 (Article 35, second paragraph), respectively. On several occasions the Permanent Court had to indicate the precise significance of these texts. Thus, in its Order of 4 February 1933 in the case concerning the Prince von Pless Administration (Preliminary Objection), it stated that ‘under Article 40 of the Statute, it is the Application which sets out the subject of the dispute, and the Memorial, though it may elucidate the terms of the Application, must not go beyond the limits of the claim as set out therein . . .’ (PCIJ Series A/B no 52, p. 14)54

The PCIJ had also emphasised the same principle in the case of Société commerciale de Belgique (1939): 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 . . . 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. 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.55

The Court can also refuse to allow modifications to a party’ pleadings, out of concern for the fundamental principles of the due and proper administration of justice, in particular the principle of equality between the parties, if it considers that the rights of the respondent would be excessively affected. Thus, in the case of Avena and other Mexican nationals (2004), the Court decided not to allow Mexico to alter its pleadings with a view to adding two new Mexican nationals, and it reached this decision ‘in order to ensure the procedural equality of the Parties’.56 There is, however, one major exception to this principle of unchanging subject matter, and it does provide a certain (and welcome) degree of flexibility. An additional claim is   ICJ Reports 1992, 266–67, § 69.   PCIJ, series A/B, no 78, 173. 56   ICJ Reports 2004-I, 18, § 7. 54 55

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admissible if it is already implicit in the original case, or, in other words, if one of the elements of the initial claim is simply developed further – for example by drawing out the implications – so that it is not a raw new element or enlargement of the case. For this exception to apply, the links between the new part and an element that was already present in the initial claim must be sufficiently strong to justify the conclusion that the new element is implicit in the old. The links can also be purely objective in nature: independently of the question whether the new material amounts to a claim additional to the one originally formulated, the new material will be admissible if the Court is in any event implicitly bound to take account of the ‘additional’ issue because it is indissociable from the legal reasoning associated with the original claim. In such a case, the Court will take the view that there is no ‘new’ subject matter here, that is that no problematical modification is being proposed to the subject matter of the case. There are five relevant precedents on this point: the Temple of Preah Vihear (merits, 1962),57 the Fisheries jurisdiction case (merits, German Federal Republic v Iceland, 1974),58 the case of the Arrest Warrant of 11 April 2000 (2002),59 the Case concerning the territorial and maritime dispute between Nicaragua and Honduras in the Caribbean Sea (2007)60 and the case of AS Diallo (Republic of Guinea v Democratic Republic of the Congo, 2010).61 To sum up, the subject-matter of an applica57   ICJ Reports 1962, 36: The Court, presented with a claim concerning a territorial dispute between two States both of which claimed the same parcel of territory, took the view that the Applicant’s claim in its argument at the end of the oral proceedings, in relation to the withdrawal of the armed forces placed by the Respondent State in the disputed territory, “does not represent any extension of Cambodia’s original claim (in which case it would have been irreceivable at the stage at which it was first advanced). Rather it is . . . implicit in, and consequential on, the claim of sovereignty itself ”. 58   ICJ Reports 1974, 203, §§ 71–72. Germany’s Memorial had raised the question of harassment of German fishing boats by Icelandic coastguards. The Court accepted that it had jurisdiction to deal with this argument. The problem arose entirely within the bounds of the dispute between the two parties, and ‘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’. 59   ICJ Reports 2002, 16, § 36: “ However, the Court considers that in the present case the facts underlying the Application have not changed in a way that produced such a transformation in the dispute brought before it. The question submitted to the Court for decision remains whether the issue and circulation of the arrest warrant by the Belgian judicial authorities against a person who was at that time the Minister for Foreign Affairs of the Congo were contrary to international law. The Congo’s final submissions arise ‘directly out of the question which is the subject-matter of that Application’ ”. 60   ICJ Reports 2007, §§ 104 et seq. The question arose in relation to the admissibility of a request that sovereignty over the islands be decided (§§ 104 et seq.). Nicaragua insisted on this in its concluding arguments. The problem that was then posed was as to the modification at this late stage of the original subject of the claim. In the Court’s view, Art 40, § 1, of the Statute required the subject of the dispute to be indicated in the initial Application; Rule 38, § 2 required that the “precise nature of the claim” be indicated. These provisions were essential to a secure legal process and the proper administration of justice (§ 108). The request to decide the issue of sovereignty over the islands constituted a ‘new request’ (§ 109). It would be admissible if it could be considered to have been covered, in the material sense, by the original claim, i.e. if it flowed from it implicitly (see the Nauru case, Preliminary Objections, 1992, ICJ, § 65). In order to draw a single line of maritime delimitation, the Court would have to take account of the islands’ impact. Inevitably, it would have to decide which State they belonged to. Consequently the claim to sovereignty over the islands was implicit in the initial request for a maritime delimitation (§ 114). That being so, the request to decide sovereignty over the islands was not too late, and was admissible (§ 115). In addition, Honduras was not opposed to this element of the claim, but in fact was likewise asking the Court to decide the question (§ 116). 61   At §§ 27 et seq. of the Judgment of 30 November 2010. Guinea had, at a late stage, ie in its Reply, enlarged the subject matter of the case by including certain facts that occurred in 1988–89. This enlargement of the dispute to cover supervening events came after the Court had already decided the RDC’s Preliminary Objections. The Court took the view that the Congo’s new arguments against admissibility, on the basis that Guinea was late in presenting the facts of 1988–89, and on the basis that Guinea had not exhausted all internal remedies, were not themselves ‘late’, since they could not have put forward at an earlier stage. The Court then took the view that such a modification of the subject matter of the dispute would endanger the secure and proper administration of justice. One had to ask oneself whether the new request was materially covered by the original subject matter in some way,



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tion must be considered not only according to its ‘letter’, but also in light of its spirit; not only in light of the actual terms used, but also of their implications. This jurisprudence is welcome. It enables the Court to ensure that the cases before it have a certain unity, and that in turn makes possible the better administration of justice. If the Court were stricter about these matters, it might simply encourage claimants to cover the situation by starting additional cases. There would be no benefit in that, either from the point of view of procedural economy, or from the perspective of the unity of the subject matter addressed by the Court in any particular case. On the other hand, the Court must not be too relaxed about the connections between the existing case and the ‘new’ material because the administration of justice would then be plagued by the opposite problems identified above – prejudice to the proper working of the Court’s procedures, delays and manoeuvrings, the potential distortion of the principle of equality between the parties and so on. In a broader perspective, these questions demonstrate the plasticity of the issues and the point to which such procedural questions make it necessary for the Court to be constantly balancing opposing interests that are of fundamental importance. There are other respects, too, in which there is nothing particularly absolute about the principle that the subject of the case must be unchanging – a principle which was already relatively flexible thanks to the Court’s jurisprudence about issues that are implicit in the original claim. The subject matter of a case may be enlarged in consequence of the forum prorogatum mechanism, or by counterclaims – the latter subject to the principle that they have to be on connected subjects. These questions will be considered later in this book. Fresh evidence. The question of fresh evidence is very clearly covered in the Rules. Rule 56, paragraph 1 states: After the closure of the written proceedings, no further documents may be submitted to the Court by either party except with the consent of the other party or as provided in paragraph 2 of this Article. The party desiring to produce a new document shall file the original or a certified copy thereof, together with the number of copies required by the Registry, which shall be responsible for communicating it to the other party and shall inform the Court. The other party shall be held to have given its consent if it does not lodge an objection to the production of the document. 62

Paragraph 2 gives the Court a discretion which in effect is subject to the principles of equality between the parties and the proper administration of justice: ‘In the absence of consent, the Court, after hearing the parties, may, if it considers the document necessary, authorize its production’. Paragraph 3 states: ‘If a new document is produced under paragraph 1 or paragraph 2 of this Article, the other party shall have an opportunity of commenting upon it and of submitting documents in support of its comments.’ In the practice of the Court, it has frequently happened, especially in the 1990s, that documents and evidence have been brought to its attention at a late stage, after the close of the proceedings’ written phase. The either implicitly or because it ‘flowed directly from the original claim’ (§ 41). This was not the case: the original application related to the events of the years 1995–96, which were of a different nature. Hence the inadmissibility of the new claims relating to facts dating from 1988–89. 62   See also, Rule 57: ‘Without prejudice to the provisions of the Rules concerning the production of documents, each party shall communicate to the Registrar, in sufficient time before the opening of the oral proceedings, information regarding any evidence which it intends to produce or which it intends to request the Court to obtain. The communication shall contain 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. A copy of the communication shall also be furnished for transmission to the other party.’

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Court has judged each such situation on its merits, having regard to the importance of the documents, the reasons why they are lodged late, the attitude of the opposing party, and the issues of principle, such as the due administration of justice and equality between the parties. Bearing in mind that the Court does not state its reasons for admitting documents late, that its power to admit them under paragraph 2 is a discretionary one, and that the circumstances of the particular case are much more important than the desirability of having strict and clear rules, the jurisprudence on this point can be viewed only as a series of specific decisions in light of the circumstances of specific cases. A few examples illustrate the point quite clearly. Sometimes, the production of new documents, stretching the time limits virtually to breaking-point, appears to the Court to serve little purpose in proving a particular point. In that case, the Court will refuse to admit them. Thus, in the case of the Land, island and maritime boundary dispute (El Salvador / Honduras, 1992), the Chamber declined to allow the production of a Salvadorian dossier, in part because the documents already before the Court were of a kind that would establish the facts El Salvador wished to prove and rely on.63 In other cases, documents submitted between one State’s Reply and the opening of the oral phase of the proceedings have been admitted under Rule 56 to the extent that the other party did not oppose their being produced, and that the Court implicitly took the view that their production did not raise issues of principle. This happened in the Jan Mayen case (Denmark v Norway, 1993).64 In a similar way, documents submitted after the opening of the oral phase have been admitted when the other side, while reserving its right to take a position on them, and to submit documents of its own in connection with them, did not object. This happened in the case of Qatar v Bahrain (Jurisdiction and admissibility, 1994).65 In the East Timor case (1995), each side put in documents after the time limit had expired. Portugal objected to one of them, saying that it did not satisfy the exception under Rule 56, paragraph 4 for publications readily available. The Court decided not to include the document in the file, but stated no reasons for that decision.66 Doubtless it accepted Portugal’s objection. In another case, Gabcikovo-Nagymaros (1997), the Court exercised its discretion under Article 56, paragraph 2, admitting certain documents which it doubtless thought were important, despite the opposition of the other party;67 conversely, in the case of the Land and maritime boundary between Cameroon and Nigeria (2002), the Court declined to allow documents to be produced, probably because they were thought to be less relevant or because the delay would in the Court’s view have prejudiced the proper administration of justice.68 In the Legality of the use of force cases (1999), concerned with the dispute arising from the bombardment of Serbia and Kosovo, a whole series of documents were submitted, late, but with the parties’ agreement.69 A considerable number of documents were also submitted late in the case on the Application of the Convention for the prevention and punishment of the crime of Genocide (Bosnia-Herzegovina v Serbia and   ICJ Reports 1992, 574, § 360.   ICJ Reports 1993, 41, § 5. 65   ICJ Reports 1994, 115, § 9; and ICJ Reports 2001, 49, § 30. See also, the case of the Land and maritime boundary between Cameroon and Nigeria, Preliminary Objections, ICJ Reports 1998, 280, § 12; the case of the Island of Kasikili/Sedudu, ICJ Reports 1999-II, 1951, § 7; the Oil Platforms case, ICJ Reports 2003, 168–69, § 15; and the case of Avena and other Mexican nationals, ICJ Reports 2004-I, 18, § 8. 66   ICJ Reports 1995, 93, § 9. 67   ICJ Reports 1997, 13, § 7. See also, the LaGrand case, ICJ Reports 2001, 470–71, § 6; and the Request for revision of the Judgment of 11 September 1992 in the land, island and maritime boundary dispute (El Salvador/Honduras), ICJ Reports 2003, 395, § 9. 68   ICJ Reports 2002, 315, § 22. 69   ICJ Reports 2004-I, 287, § 19; and see also, Reports 2004-II, 436, 582, 727; and 2004-III, 872, 1018, 1167, 1314. 63 64



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Montenegro, 2007);70 some of them gave rise to argument. The volume of new documentation was considerable. Over time, this veritable proliferation of late documents – a review of the jurisprudence since the early 1990s shows that the problem was constantly recurring – prompted the Court to take action. In 2004 it adopted Practice Direction No IX, which reads as follows: 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 authorize 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.

Two more Practice Directions, Nos IX-271 and IX-3,72 introduced in 2006, further regulate particular matters relating to Rule 56. Practice Direction IX-2 gives indications to parties 70   See §§ 45–47 and 54–55. Serbia lodged objections to the late production of a CD-ROM, arguing that it was prejudicial to equality between the parties: § 54; the Court decided it was preferable for the CD-ROM to be withheld, for reasons which included the view that its excessive volume, at what was already a fairly late stage in the proceedings, would further slow down the progress of the case and that it was not desirable from the point of view of the due and proper administration of justice. 71   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:

(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 on-line, 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 of 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. 72   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

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about their right to mention, in the course of the oral phase, the contents of documents which are part of ‘readily available’ publications as provided in Rule 56(4). Practice Direction IX-3 contains certain directions as to the practice of creating ‘judges’ folders’, or ‘dossiers de plaidoiries’, for the convenience of judges. The Court intended these Practice Directions to discourage the relaxation of procedural discipline that had been a feature of recent years. The modifications to the Practice Directions in 200673 were essentially and directly designed to combat abuses which had become particularly noticeable in the Genocide case (Bosnia-Herzegovina v Serbia and Montenegro), but had also been features of other cases. Above all, they were designed to counteract the tendency of parties to submit very ample judges’ folders, frequently including new documents that were thus effectively smuggled in out of time. Paragraph 2 of Practice Direction IX therefore reminded parties that if they wished to produce new documents after the closure of the written phase, including during the oral one, they must comply with Rules 56(1) and (2). It is still too early to see whether these Practice Directions have had a significant effect on this practice, harmful as it surely is to the Court’s proper and rapid administration of the justice.

i)  The Court’s Inherent Power to Decide the True Scope of a Claim The Court possesses a power, inherent in its very functions, to decide the true scope of a party’s application or claim. The Court has the right to interpret the claim so that it can then treat it in the way the Court considers most correct and appropriate. This principle applies both to contentious and consultative proceedings. Amongst contentious proceedings, a classic example is to be found in the Nuclear Tests cases (1974). Here the Court laid down a clear marker not only as to its autonomy but also as to its authority – its imperatoria majestas: Thus it 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 attributions 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’ (P.C.I.J. 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. The Court has on the other hand 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 indication 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.74

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 IX bis 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. 73   See ICJ Press Release 2006/43 and its annex, which can be viewed on the Court’s website, at www.icj-cij.org. 74   ICJ Reports 1974, 262, § 29 and 466, § 30.



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In advisory cases, which admittedly are not our concern here, one can cite the case of the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (1980).75 It must be admitted that the Court often exercises this power in order to categorise and treat the case in a sense which is more useful than the one that has been given to it in the words chosen by the parties. Inevitably in such cases, the Court is always exposed, at least to some extent, to the charge of ‘manipulating’ the case. Sometimes it is a matter of ‘improving’ a question that has been formulated in way which is not sufficiently precise from the legal point of view, as was the position in the WHO/Egypt case. On other occasions it is quite otherwise – the Court is plainly trying to mask an element in the dispute with which it feels particularly uncomfortable. This was the position in the Nuclear Tests cases, which were highly sensitive from a political point of view. If the Court was going to conclude, as it did, that the claim was without any object since the French government had undertaken to stop atmospheric testing, it was essential that the claim be limited to that objective. In fact, the two applicants had both made supporting claims for reparation of the damage done to them. Reinterpreting their claims in their ‘true sense’, the Court was able to take the view that the reparations were so subordinate to the question of cessation that they did not amount to free-standing claims. This, however, was not at all the applicants’ view. Both the judges and the leading commentators remain divided about the justification for the Court’s conclusion, some thinking it was wrong,76 others that it was right.77 On any view, it is difficult to understand the Court’s attitude except as the outcome of a desire to disencumber the Court, without making too many waves, of an affair which was extremely sensitive from the political point of view. Sometimes an application is not formulated clearly and sometimes the subject of a dispute has to be circumscribed in light of supervening events. This can easily happen in cases where the Court’s forum is prorogatum. Suppose, for example, that an application is made under Rule 38, paragraph 5, giving a summary indication of the purpose of the claim. The respondent agrees ex post facto that the Court will have jurisdiction, declaring its intention to defend the case on the merits, that is, without objecting to the jurisdiction. In this situation, it is necessary to decide what exactly is the object of the application and above all what is the scope of the respondent’s acceptance. The interaction of these two aspects – the application and the acceptance of jurisdiction, determines the exact subject of such a dispute. The Court faced just such a situation in the Case concerning certain questions of mutual legal assistance (Djibouti v France, 2008).78 It took the opportunity to restate the point that the subject of the dispute is not determined solely by reference to the questions described in the application as being the subject of the dispute (§ 70). It is also possible that the legal basis for the claims will make an additional contribution to the interpretation of the application’s subject matter. In that case, the application made formal mention only of certain criminal cases. However, the legal argumentation in fact indicated the existence of additional bases of claim, and they needed to be included in the case (§§ 71–75). On the other hand, the summonses (in the context of criminal proceedings) and arrest orders of 2006 were not part of the dispute’s subject matter. They were not mentioned in the application   ICJ Reports 1980, 88.   See in particular, the very clear joint Dissenting opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and H Waldock, ICJ Reports 1974, 312 et seq. 77   J Verhoeven, ‘Considérations sur ce qui est commun – Cours général de droit international public (2002)’ CCHAIL, vol 334, 2008, 145–46. 78   ICJ Reports 2008, §§ 65 et seq. 75 76

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because they were subsequent in point of time. However, France had accepted the Court’s jurisdiction only in relation to the aspects covered by the initial application (the words used being ‘subject of the application within the strict limits of the claims formulated’(our translation)). That fact that Djibouti had reserved the right to modify and complete its application made no difference. The French consent to jurisdiction by way of forum prorogatum could not be extended beyond the limits that France itself wished and stipulated (§§ 87–88). In this case, then, we see the subject matter of the dispute being defined via a fairly complex and quite strict process of interpretation. Doubtless one of the Court’s motives was to reassure other States that might contemplate accepting its jurisdiction on a forum prorogatum basis.

2.  DISCONTINUING A CASE 79

a)  The Object of Discontinuance and the Provisions of the Rules Discontinuance (in French désistement) means the voluntary abandonment of a right, in this case the voluntary act being a State’s notification to the Court that it wishes to withdraw a case. The service of such a notification is a legal act which, subject to certain conditions, automatically brings the case to an end.80 The applicant (in the case of a case brought unilaterally), or the parties (in special agreement cases) are not under any obligation to persist with their cases until the Court has come to a decision on the merits. They can decide that it makes no sense to continue, because of a change in circumstances and its effects on the question in dispute; that it would be better to negotiate, because, say, new prospects for agreement have arisen; or that the normalisation of relations between the two States following various political changes makes it advisable to drop the case. The Court has always made it clear, almost from the first, that the judicial resolution of disputes is at best a substitute for direct and friendly settlement between the disputing States.81 It is in no sense compulsory to take one’s case to the Court, whose jurisdiction is of a ‘civil’ rather than a ‘criminal’ type, dealing with ‘private’ rather than ‘public’ interests – hence the full applicability to it of the old adage that there can be no judge if there is no plaintiff: pas de juge sans plaignant – wo kein Kläger, da kein Richter; nemo judex sine actore; nullo actore, nullus judex. Given that, in consequence, the parties themselves remain, as we have seen, the domini negotii, they can at any time decide to withdraw the case, and are not obliged to supply the reasons for their decision. Of course, such a decision has to be notified in proper form and in compliance with the relevant procedural rules.

79   See G Wegen, ‘Discontinuance and Withdrawal’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 10, 1,253 et seq. See also, A Giardina, ‘Arrangements amiables ed estinzione del processo di fronte alla Corte internazionale di giustizia’ in Comunicazioni e studi, vol 14 (1975) 337 et seq.; R Donner, ‘Discontinuance of Proceedings in the International Court of Justice’ in Finnish Yearbook of International Law, vol 8 (1997) 244 et seq. See generally, G Wegen, Vergleich und Klagerücknahme im internationalen Prozeet seq. (Berlin, 1987). 80   J Salmon (ed), Dictionnaire de droit international public (Brussels, 2001) 329–30. 81   See the Free Zones case (Order, 1929), PCIJ, Series A, no 22, 13. See also, the Boundary dispute (Burkina Faso v Mali), ICJ Reports 1986, 577; case of the Passage through the Great Belt (Finland v Denmark, Interim measures), ICJ Reports 1991, 20.



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The Court’s Statute says nothing about discontinuance, but the subject is dealt with in Rules 88 and 89.82 Rule 88 reads as follows: 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.

And Rule 89 reads as follows: 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 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.

Article 88, then, is about discontinuance by agreement between the parties. Where the case is based on a special compromis or special agreement of some kind, discontinuance cannot be unilateral. Article 88 does not, however, apply only to compromis and special agreements. It applies, more widely, to all cases in which the parties agree to discontinue and notify that agreement to the Court. Rule 89, by contrast, deals with the special case of a unilateral discontinuance of a case that has been begun by unilateral application. In the former case (Article 88), the Rules give free rein to the parties’ joint wishes, on the principle mentioned above, that judicial resolution is essentially only a substitute for the resolution of disputes by agreement. In the latter case (Article 89), the Rules are designed to guarantee the opposing party’s rights, by requiring a kind of agreement to discontinue. In this case, if procedural steps have already been performed, it suffices if the opposing party makes no objection to discontinuance within the time-limit set by the Court, thus constituting a kind of ‘normative acquiescence’ through silence: qui tacet consentire videtur si loqui potuisset ac debuisset. The system is designed to work in that way because discontinuance does affect the position of the other party, which will no longer be able to look forward to the judicial resolution of the dispute. Any possible counterclaims will be pointless, in the sense that they cannot be brought in an action that has been discontinued; the various procedural steps that such a party has taken, and the expense it has incurred, will yield no tangible benefit; and at some future date the respondent could face a renewed claim, effectively at the whim of the original applicant and so on.   See Guyomar, above n 6, 562 et seq.

82

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The necessary balance between the applicant’s right to withdraw its claim freely, and the respondent’s right not to be put at a disadvantage, is thus very much affected by the taking of ‘steps in the proceedings’. If no procedural step has been taken, the applicant is entitled to withdraw unilaterally without further ado. If procedural steps have been taken by the respondent, there has to be agreement before the case can be discontinued. The respondent has to be consulted, and is entitled to object, in any case in which he has taken a ‘procedural step’, in the widest sense of that term: the Registrar treats even the initial nomination of an agent as a procedural step.83 These arrangements afford respondents a considerable degree of protection. Until now, all discontinuances have been by consent, and the Court has not had to rule on the exact meaning of the expression ‘step in the proceedings’.84 For the reasons considered below, it may be worth examining the question rather more strictly than the Registrar appears inclined to do, either confining the concept to the first procedural step relating to the substance of the case (the first written document), or at least to the respondent’s first procedural step. Indeed, if the respondent has yet to take any meaningful procedural step, it is not yet engaged in the case, in which event it is difficult to see how it could be allowed to oppose the withdrawal of the claim, which in purely substantive terms could only be to its benefit. If, on the other hand, the respondent has taken a significant procedural step, it has thereby acquired procedural standing, and must formally consent to the withdrawal of the claim. Nominating an agent does not seem to be a step of sufficient significance in this context. As we shall see, some support for this way of looking at things is to be found in the PCIJ’s jurisprudence. The applicant’s request to discontinue is communicated to the respondent. The respondent’s consent is considered to have been given unless it indicates an objection within the time limit set by the Court. A rule of tacit consent thus applies. If the respondent has objected to the Court’s jurisdiction and the applicant then withdraws its claim, the respondent’s consent is likewise taken as read.85 If unilateral withdrawal is permitted (for example, by agreement or by the existence of a preliminary objection to jurisdiction), or if the respondent does not oppose discontinuance, an Order is made removing the case from the Court’s list. Discontinuance must necessarily be unconditional. For that reason the Court refused to allow discontinuance by the USA in the case of the United States diplomatic and consular staff in Tehran (reparations phase, 1981), on the basis that it was incompatible with the Rules.86 The USA had reserved to itself the right to reintroduce the claim if Iran did not comply with the Algiers Agreements. When the USA eliminated this aspect of their request for discontinuance, explaining that the formula used in its letter had not been intended to impose any kind of condition on the normal procedural consequences of a discontinuance, the Court gave effect to it.87 Another question is whether Article 89, paragraph 2 applies to interlocutory proceedings. We will see (below, section (c)) that the PCIJ did not apply the equivalent provision in the contemporary Rules to interim measures proceedings. These can be withdrawn uni  Case of the French nationals in Egypt (1950): cf Guyomar, above n 6, 575.   In the case of the Pakistani prisoners of war, the Court did, however, take the view that certain communications it had received through the Pakistani ambassador at The Hague were not ‘procedural steps’ (ICJ Reports 1973, 348). This corroborates the view that the Court’s attitude may be a narrower one than the Registrar’s. 85   See the case of the Compagnie du port, des quais et des entrepôts de Beyrouth et de la Société Radio-Orient (1960) : ICJ Reports 1960, 186–87. 86   ICJ Reports 1981, 47. 87   ICJ Reports 1981, 46–47. 83 84



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laterally at any time, by the party requesting them.88 Does the same go for counterclaims? The Court’s procedural law is unclear on this point. It is worth noting that, up to the present time, the Court has always consulted the other party when it has been a question of withdrawing counterclaims,89 without, however, giving any clear indication whether this is done as a matter of judicial courtesy or as a legal act, accompanied by an opinio juris as to the necessity of acceptance. Counterclaims are not autonomous proceedings, but incidental ones. Given the difficulties of keeping proceedings alive following the non-acceptance of a discontinuance, it would be good not to extend the scope of Article 89 to situations it does not directly cover. Its application should be limited to principal claims and demands, and not extended to incidental ones. The better view favours allowing the respondent to withdraw its counterclaims at any time, even without the applicant’s consent. An additional but secondary argument in support of this view is to be found in the fact that it incentivises parties to raise counterclaims, as opposed to starting new actions of their own, because then they retain a greater degree of control. This is desirable anyway, because if the matter in question is dealt with in a counterclaim, that helps make it possible to give a measure of unified treatment to all the interconnected issues, and this in turn leads to a certain procedural economy. These are really only collateral advantages of the restrictive interpretation favoured above, but slight advantages nonetheless.

b)  Formal Requirements for Discontinuance Both the PCIJ and the ICJ have given effect to discontinuance by way of Orders rather than Judgments (in French, ordonnances rather than arrêts).90 The technical distinction between the two is that a judgment presupposes a dispute. But where there is a discontinuance, the parties are agreed, since the Rules provide that the respondent must at least acquiesce in the applicant’s wish to discontinue. When, in the Oecumenical Patriarch case, the request for an advisory opinion (which was a purely unilateral act) was withdrawn, the Court did not even make an Order. The case was deleted from the list by decision of the President of the Court in the exercise of his administrative powers.91 For Orders taking note of discontinuance, the presence of ad hoc judges is unnecessary but not prohibited.92 The Court’s practice in this situation is to sit without the ad hoc judges. The reason is that the Court considers such an Order to be essentially ‘administrative’ rather than judicial. Such Orders are notified to all States that have been informed of the start of the case, or of the notification under Article 63 of the Statute.

c)  The Court’s Practice Since the days of the PCIJ,93 there have been a number of cases of discontinuance. Thus, in the Castellorizo case, the Court gave effect to an agreement for discontinuance by issuing an   Case of the Electricity Company of Sofia and Bulgaria (1939): PCIJ, Series A/B, no 77, 67.   Case on the Genocide Convention, ICJ Reports 2001, 572. 90   Guyomar, above n 6, 565. 91   PCIJ, Series E, no 3, 185. 92   Losinger case (1936), PCIJ, Series E, no 16, 159–60. 93   MO Hudson, The Permanent Court of International Justice, 1920–1924. A Treatise (New York, 1943) 545–46. 88 89

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Order dated 26 January 1933.94 Similar agreements, with similar legal effects, were reached in the Losinger case (1936)95 and the Borchgrave case (1938).96 In cases begun by application, the applicant has sometimes withdrawn its claim unilaterally before the respondent has taken any procedural step, so that the Court could simply register the withdrawal of the claim: see the case on the Denunciation of the Sino-Belgian Treaty of 2 November 1865 (1929).97 On other occasions, unilateral applications have been withdrawn by concerted action: see the case of the Legal status of South-East Greenland (1933).98 In three cases, the applicant withdrew its case after the respondent had taken procedural steps, but the respondent nevertheless did not oppose the discontinuance: these were the case of the Appeals from certain judgments of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (1933);99 the case concerning the Administration of the Prince von Pless (1933);100 and the case concerning the Polish agrarian reform and the German minority (1933).101 Since those cases, it has been accepted that a request for the indication of interim measures of protection can be withdrawn at any time, without any need for the opposing party’s consent – see the case of the Electricity Company of Sofia and Bulgaria (1939).102 Also, in one PCIJ case, a request for an advisory opinion was withdrawn by the requesting body, which, legally, had the right to intervene at any time until the advisory opinion was given: case of the Expulsion of the Oecumenical Patriarch (1925).103 This practice continues at the ICJ.104 Cases have been discontinued unilaterally, with the acceptance of the opposing party: Protection of French nationals in Egypt (1950),105 Société Electricité de Beyrouth (1954),106 Aerial incident of 27 July 1959 (UK v Bulgaria, 1959 and USA v Bulgaria, 1960),107 Compagnie du port, des quais et des entrepôts de Beyrouth et de la Société Radio-Orient (1960),108 Barcelona Traction (first phase, 1961),109 the case of the United States diplomatic and consular staff in Tehran (reparations phase, 1981),110 Armed boundary and transboundary activities (Nicaragua v Costa Rica, 1987),111 Military and paramilitary activities in and against Nicaragua (reparations, 1991),112 Armed boundary and transboundary activities (Nicaragua v Honduras, 1992),113 Passage through the Great Belt   PCIJ, Series A/B, no 51, 6.   PCIJ, Series A/B, no 69, 101. 96   PCIJ, Series A/B, no 73, 5. The discontinuance of this case is particularly regrettable from the point of view of the jurisprudence, given the sheer interest of the legal questions it raised. 97   PCIJ, Series A, no 18, 7. 98   PCIJ, Series A/B, no 55, 158–59. 99   PCIJ, Series A/B, no 56, 164. 100   PCIJ, Series A/B, no 59, 1195–96. 101   PCIJ, Series A/B, no 60, 202–203. 102   PCIJ, Series A/B, no 77, 67. 103   PCIJ, Series E no 3, 85; PCIJ, Series C, nos. 9–11. See Guyomar, above n 6, 146. 104   As to the law on discontinuance at the ICJ, see in particular, H Thirlway ‘The Law and Procedure of the International Court of Justice 1960–1989’ in BYIL, vol 74 (2003) 102 et seq. 105   ICJ Reports 1950, 60. 106   ICJ Reports 1954, 107–108. 107   ICJ Reports 1959, 265 and Reports 1960, 146–48. 108   ICJ Reports 1960, 186–87. 109   ICJ Reports 1961, 9–10. 110   ICJ Reports 1981, 47. 111   ICJ Reports 1987, 182–83. 112   ICJ Reports 1991, 47–48. In this case discontinuance was obtained by pressure on the Government, which had already been condemned by the Court, and which, after a change of Government in the Applicant State, offered to normalise bilateral relations. 113   ICJ Reports 1992, 222–23. 94 95



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(1992),114 Aerial incident of 3 July 1988 (1996),115 Vienna Convention on Consular Relations (Paraguay v USA, 1998),116 Armed activities in the territory of the Congo (RDC v Rwanda, 2001),117 Certain criminal proceedings in France (RDC v France, 2010).118 In some cases, the opposing party had yet to take any procedural step, thus making possible unilateral discontinuance with immediate effect – case of the Trials of Pakistani prisoners of war (Pakistan v India, 1973).119 As this summary review of the practice shows, no respondent has ever opposed an offer to discontinue.

d)  Effects of Bilateral Character of Discontinuance As already noted, the Court’s Rules do not treat discontinuance as a purely unilateral act. Rule 88 deals with joint discontinuance on a ratione materiae basis. Rule 89, dealing with discontinuance by the applicant in a case begun by unilateral application, subordinates the ending of the case to the respondent’s agreement (or at least acquiescence). As already mentioned, that is the logical consequence of the fact that a case before the Court gives rise to a legal relationship between the parties, affects their interests on a reciprocal basis, and obliges them, up to a point, to cooperate with the Court in relation to the case. In so far as discontinuance is a bilateral rather than unilateral act – or, a better way of putting it, if a discontinuance will take effect only if it is accepted – a question arises as to the legal position if the respondent refuses to consent.120 Under the Rules, the case continues. Article 89, paragraph 2 provides as follows: ‘If objection is made, the proceedings shall continue.’ This has never actually happened, and it is therefore difficult to give a clear answer to the question. An applicant which does not wish to continue with its case cannot, after all, be obliged to continue taking steps in the action; it cannot be obliged to produce a Memorial and to plead its case orally; it can simply omit to do so. Technically the Court might, in such a case, apply Article 53 of the Statute by analogy – that is the provisions on proceedings in default of the respondent. However, it is very difficult to see how it could come to any decision in such a case. There is thus a risk that ‘phantom proceedings’ might remain on the list for a certain period of time, without any step being taken (unless, perhaps, the respondent brings counterclaims or requests interim measures of protection). Probably, such cases would, in the end, be de-listed. In this wider sense, it seems difficult to avoid the de facto conclusion that discontinuance is a unilateral act. In order to reduce or eliminate the possibility of cases of that type, it might perhaps be worth interpreting the words ‘step in the proceedings’ in Article 89 paragraph 2 a little more strictly, as already suggested,121 so as to proportionately increase the field in which unilateral discontinuance applies. This might at least be done as regards cases where the respondent has not made any interlocutory application of its own.   ICJ Reports 1992, 348–49.   ICJ Reports 1996-I, 10 (joint discontinuance, the dispute having been resolved). 116   ICJ Reports 1998, 427. 117   ICJ Reports 2001, 7. 118   ICJ Press Release 2010/36 of 17 November 2010. 119   ICJ Reports 1973, 347–48. The Court took the view that certain communications it had received through the Pakistani ambassador at The Hague were not ‘steps in the proceedings’ (ibid, 348). 120   See Thirlway, above n 44, 111–12. 121   See above, section (a). 114 115

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e)  The ‘Final’ Nature of a Discontinuance Is discontinuance necessarily ‘final’? Does the discontinuing party forever renounce the right to bring another case on the same subject? This question has already been raised122 and therefore need only be briefly touched on in the present context. It will be remembered that the Court took the view, in the Barcelona Traction case (new application, Belgium v Spain, 1964),123 that discontinuance without mentioning definitive renunciation of the claims does not entail a loss of the right to begin again. The Court rightly applied the principle that judicial resolution is only a ‘substitute’ means of resolving disputes, and discontinuance thus leaves the parties able to attempt a friendly bilateral settlement without the applicant’s fearing that, if the attempt fails, it will have lost the right to go back to the Court. Since that time, it has become usual for notices of discontinuance to include an express indication as to whether they are final or provisional in the sense indicated. The discontinuing State cannot, however, discontinue conditionally: either it discontinues or it does not.124 On the other hand, it is possible to indicate that the discontinuing State reserves the right to begin its claim again. The case on Armed activities in the territory of the Congo (DRC v Rwanda, 2001)125 is a good example: new proceedings were indeed brought before the Court. Legally, however, such a reservation is purely declaratory, and not constitutive: the State concerned would have the right to bring fresh proceedings quite independently of the declaration. Also, it cannot bring a future claim unless the basis of jurisdiction continues to exist at the time the new proceedings are begun. In other words, the reservation does not have the effect of keeping an existing head of jurisdiction artificially alive, nor of constituting a new one. Nevertheless, the express inclusion of such a reservation does at least have the legal effect of making it impossible for the opposing party to argue that the State concerned is estopped from bringing fresh proceedings, since it has very clearly stated its position and has done nothing to give the Respondent State a legitimate expectation that it has definitively abandoned its claims. Discontinuance is thus procedural withdrawal, not a renunciation of the substance of the claimant State’s demands against the respondent.126 Legally, there is a very strong presumption – rebuttable, however, by appropriate conduct – that discontinuance does imply a renunciation of the right to pursue certain claims before the Court, not that the claims themselves are abandoned. On the one hand there is no presumption that the State in question is unilaterally renouncing its rights;127 on the other, the logic of the Court as a   Above, section 1(e).   ICJ Reports 1964, 18 et seq. 124   Case of the United States diplomatic and consular staff in Tehran (reparations phase, 1981) ICJ Reports 1981, 46–47. 125   ICJ Reports 2001, 7. 126   Thirlway, above n 44, 108. 127   In the jurisprudence of the ICJ, cf the case of the Free Zones (merits), PCIJ, Series A/B, no 46, 147–48, in the context of a stipulation for the benefit of another party (‘stipulation pour autrui’), or its equivalent in international law: ‘It cannot be lightly presumed that stipulations favourable to a third State have been adopted with the object of credating an actual right in its favour’; case on Certain Norwegian loans, ICJ Reports 1957, 26, no presumption that a Preliminary Objection has been withdrawn; case of the Elettronica Sicula (ELSI), ICJ Reports 1989, 42, § 50, renunciation of the right/duty to exhaust internal means of pursuing claims; case on Certain phosphate lands at Nauru (Preliminary Objections), ICJ Reports 1992, 247 et seq., alleged renunciation by Nauru of its right to claim. For unilateral legal acts, the locus classicus is in the Nuclear Tests cases, ICJ Reports 1974, 267, § 44 and 473, § 47: ‘When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for.’ In arbitration jurisprudence, see the case of the Ottoman public debt (1925), RIAA, vol II, 122 123



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‘substitute’ mode of dispute resolution means that claims are often discontinued precisely in order to pursue the claims in question through direct negotiations or some other method. To sum up, then, there is no presumption that a discontinuance is definitive, in the sense of prohibiting the bringing of a new claim on the basis of the legal situation prevailing at the moment the new claim is brought, unless the new claim has been expressly renounced or unless it is necessary so to interpret the attitude of the discontinuing State, whether by implication or by estoppel, the two latter situations being highly unusual.

f)  The Parties’ Agreement to a Discontinuance is Binding on the Court When the parties are agreed on discontinuance, or one party signals discontinuance while the other makes no objection, the Court has no power to refuse. Its jurisdiction is probably a purely ‘attributive’ one, meaning that it is the parties who in this respect remain the sole domini negotii. The Court has clearly indicated the difference between its role in relation to the starting of a case (and seising the Court of it), and the subsequent procedural stages. In the Nottebohm case (Preliminary Objection, 1953), the Court stated that: ‘[T]he seising of the Court is one thing, the administration of justice is another . . . Once the Court has been regularly seised, the Court must exercise its powers, as these are defined in the Statute’ (italics added).128 In other words, the question of seising (and disseising) the Court is largely left to the parties; on the other hand, the administration of justice itself is very much the Court’s own domain. As the Court cannot seise itself, it follows that it cannot keep itself seised either. Conversely, the procedure is the Court’s proper domain. It was suggested in the Nuclear Tests cases (1974) that the Court, by its interpretation of the application (which was, to say the least, a quite unusual one) de facto imposed discontinuance on the applicants.129 Without wishing to deal here with the question whether it is actually possible to interpret the Court’s decision in that way, it is worth noting that, at all events, this was not a case of a discontinuance where the parties proposed it and the Court refused to agree.

g)  Discontinuance by Virtue of Argument or Pleading? The question is often posed whether, and to what extent, various acts can be interpreted as acts of implicit discontinuance to which the other party can consent, either expressly or by implication. The question first arose in the context of a Preliminary Objection by the 545; the case of Crown Prince Gustaf Adolf (1932) RIAA, vol II, 1299: ‘A renunciation to a right or a claim is not to be presumed. It must be shown by conclusive evidence’; the Campbell case (1931) RIAA, vol II, 1156: ‘Whereas it is a matter of principle . . . that renunciation is never presumed, and that, since they constitute abandonments of rights, of powers or even of hopes, they are always subject to strict interpretation’ (our translation); case of the Japanese tax on buildings (1905) RIAA, vol XI, 55; the case of the SNCF dispute (1953) RIAA, vol XIII, 557. In recent practice, the argument is no longer presented in terms of rigid formulations, as in the Campbell case. But it continues just the same. For example, the difference between Art 35 and 36 of the Vienna Convention on the Law of Treaties (rights and obligations conferred on third parties) is explained by the fact that there is no presumption that rights are renounced. 128   ICJ Reports 1953, 122. 129   I Scobbie, ‘Discontinuance in the International Court: The Enigma of the Nuclear Test cases’, (1992) 41 ICLQ 808.

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applicant. If an applicant starts a case, thus affirming that the Court has jurisdiction, and then raises a Preliminary Objection to jurisdiction, should this not be seen as materially equivalent to discontinuance? The Court declined to accept this argument. It preferred to stick to a formal conception of discontinuance. Discontinuance occurs when a party seeks it in an explicit and formal way. Thus, in the case of the Monetary gold taken at Rome in 1943 (1954), the Court took the view that ‘once properly deposited, [Italy’s application] must be considered as real and as remaining real unless it is properly withdrawn . . . The raising of the Preliminary Question by Italy [relating to the Court’s jurisdiction] cannot be regarded as equivalent to a discontinuance’.130 This formalistic view seems justified. It avoids arbitrary and subtle interpretations of the implicit will of this or that party, in cases where there is no clear wish to discontinue. That is in line with the principle that the Court’s jurisdiction, which is already too much of an exception in international relations, should not be further limited by over-restrictive interpretation of conduct. The 1954 decision was a landmark, colouring all the Court’s subsequent jurisprudence in this field. In the case of the Legality of the use of force (2004), Serbia and Montenegro, as applicant, replied to the Respondents’ Preliminary Objections that the Court did not have jurisdiction. Serbia and Montenegro had not formally discontinued its action. The respondents claimed that the Court ought to form the view, in the exceptional circumstances of the case, that the applicant had in effect done so. The case was a perfect analogy to the Monetary Gold one: in both cases, the applicant’s attitude might have been interpreted as discontinuance. But there was no formal request to discontinue, as provided in Articles 88 and 89; quite the contrary, Serbia and Montenegro had even formally denied having discontinued the action.131 The Court therefore confirmed its existing jurisprudence and rejected the discontinuance argument. Its view was that: It may be true that the logical consequence of the contention of Serbia and Montenegro in its Observations could be that the case would go no further; but this would be the result of the Court’s own finding and not the placing on record of a withdrawal by Serbia and Montenegro of the dispute from the Court’s purview.132

The question surfaced again, in a different but just as important way, in the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Serbia and Montenegro, merits, 2007). By a letter of 29 September 2000, the co-agent for Bosnia-Herzegovina had claimed that his country had discontinued the proceedings. However, this was immediately denied by his colleague, the agent (also of Bosnia-Herzegovina), in a letter of 6 October 2000, indicating that his government wished to continue the case.133 This contradictory attitude, which of course is extremely unusual, was due to the fact that the Presidency of Bosnia-Herzegovina was shared between various communities, in particular the Muslims and the Serbs, each more attached to its own interests than to those of Bosnia-Herzegovina as a whole. The Court took the view that Bosnia  ICJ Reports 1954, 29–30.   For example, ICJ Reports 2004-I, 293, § 31: ‘However, Serbia and Montenegro has expressly denied that its Observations were a notice of discontinuance . . . It has emphasized that it wants the Court to continue the case and to decide upon its jurisdiction, even though the decision that it seeks may result in a conclusion that there is no jurisdiction.’ 132   For example, ICJ Reports 2004-I, 294, § 32. The question is also dealt with in each case of discontinuance (other than joint discontinuance) and considered in numerous individual opinions by various judges: ibid, 29 of the Index of the Reports mentioned above. 133   Paragraph 23. 130 131



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Herzegovina’s conduct did not amount to discontinuance, if only because of its lack of clarity. Bosnia-Herzegovina had not unequivocally manifested its wish to withdraw its application, and therefore the Court could only conclude that it had not discontinued the proceedings.134 This jurisprudence shows that discontinuance remains a formal act which it is almost impossible to achieve through the mere submission of arguments. By taking this line, the jurisprudence seems to serve the needs of legal certainty, the need for clarity in each particular case, and the true will of the applicant. The applicant will, of course, be aware of the arguments raised by the other side to show that it has discontinued the action. If it really wants to discontinue, there is nothing to stop it telling the Court so. If it does not do that, it shows that the discontinuance argument is manifestly unfounded. In light of these considerations, and of the maxim that the Court’s jurisdiction should not be restrained except for good reason, it is thoroughly desirable to treat discontinuance as a formal step that the applicant must take in accordance with the Rules, and not as a material decision which can be imposed on the applicant as a result of an interpretation of its relatively equivocal actions.

3.  VALIDITY OF SEISING THE COURT, JURISDICTION OF THE COURT AND ADMISSIBILITY OF AN APPLICATION

Before the Court can deal with the substance of a dispute submitted to it by the applicant or by the parties together, certain preconditions have to be satisfied. First, the Court must be validly seised in accordance with the applicable rules. We have seen that the Court is not very strict about formal defects in this regard, and that it will permit such defects to be cured, so that it can examine the substance of a case. It is also necessary, however, that the Court has jurisdiction over the substantive issues, that is, that it has the legal power to issue rulings on those issues. Finally, it is essential that the application should not suffer from certain defects or delays of such nature as would prevent the Court taking cognisance of it, either generally, or in the particular case. These three preliminary hurdles bear eloquent witness, in themselves, to the Court’s judicial character. When attempts of a political nature are made to resolve disputes, no such formalised set of requirements prevents consideration of the substantive issues. It suffices that the disputing States have, in one way or another, given their assent to the action taken by the political body in question, for example, to its activity as mediator. A mediator deals with all aspects of the dispute in a highly flexible way, and submits his proposals to the parties. A Court of justice, by contrast, resolves a dispute by issuing a binding decision; the decision is based on the rules of law. Since Courts exist in the service of the legal system, and since their jurisdictions are subject to appropriate restrictions, corresponding both to the binding character of their decisions and their legal nature, they have to be much stricter and more vigilant about making sure that the necessary preconditions are satisfied before they can act. As a result of these limitations the ICJ is in a position to preserve its judicial integrity and thus its credibility, and also to preserve the rights of the parties: no State is obliged to submit to a binding decision if the conditions as to the Court’s jurisdiction and the admissibility of the claim are not   Paragraph 24.

134

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satisfied. Thus, in contrast to the field of operations available to those engaged in the resolution of disputes by political means, which is generally a highly flexible one, the field of operations available to an international court is much more restricted and much more clearly signposted in advance. These differences are desirable and make sense. No attempt should be made to minimise or eliminate them, since this would simply deprive both methods of their respective strengths. It would deprive States of a valuable choice as to the means of resolving their disputes. Informality and formalism, flexibility and rigidity, procedures that are all-encompassing or alternatively selective, each has its advantages and its drawbacks. Nothing is gained by attempting to reduce these differences or to merge the two methods by reducing the variety of different approaches which is so creative and valuable an element in the peaceful resolution of international disputes.

a)  Is the Court Validly Seised? (renvoi)  The question of seising the Court, and the conditions for doing so validly, have already been discussed. In this context, therefore, it is appropriate to cross-refer, especially to chapter five section (1)(c).

b)  The Distinction between Jurisdiction and Admissibility Before tackling the by no means easy distinction between jurisdiction and admissibility, it is useful to identify the field in which each of these two concepts operates, that is its definition and functions. Definitions. One can do something either as a matter of fact, or as a matter of law. A person can do something because he has the material power or ability to do it. The fact is then, so to speak, the father of the act: the power to commit the act opens the way to the act itself, constrained only by the limits of the possible. In its extreme version, this concept legitimises theories to the effect that if you can do something, then you also have the right to do it. The big fish eat the little ones, and the taking of action is a simple matter of one’s ability to take it. But equally, a person can do something because he has the right to do it. In this case the father of the action is not the ability to do the act, but the norm, the rule conferring the right. Somewhere in human society, a decision is made, in view of the growing specialisation of social functions, to invest a particular body or representative with the right to do something in the name of a community. The person with this right has a kind of ‘mandate’ to act, but to act within certain limits. The specialisation of social functions, and the theory of representation, lies at the heart of such a right to act. When a body or a person is invested in this way with a legal right or power to act, the right or power is termed a competence or jurisdiction (a subjective right in the field of private law), and we speak of the ‘field’ or ‘domain’ to designate its limits, whether material, personal, temporal or spatial. A legal jurisdiction is thus distinguished from a fact-based power by the complex chain that sets it up in the first place. Jurisdiction does not exist spontaneously: it comes into being by being ‘attributed’, an act which itself is carried out by virtue of a general or particular rule or norm. De facto powers, by contrast, exist automatically, by virtue of the fact of capacity,



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nothing more. In short, jurisdiction comes from outside, from somewhere else; whereas the factual power or ability to do something is simply intrinsic and, so to speak, spontaneous. Jurisdiction has been defined, along these lines, in the following ways (each in our translation from the original French): the legal power conferred on, or recognised by international law as belonging to, a State, an international institution, an organ of an international institution, and in some cases individuals, to take cognisance of a case, to make a decision, to commit and carry out legal acts and actions in relation to it;135

and as the collection of powers recognised by international law as belonging to, or conferred by international law upon, on a subject of law or an institution or other body, empowering them to carry out predetermined functions and to commit the resulting legal acts;136

and, even more simply, as the ‘[legal] power to carry out certain acts’.137 The word ‘jurisdiction’ indicates a legal power to take action. For a body with jurisdiction, that jurisdiction is defined by its legal capacity to examine a claim and to decide it on the merits.138 This is a power to examine, and to decide. The power is always conferred by the law. In inter­ national law, it is also necessary that the parties to the dispute accept that jurisdiction, whether actively or passively (by acquiescence). ‘Admissibility’ is a function of the qualities which the claim or application must have. The claim may concern wrongful acts of the respondent. But some wrongful acts are not of a kind that a tribunal can take cognisance of, in some cases not at all, and in others, at least not for the time being. For example, if a State brought a case about the diplomatic protection of an individual, the Court would not be able to give a ruling if the person in question was not a national of the applicant State. The link of nationality is – except in cases of special agreement – a condition of diplomatic protection. If there is no such link, the claim is inadmissible. The same applies to the exhaustion of internal remedies. Until they have been exhausted, an application to the ICJ is inadmissible and will not be accepted. These two examples also bring out the distinction between inadmissibility on a ‘peremptory’ basis, and ‘dilatory’ inadmissibility, the latter being the type of an inadmissibility which may be cured with time. Inadmissibility on the grounds of nationality is normally final, the passage of time will make no difference to it. Absent a process for a change of nationality, or some other prospect of it, the inadmissibility will persist, and an application to the Court will be no more possible tomorrow than it is today. By contrast, inadmissibility because of a failure to exhaust internal remedies is only a temporal question. In the end, time will cure it, in the sense that one day there will probably no longer be any further possibility of an internal legal remedy. At that point, the claim before the Court can be renewed. Only the timing is wrong; in meanwhile, the claimant will have to wait. Interaction. The distinction between jurisdiction and admissibility was not very clearly defined in the days of the PCIJ, which took a certain time to refine that aspect of its procedures. It was the PCIJ’s later decisions, including amongst others, those in the Morocco   J Basdevant (ed), Dictionnaire de la terminologie du droit international (Paris, 1960) 132.   Salmon, above n 80, 210. 137   M Bourquin, ‘Règles générales du droit de la paix’ CCHAIL, vol 35, 1931-I, 112. 138   Case on the Judgments of the ILO Administrative Tribunal, on requests by UNESCO, ICJ Reports 1956, 87. 135 136

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Phosphates case (1938) and the Electricity Company of Sofia and Bulgaria (1939), which laid down the first rather sketchy outlines of the distinction. Subsequently, the distinction was refined by the ICJ. The essential difference between the two concepts lies in the fact that, broadly speaking, jurisdiction is a question of the propriety of the court’s deciding the case. This has to be considered in light of the personal capacity of the claimant to appear before the Court, the legal nature of the claim (since a Court can speak only to the law), and the bases upon which the parties can be said to have consented to the jurisdiction. Admissibility, by contrast, is essentially concerned with formal or material defects in the claim as formulated, on the supposition that the Court itself could, in principle, if there were no such defects, be seised of a case of the kind in question. There is thus a certain consecutive logic that connects the concepts of jurisdiction and admissibility. This logic crops up in Preliminary Objections, where arguments against jurisdiction are normally taken before objections to admissibility. There are two elements here. First, there is the logical priority of the jurisdiction question. Second, there is its greater importance, though that generalisation is, of course, subject to certain exceptions. As we shall see, questions concerning the ‘general admissibility’ of a claim are ranked equally with the most important jurisdictional issues. But at the level of what may be called special jurisdiction and special admissibility, the point holds true. The logical priority of the jurisdiction question means that it is treated as a prior question, and taken first. A tribunal cannot express any view on a concrete aspect of a claim unless it has jurisdiction to do so. This means that it cannot rule or comment upon defects in a concrete demand until it has decided that it is competent to do so. If it does not have jurisdiction, it must recognise that fact and abstain from saying anything about the claim and its defects. Jurisdiction is the more important of the two concepts in the sense that jurisdiction is concerned with issues of principle that are ‘constitutional’ in nature: access to the tribunal (that is, the right to appear before it as a party); the legal character of the issue, beyond which a tribunal can never go, because its remit is an exclusively legal one; and the existence of a consensual head of jurisdiction, the fundamental principle being that the Court’s jurisdiction is derived from the parties’ consent. By contrast, special admissibility is concerned with questions of a concrete nature, ones that relate to the particular case. Have the formal requirements been complied with? Is there litispendence? Have internal remedies been exhausted? Is the protected person of the right nationality? and so on. Clearly, jurisdiction is generally a matter that relates to questions of the public or collective interest. These questions are fundamental to the functioning of the Court. Generally, they are raised by the Court itself, since obviously it cannot leave the preservation of its judicial integrity to the parties that happen to appear before it. The Court put the point very well in the case of the Northern Cameroons (1963): ‘The Court itself, and not the parties, must be the guardian of the Court’s judicial integrity.’139 So it is the Court itself which raises questions relating to its jurisdiction ratione personae (the legal right to appear before the Court as a party) and ratione materiae (the existence of a dispute with a legal character). Conversely, the Court does not of its own volition raise questions of consensual jurisdiction. Although the principle of consensual jurisdiction is fundamental to the Court’s jurisdiction, as the Court itself has so frequently recognised,140 nevertheless, it is not a point that the Court will nor  ICJ Reports 1963, 29.   For example, in the East Timor case, ICJ Reports 1995, 101, § 26: ‘The Court recalls . . . 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.’ 139 140



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mally raise motu proprio. The reason is that, under the forum prorogatum principle, a party can accept the Court’s jurisdiction by not objecting to it in the form of a Preliminary Objection. That being so, the respective roles of the parties and the Court are clear. If the respondent is in a position to decide freely for itself whether to object to the jurisdiction on the basis that, if it does not in fact object, the Court will have jurisdiction, then that is a matter for the respondent. It is not normally for the Court to stand in the respondent’s shoes and decide it has no jurisdiction. Thus the principle of consensual jurisdiction is, at one and the same time, both fundamental and essentially a matter of ‘private’ interest, in the sense that the Court must carefully satisfy itself as to the parties’ wishes, but it is their wishes that count, not the Court’s views. The parties to the dispute retain control of the question. Issues of special admissibility, on the other hand, are concerned with questions that are essentially of private interest in relation to the claim as formulated in concrete terms. The Court can certainly not ignore them, since they are intimately bound up with the proper administration of justice (for example, the avoidance of multiple and potentially contradictory opinions in cases of litispendence) or with the due application of international law (for example, the nationality of claims that are of private origin). Nevertheless, the Court will, of its own volition, enquire into only some of these matters, (for example the nationality question), because it is an inherent element of the legal norm that is to be applied, namely diplomatic protection. The majority of objections to admissibility will not, however, be raised by the Court itself. It is for the parties to raise them. If they do, the Court will consider the objections. If they do not, the case will proceed. This state of affairs reflects the character of the interests that are affected. Since these interests are ‘private’ to the parties, the Court can leave it to the parties to raise them as objections to admissibility, if they so desire. Nevertheless, these are complex issues. Not all jurisdictional questions are matters of public interest (for example, consent and the manner in which it is expressed). Conversely, not all admissibility questions are matters of private interest (for example, ‘general admissibility’ considered below), nor are they left exclusively to the parties (for example, the nationality of originally private claims). Later on, we shall see how this complexity is considerably increased by the fact that the grounds of jurisdiction and admissibility are not as clearly distinct from each other as might seem to be suggested by the above. A question can change its nature as a function of the applicable law; and there are numerous borderline cases in which it is possible to take the view that a question relates either to jurisdiction or to admissibility. It is also possible to classify the grounds of jurisdiction and admissibility on the basis of the formal sources from which they spring. Jurisdiction, whether personal jurisdiction, subject-matter jurisdiction, or consensual jurisdiction, always rests on the Statute of the Court. It is as a function of the Statute that the Court examines and decide jurisdictional questions: personal jurisdiction (Articles 34 and 35 of the Statute), subject-matter jurisdiction (Article 38) and consensual jurisdiction (Article 36). Questions of formal admissibility (validity of the application and procedural acts) also appear in the Statute,141 but above all they are to be found in the Rules. On the other hand, the grounds of alleged (special) inadmissibility are directly connected to international law in its interaction with the subject of the claim. A party can raise an objection to admissibility on the basis of treaty provisions: for example, the lateness of the claim in relation to time limits laid down in the treaty; the   See particularly, Chapter III of the Statute, entitled ‘Procedure’.

141

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failure to exhaust municipal remedies in the context of a claim relating to diplomatic protection as a function of international customary law; litispendence on the basis of the general principles of law applicable to judicial matters and so on. The situation is different as regards general admissibility, which is connected to the judicial function itself, and thus to the Statute. To sum up, jurisdiction and admissibility diverge in light of the following criteria: (1) questions connected to the tribunal’s capacity to hear the case → jurisdiction; questions connected to the propriety of the claim and to possible defects in it → admissibility; (2) questions which are matters of the public interest and are raised by the Court of its own volition → jurisdiction; questions of private interest left to the parties to object to if they so desire → admissibility; and (3) questions arising from the Statute → jurisdiction; questions arising from international law external to the Statute and to the law of the Court → admissibility. It should, however, be emphasised yet again that all these distinctions are only approximations, so that they do not hold good in the particular circumstances of every case. Nevertheless, they do show that the distinction has real practical value. Normally, the Court will proceed in order of priority, starting with objections to its jurisdiction; and it will, of its own volition, either raise objections or omit to do so. It is certainly possible to take the view that a general classification dividing issues between ‘jurisdiction’ and ‘admissibility’ is not truly decisive, and that what really counts is more the concrete argument considered in isolation. This view is based on the point that in each category there are cases which are treated in an atypical way. But the view is not entirely sound. First, it is still possible, in some cases, to apply general presumptions connected to the category concerned, rather than to the particular concrete ground of objection. This approach would at least have the merit of affording the Court a suitable initial orientation towards the problem, and of making the procedural law clearer. Second, if one were to set out to classify grounds of objection on a case-by-case basis, one would unquestionably end up with fairly binary classifications – on the one hand according to the objections’ ‘jurisdictional’ qualities, and on the other according to their ‘admissibility’ qualities. Far from demonstrating that the two general categories are vacuous, an empirical approach of that kind would simply reinforce them. There have been proposals for other criteria for distinguishing in international law between the two categories, and indeed other criteria are used in various jurisdictions around the world. This is not the place for a full survey, particularly given the extreme complexity of the question. It is, however, possible, indeed appropriate, to mention some classic examples. For GG Fitzmaurice, the distinctive criterion operated around the basis of jurisdiction: [T]he real distinction and test would seem to be whether or not the objection is based on, or arises from, the jurisdictional clause or clauses under which the jurisdiction of the tribunal is said to exist. If so, the objection is basically one of jurisdiction. If it is founded on considerations lying outside the ambit of any jurisdictional clause, and not involving the interpretation of application of such a provision, then it will normally be an objection to the receivability of the claim.142

Judge Fitzmaurice’s use of the word ‘normally’ clearly shows that the distinction he was drawing is not completely watertight. It also seems too restrictive in itself. The basis of jurisdiction is a matter which particularly concerns the Court’s consensual jurisdiction.   See the separate Opinion of Judge Fitzmaurice in the Northern Cameroons case, ICJ Reports 1963, 102–103.

142



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That is not, however, the only type of jurisdiction, which as we have seen includes personal and material aspects. Certainly it is possible to refer these questions to a separate category of ‘pre-preliminary’ questions, but that particular complication seems largely unnecessary. As a variant of this criterion, it has been claimed that a preliminary objection to jurisdiction is designed to establish that the Court has not been given the power to exercise its jurisdiction over the subject matter of the dispute, or in relation to one of the parties, whereas an objection to admissibility is directed against circumstances which are extrinsic to this aspect, designed to prevent the Court from deciding the substantive issues. Nevertheless, this criterion presupposes that one has already established what issues belong to the field of jurisdiction, quod est demonstrandum. The problem gets even worse for some authors, those who make the distinction on a temporal basis: for them, an objection to admissibility presupposes that jurisdiction on the substantive issues has already been established.143 But what issues belong to the field of jurisdiction? The question arises a fortiori when we remember that sometimes the Court reverses the order of dealing with preliminary objections, deciding an admissibility question first. In the view of G Abi-Saab, the distinction operates essentially in the field in which the Court exercises its activity (jurisdiction) and as to the modalities for doing so (admis­ sibility).144 He follows up by arguing that, in consequence, the criterion for the distinction bears on the sources of the rules of law applicable to each of the two questions. Jurisdiction arises essentially from its basis in the will of the parties; admissibility is linked to the international law which exists externally, in particular in rules of customary law such as the exhaustion of local remedies or such general principles of law as litispendence. On careful analysis, this is yet another variant of the criterion proposed by GG Fitzmaurice. It does, however, seem too restrictive to fence in jurisdiction behind questions relating to the basis for it – that is consent to the Court’s jurisdiction. If this is the alternative, it would be better to embrace the criterion developed above – that is the distinction between the Statute and international law external to the Statute. The system proposed by G Abi-Saab is, however, also influenced by his novel classification of Preliminary Objections, which we have still to consider and which, for its part, deserves to be adopted in its entirety. In the opinion of E Grisel who also embraced a criterion of this kind, the distinction bears above all on the consent which is the constitutive element of the Court’s jurisdiction.145 A Preliminary Objection to jurisdiction always disputes the reality, the validity or the extent of the parties’ consent to the Court’s exercise of its powers. By contrast, a Preliminary Objection to admissibility rests on the rules of procedure, which do not relate to the problem of consent. However, this distinction is altogether too limited. The only problem of jurisdiction that it addresses is the question of consent, whereas questions of jurisdiction ratione personae and ratione materiae are also part of the matter. In the view of M Dubisson,146 Preliminary Objections to jurisdiction are peremptory in nature, whereas objections to admissibility are ‘dilatory’, capable of being addressed over time. But this distinction cannot be accepted, given that Preliminary Objections to jurisdiction are not always peremptory in nature (for example, the consent of the respondent, which can be given at any subsequent moment), whereas objections to admissibility are   S Rosenne, ‘La Cour internationale de Justice en 1962’ (1963) 67 RGDIP 814.   Abi-Saab, above n 18, 173–74. 145   E Grisel, Les exceptions d’incompétence et d’irrecevabilité dans la procédure de la Cour internationale de Justice (thesis, Lausanne University, 1968) 74–75. 146   Dubisson, above n 49, 230–31. 143 144

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not always ‘dilatory’ in nature (for example, general admissibility or the condition as to the nationality of claims that are originally private ones and so on). It should be recalled that a peremptory objection definitively stops the proceedings, since one of the constitutive elements is missing in a way that cannot be remedied subsequently. A dilatory objection, by contrast, has the effect of suspending the case while the missing element remains unsatisfied, or may lead to the case’s ending, but without preventing its being reintroduced as and when all the necessary conditions are satisfied so that the Court can finally deal with the case. There is a further group of authors, including H Thirlway who, given the fluid relativity of the question, have deliberately decided not to propose any firm criteria.147 Sometimes they add that the questions connected to the consent of the parties must in any case be dealt with as issues of jurisdiction, since they are, in a sense, exemplars of jurisdiction par excellence. Whatever the pragmatic justification for this approach, it obviously does not have much to teach us about the distinction between the two groups of questions. Relativity. The distinction between jurisdiction and admissibility is not absolute, but contextual. First, it differs objectively, according to the basis for jurisdiction and the agreements that apply. Next, it differs subjectively, as a function of the nuances inherent in a particular case, as interpreted by the judges. Objective contextuality. In the first place, the distinction is made harder by the fact that, when a party argues that the Court should not examine the substance of a dispute, that argument can sometimes be based on a question of jurisdiction, and sometimes on a question of admissibility, as a function of the treaties and other agreements applicable to the dispute. In addition, questions which are not normally conditions of jurisdiction or of admissibility may become so as a function of such particular agreements. That is why there is no numerus clausus, no closed list of grounds for want of jurisdiction or grounds of inadmissibility. All sorts of questions can crop up and turn out be relevant to a particular case, reflecting not only the legal imaginations of the parties, but also the terms of particular agreements. But this is not always so: it depends on the nature of the particular objection. For example, the argument that consent has not been given so as to entitle the Court to decide the case is always directed against jurisdiction. On the other hand, a treaty can, for example, provide that the Court can be seised to decide disputes concerning certain narrowly-defined rights, or to decide on events in a particular period of time. Such limitations then become conditions of the Court’s jurisdiction, given that they are part of the definition of the consent that lies at its heart. Equally, if the traditional conditions of admissibility (litispendence, nationality of claims and so on) are part of the head of jurisdiction, they will, so to speak, be promoted to the rank of jurisdictional issues. So it was that, in the Mavrommatis case (1924), the PCIJ took the view that the question of prior diplomatic negotiations to determine the scope of the dispute, which is normally a question of admissibility (albeit very flexibly handled) was, in that case, a question going to jurisdiction, because it was an element in the title of jurisdiction:

147   H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’ in BYIL, vol 71 (2000) 80–81.



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The second condition by which this article [Article 26 of the Mandate for Palestine] defines and limits the jurisdiction of the Permanent Court in questions arising out of the interpretation and application of the Mandate, is that the dispute cannot be settled by negotiation. (italics in the original Report)148

It is true that the Court had not yet, at that time, developed the distinction between questions of jurisdiction and of admissibility. However, subsequently – at a period when it admitted the distinction – the Court did confirm the fact that the reasons changed according to the basis upon which jurisdiction was established. So, in the case of the Electricity Company of Sofia and Bulgaria (1939), the Court treated as an objection to jurisdiction the question of non-exhaustion of internal remedies for claims that had originated as private ones, on the grounds that this condition had been inserted into one of the two jurisdictional instruments on the basis of which the case was before the Court.149 The Court thus accepted that an objection which normally is simply a ground of ‘dilatory’ inadmissibility, had been transformed into an issue of jurisdiction because, in this particular case, it was linked to the basis upon which jurisdiction was to be established and in this way connected to the question of the extent of the jurisdiction conferred upon the Court by the consent of the parties. Similarly, in the Ambatielos case (Preliminary Objections, 1952), the Court treated as an objection to jurisdiction the question of the possible retroactive effect of a Treaty of 1926 which was the title of jurisdiction relied on.150 The question of the temporal field of application of a treaty is normally dealt with at the merits stage. It can also be raised as an objection to admissibility. The Court was, in itself, competent to decide this class of dispute, but a timing question arose in this case, making the application to the Court inadmissible. If the field of application of the treaty influences the jurisdiction clause, the parties’ consent is affected. This transforms the question, because it affects the extent of the title of jurisdiction. This precedent shows the plasticity of the classification process. One and the same argument can go to the merits, be a ground of inadmissibility, or a ground for arguing that the Court has no jurisdiction. In the crucible of litigation, the argument takes on a particular coloration in light of law, argument, and the Court’s interpretation, as a result of which its definitive shape and classification become known. Since the Ambatielos case, the Court has often returned to this type of transformation in the nature of a Preliminary Objection as a function of the provisions of the applicable agreement.151   PCIJ, Series A, no 2, 13.   PCIJ, Series A/B, no 77, 80: ‘Accordingly, since the Belgian Application has not been submitted in accordance with the conditions laid down by the Treaty of 1931, the Belgian Government cannot found the jurisdiction of the Court on that Treaty.’ This point was also highlighted by Judge Anzilotti in his Dissenting Opinion, ibid, 98: ‘But in this case, the Court is not confronted with a rule of common international law; it is dealing with a specific and formal provision, Article 3 of the Treaty [of conciliation, arbitration and judicial resolution, of 1931], which it is required to apply.’ Other judges, however, dissociated themselves from this point of view: see the separate opinion of the Chevalier de Visscher, ibid, 137: ‘The reference is no longer to the Court’s jurisdiction, but to conditions upon which the Parties have agreed to allow recourse to that jurisdiction to depend . . . it is impossible to imagine that, when the contracting Parties embodied in treaty form the rules upon which these conditions were to rest, they intended to make them more binding in their effects than they are under ordinary international law.’ 150   ICJ Reports 1952, 39 et seq. 151   See, eg the Platforms case (Iran v United States of America, Preliminary Objections), ICJ Reports 1996-II, 810 et seq.: treatment of the field of application of a Treaty of 1955 on Friendship, Trade and Navigation as a ground of want of jurisdiction ratione materiae because linked to the document giving jurisdiction. In the case of the Territorial and maritime dispute (Nicaragua v Colombia, Preliminary Objections, 2007), § 43 et seq., the question arose in an even more nuanced way. According to the Court, if certain questions had already been resolved by one of the methods provided for in Article 31 of a Treaty of 1928, the Court would be deprived of jurisdiction (§ 57). As the Court was concerned here with an element connected with the existence of a dispute, it is easy to understand this classification. However, a ‘special’ definition of a dispute, in accordance with a treaty, being a definition 148 149

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Conversely, when the Court is seised on the basis of an optional declaration under Article 36, paragraph 2 of the Statute, such problems can arise only as a function of the reservations to the parties’ declarations.152 Often, especially if the reservations are not applicable in the circumstances of the particular case, the objections here under consideration focus on inadmissibility.153 Subjective contextualisation. It must be emphasised that, even in the absence of objective arguments relating to the terms of the head of jurisdiction, the Court does possess a certain subjective flexibility in deciding whether a particular argument goes to jurisdiction or admissibility. The two concepts are not sealed off from each other in entirely watertight compartments. For example, the requirement that there must be a dispute (a current dispute of a legal nature) can be considered either a ground of want of jurisdiction, or a ground of inadmissibility. It is thus possible to say that in the absence of a dispute the Court will not have any subject-matter jurisdiction, its mission (in contentious cases) being to decide between opposing positions on the basis of law. Equally, however, it is possible to say that the absence of a dispute indicates a defect in the claim as application as concretely formulated, since it is not based on a genuine claim. This perspective leads quite naturally to a decision that the claim is inadmissible. We will return to these matters in more detail at the end of this chapter. Considerations connected with the circumstances of the particular case can also have an influence on the classification. In the Mavrommatis case (1924),154 in the case on the Interpretation of the Statute for the territory of Memel (merits, 1932),155 in the case of South West Africa (Preliminary Objections, 1962),156 in the Lockerbie case (Preliminary Objections, 1998),157 and in the more recent case of the Territorial and maritime dispute (Nicaragua v Colombia, Preliminary Objections, 2007),158 the Court treated the absence of a dispute as going to its jurisdiction, particularly since it was, in the circumstances of these cases connected to the applicable basis of jurisdiction. On the other hand, the Court treated the same argument as going to inadmissibility in the case of the Electricity Company of Sofia which is not in line with the Court’s jurisprudence, would ordinarily be considered to go to admissibility unless it were linked to the document conferring jurisdiction. 152  See the case of Certain phosphate lands at Nauru, (Preliminary Objections), ICJ Reports 1992, 246–47, § 10–11: prior exhaustion of other means of resolving the dispute, a reservation in Australia’s optional declaration. Australia presented its argument as going to jurisdiction (§ 10). The Court rejected that objection without categorising it as one going to jurisdiction, but by implication accepted the Australian categorisation, as is shown at § 8: ‘The Court will begin by considering the question of its jurisdiction”. See the earlier case on the Right of passage over Indian territory (Portugal v India, Preliminary Objections), ICJ Reports 1957, 151–52, time limits included in the optional declaration and affecting jurisdiction, although in this case the Court joined the Objection to the merits. In this respect too, the prematurity or lateness of the application is a defect, and is normally presented as an objection to admissibility. However, in this particular case it was connected to the parties’ consent to the Court’s jurisdiction, and thus became an objection to jurisdiction. 153   See the case of Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo, Preliminary Objections, 2007), § 32 et seq. 154   PCIJ, Series A, no 2, 11–12: ‘Henceforward therefore it is a dispute which may or may not fall under the jurisdiction of the Permanent Court.’. 155   PCIJ, Series. A/B, no 49, 327–28: ‘This contention on the part of the Lithuanian Agent is in effect a plea to the jurisdiction’. 156   ICJ Reports 1962, 329. 157   ICJ Reports 1998, 16 et seq., § 16 et seq. and 121 et seq., § 16 et seq. 158   At § 138: ‘Given the Court’s finding that there is no extant legal dispute between the Parties on the question of sovereignty over the islands of San Andrés, Providencia and Santa Catalina, the Court cannot have jurisdiction over this question.’



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and Bulgaria (1939).159 In that case, as in the preceding ones, the absence of a dispute was connected to the applicable basis of jurisdiction. The reason for the different treatment is not clear, except that Bulgaria itself had presented the argument as going to admissibility. It should be noted that the Court is entitled to modify the categorisation of its own will and volition, as is shown by the Territory of Memel case (above). So here the Court was plainly exercising its discretion, facilitated by the chameleon-like quality of the objection itself. From one case to the next, the Court can lean now towards interpretations going to jurisdiction, now towards admissibility. It is not impossible that, in the Electricity Company case, the Court wished to emphasise the temporary and purely ‘dilatory’ character of the absence of a defined dispute, a wish that led the Court in the direction of a decision that the case was inadmissible.160 The question whether a dispute exists can also lead in the direction of third categories, ones that go beyond jurisdiction and admissibility. If a claimant appears to have obtained satisfaction, the Court can decide that there is no present dispute. In those circumstances, however, the Court will not necessarily declare itself to have no jurisdiction or that the claim is inadmissible. Instead it can declare that the claim ‘no longer has any object’,161 or that it ‘cannot adjudicate upon the merits of the claim’,162 that is that there is no scope for an exercise of jurisdiction. The question whether the dispute is current, like the question whether a dispute exists, might in such a case easily be configured as a reason to conclude either that the Court has no jurisdiction or that the claim is inadmissible.163 In fact, however, the Court treats both questions as matters which ‘prevent its making a decision’, a category distinct from want of jurisdiction and rather closer to inadmissibility. This formula is close to the one used in the Monetary Gold case (1954), in which the Court declared that, given that the rights of a third State which was not a party were the very subject of the dispute, it was not ‘authorize[d] to adjudicate’ on the basis of the jurisdiction conferred by the parties.164 Jurisdiction had been correctly conferred on the Court, which could not declare it to be lacking. However, the rights of a third State prevented the Court’s exercising that jurisdiction, since to do so would inevitably encroach on the third State’s rights. The argument thus moved automatically towards inadmissibility or some other category. Thus, in the Monetary Gold case, necessity drove the Court to an expedient that did not involve its deciding it had no jurisdiction (as that would have been an incorrect decision in law); the necessities were different in the two cases mentioned previously at the text to footnotes 155 and 156. The Court could have treated the question whether there was a current dispute as one of the elements constituting the dispute, and declared itself to have no jurisdiction or the claim to be inadmissible. It did not do so because it wished to make a distinction between, at one level, the existence of the dispute, and, at another level, its   PCIJ, Series A/B, no 77, 83: ‘declares that the Belgian Application cannot be entertained’.   This is generally true. Thus it is possible that the party raising the objection may itself claim that the dispute is not entirely constituted at this stage, while allowing room for the conclusion that it may become so (negotiations under way). In such a case, the Court sometimes wants to highlight the ‘dilatory’ as opposed to peremptory nature of the inhibition on its action, and this can militate strongly in favour of its concluding that the claim is inadmissible, rather than concluding that it lacks jurisdiction. 161   Nuclear Tests cases, ICJ Reports 1974, 272, § 62, 478, § 65. 162   Case of the Northern Cameroons, ICJ Reports 1963, 38. 163   The existence of a dispute is a question of principle (which can lead to the conclusion that there is no jurisdiction), but whether the dispute is current is a subordinate question more closely linked to the circumstances of the case (which can lead to a category somewhere between want of jurisdiction and inadmissibility, namely a refusal to decide the case). 164   ICJ Reports 1954, 34. 159 160

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currency. The existence of the dispute was considered by the Court to be probably a question of inadmissibility, and the want of currency was considered a reason to refuse to decide the case. Why the Court wished to draw this distinction is a question of speculation. It should also be noted that the relativity of the distinction between jurisdiction and admissibility is more marked in some contexts than in others. As a question of personal jurisdiction, the distinction is a very clear one. The right to appear before the Court as a party does indeed go to its jurisdiction; it goes even to a party’s capacity to validly seise the Court of a case. The distance between issues of jurisdiction and admissibility is very clear in this respect, and the same goes for the question of jurisdiction by consent, as to which all questions are questions of jurisdiction. As to subject-matter jurisdiction, on the other hand, the distinction is less marked, to the point where subtle legal footwork can even make it vanish into thin air. So, as we have already seen, the existence of a ‘dispute’, or the ‘legal’ quality of a dispute, can be configured (or reconfigured) as, amongst other things, grounds for saying there is no jurisdiction, or as grounds of inadmissibility, or indeed as a tertium genus. The Court has shown itself quite prepared to navigate between these shores. As suggested above, the Court’s perspective is to view the question as one of jurisdiction when it spotlights the fact that, for this type of question, the Court does not have power to take cognisance of the substantive issues, given that a court of justice can only decide actual disputes, and cannot do anything else. Thus, according to the first line of argument, the Court lacks subject-matter jurisdiction, since in relation to contentious matters it cannot go beyond the limits of the relevant dispute. If there is no dispute, the Court, if it were involved at all, could be involved in a consultative, scientific, political or other way, none of which are possible. So this is a generalised defect, as much connected to the Court as an institution as it is to the actual case it has been asked to decide. The perspective changes, however, and the light is shifted so as to shine directly on the admissibility question, when the striking feature is that the claim is defective, either because it does not relate to a dispute or because it is not ‘legal’ in nature. According to this second line of argument, the claim is inadmissible because it is not, so to speak, borne on the wings of a dispute. This is an intrinsic defect of the claim itself, one which leads directly to the conclusion that the claim is inadmissible. This example shows that a significant number of objections are sufficiently malleable that they can, as a function of the way they arise and the manner in which they are presented, be steered towards either the broad coastline of jurisdiction or the narrow shore of admissibility.165

165   Another example is to be found in India’s argument in the case on the Right of passage over Indian territory (Preliminary Objections) ICJ Reports 1957, 145–47, according to which the precipitate presentation of the Portuguese Application on the basis of an optional declaration which had only just been lodged amount to an infringement of the equality, neutrality and reciprocity of the proceedings. India presented this argument as going to jurisdiction (one should perhaps say as a reason for the Court not to exercise a jurisdiction that, in formal terms, was established). The Court itself, when rejecting the Preliminary Objection, did not actually categorise it. As a defect in the title of jurisdiction, the question could be seen in the light of the jurisdiction issue. However, it would equally have been possible to take the view that Portugal’s Application, by infringing the above principles, ought to be considered defective and therefore inadmissible.



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c)  The Distinction between Competence and Jurisdiction Sometimes a distinction is made between ‘competence’ and ‘jurisdiction’.166 It must be admitted, however, that this makes more sense in some linguistic traditions than in others, and that in any event the distinction is much less clear than the one we have just been examining, so that views on it vary considerably. Also, the distinction has its origins in a fairly heterogeneous set of municipal law concepts. The distinction is not a particularly useful one for the purposes of international law or the procedures of the Court. In fact, the broad general category of ‘jurisdiction’ in the English-language sense of the term is generally sufficient to cover both expressions. For this reason we can apply Ockham’s famous razor to this particular distinction, and need dwell on it no longer:167 entia non sunt multiplicanda sine necessitate. The two terms are often treated as synonyms, both by leading commentators168 and in the jurisprudence.169 In its English language version, the Court’s Statute usually uses the expression ‘jurisdiction’ where the French uses the word ‘compétence’, strengthening the already existing propensity to use the two terms as synonyms. When a true distinction is made in this regard, it is usually for the purpose of separating the judicial concept at a general level from judicial activity at the concrete level of activity, so that the word ‘jurisdiction’ refers to the general attributes of the judicial function rather than to the judges’ powers in a particular case. By contrast, the word ‘competence’ refers more to the concrete context in which the judges exercise their functions.170 In other words, the concept of jurisdiction is what qualifies the entirety of the powers of a judicial body, independently of any particular case; competence, on the other hand, is the power to examine and decide the merits of a particular concrete case.171 ‘Jurisdiction’ thus applies to cases generally, and to all categories of dispute, whereas competence concerns the power to decide one or more particular cases.172 Another way of looking at the distinction is to say that jurisdiction envisages the activity of the judge in all its fullness, whereas competence envisages the portion of a judge’s power to act within a given legal system which of course has its own particularities (for example, the type of cases with which the particular tribunal concerns itself).173 It is easy to see that this last distinction is drawn directly from municipal law and seems better adapted to municipal law systems than to international law. The distinction has no practical application and is simply a matter of conceptual classification. It is useful to be aware of it, but not essential to maintain and adhere to it, 166   See Abi-Saab, above n 18, 58 et seq.; H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’ in BYIL (1998) vol 69, 4 et seq. 167  See Questiones et decisiones in quattuor libros Sententiarum Petri Lombardi (1495), I, dist. 27, quaes. 2, K. and Summa totius logicae (written in 1341), I, 12. The phrase cited in the text does not appear in the same form in the works of Ockham. See also, W Fikentscher, Methoden des Rechts in vergleichender Darstellung, vol II (Tübingen, 1975) 19. 168   Salmon, above n 80, 624, 626. 169   East Timor case, ICJ Reports 1995, 101: ‘The Court recalls . . . 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.’ See also, the case on the Interpretation of the Peace Treaties, ICJ Reports 1950, 71: ‘The consent of States, parties to a dispute, is the basis of the Court’s jurisdiction in contentious cases.’ The situation here is the same. 170   J Basdevant (ed), Dictionnaire de la terminologie de droit international (Paris, 1960) 133. 171   Dubisson, above n 49, 132. 172   See Thirlway, above, n 166, 4–5, citing GG Fitzmaurice. 173   See Abi-Saab, above n 18, 60.

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particularly in the English language version of this book, where the word ‘jurisdiction’ is used very widely, in order to avoid the potential ambiguities of the English word ‘competence’.

d)  The Distinction between General and Special Competence and General and Special Admissibility 174 A very useful way of classifying things is to divide questions both of competence and of admissibility into ‘general’ and the ‘special’ categories. Competence. General competence is the virtual and universal field of application of a tribunal’s jurisdictional activity: in other words the definition of the class of disputes that can be submitted to it. It is, so to speak, measured by the general conditions for laying disputes before the tribunal, in the present case the ICJ. These conditions are set out in the texts relating to personal jurisdiction (Articles 34–35 of the Statute), to subject-matter jurisdiction (Articles 36 and 38 of the Statute) and jurisdiction by consent (Article 36). In contradistinction to this, special competence concerns the sphere for the purposes of which a State agrees, in a concrete way, to submit to the Court’s jurisdiction. Here we need to analyse the heads of consensual jurisdiction as contemplated by Article 36 paragraphs 1 and 2 of the Statute. If, for example, an individual person were to claim the right to appear before the Court as a party, it would be possible to say that the Court lacks personal competence, its competence being reserved for States. The problem is resolved at a general level and, so to speak, automatically, by a very direct syllogism. By contrast, it is necessary to interpret an optional clause in the sense of Article 36, paragraph 2 of the Statute in order to decide the extent to which a State has concretely agreed to submit to the Court’s jurisdiction, and consequently, in order to decide to what extent the case currently before the Court falls within the category in respect of which consent has been given. It is clear that an international legal dispute can be submitted to the jurisdiction of the Court if the disputing States agree to do so (general level). It remains to ascertain in each case the extent to which such consent has been given (special level). Admissibility. General admissibility concerns the limits beyond which the Court cannot go without exceeding its powers under the Statute and the Rules, or going beyond the concept of its judicial function. The Court cannot act in a way that is inconsistent with its judicial integrity. It has been said that: The Court can sometimes decide that an application is inadmissible, invoking general considerations that go beyond the specific conditions of subject-matter admissibility, being based solely on the incompatibility of the application with the judicial function. This is a matter of general admissibility which, in the context of subject-matter admissibility, goes beyond specific conditions and represents a residual discretionary power of the Court in this field, a power which it has, and which it exercises, in order to safeguard the independence and integrity of its juridical function.175   On the subject of this classification, see Abi-Saab, above n 18, 61 et seq., 91 et seq.   Ibid, 97 (our translation: see also, 146 et seq., 158 et seq.), the expression ‘discretionary’ being, however, too strong in this context. As to the inherent limits of the judicial function, see S Rosenne, The Law and Practice of the International Court, 2nd edn (Dordrecht/Boston/Lancaster, 1985) 96–100, 307–10. M Mabrouk, Les exceptions de 174 175



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The Court itself formulated this concern in exemplary fashion in the case concerning the Northern Cameroons (1963): 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 the parties to a case, on the one hand, and on the other hand the duty of the Court to maintain its judicial character.176

General admissibility can be further divided into two sub-categories. On the one hand, general admissibility touches on the jus cogens of the Statute and the Rules. The Court cannot bypass the rules made binding on it (to an admittedly varying degree) by the Statute and the Rules. Here, the limits on the Court’s activity are objective and clear. They arise from the texts. Consequently, if a party (or all the parties in concert) ask the Court to inform them of the progress of the Court’s deliberations, the Court cannot agree to the request, because it is contrary to Article 54, paragraph 3 of the Statute: ‘The Court’s deliberations are and will remain secret.’ The positive provisions of the Statute and the Rules, to the extent that they are not suppletive law, appear in this light as a series of specific limitations on the Court’s activities. On the other hand, general admissibility arises from the concept (itself a general one) of ‘judicial integrity’. This is a general standard, which is not defined in advance, and is capable of being adapted case by case as the result of the power, which the Court does to certain degree possess, to assess what, in practical terms, is required of it. In this way the Court is endowed with what is described as a certain ‘discretionary power’, really a power of appreciation or evaluation, and one which it must exercise in a spirit of restraint. The Court could, for example, refuse to respond to a request for an advisory opinion on an existing inter-State dispute, if it were aware that the dispute was in fact on the point of being brought before it on a contentious basis. This limitation is not provided for in the Statute or the Rules. It arises, however, from the requirements of judicial integrity, since a judge must avoid pronouncing twice on the same case, once in a nonbinding way and a second time in a binding one; to do so would open the way to possible contradictions or at least to a res judicata de facto as a result of the first pronouncement. This aspect of general admissibility consequently enables the Court to follow a certain judicial policy for the sole and precise purpose of protecting its prestige and integrity as the procédure devant les juridictions internationales (Paris, 1966) 200 et seq. F Münch, ‘Das Wesen der Rechtsprechung als Leitbegriff für die Tätigkeit des Internationalen Gerichtshofes’ (1971) 31 ZaöRV 712 et seq. RY Jennings, ‘The Judicial Function and the Rule of Law in International Relations’ in Essays R Ago, vol III (Milan, 1987) 139 et seq. L Gross, ‘Limitations upon the Judicial Function’ (1964) 58 AJIL 415 et seq. GG Fitzmaurice, The Law and Procedure of the International Court, vol II (Cambridge, 1986) 555–63. G Schwarzenberger, International Law – As Applied by International Courts and Tribunals, vol IV (London, 1986) 428 et seq., 510 et seq., particularly 459 et seq. IF Shihata, The Power of the International Court to Determine its own Jurisdiction, Compétence de la Compétence (The Hague, 1965) 206 et seq.; H Rasmussen, ‘Le juge international, en évitant de statuer obéit-il à un devoir judiciaire fondamental?’ in GYIL, vol 29 (1986) 252 et seq.; A Miaja de la Muela, ‘Sobra los limites de la fonción jurisdiccional del Tribunal Internacional de Justicia’ (1964) 17 REDI 344 et seq.; R Giuffrida, La ricevibilità generale nella giurisprudenza della Corte internazionale di Giustizia (Milan, 1995). For a compilation of the passages of the decisions and opinions dealing with the limitations of the judicial function, cf G Ziccardi-Capaldo (ed), Répertoire de la jurisprudence de la Cour internationale de Justice (1947–1992), vol II, (Dordrecht/Boston/London, 1995) 748 (no 2119) 776 (no 2156). 176   ICJ Reports 1963, 29. See also, ibid, 30: ‘The Court is exercising a judicial function. That function is circumscribed by inherent limitations which are none the less imperative because they may be difficult to catalogue, and may not frequently present themselves as a conclusive bar to adjudication in a concrete case. Nevertheless, it is always a matter for the determination of the Court whether its judicial functions are involved.’

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principal judicial organ of the international community. The Court needs to run this argument only in genuine cases of urgent need. Nothing is more prejudicial to judicial integrity than wide, fluctuating and over-robust judicial policy. The Court’s competence and the admissibility of a case must be governed by objective conditions which ensure the equality of present and future parties and also the foreseeability of the law. A tribunal must not be in a position to accept or refuse cases on the basis of subjective criteria, since to do so leaves an undesirable impression of arbitrariness and would amount to a failure by the tribunal to fulfil its judicial mission, inviting accusations of selectivity and manipulation. The need to maintain the integrity of the Court therefore dictates that the levers needed to protect that integrity should not be used except in relatively extreme circumstances, where the proper administration of justice is manifestly in issue. Special admissibility can be either formal or material. Formal special admissibility requires that the forms and time limits for procedural steps be complied with. For example, documents must be submitted within a certain time limit in compliance with an Order of the Court. By contrast, special material admissibility relates to the conditions for bringing a claim under the rules of general international law and international law derived from treaties, bound up with the type of claim. Another example is that for claims for diplomatic protection, which originally were private ones, it is necessary, under international customary law, to prove the exhaustion of internal remedies. This is a condition both of special and of subject-matter (material) admissibility. The formal aspect concerns the procedure, the material/subject-matter aspect concerns the claim itself.

e)  The Personal, Material, Temporal and Spatial Spheres of Competence and Admissibility In the legal theory of competence developed in public law since the time of G Jellinek and then H Kelsen, a distinction is made between four different spheres of judicial competence, namely the personal sphere (who can do it?), the material sphere (what can be done?), the temporal sphere (when can it be done?) and the spatial sphere (where can it be done?). When we get to the level of the ICJ, the personal and material (subject-matter) aspects are part of the question of general competence; the temporal and special aspects are only a part (according to the circumstances) of the question of special competence. The question of personal competence is governed, for contentious cases, by Articles 34 and 35 of the Statute, and for advisory opinion cases by Article 96 of the Charter and Article 65 of the Statute. Material competence is governed in contentious cases by Articles 36 (dispute) and 38 (of international law) of the Statute, and in advisory opinion cases is again governed by Articles 96 of the Charter and 65 of the Statute. At the level of general competence in relation to contentious cases, one must also mention consensual competence as provided for in Article 36 of the Statute and in the Court’s jurisprudence. This element is absent in municipal tribunals. It is specific to the workings of the ICJ. There are, by contrast, no limitations on the Court’s temporal or spatial competence. These categories, therefore, have not been developed at the ‘general’ level, because there has been no need to do so. The Court can hear a case regardless of where the subject matter is situated in point of time. All that is needful is that the dispute be a current one. In the same way, the Court’s reach is global: it knows no spatial limits. That problem arises only



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for regional tribunals. So the ICJ at The Hague never acts extra-territorially. The parties’ consent indicates the legal ‘space’ in and to which the Court’s decision will apply. In broad terms, one might say that there is no limit to this: from a theoretical point of view the Court could even decide disputes with States on other planets, if they submitted to its jurisdiction and fulfilled the conditions of Article 35 (assuming, as perhaps one may, that they were not Members of the United Nations). However, spatial and temporal limits can be laid down in documents conferring jurisdiction on the Court, at the ‘special competence’ level. A State can accept the Court’s jurisdiction in the sense of Article 36, paragraph 2 of the Statute, while at the same time inserting various reservations into its declaration accepting the jurisdiction. Such reservations can place temporal limits on the disputes as to which the State in question is submitting to the Court’s jurisdiction (for example, disputes arising from facts that occurred prior to the State’s achieving independence); they can also impose spatial limits, as for example, declining to submit to disputes concerning a certain geographical area. In the absence of such limitations, the Court’s jurisdiction is unlimited in time and space. By contrast, however, its personal and subject-matter jurisdictions are confined within quite severe limits. Admissibility as a concept is not susceptible to the same system of quadripartite classification, because it relates to concrete claims and legal acts. Questions of admissibility are therefore either formal or material ones. Certainly it is possible to treat the question of a party’s quality or interest in acting (locus standi) as a matter of personal admissibility, but the exercise would be an idiosyncratic one. In reality, what is necessary is to ascertain whether the claim can be made in the circumstances, by reason of its relationship with the claimant. What is in question is the quality of the claim, in other words material (subjectmatter) admissibility. The same goes for the nationality condition in relation to diplomatic protection cases. Strictly speaking, that is a personal condition. However, in relation to claims for diplomatic protection, it is still the effect of this personal quality on the validity (or otherwise) of the claim that is in issue. Here too, therefore, the personal qualification merges with the material one. As a matter of legal analysis, the personal qualification is a condition of the claim’s subject-matter validity. The latter alone is subjected to judicial analysis.

f)  Questions relating to Competence. In the ‘economy’ of the judicial process, the Court first addresses itself to competence/jurisdiction, then to admissibility.177 In this section there is no need to go any further into the three fundamental aspects of the ICJ’s general jurisdiction, that is, personal jurisdiction (Articles 34–35 of the Statute), subject-matter jurisdiction (Articles 36 and 38) and jurisdiction by consent (Article 36). These questions will be explored in a more detail later in the chapter.178 If the Statute gives a certain overall unity to the Court’s general jurisdiction/ competence, the same cannot be said of its special competence, which depends on, and operates at the level of, a whole range of diverse and concrete bases to which individual States may have subscribed. It is, therefore, natural for the Court’s special competence to be the reflection of that great diversity and variety. A rapid review of the past reasoning on this   See below section 4(e).   See sections 5–7.

177 178

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subject, first of the PCIJ, and then of the ICJ, is revealing. The following matters have been treated as aspects of the Court’s special competence: the fact that the dispute falls, in subject matter, within the field covered by the compromis, jurisdiction clause or optional clause giving the Court jurisdiction;179 the question whether the instrument which is the basis of the Court’s jurisdiction permits it to be seised immediately and unilaterally;180 the scope of the instrument giving the Court jurisdiction ratione temporis, that is, whether it covers certain facts and situations;181 the validity of the instrument itself, from the temporal point of view, at the moment that proceedings are instituted;182 the validity or nullity of that instrument,183

179   Mavrommatis case (Jurisdiction, 1924), PCIJ, Series A, no 2, 15 et seq.; Mavrommatis (readaptation, jurisdiction, 1927), PCIJ Series A, no 10, 14 et seq.; case concerning the Rights of minorities in Upper Silesia (Minority schools, 1928), PCIJ, Series A, no 12, 21 et seq.; case of the Appeal against an award of the Hungaro-Czechoslovak MAT (Peter Pázmány University v Czechoslovakia, 1933), PCIJ, Series A/B, no 61, 220–22; Borchgrave case (Preliminary Objections, 1937), PCIJ, Series A/B, no 72, 162 et seq. (jurisdiction here arose from a special agreement); Moroccan phosphates case (Preliminary Objection, 1938), PCIJ, Series A/B, no 74, 21 et seq. (in this case the application was based on an optional clause declaration accompanied by reservations) and, for an opposing view, the Dissenting Opinion of Judge van Eysinga, ibid, 35; case of the Electricity Company of Sofia and Bulgaria (Preliminary Objections, 1939), PCIJ, Series A/B, no 77, 80 et seq. (optional clause with reservations); Ambatielos case (Preliminary Objections), ICJ Reports 1952, 39 et seq. (jurisdiction clause); case of the Anglo-Iranian Oil Co (Preliminary Objections), ICJ Reports 1952, 102 et seq. (optional clause); case on Certain Norwegian loans, ICJ Reports 1957, 20 et seq. (optional clause); case on the Right of passage over Indian territory (Preliminary Objections), ICJ Reports 1957, 151–52 (optional clause); case of the Appeal concerning the jurisdiction of the OACI Council, ICJ Reports 1972, 52, 54 et seq. (jurisdiction clause with a right of appeal); case concerning the Continental shelf in the Aegean Sea (Jurisdiction), ICJ Reports 1978, 13 et seq., 20 et seq. (jurisdiction provided for in an agreement for the resolution of disputes); case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility), ICJ Reports 1984, 421 et seq. (reservation regarding ‘multilateral treaties’ affecting the Court’s jurisdiction); case on Certain phosphate lands at Nauru (Preliminary Objections), ICJ Reports 1992, 245 et seq.; case on the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Yugoslavia, Preliminary Objections), ICJ Reports 1996-II, 614 (existence of a dispute within the meaning of the jurisdiction clause; temporal applicability of that clause); case concerning Questions on interpretation and application of the Montreal Convention of 1971 resulting from the aerial incident at Lockerbie (Preliminary Objections), ICJ Reports 1998, 16 et seq., § 16 et seq. and 121 et seq., § 16 et seq. (existence of a legal dispute within the meaning of the jurisdiction clause); case on Jurisdiction in fisheries matters (Spain v Canada, Jurisdiction), ICJ Reports 1998, 451 et seq., §§ 39 et seq. (interpretation of reservations in the optional declaration); case on Petroleum platforms (Preliminary Objection), ICJ Reports 1996-II, 810 et seq. (jurisdiction clause); case of the Aerial incident of 10 August 1999 (Pakistan v India, Jurisdiction), ICJ Reports 2000, 25 et seq. (optional clause and interpretation of reservations); case of the Land and maritime dispute (Nicaragua v Colombia, Preliminary Objections), ICJ Reports 2007, §§ 43 et seq. (jurisdiction clause); case on Certain questions concerning mutual legal assistance in criminal matters (Djibouti v France), ICJ Reports 2008, §§ 51 et seq. (interpretation of the material scope of consent by prorogation to the jurisdiction of the Court; case on the l’Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia, Preliminary Objections), ICJ Reports 2008, §§ 131 et seq. (material interpretation of the Convention containing the jurisdiction clause in order to ascertain whether the Court had jurisdiction over certain applications; referring these to the merits phase); case of the Maritime delimitation in the Black Sea (Romania v Ukraine), ICJ Reports 2009, §§ 20 et seq. (interpretation of the extent of the jurisdiction consensually conferred upon the Court). 180   Case of the Maritime delimitation and territorial questions between Qatar and Bahrein (Jurisdiction and admissibility), ICJ Reports 1995, 15 et seq. 181   See, eg the case of Certain property (Liechtenstein v Germany, Preliminary Objections), ICJ Reports 2005, §§ 28 et seq.; and the case on the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia, Preliminary Objections), ICJ Reports 2008, §§ 120 et seq. 182   Nottebohm case (Preliminary Objection), ICJ Reports, 1953, 118 et seq.; Interhandel case (Preliminary Objections), ICJ Reports 1959, 20 et seq.; case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility), ICJ Reports 1984, 397 et seq. and 415 et seq. 183   Case on the Right of passage over Indian territory (Preliminary Objections), ICJ Reports 1957, 141 et seq.; case of the Appeal relating to the jurisdiction of the ICAO Council, ICJ Reports 1972, 53; cases on the Jurisdiction in fisheries matters (Jurisdiction), ICJ Reports 1973, 14–16, 59–60; case of the Maritime delimitation and territorial questions between Qatar and Bahrein (Jurisdiction and admissibility), ICJ Reports 1994, 120 et seq. (whether text legally binding or not); Aerial incident of 10 August 1999 (Pakistan v India, Jurisdiction), ICJ Reports 2000, 23–25 (Applicability of the General Act of Arbitration to the disputing parties).



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including the withdrawal184 or validity185 of a reservation presenting an obstacle to it; the applicability of the instrument giving jurisdiction to the case in question,186 including from the point of view of the ‘precipitate’ initiation of the proceedings;187 the applicability of the instrument in light of the fact that one of the States that is a party to the proceedings is not recognised by another such State;188 the applicability of the instrument conferring jurisdiction in light of subsequent binding resolutions of the UN Security Council;189 the infringement of one or more of the principles of equality, mutuality and reciprocity between States as a result of the precipitate initiation of a unilateral application;190 the fact that a dispute has previously been submitted to another (political) body, as required by the instrument giving the Court jurisdiction (configured as a question of competence);191 the agreement to submit to the Court under the forum prorogatum mechanism192 or otherwise by conduct;193 the prohibition against reintroducing an application on the same subject after having previously withdrawn it (which could equally well have been argued as a ground of inadmissibility);194 estoppel in consequence of having raised a legitimate expectation as to the definitive nature

184   Case on Armed activities in the territory of the Congo (DRC v Rwanda, new Application, 2002, Jurisdiction and admissibility), ICJ Reports 2006, §§ 26 et seq. (withdrawal of a reservation in respect of Article IX of the Genocide Convention, constituting an agreement on jurisdiction). 185   Ibid, §§ 56 et seq. 186   Case on the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Yugoslavia, Preliminary Objections), ICJ Reports, 1996-II, 609 et seq., Yugoslavia having raised doubts as to whether Bosnia-Herzegovina could have become a party either to the Genocide Convention, the jurisdiction clause in Article IX of which was the basis of jurisdiction in the case. See also, the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia, Preliminary Objections), ICJ Reports, 2008, §§ 93 et seq. 187  Case of the Land and Maritime boundary between Cameroon and Nigeria (Preliminary Objections), ICJ Reports 1998, 290 et seq., the Court repeating and confirming its jurisprudence in the Right of Passage case of 1957. 188   Case on the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Yugoslavia, Preliminary Objections), ICJ Reports 1996-II, 612–13, Yugoslavia having raised this point, the Court was able to avoid replying to the point of principle by repeating that, since the conclusion of the Dayton Accord of 1995, recognition had been given, so that consequently ‘all the conditions are now fulfilled to found the jurisdiction of the Court ratione personae’, ibid, 613, § 26. Here, non-recognition posed a problem from the point of view of the treaty-relationship between the parties: was the Convention against Genocide a link binding them together, if there was no mutual recognition? One needs to separate from that question the more general one as to whether, if States do not recognise each other, they can be parties to a case before the Court in relation to a dispute between them. This question will be addressed below at section 5. 189   Case of Questions relating to the interpretation and application of the Montreal Convention of 1971 resulting from the aerial incident at Lockerbie (Preliminary Objections), ICJ Reports 1998, 23–24, §§ 37–38, and 128–29, §§ 36–37. 190   Case on the Right of passage over Indian territory (Preliminary Objection), ICJ Reports 1957, 145–47 and ICJ, Memorials, Pleadings and Documents, vol I (1960) 112. The notion of procedural abuse underlay the Indian argument but was not explicitly mentioned (ICJ, Memorials, Pleadings and Documents, vol I (1960), 114–15). The Indian judge ad hoc Chagla, however, took the view that the unusual haste in lodging the Application constituted an abuse of the Court’s procedure (Chagla Dissenting Opinion, ICJ Reports 1957, 172). 191   Case on the Interpretation of the Memel Statute (Preliminary Objection, 1932), PCIJ, Series A/B, no 47, 247 et seq.; see also, in the opposite sense, the Rolin-Jaequemyns Dissenting Opinion, ibid, 255–56, 258. 192   Haya de la Torre case, ICJ Reports 1951, 78; case of the Anglo-Iranian Oil Co (Preliminary Objections), ICJ Reports 1952, 113–14; case on Armed activities in the territory of the Congo (DRC v Rwanda) new Application, 2002, Jurisdiction and admissibility, ICJ Reports 2006, §§ 19 et seq. 193   Case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility), ICJ Reports 1984, 411–12, particularly at § 47: ‘It considers therefore that, having regard to the origin and generality of the statements to the effect that Nicaragua was bound by its 1929 Declaration, it is right to conclude that the constant acquiescence of that State in those affirmations constitutes a valid mode of manifestation of its intent to recognize the compulsory jurisdiction of the Court.’ 194   Case of Barcelona Traction (new Application, Preliminary Objections), ICJ Reports 1964, 16 et seq.

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of a discontinuance (idem);195 an estoppel on the basis of a representation that a party was not bound by the Court’s compulsory jurisdiction (optional clauses);196 and the nature of an agreement conferring jurisdiction on the Court that it is possible to analyse legally as a concession agreement rather than a treaty.197 The Court has also examined, as an issue going to its jurisdiction, the existence of a legal dispute on an issue of public international law.198 Similarly, the ‘reserved domain/domestic jurisdiction’ argument can likewise be configured as going to jurisdiction.199 In that way it was pleaded that the fact of responding to a claim was equivalent to an intervention in a State’s internal affairs, on the basis that the fact of responding in some way implied an attempt to regulate or control its criminal justice system.200 Personal competence (the right to appear before the Court as a party) was also considered by the judges.201 Finally, the scope of the transfer of competence from the PCIJ to the ICJ under Article 36, paragraph 5202 (or Article 37203) of the Statute is also a question relating to the Court’s jurisdiction, despite the fact that it relates to automatic jurisdiction derived from the Statute and not to consensual jurisdiction that needs to be the subject of a separate expression of will.

195   Case of Barcelona Traction (new Application, Preliminary Objections), ICJ Reports 1964, 24–25 and ICJ, Memorials, Pleadings and Documents, vol I (1960) 89 et seq.; According to Spain, Belgium’s discontinuance of the case in favour of direct negotiations had created a legitimate expectation that the discontinuance was permanent, so that an attempt to reintroduce the case amounted to a failure to comply with the general principle of good faith (even to an abuse of the Court’s procedure). In the absence of any loss to Spain, the Court rejected its estoppel argument. The Court also took the view that the Government of Belgium had not disappointed any legitimate expectation: on the contrary, the two sides had simply agreed to make space for direct negotiation. This jurisprudence merits approval since it avoids inhibiting parties’ efforts to reach a direct understanding or settlement between them. After all, at the end of the day the judicial resolution of disputes is ‘simply an alternative to the direct and friendly settlement of such disputes between the Parties’: case of the Free Zones (Order), PCIJ, Series A, no 22, 13. 196   Case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility), ICJ Reports 1984, 413–15. 197   Case of the Anglo-Iranian Oil Co (Preliminary Objections), ICJ Reports 1952, 111–13. 198   Case on the Payment of various Serbian loans issued in France (1929), PCIJ, Series A, no 14, 16 et seq.; case of the Payment, in gold, of Federal Brazilian loans issued in France (1929), PCIJ, Series A, no 15, 101. In these cases, the issue was the configuration of the case according to international law or municipal law. In this respect the Court showed great flexibility, for which it was criticised by many leading commentators. It is not clear whether the modern Court would follow these PCIJ precedents. In other cases, the question related rather to the fact that the parties were in effect asking the Court to adventure beyond the strict law, which the Court had no option but to refuse to do: Case of the Free Zones (1930, Order), PCIJ, Series A, no 24, 9 et seq., and see also, the observations of FB Kellogg, ibid, 29 et seq.; Case of the Société commerciale de Belgium (1939), PCIJ, Series A/B, no 78, 177; case of the Haya de la Torre, ICJ Reports 1951, 79. 199   Case on the Right of passage over Indian territory (Preliminary Objections), ICJ Reports 1957, 149–50; case of the Interhandel (Preliminary Objections), ICJ Reports 1959, 23–26. The Court will most often postpone the issue to the merits phase: see the case on the Right of passage over Indian territory (merits), ICJ Reports 1960, 32–33. 200   Case of Avena and other Mexican nationals, ICJ Reports 2004-I, 30, §§ 27–28. 201   Case on the Legality of the use of force (Serbia and Montenegro v Belgium, Preliminary Objections), ICJ Reports 2004-I, 298 et seq., §§ 45 et seq., and the equivalent passages in the decisions with regard to other NATO States. Case on the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia, Preliminary Objections), ICJ Reports 2008, §§ 57 et seq. 202   Case on the Aerial incident of 27 July 1955 (Preliminary Objections), ICJ Reports 1959, 135 et seq.; case of the Temple of Preah Vihear (Preliminary Objections), ICJ Reports 1961, 22 et seq.; case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility), ICJ Reports 1984, 403 et seq. 203   Cases on South-West Africa (Preliminary Objections), ICJ Reports 1962, 330 et seq.; Barcelona Traction case (new Application, Preliminary Objections), ICJ Reports 1964, 26 et seq.



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g)  Questions of Admissibility As regards issues of competence and jurisdiction, the grounds for challenges are unitary at the general level but distinct at the special one. As regards challenges to admissibility, this multiplicity of grounds features both at the general level (especially as to judicial integrity) and at the special level, whether the issue relates to the subject matter of the case or goes to form. There is no numerus clausus as to the grounds of inadmissibility. Since they are connected to the concrete features of a dispute, and to the international law applicable to it, and since, in this field, parties have the right to give their legal inventiveness full rein, inadmissibility arguments of the most varied kinds have been raised over the years. Some of them come up quite frequently before the Court, or are the stock in trade of municipal jurisprudence and therefore easily served up again as rechauffées at the ICJ by drawing on general principles of law. These are, if you will, typical grounds of inadmissibility. Side by side with them, however, there are a whole series of alleged grounds of inadmissibility designed to fit the circumstances of this or that particular case. Amongst typical grounds, the following spring readily to mind. The Court has sometimes been asked to examine the admissibility of a claim as a question of the existence or non-existence of any dispute,204 taking into account prior negotiations between the parties;205 the question whether the alleged dispute is or is not a current one;206 the existence of the necessary standing to take action;207 the link of nationality in the context of diplomatic protection claims208 (or in the case of dual nationality209); the exhaustion of internal remedies (still in the context of 204   Mavrommatis case (Jurisdiction, 1924), PCIJ, Series A, no 2, 11; case of Certain German interests in Polish Upper Silesia (Preliminary Objections, 1925), PCIJ, Series A, no 6, 13 et seq.; South-West Africa cases (Preliminary Objections), ICJ Reports 1962, 328; case of the Northern Cameroons (Preliminary Objections), ICJ Reports 1963, 27–28; case of the Fisheries Jurisdiction (merits), ICJ Reports 1974, 17–20; East Timor case, ICJ Reports 1995, 99–100 (the Court not stating whether the Preliminary Objection went to admissibility or jurisdiction); case of the Land and Maritime boundary between Cameroon and Nigeria (Preliminary Objections), ICJ, Reports, 1998, 313 et seq., 319 et seq. (the Court not stating whether the Preliminary Objection went to admissibility or jurisdiction); case of the Arrest Warrant of 11 April 2000, ICJ Reports 2002, 11 et seq. (the Court taking no position as to the character of the Objection, which Belgium had presented as an objection to the jurisdiction); case of Certain Property (Liechtenstein v Germany, Preliminary Objections), ICJ Reports 2005, §§ 20 et seq (idem). 205   Mavrommatis case (Jurisdiction, 1924), PCIJ, Series A, no 2, 13–15; South-West Africa cases (Preliminary Objections), ICJ Reports 1962, 344. 206   Case of the Northern Cameroons (Preliminary Objections), ICJ Reports 1963, 33–36; Nuclear Tests cases, ICJ Reports 1974, 259 et seq., 270 et seq., 463 et seq., 475 et seq. 207   Barcelona Traction case (new Application, Preliminary Objections), ICJ Reports 1964, 44, and second phase, ICJ Reports 1970, 30 et seq.; South-West Africa cases (second phase), ICJ Reports,1966, 17 et seq., 51; case of Ahmadou Sadio Diallo (Republic of Guinea v DRC), ICJ Reports 2007, §§ 50 et seq., 77 et seq.; cf Abi-Saab, above n 18, 130 et seq.; K Mbaye, ‘L’intérêt pour agir devant la Cour internationale de Justice’, CCHAIL, vol 209, 1988-II, 231 et seq.; A Miaja de la Muela, ‘El interés de las partes en el proceso ante el Tribunal internacional de Justicia’ in Comunicazioni e studi, vol 14 (1975), 525 et seq.; M Bos, ‘Les conditions du procès en droit international public’ in Bibliotheca Visseriana vol XIX (Leiden, 1957), 23 et seq.; 142 et seq.; 214 et seq. On the actio popularis in international law, cf I Seidl-Hohenveldern, ‘Actio popularis im Völkerrecht?’ in Essays G Morelli (Milan, 1975) 803 et seq.; M Ragazzi, The Concept of International Obligations Erga Omnes (Oxford, 1997) 210 et seq.; F Voeffray, L’actio popularis ou la défense de l’intérêt collectif devant les juridictions internationales (Paris, 2004). 208  Case of the Panevezys-Saldutiskis Railways (1939), PCIJ, Series A/B, no 76, 16–18. Nottebohm (second phase), ICJ Reports 1955, 10–11, 12 et seq. For a succinct view and numerous references, cf L Oppenheim (RY Jennings and A Watts (eds)), International Law, Peace, vol I, 9th edn (London, 1992) 511 et seq. See also, JV Witenberg, ‘La recevabilité des réclamations devant les juridictions internationales’ CCHAIL, vol 41, 1932-III, 44–50; A Watts, ‘Nationality of Claims: Some Relevant Concepts’ in Essays RY Jennings (Cambridge, 1996) 424 et seq. 209   Case of Avena and other Mexican nationals, ICJ Reports 2004-I, 36–37, §§ 41–42.

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diplomatic protection claims);210 the objective existence of a dispute with the characteristics necessary in a given context;211 the absence of litispendence;212 the decisive grant of rights by third States;213 the existence or absence of a res judicata;214 respect for certain 210   Borchgrave case (Preliminary Objections, 1937), PCIJ, Series A/B, no 72, 169–70; Case of the PanevezysSaldutiskis Railways (1939), PCIJ, Series A/B, no 76, 18–22; Case of the Electricity Company of Sofia and Bulgaria (Preliminary Objections, 1939), PCIJ, Series A/B, no 77, 80 (argued here as a ground of want of jurisdiction); Case of the Anglo-Iranian Oil Co, ICJ Reports 1952, 99. Ambatielos case, ICJ Reports 1953, 13–14, 22–23. Interhandel case, ICJ, Reports, 1959, 11, 26–29; case of Barcelona Traction (new Application, Preliminary Objections), ICJ Reports 1964, 12, 46; case of Elettronica Sicula (ELSI), ICJ, Reports, 1989, 22–23, 42 et seq.; case of LaGrand, ICJ Reports 2001, 487–88; case of the Arrest Warrant of 11 April 2000, ICJ Reports 2002, 16–18, Belgium having argued that the DRC’s claim was for diplomatic protection in disguised form, so that the rule in question should apply to it; the Court rejected this argument, taking the view that the DRC was claiming only in respect of its own rights and not for the individual rights of Mr Yerodia. Case of Avena and other Mexican nationals, ICJ Reports, 2004-I, 34–36, §§ 38–40. Ahmadou Sadio Diallo case (Republic of Guinea v DRC), ICJ Reports 2007, § 34 et seq., §§ 68 et seq. For a succinct view of the rule on exhaustion of internal remedies, and numerous references, cf. Oppenheim, above n 208, 522 et seq. See also, JV Witenberg, ‘La recevabilité des réclamations devant les juridictions internationales’, CCHAIL, vol 41, 1932-III, 50–56. Bos, above n 207, 221 et seq. 211   Case on the Right of passage over Indian territory (Preliminary Objections), ICJ Reports 1957, 130, 132–33, 148–49. South-West Africa cases (Preliminary Objections), ICJ Reports 1962, 342. Case of the Northern Cameroons, ICJ Reports 1963, 20, 27 et seq. Case on the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Yugoslavia, Preliminary Objections), ICJ Reports 1996, §§ 27 et seq. and especially § 43. A particular type of dispute was, for example, required by the texts governing the establishment of Mandates (cf the case of South-West Africa, (Preliminary Objections) ICJ Reports 1962, 327–28; cf also the Dissenting Opinion of Judge Bustamante, ibid, 379–84; and those of Jessup, ibid, 422–33; Winiarsky, ibid, 455–56; Morelli, ibid, 564–71; Van Wyk (ad hoc), ibid, 658–62). For a general overview of jurisdiction clauses, cf Yearbook of the International Court of Justice). 212   Case of Certain German interests in Polish Upper Silesia (Preliminary Objections, 1925), PCIJ, Series A, no 6, 18–20, 26–27. There is no litispendence when the parties are negotiating amongst themselves and at the same time pursuing judicial proceedings; the two procedures can be conducted pari passu (case of the Continental shelf in the Aegean Sea, Jurisdiction, ICJ Reports 1978, 12–13). Nor is there litispendence when at one and the same time the case is before the Court and a political organ such as the Security Council: case of the United States diplomatic and consular staff at Tehran, ICJ Reports 1980, 20 et seq.; case on Military and paramilitary activities in and against Nicaragua (jurisdiction and admissibility), ICJ Reports 1984, 431 et seq. On the subject of litispendence, see G Ténékidès, ‘L’exception de litispendence devant les organismes internationaux’ (1929) 36 RGDIP 502 et seq. G de Magyary, La juridiction de la Cour permanente de Justice internationale (Paris, 1931) 229 et seq. M Bos, ‘Les du procès en droit international public’ in Bibliotheca Visseriana, vol XIX (1957), 240, 246 et seq. 213   Case of East Timor, ICJ Reports 1995, 100 et seq.; case of the Land and Maritime boundary between Cameroon and Nigeria (Preliminary Objections), ICJ Reports 1998, 309 et seq., 322 et seq. On this question see below section 9. 214   Request for interpretation of the decision of 11 June 1998 in the case of the Land and Maritime boundary between Cameroon and Nigeria (Preliminary Objections), ICJ Reports 1999-I, 36 et seq., §§ 12 et seq. See also, among the arbitration cases, the Russian indemnity case (1912) XI RIAA444. At the PCIJ, the argument was raised in connection with a so-called prior decision of the League of Nations Council: case of the Rights of minorities in Upper Silesia (Minority schools, 1928) PCIJ, Series A, no 12, 29. Individual Opinion of Judge Azevedo, case on the Interpretation of the Peace Treaties with Bulgaria, Hungary and Romania, ICJ Reports 1950, 80. As to res judicata, see Rosenne, above n 45, vol III 1627 et seq., 1655 et seq.; M Limburg, ‘L’autorité de la chose jugée dans les décisions des juridictions internationales’ CCHAIL, vol 30, 1929-V, 523 et seq.; Bos,, above n 207, 30, 246 et seq.; JV Witenberg, ‘La recevabilité des réclamations devant les juridictions internationales’ CCHAIL, vol 41, 1932-III, 33–35; Ch de Visscher, ‘La chose jugée devant la Cour internationale de Justice’ (1965) 1 RBDI 5 et seq.; Ch de Visscher, Aspects récents du droit procédural de la Cour internationale de Justice (Paris, 1966) 177 et seq.; A El Ouali, Effets juridiques de la sentence internationale (Paris, 1984) 73 et seq. See also, S Rosenne, ‘Res Judicata: Some Recent Decisions of the International Court of Justice’ in BYIL, vol 28 (1951) 365 et seq.; E Grisel, ‘Res judicata: l’autorité de la chose jugée en droit international’ in Essays G Perrin (Lausanne, 1984) 139 et seq. Finally, it should be noted that the res judicata question arose in a fairly acute manner in the case of the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Serbia et Montenegro, merits), ICJ Reports 2007, § 100 et seq., 114 et seq.: the facts on which the Court had based its decision on jurisdiction in 1996 were subsequently shown to be unreliable. However, the Court considered that its decision in that year, on the basis of the facts known at the time, constituted a res judicata.



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time limits laid down in the Statute or other texts;215 the lateness or otherwise of a claim in light of the general principle that claims should be presented diligently;216 respect for formal requirements which impose binding conditions;217 no abuse of process;218 exhaustion of negotiations and other means made compulsory, prior to seising the Court, by a text binding on the parties concerned219 or by a possible implied 215   Losinger case (Order, 1936), PCIJ, Series A/B, no 67, 15 et seq., 22. The Court takes a very liberal attitude on this point – cf Abi-Saab, above n 18, 98 et seq.; Bos, above n 207, 243–46. Sometimes delays in taking a procedural step (especially the initial step beginning the case) is presented as an abuse of process; in that respect too the Court is not very strict. cf the Ambatielos, Counter-Memorial of the United Kingdom, ICJ, Memorials, Pleadings and Documents, 178–79; Oral presentation by J Fawcett, ibid, 432–33; ICJ Reports 1953, 23. In a recent case, excessive delay in making a claim was also the subject of argument, without abuse of process being pleaded; cf Certain phosphate lands at Nauru (Preliminary Objections), ICJ Reports 1992, 253–55. 216   Case of Certain phosphate lands at Nauru (Preliminary Objections), ICJ Reports 1992, 253–54. Australia had claimed that, Nauru having become independent in 1968, its claim, made in 1988 (20 years later) was unreasonably late. The Court rejected this argument, taking the view that Nauru had taken various steps in the meantime. See also, the Dissenting Opinion of Judge Oda, ibid, 323–24. On this aspect of the latter decision, see B Conforti, ‘L’arrêt de la ICJ dans l’affaire de Certaines terres à phosphates à Nauru (Exceptions préliminaires)’ (1992) 38 AFDI 463–64 (liberative prescription, time-bar). B Stern, ‘L’arrêt du 26 juin 1992 sur les exceptions préliminaires dans l’affaire de certaines terres à phosphates de Nauru’ (1993) 120 JDI 676. A Anghie, ‘Certain Phosphate Lands in Nauru, Preliminary Objections’ (1993) 87 AJIL 286. See also, the case of LaGrand, ICJ Reports 2001, 486–87; and the case of Avena and other Mexican nationals, ICJ Reports 2004-I, 37–38, §§ 43–44. 217   Moroccan Phosphates case (1938), PCIJ, Series A/B, no 74, 16, 21. Case on Rights of nationals of the United States of America in Morocco, ICJ, Memorials, Pleadings and Documents, vol I, (1960) 235–36 and ICJ Reports 1952, 178–79. Case of the Northern Cameroons, ICJ Reports 1963, 27–28. Case of Certain phosphate lands at Nauru (Preliminary Objections), ICJ Reports 1992, 262 et seq. (new Applications). Case on the Legality of the use of force (Interim measures of protection), ICJ Reports 1999, 138–39 (late application to add an additional ground of jurisdiction – refused). Case of the Land and Maritime boundary between Cameroon and Nigeria (Preliminary Objections), ICJ Reports 1998, 317 et seq., defect of form, namely an Application that was insufficiently precise; case of the Arrest warrant of 11 April2000, ICJ Reports 2002, 15–16, argument in relation to the radical transformation of the facts on which a claim is based. Case of the Land and maritime dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras), ICJ Reports 2007, §§ 104 et seq. (late change in the original subject of the claim). In the Corfu Channel case (Preliminary Objection, 1948), ICJ Reports, 1947/1948, 27, the Court noted that Albania had withdrawn an argument as to defect of form in so far as it was concerned with inadmissibility. In this regard the Court’s attitude was likewise a liberal one – cf Abi-Saab, above n 18, 102 et seq.; Bos, above n 207, 161 et seq., 169 et seq. 218   Ambatielos case, ICJ Reports 1953, 23; case on Military and paramilitary activities in and against Nicaragua (Interim measures of protection, 1984), V R. 84/10, 73 et seq. and ICJ, Reports, 1984, 178, § 21 (cf MF Labouz, ‘Affaire des activités militaires et paramilitaires au Nicaragua et contre celui-ci: Ordonnance en indication de mesures conservatoires’ (1984) 30 AFDI, 349–50, 352–53); case of the Border and transborder armed actions (jurisdiction and admissibility, Nicaragua v Honduras), ICJ Reports 1988, 91–92; case of the Arbitral award of 31 July 1989 (Guinea-Bissau v Senegal), ICJ Reports 1991, 63; and the independent opinion of Judge Lachs, ibid, 92; Dissenting Opinion Aguilar, Mawdsley and Ranjeva, ibid, 120. Dissenting Opinion Weeramantry, ibid, 130; case on Certain phosphate lands at Nauru (Preliminary Objections), ICJ Reports 1992, 255, especially § 38; case on the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Yugoslavia, New requests for indication of interim measures of protection), ICJ Reports 1993, 336, and in the same case, at the Preliminary Objections stage, ICJ Reports 1996, § 46. On the abuse of process in international law, cf E Zoller, La bonne foi en droit international public (Paris, 1977) 142 et seq.; M Gestri, ‘Considerazioni sulla teoria dell’abuso del diritto alla luce della prassi internazionale’ (1994) 77 RDI 27 et seq., 43 et seq.; R Kolb, La bonne foi en droit international public (Paris, 2000) 637 et seq. 219   Case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility), ICJ Reports 1984, 438–41; case on Border and transborder armed actions (jurisdiction and admissibility, Nicaragua v Honduras), ICJ Reports 1988, 92 et seq.; case of the Land and Maritime boundary between Cameroon and Nigeria (Preliminary Objections), ICJ Reports 1998, 304 et seq.; cf Abi-Saab, above n 18, 118 et seq.; Bos, above n 207, 201et seq.; JV Witenberg, ‘La recevabilité des réclamations devant les juridictions internationales’ CCHAIL, vol 41, 1932III, 23–26. See also, M Bourquin, ‘Dans quelle mesure le recours à des négociations diplomatiques est-il nécessaire avant qu’un différend puisse être soumis à la juridiction internationale?’ in Essays J Basdevant (Paris, 1960) 43 et seq.; Bos, above n 207, 202 et seq.; MM Ahi, Les négociations diplomatiques préalables à la soumission d’un différend à une instance internationale (Geneva, 1957); A Miaja de la Muela, ‘Las negociaciones diplomáticas previas a las reclamaciones ante tribunales internacionales’ (1963) 2 Anuario hispano-luso-americano de derecho internacional, 135 et seq.; J Soubeyrol, ‘La négociation diplomatique, élément du contentieux international’, RGDIP, vol 68, 1964,

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understanding;220 estoppel in consequence of an informal agreement not to submit a particular case to the Court;221 and so on. Other objections to admissibility have been raised in a more sharply delineated way: the necessary parties argument;222 the fact that the Court cannot concern itself with a dispute that is mired in a current armed conflict (limits of the judicial function);223 the impossibility of separating a specific question from the wider factual and legal context;224 the fact that a claim would be equivalent to asking the Court to give an advisory opinion on a dispute between States;225 the seising (or parallel activities) on the same question of a political body such as the Security Council;226 the fact that Security Council resolutions have too 319 et seq.; S Torres Bernardez, ‘Are Prior Negotiations a General Condition for Judicial Settlement by the ICJ?’ in Essays JM Ruda (The Hague, 2000) 507 et seq. 220   Case of the Land and Maritime boundary between Cameroon and Nigeria (Preliminary Objections), ICJ Reports 1998, 302–303. 221   Case of the Land and Maritime boundary between Cameroon and Nigeria (Preliminary Objections), ICJ Reports 1998, 303–304. 222   Case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility), ICJ Reports 1984, 430–31 (inadmissibility). On this argument about essential parties, cf J Verhoeven, ‘Le droit, le juge et la violence. Les arrêts Nicaragua v Etats-Unis’ (1987) 91 RGDIP 1184–86. PM Eisemann, ‘L’arrêt de la ICJ du 26 novembre 1984 (compétence et recevabilité) dans l’affaire des activités militaires au Nicaragua et contre celui-ci’ (1984) 30 AFDI 385. This situation must be distinguished from one in which the Court cannot respond to a claim because the legal interests of a third State which has not consented to the Court’s jurisdiction would not only be affected, but would constitute the very subject of the Court’s decision (Case of the Monetary gold seized at Rome in 1943, ICJ Reports 1954, 19; cf Abi-Saab, above n 18, 156–57. H Thirlway, ‘The Law and Procedure of the International Court of Justice, 1960–1989’ in BYIL, vol 63 (1992) 13–15. For an analysis bringing together the Nicaragua and Monetary gold cases as regards the aspect we are considering here, see R Giuffrida, La ricevibilità generale nella giurisprudenza della Corte internazionale di Giustizia (Milan, 1995) 123 et seq., 127. See also, the distinction subsequently established by the Court in the case of Certain phosphate lands at Nauru (Preliminary Objections), ICJ Reports 1992, 258 et seq., 261 (and, in this connnection, B Conforti, ‘L’arrêt de la ICJ en l’affaire de Certaines terres à phosphates à Nauru (Exceptions préliminaires)’ (1992) 38 AFDI, 464 et seq.; B Stern, ‘L’arrêt du 26 juin 1992 sur les exceptions préliminaires dans l’affaire de certaines terres à phosphates de Nauru’, (1993) 120 JDI 677–78, 683). 223   Case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility), ICJ Reports 1984, 436–37, the Court having rejected this argument. 224   Case of the United States diplomatic and consular staff at Tehran, ICJ Reports 1980, 19–20. The Court was not very clear about whether it was treating the question as a matter of jurisdiction or of admissibility, but the formulae it used suggested the latter. See also, the case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility), ICJ Reports 1984, 436–37 and the case of the Border and trans-border actions (Jurisdiction and admissibility, Nicaragua v Honduras), ICJ Reports 1988, 90–92. As to the whole question, see E Decaux, ‘L’arrêt de la ICJ dans l’affaire des actions armées frontalières et transfrontalières (Nicaragua v Honduras), Compétence et recevabilité’ (1988) 34 AFDI 156–58. 225   Case of Certain German interests in Polish Upper Silesia (Preliminary Objections, 1925), PCIJ, Series A, no 6, 21; and merits, 1926, PCIJ, Series A, no 7, 18–19. 226   Case of the United States diplomatic and consular staff at Tehran, ICJ Reports 1980, 21–22. Case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility), ICJ Reports 1984, 431 et seq. Case of the Aerial incident at Lockerbie (Interim measures of protection), ICJ Reports 1992, 11, 14–15. On this question, see E Klein, ‚Paralleles Tätigwerden von Sicherheitsrat und Internationalem Gerichtshof bei friedensbedrohenden Streitigkeiten‘, in Essays H Mosler (Berlin and other places, 1983) 467 et seq.; D Ciobanu, ‘Litispendence between the International Court of Justice and the Political Organs of the United Nations’ in L Gross (ed), The Future of the International Court of Justice, vol I (New York, 1976) 209 et seq.; TJH Elsen, Litispendence between the International Court of Justice and the Security Council (The Hague, 1986). A Pellet, ‘Le glaive et la balance. Remarques sur le rôle de la Cour internationale de Justice en matière de maintien de la paix et de la sécurité internationale’ in Essays S Rosenne (Dordrecht/Boston/London, 1989) 539 et seq.; E McWhinney, ‘The International Court as Emerging Constitutional Court and the Co-ordinate United Nations Institutions (especially the Security Council): Implications of the Aerial Incident at Lockerbie’, CYIL, vol 30, (1992) 261 et seq.; V Gowlland-Debbas, ‘The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie Case’, (1994) 88 AJIL 643 et seq.; L Condorelli, ‘La Corte internazionale di Giustizia e gli organi politici delle Nazioni Unite’ (1994) 77 RDI 897 et seq.; RSJ MacDonald, ‘Changing Relations between the International Court of Justice and the Security Council of the United Nations’, CYIL, vol 31 (1993) 3 et seq.



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significantly altered the subject of the claim and have eliminated the point of it;227 the renunciation of certain rights or claims;228 the prior termination of a legal relationship;229 the starting of a case in violation of an internal law of fundamental importance (Article 46 of the Vienna Convention on the Law of Treaties);230 the fact that a claim would be inappropriate in the sense that it would require the Court to fulfil the role of an appellate jurisdiction in a criminal matter – a role it would be obliged to decline;231 the fact that the claimant was trying, by means of its claim, to apply a standard that it did not itself comply with, so that the Court had to decline, under the principle of good faith;232 the fact that the award of a joint arbitral tribunal, in order to be the subject of a claim before the Court, would have to have been handed down in a certain context, as provided for in the applicable agreement;233 and so on. As can be seen, the range of arguments as to want of jurisdiction and admissibility are very varied indeed. In any international dispute, these issues become momentarily iridescent at the appropriate time and in light of the particular circumstances, before dissolving into the softer colours of the ever-mobile procedural skyscape.

S Torres Bernardez, ‘Some Considerations on the Respective Roles of the Security Council and the International Court of Justice with Respect to the “Prevention of Aggravation of Dispute” in the Domain of the Pacific Settlement of International Disputes or Situations’ in N Al-Nauimi and R Meese (eds), International Legal Issues Arising under the United Nations Decade of International Law (The Hague, 1995) 663 et seq. JE Alvarez, ‘Judging the Security Council’ (1996) 90 AJIL 1 et seq. On the Court’s attitude to highly political disputes, cf T Sugihara, ‘The Judicial Function of the International Court of Justice with Respect to Disputes Involving Highly Political Issues’ in AS Muller and others (ed), The International Court of Justice, (The Hague/Boston/London, 1997) 117 et seq. For a view of the Court’s jurisprudence, cf H Thirlway, ‘The Law and Procedure of the International Court of Justice, 1960–1989, Points of Substantive Law: International Organisations’ in BYIL, vol 67 (1996) 40 et seq., 45 et seq. 227   Case on Questions relating to the interpretation and application of the Montreal Convention of 1971 resulting from the aerial incident at Lockerbie (Preliminary Objections), ICJ Reports 1998, 24 et seq., 129 et seq.; the Court took the view that this objection was not, in the circumstances, exclusively preliminary in nature, since it was inextricably bound up with the substantive issues in the case. Consequently examination of the objection was deferred until the merits phase. 228   Case of Certain phosphate lands at Nauru (Preliminary Objections), ICJ Reports 1992, 247–50. 229   Case of Certain phosphate lands at Nauru (Preliminary Objections), ICJ Reports 1992, 250–52. Australia had claimed that the Application was inadmissible because the mandate had terminated and thereafter the Court could not entertain claims relating to its violation. The Court rejected this objection. 230   Case on the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Yugoslavia, Preliminary Objections), ICJ Reports 1996-II, 621–22, § 44. 231   Case of LaGrand, ICJ Reports 2001, 485–86, in which the Court rejected this argument. Case of Avena and other Mexican nationals, ICJ Reports 2004-I, 34, § 37, where this argument was also rejected. 232   Case of LaGrand, ICJ Reports 2001, 488–89, the Court taking the view that the evidence submitted by the USA was insufficient to demonstrate such a double standard. Case of Avena and other Mexican nationals, ICJ Reports 2004-I, 38, §§ 45–47, the Court insisting, amongst other things, on the ‘public policy’ nature of the norms in question, that is on the impossibility of pleading for the right not to respect such norms, objective ones that States were obliged to comply with in the interests of the good consular relations that are so essential to peaceful international relations. 233   It might perhaps have been possible to consider this an argument for want of jurisdiction, as a function of the requirements of the instrument founding jurisdiction (Article X of the Paris II Agreement of 1930). See the case of Pajzs, Csáky, Esterházy (1936), PCIJ, Series A/B, no 68, 50 et seq.

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4.  PRELIMINARY OBJECTIONS234

a)  Definition of a Preliminary Objection A Preliminary Objection is the procedural means by which a party to a case (normally the respondent) can raise objections to jurisdiction or admissibility. In French it is called an exception rather than an ‘objection’ because it carves out an ‘exception’ to the substantive trial of the action, asking the Court to deal with it as a matter of priority. The English language expression ‘objection’ simply denotes the fact that the party raising the Preliminary Objection ‘objects’ to the Court’s considering the substantive issues in the case. For obvious reasons, such objections need to be dealt with before the Court addresses itself to substantive issues. A court can examine the latter only if it has jurisdiction and the claim is admissible. These two concepts express the legal limits of the Court’s power to hear the case. They arise from the Statute (governing the Court’s jurisdiction) and from international law (such law arising from conventions, treaties and general international law) on the conditions under which a claim can be brought, with all the legally essential elements necessary to the proper constitution of the case so that it can be considered ready and ripe for judicial treatment. Since we are talking about rules of law, it is obvious that a court of justice, as an organ of the legal system, cannot ignore them or treat them in a discretionary way. However much the judges may desire to resolve a dispute, in order to maintain the peace, they are obliged to comply strictly with the legal limits to their activities and thus remain true to the law. For these reasons the Court cannot make any kind of ruling on substantive issues until it is satisfied that it has jurisdiction and, as the case may require, as to the propriety of the claim. There is thus a logical and consecutive connection between arguments going to jurisdiction and admissibility on the one hand, and the examination of substantive issues on the other; the former must be dealt with first. That being so, the central effect of lodging a Preliminary Objection is to ‘stop the clock’ – suspending proceedings on the substantive issues, so that prior and separate consideration can be given to the examination of the objections. Thus, according to the Dictionnaire de droit international public, a preliminary objection is ‘a legal argument raised in the course of the first phase of a case for the purpose of having the tribunal decide a preliminary question before examining the substantive issues: most often, the purpose of the objection is to prevent the tribunal from ever addressing the substantive issues’ (our translation).235 Under Article 79 paragraph 1: ‘Any 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 . . .’. These words clearly highlight the priority or ‘preliminary’ element. 234   cf IF Shihata, The Power of the International Court to Determine its own Jurisdiction, Compétence de la Compétence (The Hague, 1965). M Mabrouk, Les exceptions de procédure devant les juridictions internationales (Paris, 1966). Abi-Saab, above n 18. E Grisel, Les exceptions d’incompétence et d’irrecevabilité dans la procédure de la Cour internationale de Justice (thesis, Neuchâtel University, 1968). GG Fitzmaurice, The Law and Procedure of the International Court of Justice, vol II (Cambridge, 1986) 438 et seq. 107 et seq.; Rosenne, above n 45, vol II 837 et seq.; Guyomar, above n 6, 496 et seq.; Thirlway, above n 34, 128 et seq. See also, Bos, above n 207, 255 et seq.; G Morelli, ‘Questioni preliminarie nel processo internazionale’ (1971) 54 RDI 5 et seq.; S Rosenne, ‘The Reconceptualisation of Objections in the International Court of Justice’ in Essays G Morelli (Milan, 1975) 735 et seq., GL Rosato, Le eccezioni preliminarie davanti alla Corte internazionale di Giustizia (Rome, 1974). 235   Salmon above n 80, 474.



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Preliminary Exceptions are characterised by five particular features: −− Priority timing : The subject of a Preliminary Objection is logically anterior to the substantive issues, so that it must be possible to deal with it at a preliminary stage. Otherwise the objection is not exclusively preliminary; that is sometimes the case, so that an objection is in fact inextricably bound up with the substantive issues and substantive defence of the action. In such cases, these arguments are not disposed of at the preliminary stage. −− Purpose: The objective of a Preliminary Objection is to prevent the Court from examining the substantive issues, either for the time being, or at all. From the tactical point of view, this gives a respondent an additional line of defence. The respondent is not confined to the presentation of substantive arguments, but can take the time to deploy arguments designed to prevent the Court from considering the substantive issues, and later possibly arguments on the merits. −− Effect: It follows that the effect of a Preliminary Objection is to suspend (in some cases) or terminate (either provisionally or definitively) proceedings on the substantive issues. Instead, the Court engages in a different procedure, concerned solely with issues of jurisdiction and/or admissibility. −− Reasons for the Preliminary Objection procedure : The first reason is a legal one. A court of justice can act only on the basis of the law, and before it starts hearing the substantive case must therefore be satisfied that it has the right to do so. The second reason is concerned with the proper administration of justice and proper case management. It would be pointless, costly and wasteful of time to allow the parties to research, analyse and present their respective cases on the substantive issues if the fate of the proceedings were then to be decided on a preliminary and relatively limited point going to jurisdiction or admissibility. It is, therefore, better to deal with these questions sequentially. This means that, where there are preliminary issues, the procedure should concentrate entirely on them, leaving arguments on the merits until a later stage, once the Court has decided that it can hear them. −− Subject of a Preliminary Objection: Article 79, paragraph 1 provides as follows: ‘Any 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, shall be made . . .’. This means that an objection can be made to jurisdiction, admissibility, or some other category not identified in the Article, provided that it is preliminary (that is, prior to the merits). In negative terms, the Article allows a party to avoid stating whether its Preliminary Objection goes to jurisdiction or admissibility, and the Court to do the same. However, it should be added that the Court’s practice does not indicate that it feels any need to create a further category of Preliminary Objection in addition to jurisdiction and admissibility. It is therefore possible to say that, until now, all the Preliminary Objections that have been raised before the Court have been, at least by implication, objections either to jurisdiction or to admissibility.236 There have merely been situations in which the Court has preferred not to categorise the objection, either because of the intellectual difficulty of doing so, or from a wish not to create a hierarchy of objections. The Article does, however, leave the Court an obvious element of flexibility for the future. That seems entirely satisfactory given that it has not to date had any deleterious influence on the way the Court deals with these matters. 236   A finding that the Court ‘cannot exercise its jurisdiction’ in a certain context is obviously linked to jurisdiction, or can even alternatively be seen as a head of admissibility.

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b)  Preliminary Objections and Substantive Defences Preliminary Objections are presented to the Court in limine litis at the start of the proceedings, so that thereafter the case can proceed to deal with the merits without then being interrupted. Sometimes a defence based on or including Preliminary Objections is so bound up, objectively, with the merits, or considered to be so by one side or the other, that the Preliminary Objections in question cannot be disposed of on a preliminary basis. The Court can decide that an objection is not exclusively preliminary in nature, and transfer it to the merits stage (see below). Or a party may itself argue that a particular defence needs to be decided as part of the merits. Such an ‘objection’ is often called a ‘defence on the merits’. The objection continues, to some extent, to be ‘preliminary’ in nature; for that reason it will be considered at the beginning of the judgment on the merits. It can even, in an appropriate case, dispose of the entire case without more ado. However, the defence cannot be maintained at the preliminary level, because of its inextricable links with the substance of the dispute. Sometimes the Court decides that an argument of this nature is sufficient to deprive it of jurisdiction, either over a particular aspect of the case, or over the case in its entirety, or that in view of its decision on the point, it must declare inadmissible or reject one or more relevant claims without having to deal with the substantive merits of such claims. From the point of view of a respondent interested in raising Preliminary Objections,237 its litigation strategy is enriched with a range of possibilities, particularly including the following: it can argue for an objection as being exclusively preliminary and thus seek, right from the outset, to prevent any examination of the merits (in which case it must form its own view of the chance that the Court will agree that the argument is exclusively preliminary and/or accept the objection); it can decide not to pursue the Preliminary Objection and prepare its case on the merits, knowing that, although it will then be obliged to prepare the entire case, it will at least save the time that would otherwise be expended in separate proceedings on its Preliminary Objections. Therefore, defences on the merits can also arise from a more subjective category. It should consequently be recognised that the expression ‘substantive defence’ has dual implications. Such a defence can be an objective one by its very nature, and be substantive because it is, either in general terms or in the context of the particular case, impossible to deal with it at a preliminary stage, given its inextricable links with the substantive issues. For that reason it will be decided at the merits stage. A substantive defence can, however, also be subjective, in the sense that it depends on the will of the party advancing it. A State can pass up the right to advance an argument at the preliminary stage, doing so out of the desire not to delay the substantive proceedings. It will then reserve to itself the right to raise ‘preliminary’ defences at the merits stage, when it will be in a better position to hone the arguments, since the detailed case will by then have been prepared. This explains why the time limits set out in Article 79 are only relative ones. They are solely concerned with Preliminary Objections in the formal sense of the term and do not apply to substantive defences. In the Lockerbie case (1998), the Court stated that Article 79 was concerned only with objections that were ‘preliminary’ in nature, and that the expres  In relation to which it will, in effect, be the claimant.

237



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sion ‘preliminary’ covered only objections ‘the decision upon which is requested before any further proceedings on the merits’.238 Such an objection, when presented within the time limit laid down in Article 79 paragraph 1, has the effect of suspending the substantive proceedings, as provided in paragraph 5. There will be no such suspension if the objection is by way of a substantive defence. However, this does not make the defence inadmissible; all it does is to eliminate the parallel procedure and the suspension, which are the characteristics of objections raised as preliminary matters. It is certainly possible to imagine circumstances in which an absence of objection to jurisdiction raised in limine litis might be considered a prorogated acceptance of that jurisdiction.239 A respondent which makes no objection to jurisdiction at the preliminary stage and which does not reserve the right to raise objections (whether it identifies the category or not) at the merits stage, thus runs a certain risk of having to face the argument that it has consented to the jurisdiction on a prorogated basis. This is particularly true if the other party invokes an argument of forum prorogatum. Apart from that hypothesis, a party can raise defences of all kinds at the merits stage. The Court had occasion to apply that rule in the case of Avena and other Mexican nationals (2004).240 At the merits stage, the USA had raised four objections to jurisdiction and five to admissibility. The Court returned to this procedural aspect in the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Serbia and Montenegro, merits, 2007),241 in which it confirmed its earlier jurisprudence. It should not be thought that this problem arose only recently, even if it has perhaps been aggravated by the revision of Article 79, paragraph 1 in 2000 (see below section (c)). The PCIJ had already been faced with these questions. In the case of the Rights of minorities in Upper Silesia (Minority schools, 1928), Poland, the respondent, raised an objection to subject-matter jurisdiction at the time of its ‘duplique’ (rejoinder). Germany, which was the applicant, asked the Court to reject this objection on the basis that it was presented too late under the then Rule 38. The Court rejected this argument, relying on the same arguments as the present Court: The object of this article [on preliminary objections and the time limits for filing them] was to lay down when an objection to the jurisdiction may validly be filed, but only in cases where the objection is submitted as a preliminary question, that is to say, when the respondent asks for a decision upon the objection before any subsequent proceedings on the merits.242

Except for the acceptance of the Court’s jurisdiction on the forum prorogatum basis (which it is too late to dispute at the merits stage), it is thus possible to raise an objection at a later stage, until the merits phase. In the Borchgrave case (1937), the problem arose again although in slightly different terms. The agent of the Spanish government, which was the respondent, withdrew a Preliminary Objection because he was persuaded that the objection was so closely bound up with the merits that it would be better to plead it as a substantive   ICJ Reports 1998, 26, § 47 and 131, § 46.   Case of the Appeal concerning the jurisdiction of the ICAO Council, ICJ Reports 1972, 52, § 13. However, this was a question of consensual jurisdiction, which depends solely on the parties’ wishes, and the position would not have been the same if the issue had related to the Court’s personal jurisdiction, which is a question of inter­ national public policy (ordre public) that the Court must raise motu proprio: case on the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Serbia and Montenegro, merits, 2007), § 102. 240   ICJ Reports 2004-I, 28–29, §§ 22–24. 241   § 101. 242   PCIJ, Series A, no 15, 22. 238 239

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defence. The Court accepted this. It rejected the Spanish request to join the objection to the merits, on the ground that the formal withdrawal of the objection left nothing to join, while at the same time indicating by way of reminder that Spain was perfectly free to raise the argument again at the merits stage.243 It can also happen that a State is simply not in a position to raise an objection to jurisdiction or admissibility at the preliminary stage. This may be the case if, for example, the applicant’s claim has been amended late. The respondent can react to the amendments by raising arguments denying jurisdiction or admissibility, or arguments of some other nature. This in the case of AS Diallo (Republic of Guinea v DRC, 2010),244 Guinea’s Reply had made certain claims in respect of the events of 1988–89, which had previously been overshadowed by other matters. The DRC responded to this with two objections to admissibility, one on the basis that the amendments were too late, the other on the basis that internal remedies had not been exhausted in relation to those events. Obviously, in such circumstances objections to jurisdiction and admissibility can be made only as substantive defences, not because of their nature, which may well remain ‘preliminary’, but in view of the stage which the proceedings have reached at the time where it becomes possible to put the objections forward. The Court shows a desirable degree of flexibility as to such substantive defences. Its flexibility prevents the slowing down of the proceedings, damage to the proper administration of justice, and sometimes prejudice to the equal treatment of the parties (as the Diallo case shows). The party raising the objections must be in a position to choose whether to do so in limine litis, then engaging in a parallel procedure which may last quite a long time, or whether it prefers to make its claims at the merits stage, when it has fully mastered the case and the arguments, when the Court is fully seised of all the materials and can finally take a position. If there is no reason of public policy militating against it, there is no reason to deny parties such freedom and flexibility.

c)  Formalities for Presenting Preliminary Objections The Rules, in provisions which are very important and are often cited, provide in almost luxuriant detail for the formalities and procedure for raising Preliminary Objections (not being substantive defences). The text reads as follows: Article 79245 1. Any 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 merit, shall be made in writing as soon as possible, and not later than three 243  PCIJ, Series A/B, no 72, 169–70. The Court said: ‘Any defence to be made on behalf of the Spanish Government in connection with the merits of the case must be presented in the regular way in the course of the proceedings on the merits.’ 244   §§ 21 et seq. 245   The amendment came into force on 1 February 2001. All cases begun prior to that date remain governed by Art 79 of the Rules adopted on 14 April 1978. In the amended Art 79(1), the expression ‘as soon as possible, and not later than three months after the delivery of the Memorial’ replaces the words ‘within the time limit fixed for the delivery of the Counter-Memorial’ which previously figured in the text of this paragraph, as adopted on 14 April 1978. Paragraphs 2 and 3 of the amended Art 79 are new. The old paragraphs 2–8 have been renumbered and are now paragraphs 4–10 respectively.



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months after the delivery of the Memorial. Any such objection made by a party other than the respondent shall be filed within the time-limit fixed for the delivery of that party’s first pleading. 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. 4. The preliminary objection shall set out the facts and the law on which the objection is based, the submissions and a list of the documents in support; it shall mention any evidence which the party may desire to produce. Copies of the supporting documents shall be attached. 5. Upon receipt by the Registry of a preliminary objection, the proceedings on the merits shall be suspended and the Court, or the President if the Court is not sitting, shall fix the timelimit within which the other party may present a written statement of its observations and submissions; documents in support shall be attached and evidence which it is proposed to produce shall be mentioned. 6. Unless otherwise decided by the Court, the further proceedings shall be oral. 7. The statements of facts and law in the pleadings referred to in paragraphs 4 and 5 of this Article, and the statements and evidence presented at the hearings contemplated by paragraph 6, shall be confined to those matters that are relevant to the objection. 8. 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. 9. 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. 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. 10. Any agreement between the parties that an objection submitted under paragraph 1 of this Article be heard and determined within the framework of the merits shall be given effect by the Court.

These provisions, and the related practice, give rise to a series of questions that merit more detailed examination. Right to introduce a Preliminary Objection (‘Who . . .?’). Any party to the proceedings can raise a Preliminary Objection, whether in a unilateral application case (which is normally the situation) or in a special agreement case (which is unusual246). In cases begun by unilateral application, it is common for the respondent to present Preliminary Objections. The respondent has an interest in avoiding having the substantive dispute decided, or at least in setting up hurdles to slow the proceedings down. In relation to its Preliminary Objections, the respondent becomes the claimant. The parallel procedure thus reverses the parties’ roles,247 with all the procedural consequences that this entails, for example in relation to the burden of proof. In exceptional circumstances, however, it is possible for the applicant itself to raise a Preliminary Objection. This happened to Italy in the case of the Monetary 246   Preliminary Objections were first introduced into a special agreement case in the Borchgrave matter (1937), PCIJ, Series A/B, no 72, 158. 247   Thus the respondent as to the merits becomes the claimant as to the Preliminary Objections and the claimant as to the principal issues becomes the respondent to the Preliminary Objections proceedings.

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gold seized at Rome in 1943 (1954).248 There is nothing in the Court’s procedural law to prevent it. A party can decide not to raise Preliminary Objections, and can signify accordingly either by an express renunciation of the right, or by implication. There is an implicit renunciation of the right whenever no objection is actually raised.249 As we have seen, however, that does not mean that the renouncing party cannot raise the same issues as substantive defences. A clause in a special agreement, or in some other agreement between the parties, by which the parties undertake, or the respondent alone undertakes, not to raise Preliminary Objections, either generally, or subject to certain conditions, is not invalid per se. The parties can have an interest in ensuring the rapid progress of the substantive case. But the possibility of raising substantive defences may then remain. Such an agreement is in no way contrary to the Statute, since the right to raise Preliminary Objections is entirely facultative. For these reasons the Court has no reason (and indeed no power) to declare such an agreement void. Moreover, Article 79, paragraph 10 expressly provides that the Court will give effect to an agreement between the parties designed to avoid a separate Preliminary Objections phase, sending the possible objections to the merits phase or ruling them completely out. That provision reads as follows: ‘Any agreement between the parties that an objection submitted under paragraph 1 of this Article be heard and determined within the framework of the merits shall be given effect by the Court.’ So, if an objection is raised in violation of the agreement, the Court will declare it inadmissible because it is contrary to the applicable provisions. A party can also withdraw one of its Preliminary Objections, or indeed all of them. This happened, for example, in the Borchgrave case (1937). The Spanish government withdrew an objection, admitting that it was not preliminary in nature.250 The withdrawal can be unilateral, unlike discontinuance of an action. Third States not participating in the case except on an incidental basis may not raise Preliminary Objections. That is generally the case as regards States intervening under Articles 62 or 63 of the Statute. Normally they do not become parties to the case, and therefore do not enjoy a party’s rights. It is possible, however, to intervene ‘as a principal party’ although so far that has never happened. In such a case, the intervening State becomes a full party and can exercise all a party’s rights. Conversely, the parties to the case can always advance arguments as to the legal right of the third State to intervene. They can, for example, question whether it has the ‘interest of a legal nature’ required by Article 62 of the Statute in the case of a State requesting to intervene. But these will not be Preliminary 248   ICJ Reports 1954, 21 et seq. By a Declaration in 1951, France, the UK and the USA envisaged that an arbitration award they were seeking would recognise that a certain quantity of monetary gold seised at Rome by Germany in 1943, and now in their possession, would be recognised as belonging to Albania. The three States were agreed that, in that eventuality, the gold should be reserved to the UK in partial satisfaction of the Court’s 1949 decision in the Corfu Channel case, unless Italy or Albania themselves seised the Court of claims on the gold. The arbitral award of 1953 recognised that the gold belonged to Albania. Thereafter, Italy seised the Court, as authorised by the 1951 Declaration, and claimed the gold in satisfaction of loss caused to Italy by an Albanian law of 1945. Subsequently, however, Italy presented a Preliminary Objection to the Court’s deciding the dispute without Albania’s participating in the proceedings. Italy argued that the Court had no jurisdiction. This (at first sight singular) point of view can be explained by the fact that Italy needed to seise the Court in order to preserve its claims (ie that the gold should not be remitted to the UK), while nevertheless being aware that a decision on the substantive issue would probably be unfavourable to it. The most ingenious course, in the circumstances, was to seise the Court but then to try to prevent its deciding the substantive issues. 249   See, eg the case of the Dispute concerning navigation and connected rights (Costa Rica v Nicaragua) 2009, § 28. 250   PCIJ, Series A/B, no 72, 169–70.



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Objections in the technical sense of the term, since proceedings on the merits will not be suspended. The Court will deal with such arguments in the Order it makes when deciding whether to admit the intervention. Time limits for raising Preliminary Objections (‘When . . .?’). By its very nature, a ‘Preliminary’ Objection must be brought to the attention both of the Court and of the other party in limine litis, that is, in principle before any debate begins about substantive issues. Exactly what time limits apply? The former Rule 62, paragraph 1 of 1946 required Preliminary Objections to be raised not later than the expiry of the time limit for delivering the first written pleading in the case, that is the Memorial (for the claimant) and the Counter-Memorial (for the Defendant) or, in special agreement cases, the Memorial. This link to the first written pleading setting out a party’s case was made because it was believed that the Court must at least take summary cognisance of the case before deciding objections to its jurisdiction, and even more so before deciding objections to admissibility. The current Article 79, paragraph 1 contains a refined version of this concept: Any 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, shall be made in writing as soon as possible, and not later than three months after the delivery of the Memorial [being the first pleading].

Two aspects of this provision call for comment: first, it invites the parties to submit their Preliminary Objections ‘as soon as possible’; second, it gives them three months from the delivery of the Memorial. ‘As soon as possible’: This first element responds (in a way) to the question whether it is either possible or desirable that Preliminary Objections be raised even prior to the delivery of the parties’ first pleadings.251 The former text (1978) was not clear on this point: it stated the terminus ad quem, but not the terminus a quo. Some judges took the view that Preliminary Objections should not be raised prior to the delivery of the Memorial, since otherwise a respondent could, in effect, suspend the substantive proceedings at a very early stage, thus perhaps preventing the claimant’s introducing other heads of jurisdiction or otherwise developing its application.252 However, it is not readily apparent that this gives rise to problems important enough to be taken into consideration: the claimant still remains free to develop its claims. If the respondent thinks it knows enough about the claim to put in its Preliminary Objections at an early stage, that makes it possible to accelerate the whole procedure. This was doubtless the reason why the ICJ decided, in the case of the Aerial incident of 3 July (1989), that a Preliminary Objection can be lodged prior to the delivery of the Memorial.253 After a delay of a decade, this jurisprudence led to a revision of the Rules. Article 79, paragraph 1 of the Rules of 2000 was amended into its present form, permitting (and in fact encouraging) parties to present their Preliminary Objections   See Thirlway, above n 34, 133–35.   Joint Dissenting Opinion of Judges Bengzon and Jiménez de Aréchaga in the Fisheries jurisdiction case, ICJ Reports 1972, 185, 192. 253   ICJ Reports 1989, 134: ‘Whereas, in accordance with Article 79, paragraph 1 of the Rules of Court, while a respondent which wishes to submit a preliminary objection is entitled before doing so to be informed as to the nature of the claim by the submission of a Memorial by the Applicant, it may nevertheless file its objection earlier.’ 251 252

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‘as soon as possible’. No doubt the Court was concerned to speed up proceedings before it, which, in the course of the 1990s, had become both more numerous and more protracted. ‘Three months after the delivery of the Memorial’: The precise reasons for the second aspect, the time limit of three months after delivery of the Memorial, have not become public knowledge. It is particularly difficult to see why the number three was chosen. It seems that the Court wanted to give the respondent time to examine the Memorial and make up its mind about possible objections. Three months probably seemed about long enough, without giving so much time as to make procrastination possible. Under the Rules of 1946 and of 1978 (until the revision of 2000) the respondent could still raise Preliminary Objections up to the stage of the Counter-Memorial, which, in unilateral application cases, was the respondent’s first pleading. Under the Rules as amended in 2000, that would seem to be no longer possible unless the Counter-Memorial is delivered within three months following the Memorial. The obvious aim of the new rules is to accelerate the Court’s procedure, to ensure that Preliminary Objections are identified as soon as possible and to confine argument about them to the phase immediately subsequent to the delivery of the Memorial. It must, however, be added that the elements eliminated from the domain of Preliminary Objections qua Article 79 may nevertheless find their way back into the case as defences on the merits in the final phase of the case. In other words, if the respondent no longer has enough time to prepare all its objections in the three months following delivery of the Applicant’s Memorial, there is at least a possibility or risk that its objections will simply be transferred to the merits phase. It is no accident that, since the adoption of the new Rule, the Court has, several times, had to deal with defences, of various kinds, that were voluntarily deferred to the merits phase. As regards objections to the formal validity of a procedural document or step, the rule is that such objections must be made immediately the right to object arises (that is, within a reasonable period, which is interpreted strictly). The Court’s attitude to procedural defects varies according to whether they appear in the document initiating the case, or arise at a subsequent stage. As we have already seen,254 the Court’s approach is not formalistic, and its tendency is to allow the correction of defects in such documents. On the other hand the Court treats some defects with greater severity, in order to guarantee equal treatment to the parties and ensure the proper management of cases. So, for example, the Court can exclude new evidence and documents if they are presented late.255 A party can present a Preliminary Objection and explicitly reserve the right to raise other ones later, as the case develops, especially if the first objection is rejected. This is how Guatemala proceeded in the Nottebohm case (1953–55). Provided that the Preliminary Objections are still presented within the time limits imposed by the Rules, there is nothing to object to in such successive raising of objections. It is, however, important that they should not be objections of the same nature, since otherwise a prior decision may make the question already res judicata. In the Nottebohm case, the Court at first decided on its own jurisdiction, in a judgment that constituted a res judicata. It was nevertheless permissible for Guatemala later to bring forward objections to admissibility, still within the applicable time limit. Guatemala did so successfully, the Court ruling accordingly in 1955. If, at that second stage, Guatemala had raised further objections to jurisdiction, the Court would   Above, section 1(c)) on the documentation for initiating cases.   See, eg the case of the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Serbia and Montenegro, 2007) § 54. 254 255



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doubtless have rejected them as incompatible with the res judicata of its prior decision. In a similar way it had already rejected Albania’s objection to its jurisdiction in the last phase of the Corfu Channel case (1949),256 which was concerned with fixing the amount of the indemnity. It should also be remembered that a late objection to jurisdiction risks being rejected on the forum prorogatum basis: if you plead to the merits without raising an objection to the jurisdiction, it is equivalent to formally accepting its jurisdiction, so that there can then be no going back.257 To sum up, then, the successive presentation of objections is permissible, provided it respects the rules on timing. If, however, the arguments are in the same category, it is not possible to present new ones at a later stage unless the State presenting them had expressly reserved the right to do so and is able to explain that it was unable to raise the point at an earlier stage. What are the normal consequences of the late submission of a Preliminary Objection? If the objection is not truly ‘preliminary’ in nature, but ought rather to be seen as a substantive defence, it will, in that sense, not be ‘late’ until the final stages of the oral phase have been reached (at which point the opposing party would have no further opportunity to respond) and the Court has started deliberating on its decision. Similarly, the Court may decide that an objection is no longer to be treated as ‘preliminary’ because it has been submitted late, and that for this same reason it must be deferred to the merits phase, as a substantive defence. So the late submission of an objection is not necessarily fatal to it. The case of Avena and other Mexican nationals (2004) provides an object lesson in this regard. Mexico claimed that the USA’s objections were late; the Court replied that, in the circumstances, the objections in question should simply be considered to be non-preliminary.258 The clear tendency of the Court is thus not to bar the way to such an objection by ignoring it completely, which would be a high line to take with a sovereign State. More often than not, the Court prefers to defer consideration of the objection to the merits phase. The lateness of the objection does, however, mean that the clock is not stopped, and the substantive proceedings are not suspended until the point is decided.259 From the point of view of legal policy, the Court ought, in principle, to take a strict line with late objections if the party raising them desires them to be treated as preliminary. The Court cannot permit a State to slow down the proceedings by submitting Preliminary Objections late, particularly since the benefit of an objection is by no means entirely lost just because it is turned into a substantive defence to be heard later. Might it be otherwise if the party initiating the proceedings agrees that the delay should be overlooked? Might it indeed be otherwise if it seems to be in the interests of the good administration of justice to overlook the delay? Although one cannot exclude the possibility that, in very particular circumstances, it might be desirable to allow a late opening of proceedings on jurisdiction and admissibility, especially if both sides agree, nevertheless there are obvious reasons for the Court to treat any such application with the greatest reserve. Such reserve is even more firmly indicated in a period when the Court is almost buckling under its caseload and is faced with proceedings which are often excessively protracted. A certain degree of flexibility might be desirable if it served a useful purpose in the particular case, by concentrating   ICJ Reports 1949, 246.   Case of the Rights of minorities in Polish Upper Silesia (1928), PCIJ, Series A, no 15, 22. 258   ICJ Reports 2004-I, 28–29, §§ 22–24. 259   As already noted, Preliminary Objections raised within the time limits have the effect of suspending the proceedings on the merits, and bringing in a separate phase of the proceedings, in which the Court takes cognisance only of the issues of jurisdiction and admissibility. A late objection does not have this effect. 256 257

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the debate on a question of jurisdiction or admissibility that has been raised late if it seemed likely that the point would be decisive (it is improbable that in such circumstances the argument would be left so late, but it is not impossible). In such a case, it might well seem pointless, even counter-productive, to force the parties to deal at one and the same time with the late objection (likely to be decisive) and the entirety of the other issues on the merits (which it would have to address fully, given that no one could be sure that the objection would prevail). In such a case, the danger would be that the overall proceedings would be pointlessly prolonged: instead of gaining time, one would be wasting it. A ‘preliminary’ treatment of the objection seems acceptable in such a case, as a matter of the good administration of justice. The Court may therefore reasonably consider it right to decide the objection. The fact that the Court does possess a certain latitude as to how and when to make decisions can also be seen from the case of the Maritime delimitation and territorial questions between Qatar and Bahrain (Jurisdiction and admissibility, 1994/1995). That case concerned no late-presented Preliminary Objection, but the Court wished to invite the parties either to find a negotiated solution (implicitly invoking its old point that judicial resolution is only a ‘substitute’ for bilateral agreement), or to lay the dispute before it in a more complete manner than they had so far done. In 1994 the Court therefore decided to give the parties the opportunity to submit to the Court the totality of their dispute ‘within a specific time-limit’,260 if they did not reach agreement on the substantive issues. When they then still failed to reach agreement, the Court had to take up the judicial threads, knitting them ultimately into its substantive decision of 1995. Mutatis mutandis, if the Court thinks it necessary in the interests of the good administration of justice, it can interpose a decision on a late objection between the date it is lodged and the ultimate decision on the merits. The Court has all the powers, both inherently and under its Statute, that are necessary to ensure the smooth working of its own procedures. Perhaps, Article 79, paragraph 2, could also be quoted to that effect: ‘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.’ This reflects the procedural leeway the Court possesses. The Court’s right and duty to raise objections ex officio. The Court is obliged to raise objections to jurisdiction and admissibility of its own volition, if they affect the proper administration of justice, or the Court’s own judicial integrity, or the collective interests of the members of that particular international community that is created by the Statute. On the other hand, the Court is under no obligation to do so, and in practice will not do so, if the objections concern only the interests of one of the parties. Objections of that kind are within the sole control of the party affected. It is for that party to decide whether it wants to raise the argument, or whether it prefers to forego the opportunity to do so. Overall, then, the Bench’s role in this field is not entirely passive; it is not limited to ruling on objections raised by parties. The Court also has an active role, since the Bench is the master of the Court’s procedure and is the guardian of the Court’s judicial integrity. Thus the general rule is that the Bench will not, of its own volition, raise arguments dependent on the will of the parties – that is as to its jurisdiction-by-consent-of-the-parties. A party is free to accept 260   ICJ Reports 1994, 127, (3) and (4). See also, the dissenting opinion of Judge Oda, ibid, 134 et seq., who thought the Court should have ruled definitively at that stage. By using the forms of a decision to invite the parties to submit to it a different dispute, the Court was, in Judge Oda’s view, operating as a conciliator rather than a judicial Bench.



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the Court’s jurisdiction at any time, including via the forum prorogatum mechanism. It is not for the Court to stand in its way. It would be wrong for the judges to substitute themselves for the parties in choosing whether or not to have the case decided judicially. To do so would contravene the maxim that, absent some sound objective reason to do so, the Court must not set up obstacles to the judicial resolution of a dispute (boni judicis est ampliare jurisdictionem). Doubtless the Court has legal power to raise, of its own volition, a defect relating to its consensual jurisdiction, given that the judges have charge of their own procedure so that the Court can, at any time, seise itself of any argument relating to its jurisdiction. For the reasons indicated above, the Court’s practice has been to abstain, and rightly so. That does not mean that the Court could not have acted otherwise if very particular circumstances had required it in a particular case, since, on exceptional occasions, the proper functioning of justice can be connected to an issue of consent. The Court did take action in the case on the Administration of the Prince von Pless (Preliminary Objection, 1933) in which the Court stated that it ‘raises proprio motu the question whether the Court has jurisdiction to entertain a claim for an indemnity put forward by a State, in its capacity as Member of the Council, on the basis of Article 72, paragraph 3, of the Geneva Convention’,261 since ‘this point may be of considerable importance in determining the existence and scope of a difference of opinion between the two Governments within the meaning of Article 72, paragraph 3, of the Geneva Convention’262 and was also relevant for determining the relationship between that claim and other ones. In other words, the Court took the view that the point was one it ought to raise of its own volition, since it enabled the Court to clarify an important aspect of the German claims’ nature and scope. On the other hand, the Court must, of its own volition, raise issues that go to the statutory limits of its activities, as well as issues affecting its own judicial integrity. So it must of its own volition examine the question of whether the conditions for its general jurisdiction ratione personae and materiae are satisfied, as also the conditions for the general admissibility of claims. Similarly, it does as a matter of practice (though without being under an obligation to do so) examine, on this same motu proprio basis, certain arguments relating to subject-matter admissibility, such as parties’ interest in taking legal action. At all events, this is what it did in the cases of the Administration of the Prince von Pless in 1933263 and of South-West Africa in 1966.264

d)  Effects of Preliminary Objections: Scope of Decisions Preliminary Objections raised within the prescribed time limits have a dual effect, namely the automatic suspension of proceedings on the merits, and the opening of a new proceeding on the subjects of jurisdiction and/or admissibility (that is, on the subject matter of the Preliminary Objections), the latter featuring a reversal of roles between the respondent and the claimant.265 Rule 79, paragraph 5 provides that: ‘Upon receipt by the Registry of a preliminary objection, the proceedings on the merits shall be suspended . . .’. The Court will ask the parties to put forward their arguments exclusively directed to the questions raised   PCIJ, Series A/B, no 52, 16.   Ibid, 14. 263   Ibid, 15. 264   ICJ Reports 1966, 19. 265   Abi-Saab, above n 18, 224 et seq. 261 262

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by the Preliminary Objections, that is as to jurisdiction and admissibility. Once it has been informed of those arguments, the Court will give a judgment on them. As Rule 79, paragraph 9 provides: 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. If the Court rejects the objection or declares that it does not have an exclusively preliminary character, it shall fix time-limits for the further proceedings.

Ever since the days of the PCIJ, it has been accepted that proceedings on Preliminary Objections are not identical to those on the merits, so that the Court can deal with the two phases even when it is differently composed on the two occasions.266 Judgments on Preliminary Objections can involve the following variants: 1) Complete rejection of all the Preliminary Objections. If a party raises objections A, B, C, D, E . . . and the Court considers that it cannot accept any of them, it will be obliged to examine them one by one, and reject them in turn. In rejecting all of them, the Court will declare that they are ill-founded and that consequently it is not prevented from deciding the merits. At this point the proceedings on the Preliminary Objections come to an end, and the Court fixes the time limits for the parties to present their arguments on the merits. 2) Recognition that a Preliminary Objection is well founded, bringing the proceedings to an end. If the Court accepts a Preliminary Objection which deprives the Court of all jurisdiction in the case, or makes the claim entirely inadmissible, the Court can, within certain limits, deal only with that particular objection, because, once it declares the objection well-founded, the case comes to an end without the Court’s needing to examine all the other grounds of objection. The economy of the process, and the fact that the Court’s work in this regard is essentially practical rather than an exercise in legal doctrine, make it unnecessary for the judges to examine all the grounds of objection. In effect, whether the Court accepts one, two or more of them, there are only two possible results: either the Court has no jurisdiction or the claim is inadmissible. Similarly, the Court is in no way bound to examine the objections in the order proposed by the parties. It may do so for convenience, or, it may deal with them in a different order, the better to serve the economy of the process or to follow its own chain of argument more coherently. The problem remains, however, that objections do fall into two categories, and those that go to jurisdiction must, in principle, be dealt with prior to those that go to admissibility (see below section (e)). As will become apparent, this principle, in itself perfectly correct, is not an absolute one. Whatever the order, in the final analysis the Court will, in the example we are considering, rule that Preliminary Objection A is well founded and that consequently the Court has no jurisdiction, or, as the case may be, that the claim is inadmissible. Consequently the proceedings (including the suspended proceedings on the merits) terminate and are taken out of the Court’s list. 3) Recognition that one or more Preliminary Objections are well founded, restricting the scope of the proceedings. It is also possible for a Preliminary Objection not entirely to exclude 266   See the discussion by the Court in the context of the case of Pajzs, Csáky, Esterházy (1936) PCIJ, Series E, no 16, 181. For the jurisprudence of the ICJ, see, eg the two phases of the case of South-West Africa in 1962 and 1966, where the difference in the Court’s composition had a significant impact on the decisions: ICJ Reports 1962, 319 et seq. and ICJ Reports 1966, 6 et seq.



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jurisdiction or admissibility but to do so partially. If the Court accepts such a Preliminary Objection, the scope of its jurisdiction, or the scope of the admissible claim, is consequently reduced, but not entirely excluded. Equally, the Court might reject part of a Preliminary Objection while accepting another part of it, in a case where the purpose of the objection is to deprive the Court of all jurisdiction or to have the claim declared entirely inadmissible. Then, the result is the same. The Court affirms its jurisdiction within a restricted field, or it treats the claim as admissible within circumscribed limits. Either total or partial acceptance of a Preliminary Objection which is only a partial one, or the partial admission of a Preliminary Objection going to the entirety of jurisdiction or admissibility, thus leads to an affirmation of the Court’s jurisdiction, but only in respect of the remaining part of the original claim. For example, if the Court accepts a Preliminary Objection ratione temporis that there is jurisdiction only as to events occurring after a certain date, its jurisdiction is limited, and in so far as the claim concerns events prior to the date in question, it cannot proceed to the merits phase. In consequence of all this, the Court will declare in a judgment on the Preliminary Objections that it rejects objections A, B, C, and D, and accepts objections E, F and G, either entirely or partially, and that in consequence it has jurisdiction to decide the merits of the case within those limits, or that the claim within those limits is admissible and can proceed to a decision on the merits. The Court will then fix the time limits for the parties to present their arguments on restricted merits issues. Ultimately, the Court will decide those restricted issues unless, of course, the parties raise new substantive defences to prevent it doing so, and the Court accepts one or more of them; or unless the case is discontinued. Scope of a judgment on Preliminary Objections: is it res judicata? What is the scope of a decision on jurisdiction and/or admissibility, disposing of a Preliminary Objection? The first general rule is that the decision must not and does not prejudice the parties’ cases on the merits. Preliminary Objections are detached from the merits. It is that very fact which justifies their being treated on a preliminary basis. If an objection cannot be separated from the merits, and properly decided without deciding the merits, it must be deferred to the merits phase. Next, is a judgment on a Preliminary Objection res judicata? Can the Court, in its decision on the merits, effectively quash its decision on the Preliminary Objection? For a long time, this question was a controversial one.267 Certain authors,268 and the Court itself, thought a judgment on a Preliminary Objection definitive, and that since there was no right of appeal, it constituted a res judicata. In the Corfu Channel case (determination of the amount of reparations), the Court felt able to state:   See Abi-Saab, above n 18, 243 et seq.   Independent opinion of Judge Morelli, South-West Africa cases, ICJ Reports 1966, 99; dissenting opinion of Judge Koretsky, ibid, 239; dissenting opinion of Judge Jessup, ibid, 331–32; Padilla Nervo, ibid, 460; Mbafeno, ibid, 494–95. See also, de Visscher, Aspects récents du droit procédural de la Cour internationale de Justice (Paris, 1966) 178; P de Visscher, ‘Cours général de droit international public’ CCHAIL, vol 136, 1972-II, 185 (arguing that the contradiction between the two South-West Africa judgments of 1962 and 1966 was a judicial error, the author assumed the 1962 judgment to be binding on the Court); R Bernhardt, ‘Article 59’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 10, 1241. One should also note that Art 71 of the Hague Convention on the Peaceful Settlement of Disputes contemplates that judgments on Preliminary Objections will have definitive effects. The contradiction between the judgments of 1962 and 1966 in the South-West Africa cases has often been referred to, and indeed was again highlighted recently by M Bedjaoui, ‘L’égalité des Etats dans le procès international – un mythe?’ in Essays JP Cot (Brussels, 2009) 23, arguing that there was a glaring contradiction between the two pronouncements. 267 268

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[T]he Albanian Government disputed the jurisdiction of the Court with regard to the assessment of damages. The Court may confine itself to stating that this jurisdiction was established by its Judgment of April 9th, 1949; that, in accordance with the Statute (Article 60), which, for the settlement of the present dispute, is binding upon the Albanian Government, that Judgment is final and without appeal, and that therefore the matter is res judicata.269

Another way of looking at it would have been to say that, since the preliminary judgment must not prejudice the merits, the Court was free to alter its view on any point already dealt with in its judgment on the Preliminary Objections, if it touched on a substantive point that the Court was deciding at the merits stage.270 This was the approach taken by the Court in the South-West Africa cases (second phase, 1966): It is contended that the question of the Applicants’ legal right of interest was settled by that Judgment [1962] and cannot now be reopened . . . 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 . . . 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 and not as the object of that decision. It cannot rank as a final decision on the point of merits involved.271

This approach took its distance from the Court’s prior jurisprudence, and is open to dispute on several grounds. A judgment on Preliminary Objections is not an interlocutory one: it is not a mere Order; it is a judgment. The Court cannot re-open its judgments as and when its own internal majorities change; it cannot make contradictory decisions, because to do so would seriously undermine the proper administration of justice and also the Court’s international prestige. It is therefore not surprising that, 30 years later, the Court abandoned its ‘derogatory’ jurisprudence of 1966. However, it did so in a case which does show how very problematical it can be to hold to the implications of a preliminary judgment when its factual basis has been shown to be false. This was the case on the Application of the Convention for the prevention and punishment of the crime of genocide (merits, 2007). In it, the Court held firmly and unshakably to its 1996 decision on the Preliminary Objections, when it ruled that it did have jurisdiction. At that time, there was no clear answer to the question whether Serbia and Montenegro was a UN Member and thus entitled to appear before the Court as a party. The Court was therefore able to base itself on Serbia’s official claim to be the continuation of the former Federative Socialist Republic of Yugoslavia, and to have inherited that State’s status as a UN Member. In 2007, the question was decided in the contrary sense: Serbia and Montenegro had abandoned its claim to continuous membership; the majority of UN Members had already rejected it; hence Serbia and Montenegro had to apply for membership in the UN as a new State. In the interim it had thus come to appear that Serbia and Montenegro did not enjoy legal continuity with the old Federative Socialist Republic of Yugoslavia, but was in fact a new State. In that case, it was not a UN Member until admitted as such, upon following the procedures laid out in Article 4 of the Charter. Consequently, the Court had no jurisdiction ratione personae at the time the case began, and nor did it have jurisdiction in 1996. Despite all this, the Court in 2007 affirmed that its   ICJ Reports 1949, 248.   Bos, above n 207, 317 et seq. 271   ICJ Reports 1966, 36–37. 269 270



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1996 judgment possessed the force of res judicata,272 even though its factual basis of 1996 had, by 2007, turned out to be materially false. It sufficed that the 1996 decision was ‘true’ at the time it was made. That was the only relevant criterion. The old adage is res judicata pro veritate habetur – ‘that which is res judicata must be taken as true’. So must the adage itself, and neither of these truths can be permitted to flinch in the face of subsequent events. In this context, judicial ‘truth’ is, as a matter of logic, a formal theorem rather than a reality. So it was that in a case raising the problem in its most acute form the Court returned to its earlier jurisprudence of 1949, abandoning the byways of 1966. Are there any exceptions to the res judicata rule applicable to Preliminary Objections? We can at least begin by rejecting three misconceived ‘exceptions’. First, the Court can, of course, examine questions of jurisdiction and admissibility when they have not been decided in the earlier judgment.273 In this way jurisdictional issues were examined in two successive phases of the Corfu Channel case (1948–49)274 and of the Fisheries Jurisdiction cases (1973–74).275 In these cases, there was a kind of lacuna in the first judgment; the Court was able to hear some arguments of the subsequent phase, untroubled by the res judicata implications of the preceding judgment. Obviously the Court can interpret its prior judgments in such a way as to identify which parts have the authority of res judicata pronouncements and which do not. This power to interpret its own previous decisions and identify their true scope is inherent in the Court, inextricably bound up with its judicial role (Article 36, § 6 of the Statute). The same is true of defences on the merits, to the extent they are admissible. Second, the Court sometimes expressly reserves to itself the right to resolve certain questions of jurisdiction or admissibility at a later stage in the case.276 The Court’s immediate decision must then be understood subject to the reservation. The Court proceeded in this way in the case of the Military and paramilitary activities in and against Nicaragua (1984– 86)277 on a question of jurisdiction, and in the Lockerbie cases (1998)278 on an issue of admissibility. Third, a judgment on Preliminary Objections is res judicata only as between the parties to the case. Article 59 of the Statute clearly states: ‘The decision of the Court has no binding force except between the parties and in respect of that particular case.’ (italics added) The Court was thus legally justified in stating, in the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Croatia v Serbia, Preliminary Objections, 2008),279 that its judgments in 2004 on the Legality of the use of force and in 2007 in the Genocide case did not have the authority of res judicata in the present case, given that the parties were not the same – Serbia against NATO States or Bosnia-Herzegovina, then   At §§ 126, 128 and 132.   Ibid, at § 127: ‘[The earlier judgment] 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.’ 274   ICJ Reports 1947/1948, 15 et seq., and ICJ Reports 1949, 4 et seq. and 244 et seq. 275   ICJ Reports 1973, 3 et seq. and 49 et seq.; ICJ Reports 1974, 20 et seq., § 42 et seq., and 203–205, § 74 et seq. The point is whether jurisdiction extends to a particular question and whether the Court has jurisdiction to respond to a request for reparations when it is presented in a very abstract way. 276   Case on the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (merits, 2007), § 127. 277   ICJ Reports 1984, 425–26, § 76, the Court reserving to the merits stage its treatment of the multilateral treaties featuring in the USA’s optional declaration, on the basis that it did not have, in the circumstances of the case, an exclusively preliminary character. 278   ICJ Reports 1998, 29, § 51 and 134, § 50, the Court deferring to the merits stage a decision on the argument that the Libyan claims had, in consequence of the Security Council resolutions, become devoid of their object. 279   §§ 52 et seq. 272 273

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Serbia against Croatia. That does not mean, however, that the Court will not take account of its legal conclusions in earlier judgments in which the same ratio decidendi was applicable. It will do so because a Court will obviously seek to avoid contradicting itself. The question remains whether there are any ‘true’ exceptions to the rule. The Court’s practice does not suggest that there are any. One must conclude that, legally, the only way to reopen a decision on jurisdiction or admissibility is by way of revision of the judgment (Article 61 of the Statute). Is it then possible, perhaps, for the Court to handle the revision with some flexibility, if it has not yet given judgment on the merits? That is certainly an interesting question, which could be examined in further detail, but for the moment has no practical importance. We will briefly return to it in the section on the revision of judgments.280

e) The Not-exclusively-preliminary Character of an Objection (the Old ‘Joining to the Merits’) One of the characteristics of the definition of a ‘Preliminary’ Objection is that it can be dealt with at the preliminary stage without entering into the merits of the case. Hence also the doctrine that such an objection, and the decision on it, must not ‘prejudge the substantive issues’. This is so because the Court must not be limited by its decision on the objection, when, at a later stage, it comes to select reasoning to deal with the merits. Provided that the res judicata of the decision on the Preliminary Objections relates to questions sufficiently distinct from those to be dealt with at the merits stage, the res judicata will not limit the Court’s freedom in dealing with the merits. The ‘no prejudice’ doctrine also rests on the fact that the merits cannot yet have been sufficiently aired to be fully understood at the Preliminary Objections stage. From the point of view of the effective administration of justice, it would thus be problematical if the Court’s freedom to hack and prune its judgment on the merits, at which point it is seised of all the material on the case, were to be obstructed by the overhanging branches and precocious thorns of a preliminary decision. Experience shows that a wide range of objections cannot conveniently be disposed of at the preliminary stage, because, whether by their nature or in consequence of the particular circumstances, their character is not exclusively preliminary. They inevitably affect the merits, with which they are inextricably bound up. For this reason, they need to be deferred to the merits stage. In this respect, a whole series of subsidiary questions arise. Weighing contrary interests against the good administration of justice. In light of this problem, the Court has faced a difficult choice. On the one hand, as soon as a Preliminary Objection touches significantly on the merits, the good administration of justice seems to require it to be deferred to the merits phase, when the Court will be in a position to deal with it in the proper context and will have at its disposal a richer palette of information. In addition, there can then be no question of its being fettered at the merits stage, by the res judicata of a preliminary decision made on the basis of information which at that time was still incomplete. The Court will therefore be much more likely to do better justice to the argument. On the other hand, if the Court too readily defers consideration of the point to the merits stage, it slows down the proceedings and seriously endangers both the economy  See below, section 23.

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of the process and the protection of the parties. The truth is that few objections to jurisdiction, and scarcely any to admissibility, are not linked to the merits in one way or another. It is almost always more comfortable for the Court to decide them at the merits stage, when all the information, all the arguments, all the ins and outs of the case, are available and known. However, if the Court defers to the merits stage a decision on preliminary objections which are very likely to bring the case to an early conclusion for want of jurisdiction or admissibility, it prolongs the case unduly. In such a case, years of litigation may have gone by, thousands of documents examined, only for the Court finally to declare that it has no jurisdiction, or that the claim is inadmissible – which it might have said at the outset. An immense amount of resource will have been squandered, both by the Court itself and by the parties. One need only look back on the outcome of the Barcelona Traction case in the 1970s. In addition, since the parties have to present their full cases on the merits, the respondent will be obliged to justify its position on the merits when the Court – perhaps manifestly – does not have jurisdiction anyway. That goes against the principle that a State is not subject to the procedure of the Court unless it has consented to the jurisdiction. If all such objections were systematically deferred to the merits phase, respondents would be obliged to go through the entire process nolens volens, and to justify their position on the merits before a Court either with no jurisdiction, or at least in relation to an inadmissible claim. One could even imagine, against that background, States seising the Court in bad faith in order to force the respondent, by their trickery, to defend the merits for several years and to incur considerable trouble and expense in doing so. The proper administration of justice, therefore, is and must be, the guiding star on these questions. It is sometimes invoked as a reason to defer objections to the merits phase when that is necessary, and for the opposite purpose when it is possible to deal with them by a preliminary decision. The application of the principle requires a careful weighing and balancing of the two options. The rule has to be that the argument will be deferred to the merits stage whenever it is necessary or unavoidable, that is, if the objection would, at the preliminary stage, have to be decided in the absence of some indispensable element. Conversely, deferral to the merits stage must be avoided whenever there is no such necessity. And finally, that ‘necessity’ must be interpreted strictly, because of the drawbacks, considered above, of deferring consideration of objections. As the PCIJ stated in the case of the Panevezys-Saldutiskis Railway (1939), it was necessary to order a Preliminary Objection to be joined to the merits whenever ‘the interests of the good administration of justice require it’, or as the French language text puts it ‘lorsque les intérêts de la bonne administration de la justice lui en font un devoir’ (that is duty; italics added).281 A summary preliminary examination, when it is possible. The examination of a Preliminary Objection often implies taking into consideration questions touching on the merits. This is not, in itself, a reason to defer the decision until the merits phase. If it were, it would be necessary to defer most decisions, given the way in which legal questions tend to interrelate. On the contrary, the Court must, in such cases, undertake a limited and provisional examination of the merits for the purpose of deciding on the objection. If this makes it possible to reach a sufficiently well-grounded decision, the Court must do so. It is open to the Court to defer the decision to the merits phase only if it is impossible to carry out the preliminary examination to a reasonable standard because the objections are, in the   PCIJ, Series A/B, no 75, 56.

281

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particular case, too inextricably tied up with the merits, or because the Court lacks, at this preliminary stage, information which is essential to the judgment. In short, if the merits are ‘touched’ by the objection, they must be subjected to a preliminary and summary examination for the purpose of deciding the objection, not for the purpose of deferring it to the merits stage. If, on the other hand, the merits are the ‘very subject matter’ of the objection, the latter cannot be decided at a preliminary stage, and must be deferred to the merits phase. The Court has carried out such a summary preliminary examination on several occasions. Thus in the Interhandel case (Preliminary Objections, 1959), in respect of the fourth US objection (on grounds of the domestic jurisdiction or ‘reserved domain’), which Switzerland countered by invoking a series of potentially applicable international agreements, the Court stated: Accordingly, the Court does not, at the present stage of the proceedings, intend to assess the validity of the grounds invoked by the Swiss Government or to give an opinion on their interpretation, since that would be to enter upon the merits of the dispute. The Court will confine itself to considering whether the grounds invoked by the Swiss Government are such as to justify the provisional conclusion that they may be of relevance in this case (italics added).282

In the Ambatielos case (merits, 1953), the Court faced the question whether the jurisdiction clause in the treaty covered a given claim, and applied a test of plausibility (at the merits stage): In order to decide, in these proceedings . . . the Court must determine . . . whether the arguments advanced by the Helenic [sic] Government in respect of the treaty provisions on which the Ambatielos claim is said to be based, are of a sufficiently plausible character to warrant a conclusion that the claim is based on the Treaty;283

The Court also invoked the criterion of an ‘arguable construction of the Treaty’.284 The Court’s examination in this case did, however, touch on the merits and not on the Court’s jurisdiction: the Court had to decide whether, under the jurisdiction clause, there was an obligation to go to arbitration; that obligation was the issue in dispute before the ICJ. The criterion is nevertheless relevant, since it could be applied at the preliminary stage. In relation to jurisdiction clauses, the Court has several times carried out this type of prima facie examination in order to decide whether it has subject-matter jurisdiction under the head of jurisdiction in question. A jurisdiction clause enables the Court to take cognisance of all disputes relating to the interpretation and application of the agreement in which it is contained. That immediately raises the question what matters are covered by the agreement. Obviously this question is intimately linked to the merits, since the agreement must be interpreted in light of all the substantive rights and obligations it provides for. At the preliminary stage, the Court’s practice has, however, been to confine itself to a summary assessment on the basis of various criteria: case of the Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility, 1984),285 criterion of a 282   ICJ Reports 1959, 24. As is well known, the Court did not go any deeper into this question of the reserved domain because of the automatic reservation by the USA, in its optional declaration: in the event, the Court preferred to base itself on the non-exhaustion of internal remedies, on which basis it declared the claim inadmissible at that stage. 283   ICJ Reports 1953, 18. 284  Ibid. 285   ICJ Reports 1984 427.



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‘reasonable relationship between the treaty and the claims before the Court’; or the case on the Legality of the use of force (Interim measures of protection, Serbia and Montenegro v Belgium, 1999),286 criterion consisting of knowing ‘whether the violations of the agreement alleged by Yugoslavia are capable of falling within the provisions of this instrument’ (at a stage where the Court was making an Order). The Court’s jurisprudence is thus not absolutely firm and clear, but one can at least see that the Court does not hesitate to carry out a preliminary examination on a prima facie basis when it thinks it possible to do so and that it will serve some useful purpose. Deferring an objection to the merits stage – texts and practice. The PCIJ Rules of 1936 did not provide for objections to be deferred to the merits stage. The PCIJ nevertheless did ‘join to the merits’ certain objections that were inextricably connected to those merits. This first happened in the case of the Administration of the Prince von Pless (1933).287 Article 62, paragraph 5 of the 1936 Rules gave the Court explicit power to take such a step. Subsequently, the Court used the new rule on ‘joining to the merits’ objections that were not exclusively preliminary in nature, in the cases of Pajzs, Csaky, Esterhazy (Preliminary Objections, 1936),288 Losinger (Preliminary Objection, 1936)289 and the Paneverzys-Saldutiskis Railway (1939).290 Article 62, paragraph 5, of the ICJ’s 1946 Rules lifted the corresponding provision word for word from the PCIJ’s 1936 Rules.291 The ICJ’s practice on this point did not vary until its Rules were revised in the 1970s. In several cases, it ‘joined to the merits’ Preliminary Objections which the Court did not, in the circumstances of the case, consider it possible to deal with at the preliminary stage.292 This happened, for example, in the case of the Right of passage over Indian territory (Preliminary Objections, 1957)293 and in the Barcelona Traction case (Preliminary Objections, 1964).294 When parties jointly requested the Court to join an objection to the merits, or if one party proposed this and the other did not oppose it, the Court’s tendency to do so was all the greater. This happened in the Norwegian loans case (1957).295 The most attentive commentators296 had, moreover, noted that, by its jurisprudence in the Barcelona Traction case, the Court seemed to have entered a more liberal phase as regards its power to join an objection to the merits, the new phase reflecting its flexibility in assessing the requirements of the good (or better) administration of justice. Subsequently, however, the 1960s saw a certain dissatisfaction developing as to the law and practice of the Court on Preliminary Objections.297 The South-West Africa cases of 1962 and 1966 were perceived as disavowing the practice of deciding objections during the   ICJ Reports 1999-I, 137, § 38.   PCIJ, Series A/B, no 52, 16. 288   PCIJ, Series A/B, no 66, 9. 289   PCIJ, Series A/B, no 67, 23. 290   PCIJ, Series A/B, no 75, 55–56. 291   The text is as follows: ‘After hearing the parties the Court shall give its decision on the objection or shall join the objection to the merits. If the Court overrules the objection or joins it to the merits, it shall at once fix timelimits for the further proceedings.’ 292   See also, F Ammoun, ‘La jonction des exceptions préliminaires au fond en droit international public’ in Comunicazioni e studi, vol 14 (1975)17 et seq.; 293   ICJ Reports 1957, 150 (domestic jurisdiction/reserved domain objection) and 151–52 (objection relating to temporal limits indicated in the optional declaration). 294   ICJ Reports 1964, 45–46 (standing to act) and 46 (internal remedies not exhausted). 295   ICJ Reports 1957, 22 and ICJ Reports 1956, 74. 296   Abi-Saab, above n 18, 197–98. 297   cf Thirlway, above n 34, 141 et seq. 286 287

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merits stage; and, above all, the Barcelona Traction case was perceived as emblematic of a failed judicial policy on Preliminary Objections. In the latter case, the joining of Preliminary Objections to the merits had indeed opened the way to extremely long proceedings, protracted over almost a decade, in which the documentation filled 10 whole volumes of the ICJ’s Memorials, Pleadings and Documents. The whole effort was wasted. The Court ended by denying Belgium the necessary standing to pursue the case. With hindsight, it seemed to many observers that the Preliminary Objection could, and should, have been accepted at the preliminary stage, thus avoiding years of sterile and costly proceedings. Consequently, when the Rules were revised in 1972 (and then in 1978), the power to ‘join an exception to the merits’ was dropped. The objective of this step was to eliminate the subjective and discretionary character of the Court’s decision to defer consideration of a Preliminary Objection to the merits stage, the text of the old Rule having provided only that the Court should either decide the Preliminary Objection or join it to the merits. Since, however, some Preliminary Objections are impossible to decide at the preliminary stage, the new Rules provide, at Article 79 paragraph 9, that: 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 (italics added)

In the minds of those who drafted the new rule, they were making more than a simple cosmetic modification: in the past, the rule about ‘joining to the merits’ had, so to speak been ‘coloured in’ at the Court’s discretion; the new rule as to not possessing ‘an exclusively preliminary character’ was considered to reflect an objective quality inherent in the Objection itself, and thus to eliminate the discretionary element. The objective quality consisted of the fact that a Preliminary Objection falling under the rule is so inextricably bound up with the merits that it cannot be disposed of at the preliminary stage, either because to do so would be to prejudge the merits (contrary to the leading principle that Preliminary Objections must not do that), or because the Court does not at the preliminary stage possess all the information essential to its decision. It should be noted that the new rule is essentially circumstantial: in the abstract, the character of the Preliminary Objection is irrelevant. What matters is exclusively its ‘character in the circumstances of the case’, meaning the Court’s capacity to understand its character prior to the merits phase, as the latter appears to the Court in the concrete circumstances of the case. Finally, one must emphasise that the formula applies if the Objection is not ‘exclusively’ preliminary: it is not a question of its being (or not being) ‘essentially’ preliminary. The adverb ‘exclusively’ is in fact a problematical one, in the sense that it could open the way to a practice contrary to the intentions of those who drafted the Rules of 1972/1978. If it is sufficient, in order to entitle the Court to defer an objection to the merits phase, that it is not ‘exclusively’ preliminary, then it may suffice for the Court to recognise that it touches the merits, concerns the merits, is connected to the merits, also includes aspects of the merits, and so on – thus bringing the Court straight back to the practice of ‘joining to the merits’. But this criterion would clearly be too broad. The rule must therefore be read as meaning that the Objection concerns the merits and that this fact makes it impossible, in the circumstances of the particular case, to rule on the Objection at the preliminary stage, because the Court lacks essential elements that would enable it to do so. Rule 79, paragraph 9 does not say this with all the clarity that one would like to see; one must therefore conclude that those who drafted the Rule did not do so with quite the degree of care that was needed. This



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difficulty was to have consequences for the subsequent jurisprudence, as we will now see. The Court had occasion to apply the new Rule in a series of cases, the first of which was the Military and paramilitary activities in and against Nicaragua case (1984, 1986).298 Here, by an irony of fate, the Court deferred to the merits phase a Preliminary Exception (a reservation as to multilateral treaties) which did not in fact appear impossible to deal with at the preliminary stage. However, it was a less fundamental point for the outcome of the case than the issue in the Barcelona Traction case, at least in the sense that, here, it did not lead to the Court’s having no jurisdiction or to the total inadmissibility of the claim. Subsequently, in the case of the Land and maritime boundary between Cameroon and Nigeria (Preliminary Objections, 1998), the Court declared that an Objection did not have an exclusively preliminary character,299 and it did the same in the Lockerbie case (Preliminary Objections, 1998)300 and in the Genocide case (Croatia v Serbia, Preliminary Objections, 2008).301 The Nicaraguan case, and then, above all, the Lockerbie case, show a potential shift in the Court’s jurisprudence, casting some doubt on the success of the Rules reform in the 1970s. In the Nicaraguan case, the Court, as already noted, deferred to the merits phase an objection which it seemed possible to deal with at the preliminary stage. In Lockerbie, the respondents had argued that certain resolutions of the Security Council after the Court was seised of the case ‘had deprived Libya’s claims of any object’. They argued this as a Preliminary Objection. The applicant (Libya), countered that the Objection was not, in the circumstances of the case, exclusively preliminary. The Court’s view was that the decisive criterion was whether the Objection did or did not involve ‘both preliminary aspects and other aspects relating to the merits’,302 a criterion which the Court returned to in the Nicaragua case. The Court concluded: ‘That objection relates to many aspects of the dispute.’303 It was only after these expansive passages that the Court imposed an element of restraint on its analysis, concluding that, in the circumstances of the case, the Objection touched on substantive rights to the point of being itself the subject of the decision, and that it was thus inextricably linked to the merits.304 In his Dissenting Opinion, Judge Jennings insisted that the first limb of the analysis was too general: almost every Preliminary Objection has some connection with the merits.305 If the second limb of the Court’s reasoning in the Lockerbie case thus provided some reassurance that the Court wished to apply the strict logic of the 1972/1978 Reforms, nevertheless, the way it stated the general criterion about the exclusive preliminarity of the Objection did have the potential to open the way for a much more discretionary approach, doubtless inspired by the ‘joining to the merits’ practice. This does in truth seem like an erratic failure properly to digest a vital element of the new law on Preliminary Objections. The problem is, moreover, that the difficulty at once puts down its roots into the very text of the Rule. Of course, that does not absolve the Court from its   ICJ Reports 1986, 29–32, §§ 37 et seq. and ICJ Reports 1984, 425–26, § 76.   In relation to the final sector of the line of maritime delimitation that was to be drawn: in that this would affect third States: ICJ Reports 1998, 323–25, §§ 115 et seq. 300   ICJ Reports 1998, 26 et seq., §§ 46 et seq. and 131 et seq., §§ 45 et seq. 301   At §§ 131 et seq., on the point to what extent certain claims are within the material field of application of the Convention against Genocide. 302   ICJ Reports 1998, 28, § 50. 303  Ibid. 304   Ibid, 29, § 50. 305   Ibid, 106: expressing the view that it was not easy to find even a single Preliminary Objection of which it was possible to say with absolute confidence that its character was exclusively preliminary. 298 299

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responsibility to formulate a more coherent explanation of the criteria referred to in its jurisprudence, either by going back to the logic of ‘joining to the merits’ or by opting clearly for the non-preliminary character of an Objection in the circumstances of the particular case. In this regard, the essential criterion seems to be the possibility of deciding the Objection at a preliminary stage, especially in light of the information available at that time and of the requirements of the due administration of justice. Questions as to whether it is or is not opportune to decide the Objection ought not, in the logic of the present Rule, to come into it, and nor ought the fact, at least in itself, that an Objection is connected to the merits, or that it contains both preliminary aspects and aspects going to the merits. It is pleasing to see that, in its most recent jurisprudence, the Court has only rarely deferred Objections to the merits phase, and has done so only if it clearly appeared that the Objection is a defence on the merits, such as one that concerned the substantive interpretation of the Genocide Convention (Croatia v Serbia, 2008). What was this issue in that case? Serbia lodged three Preliminary Objections, giving rise to the problem we are now considering. The first related to the bringing of certain persons before Serbian courts (§§ 133 et seq.). The Croatian claim to which this related was based on Articles I and VI of the 1948 Genocide Convention. Serbia claimed that there was noone in its territory in respect of whom it owed such an obligation, so that the claim had no object. The Court decided that this objection raised an issue of fact that was essentially connected to the merits. The question whether the Croatian claim was justified was thus an issue as to the merits (§ 136). The second Objection related to the obligation to supply information on Croatian citizens who had disappeared (§§ 137 et seq.). This Croatian claim was based on the alleged violation of the 1948 Convention and was advanced as a claim for reparations. Serbia replied with a similar argument to the preceding one. The Court took the view that the answer to this question depended on the conclusions it would reach as to the violation of the Convention, and that that conclusion would be a conclusion on the merits. The Serbian arguments to the effect that there had been no genocide, and that in any event Serbia had cooperated with all the necessary diligence, were essentially issues on the merits. The third Objection related to a claim for the restitution of certain cultural assets (§§ 140 et seq.). This Objection responded to a Croatian claim presented as a demand for reparations for Serbia’s violation of the 1948 Convention. Serbia’s riposte was to plead that the assets in question had already been restored, so that a dispute no longer existed on this point. The Court referred, on this point, to its rejection of the concept of ‘cultural genocide’ (see the case of the Convention against Genocide, Bosnia-Herzegovina v Serbia, 2007, § 141). Also, in the Court’s view, the question of what remedies it could order if it concluded that the Convention had been violated, depended on the Court’s analysis of the merits, and in particular on the corpus of factual material that it would need to take into account. For these reasons the Objection was not exclusively preliminary in character, and belonged to the merits (§ 143). The series of Serbian Objections was thus rejected in its entirety at the preliminary stage, the Court taking the view that none of them had an exclusively preliminary character. The Court therefore declared that it had jurisdiction to decide the substantive case (§§ 144–45).



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f)  The Priority of Preliminary Objections to Jurisdiction over those relating to Admissibility and the Priority of Preliminary Objections of a Peremptory Nature over Other Ones All tribunals, whether municipal or international, face at least two categories of arguments designed to prevent their proceeding to examine the substantive issues in cases before them: objections to jurisdiction and objections to admissibility. As a matter of judicial logic, the former precede the latter.306 the tribunal must first be satisfied as to its jurisdiction before ruling on any other point relating to the claim or to its possible defects. This is a general principle of law inherent in the judicial function. The question of jurisdiction takes absolute priority. This is so because, as we have seen, a judge must say nothing about the case if he does not have jurisdiction. To assess the elements of the claim’s admissibility already amounts to saying something about its merits, particularly since arguments about admissibility are very often more closely connected to the substantive issues than are issues relating to jurisdiction. To rule that a claim is inadmissible because the person to be protected is of the wrong nationality for diplomatic protection, is to take a position on the ‘merits’ of the claim, on the possibility of bringing the claim, on its quality, on its defects, and also on the nationality of the person at stake. A State is under no obligation to allow judges with no jurisdiction to tell it such things. Only after it has satisfied itself that it has jurisdiction, that it has the right to ‘speak’ to the case, does the Court proceed to express itself on the nature of the claim, and then later, according to the case, on the merits in the narrow sense. There is, however, nothing absolute about this rule. Sometimes important reasons connected to the due and rapid administration of justice, lead the Court to take a different course. Example 1: Suppose, for example, that a State presents Preliminary Objections A, B and C. A and B go to jurisdiction, C goes to admissibility. A and B raise difficult and complex legal questions and to examine them properly will require prolonged hard work; the danger is that the progress of the case will be significantly slowed. At the same time, objection C seems simple and easy to understand and consider; it also seems manifestly wellfounded. In such a case it seems obvious that the Court should act on objection C and on that basis should decline to deal with the merits. In this scenario, there seems little merit in requiring the Court to engage in a prolonged and difficult examination of the arguments on jurisdiction (A and B), when C seems decisive. It is therefore important for the Court to be able to give priority to the latter, bypassing the first two. In such a case the economy of the legal process and the due administration of justice both justify the downgrading of the priority of jurisdiction over admissibility. Example 2: It might happen that a State presents Preliminary Objections A, B and C, the first two once again relating to jurisdiction, and the third to admissibility. In this example, the Court’s summary examination of the Objections leads it to conclude that it must declare that the first two Objections do not have, in the circumstances of the case, an exclusively preliminary character, so that the Court must defer them to the merits phase. However, Objection C can be dealt with at the preliminary stage, and this may therefore be justifiable, on the basis that C is the only truly ‘preliminary’ 306   See the South-West Africa cases, ICJ Reports 1966, 42–43. See Abi-Saab, above n 18, 231 et seq.; Guyomar, above n 6, 516. In the view of Judge Erich in the Electricity Company of Sofia and Bulgaria case (1939), PCIJ, Series A/B, no 77, 141: ‘The objection to jurisdiction is obviously a preliminary objection in relation to the objection to admissibility.’

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Objection left in the game (the Objections to jurisdiction being considered effectively defences on the merits). The principle being applied here is that a Preliminary Objection should be dealt with before the Court comes to deal with the merits. The requirements of economy of process and the avoidance of undue procedural delay add additional force to this interpretation of the Court’s duty, especially if the fate of the case seems once again to be predetermined by the objection to admissibility. Commentators have drawn a variety of differing conclusions from the fact that the ordinary rule about priority is not an absolute one. Some of them consider that the Court, as mistress of its own procedure, has a discretion as to the order in which it deals with Objections, a discretion to be exercised on a case-by-case basis.307 This, however, seems to go too far, amounting, as it does, to ignoring the rule and the exception, dissolving the whole issue into the Court’s subjective wishes: a judicial quod volumus. Others take the view that the rule remains, but needs flexible handling, case by case, since other considerations, connected with the proper administration of justice, will sometimes prevail over it.308 Yet another group consider the true rule to be that the Court, as a matter of judicial prudence, treats Preliminary Objections in the order which reflects their degree of connexity with the merits, starting with the most truly ‘preliminary’ ones and finishing with those most closely connected to the merits:309 first, the conditions under which the Court has been seised (initiating documents, prima facie existence of a valid jurisdiction in the Court); then general issues of jurisdiction and admissibility, involving constitutive questions related to the integrity of the Statute (general jurisdiction prior to general admissibility); ending up with special jurisdiction and subject-matter admissibility, with the rule as to the priority of jurisdiction. One sees that, following this complicated methodology, questions of jurisdiction will not always stay ahead of the admissibility issues. General admissibility will usually be considered before special jurisdiction. It is within each category (general jurisdiction v general admissibility; special jurisdiction v subject-matter (or special) admissibility), that the rule giving priority to jurisdiction is applied. On the other hand, the rule does not apply vertically, through the classes. Finally, it should be remembered that some authors, and some judges, give rigid priority to jurisdiction over admissibility, refusing to admit any exceptions to the rule.310 The Court, for its part, has in a first phase managed the question somewhere in the median zone, applying a flexibly interpreted rule of priority, sometimes allowing exceptions. The Court’s practice may be summed up by saying that its approach is a pragmatic one which takes account of the need for justice to be as swift as possible. As a general rule, the Court starts with the jurisdiction question and from there goes on to deal with admissibility.311 Unless there is some reason for the Court to do otherwise, there seems no reason to criticise this approach. In the converse case, where there are exceptional reasons, the Court does sometimes take certain liberties with the rule. At this point we are in the land of exceptions. In the Interhandel case (Preliminary Objections, 1959), the USA, which was the   cf Rosenne, Law . . . (1965), op. cit., 458.   cf Ch de Visscher, Aspects récents du droit procédural de la Cour internationale de Justice (Paris, 1966) 105 ‘The question depends on the particular case and the impression it makes on the judges’. (our translation) 309   Abi-Saab, above n 18, 236. 310   Dissenting Opinion H Lauterpacht, Interhandel case, ICJ Reports 1959, 95 et seq. 311   See, eg the Losinger case (1936), PCIJ, Series A/B, no 67, 24; the case of Certain phosphate lands at Nauru (Preliminary Objections), ICJ Reports 1992, 245 et seq.; and the case on the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia, Preliminary Objections) 2008, §§ 57 et seq., 93 et seq., 120 et seq., 131 et seq. 307 308



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respondent, had put forward four Preliminary Objections, three of which going to jurisdiction (temporal jurisdiction and subject-matter jurisdiction), and the fourth to admissibility (exhaustion of internal remedies in relation to private claims). The Court rejected the two temporal objections. It refrained from dealing with the subject-matter Objection, which related to domestic jurisdiction (the ‘reserved domain’312) because that Objection raised the extremely difficult issue of so-called ‘automatic’ reservations313 accompanying the USA’s optional declaration under Article 36, paragraph 2 of the Statute. Finally, the Court accepted the USA’s (non-peremptory) objection to admissibility, on the basis of failure to exhaust internal remedies.314 The whole process was equivalent to giving priority to an argument based on (subject-matter) inadmissibility over one based on a want of (special) jurisdiction. In addition, the Court reversed the order in which the USA itself had presented its Objections, taking the fourth before the third. The Court’s decision was severely criticised on the basis that, before establishing that it had jurisdiction, the Court had examined arguments it had no right to consider at that point in the process.315 The point is technically correct, but nevertheless neglects to take account of the degree of flexibility that is necessary in certain cases, both for reasons of judicial policy and in view of the needs of the particular case. Obviously that leaves the question whether the Court ought to have bypassed the automatic reservation question or whether it ought to have taken the opportunity to clarify the question of its compatibility with the Statute. Opinions can legitimately differ on this point, given its legal complexity and the practical embarrassments that result, as we will see in the chapter dealing with reservations. Moreover, the Court was doubtless motivated, in deciding whether to give a ruling that might have had significant implications on the highly sensitive system of the optional clause under Article 36 paragraph 2 of the Statute, by considerations of what would be the opportune approach, and also by considerations of judicial policy. The question also had the potential to provoke opposition between the Court and a series of powerful States which, at that time, were keen to invoke reservations of this kind. In the case of the Northern Cameroons (1963),316 the Court decided it could not decide the merits issues because of general inadmissibility. That general inadmissibility, based on ‘inherent limitations in the exercise of the judicial function’ took priority over the UK’s second Preliminary Objection, which went to jurisdiction. Here we see general admissibility taking priority over special jurisdiction, on the basis that it belongs in a higher category. Here again, some of the judges dissociated themselves from this way of seeing things, invoking the general rule that objections to jurisdiction take priority over objections to admissibility.317 In its more recent practice, it has not been unusual for the Court to fail to categorise Preliminary Objections clearly, especially if problems as to priority may arise. In such cases the Court simply does not say whether it is treating an Objection as going to jurisdiction or to admissibility. By leaving them uncategorised, which it obviously does out of a wish to blur the issues, the Court gives itself extra room for manoeuvre. This has clearly been the   ICJ Reports 1959, 26.   On this concept, see below. 314   Ibid, 26–29. 315  Dissenting Opinion H Lauterpacht, Interhandel case, ICJ Reports 1959, 95, 119; Independent Opinion Spender, ibid, 54; Dissenting Opinion Klaestad, ibid, 79; Dissenting Opinion Armand-Ugon, ibid, 91. cf also M Dubisson, La Cour internationale de Justice (Paris, 1964) 188. 316   ICJ Reports 1963, 15 et seq., 29–36. 317   Koretsky Declaration, ibid, 39. 312 313

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Court’s approach in several of the cases already cited, as for example, in the case of the Land and maritime boundary between Cameroon and Nigeria (Preliminary Objections, 1998)318 and the case of the Arrest Warrant of 11 April 2000 (2002).319 Although in this way the Court blurs the issue, and certainly thereby gives itself scope for greater flexibility, nevertheless it is not excused from the rule as to priority. But in what ways is such a margin of flexibility useful? The answer is inseparable from the fact, in recent years, that the Court’s working conditions have undergone a marked change. Its workload has increased significantly. The number of Preliminary Objections per case has likewise tended to rise, so that nowadays it is not unusual for the Court to be faced with as many as a dozen in the same case. Issues relating to the economy of the judicial process are consequently more important than they were before. For these reasons the Court is more conscious than ever of the advantages represented by its power to marshal Preliminary Objections on a case-by-case basis, according to the order that seems to the Court to be the most appropriate one for the line it intends to take. In this context, flexibility is a considerable advantage; and the Court works hard to retain as much flexibility as it can. It is thus possible to describe the current tendency as in the direction of a slightly more flexible approach still to the questions of priority, thus yielding the Court a certain margin of case-by-case discretion. There is a second rule of priority, namely that peremptory Preliminary Objections must be examined prior to those that are ‘dilatory’ (capable of being cured over time).320 The reason is that the arguments with the more radical effect (ending the case) ought to be examined first, leaving those that would merely suspend the proceedings for later. Once again, the basis of the argument is to be found in the economy of the process and the due administration of justice: there is no point in accepting a ‘dilatory’ objection and suggesting that the claimant take steps to eliminate the obstacle and then come back to the Court, if, when it finally does come back to Court, the response at that point is to say that, in any event, the claim is excluded by virtue of a peremptory Preliminary Objection. It is indeed appropriate that the Court deals first with the most far-reaching arguments, which, if they are accepted, have the effect of terminating not only the case, but also the right of action, leaving no possibility that other objections, or indeed the merits, will fall to be examined at a later stage. (our translation)321

This rule of priority, most often applied tacitly, is, however, subject to exceptions. It is applied flexibly, with the aid of the philosopher’s grain of salt and the legal practitioner’s sense of the realities. First, the Court examines the Preliminary Objections to formal admissibility, despite their ‘dilatory’ character.322 Since the Court has to see to it that the Statute and the Rules are complied with, it cannot in any event ignore them, because they affect the formal validity of procedural steps. Next, the Court may justify a reversal of the normal order with the economy of the process and judicial policy. The Interhandel case (1959), discussed earlier in this section, is again an example: the Court accepted a dilatory objection to admissibility (non-exhaustion of internal remedies) prior to a peremptory objection to jurisdiction (the question being how far the consensual jurisdiction extended).   ICJ Reports 1998, 290 et seq., §§ 21 et seq.   ICJ Reports 2002, 11 et seq., §§ 23 et seq. 320   Abi-Saab, above n 18, 229–31. H Klaestad expressed himself strongly in this sense, in his Dissenting Opinion in the Interhandel case, ICJ Reports 1959, 78–79. 321   Abi-Saab, above n 18, 229. 322   Moroccan Phosphates case (1938) PCIJ, Series A/B, no 74, 16. 318 319



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A dilatory objection will also be examined in priority if a peremptory one has been deferred to the merits stage on the basis that it does not, in the case in question, have a purely preliminary character. In such a case, there is only one remaining objection to be considered on a preliminary basis. Legally, thus, this does not amount to making a true exception to the priority rule. That rule applies only as between arguments in the same category – the preliminary category – and not to the relationship between different classes (preliminary arguments/substantive defences, jurisdiction/admissibility). The case of the PaneverzysSaldutiskis Railway (1939)323 provides an example of a relationship of the latter kind. Most often, the Court does not indicate whether an objection is or is not peremptory in nature. It is not generally necessary for the Court to do so, since the Court will, in any event, turn its attention first to questions of jurisdiction, which are normally peremptory. In the end, it is only amongst a variety of different arguments for inadmissibility that the question of priority discussed here can come into play.

g)  The Principle that the Court is Free to Choose the Order in which it examines Objections in the Same Category As between arguments against jurisdiction and those against admissibility, and between arguments that are peremptory and dilatory, the Court is, in principle, free to decide for itself the order in which it addresses Preliminary Objections raised either by the parties or indeed by the Court itself. The question whether some arguments are ‘pre-preliminary’ will be considered in section (h). This principle, that the Court is free to choose the order to reflect the lines of argument it is following, and as a function of the due and swift administration of justice, has been reaffirmed on many occasions. What, then, is the legal basis for it? It arises from the fact that the Court is free, subject to the provisions of the Statute and the Rules, to order and direct its cases in light of the needs of the due and proper administration of justice. As noted before, the Court itself is the ‘mistress of the procedure’. In that field it has not only powers that are statutory324 but also various that are inherent. In addition, the Court remains free to order its judgments on the basis of lines of argumentation selected by the Court alone. That is a general principle of judicial law, flowing directly from judges’ independence and institutional functions. Good examples of this freedom of choice are found, for example, in the Norwegian loans case (1957), and more recently, in the case of the Aerial incident of 10 August 1999 (Pakistan v India, 2000). In the first of these cases, the Bench stressed that ‘the Court is free to base its decision on the ground which in its judgment is more direct and conclusive’.325 In the second case, the Court repeated the same point.326 It had referred to the same principle in other cases, such as the Aerial incident of 27 July 1955 (Israel v Bulgaria, 1959),327 in the Continental shelf in the Aegean Sea (1978)328 and the case on the Legality of the use of force

  PCIJ, Series A/B, no 76, 15 et seq.   Art 30, § 1 of the Statute. 325   ICJ Reports 1957, 25. 326   ICJ Reports 2000, 24, § 26. 327   ICJ Reports 1959, 127. 328   ICJ Reports 1978, 16–17, §§ 39–40. 323 324

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(Serbia and Montenegro v Belgium, Preliminary Objections, 2004),329 paradoxically citing it in the latter case only so as the better to limit its application.330 This freedom of choice enables the Court not only to economise the process and thus to ensure the due and proper administration of justice, but also, from time to time, to give effect to a certain degree of judicial policy via the device of bypassing this or that Preliminary Objection when it is a particularly sensitive one. Thus, in the case on the Aerial incident of 10 August 1999, cited above, the Court wished to avoid taking a position on the argument that the General Arbitral Act of 1928 had fallen into disuetude and was no longer in force. A judicial pronouncement to that effect would unquestionably have had effects for all the General Act parties, and since, in addition, the Court would to some extent possibly have had to play the unwelcome role of its gravedigger. For this reason, the Court chose a different line of argument that enabled it to affirm or deny its jurisdiction over the case without having to examine questions that, both from the legal and the practical point of view, were more than a little delicate.

h)  Objections that are Necessarily ‘Pre-preliminary’? For some time now, the Court, together with some of the most respected commentators have been suggesting that certain questions or Preliminary Objections (in the same category) ought to be addressed ahead of others.331 The argument can be presented either as a logical necessity; or from the point of view of the objection’s material importance for the proper functioning of the Court or other questions of a constitutive nature, such as the right to appear before the Court as a party. If the argument were correct, it would, in effect, give form and shape to a more or less narrow hierarchy among Preliminary Objections. That hierarchy would be superimposed onto the primacy in principle of objections to jurisdiction over objections to admissibility, and onto the primacy of peremptory objections over dilatory ones. The favoured expression for this is ‘pre-preliminary’ objections. At the same time, the principle that the Court is free to choose the order in which it addresses Preliminary Objections would, in a way, be curtailed, perhaps very strongly curtailed, even conceivably to the point of being completely eliminated. A first step in this direction, albeit a discreet and veiled one, can be discerned in the case of the Northern Cameroons (1963). In that case, the Court treated the questions of general admissibility and the integrity of the judicial function as taking priority over all other aspects of jurisdiction and admissibility, although it did not go so far as to lay down any rigid doctrine in that regard.332 The new principle of priority can be discerned more from the priority the Court gave to this question rebus ipsis et factis, by the fact that it declared itself bound to raise the point of its own volition, and by its peremptory language. In the individual opinions of certain judges, the question was faced more directly. Thus Judge Fitzmaurice333 declared that a class of ‘questions which are of a wholly antecedent or, as it   ICJ Reports 2004-I, 298, § 46.   The Court took the view that the right to appear before it as a party, under Art 35 of the Statute (and all the questions of personal jurisdiction under Art 34) took priority: ibid, 299, § 46. 331   On this question see H Thirlway, ‘The Law and Procedure of the International Court of Justice: Questions of Jurisdiction and Competence (1954–89)’ in BYIL, vol 71 (2000) 77–78. 332   ICJ Reports 1963, 29–30. 333   Separate Opinion Fitzmaurice, case of The Northern Cameroons, ICJ Reports 1963, 103. 329 330



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were, “pre-preliminary” character’, did indeed exist, and were in issue in the case. Judge Morelli took much the same line in his Dissenting Opinion in the South-West Africa case (1962) among these latter conditions [for admissibility] there are some which must be considered before the question of jurisdiction is considered. One of these, for example, is the condition of the validity of the application, because a Court which is not validly seized cannot adjudicate even on its jurisdiction. Another such is the condition of the existence of a dispute, since it is only with relation to a genuinely existing dispute that it is possible to decide whether such a dispute is subject or not to the jurisdiction of the Court to which it has been referred.334

The Court reaffirmed its attitude to the primacy of certain questions in the Nuclear Tests cases (1974), affirming its own ‘inherent power to ensure the observance of the “inherent limitations on the exercise of the judicial function”’, and took the view that it must therefore give absolute priority to the question whether there a real dispute existed.335 There is nothing so very rigid about this approach, except that one question was, in that case, given priority treatment, as a kind of trial run for ‘pre-preliminarity’. A different and much more hard-edged approach was taken by the Court in three more recent cases. First, in the case on the Legality of the use of force (Serbia and Montenegro v Belgium, Preliminary Objections, 2004), the Court took the view, still arguably in a quite flexible way, that it must ‘examine first of all the question whether the applicant meets the conditions laid down in Articles 34 and 35 of the Statute of the Court’336 (italics added). A doctrine of pre-preliminary primacy further emerges from the following sentences: ‘The Court can exercise its judicial function only in respect of those States which have access to it under Article 35 of the Statute. And only those States which have access to the Court can confer jurisdiction upon it.’337 Subject-matter jurisdiction is to be subordinated to personal jurisdiction. The Court, in citing this case in its 2008 decision in the Genocide case (see below), gave a rigorous reading to its own pronouncement in 2004. It spiked its comments with a noticeable new rigour, stating that: ‘where the applicant’s right to access to the Court has been challenged – as it had been – this “fundamental question”’ had to be decided before any other, because, if the applicant was not a party to the Statute, the Court was not open to it and accordingly it could not ‘properly seise . . . the Court, whatever title of jurisdiction it might . . . invoke . . .’.338 One notes that here the Court is flatly stating that the question must be resolved ‘before any other one’, a statement made with no apparent restrictions or qualifications. In the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Serbia and Montenegro 2007), the Court again emphasised that personal standing to appear as a party (and thus the Court’s jurisdiction ratione personae) was a question that took propriety over its subject-matter jurisdiction. The Court put it as follows: The Court however 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   Dissenting Opinion Morelli, ICJ Reports 1962, 574.   ICJ Reports 1974, 259–60, §§ 23–24, and 463, §§ 23–24. 336   ICJ Reports 2004-I, 299, § 46. 337  Ibid. 338   Case on the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia, Preliminary Objections, 2008) § 67. 334 335

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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.339

By this time, then, the Court’s interpretation of the question had already firmed up into a rather stronger and more specific hierarchy than before. The relative flexibility of the 1960s and 1970s had disappeared. This perspective was confirmed in the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Croatia v Serbia, Preliminary Objections, 2008). The Court stated (at §§ 65 et seq.) that the question of access to the Court itself was a matter of jurisdiction which took priority over all other jurisdictional questions. It was a fundamental issue that needed to be resolved before any other question (§§ 66–67): ‘[T]he question whether or not a State meets the conditions of Article 35 of the Statute can be regarded . . . as an issue preliminary to the examination of jurisdiction’(§ 66); ‘[The Court] must necessarily examine the two questions in a prescribed order, so that it could not consider the second (jurisdiction ratione materiae) until after it has answered the first (access to the Court) in the affirmative’ (§ 67). In addition, this was a question which should, if necessary, be raised and examined by the Court itself, ex officio (§ 68). Consequently, if the Court pronounces on other Preliminary Objections or on the merits, it is because the right to appear as a party before it has been decided (at the very least implicitly) in the affirmative (§ 68). A close analysis of the Court’s jurisprudence leads to the conclusion that, on the one hand, the Court treats as questions of ‘flexible priority’ the existence and reality of a dispute, and the limits of the judicial function in relation to that question (see the Northern Cameroons and Nuclear Tests judgments) and, on the other hand, that the Court treads as a matter of ‘rigid priority’ the question of personal competence and right of access to the Court, as a party, under Articles 34 and 35 of the Statute, at any rate with regard to subjectmatter jurisdiction, and possibly even vis-à-vis ‘any other question’ (see the Legality and Genocide judgments of 2007 and the Genocide decision of 2008). However, it is not clear that the Court would give priority to the question arising from its personal jurisdiction over questions of general admissibility, although the phrase in the Genocide judgment of 2008 might lead one to suppose that it would do so. So far, therefore, the jurisprudence leaves us with various uncertainties and grey areas. If this set of legal conceptions is admitted, the result places significant limits on the old rule that the Court is free to choose the order in which it examines issues of jurisdiction on the one hand, and of admissibility on the other. Traditionally, the order actually selected was intimately linked to the particular facts of each case. It was simply accepted that the jurisdictional aspects ought in principle to be examined prior to the admissibility ones,340 since the Court cannot pronounce on the propriety of a concrete claim unless it has jurisdiction to pronounce on the case. Now, however, the ‘pre-preliminary’ questions relating to personal jurisdiction appear to superimpose a further hierarchy of priorities. The fact   Genocide case (2007) at § 122. The Court returned to the point at § 132.   As we have seen, the requirements of procedural economy have sometimes caused the Court to depart from this rule, eg in the Interhandel case (Preliminary Objections): ICJ Reports 1959, 6 et seq. 339 340



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that the Court has, at least for the time being, designated only the question of access to it as having a ‘pre-preliminary’ character will not prevent it adding, tomorrow or the next day, other questions that it considers should be given similar priority. Experts are entitled to wonder whether it is really appropriate to impose more restrictions on the judges’ freedom to address objections in the way they consider most appropriate to the circumstances of the particular case. In this regard, a whole series of questions arise. ‘Pre-preliminary’ issues could indeed differ from other issues of jurisdiction on a whole series of points. For example, does the Mavrommatis341 rule apply to such a ‘prepreliminary’ question of fundamental importance? Or cannot the Court then, with equal ease, ignore formal requirements when fundamental aspects of its functioning are in issue? Another example: does the requirement of prima facie jurisdiction, necessary so that the Court can ‘indicate interim measures of protection’, apply only to the conditions for ordinary jurisdiction, or also to more fundamental (that is ‘pre-preliminary’) questions? Must the Court apply a higher standard for the latter, given their greater importance? Plainly, this new-style hierarchisation of Preliminary Objections brings with it the possibility of interesting discussions about the Court’s procedural law, at the same time as raising a series of issues of principle. It remains to be seen, however, whether it is really worthwhile venturing into these procedural minefields. Under rigorous examination, this kind of hierarchisation of Preliminary Objections does not seem to be essential from the legal point of view. A rigid approach by the Court to questions of jurisdiction and admissibility would be unhelpful. It is better, ictu oculi, to allow the judges to ‘take a view’.342 It seems obvious that they will then be more willing to address questions of principle such as personal jurisdiction and general admissibility in order of priority. Such questions are, either by nature or as a matter of logic, to some extent ‘pre-preliminary’ but there is no need, from the legal point of view, to classify them as such: logic is one thing, law another. The law cannot disassociate itself from logic – quite the contrary, it must use and rely on logic. But the law should not be a slave to logic, because the law’s objectives are ultimately social, whereas the cast-iron principles of logic are centred on the absolute dogma that contradictions must be avoided. The legal category of ‘Pre-preliminary Objections’ gives rise to more questions and difficulties than those it resolves. That, in itself, is quite sufficient reason to give it up. The Court must remain free to adapt its concrete argumentation to the requirements of the particular case. If, as a general rule, it is usually appropriate to begin with objections of a typically ‘pre-preliminary’ nature, that is not a sufficient reason to turn the practice into an inviolable rule. We should 341   Here is the key consideration dating from 1924, cited by the Court at para 82 of its judgment in the Croatia v Serbia case in 2008: ‘It must also be considered whether the validity of the institution of proceedings can be disputed on the ground that the application was filed before Protocol XII [to the Treaty of Lausanne] had become applicable. This is not the case. Even assuming that before that time the Court had no jurisdiction because the international obligation referred to in Article 11 [of the Mandate for Palestine] was not yet effective, it would always have been possible for the applicant to re-submit his application in the same terms after the coming into force of the Treaty of Lausanne, and in that case, the argument in question could not have been advanced. Even if the grounds on which the institution of proceedings was based were defective for the reason stated, this would not be an adequate reason for the dismissal of the applicant’s suit. 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. Even, therefore, if the application were premature because the Treaty of Lausanne had not yet been ratified, this circumstance would now be covered by the subsequent deposit of the necessary ratifications (Judgment No 2, 1924, PCIJ series A no 2, p 34)’. 342   The point was well made by Ch de Visscher, Aspects récents du droit procédural de la Cour internationale de Justice (Paris, 1966) 105: ‘The question [as to the order of arguments] depends on the circumstances of the case and on the judges’ overview of it.’ (our translation)

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not forget the ‘economy of the process’. To give detailed analysis to a question which is legally ‘pre-preliminary’, and to be obliged to decide it before moving on to deal with anything else, in a case where it is obvious, for quite other reasons, that the Court does not have jurisdiction, or that the claim is inadmissible, would be an exercise in ‘procedural fundamentalism’, and would artificially prolong the duration of the case. Flexibility as to the order of priority in which arguments against jurisdiction or admissibility are handled is thus itself a principle, one which deserves greater respect than a rigid and artificial layering of Preliminary Objections according to whether they are to be classified as pre-preliminary, fully preliminary, semi-preliminary, or substantive defences. It is certainly true that prepreliminary questions are ordinarily easier to handle than subject-matter jurisdiction or admissibility questions, since they are farther removed from the merits. But that is not always the case. Hence, for example, to decide to what extent an entity is a State in the sense of international law can imply difficult legal and factual appraisals, and be politically quite sensitive.

i)  Objections Necessarily ‘Post-preliminary’ (that is, Objections which in Reality are by their very Nature Defences on the Merits)?  In direct opposition to the questions we have just considered, it is fair to ask whether some arguments are, by their very nature, necessarily to be treated as defences on the merits, so that they can never be justifiably presented as Preliminary Objections. The problem we have considered so far consisted in ascertaining whether certain questions are entitled, by their very nature, to claim a place at the head of the table, on the basis that they are prepreliminary. Now we must look at the opposite question, whether there is an equally intrinsic race to the bottom of the table, so that these questions must always be dealt with later, at the opening of the merits phase, as ‘substantive defences’. Obviously the point here is not to consider whether a question might be deferred to the merits phase, because that is always a possibility – if, for example, the parties agree to do so, or if the respondent does not take the point until the merits phase, or if the Court itself defers the point to the merits phase pursuant to Rule 79, paragraph 9. The question we are now addressing is quite distinct, namely whether (and to what extent) certain questions are, by their very nature, ‘post-preliminary’ and therefore must be deferred to the merits phase. The question is not new: there have in the past been various claims that such a category of questions does exist. The most famous example concerns matters of internal jurisdiction (the ‘reserved domain’).343 The predominant view is that this covers questions which, not 343   On this important concept of public international law, see in particular, MS Rajan, United Nations and Domestic Jurisdiction (Bombay/Calcutta/Madras, 1958) (2nd edn, London, 1961); L Kopelmanas, L’organisation des Nations Unies (Paris, 1947) 207 et seq.; G Sperduti, Il dominio riservato (Milan, 1970); G Arangio-Ruiz, ‘Le domaine réservé – L’organisation internationale et le rapport entre droit international et droit interne’ CCHAIL, vol 225, 1990-VI, 9 et seq.; and N Politis, ‘Le problème des limitations de la souveraineté et la théorie de l’abus des droits dans les rapports internationaux’ CCHAIL, vol 6, 1925-I, 43 et seq.; G Scelle, ‘Critique du soi-disant domaine de “compétence exclusive”’, (1933) 14 RDILC, 365 et seq.; S Ségal, ‘Le domaine réservé’ (1933) 14 RDILC, 704 et seq. and (1934) 15 RDILC, 25 et seq.; P Berthoud, ‘La compétence nationale des Etats et l’Organisation des Nations Unies’ (1947) 4 ASDI 17 et seq.; V Fincham, Domestic Jurisdiction: The Exception of Domestic Jurisdiction as a Bar to Action by the League of Nations and the United Nations (Leiden, 1948); L Preuss, ‘Article 2, Paragraph 7, of the Charter of the United Nations and Matters of Domestic Jurisdiction’ CCHAIL, vol 74, 1949-I, 553 et seq.; A Ross, ‘The Proviso Concerning “Domestic Jurisdiction” in Article 2(7) of the Charter of the United Nations’ (1950) 2



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being governed by international law, are left to the sovereign action of each State. It has thus been possible to argue that: When the Court pronounces on the question whether a conflict of interests falls within a State’s internal jurisdiction, it decides the dispute on the merits by affirming, on the basis of international law, the State’s sovereign freedom to act as it sees fit in relation to the question – i.e. that it is under no relevant international obligation . . . In coming to this decision, it is true only in a cosmetic sense that the Court is deciding on its jurisdiction; in reality, it is resolving the merits issue, either affirming or denying that the State is under a relevant international obligation.344 (our translation) AJPIL, 562 et seq.; H Kelsen, The Law of the United Nations (London, 1951) 769 et seq.; V Rousseau, ‘La détermination des affaires qui relèvent essentiellement de la compétence nationale des Etats’ Rapport définitif, Annuaire IDI, vol 44-I, (1952) 137 et seq.; J Ludovicy, ‘L’article 2, § 7, de la Charte des Nations Unies et la notion de domaine réservé’, (1957/58) 8 AJPIL 175 et seq.; JHW Verzijl, ‘Le domaine réservé de la compétence nationale exclusive’, Essays T Perassi, vol II (Milan, 1957) 391 et seq.; R Bindschedler, ‘La délimitation des compétences des Nations Unies’ CCHAIL, vol 108, 1963-I, 391 et seq.; R Higgins, The Development of International Law Through the Political Organs of the United Nations, (London/New York/Toronto, 1963) 58 et seq.; A Ross, ‘La notion de “compétence nationale” dans la pratique des Nations Unies’ in Essays H Rolin, (Paris, 1964) 284 et seq.; A Verdro ‘La compétence nationale’ dans le cadre de l’Organisation des Nations Unies et l’indépendance des Etats’, (1965) 69 RGDIP 314 et seq.; A Verdross ‘The Plea of Domestic Jurisdiction before an International Tribunal and a Political Organ of the United Nations’ (1968) 28 ZaöRV 33 et seq.; F Ermacora, ‘Human Rights and Domestic Jurisdiction (Article 2 § 7 of the Charter)’ CCHAIL, vol 124, 1968-II, 371 et seq.; N Ouchakov, ‘La compétence interne des Etats et la nonintervention dans le droit international contemporain’ CCHAIL, vol 141, 1974-I, 34 et seq.; AA Cançado Trindade, ‘The Domestic Jurisdiction of States in the Practice of the United Nations and Regional Organizations’ (1976) 25 ICLQ 715 et seq.; A D’Amato, ‘Domestic Jurisdiction’ (1992) EPIL, vol I (A–D), 1090 et seq.; B Conforti, Le Nazioni Unite, 5th edn (Padua, 1996) 134 et seq.; HG Schermers and NM Blokker, International Institutional Law, 3rd edn (The Hague/London/Boston, 1999) 142 et seq.; G Nolte, ‘Article 2(7)’ in B Simma (ed), The Charter of the United Nations, A Commentary, 2nd edn, vol I (Oxford, 2002) 148 et seq.; G Guillaume, ‘Article 2, § 7’ in JP Cot, A Pellet and M Forteau (eds), La Charte des Nations Unies, Commentaire, 3rd edn, vol I (Paris, 2005) 485 et seq. See also, P Mariotte, Les limites actuelles de la compétence de la Société des Nations (Art 15, §§ 7 et 8 du Pacte) (Paris, 1926) 110 et seq; A Verdross, Die Verfassung der Völkerrechtsgemeinschaft (Vienna/Berlin, 1926) 168 et seq.; A Van Deth, Etude sur l’interprétation du paragraphe 8 de l’article 15 du Pacte de la Société des Nations (Amsterdam, 1928); S Tachi, La souveraineté et l’indépendance de l’Etat et les questions intérieures en droit international (Paris, 1930); F Ullmann, Die ausschliessliche Zuständigkeit der Staaten nach dem Völkerrecht (Bonn/Cologne/Berlin, 1933); E von Thadden, Der vorbehaltene Betätigungsbereich der Staaten (domaine réservé): eine völkerrechtliche Untersuchung (Göttingen, 1934); JL Brierly, ‘Matters of Domestic Jurisdiction’ in BYIL, vol 6 (1925) 8 et seq.; VG Fenwick, ‘The Scope of Domestic Questions in International Law’ (1925) 19 AJIL 143 et seq.; LB Schapiro, ‘Domestic Jurisdiction in the Covenant and the Charter’, Transactions of the Grotius Society, vol 33 (1947) 195 et seq.; L Groet, ‘The “Domestic Jurisdiction” Limitation in the United Nations Charter’ (1947) 47 Columbia Law Review 268 et seq; P Vallindas, ‘The Concept “Matters which are essentially within the Domestic Jurisdiction” Contained in Article 2, Section 7 of the United Nations Charter’ (1948) 1 Revue hellénique de droit international 375–77; J Nisot, ‘Article 2, Par 7, of the United Nations Charter as Compared with Article 15, Par 8, of the League of Nations Covenant’ (1949) 43 AJIL 776 et seq.; H Wehberg, ‘Der nationale Zuständigkeitsbereich der Staaten nach der Satzung der Vereinten Nationen’ (1950) 2 AVR 259 et seq.; A Verdroet, ‘Die ausschlissliche Zuständigkeit der Staaten nach der Satzung der Vereinten Nationen’ in Essays T Perassi, vol II (Milan, 1957) 379 et seq.; Cornell Law School (ed), The Status of Domestic Jurisdiction, (New York, 1962); GJ Jones, The United Nations and Domestic Jurisdiction of States (Cardiff, 1979); B Cheng, ‘La jurimétrie: sens et mesure de la souveraineté juridique et de la compétence nationale’, (1991) 118 JDI 579 et seq.; MH Ansari, ‘Some reflection on the Concepts of Intervention, domestic jurisdiction and international obligation’, (1995) 35 Indian Journal of International Law 197 et seq.; For the passages contained in the general courses of the Hague Academy of International Law, cf R Kolb, Les cours généraux de droit international public de l’Académie de La Haye (Brussels, 2003) 36, 44, 71, 83, 85–86, 93, 105, 121, 135, 150, 174–75, 206, 207, 230–31, 250, 261–62, 284, 326–27, 396–97, 510, 768, 843 et seq., 1041, with references to the original passages. Almost all manuals of international law contain a section on matters reserved to internal jurisdiction. It is impossible to provide a complete bibliography here. For the subject’s treatment at the ICJ, see: G Arangio-Ruiz, ‘The Plea of Domestic Jurisdiction before the International Court of Justice: Substance or Procedure?’ in Essays RY Jennings (Cambridge, 1996) 440 et seq. Finally, see also, R Kolb, ‘Du domaine réservé: Réflexions sur la théorie de la compétence nationale’, (2006) 110 RGDIP 597 et seq. 344   G Morelli, Studi sul processo internazionale (Milan, 1963) 67–68 (translation from the Italian).

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This is an argument which had already been frequently put forward, notably in relation to Article 15, paragraph 8 of the League of Nations Covenant.345 Essentially, the claim is that the exception for matters of internal jurisdiction cannot, by its very nature, be separated from the merits issues. Although the Court has never expressly accepted this point, it has, nevertheless, often taken the view that an objection on the basis of internal jurisdiction was, in the circumstances of the case, so intimately linked with the substantive issues that it should be deferred to the merits phase.346 That does not mean, however, that such an argument cannot be dealt with as a Preliminary Objection, that is, in limine litis. It is perfectly possible for the Court, with the information available to it at that stage, to give the question a sufficient examination so that it is able to conclude that the dispute does indeed truly fall within the domestic jurisdiction of the State concerned (particularly if the internal jurisdiction objection rests on a so-called ‘automatic’ reservation and the Court decides to give effect to it). In such circumstances it is possible for the Court to deal with the question at the preliminary stage. If one takes the view that such an objection always goes to the merits, the effect will simply be that the Court will have made a preliminary determination of a merits issue. Just as it is possible to defer a Preliminary Objection that is inextricably linked to a merits issue, it is equally possible to make a determination in limine litis of a merits issue. In such a case the Court will perhaps declare that because of the internal jurisdiction point it has no jurisdiction to decide the dispute, or that the claim is inadmissible. The Court’s decision on that point will at the same time have a collateral (and implicit) effect on the merits since it will be the parallel equivalent to a declaration that a particular claim is without foundation in international law. In other words, the only tangible difference that the acceptance of such arguments makes lies, not in the affirmation that ‘post-preliminary’ objections do exist, but in the abandonment of the principle that decisions on Preliminary Objections must not prejudice the merits. On this basis, there are indeed certain cases in which a decision on a Preliminary Objection will also be a decision, perhaps an important one, on an aspect of the merits. This aspect is not the ‘very subject matter’ of the Court’s decision, but is treated of incidentally, as a matter of necessity, given the inextricable links between the two questions. To sum up, then, it seems mistaken to speak of objections that are ‘post-preliminary’ as a matter of logical necessity or by their very nature. Any objection can be either preliminary or a substantive defence, depending on the circumstances in which it is raised and the concrete context. There is no general rule as to the most suitable moment to raise a particular point. It can be as early as the ‘pre-preliminary’ stage, or as late as the merits phase. However, a question can, by its very nature, be so intimately linked with the substantive issues that a decision on it at the preliminary stage more or less inevitably implies the taking of a position on the substantive issues. In such a case the objection is not exclusively 345   ‘If the Council finds that the matter is “solely within the domestic jurisdiction” of one of the conflicting states, the Council declares that this state is right and that the other state is wrong according to positive international law. That means that the Council actually decides the case, although according to Article 15, paragraph 8, the Council shall not even make a recommendation’: H Kelsen and RW Tucker, Principles of International Law, 2nd edn (New York and other places, 1966) 297. See also, H Kelsen, Legal Technique in International Law: A Textual Critique of the League Covenant (Geneva, 1939) 128–29; Kelsen, above n 343, 771; H Kelsen, ‘Théorie générale du droit international public’ CCHAIL, vol 42, 1932-IV, 305. See also, G Arangio-Ruiz, ‘Le domaine réservé – L’organisation internationale et le rapport entre droit international et droit interne’ CCHAIL, vol 225, 1990-VI, 69 et seq.; A Verdross, Die Verfassung der Völkerrechtsgemeinschaft (Vienna/Berlin, 1926) 175. 346   See, eg the case on the Right of passage over Indian territory (Preliminary Objections), ICJ Reports 1957, 149–50.



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preliminary, but that does not make it necessarily wrong to deal with it at the preliminary stage.

5.  PERSONAL JURISDICTION (RATIONE PERSONAE): WHO CAN APPEAR BEFORE THE COURT AS A PARTY?347

a)  General Aspects Every court is open to certain subjects-of-law and closed to others. In municipal law, this distinction is not always apparent, given that the majority of courts are open to everyone who is subject to the law of the land, individuals, associations, foundations, commercial companies, States and so on. Here, too, there are limits: minors are ‘subjects of law’ but cannot appear before a tribunal as parties; in some legal orders, animals are recognised as having a partial standing as subjects of law but, of course, cannot appear in Court as parties. In the international community, the distinctions are markedly sharper still. The individual is, in international law, in much the same position as a minor: international law focuses on States, as the law applicable between them, that is the jus inter potestates. There is thus nothing surprising in the fact that the personal jurisdiction of international courts is tightly defined. Many international courts are open only to States (for example, the ICJ); these are ordinary courts of international law. Sometimes they are open exclusively to individuals as legally defined348 (for example, the European Court of Human Rights); and these are special tribunals. The right of access to a court or tribunal colours the entirety of its activities. Its subjectmatter jurisdiction, the other conditions of access to it, and even the substantive law that it applies and sets out in its jurisprudence, will largely be determined by the kind of subjects of law that have the right to bring and defend cases before it. Being open to individuals, with their ‘private’ problems, is not at all the same as being open exclusively to sovereign States, which are there to present public or ‘political’ disputes in the widest sense of the term. The question profoundly affects the entire range of the Court’s activities, the whole field in which it has jurisdiction to hear cases, and all its procedures. The personal capacity to appear before a court or tribunal is thus a question fundamental to the latter’s identity and functioning. As far as the ICJ is concerned, the following questions arise. A fundamental question, normally coming first, and one which the Court must satisfy itself about. As the Court has justly pointed out, the question of its personal jurisdiction is ‘fundamental’. Access to the Court is a question of international public policy (ordre public), which the Court itself must consider of its own volition. It is normally dealt with at the most preliminary stages of judicial enquiry into the case. Both Article 34, paragraph 1 of 347   See, amongst others Hudson, above n 93, 383 et seq.; Dubisson, above n 49, 134 et seq.; Rosenne, above n 45, vol II, 605 et seq.; Zimmermann, Tomuschat and Oellers-Frahm, above n 10, 545 et seq. On the personal jurisdiction, see also A del Vecchio, Le parti nel processo internazionale (Milan, 1975) 11 et seq.; Bos, above n 207, 120 et seq.; V Bruns, ‘La Cour permanente de Justice internationale – Son organisation et sa compétence’ CCHAIL, vol 62, 1937-IV, 606 et seq. 348   Meaning physical private persons, but also to some extent private legal persons such as commercial enterprises or foundations.

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the Statute and Article 35 apply, both being concerned with the right to be a party in a case before the Court. The Court itself put the point very clearly in the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Croatia v Serbia, Preliminary Objections, 2008), referring back in this regard to statements in its earlier jurisprudence349 that the question of access to the Court is a fundamental one which must be dealt with prior to any other question (§§ 66–67): ‘[T]he question whether or not a State meets the conditions of Article 35 of the Statute can be regarded . . . as an issue preliminary to the examination of jurisdiction’(§ 66); ‘[T]he Court . . . must necessarily examine the two questions in a prescribed order, so that it could not consider the second (jurisdiction ratione materiae) until after it has answered the first (access to the Court) in the affirmative’ (§ 67). We have already considered the extent to which these considerations justify the ‘pre-preliminary’ treatment of a claim of want of personal jurisdiction (ratione personae) – whether the objection is raised by the Court itself or by a State which is a party to the dispute – and concluded that rigid hierarchy of arguments was not justified.350 Nevertheless, as a general rule, meaning in the absence of any special reason to do otherwise, the question of access to the Court, or of the right to appear before it or of its personal jurisdiction (three ways of expressing the same idea) deserves a place on the agenda right at the outset, because it is to some extent, intrinsically prior to the other questions that may arise. A defined question (subject-matter jurisdiction) or a claim generally (consensual jurisdiction) can be disputed only by a party with the right to appear before the Court: otherwise the question or claim is unfounded. Moreover, as a general rule, the personal jurisdiction question is legally the easiest one to resolve, normally requiring only very limited investigation into issues that are usually rather separate from the merits of the case. This is true of Article 34 of the Statute even more than of Article 35. The arguments that can be dealt with through the greatest economy of procedure, and that are the most distinct from the merits (that is, with the smallest connection to the substantive issues) are obviously the ones that preferably should be considered at the very beginning. As we have also already seen, that is true in most cases but not in all: it may be very complicated an issue, factually, legally and politically, to decide if a certain entity is a State in the sense of international law. Provisions in the Statute. The question of the ICJ’s personal jurisdiction and of the right to appear before it as a party is regulated by Article 34, paragraph 1, and Article 35 of the Statute. Article 34, paragraph 1 limits access to States: ‘Only states may be parties in cases before the Court.’ Article 35 indicates the legal position of States which are not parties to the Statute, setting out the restrictive conditions under which the Court is available to them: 1. The Court shall be open to the states parties to the present Statute. 2. The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court. 3. When a state which is not a Member of the United Nations is a party to a case, the Court shall fix the amount which that party is to contribute towards the expenses of the Court. This provision shall not apply if such state is bearing a share of the expenses of the Court. 349   Case on the Legality of the use of force (Preliminary Objections, Serbia and Montenegro v Belgium) ICJ Reports 2004-I, 298 et seq., 299, § 46; case on the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Serbia and Montenegro, merits, 2007) §§ 122, 132. 350   See above, section 4(h).



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The Rules add nothing of any great significance to this point. The question is one of principle and is therefore regulated by the Court’s constitutive text, that is the Statute. Being a State does not in itself confer the right to be a party to a case before the Court. In addition to being a State, the entity in question must have ratified or acceded to the Statute. It seems perfectly reasonable that the Court should in principle be available only to States which have accepted its constitutive text. This is so because the rules for the functioning of the Court and the legal value of its judgments are opposable only to States which are bound by the Statute. Furthermore, only States in that category contribute to the ordinary expenses of the Court. It would be both strange and unfair if third States could have all the benefits without participating in the burdens. At the same time, the intelligent and sensible wish to open the Court to as many States as possible in order to contribute through the peaceful resolution of disputes, to the promotion of peaceful and friendly relationships throughout the international community, is a reason to give a liberal interpretation to the conditions of access to the Court, and in any event provides a solid reason not to put unnecessary and irritating obstacles in the way of such access. The golden thread running through Article 35 of the Statute, on the subject of access, is to give the widest possible access to the Court, for the purposes of peaceful resolution of disputes, whilst at the same time maintaining a form of participation in the Statute as is necessary for the Court to function properly and to maintain an equality of burdens as between all parties before the Court. The Statute is therefore designed to balance the fundamental requirements of the most liberal access to the justice of the Court, on the one hand, and the equality of States before the Court, on the other. What is the exact legal relationship between Article 34, paragraph 1 and Article 35 of the Statute? The former regulates the general quality of all parties to cases before the Court: they must be States, within the meaning given to that word by public international law. Article 35 adds to that a special quality required of all States participating in cases: they must have ratified the Statute or acceded to it, or else must have undertaken, on an ad hoc basis, to respect the rules and contribute financially to the Court’s expenses, for the purposes of the particular case in which they desire to be admitted as a party. The right to appear before the Court, as a party, in a concrete case, arises from the aggregation of these two requirements. You must be a State and you must have fulfilled, as regards the Statute, the conditions laid down in Article 35. Article 35 contains a fundamental bifurcation. Paragraph 1 regulates the ordinary route laid down in the Statute for participation in a case: the ratification or accession to the Statute. Paragraphs 2 and 3 regulate the extraordinary route: a State can participate, without becoming a party to the Statute, on the basis of conditions decided by the Security Council. This enlarged possibility is the most important concession the draftsmen could have made in favour of opening access to the Court as widely as possible to all States that are involved in disputes and wish to seise the Court of them. Critical date.351 Under the Court’s jurisprudence, the only critical date for deciding questions of jurisdiction and the admissibility of the claim is the date when the claim is introduced before the Court. Events supervening will not divest the Court of its jurisdiction once it is established – this is the principle of the forum perpetuum or perpetuatio fori. There is no room for doubt that the principle applies to conditions for access on the basis   A Zimmermann, ‘Article 35‘ in Zimmermann, Tomuschat and Oellers-Frahm, above n 10, 575–76.

351

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of consensual jurisdiction. But does it also apply to conditions of access ratione personae? Or must the latter, being questions of international public policy (ordre public), be raised by the Court itself at any time, assuming that a case has been duly begun in regular fashion? With a little ingenuity it is possible to imagine circumstances in which, after the case has already begun, an entity ceases to be a State within the meaning of the word in public international law. It is also possible to imagine, however unlikely it may be, that a State involved in a case is expelled from the United Nations pendente lite. The Court has suggested that it wishes to hold to its existing jurisprudence as to the critical date, in any event as regards Article 35 of the Statute (it has, on the other hand, given no such indication in relation to Article 34, § 1). In the case on the Legality of the use of force (Serbia and Montenegro v Belgium, Preliminary Objections, 2004), the Court decided the status of Serbia as a Member or non-Member of the United Nations for the purposes of applying Article 35, and made its decision exclusively as a function of the moment the Application was lodged.352 On the basis of this line of jurisprudence, it is obvious that if a State were expelled from the United Nations after a case had begun, it would have no effect on the continuation of the case. As regards Article 35, this is wise jurisprudence. Participation in the United Nations, in the Statute or on the conditions of Security Council Resolution 9, is required only at the moment the case is introduced before the Court, it being understood that the obligations arising from the texts continue to be binding until the end of the case, independently of any question of expulsion or withdrawal. Moreover, Resolution 9 makes a corresponding provision expressis verbis as regards any modification by the Security Council of the rights created by the Resolution (§ 4);353 the same principle applies to modifications in the disputing parties’ declarations. For these too, the application is the only critical date. As regards Article 34, paragraph 1, on the other hand, the question is less easy to decide. The condition requiring a party to be a State within the meaning of that word under public international law seems so fundamental that, if a party to the case ceased to satisfy the requirement while the case was proceeding, the Court would probably be obliged, of its own volition, to take account of the fact. It would, however, have to give a strict interpretation to the implicit exception to the principle of the forum perpetuum. Where there is doubt, the supposition ought to be that an entity’s statehood persists. It has to be admitted, however, that the question has never arisen in the case law and, that being so, we should be looking for a principled answer rather than a pragmatic one. It seems that if a subject of law which is also a State ceases to exist, the consequence will be that the entity in question will cease to be a claimant (or respondent) within the meaning of the law as applied by the Court. That being so, the Court could not give a decision, and in particular could not give an executory decision requiring further acts to be done by the entity in question. This radical event, the disappearance of the very subject of law concerned, whose existence is a presupposition of the proceedings before the Court, might be treated as an exceptional justification for departing from the forum perpetuum principle. Before a legal forum can be ‘perpetuated’, it is necessary to presuppose the continuity of the case: if the case itself ceases to exist, there is nothing to perpetuate.   ICJ Reports 2004-I, 314, § 91.   ‘The Security Council reserves the right to rescind or amend this resolution by a resolution which shall be communicated to the Court, and on the receipt of such communication and to the extent determined by the new resolution, existing declarations shall cease to be effective, except in regard to disputes which are already before the Court’ (italics added). See ICJ Yearbook 2006–2007, no 61, 110. 352 353



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However, there remains the question of State succession: can or must the State assuming responsibility for the territory of the dissolved State continue the case at the ICJ? It seems that the question must be resolved by distinguishing between a new State that is continuator and one that is successor of the vanished State.354 If the legal personality continues, so will the case with the new State as respondent or defendant. If the new State is merely a successor, the case cannot automatically continue. It then depends on the question as to whether or not the new State has given consent to take up the position of the defunct State. Accordingly, the case will continue or not. The Court dealt with the latter situation in the Genocide case (2007). Bosnia-Herzegovina had brought that case against Serbia and Montenegro. Subsequently, Montenegro became independent. The Court emphasised that the new sovereign Republic of Montenegro was not the continuation of the former State of Serbia and Montenegro, and that it could not therefore have acquired standing as defendant. Moreover, the Republic of Montenegro did not consent to the jurisdiction of the Court. It followed that only Serbia remained as defendant to the case.355

b)  ‘Only states . . .’, Article 34, paragraph 1 of the Statute. Article 34, paragraph 1 lays down the general capacity of an entity to be a party to a case before the Court. In a text which is a model of legal clarity, it limits this capacity to States: ‘Only states may be parties in cases before the Court.’ There has been some debate as to whether Article 34, paragraph 1 is a rule of jurisdiction (either personal356 or general357), or whether it is rather a rule as to the capacity to be a party to a case, prior to jurisdictional questions.358 A majority of authors consider it a rule of personal competence concerning the legitimae personae standi in judicio.359 These differences are theoretical, and bear particularly on the interpretation and categorisation of the respective systems. The only aspect that has any practical importance is the question whether Article 34, paragraph 1 creates a question prior to all other jurisdictional issues. As we have seen, the answer to that is at one and the same time positive and negative: positive in the sense that this is an aspect which the Court will consider at the very outset of a case; negative in the sense that a Preliminary Objection on the ground that there is no personal jurisdiction, whether or not raised by the Court itself motu proprio, need not necessarily be dealt with before any other question. The ‘States only’ restriction reflects the world-picture of international law at the time the Statute was drawn up, that is in the 1920s. In those days the world was seen as essentially an inter-State affair. The international community of the time has been called a ‘Lotus society’360 – a reference to a famous PCIJ case of 1927. The Lotus decision highlighted the fact 354   As to this distinction, see the careful analysis of A Zimmermann, Staatennachfolge in völkerrechtiche Verträge (Berlin, 2000) 46 et seq. 355   ICJ Reports 2007-I, 73 et seq., §§ 67 et seq. 356   cf eg AP Fachiri, The Permanent Court of International Justice, 2nd edn (Oxford/London, 1932) 62; Dubisson, above n 49, 134; B von Stauffenberg (ed), Statut et Règlement de la Cour permanente de Justice internationale – Eléments d'interprétation (Berlin, 1934) 218. See earlier the Report of the Sub-Commission to the Third Commission of the Assembly, in League of Nations, Acts of the First Assembly, Meetings of the Commissions, vol I (Geneva, 1920) 532. 357   Abi-Saab, above n 18, 61 et seq., 65 (‘general jurisdiction ratione personae’). 358   Bos, above n 207, 120–21. 359   See, eg Schwarzenberger, above n 175, vol IV, 180; del Vecchio, above n 347, 11–12. 360   PM Dupuy, ‘L’unité de l’ordre juridique international – General Course of Public International Law (2000)’ CCHAIL, vol 297, 2002, 93 et seq.

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that international law ‘governs the relationships between independent States’, proceeding from their will, and anchored in their sovereignty, so that it was impossible to presume that there were any ‘limitations on the independence of States’, unless they were clearly shown to result from a voluntary renunciation of certain rights, effected by consent and agreement.361 In those days international organisations were only just coming into existence. They were still largely dominated by their members, the States, as witnessed by the voting rule generally applicable at the time, that is, the requirement of unanimity.362 An autonomous and active place in public international law had yet to be carved out for individuals. The individual was, as yet, merely an indirect subject (or object) of regulation by treaty and customary law, and was, in any event, not a direct subject of international law.363 Origins of Article 34 paragraph 1. The formal origin of Article 34, paragraph 1 of the Statute seems to lie in Article 14 of the League of Nations Covenant, the relevant part of which read: ‘The Court shall be competent to hear and determine any dispute of an international character that the parties thereto submit to it.’ If the word ‘parties’ seems, in itself, sufficiently neutral in tone to cover every kind of subject of law that is a party to a dispute, the interpretation given to those words by the 1920 Committee of Jurists faithfully reflected the ‘Lotus Society’ thinking of the period. The Committee drafted Article 34, paragraph 1 of the PCIJ Statute to provide a continuation of Article 14 of the Covenant: ‘Only States or Members of the League of Nations can be parties in cases before the Court.’ The text differs from the current one in that it makes separate mention of the ‘Members of the League of Nations’. That formula was considered to cover state entities with a particular constitutional status. It was designed in this way because some of the British Dominions were Members of the League, for example the Union of South Africa, but were not habitually called ‘States’,364 even though they were certainly relatively independent public collectivities, and in that sense States in the material sense of the term. With the reforms brought in by the 1931 Statute of Westminster, these Dominions, with their ties to the British Crown, obtained a more pronounced degree of independence and became, both de facto and de jure, independent States. In addition, all the Members of the League were States or public collectivities freely governing themselves.365 The drafting to be done by the Committee of Jurists on this aspect was thus able to be quite quickly done, on a linear basis which took account of these facts. Article 31 of the preliminary draft establishing a Permanent International Court of Justice, prepared by the consultative Committee of Jurists (1920), provided that: ‘The Court shall take cognisance of disputes between States.’366 In the course of debates in the Sub-Commission of the Assembly’s Third Commission, Mr Politis pointed out that only States would have the necessary quality to present themselves before the Court.367 At this juncture, Mr Fromageot proposed an amendment that would modify the text to read:   PCIJ, Series A, no 9, 18.   See, eg Art 5, § 1 of the League of Nations Covenant. 363   L Oppenheim (RF Roxburgh (ed)) International Law, Peace, vol I, 3rd edn (London, 1921) 460. 364   League of Nations, above n 356, 378. cf MO Hudson, La Cour permanente de Justice internationale (Paris, 1936) 405; Fachiri, above n 356, 63; Schwarzenberger, above n 175, vol IV, 180–81. This clause was eliminated by the Committee of Jurists drafting the Statute for a new international Court: UNCIO, vol 14, 140. 365   Art 1 of the Covenant. 366   League of Nations above n 356, 488. For a complete overview of the travaux préparatoires on Art 34 of the Statute, cf von Stauffenberg, above n 356, 217 et seq. 367   Discussion of the preliminary draft: Procès-verbaux of the meetings of the Sub-Commission of the Third Commission in League of Nations, above n 356. 361 362



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‘Only States which are Members of the League of Nations may appear before the Court.’368 This amendment was adopted there and then.369 The text as so amended then featured in the Report of the Sub-Commission to the Third Commission,370 in the Sub-Commission’s preliminary draft,371 and in the final text of the Statute. In discussion at the Committee of Jurists at Washington in 1945, where their job was to draw up a Statute for a new Court, a number of proposals were made with a view to conferring the right to be a party before the Court on international organisations.372 The opportunity to open up the Court to entities other than States was, however, decisively rejected.373 The text of the Statute definitely allows only States to be parties to cases. Interpretation of the word ‘States’. In 1920 it was not entirely clear how to interpret the word ‘State’. The opening of the PCIJ to ‘Members of the League of Nations’ (Dominions and self-governing colonies), which, by implication, were not ‘States’ in the full sense of the term, but which were included because they were at least quasi-States, shows a certain lack of clarity even at the level of the text itself. In addition, there were continuing doubts about the extent to which States could be joint parties before the Court. It was accepted that States could make common cause: thus, in the Wimbledon case (1923),374 the United Kingdom, France, Italy and Japan made common cause case against Germany. But could States also make common cause by bringing an action in the name of an association of States, that is an international organisation? Could an organisation be a party before the Court qua association of States, the individual States’ right to seise the Court of the case being transferred to the organisation as their common agent? It might seem that Article 34 paragraph 1 excluded this. Commentators of high authority, however, felt able to express doubts on this question far into the era of the PCIJ, as late as 1943.375 And there were other possibilities too: could a State appear as a party before the Court as the legal representative of a group of States, or even, as the case might be, as the representative of an international organisation?376 Still in 1954, a commentator could take the view that ‘what a State can do, a group of States, even if organized as an independent legal person, can also a fortiori do’,377 thereby implying that international organisations had the right of access to the Court. This was, however, the view of only a very small minority. It was incompatible with the 1945 travaux préparatoires (in the course of which the question of access by international organisations had been amply discussed, and the idea had in the end been turned down) and with the   Ibid, 378.   Ibid, 379. cf also the Minutes of the meetings of the Committee of Jurists, 14 June – 24 July 1920 (The Hague, 1920) 204 et seq., 579 et seq., 723, as to the exclusion of private persons. 370   League of Nations, above n 356, 532. 371   Ibid, 543. 372   See, eg the Australian proposal, UNCIO vol 14, 139–40. Other proposals in the same sense have been formulated since then. At the institutional level, see Castrén (Finland) Official Documents of the General Assembly of the United Nations, 25th Session, 1,210th meeting, 209, § 15; Javits (USA), ibid, 1,211th meeting, 212, § 9. As to legal doctrine, see, eg H Lauterpacht, The Development of International Law by the International Court (London, 1958) 181, fn 14. 373   cf the draft Report of the Commission of Jurists, UNCIO vol 14, 633; the final Report on the draft Statute prepared by that Commission, ibid, 697; and the Report on the draft Statute by Commission IV on judicial organisation, UNCIO, vol 13, 362. 374   PCIJ, Series A, no 1. 375   Hudson, above n 93, 383. 376   PCIJ, Series C, no 68, 272. 377   L Jully, ‘Arbitration and Judicial Settlement – Recent Trends’ (1954) 48 AJIL, 388. 368 369

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very concept of an international organisation. An international organisation is normally an association of States with its own independent legal personality.378 By bringing a case before the Court, an organisation would be asserting not the rights of its members, but its own rights. In other words, it would not truly ‘represent’ its member States, but would be acting in its own name, its own legal personality coming between it and them. Not being a State, it could not appear before the Court as a party acting in its own name. Only an association of States having no independent legal personality, and merely acting in their collective name, can be envisaged as seising the Court in a contentious case. That amounts to the bringing of an action by a group of States who have come together for the purposes of the action, as happened in the Wimbledon case or in the case of the ‘Confederation of the six nations of the Greater Riviera’, which we will come to in a moment. In such a case, no independent legal personality stands between the association and the States; legally, the association is nothing more than the States themselves, acting as a group. Is the expression ‘States’, in the sense of Article 34, paragraph 1 of the Statute, a reference to general international law, having the same meaning as in general international law? Or does it have a more specialised meaning, applicable only to the provision we are considering? Is the definition a matter of general international law or a matter of lex specialis? Under general international law, the definition of a ‘State’ turns on the conjunction of the four classic elements – the existence of a territory, a population, a government and sovereignty.379 For a ‘state’ to exist in international law, recognition is not essential: it is not a constitutive element. According to one school of thought, it would be possible to substitute for the word ‘sovereignty’ the words ‘international immediacy’ (Völkerrechtsunmittel­ barkeit).380 International immediacy is functionally equivalent to sovereignty. The concept was thought up by commentators hostile, for theoretical and political reasons, to the concept of sovereignty itself, which they considered to be conceptually mistaken and politically pernicious. By using the concept of ‘immediacy’, in this sense of ‘no-mediacy’, it is possible to avoid the connotation of absolute and uncontrollable power that is unavoidably associated with the old expression ‘sovereignty’. An entity endowed with a territory, a population and a government is a State in the sense of public international law, and not just within the meaning of the constitution of a federal entity, provided it is directly subject to international law without the intermediation of another judicial order. That is not true of a federated state (a state within a federation). Such a State is certainly a ‘State’ under the municipal 378   The Court itself has recognised that an organisation possesses such a personality distinct from the legal personalities of its members: case on Reparation for injuries suffered in service of the United Nations, ICJ Reports 1949 174 et seq. 379   See various manuals of public international law, eg M Shaw, International Law, 6th edn (Cambridge, 2008) 197 et seq.; or P Dailler, M Forteau and A Pellet, Droit International Public, 8th edn (Paris, 2009) 449 et seq. 380   See, eg H Kelsen, ‘Théorie générale du droit international public’ CCHAIL, vol 42, 1932-IV, 18889: ‘The coordination of different State rights arises from the fact that their validity appears to arise by delegation from international law, and the field within which they are valid appears to be delimited by international law. And the coordination of such rights does not result only from these facts. State rights, or the legal collectivities constituted by them – States – are legal entities, existing on the same legal plane because, and in as much as, they are juxtaposed, not superimposed, in relation to international law. They are juxtaposed because, and in as much as, they are all situated at a level below international law, and below nothing else; because they are not situated below any other legal order, and in particular not below any state order; because they are, in this sense, immediately subject to international law. This fact, that State legal orders coordinated between themselves are immediately subordinate to international law, is expressed in the term “State sovereignty”.’ (our translation) For a critique of the concept of sovereignty, see, eg N Politis, ‘Le problème des limitations de la souveraineté et la théorie de l’abus des droits dans les rapports internationaux’, CCHAIL vol 6, 1925-I, 10 et seq.; S Séfériadès, ‘Principes généraux du droit international de la paix’ CCHAIL, vol 34, 1930-IV, 353 et seq.; L Henkin, ‘General Course of Public International Law – International Law, Politics, Values and Functions’ CCHAIL, vol 216, 1989-IV, 23 et seq., 26.



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law of the federation, because it possesses all the attributes of a public collectivity, that is a territory, a population and a government. But it is not ‘sovereign’, since it does not enjoy ‘international immediacy’. The federated State is not directly subject to international law, but only indirectly, via the law of its federation. Consequently it is neither independent nor sovereign, and in the last resort is not free to decide public questions on an entirely independent basis. In summary, then, on this view of things, Article 34, paragraph 1 of the Statute refers directly to general international law and to the traditional interpretation of the word ‘State’. This reading of the concept makes it possible to deal adequately with most of the questions raised by practical experience. The Court is immediately in a position to refuse to engage with any claim brought by a private person or association.381 And when a person claiming to act in the name of ‘Confederation of the Six Nations of the Greater Riviera’ tried to seise the Court of a dispute, the Registrar responded by referring to Articles 34 and 35 of the Statute, the Court then confirming what the Registrar had said.382 Consequently the nations in question – there was no indication of exactly which ones were involved – would have had to seise the Court of the case in their own names, even though they did still have the right to act jointly. In the same vein, when the Court was solicited by a group of Armenians, the Registrar also referred them to Article 34, paragraph 1 of the Statute: the group did not constitute a State.383 In 1939 an Application on behalf of the government of Euzkadi (in Spain) reached the Court. The Registrar pointed out that under Article 34, paragraph 1 of the Statute the Applicant had no right to bring an action, since it did not represent a State.384 The same practice has been followed since the ICJ superseded the PCIJ. The ordinary standard for deciding whether an entity is a State within the meaning of Article 34, paragraph 1 of the Statute is thus the one laid down by general international law. 381   A careful distinction needs to be made between, on the one hand, the right to appear as a party before the Court in order to assert one’s rights, and, on the other, diplomatic protection, as to which States may bring claims for the benefit of their nationals if their internationally recognised rights have been violated by the illegal action of another State. The State to which the injured national belongs can, subject to certain substantive and procedural legal conditions, bring a claim before the Court for the violation of international law against the person of its national. In doing so, the State is not going against the principle that an individual cannot be a party to a case before the Court, since the dispute, at this level, is an inter-State one. The protecting State asserts its ‘own rights’ which have been indirectly violated in the person of its national. In other words, diplomatic protection rests on the rule that all States are entitled to have international law respected in the persons of their nationals when in other countries. This is a long-established rule, dating from the original decision in the Mavrommatis case (1924) PCIJ, Series A, no 2, 12. On the other hand, when individuals directly seek to bring claims to the Court (and this happens quite frequently), the Registrar sends them a standardised letter stating that access to the Court is not available to them, and citing Art 34, § 1 of the Statute. Statistical information about such claims is to be found in the Court’s Yearbook, under the heading ‘Applications from private persons’. An analysis of the Yearbooks shows how widespread this phenomenon in fact is. Since the time of the PCIJ, hundreds of requests of this type have been received at the Registry (see Series E, where statistics are provided; and see also Hudson, above n 93, 396; Bruns, above n 347, 610-611; and von Stauffenberg, above n 356, 226. See, eg PCIJ, Series E, no 1, 153–56; no 2, 98; no 3, 108–11; no 4, 132; no 5, 150–53; no 6, 174; no 7, 181–85; no 8, 149–50; no 9, 77–79; etc). In the early years, many of these claims were based on peace treaties and brought by expatriates. On at least one occasion in 1922, the claim was sent to the Secretary-General of the League of Nations, with a request that it be circulated to the members of the League’s Council. In the other cases, the approach was terminated via the Registrar’s letter. When the ICJ came into being, the number of claims by individuals grew (see, eg the Court’s Yearbook 1947/1948, 45, Yearbook 1948/49, 42; Yearbook 1949/50, 45; etc). Quite soon, the Court was receiving hundreds, even thousands, of such claims every year. For example, from 1 August 1984 to 31 July 1985 the Court received some thousand applications of this kind (ICJ Yearbook, 1984–85, 185); from 1 August 2006 to 31 July 2007, it received approximately 2,000 of them (ICJ Yearbook, 2006–2007, 296). 382   PCIJ, Series E, no 8, 158. 383  Ibid. 384   Hudson, above n 93, 392.

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In none of the cases mentioned above did either the Registrar, or the Court itself, seek to develop any special criteria in some way limiting the general concept of a State; the question thus left to the UNGA when admitting a State to the ICJ’s system. Nevertheless, the question remains: can the expression ‘States’ in Article 34, paragraph 1 have a special and occasionally wider meaning, in certain particular cases? Even if, however, the answer to this question were affirmative, the claims concerned would immediately encounter some legal obstacles: such an entity would not be a party to the Statute, since the Statute is not open for ratification or adherence except by ‘States’ within the meaning given to that expression by general international law. Article 35, paragraph 3 which also mentions only ‘States’, has not until now been applied to any entity other than a public one fulfilling the criteria for statehood under general international law. The question could become a serious one only in relation to entities described as ‘de facto régimes’,385 not recognised as States, even though they resemble States on all points (for example, the Republica Srpska, the Republic of Transnistria, the Republic of Northern Cyprus, Abkhazia). The difference between such regimes and States in the full sense of the term is that the creation of a de facto régime suffers from a legal deficiency of such gravity that the resulting territorial entity is not recognised as a State by the States of the international community. This situation is normally the reflection of a duty not to recognise legal situations created by the use of illegal force or in violation of the principle of the selfdetermination of peoples. In international law, the duty of non-recognition effects a capitis diminutio of the entity in question. Although on the basis of the practical realities such entities might be considered States, and although the practical realities are normally the only decisive factors, the violation of certain international norms that are considered essential obliges all States, and also all international bodies, to avoid recognising them as States, either formally or by conduct. As one of the UN’s principal organs, the ICJ is bound very directly by these norms of international public policy (ordre public), which are, after all, applied and coordinated by the UN itself. For these reasons the Court cannot allow such a de facto entity to appear before it as a party, a fortiori given that such entities are, more often than not, so heavily under the control of another State that they do not enjoy the independence requisite for a sovereign State. There is, however, no getting away from the fact that a number of delicate questions can arise. There can be doubts as to whether the creation of a State does or does not violate certain fundamental norms. The case of Kosovo (1999–2008) is a fine example. On one side it was claimed that Security Council Resolution 1244, recognising the territorial integrity of Serbia effectively prohibited the creation of a Kosovar State. On the other side, it was argued that Resolution 1244 was not designed to freeze Serbian territory in such a way as to prevent secessions from within, and that the independence of Kosovo did not result directly (indeed, at most could be said to result indirectly) from the illegal use of force in 1999. It can be difficult for the Court to have to take a clear position, even indirectly, on such delicate issues – quite apart from the fact that, in the case of Kosovo, the Court was seised of a request for an advisory opinion, and that it did not consider Kosovo’s declaration of independence contrary to international law.386 However, the question whether Member States of the UN could recognise Kosovo was not addressed, since it was not covered by the request for the advisory opinion. Resolution 1244 might indeed have prohibited such recognition, while at the same time not making the declaration of independence unlawful, for the reason that it 385   The classic work on this topic is JA Frowein, Das de facto-Regime im Völkerrecht (Cologne/Berlin, 1968). See also JA Frowein, ‘De facto Regime’ (1992) 1 EPIL, 966 et seq. 386   Case on the Conformity to international law of the unilateral declaration of independence in relation to Kosovo, Opinion of 22 July 2010, §§ 78 et seq.



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did not address itself to the persons who had proclaimed independence at the municipal level. Kosovo is therefore a good example of the intricate nature of the questions raised under this heading. To sum up, then, it can be said that the definition of a State within the meaning of Article 34, paragraph 1 is subject to the same criteria as under general international law, or that this is at least a reasonable presumption. It is indeed improbable that those who drafted the Statute intended anything else, whether in 1920 or in 1945. In contentious cases, therefore, States as so defined have a monopoly of access to the Court. In 1920, when the Statute was first drafted, entities other than States were still minor players in the international legal order, and it is therefore easy to understand the way this provision of the Statute was drafted – in terms which have never been modified or amended as a matter of positive law. One entity representing another. Another problem is to what extent a State, appearing as a party before the Court, can legally represent another entity, which may not itself be a State. On strict analysis, diplomatic protection does not fall within this category, since the Court clearly stated, in the 1924 Mavrommatis judgment,387 that in such cases States are not representing the individuals concerned but are asserting rights of their own. There have, however, been cases in which States have acted in the name of dependent territorial entities, for example, on behalf of protectorates. There may indeed be an element of uncertainty, in some cases, as to precisely in whose name the government bringing the action is intending to move the Court – whether it is in its own name or as the representative of the protected entity. Thus, in the case on the Rights of nationals of the United States of America in Morocco (1952), the USA raised a Preliminary Objective with a view to clarifying in whose name the French government was claiming to act. The French government stated 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’.388 In light of this statement, the government of the USA withdrew its Preliminary Objection. Legally, France was thus acting both in its own name and in the name of its protectorate (since it was a question of foreign policy, France did not need the consent of Morocco to represent it in this way). However, the protectorate treaty also gave France powers of its own to act on behalf of Morocco. The Court’s practice sheds no further light on the subject. International practice does not seem to make representation of this kind necessary, as eloquently testified by the absence of any casuistry by the Court in this field, rich though the Court’s wider jurisprudence is in exceptional situations and other idiosyncrasies. One view is that a State may represent another entity before the Court, even if the latter is not a State. The agreement providing for such representation, or the legal relationship giving rise to the representation, giving full powers to the representing State, is res inter alios acta, an affair between others, one that does not concern the Court. Consequently it does not affect proceedings before the Court. In a case before the Court, the only things which count are that two States are in dispute, and that the dispute between them relates to an issue of public international law (following the cases on the Serbian loans and the Brazilian loans, the dispute can even be essentially referable to an issue of municipal law389). There is no reason for the Court to refuse to hear such a claim on the grounds that the   Mavrommatis case (1924) PCIJ, Series A, no 2, 12.   ICJ Reports 1951, 110. 389   See below, section 6(e). 387 388

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claimant or the respondent is deliberately trying to get round Article 34, paragraph 1 and thus possibly breaching the principle forbidding the abuse of law (Rechtsumgehung).390 On this view, the purpose of Article 34, paragraph 1 of the Statute is not to prevent the Court hearing cases affecting persons other than States; the diplomatic protection practice shows this conclusively, even though the Court chose to interpret it in the semi-fictitious light of the assertion by a State of ‘rights of its own’. The function of the statutory provision is simply to prevent entities other than States from being, formally and directly, parties to cases. The representation of a third party or entity does not infringe this rule: the applicant is still a State. The Court has nevertheless to be careful to satisfy itself that there is an inter-State dispute (which in such circumstances might easily be a missing element), and that the dispute relates, at least in principle, to an issue of public international law. In very broad terms, then, one can sum up this view by saying that it requires the Court to show openness and flexibility. Another view is as follows. Access to the Court is certainly open to States acting as representatives. At first sight there is no problem in relation to Article 34, paragraph 1 of the Statute. It is more a question of the claim’s admissibility. Normally, a Claimant State will in effect need to justify its locus standi by pointing to a violation of its rights. It will not necessarily be entitled to rely before the Court on an arrangement whereby it appears there as the representative of another entity. No provision applicable to proceedings before the Court says that a State can, by agreement freely made, represent another entity, even another State. If such a provision had been included in the Statute, it would have made it easy to dispose of the restrictions in Article 34, paragraph 1 of the Statute, and even those in Article 35. The situation is different if international law itself accepts that a State can assert certain rights connected with other subjects of law: whether in the field of diplomatic protection (where the State does not represent its national but asserts its own rights), or, formerly, in relation to protectorates (and here too, the State is asserting what, as a matter of law, are rights reserved to it as the protecting power). Of course it might be considered helpful to avoid excessive formalism, and to attempt, in this field as in others, to make access to the Court, for the purposes of submitting direct or indirect disputes to its judgment, as widely available as possible for all States, whether or not, when they appear before the Court, they do so as representatives of other entities. The question, however, is whether this eminently respectable desire involves sacrificing all the restrictions laid down in the Statute, such as the fundamental ones relating to personal jurisdiction or the right to appear as a party before the Court, which it would then be very easy to get round by simply giving a mandate to a State. The answer to this question must take account of the fact that the restrictions on the Court’s jurisdiction ratione personae are a matter of the Court’s jus cogens and therefore cannot be displaced by an agreement to contrary effect. The exceptions under general international law do not contradict this rule. In such cases, there is no 390   Sometimes the law prohibits the means, but not the end: this is called a prohibition against means (interdiction de moyens, or Wegverbot). The use of other means to achieve the same result cannot be considered fraudulent. On the one hand, there are cases in which the law forbids a certain result, sometimes also mentioning, on an accessory basis, the most common means usually used to achieve that result (Zielverbot). The choice of other means will, in such a case, be illegal, and in a sense fraudulent. In addition to that distinction, there is the fact that a norm can be concerned with a specific objective in itself, without, however, wishing to prevent its being used in the pursuit of other objectives. In such a case, the fraud will be limited to cases where the intended results diverge from the intentions of the norm to such a degree that they seem to pervert its meaning. If the norm allows for only one permissible objective, there will, of course, be wider scope for considering relevant actions abusive and/or fraudulent.



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‘representation’ in the legal sense of the term, but rather there is a recognition of a State’s right to concern itself with certain questions relating to other entities. In such cases, as already emphasised, the Claimant State does not represent another entity but is, in reality, just asserting its own rights. Again in very broad terms, one can sum up this view by saying that it requires the integrity of the Statute to be protected, and this in turn requires the restrictions in the Statute to be faithfully adhered to. Each of the two lines of argument sketched out above is legitimate and defensible. If, one day, the Court were faced with such a situation in which a party is acting as a representative, the judges would have to make a choice. Possibly the Court might, in such circumstances, explore some kind of middle way between excessive flexibility and total rigidity, showing a certain liberality in the way it accepts that a State in such circumstances is asserting sufficiently ‘own rights’; if necessary the Court perhaps might, for this purpose, pray in aid a fiction of the kind it has already deployed in the context of diplomatic protection. The Court might also accept that a State can assert the rights of another State if the latter has the right to appear as a party before the Court. By accepting that, the Court would be giving effect to the agreement for representation, itself an international treaty which the Court will apply under Article 38, paragraph 1(a) of the Statute. On the other hand, the Court could not allow a State to represent directly (that is, without the intermediation of certain ‘own rights’) an entity which did not have the right to be a party in a case before it. If the Court were to go that far, it would be allowing the restrictions on personal jurisdiction which are matters of public policy, to be evaded, virtually at will, simply by nominating a mandatory. The overall conclusion, then, is that there are ways of compromising between these two readings of the Statute. It is possible to find various ways through, and to work them out by means of fine judicial craftsmanship applicable to particular cases with their particular circumstances and unforeseeable idiosyncrasies. Attempts to open the contentious procedures of the Court to international organisations. When the Statute was revised in 1945, there was detailed discussion about whether international organisations should be allowed to appear as parties in cases before the Court.391 However, the draftsmen of the revised Statute did not consider it appropriate to widen access to the Court in this way. They deliberately continued excluding international organisations, while adopting a more liberal attitude to involving them in contentious cases in other ways, in particular through exchanges of information.392 There were two main reasons to exclude organisations from participating as parties in contentious cases. The first was the fear of making a premature move to reinforce the status of international organisations, thereby moving away from the tried and tested practice of the PCIJ. The view current at that time was that international organisations were subordinate to States. (The opinion in the Reparation for injuries case of 1949, ground-breaking as regards the legal personality of international organisations, was widely viewed at the time as innovative, if not revolutionary, in its implications.) The second was the difficulty of opening the Court to the United Nations Organisation itself. Given that the Court was the organisation’s own judicial organ, how could it have appeared sufficiently independent? Politically, however, it would have been difficult to grant access to the Court to other international bodies while denying it to the UN itself. That would have involved discriminating against the UN, when the 391   PM Dupuy, ‘Article 34’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 10, 550–51. See, eg the Australian proposal, UNCIO, vol 14, 139–40. 392   On this aspect, see below section 5(c).

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draftsmen of the Statute, far from wanting that, were determined to make the UN the preeminent body concerned with international relations. The desire to give access to international organisations has been constantly resurfacing ever since, both in light of the UN’s developing institutional practices and in the thinking of leading jurists. For example, as early as 1954 the Institute of International Law expressed itself in favour of opening the Court’s contentious procedures to international organisations.393 The Dubrovnik Conference of the International Law Association (1956) passed a resolution proposing that Article 34 of the Statute be modified so as to give such access at least to the UN itself and to its specialised institutions.394 In 1997, after a whole series of proposals and commentaries of the same kind,395 Guatemala and Costa Rica made another proposal to open the contentious procedures to international organisations. However, the reaction of the UN Committee for the extension of the Court’s jurisdiction remained negative. The Committee thought the existing mechanisms for resolving disputes between States and international organisations were sufficient; that the Court already had more than enough work to do and that its burdens should not be further increased; and that the procedural difficulty of revising the Statute, and the time it would take, were disproportionately great when compared with the potential advantages of such a reform.396 As for the members of the Committee, a very large number have taken positions favourable to such an enlargement of the Court’s jurisdiction,397 although some of them, while feeling that the restriction in Article 34, paragraph 1 is out of date, do see it as a practical necessity to prevent the Court being inundated with new contentious cases.398 If there has been one proposal to reform the Statute that has been constantly on the agenda since 1945, it has been the idea of allowing international organisations to be involved as parties in contentious cases before the Court. Legally, such a reform would, in principle, not be particularly difficult to carry out.399 Provided that the accepted intergovernmental organisations were strictly defined, there is no reason to see such a reform as in any way disturbing the Court’s practical ability to go about its business. In modern conditions, there is really no justification for the exclusion of the most important intergovernmental organisations. Although it is true that disputes

  See the Yearbook of the Institute of International Law, vol 45, 1954-II, 296 and 1954-I, 43.  ILA, Report of the Forty-Seventh Conference Held at Dubrovnik (1956) viii. 395   Particularly in the 1970s, in the face of the crisis then facing the ICJ. See UN General Assembly Resolution 2723 (XXV) (1970) and the responses of the Member States. For example, for Switzerland’s response, which was favourable to the extension of the Court’s contentious jurisdiction to international organisations, see ASDI, vol 28 (1972) 261 et seq.; see also Castrén (Finland), Official Documents of the United Nations General Assembly, Sixth Commission, 25th session, 1,210th meeting, 209, § 15; Javits (USA), ibid, 1,211th meeting, 212, § 9. 396   See the views of W Karl, ‘Article 69’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 10, 1,485–86. 397   See, eg R Ago, ‘“Binding” Advisory Opinions of the International Court of Justice’ (1991) 85 AJIL, 450; M Bedjaoui, ‘L’humanité en quête de paix et de développement – Cours général de droit international public’ CCHAIL, vol 325, 2006, 70 et seq.; Dupuy, ‘Article 34’, above n 391, 546 et seq., 554–56; T Treves, ‘International Organizations as Parties to Contentious Cases: Selected Aspects’ in L Boisson de Chazournes, V Romano and R Mackenzie (eds), International Organizations and International Disputes Settlement – Trends and Prospects, (New York, 2002) 37 et seq. 398   RY Jennings’s Introduction to Zimmermann, Tomuschat and Oellers-Frahm, above n 10, 35: ‘Public international law has now, however, a very different content and meaning from the international law of 1946; . . . More and more international law is concerned with individuals and with entities other than States. It follows that the Court is, by virtue of Art 43, para 1, to an important extent prevented from dealing with these newer kinds of international law issues. The Court, however, has to live with this limitation because, if it were opened to cases from claimants other that States it would soon be swamped.’ 399   Except for the cumbersome nature of the formal procedure for revising the Statute. 393 394



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between international organisations and States can easily be resolved by arbitration,400 nevertheless it would not be a bad thing if such litigation were centralised in the ICJ, as the principal court of international relations, with the capacity to develop jurisprudence in the fields within its competence. The process would enrich the Court’s ordinary jurisprudence and practice through the admixture of an important additional aspect of modern international law. The reform would help to bridge a certain chasm (though perhaps it is in truth not so much more than a relatively shallow trench) between general international law (including international institutional law) on the one hand and the international law applied by the Court between the States parties that have the right to appear before it. On the other hand, it goes without saying that to open the Court to private interests or private individuals would completely alter its character and is not a practicable proposition.401 The Court would simply seise up under the impact of thousands, perhaps tens of thousands, of cases every year. The example of the European Court of Human Rights provides an awful warning of the likely consequences. Mandatory nature of Article 34, paragraph 1 of the Statute. Article 34, paragraph 1 is not dispositive (non-peremptory) law, that is law that yields to a contrary agreement: its provisions are imperative and cannot be waived or disregarded either by the Court itself or by parties before it. This necessarily makes it impossible for the Court to acquire personal jurisdiction by special agreement between a State and an international organisation, together agreeing to submit their dispute to the Court. Article 36, paragraph 1 (‘The jurisdiction of the Court comprises all cases which the parties refer to it . . .’) in no way limits the effects of Article 34, paragraph 1 and deals only with the question of subject-matter jurisdiction. Article 36 cannot be used as a sort of derogation from the imperative requirements of the two preceding Articles. Similarly, the Court cannot accept the argument that an estoppel or similar inhibition allows it to take cognisance of a case between on the one hand a State, and on the other an individual, or between two international organisations. The reason is always the same – the peremptory nature of the Statute. Agreement between parties, or arguments debarring one side from taking relevant points, are merely aspects of inter partes relationships. By contrast, the restriction in Article 34, paragraph 1 is a matter of international public policy (ordre public). A private agreement does not prevail over the Statute, and nor can it prevail against a ‘third party’, that is against the Court, which functions in accordance with the rules laid down in the Statute. If it were otherwise, we would see the Court’s activities being endlessly fragmented in consequence of private agreements and subjective legal situations. That would be incompatible not just with the Court’s judicial function, but with its very institutional autonomy. The bonds between the Court and its users would become, in the subtle terminology of G Morelli, bonds of service agreed between the parties as domini negotii.402 The Court would be perceived as their servant, and in the process, the integrity of the legal order which is specific to the Court, and which underpins its entire activity, would effectively be dismantled. The jurists who have considered the point have understood this. One of them, AP Fachiri, commented as follows: 400   This is regularly the case. For one example, see the case of UNESCO v France: R Kolb, ‘La modification d’un traité par la pratique subséquente des parties – Note sur l’affaire relative au régime fiscal des pensions versées aux fonctionnaires retraités de l’UNESCO résidant en France; sentence du 14 janvier 2003’ (2004) 14 RSDIE, 9 et seq. 401   See Bruns, above n 347, 609–10. 402   G Morelli, ‘La théorie générale du procès international’ CCHAIL, vol 61, 1937-III, 282.

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It is thus impossible for the Court to entertain a suit brought by an individual or corporation in respect of any claim or matter whatsoever either against his or its own State or a foreign State, and this absence of jurisdiction could not be cured even by consent to the submission on the part of a State.403

G Schwarzenberger is equally clear and categorical: The constitutional limitations of the Court’s jurisdiction fall into three main groups . . . If a party to a dispute is a non-State or a State to which the Court is closed, this suffices to prevent the case from receiving consideration by the Court . . . It is beyond the power of the parties or the Court to condone the breach of any of these provisions of the Court’s jus cogens.404

As already discussed, the Court itself has emphasised that the rules as to its personal jurisdiction are matters of international public policy (ordre public) and thus independent of the will (and even of agreement between) the parties. It did so in the case on the Legality of the use of force (Preliminary Objections, Serbia and Montenegro v Belgium, 2004), expressing itself in the following terms: On this point, however, it 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 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. (italics in the original)405

The Court repeated this view in the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Serbia and Montenegro, merits, 2007).406 In that case it stated, at paragraph 102, that acquiescence or estoppel did not affect the objective limits imposed by the Statute. The bilateral legal relationship between the parties cannot prevail over the objective ordre public norms of the Statute. At paragraph 122, the Court pursued the point further: 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. (italics added)

In other words, there is no question of forum prorogatum for personal jurisdiction, because the norm is a peremptory rule of international policy. In its judicial practice, the Court has always been careful, even when dealing with the subject by implication rather than expressly, about the limits of its jurisdiction ratione personae. In the numerous circumstances in which individuals have directly raised with the   Fachiri, above n 356, 62.   Schwarzenberger, above n 175, 434–35. 405   ICJ Reports 2004-I, 295, § 36.  406   See §§ 102 and 122. 403 404



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Court claims they seek to pursue against governments, the Registrar has confined himself, as we have seen, to sending them a refusal to proceed, based on Article 34, paragraph 1 of the Statute. He has not enquired as to the views of the States concerned, to see whether they are prepared to submit to the Court’s jurisdiction. The Court’s practice thus implicitly accepts that Article 34, paragraph 1 of the Statute is imperative. In the Mavrommatis case (1924), the Court stated that the general foundation of its jurisdiction was to be found in Articles 34, paragraph 1 and 36 of the Statute, which gave access only to States.407 In the Serbian loans case (1929), the Court restated this limitation on its jurisdiction, describing it as essential. The thrust of its reasoning was that no agreement between the parties could dispense the Court from complying with the mandatory provisions of its Statute.408 In the cases on the Judgments of the Administrative Tribunal of the ILO on claims against UNESCO (1956) and the Request for revision of judgment no 158 of the UN Administrative Tribunal (1973), doubts were expressed as to the legality of using the advisory jurisdiction to review the judgments of administrative tribunals. It was argued that the consultative function was, in reality, being used to resolve disputes in which one of the parties was a private individual, and that this was incompatible with the exclusion of such parties by Article 34, paragraph 1 of the Statute. The Court drew a distinction between the two procedures, as it had already done in diplomatic protection cases: the interposition of the body requesting the opinion was considered to have transformed the nature of the dispute.409 The dispute with the actual official became a background question, receding into the back seat. It was merely the material cause of a request for an advisory opinion made to the Court by a duly authorised body in the exercise of its functions, in conformity with the UN Charter.410 In this respect, too, the Court’s argument implicitly demonstrates the judges’ recognition of the peremptory nature of Article 34, paragraph 1. One should also remember that one of the reasons for the creation of a Tribunal for the Law of the Sea, an idea which came to fruition in the UN Convention on the Law of the Sea (1982),411 was precisely the imperative character of Article 34, paragraph 1 of the Court’s Statute. Originally, those negotiating the Convention faced two questions – whether issues arising under the Convention should be referred to the ICJ itself, if the parties desired judicial resolution and whether to create a special new court. One of the four main arguments412 for a special tribunal was that Part XI of the Convention (relating to the exploitation of the resources of the Area, that is the marine resources of the high seas)413 provided for the relevant activities to be led by an   PCIJ, Series A, no 2, 10.   PCIJ, Series A, no 20, 17: ‘Nevertheless, according to the strict terms of the Special Agreement, the controversy submitted to the Court does not appear as a dispute between the two Governments, but as one between the Government of the Serb-Croat-Slovene Kingdom and the French bondholders of certain Serbian loans . . . Article 34 of the Statute expressly provides that “only States or Members of the League of Nations can be parties in cases before the Court” . . . It follows that if the dispute referred to the Court by the Special Agreement between France and the Serb-Croat-Slovene State were to be regarded as a dispute between the Government of the Serb-CroatSlovene Kingdom and certain bondholders of the loans, one of the essential conditions of procedure before the Court, namely, the legal capacity of the Parties, would be unfulfilled.’ 409   Ibid, 17–18. 410   ICJ Reports I, 77, 84–85; and ICJ Reports 1973, 171–72, § 14. cf also the case on the Effect of awards of compensation by the United Nations Administrative Tribunal, ICJ Reports, 1954, 47. The proposal to give access to the Court to officials of international organisations had been made in the course of the San Francisco travaux préparatoires, by Venezuela: Art 34, § 2 of the Venezuelan draft – cf UNCIO, vol 13, 483. It was turned down by Commission IV on judicial organisation, ibid, 288. 411   Arts 286–96 of the United Nations Convention on the Law of the Sea. 412   cf LB Sohn, ‘Settlement of Disputes Arising Out of the Law of the Sea Convention’ (1975) 12 San Diego Law Review 495 et seq., 504 et seq.; AR Carnegie, ‘The Law of the Sea Tribunal’ (1979) 28 ICLQ 682–84. 413   Arts 133 et seq. of the Convention. 407 408

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Enterprise representing all of humanity414 and also by public and private State enterprises.415 It was accepted that Article 34, paragraph 1 prevented such entities from being parties in cases before the ICJ; but at the same time it was unacceptable for them to be without any legal protection. Hence the need to create a special tribunal with a more extensive personal jurisdiction than the ICJ itself.416 The general recognition of this need, without any controversy about it, bears witness to the conviction of all concerned that Article 34, paragraph 1 of the ICJ Statute cannot be got round by agreement between the parties to a dispute – in other words, it bears witness to the fact that the rule in Article 34 paragraph 1 is a peremptory one. c)  Participation by International Organisations in Exchanges of Information: Paragraphs 2 and 3 of Article 34 Although international organisations were excluded from being parties to contentious cases before the Court, it was nevertheless generally accepted, when the PCIJ Statute was revised in 1945, that they ought to be allowed a much greater participation in the Court’s procedures so far as concerned the exchange of information. For this reason, paragraphs 2 and 3 of Article 34 of the Statute provide that: 2. The Court, subject to and in conformity with its Rules, may request of public international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative. 3. Whenever the construction of the constituent instrument of a public international organization or of an international convention adopted thereunder is in question in a case before the Court, the Registrar shall so notify the public international organization concerned and shall communicate to it copies of all the written proceedings.

The Rules amplify these provisions. First of all in Rule 69, paragraphs 1 to 3,417 amplifying Article 34 of the Statute; then, as a result of a revision in 2005, in Rule 43,418 with reference   Art 170 of the Convention and Annex IV.   Art 153 of the Convention. 416   See Art 291, § 2 of the Convention and Art 20, § 2 of the Statute of the Law of the Sea Tribunal, and Annex VI of the Convention (Settlement of Disputes). 417   ‘1.  The Court may, at any time prior to the closure of the oral proceedings, either proprio motu or at the request of one of the parties communicated as provided in Article 57 of these Rules, request a public international organization, pursuant to Article 34 of the Statute, to furnish information relevant to a case before it. The Court, after consulting the chief administrative officer of the organization concerned, shall decide whether such information shall be presented to it orally or in writing, and the time-limits for its presentation. 2. 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 for formulate, and also to authorize the parties to comment, either orally or in writing, on the information thus furnished. 3. In the circumstances contemplated by Article 34, paragraph 3, of the Statute, the Registrar, on the instructions of the Court, or of the President if the Court is not sitting, shall proceed as prescribed in that paragraph. The Court, or the President if the Court is not sitting, may, as from the date on which the Registrar has communicated copies of the written proceedings and after consulting the chief administrative officer of the public international organization concerned, fix a time-limit within which the organization may submit to the Court its observations in writing. These observations shall be communicated to the parties and may be discussed by them and by the representative of the said organization during the oral proceedings.’ 418   ‘1.  Whenever 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. 414 415



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to paragraph 3 of Article 34. Paragraph 2 makes provision for the Court to obtain relevant information, taking advantage of the organisation’s experience and expertise. Paragraph 3 provides for a kind of intervention procedure analagous to Article 63 of the Statute, the analogy being reinforced by Rule 43 as revised in 2005. As a general observation, it is fair to say that Article 34 is poorly drafted from a systematic point of view. Paragraph 1 deals with a question of the first importance relating to personal jurisdiction, that is the right to appear as a party before the Court. Paragraphs 2 and 3 deal with entirely different questions, which have nothing in common with the subject of paragraph 1. From the point of view of the draftsmanship, it would have been better to turn them into a separate provision or simply to leave these points to be governed by the Rules. Their insertion into Article 34 does, however, indicate a certain embarrassment at having entirely excluded international organisations from contentious cases. By allowing such organisations generously drafted opportunities to cooperate in the exchange of information and to take an interest in cases before the Court, the Article goes some way to repair this affront. The price paid was the ill-assorted draftsmanship of Article 34. There was another reason, just as important but largely cosmetic in nature, namely that the insertion of a separate new article immediately after what is now Article 34, paragraph 1 would have made it necessary either to renumber the whole of the rest of the Statute, or to resort to such inelegant solutions as the use of an additional Article 34A or 34 bis. This would have run counter to the familiar pattern of numbering dating back to the PCIJ. It was difficult to imagine Article 36 no longer being numbered 36, 38 numbered 38 and so on. Continuity in the numbering was and is very helpful to lawyers: only real necessity could have justified radical changes to it. The provisions of paragraphs 2 and 3 provide intergovernmental organisations with a significant opportunity to work with the Court when it is dealing with contentious cases. In particular, they have the right to take the initiative, both as regards the supply of information (Rule 69, § 2) and by intervention, in cases involving the interpretation of a multilateral convention in which the organisation ‘is a party’ (Rule 43, § 2). In the latter of these two cases, the organisation does perhaps not need to be a party to the convention, the French text of the Rules providing for cases where the organisation has simply ‘participated’ in the conclusion of the convention (‘Lorsque l’interprétation d’une convention à laquelle a participé une organisation internationale publique peut être en cause’). In this light, it is sufficient that it has ‘participated’ in the convention, which is the case if the text was agreed under its auspices. The word ‘participated’ is, moreover, so wide that looser connections with the text might be sufficient to give rise to the right to intervene. This relatively liberal wording is understandable: the organisation in question does not become a party in the case; it is confined to providing the Court with its observations on the interpretation of the text. That may be valuable to the Court in the discharge of this functions, and there is therefore no reason to exclude such observations too readily. An organisation should be considered to have ‘participated’ in the convention whenever it is involved, in one way or the other, in the life of the text, so that it is in possession of information 2. 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. Every public international organization notified by the Registrar may submit its observations on the particular provisions of the convention the construction of which is in question in the case. 3. If a public international organization sees fit to furnish its observations under paragraph 2 of this Article, the procedure to be followed shall be that provided for in Article 69, paragraph 2, of these Rules.’

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relevant to the text’s interpretation. Ultimately, the possession of such relevant information should be the criterion determining whether the organisation has ‘participated’ in the text. The interpretation of the word ‘participated’ must therefore rest on a functional criterion: any organisation possessing information relevant to the interpretation of the text has necessarily ‘participated’ in it – otherwise it would not have the information in the first place. Contrary to a view which, although rather widely-held, is nevertheless wrong, such organisations have seldom been created for the purpose of policing decisions already made. Frequently their primary function is to assemble and diffuse information in a particular field, including statistics and reports, making such information accessible to Member States. This function is reflected in the provisions allowing them to provide the Court with information. Overall, the French text of the Rules (‘participé ’) is thus to be preferred over the English one (‘is a party’): it better reflects the aim of that provision. The Court’s practice confirms this reading (see below). Ratione personae. ‘Public international organization’ in this context means an intergovernmental organisation, which excludes NGOs. This reading is corroborated by the Rules.419 For this reason the Registrar of the ICJ declined the collaboration of the ‘International League for Human Rights’, an NGO that attempted to have a voice in the Asylum case (1950).420 A communication from the same League was, however, accepted in the consultative case on the International Status of South-West Africa (1950),421 a precedent which shows that the Court might adopt a less strict approach in advisory opinion cases. The Rule does not state, however, that the ‘public international organization’ needs to be an exclusively inter-State association. A not insignificant number of intergovernmental organisations allow a certain level of representation to private interests. The most famous example is the International Labour Organization (ILO), with its tripartite structure – States, unions and employers. In other cases, NGOs are accorded a sui generis status of their own, enabling them to participate in the work of the organisation concerned. The practice of the Court, since the days of the PCIJ, has, in this respect, been fundamentally a liberal one. It has never suggested that there is any doubt about its capacity to receive information from the ILO. The Court is well advised to allow such organisations to work with it in the context of Article 34, paragraphs 2 and 3. By doing so, it goes some way towards softening the rather condescending tone of these paragraphs in a world which has moved on a long way since 1945. The decisive criterion has to be that the organisation is preponderantly an intergovernmental one, the private element being clearly subordinate to the public one. Alternatively, even if that is not the case, an organisation is intergovernmental if it is treated as such in international practice. That is assuredly the case as regards the ILO. Should one go further, and allow the provision of information by ‘civil society’? It has been suggested that the provisions of Article 34 of the Statute, mentioned above, are somewhat disconnected with the real world of today, dominated as it is by the growing power and influence of non-State actors.422 There are certainly good grounds for that criticism. However, it remains reasonable to have one’s doubts about the real value of allowing all comers to provide the Court with information. The danger is that the Court would be del419   See Rule 69, § 4: ‘In the foregoing paragraph, the term “public international organization” denotes an international organization of States.’ 420  ICJ, Asylum case, Memorials, Pleadings and Documents, vol II, 227. 421   ICJ, Case of the International Status, Memorials, Pleadings and Documents, 324 et seq. 422   Dupuy, ‘Article 34’, above n 391, 549.



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uged with communications, whose quality would be highly disparate, and thus significantly less reliable than those coming from intergovernmental bodies. It would therefore be much more difficult to rely on them directly. In addition, the Court simply does not have the resources to carry out the necessary work of verification and checking. There would a serious risk of its acting in response to little more than propaganda. On the other hand, it would be quite delicate to establish a sort of ranking of credibility for each such NGO. The adage ‘excess of information means no information’ is also very much in point. If the Court were to be bogged down in millions of pages of communications flowing into it from every side, obviously it could not take adequate account of them, or even acknow­ ledge them all. This, in turn, would give rise to unease on the part of organisations which had taken the trouble to communicate with the Court. It would be all too easy to accuse the Court of elitist and opaque practices, of locking itself into its ivory tower. Such criticisms might become markedly more acerbic than they already are now. To be excluded from access to a court is one thing; to be given access with the left hand, only to have it, in a sense, taken away again with the right, would create much greater ill-feeling. Is the game really worth the candle? The implications would, at the very least, need to be studied very carefully and seriously. The Court’s practice of cooperating with international organisations is relatively rich and varied.423 In this context, it is perhaps sufficient to mention cases such as the Aerial incident of 27 July 1955 (1959)424 (observations by the International Civil Aviation Organization (ICAO) on the aspects relating to the safety of civil aviation); or the observations of ICAO in the case on the Aerial incident of 3 July 1988 (1996).425 In a number of cases, the ICAO has been invited to express views, but declined to do so: the case of the Appeal relating to the jurisdiction of the ICAO Council (1972);426 or the case of the Boundary and trans-boundary activities (Nicaragua v Honduras, 1988),427 concerning the Organization of American States. In a series of cases, other international organisations have likewise been in a position to lay their observations before the Court, but have refrained from doing so: the East Timor case (1995), Gabcíkovo-Nagymaros (1997), the LaGrand case (2001), the Legality of the use of force (2004) and so on. Clearly, the most striking aspect of the Court’s practice in this field is the relative lack of interest on the part of international organisations in participating in the exchange of information under Article 34, paragraphs 2 and 3. One can only speculate about this lack of enthusiasm. Sometimes, it is plainly the result of the political sensitivity of the issues and the background presence of a great power with an interest in the outcome. That explains the silence of the Organization of American States in the Armed activities case of 1988. In other cases, an important element may have been the probability that the organisation’s input would have only a relatively marginal impact on the concrete realities of the case (the Lockerbie case, concerning the ICAO, given that the information would, at that stage in the proceedings, have had to be confined to issues of jurisdiction and admissibility). In yet other cases, the problem has been resentment at the unilateral fixing by the Court of a time limit which was felt to be too short (case of the Appeal in relation to the jurisdiction of the ICAO Council, 1972). Finally, it is not difficult to imagine an organisation deciding not to   Dupuy, ‘Article 34’, above n 391, 551–54.   ICJ Reports 1959, 127 et seq. 425   ICJ Reports 1996-I, 9 et seq. 426   ICJ Reports 1972, 48. 427   ICJ Reports 1988, 69 et seq. 423 424

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submit observations because constraints relating to personnel, budgets and other resources make it desirable to concentrate its efforts on other tasks it feels ought to have priority. To conclude this particular point, then, it might now be worth considering some kind of attempt to revitalise Article 34, paragraphs 2 and 3.

d)  Member States of the United Nations which are ipso facto Parties to the Statute, Article 93, paragraph 1 of the Charter and Article 35, paragraph 1 of the Statute428 Member States of the United Nations are automatically parties to the Statute of the Court. By ratifying or adhering to the Charter they have ipso jure done the same as regards the Statute. This dual effect is the consequence of Article 93, paragraph 1 of the Charter: ‘All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.’ Article 35, paragraph 1 of the Statute follows up by providing that all parties to the Statute have the right to appear as parties before the Court: ‘The Court shall be open to the states parties to the present Statute.’ Article 93, paragraph 1 of the Charter reflects the close relationship between the Court and the United Nations, of which it is the principal legal organ.429 In this respect, the ICJ is to be distinguished from the PCIJ, which was not so tightly associated with the League of Nations as the Court is to the UN. Member States of the League were not automatically parties to the PCIJ Statute. In order to become parties, they had to ratify a Protocol on special adhesion presented to them by the League’s Assembly.430 The closer ties between the ICJ and the UN can, in this respect, be seen as reflecting not only the wish to integrate the Court into the UN structure, but also the wish to ensure that all Member States automatically participate in the Court. Both situations involve the concept of the rule of law. In the first place, the Organisation cannot function properly without a legal organ, whatever its specific place in the organisational structure; second, Member States of the UN cannot be allowed to stay outside the international jurisdiction that the Charter urges on them for the purpose of resolving their disputes. Under Article 4 of the Charter,431 the Members of the UN are necessarily ‘States’. The word ‘States’ here takes its ordinary meaning under public international law. There is thus no inconsistency between Article 93, paragraph 1 of the Charter and Article 34, paragraph 1 of the Statute. Could, or should, the Court of its own volition raise the question whether a given entity is a State, if it is a Member of the UN? Or does the UN’s own decision to admit the Member in question effectively prejudge the question, so that the Court cannot 428   On Art 35 of the Statute, see Zimmermann, ‘Article 35’, above n 351, 565 et seq., and the other references there cited. 429   See above, ch II section 3(a). 430   Hudson, above n 93, 124 et seq. 431   Art 3: ‘The original Members of the United Nations shall be the states which, having participated in the United Nations Conference on International Organization at San Francisco, or having previously signed the Declaration by United Nations of 1 January 1942, sign the present Charter and ratify it in accordance with Article 110.’ Art 4: ‘1. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. 2. The admission of any such state to membership in the United Nations will be affected by a decision of the General Assembly upon the recommendation of the Security Council.’ On this provision and on the practice of the UN, see U Fastenrath, ‘Article 3’ and K Ginther, ‘Article 4’, in Simma, above n 343, 173 et seq., 177 et seq.; G Feuer and A Ouraga, ‘Article 3’ and ‘Article 4’ in JP Cot, A Pellet and M Forteau (eds), La Charte des Nations Unies – Commentaire article par article, 3rd edn, vol I (Paris, 2005) 511 et seq.



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re-open it or decide differently? Or does the question in fact simply not arise, given that, under Article 93, paragraph 1 of the Charter, entities are parties to the Statute simply by virtue of being UN Members, so that their categorisation as ‘States’ is not a legally determinative matter? Until now, this question has not been of any practical importance, and the Court has never had to raise it. Certain authors have argued that the Court would not be entitled to refuse access to a Member of the UN: The question whether certain Members of the UN are truly States within the meaning given to that word by public international law does not arise in relation to their right of access to the Court, since they are parties to the Court’s Statute solely in their capacity as Members of the UN. (our translation)432

On the other hand, it is possible to argue that the question of access to the Court is a fundamental one, and that the Court itself has declared that the personal right to appear before it as a party is a question of international public policy and thus one that the Court must raise of its own volition. Article 34, paragraph 1 of the Statute provides that only ‘States’ have access to the Court in contentious cases. The word ‘Members’ in Article 93, paragraph 1 of the Charter cannot therefore be interpreted in a way that detracts from Article 34, paragraph 1 of the Statute, particularly since Articles 3 and 4 of the Charter likewise require that the Members be States. It is thus possible to take the view that admission to the United Nations, in accordance with an essentially political decision by the Security Council and the General Assembly, remains, so far as the Court is concerned, a politico-legal action inter alios, one done for other purposes than the proper functioning of the ICJ, which, in contradistinction, is preserved and protected by the Statute. Article 4 of the Charter is not binding on the Court: only Article 34, paragraph 1 of the Statute is mandatory for it. On this line of argument, the Court could and should of its own volition raise this issue, and, if necessary, refuse the entity in question the right to appear before it as a party.433 Obviously, however, the Court would be very reluctant to take such a step, which might result in its ruling that a Member of the UN had been improperly admitted to the Organisation, since it was not truly a State. Indirectly, the Court would then be saying that the General Assembly’s and Security Council’s judgments of the situation were wrong, and this would create a highly embarrassing situation for the UN, both legally and politically. So this is a question on which the Court would be likely to show a considerable degree of judicial restraint. If it were to raise the question under Article 34, paragraph 1 of the Statute, in all probability it would assess the situation of the entity in question in such a way as to conclude that it does constitute a State – perhaps an atypical one but nevertheless a State. It would, in other words, look for an interpretation that enabled it to harmonise the two texts, the Charter and the Statute, and the two situations, membership of the UN and the right to appear as a party before the Court. To sum up, then, the Court has the power to see to it that the conditions qualifying a party to appear before it are satisfied; in practice the Court is unlikely to discharge this function in such a way as to rule that a Member of the United Nations is not a ‘State’. The question is not, however, entirely hypothetical. During the cold war, the UN contained at least two Members which could not seriously be supposed to be States. At the San Francisco Conference, Stalin had obtained the admission to UN membership of two of the federated ‘States’ of the Soviet Union, Belorussia and Ukraine. His aim was to do   Dubisson, above n 49, 135.   Contra, Zimmermann, ‘Article 35’, above n 351, 575.

432 433

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something to redress the unfavourable numerical balance of Communist States within the UN. But Belorussia and Ukraine were not States within the meaning given to the word by international law. In formal terms, they were not völkerrechtsunmittelbar: their relationship, as federated entities, with the international legal order, was mediated through Soviet law. Both of them were subject first to Soviet law, and not in an immediate relationship to international law. In other words, they were not sovereign. Nor were they independent: their power to take decisions was so much dependent on the supreme organs of the USSR. As the Communist countries had never accepted the jurisdiction of the Court consensually, these two Soviet entities never appeared before it in the capacity of claimants or respondents. For that reason, the question of their statehood could not arise. Similarly, there have at various times been, from the moment of their admission to the United Nations, other entities that were yet not fully constituted as States, so that their legal position was, to say the least, doubtful: the Philippines, and India (which achieved independence only in 1946 and 1947 respectively; Lebanon and Syria, former French mandates).434 These entities too were not, during the critical period, parties to cases before the Court. The question could arise afresh if Kosovo were to be admitted to membership of the United Nations, since there is still room for doubt as to its statehood, or if Palestine were admitted to UN membership before its position as a State were adequately and definitively consolidated: these two situations are, however, relatively improbable given the vetoes possessed in this regard by the five permanent members of the Security Council. What would the consequences be if a UN Member were, by virtue of Article 5 of the Charter, suspended from exercising its rights?435 Formally, such a State does not cease to be a Member of the United Nations: it is simply disabled, for a given period, from exercising certain of its membership rights. It follows that the State concerned does not cease to be a party to the Statute of the Court. In truth, the draftsmen of the Charter never contemplated – quite the reverse – that a Member State would be deprived of the right of access to the Court.436 To do that would be to place a Member State suspended from the exercise of its rights (but not expelled from the Organisation) in a legally more unfavourable position than a State which was not a Member at all. The draftsmen of the Charter and of the Statute wished to make access to the Court as wide as possible for States wishing to use it to resolve their disputes, the ultimate objective being to keep the peace and establish structures leading to better international cooperation. In consequence, any provision that might be read as denying a State access to the Court should be interpreted in a restrictive spirit. There is indeed no need to deny access to a State that has been suspended. Nevertheless, a problem does arise in relation to States whose rights as Members have been suspended because of their failure to keep up with their budgetary contributions. A State that does not pay its UN contribution is also failing to contribute to the budget of the Court. It might, therefore, seem unfair to give it access to the Court on an equal footing with a State which continues

  See U Fastenrath, ‘Article 3’, in Simma, above n 343, 175.   ‘A Member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council. The exercise of these rights and privileges may be restored by the Security Council.’ See also the commentaries on the Charter as regard this provision, B Simma (2002) and Cot, Pellet and Forteau (2005), cited in the bibliography. 436   Dubisson, above n 49, 135; LH Goodrich, E Hambro and AP Simons, Charter of the United Nations, 3rd edn (New York/London, 1969) 98; V Leben and M Forteau, ‘Article 5’ in JP Cot, A Pellet and M Forteau (eds), La Charte des Nations Unies – Commentaire article par article, 3rd edn, vol I (Paris, 2005) 539. 434 435



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making its regular contributions. But this is not a decisive argument. A State which is in arrears is simply late: it remains liable for the arrears. Also, sometimes the arrears are not wilful, but simply due to severe financial crises. An enquiry into the subjective reasons for a State’s failure to make its contributions, with a view to distinguishing between reasons that are acceptable and those that are not, would be a highly delicate matter. Until now, therefore, the UN has never adopted the practice of restricting access to the Court in such cases, and its attitude is obviously the right one. Nevertheless there is a distinct question whether it would be possible for the UN, acting deliberately and voluntarily, to formally suspend a State’s right to appear as a party before the Court, as a measure under Article 5. As we have seen, suspension from the exercise of rights is on any account not automatic. It is difficult to argue that the UN’s political bodies do not have the right to suspend a State.437 The position would be different only if one could argue that the fact of never having done so to date amounts to an implicit renunciation of the right to do so in the future (as a constitutional custom arising from practice subsequent to the adoption of the Charter) – but that would be a very difficult stance indeed. On the other hand, one must welcome the fact that the political organs of the UN have not, until now, exercised this right. The peaceful settlement of disputes is crucial for the harmonious development of international life. The obstacles to peaceful dispute resolution are already numerous. It is right to take great pains to avoid increasing their number. In any case, the power to suspend a State arises only in relation to Members of the United Nations. It does not extend to States which are parties only to the Statute, or to other States under Article 35, paragraph 2 of the Statute. Article 5 of the Charter expressly states that the action is taken against a ‘Member of the United Nations’.438 Here it is irrelevant that the Statute is an integral part of the Charter, under the latter’s Article 92. Under Article 5, the suspension is from ‘the exercise of the rights and privileges of membership’. This means that the political organs of the UN could suspend the right of the State in question to be a claimant – that is to start a case. The State’s obligations, by contrast, would not be affected, and consequently it would continue to be a potential respondent.439 The sanction against it would, in these circumstances, amount to the loss of reciprocity: it could no longer bring a case against another State, but might still be made a respondent. If that were to happen, it would need to be in a position to bring counterclaims connected with the claim against it. This follows from the idea that any exception to the peaceful resolution of disputes, any exception to the equality of parties, and anything else that derogates from the Court’s judicial functioning, should be restrictively interpreted. Unless the Resolution of the UN’s political organs states that the bringing of counterclaims is likewise prohibited to the State in question, counterclaims will not be covered by the prohibition against making claims. The preceding considerations do not preclude any action by the States parties to the Statute against a party to that treaty (but not to the UN Charter), for example, if it does not pay it contributions to the budget of the Court. Suspension of its rights as a claimant (possibly also as a defendant) could be decided by applying by analogy, or as customary international law, the contents of Article 60 of the Vienna Convention on the Law of Treaties.

  Zimmermann, ‘Article 35’, above n 351, 577.   See the even more refined argument by H Kelsen, The Law of The United Nations (London, 1951) 713. 439   Zimmermann, ‘Article 35’, above n 351, 577. 437 438

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What would be the position if a State were to be excluded from the UN under Article 6 of the Charter?440 So far the UN has not had recourse to this extreme sanction, which in the great majority of cases would be counter-productive.441 For the present, a more likely hypothesis is that the State in question might voluntarily withdraw from the UN. Although the Charter does not expressly provide for such a withdrawal, it is accepted that it is a possibility.442 Only one State (Indonesia) has ever withdrawn, and it did so for only a year and a half, from 20 January 1965 to 19 September 1966.443 The Organisation made it easy for Indonesia to return, the General Assembly accepting the Secretary-General’s and Indonesia’s own view, that Indonesia had only suspended cooperation, without actually withdrawing from the UN. Indonesia was therefore able to resume full cooperation with the UN without having to submit to a potentially humiliating procedure of readmission.444 This ‘retroactive judgment’ also implied that Indonesia had never ceased to be a party to the Statute. If one imagines a State’s being expelled or withdrawing, without any such soothing interpretation as was given to the facts in Indonesia’s case, the State will, in ceasing to be a Member of the UN, also cease to be a party to the Statute under Article 93, paragraph 1 of the Charter. Obviously it could then seek to adhere separately to the Statute in the circumstances provided for in Article 93, paragraph 2 of the Charter. It would also be possible for a State to ratify or adhere to the Statute separately from Article 93, paragraph 1 of the Charter, even upon or after becoming a UN Member. Obviously that would be unusual, since such a step would duplicate the legal effects of automatic participation under Article 93, paragraph 1 of the Statute. However, in cases of withdrawal or expulsion, it is only participation in the Statute by virtue of Article 93, paragraph 1 of the Charter that is brought to an end, not participation by virtue of separate ratification or adherence. Of course, States are unlikely to think in terms of such legal finesse, which would only be of 440   ‘A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council.’ 441   This is a very ambiguous sanction. Certainly, it can be a deterrent and punishment for States persistently violating the principles of the Charter. However, the sanction would not normally be imposed without some complex decision-making, especially given the fact that the UN is structured around discussion and cooperation. Several aspects would need to be carefully considered. First, the target State would, at a stroke, be freed from its former obligations under the Charter. Next, all the means of persuasion and pressure, available while the State in question remains a Member, would disappear. The League of Nations had this experience in its relationship with the States which noisily withdrew from it – Japan, German, and Italy. It is much easier to influence a State that is still inside the Organisation than one that is outside. Also, a State against which sanctions have been imposed will almost inevitably react strongly against the Organisation, and may very well take to new extremes the pose of heroic defiance against the entire world. Who can gain from this? One should also note that the Organisation itself will be one of the losers. The less the United Nations is universal, the more it loses both influence and credibility: the idea of multilateral international cooperation is based on the supposition that everyone participates. Finally, it should be remembered that the expulsion of a Member State is likely to take place in a highly political context and often for selective reasons that reflect the views of shifting majorities. This, of course, increases international tensions and opens the way to the settling of scores between opposing camps within the Organisation. For all these reasons, it is easy to see why the United Nations has never, to date, expelled a Member State, not even a State which has committed grave violations of its binding obligations under the Charter. 442   At the San Francisco Conference, the Great Powers insisted that withdrawal had to be permitted as an implicit right. The USA argued that, in certain circumstances, eg a far-reaching amendment of the Charter, it would be unjust to prevent a State’s withdrawing if it fundamentally disapproved of the amendment. The compromise was to make no provision for the point in the Charter itself, whilst affirming the implicit right to withdraw, in a commentary annexed to the Conference documentation: see Simma, above n 343, 1,355. 443   The reason was the Indonesian government’s dissatisfaction with the fact that its regional rival, Malaysia, was elected a non-permanent member of the Security Council: see the exchange of letters with the UN SecretaryGeneral, published in UN (ed), Everyman’s United Nations, 8th edn (New York, 1968) 144–45. 444   Repertory of the practice of United Nations organs, Supplement III, vol I, §§ 29 et seq.



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any value to them in hypothetical circumstances that politically they could hardly contemplate with any enthusiasm.

e)  States which are not UN Members but are parties to the Statute – Articles 93, paragraph 2 of the Charter and Article 35, paragraph 1 of the Statute States which are not Members of the UN can participate in the Statute, subject to certain conditions, by ratifying it or by adhering to it separately. Article 93, paragraph 2 of the Charter reads as follows: A State which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.

Article 35, paragraph 1 of the Statute provides as follows: ‘The Court shall be open to the states parties to the present Statute.’ Being a party to the Statute thus gives the right to appear as a party before the Court, independently of any question of UN membership. The Court is not only an organ of the United Nations: it is also an organ of the international community of States that are parties to the Statute and of international law generally. The principal reason for the Court’s existence is to facilitate the widest and most widely available resolution of inter-State disputes. The legal conditions subject to which States can participate in the Statute without being Members of the United Nations have already been given relatively detailed analysis.445

f)  States which are not Parties to the Statute: Article 35, paragraphs 2 and 3 of the Statute Even States which are neither UN Members nor parties to the Statute may, subject to certain conditions, appear as parties before the Court. At this point, the principle of opening the Court as widely as possible for dispute resolution reaches its apogee. Here we find the UN offering the international community a court of justice that has been set up in the service of peace, mutual understanding and the rule of law in international affairs. Nevertheless, the Court cannot be made as readily available to non-Members of the UN who are also not parties to the Statute as to such Members or parties. There are two fundamental reasons for this. First, States in this third category have not accepted the obligations laid down in the Statute and are not bound by them. If they were simply given access to the Court without more ado, there would be a legal inequality between parties in all the cases in which they participated and this would be to the detriment of the party that was bound by the Statute, which would be subject to greater obligations than its opponent. Secondly, States in this third category do not contribute to the Court’s budget, whereas UN Member States do, and so do non-Members that are parties to the Statute. The third category States would thus have access to the Court free of charge, whereas other States have to pay, via their budgetary contributions. That situation would not only be unfair, but would give States which are not Members of the UN an incentive not to adhere to the Statute, since if they   Above ch III section 1(e).

445

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did adhere to it, they would lose their advantage. This would be an undesirable state of affairs. The UN Charter does not contemplate the third category of States. Their situation is such a marginal one that it was considered unnecessary to cover it in the text. Article 35, paragraphs 2 and 3 of the Statute does, however, contemplate the situation, providing for it in the following terms: 2. The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court. 3. When a state which is not a Member of the United Nations is a party to a case, the Court shall fix the amount which that party is to contribute towards the expenses of the Court. This provision shall not apply if such state is bearing a share of the expenses of the Court.

Rule 26, paragraph 1(c) provides as follows: The Registrar, in the discharge of his functions, shall: . . . have the custody of the declarations accepting the jurisdiction of the Court made by States not parties to the Statute in accordance with any resolution adopted by the Security Council under Article 35, paragraph 2, of the Statute, and transmit certified copies thereof to all States parties to the Statute, to such other States as shall have deposited declarations, and to the Secretary-General of the United Nations.

Rule 41 deals with the institution of proceedings: The institution of proceedings by a State which is not a party to the Statute, but which, under Article 35, paragraph 2, thereof, has accepted the jurisdiction of the Court by a declaration made in accordance with any resolution adopted by the Security Council under that Article, shall be accompanied by a deposit of the declaration in question, unless the latter has previously been deposited with the Registrar. If any question of the validity or effect of such declaration arises, the Court shall decide.

As provided in Article 35, paragraph 2 of the Statute, the Security Council on 15 October 1946 adopted Resolution 9, setting out detailed conditions for access to the Court.446 The Resolution was largely based on the corresponding Resolution adopted decades previously by the Council of the League of Nations to give access to the PCIJ.447 The operative part of Resolution 9 provides that: 1. The International Court of justice shall be open to a State which is not a party to the Statute of the International Court of Justice, upon the following condition, namely, that such State shall previously have deposited with the Registrar of the Court a declaration by which it accepts the jurisdiction of the Court in accordance with the Charter of the United Nations and with the terms and subject to the conditions of the Statute and Rules of the Court, and undertakes to comply in good faith with the decision or decisions448 of the Court and to accept all the obligations of a Member of the United Nations under Article 94 of the Charter; 2. Such declaration may be either particular or general. A particular declaration is one accepting the jurisdiction of the Court in respect only of a particular dispute or disputes which have already 446   On the subject of this Resolution, see particularly, H Blomeyer, ‘Der Internationale Gerichtshof und die Nichtmitgliedstaaten des Statuts. Zur Auslegung der Entschliessung des Sicherheitsrats vom 15. Oktober 1946‘ (1955) 16 ZaöRV, 256 et seq.; Zimmermann, ‘Article 35’, above n 351, 578–80. 447   See Hudson, above n 93, 755–56; Zimmermann, ‘Article 35’, above n 351, 568–69. 448   The expression sentences (awards) in the French language text is, strictly speaking, not quite correct: only an arbitral tribunal hands down awards: the Court gives judgments and decisions (and also makes Orders).



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arisen. A general declaration is one accepting the jurisdiction generally in respect of all disputes or of a particular class or classes of disputes which have already arisen or which may arise in the future; 3. The original declarations made under the terms of this resolution shall be kept in the custody of the Registrar of the Court, in accordance with the practice of the Court. Certified copies thereof shall be transmitted, in accordance with the practice of the Court, to all States parties to the Statute of the International Court of Justice, and to such other States as shall have deposited a declaration under the terms of this resolution, and to the Secretary-General of the United Nations; 4. The Security Council reserves the right to rescind or amend this resolution by a resolution which shall be communicated to the Court, and on the receipt of such communication and to the extent determined by the new resolution, existing declarations shall cease to be effective except in regard to disputes which are already before the Court; 5. All questions as to the validity or the effect of a declaration made under the terms of this resolution shall be decided by the Court.

Particular declarations are made for the purposes of a specific case to be brought to the Court. Particular (as opposed to general) declarations under this Resolution were lodged in the past by Albania (1947) and Italy (1953, in relation to the Monetary gold case). General declarations provide for submission to the Court by virtue of jurisdiction clauses in particular treaties. Declarations of a general nature were lodged by Cambodia (1952), Ceylon (1952), Finland (1953 and 1954), Italy (1955), Japan (1951), Laos (1952), the German Federal Republic (1955, 1961, 1965 and 1971) and the Republic of North Vietnam (1952).449 In the time of the PCIJ, particular declarations were lodged by Turkey in 1927 (the Lotus case) and in 1933 (the Castellorizo case); and general declarations by Monaco (1937) and Liechtenstein (1939).450 The provisions of Resolution 9 remained of practical importance so long as the United Nations continued to be essentially a coalition of the wartime allied victors, extended into peacetime. Progressively, the UN was gradually transformed into the primary forum for the meetings and activities of the entire international community of States. Nowadays, States no longer hold the UN at arms length, seeking access to the Court via this small postern gate. They prefer to become Members of the UN, or else they argue that they are already Members, even when their status is legally unclear (the case of Serbia and Montenegro from 1992 to 2000). Alternatively, if only for reasons of prestige and formal equality, a State will seek to become a party to the Statute rather than operate, as it were from the basement window, on the basis of concessions made to non-parties under Article 35, paragraphs 2 and 3 of the Statute. In this way, an option that was originally considered a useful way of enabling non-parties to use the Court during the cold war period, is nowadays rather resented, as a kind of capitis diminutio, putting the State concerned into what is sometimes seen as almost a pariah position in the international legal community. This explains why, in recent years, no State has used this mechanism. Resolution 9 and the texts on which it is based do, however, call for a number of comments. First, there is the question whether the Resolution and the declarations it contemplates apply only to claimants in cases before the Court, or whether they apply also to respondents. It has been argued that a State which is a party to the Statute can bring a case in the   ICJ Yearbook, 2006–2007, no 61, 110.   Zimmermann, ‘Article 35’, above n 351, 570.

449 450

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Court against a State which is not, independently of any declaration by the latter under Resolution 9, and independently of the application of Article 35, paragraph 2.451 This argument relies, amongst other things, on Rule 41. That Rule requires only the lodging, by the claimant, of a declaration under Resolution 9, at the time it begins the case. The Rule does not say, however, that, once it finds itself on the receiving end of a Claim, the respondent likewise must make and lodge a declaration. The view that the respondent need not do so, although it has obvious attractions in that it open up the Court’s jurisdiction more widely, cannot be considered correct. There are very serious arguments the other way.452 Article 35, paragraph 2, refers to ‘other states’ without making any distinction. Paragraph 1 of Resolution 9, states that the ICJ is ‘shall be open to a State which is not a party to the Statute’ a formula which makes no distinction between claimants and respondents. Teleological arguments, and arguments about the equality of parties, reinforce this conclusion. It is at least as necessary (if not more so) for the respondent as for the claimant to promise, via a declaration, to execute the Court’s judgment in good faith, and to recognise the powers of the Security Council under Article 94 of the Charter. The respondent, like the claimant, must submit to the Court’s rules of procedure. In addition, paragraph 3, which is inextricably linked to paragraph 2, must obviously apply to the respondent: the respondent will be required to contribute to the costs of the Court’s functioning (as was Albania, in the Corfu Channel case). The Court seems to prefer this approach, given that in 1993 it applied Article 35, paragraph 2, (but not Resolution 9453), to the Federal and Socialist Republic of Yugoslavia, when the latter was the Respondent.454 Admittedly, those who think a declaration by the respondent unnecessary can point to a PCIJ precedent in which a State which was not a party to the Statute was the Respondent: in the Wimbledon case (1923),455 the Court did not, of its own volition, raise the question of the German declaration, no doubt taking the view that it need not do so if neither party objected. In that case an issue of public policy (ordre public) was erroneously treated as one concerning only the parties.456 However, it should be recognised that although this is a precedent, it is a very unusual one. Second, Article 35, paragraph 2 of the Statute places the State in question in a position which, right from the first, is very different from that of a non-Member which becomes a party to the Statute. In the latter case, the General Assembly fixes ‘in each case’ under Article 93, paragraph 2 of the Charter, the conditions for admitting the State in question to the Statute, doing so on the recommendation of the Security Council. By contrast, in the former case, the conditions under which a State which is not a party to the Statute can participate in a particular case are fixed by the Security Council alone. Also, they are not fixed on a case-by-case basis, but are simply conditions ‘laid down by the Security Council’ in a general way. The conditions for access to the Court are thus normally identical for third States, subject to the particular situations that may arise under ‘treaties in force’ (Article 35, § 2). The Security Council discharged this function of fixing the conditions when it passed Resolution 9 of 15 October 1946. It will also be noted that the budgetary contributions of   Rosenne, above n 45, vol II 636–37.   Zimmermann, ‘Article 35’, above n 351, 578. 453   Because the Yugoslav federation obviously was not a non-Member of the UN. 454   ICJ Reports 1993, 3 et seq. It is, however, true that, at that time, the legal status of this State was a matter of controversy. 455   PCIJ, Series A, no 1, 15 et seq. 456   We will return to this question later in this section under ‘eighth’. 451 452



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such States to the Court’s expenses when they participate in a case, are not fixed by the political organs of the UN. They are left to the judgment of the Court itself, on a case-bycase basis (Article 35, § 3 of the Statute). The Court fixes such contributions in light of the expense of the particular case, the time it takes to examine it, and, a particularly important point, of the percentage that the State in question would have had to contribute if it had been a UN Member (after deducting, if necessary, such proportion as the State may have contributed in the later stages of the case after becoming a UN Member in the meantime457). The ICJ practice shows a progressive increase in contributions: Albania contributed US$ 500 in the Corfu Channel case (1949); Italy contributed US$4,500 in the Monetary Gold case (1953); Germany contributed US$50,000 in the North Sea Continental Shelf cases (1969); and Germany later contributed US$163,501 in the case on Fisheries Jurisdiction (1974).458 The ICJ makes no distinction in this regard between claimants and respondents, requiring the latter too to make a contribution, as was clearly shown in the Corfu Channel case. The practice of the PCIJ,459 under Article 35, paragraph 3, of its own Statute,460 was slightly different. In the Wimbledon case, which was brought before the Court by a joint application of the United Kingdom, French, Italian and Japanese governments, against Germany as respondent, the Court decided, on 23 September 1923, that there was no reason to require a contribution from the German government. In the case concerning Certain German interests in Polish Upper Silesia, which was begun by a German application, the Court decided, on 21 May 1923, to fix the German contribution at 35,000 florins. In the Lotus case, which followed a special agreement between the French and Turkish governments, the Court decided, on 2 September 1927, to fix the Turkish contribution at 5,000 florins. In each of these three cases, the State in question was not a Member of the League of Nations and nor was it, at the time of the case, a party to the PCIJ Protocol.461 The PCIJ seems to have taken into account the question whether the party was a claimant or a respondent. It imposed no contribution on Germany as respondent (Wimbledon); but whenever a State was the claimant, or was involved on the basis of a special agreement, the PCIJ fixed the amount of a financial contribution (Certain German interests, Lotus). This practice might seem more equitable than the ICJ’s, given that the State which is sued is not, in the final analysis, electing to make a claim before the Court or to use the Court’s services. All it does is to agree to defend a case into which it has, so to speak, been dragged. Despite that, it is fair to say that even respondents do in fact ‘make use’ of the Court’s services. They communicate with it, they submit documents in the course of the proceedings, and they benefit by having a dispute involving them peacefully resolved. It is difficult to see why such services, to which the respondent has manifestly consented (since the Court’s jurisdiction is consensual) should be provided to such States free of charge. If the service was free, States envisaging seising the Court could even enter   The situation of the German Federal Republic in the case concerning Jurisdiction in fisheries matters (1974).   See Zimmermann, ‘Article 35’, above n 351, 587. 459   PCIJ, Series E, no 4, 123. 460   ‘When a State which is not a Member of the League of Nations, is a party to a dispute, the Court will fix the amount which that party is to contribute towards the expenses of the Court.’ An amendment to this paragraph was proposed, with a view to making it inapplicable if the State in question contributed to the Court’s expenses. The amendment was proposed by Brazil and adopted by the 1929 Conference on the revision of the Statute. It was designed to avoid imposing a double charge on a State, once as a member of the League of Nations, and another as party to the signature Protocol giving rise to participation in the PCIJ. cf Hudson, above n 93, 189. 461   Germany signed the Protocol on 10 December 1926 (ratification 11 March 1927), at the time it became a Member of the League; Turkey did so on 12 March 1936 (but the instrument of ratification was not delivered). cf Hudson, above n 93, 666–67. 457 458

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into agreements as to which will be claimant and which respondent, with a view to enabling the State which is not a party to the Statute to avoid a contribution. This would hardly be appropriate. For these reasons, the practice of the present Court is to be preferred to that of its precursor, particularly when one bears in mind the rather derisory size of the amounts actually levied from governments on this basis. Third, Resolution 9 (1946) imposes only minimal obligations as conditions for permitting third States to participate as parties in cases before the Court. They are required: (1) to accept the Court’s jurisdiction in conformity with the UN Charter, the Statute and the Rules; and (2) to declare themselves ready to comply with the judgment in good faith and to submit to the procedures for its compulsory execution under Article 94 of the Charter, if that should become necessary. The Court’s jurisdiction is accepted in the ordinary way, which is equally valid for parties to the Statute (§ 2 of the Resolution). So it is possible to accept the jurisdiction for the purposes of a particular dispute by special agreement, or via the forum prorogatum mechanism; or, for a series of future cases, by a treaty or by an optional declaration under Article 36, paragraph 2 of the Statute, to which third States are, in this way, partially admitted. In this regard, the Resolution provides that the acceptance of the optional clause by the third State cannot, in the absence of express agreement, ‘be relied upon vis-à-vis States parties to the Statute which have made the declaration in conformity with Article 36, paragraph 2 of the Statute’ (§ 2 of the Resolution). This means that, each time round, the opposing State must expressly agree to submit to the jurisdiction for the purposes of the particular case. The mechanism of the optional clause has thus been made partially available to third States, but not entirely. The Security Council did not wish to give them the advantage of an enlarged compulsory jurisdiction without becoming parties to the Statute. It was thought that this would have given them an excessive benefit, which ought to be confined to the parties to the Statute. So Article 36, paragraph 2 of the Statute applies, in this context, in a modified manner, and only by analogy. Instead of being ‘compulsory ipso facto and without special agreement’ (compulsory jurisdiction), under Article 36, paragraph 2, in such cases the clause applies only where there is an express agreement between the third State and another State which is a party to the system of the clause. A compulsory jurisdiction under Article 36, paragraph 2 is thus transformed into an optional one (§ 2 of the Resolution). This special jurisdiction is slotted into the mechanism of paragraph 1 of Article 36, because, in functional terms, it operates like a special agreement (‘The jurisdiction of the Court comprises all cases which the parties refer to it’, Article 36, § 1 of the Statute). It is interesting to see how, in this way, a jurisdiction apparently under the mechanism of Article 36, paragraph 2, is legally transformed into one which in truth arises under the mechanism in Article 36, paragraph 1. We thus find the optional clause operating in the context of Article 36, paragraph 1, rather than, as is usual, of Article 36, paragraph 2. On the other hand, within the context of the particular case, reciprocity is unrestricted. It applies on an unlimited basis between the third State and the State which is a party to the Statute. It thus seems incorrect to claim that a third State which has subscribed to the optional clause under Resolution 9 could not invoke the reservations in the optional declaration made by the State which is a party to the Statute, or vice versa.462 However, reciprocity prior to the seising of the Court is incomplete. The State which is a party to the Statute can at any moment take the case to the Court against a third State (within the limits of the latter’s declaration); conversely, however, the third State cannot   See Dubisson, above n 49, 139.

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bring a case against the State party which has subscribed the optional clause, given that the jurisdictional link presupposes the latter’s specific assent.463 As shown by the case of the Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility, 1984),464 complete reciprocity applies in any event only within a case, that is from the moment the Court is seised of it, whereas it is less than perfect prior to the seising of the Court, at the time when that step may be in contemplation. This is true – as it were in this case – also for the parties to the Statute. The second condition, that is the requirement to respect the Court’s decisions, gives rise to a question of interpretation. Leaving to one side the fact that, in the French text, the word ‘sentence’ is used (incorrectly so, since that term strictly speaking applies only to arbitral awards,465) the question is whether the condition covers not only judgments but also other types of binding Order. In the LaGrand case (2001), the Court said that its Orders ‘indicating interim measures of protection’ could be (and normally were) binding on the parties.466 Given that the purpose of Article 35, paragraph 2 is to equalise (as far as possible) the position as between third parties and States which are parties to the Statute, given that the obligations under Article 94 of the Charter must be accepted by such third States, and given also that Article 94 must be interpreted as applying to all the binding pronouncements of the Court, the condition covers not only judgments but also binding Orders. If the third State were not under an obligation to respect a binding Order, there would be an inequality between the parties in the course of the case, which is contrary to Article 35, paragraph 2. In addition, the proper functioning of the Court and the due administration of justice would be endangered. The expression used in the English version of Resolution 9 leads naturally to the same view: the word ‘decisions’, obviously refers to all binding pronouncements of the Court.467 Fourth, it might be asked whether Resolution 9 ‘derogates’ or might ‘derogate’ from the Statute. Can it impose the functioning of an optional clause under Article 36(1) rather than Article 36(2), as we have discussed it? Read properly, however, this does not amount to a derogation from the Statute. The Statute does not apply to third States. The Security Council was thus operating praeter legem in laying down the conditions of access in cases not covered by the Statute. Its right to do so was recognised in Article 35, paragraph 2 of the Statute, provided only that the conditions it adopted were not contrary to the spirit of the Statute, to the proper functioning of the Court, or to the equality of parties. It should also be noted that, although paragraph 1 of the Resolution provides that the third State must accept the ‘jurisdiction of the Court’, that is not the end of it: the third State must also accept all the rules of procedure applicable in cases before the Court, since the Court cannot depart from them, even in the case of a State which is not a party to the Statute. In this respect too, therefore, there is no derogation from the Statute, not even an implied one. Fifth, it should be noted that questions of form, and the process by which declarations of submission are made, are left to the Court to regulate (§ 3 of the Resolution). There is very little about the Court’s procedures that can be considered formalistic. It accepts declarations without insisting on any particular conditions as to form, in line with its practice as regards States that are parties to the Statute. If there are defects, or elements of uncertainty,   Zimmermann, ‘Article 35’, above n 351, 585.   ICJ Reports 1984, 415 et seq., 420, § 64. 465   It is different in Italian, where the expression can also cover the judgments of a court. 466   ICJ Reports 2001, 501 et seq. 467   In the same sense, Zimmermann, ‘Article 35’, above n 351, 579. 463 464

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in the document in question, it asks the State concerned to correct the defect or clear up the uncertainty. This absence of formalism can also be seen in the Court’s response to actual disputes. Thus, the Court was seised of the Corfu Channel case (1947–49) on the basis of a Security Council recommendation of 9 April 1947,468 and later on the basis of a special agreement between the parties.469 At that time, Albania was not a party to the Statute. The Court did not proceed on the basis of Resolution No 9 of 1946, but instead took the view that the separate Resolution of April 1947, inviting the parties to submit their dispute to the Court, and being likewise a Security Council Resolution, itself created the right to appear as a party before it. The Court did, however, take care to satisfy itself that Albania had accepted the necessary obligations under the Charter and the Statute, particularly the obligation to give effect to the Court’s judgment. Sixth, the Security Council reserved the right to annul or amend the conditions of access to the Court under Resolution 9. Paragraph 4 of the Resolution provides that the change will, on being received by the Registrar, have the immediate effect of legally ending the operation of declarations that have already been made. In response to the principles of the forum perpetuum and non-retroactivity, paragraph 4 makes an exception – but only one – namely of disputes of which the Court is already seised. This immediate effect creates a problem of its own. As a general rule (and we will return to this later), the bases of the Court’s jurisdiction cannot be modified until a ‘reasonable time’ has elapsed after the Registrar receives the modifying instrument. It is certainly possible to take the view that the principle of allowing a reasonable time applies only to the Court’s consensual jurisdiction, so that, for example, an optional clause cannot be withdrawn from with instant effect. The principle would not, however, apply to questions relating to access to the Court, in particular to access by States which are not parties to the Statute, under Security Council Resolution 9. From the legal point of view, the access available to third States is an act of grace, in other words, a concession. Not being parties to the Statute, they have no actual rights under that concession. This makes the situation significantly different from the one we considered above. It would not be a matter of consensual jurisdiction so that the third State would not enjoy the subjective rights of a State which was a party to the Statute. Given that in modern conditions Resolution 9 is of minor practical importance, there is perhaps little reason to explore the point further here. Suffice it to say that the Security Council would be well advised to allow the lapse of a minimal period of time between the making of the change and its taking effect. This is desirable in order to preserve confidence (the principle of good faith) and to avoid frustrating the activities of parties involved in cases which may spring up from one day to the next, without any prior warning. In that sense, the validity of the reservation, in paragraph 3 of the Resolution, of the right to make changes to the access conditions with immediate effect, is not beyond all legal doubt. It should perhaps be remembered that the Security Council, as an organ of the United Nations, is bound, just as the Member States are, by Article 2, paragraph 2 of the Charter, which requires respect for the principle of good faith, so as to preserve trust and confidence. Seventh, at the same time, questions relating to the interpretation, effects or validity of a specific declaration are referred to the decision of the Court (§ 5). From the technical legal point of view, this provision is not actually necessary. Although it may perhaps clarify the   ICJ Reports 1947/1948, 26.   ICJ Reports 1949, 6.

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distribution of functions between the Security Council and the Court, the fact is that if the provision were absent from the text, it would not make any difference. The Security Council has not reserved to itself the exclusive right to decide such questions (and if it had done so, numerous legal problems would naturally have arisen). Given the Court’s jurisdiction under Article 36, paragraph 6 of the Statute (jurisdiction over jurisdiction), the result, even if the text had been silent, would have been that the Court would have had jurisdiction over all such issues. From a practical perspective, however, the clause does have a certain value. Eighth, there is the question to what extent the Court can and must, of its own volition, consider whether the conditions laid down in Resolution 9 have been satisfied, or whether the declaration provided for in the Resolution’s first two paragraphs is in due and proper form. Fundamentally, the point is beyond doubt. These are questions of ‘public’ interest, connected with the right to appear before the Court as a party, with the proper administration of justice, the equality of parties and the duty to give effect to the Court’s judgments. They are not exclusively the concern of the parties, and must therefore be considered by the Court of its own volition. The Court acted accordingly, as we have seen, in the various Yugoslav cases (the Genocide case: Bosnia-Herzegovina v Serbia and Montenegro, and Croatia v Serbia; the Legality cases of 2004) in relation to a State whose legal status was unclear. Conversely, however, the Court has, on other occasions, showed little concern for such issues. The PCIJ, in its early years, did not raise the question of its own volition in relation to the corresponding Resolution of the League of Nations Council. In the Wimbledon case (1923)470 (in relation to the Respondent), and then in the case of Certain German interests in Polish Upper Silesia (Preliminary Objections, 1925)471 (in relation to the claimant), the Court relied on the fact that the governments involved in the case had raised no objection. In the Corfu Channel case (1947–49), the Court again showed its nonformalist approach. It satisfied itself that Albania had accepted all the obligations necessary for the functioning of the Court, but did not require a declaration in the sense of Resolution 9, preferring to act on the basis of a different Security Council Resolution, specifically inviting the parties to take their dispute to the Court, and dating from April 1947.472 The Court took the view that the 1947 Resolution amounted to an invitation, and could be substituted for the declarations required under Resolution 9. It will be noted that each of these cases was heard in the early years of the court in question. It is easy to see that, under the particular circumstances following the end of World War I, and again in the early aftermath of Resolution 9, the Court did not wish to appear too strict. Nowadays, it is unlikely that so casual a practice could be justified. Ninth, Resolution 9, and more generally Article 35, are also applicable to the intervention of a third State in the sense of Articles 62 and 63 of the Statute.473 A State intervening as a party, or on an accessory basis (to inform the Court of its views on one or more legal questions, without becoming a party to the case), may, in principle, intervene only if it is a party to the Statute or has satisfied the conditions laid down in Article 35, paragraph 2 of the Statute. That is easy to understand as regards intervening as a principal (Article 62). A more liberal interpretation might, however, be appropriate in the case of accessory   PCIJ, Series A, no 1, 15 et seq., 20.   PCIJ, Series A, no 6, 11, the Court stating that ‘the Polish government does not dispute the fact that the suit has been duly submitted to the Court’. 472   ICJ Reports 1947/48, 26. 473   Zimmermann, ‘Article 35’, above n 351, 574. 470 471

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intervention (Article 62 or 63), for the very reason that such an intervention is not qua party. One should also note that some aspects of Resolution 9 are not in any event applicable to accessory interventions. This is particularly the case as regards the obligation, under paragraph 2, to give effect to the judgment in good faith, and to submit to the obligations arising under Article 94 (especially Article 94, § 2) of the Charter. From a teleological perspective, access to the Court for the purpose of supplying it with information could be allowed on a more liberal basis than access as a party. On the other hand, Article 35, paragraph 1 of the Statute provides in terms that ‘The Court shall be open to . . .’ not that the ‘The following may become parties to cases before the Court . . .’. This is to some extent an argument for an interpretation covering all forms of participation in proceedings, even accessory intervention. Also, an accessory intervener is not participating for the benefit of the wider international community: it informs the Court of its views not as a kind of amicus curiae, but as a matter of self-interest, to safeguard its own legal position and rights. There is therefore less urgency about creating a wider and more generous opening into the Court’s jurisdiction for States in that position, especially when they are not willing even to take the relatively easy step of accepting the conditions laid down in Resolution 9. Overall, therefore, although it seems that intervention as a principal presupposes that the conditions of Article 35 are satisfied, it is not entirely out of the question to imagine that, at some future date, the Court might admit accessory intervention by a third State without any real examination of its acceptance of Resolution 9, particularly if the Court sees some benefit for the due and proper administration of justice. Until now, however, the Court has had no opportunity to clarify this question through its jurisprudence, and indeed it does seem unlikely that it will have the opportunity in the foreseeable future. Tenth, there is no doubt that Article 35 is fully applicable to cases in respect of which jurisdiction is transferred from the PCIJ to the ICJ, that is to Article 36, paragraph 5, and Article 37 of the Statute.474 Here we are concerned with the provisions under which jurisdiction clauses contained in old treaties, giving jurisdiction to the PCIJ, and the optional declarations in the PCIJ’s favour that are still in force are automatically considered to be referable to the ICJ. The draftsmen designed this mechanism to keep in being jurisdictional arrangements already in force, without obliging States to amend all the old instruments by substituting ‘ICJ’ for ‘PCIJ’. It is accepted, nevertheless, that this transfer of jurisdiction operates in favour only of States which are parties to the new (ICJ) Statute. The application of Article 36, paragraph 5, and Article 37 of the Statute thus presupposes that a State will be a party to the Statute, which in turn means that Article 35, paragraph 1 will apply and Article 35, paragraph 2 will not. In other words, third States that have made a declaration under Security Council Resolution 9 do not enjoy the benefit of this transfer of jurisdiction to the new Court. The benefit is confined to States which are parties to the Statute. Article 36, paragraph 5, and Article 37 are categorical about this, containing, as they do, the words ‘as between the parties to the present Statute’. This principle might seem inconsistent with the main objective reiterated above, namely to make access to the Court as widely available as possible, and also with the desire to preserve unaltered, and so far as possible without any discontinuity, the jurisdictional arrangements and agreements already made. Nevertheless it has its own kind of consistency, and is fairly easy to understand. Article 36, paragraph 5, and Article 37 are concerned with the ordinary jurisdictional rights of States which had been parties to the PCIJ Statute. These ordinary jurisdictional rights came into   Zimmermann, ‘Article 35’, above n 351, 576.

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being only for parties to the Statute. They can have existed only for States which had been parties to the PCIJ Statute, and for their existence to continue, it is essential that the States in question should now be parties to the ICJ Statute.

g)  Effect of Non-recognition of a State Could there be a case in the Court between two States that do not mutually recognise each other? Is recognition of a party as a State an additional condition of the right to appear as a party in a case before the Court against a particular opponent? Nowadays, general international law does not treat recognition as a ‘constitutive’ condition of the existence of a State.475 A State exists independently of such recognition, by virtue of international customary law, and from the moment it first comes into existence enjoys certain rights, in the same way as, from that same moment, it is subject to certain obligations towards other States. Thus, for example, State X may not infringe the territorial integrity of another State, or use force against that State, on the basis of an argument that it has not recognised the second State and that consequently the territory question is, in its view, terra nullius. A situation in which the States of the international community are collectively fulfilling a duty to deny recognition denies the entity in question the character of a State and makes it, by definition, no more than a de facto regime. Even in that case, however, certain rights and obligations under general international law nevertheless apply as between it and third States. On the other hand, recognition is necessary, and so to speak ‘constitutive of’ some of the other rights and obligations of a sovereign State. Recognition normalises relations between States on both the political and the legal plane. Only recognition makes it possible for States to make treaties with each other, or to establish diplomatic relations. However, recognition need not necessarily precede the making of a treaty or an exchange of ambassadors. International law is so designed as not to create unnecessary obstacles to the establishment of normal relations between States, and is not formalistic as regards the methods. They can make treaties, or establish diplomatic contacts at any time, as they see fit or useful, and the fact of so doing amounts to mutual recognition even where that recognition is only implicit rather than explicit. For the same reason, States must avoid making treaties in full and proper form, or establishing ordinary diplomatic relations, unless they are prepared to accept the consequences of such implicit recognition. Under general international law, some rights and obligations are automatic for every entity which is considered an existing State by virtue of the four traditional criteria that are considered essential (territory, population, government and sovereignty). The rights and obligations in question are all exclusively fundamental ones, all being essential to the proper functioning of the international community. That is one of the reasons why they generally apply, that is, as between the State concerned and all other States. This rule applies, for example, to the public policy (ordre public) norm prohibiting the use of force, as recognised in Article 2, paragraph 4 of the UN Charter, and in international customary law. By contrast, some other rights and obligations are inapplicable unless there is mutual recognition. All the rights and obligations in this latter category are bilateral ones, relating to the legal positions of the parties directly concerned.   See, eg J Crawford, The Creation of States in International Law, 2nd edn (Oxford, 2006) 12 et seq.

475

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At this point the question is whether a State has the right to appear as a party before the Court, whether as claimant or as respondent, with regard to an opponent party not recognising it. Does that right to appear arise directly from the fact that the State has come into being and ratified (or acceded to) the Statute? Or does it arise from those two legal facts when coupled with a third, namely recognition, so that recognition takes on, for this purpose at least, a certain ‘constitutive’ function? So far, this question has not received from commentators the attention it seems to deserve. It has to be admitted, however, that until now it has been of only marginal import­ance for the practical work of the Court. States not recognising each other have little chance to confront each other at the Court. The first point to make is that there is no reason to argue that the Court cannot be seised of a case by two disputing States that do not recognise each other, by way of a special agreement, the agreement implying ipso facto recognition (by the same token, it could be argued that a State seizing the Court against another State impliedly recognizes the latter; but the same is not true for the defendant). In this situation, the problem of nonrecognition disappears. Second, as regards all the other bases of jurisdiction, recognition is not a condition for putting them to work. The ICJ Statute lays down purely objective conditions as to the right to appear as a party, and these are the only conditions which have to be satisfied, and examined ex officio by the Court. They are: (1) statehood, a concept which does not presuppose recognition (Article 34, paragraph 1 of the Statute); and (2) being a party to the Statute, or otherwise entitled to be a party to a case. The Court need take account only of these legal questions, connected as they are to the Court’s own character and functions. It does not have to explore questions concerning the private interests of the litigating parties, one of which will be their policies as regards the recognition of their opponent. The Court has even less reason to create additional obstacles to access, that is, ones not provided for in the Statute. It is a matter for the State concerned whether to enter into a special agreement with a State it does not recognise (thereby possibly recognising it, if the agreement is bilateral), or whether to object to the Court’s jurisdiction in relation to such a State. If a State wants to succeed in an objection when the Court is seised of a case on the basis of a treaty or an optional declaration, it must make its legal position known through reservations accompanying the instrument giving the Court jurisdiction. Since the time of the PCIJ,476 there has indeed been some optional declarations in the sense of Article 36, paragraph 2 of the Statute, by which States exclude the Court’s jurisdiction in respect of States they do not recognise.477 In the absence of such an express reservation, the ICJ could accept the case, since its jurisdiction would not be in issue. The Court’s practical experience of this question is very limited. The Court faced it head on in the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Preliminary Objections, Bosnia-Herzegovina v Yugoslavia, 1996). Nevertheless it managed to avoid a ruling on the principle. Yugoslavia had claimed that the two parties in the case, namely itself and Bosnia-Herzegovina, did not recognise each other, and that the Court therefore lacked jurisdiction. The Court got round this problem by deciding that, in any event, the parties had recognised each other in 1995, at the time of signing the Dayton Accord, under Article X of that instrument, and that therefore the question of non-recognition simply did not arise.478 It is possible to read this part of the decision as implicitly admitting that recognition is necessary to the Court’s jurisdiction, and that the condition was satisfied in the particular circumstances of the case. However,   For example, the case of Romania, cf Hudson, above n 93, 467.   For example, the case of India: ICJ Yearbook 2006–2007, no 61, 141, figure 8. 478   ICJ Reports 1996-II, 612–13, §§ 25 and 26. 476 477



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nothing in the judgment enables it to be read in that sense. Quite the reverse, the Court stated as a caveat that, as regards the Genocide Convention: ‘For the purposes of determining its jurisdiction in this case, the Court has no need to settle the question of what the effects of a situation of non-recognition may be on the contractual ties between parties to a multilateral treaty’ (§ 26). The Court, then, did not decide the question explicitly. It considered that, whatever the answer to the question, it did not arise in that particular case, and that there was therefore no need to decide it. In any event, the Court has never raised this question of its own volition, and it has never been a major issue. It is more than probable that two States confronting themselves at the Court will have performed some acts which can be interpreted ex post as implying recognition. In this practical sense, there is little probability that the problem of non-recognition will ever arise in sharp terms in a case before the Court. The principle applicable is, however, that recognition is not a condition for lodging an application or being a defendant as regards a State not recognised.

6.  SUBJECT-MATTER JURISDICTION (RATIONE MATERIAE): WHAT CASES CAN THE COURT DECIDE?

a)  The Concept of Subject-matter Jurisdiction The concept of subject-matter jurisdiction covers all the categories of cases of which a tribunal has the right to take cognisance. In other words, it is a question of deciding whether the subject matter of the case is such as the tribunal has jurisdiction over, ‘forming an appreciation in light of the subject of the dispute’.479 Every municipal tribunal has a category of cases that can be brought before it, for example cases on labour law, cases on the interpretation or violation of a Constitution, cases in civil law and so on. International tribunals are in the same position. For example, the European Court of Human Rights can only hear cases based on an alleged violation of the European Convention on Human Rights, or (in certain conditions) requesting the interpretation of a provision of the Convention. That Court’s subject-matter jurisdiction is thus severely limited. The ICJ is legally constituted in such a way as to impose certain specific limitations to its subjectmatter jurisdiction, even though the latter is, in its field, a very wide one. Its scope is so wide because those who drafted the Statute wanted the Court to be able to resolve all kinds of disputes, and because it was intended that the sovereign States should be free to submit disputes to the Court according to their free will. The Court’s subject-matter jurisdiction can be parsed from two different perspectives, respectively governed as regards contentious proceedings, by Articles 36 and 38 of the Statute, and, as regards advisory cases, by Article 65. There are two kinds of subject-matter jurisdiction to be considered, namely consensual jurisdiction and subject-matter jurisdiction in the narrow sense of the term (material jurisdiction). Like the head of Janus, consensual jurisprudence faces both ways. On the one hand, it imposes strict limits on the Court’s jurisdiction (through the requirement of consent), and on the other, it stretches the jurisdiction (by not laying down a series of specific categories of case that the Court can hear). The Court’s subject-matter jurisdiction in the narrow or strict sense of the term limits the   J Salmon (ed), Dictionnaire de droit international public (Brussels, 2001) 218 (our translation).

479

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Court’s jurisdiction by virtue of the substantive quality that must characterise questions brought to it for its decision. Consensual jurisdiction. The first aspect of the Court’s subject-matter jurisdiction rests on a kind of renvoi to the will of the parties. This is, in a sense, a category that is relative in its nature, laying down an abstract criterion for jurisdiction without defining the substantive character of the categories of case that can be admitted. In this respect, therefore, the Court has jurisdiction only if the States consent to it, but if that condition is satisfied, has in principle jurisdiction whatever the material questions of international law that are to be put to it. In this sense, we are dealing here not with a question that strictly speaking relates to the subject matter or materia, but in fact with an autonomous criterion of consensual jurisdiction. However, if one tries to apply the traditional four-fold classification for jurisdiction – subject matter, personal, spatial and temporal – then consensual jurisdiction, a specific feature of international tribunals, goes hand in hand with the subject-matter question, and that is why the two are often dealt with together. Under Article 36, paragraph 1 of the Statute, ‘The jurisdiction of the Court comprises all cases which the parties refer to it . . .’. It has been said that: ‘The decision as to which cases are within the Court’s competence is thus made by the parties themselves. In other words, the extent of the Court’s subjectmatter jurisdiction rests on the principle of State consent.’480 Under this first principle, the Court’s subject-matter jurisdiction is subject at one and the same time to a rigorous consensual criterion and an unlimited range as to the substantive issues. In the first place, from the point of view of the restriction, the Court has jurisdiction only if all the parties consent to it. Absent such consent, it must declare that it cannot take the case. This is a principle unknown to municipal courts, ultimately resting, as it does, on the principle of State sovereignty and its power to command; it considerably limits the scope of the Court’s activity. Second, as to the lack of restrictions on substantive issues, the Court, exclusively on the basis of consent, has jurisdiction over every dispute of whatever nature (within the four corners of international law) that the parties wish to bring before it. Subject-matter jurisdiction in the narrow sense. We now turn to the second aspect, subjectmatter jurisdiction in the narrow sense of the term. The Court is not entitled to decide strictly every question the parties may submit to it. There has to be a dispute, and the dispute has to be a real and current one. The dispute must, moreover, be in principle one that rests on questions of public international law, or more precisely, the Court must be asked to apply the international judicial order to the disputed facts, and to make a ruling resolving the dispute on the basis of international law. According to an old tradition, which has rightly been abandoned, the question must in addition be justiciable, that is, must be essentially legal in nature and not essentially political. The heart of the rules on subjectmatter jurisdiction is to be found in Articles 36 and 38 of the Court’s Statute. Article 36, paragraph 2 (which incidentally is defectively drafted), lays down the categories of cases of which the Court can take cognisance. The ‘optional clause’ in Article 36, paragraph 2 provides that

480   Dubisson, above n 49, 144 (our translation). The formulation comes from H Kelsen, The Law of the United Nations (London, 1951) 478: ‘According to Article 36, paragraph 1 of the Statute, “the jurisdiction of the Court comprises all cases which the parties refer to it”. That means that the parties may bring before the Court any dispute whatever. In so doing the parties make the dispute a legal dispute’.



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the jurisdiction of the Court [extends to] all legal disputes concerning: 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.481

Item (b), on a literal reading, encompasses all the rest.482 Items (a), (c) and (d) are thus essentially illustrative, and item (b) alone is legally decisive. The Court can thus take cognisance of any issue of international law. This is a vast field of jurisdiction, but even so, the field does have a boundary fence. The negative implication is that the Court has no jurisdiction over matters which are not issues of international law. That conclusion is borne out by Article 38, paragraph 1 of the Statute: ‘The Court, whose function is to decide in accordance with international law, such disputes as are submitted to it, shall apply.’. (italics added) Therefore, one needs a definition of international law. In this respect a range of questions arise, and they need to be analysed one by one. First, if the Court can deal with ‘any question of international law’ and resolve any dispute ‘in accordance with international law’, it becomes possible to contemplate absolutely any dispute, provided only that it needs to be resolved under the rules of international law. The dispute itself does not have to be a dispute of international law: it is enough that the law to be applied for the purpose of resolving it, is, so far as concerns the Court, international law. It is possible to imagine a dispute essentially related to matters of internal law, but where it is an international treaty that refers it to the internal law system. In other words, if the internal law is applicable by virtue of a renvoi from international law, why should not the Court resolve it under international law, the internal law in question being, in a sense, incorporated by reference into the international law? One sees at once that this question poses some quite subtle problems. Second, one has to remember that the possibility exists, under Article 38, paragraph 2 of the Statute, for the Court to decide a dispute ex aequo et bono (on the basis of fairness and equity) if the parties are agreed that it should do so. This opens the way for the Court to give, in relation to treaties, rulings that are ‘not in accordance with international law’. This amounts to an enlargement of the Court’s subject-matter jurisdiction, subject to agreement between the parties. It thus becomes apparent that the question of subject-matter jurisdiction in the narrow sense is inextricably bound up with the applicable law. Consensual jurisdiction, given both its intrinsic importance and the extent of the law to which it relates, will be considered in a separate chapter. In this chapter we are concerned only with subject-matter jurisdiction in the narrow sense. One needs to consider, step by step, the existence and requisite nature of the dispute; the fact that the dispute has to be submitted to the Court in light of international law (the applicable law); and finally (and briefly) the question of justiciable and non-justiciable disputes. A word of explanation is 481   As to the interpretation of this list, see below, at the very end of section (e). Under the formula in § 2, items (a)–(d) do not automatically give rise to a legal dispute: rather it is that the Court’s jurisdiction extends to these four classes of case, if there is a legal dispute. Thus a dispute can relate to a ‘question of international law’ not as a matter of applying positive law, but as a matter of seeking its modification. If that is the position, the dispute is not ‘legal’. See also, on this view of the list in § 2, Kelsen, above n 480, 480–81. 482   See C Tomuschat, ‘Article 36’ in A Zimmermann, C Tomuschat and K Oellers-Frahm, (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006)631. See also MO Hudson, The Permanent Court of International Justice, 1920–1924. A Treatise (New York, 1943) 456 et seq.; and Kelsen, above n 480, 482.

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perhaps in order as to why, in this chapter, we are exploring the existence and nature of the dispute. The existence of a dispute is often perceived as a question of admissibility rather than one going to jurisdiction. However, the Court has usually had to deal with it as a question of jurisdiction, the existence of a dispute being bound up with the question of consent. Furthermore, as we have already seen, in the most recent cases Preliminary Objections as to the existence of a dispute have generally been presented as going to jurisdiction. In the last resort, it seems possible to configure an argument that there is no dispute either as nullifying the jurisdiction or as making the claim inadmissible. Given the fundamental importance of the question as to the existence of a dispute, a question which the Court has indicated it considers itself bound to enquire into of its own volition,483 it does not seem inappropriate to deal with it here, in a chapter that concerned with the question of the Court’s subject-matter jurisdiction.

b)  Existence of a Dispute In contentious cases, as the word ‘contentious’ itself indicates, the Court exists to decide disputes, differences of a kind that lead to litigation. That, of course, is the primary function of all tribunals. From the earliest times, the mission of an arbitrator, and later of a judge, has been to give a ruling to resolve disputes, with all the authority necessary in order to safeguard (so far as it is possible) the peace and order of society at large. It is not the role of the judge to speculate about the fairest solutions that might be found if one looked beyond the law. Nor is it his role to make law. He is not there to write learned treatises, whether on the law or the historic facts. Nor is it for him to suggest lines of policy going beyond the limits the law requires. The strength of the judicial role is that, by its very nature, it is a limited one. Judges’ efforts are not diluted across several fields of activity, but are always concentrated on the concrete resolution of disputes according to the law. The practical objectives of the law – a peaceful and just society – are laid bare in the crucible of the judicial mission. That mission involves two fundamental elements. The first is a balancing act: hearing out the parties even-handedly and assessing their cases carefully. The second element can best be described by a metaphor: the sword must decide the dispute. A dispute is a Gordian knot, and its resolution therefore requires a ‘cutting’ action – in French, one actually uses the expression ‘trancher’ un litige. Given the way that the question whether there is a ‘dispute’ of the required nature is so intimately bound up with the judicial role and mission, one naturally thinks of it as a question that needs to be addressed at a very early stage in the proceedings. It is considered at that stage in the same way as the right to appear as a party before the Court. It is a ‘constitutive’ matter, going beyond the interests of the parties and touching on the due and proper administration of justice. The existence (and nature) of a dispute is thus at one and the same time an issue of general admissibility (being an issue of judicial integrity, unlike a specific admissibility issue that is only a function of private interests) and also a matter of jurisdiction (the Court’s mission, limited ratione materiae). Legally, the existence of a dispute is an ‘objective condition of bringing the case’ (objektive Prozessvoraussetzung). This condition must be objectively satisfied before specific legal proceedings can be initiated, or, in the circumstances we are considering, before a case can be taken beyond the preliminary stage.   Rather like the ‘constitutive’ questions which the Court examines of its own volition – proprio motu.

483



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Definition of the word ‘dispute’.484 What exactly is meant by ‘dispute’ as a matter of general international law and the jurisprudence of the Court? The question is important because the answer to it indicates the object of the Court’s decision and, in consequence, the field in which the Court will operate. The dispute delimits the subject-matter domain within which the Court is called upon to act. It is in this sense that we speak of the Court deciding a dispute. In the first place, it can only decide a dispute, because that is its function; second, it decides the dispute in question, and only that one: it does not go beyond the bounds of what is disputed; and, in order to be sure it stays within those bounds, it needs to delimit them. The classic definition, fundamentally unchangingly followed in the jurisprudence until the present day, is to be found in the case of the Mavrommatis Concessions in Palestine, usually called the Mavrommatis case (Jurisdiction, 1924): ‘A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.’485 The constitutive elements of a dispute are, according to this formulation, as follows: (1) A subject in dispute: it may be a point of fact or a point of law; (2) Disputing parties: two persons; (3) A specific opposition between them: the two persons oppose each other in relation to the subject matter of the dispute, each making claims that its opponent resists or denies.486 The Court felt it necessary to formulate a definition of a ‘dispute’ in the Mavrommatis case because the dispute in question affected a private individual, Mr Mavrommatis. It was therefore necessary to decide to what extent the question involved a dispute between States, since it was only in the latter sphere that the Court had jurisdiction. So the Court began by setting out the general elements of a dispute, in the formula cited above. It then followed up by deciding that the claim in respect of diplomatic protection was an inter-State dispute, in that a State which takes up the cause of one of its nationals, whose rights in international law have been allegedly violated by the other State, is, by so doing, in reality asserting its ‘own’ rights.487 Historically, the PCIJ seldom focused very hard on whether a dispute existed, and thus had only marginal occasion to repeat the Mavrommatis formula. The PCIJ was much more concerned to check whether, in any particular case, prior negotiations were necessary, in order to define the subject of the dispute.488 In its early years, the ICJ was also not very focused on the question whether disputes existed. It is therefore not surprising that older treatises on the Court, such as those by Hudson or Dubisson, pay only very marginal attention to the question. But in the 1950s and 1960s the question began slowly taking on greater shape and substance. In each of the Right of passage to Indian territory (1957–60), SouthWest Africa (1962–66) and the Northern Cameroons (1963) the existence of a dispute on which the Court could rule was either at the heart of the judges’ deliberations or at least was brought to their attention. Since the 1960s, parties have regularly raised the point as a Preliminary Objection, and as a result the Court has dealt with it with increasing 484   See, amongst others, Tomuschat, ‘Article 36’ above n 482, 597 et seq.; S Rosenne, The Law and Practice of the International Court, 1920–2005, vol II, 4th edn (Leiden, 2006) 517;3rd edn (Leiden, 1997) 517 et seq.; G Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour internationale (Paris, 1967) 120 et seq.; M Bos, ‘Les conditions du procès en droit international public’ in Bibliotheca Visseriana, vol XIX (1957) 199 et seq.; G Morelli, Studi sul processo internazionale (Milan, 1963) 10–12, 187 et seq. (his Dissenting Opinion in the South-West Africa case, 1962); L Caflisch, ‘Cent ans de règlement pacifique des différends interétatiques’ CCHAIL, vol 288, (2001) 261 et seq.; JG Merrills, International Dispute Settlement, 4th edn (Cambridge, 2005). 485   PCIJ, Series A, no 2, 11. 486   According to the Court’s formulation in the South-West Africa case (Preliminary Objections) ICJ Reports 1962, 328: ‘It must be shown that the claim of one party is positively opposed by the other.’ 487   PCIJ, Series A, no 2, 11–12. See also the Serbian loans case (1929): PCIJ, Series A, no 20, 16–18. 488   See below.

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frequency. In this way the ‘dispute’ question has found its way into the field of ICJ procedural law. The Mavrommatis formulation has been repeated in a remarkably consistent and continuous way. It has been cited or referred to in a long series of cases: Interpretation of the Peace Treaties (first phase, 1950);489 Right of passage to Indian territory (Preliminary Objections, 1957);490 Right of passage to Indian territory (merits, 1960);491 South-West Africa (Preliminary Objections, 1962);492 Northern Cameroons (Preliminary Objections, 1963);493 Continental shelf in the Aegean Sea (Jurisdiction, 1978);494 Applicability of the obligation to arbitrate under Section 21 of the Agreement of 26 June 1947 on the Headquarters of the United Nations Organisation (1988);495 East Timor (1995);496 Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Serbia and Montenegro, Preliminary Objections, 1996);497 Lockerbie (Preliminary Objections, 1998);498 Land and maritime boundary between Cameroon and Nigeria (Preliminary Objections, 1998);499 Arrest warrant of 11 April 2000 (2002);500 Avena and other Mexican nationals (Order indicating interim measures of protection, 2003);501 Certain Property (Liechtenstein v Germany, 2005);502 and Land and maritime dispute (Nicaragua v Colombia, Preliminary Objections, 2007).503 In most of these cases, the Court confined itself to a reiteration of the Mavrommatis formula. However, in the course of its long jurisprudential journey, that formula, although all its essential elements have been repeated, has now and then been subjected to subtle minor variations, and also to some rather questionable additions. Thus, in the East Timor case (1995), the Court did not merely cite the Mavrommatis judgment in quotation marks, but altered it. It defined a dispute as ‘a disagreement on a point of law or fact, a conflict of legal views or interests between parties’ (italics added in relation to the expressions that were modified). The word ‘conflict’ replaced ‘contradiction’ and the expression ‘between parties’ replaced the less precise words ‘between two parties’. In the Certain property case (Liechtenstein v Germany, 2005), the Court combined the formulas used in Mavrommatis and East Timor, thus producing another new version, differing in the French and English   ICJ Reports 1950, 74 – the Mavrommatis not being cited.   ICJ Reports 1957, 148–49: idem, question of prior negotiation. 491   ICJ Reports 1960, 34: question as to the moment when the dispute arose: partial citation of the Mavrommatis formula (the part about ‘opposing legal theses’). 492   ICJ Reports 1962, 328: verbatim citation of the Mavrommatis formula. 493   ICJ Reports 1963, 27: no citation of the Mavrommatis formula, the Court confining itself to noting that in its view the parties had demonstrated opposition positions on the interpretation and application of certain provisions. 494   ICJ Reports 1978, 13: idem. 495   ICJ Reports 1988, 27: verbatim citation of the Mavrommatis formula and of additional jurisprudence since that decision. 496   ICJ Reports 1995, 99: citation of an altered version of the Mavrommatis formula (see text below). 497   ICJ Reports 1996-II, 614–15: no citation of the Mavrommatis formula, the Court confining itself to stating that there was indeed an opposition between the parties views on the performance of certain obligations. 498   ICJ Reports 1998, 17, 122–23: verbatim citation of the Mavrommatis formula. 499   ICJ Reports 1998, 314: citation of the formula adopted in East Timor which itself referred to the Mavrommatis case. 500   ICJ Reports 2002, 13: verbatim citation of the Mavrommatis formula, in quotation marks, according to the Lockerbie formulation. 501   ICJ Reports 2003, 88: simple recognition of the existence of a dispute, without citing the Mavrommatis formula. 502   ICJ Reports 2005, 18, § 24: Altered citation of the Mavrommatis formula (see below, in the text). 503   ICJ Reports 2007, 138 et seq.: without citing the Mavrommatis formula, the Court decides whether the dispute exists ‘objectively’. 489 490



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versions. It retained in French the word ‘contradiction’ which had been used in the 1924 decision, and avoided the word ‘conflict’ used in the 1995 judgment; in the English version, the word ‘conflict’ appears in both judgments. However, it preferred the expression ‘between parties’, from the 1995 judgment, to the words ‘two parties’ in the 1924 decision: ‘a disagreement on a point of law or fact, a conflict of legal views or interests between parties’. There is some difficulty in interpreting the exact scope of the terminological glissando from ‘contradiction’ to ‘conflict’ or the other way round in the French version. A ‘contradiction’ is a form of opposition or antagonism which normally has to be articulated in one way or another, usually by a claim or a protest. A ‘conflict’, however, could perhaps arise objectively, from the facts themselves, rebus ipsis et factis. It is also possible that the Court thought the word ‘contradiction’ less clear than ‘conflict’, because it had more than one meaning, and this could lead to confusion. All these questions do not arise in the English version. As to the expression ‘between parties’, it is more correct than ‘two parties’, given that a case is not necessarily limited to two parties. Nevertheless, court cases usually involve two positions, if not two parties, and the expression ‘two parties’ could therefore be easily interpreted in that spirit. Authorities on jurisprudence sometimes propose alternative formulations. It is sufficient here to refer to Judge Morelli, who took the view that a difference in the context of the law of the ICJ is a conflict between the interests of two States, characterised by a claim made by one and resisted by the other. In other words, an international dispute exists when one of the two holders of conflicting interests requires that the other State’s interest should, to a certain extent, be subordinated to its own, while the other State resists this claim.504

The expression ‘interests’ here encompasses ‘rights’, a right being an interest which is legally protected. The emphasis here is directly on the main element: a claim by one party to the dispute, and resistance to it by the other. Inadequacies of the Mavrommatis formula. Considered as a definition for use in judgments of the Court, the Mavrommatis formula does suffer from a certain lack of precision. The most important points in that regard are as follows: 1) The very wide definition of a dispute. As explained in the next subsection, the Mavrommatis definition covers both disputes that could be taken for resolution to a political body (particularly political disputes) and those that can be resolved by a tribunal. The fact that the definition is generously comprehensive is not a defect. Quite the reverse, the question whether a dispute exists arises in both cases, and in exactly the same way, needing to be decided in light of its constitutive elements. The Court was right to emphasise this, albeit indirectly. It is not right, however, to convey the impression that all such disputes can be heard by the Court. It can hear only ‘legal disputes’ (a term which itself needs to be defined). These constitute only one section of the disputes encompassed by the Mavrommatis formula. 2) ‘Point of fact’. The expressions ‘point of law’ and ‘point of fact’ seem to imply that the Court can be seised of a dispute over one or more questions in either category, in the 504   Morelli, above n 484, 10 (our translation). The original reads as follows: ‘Conflitto di interessi fra due Stati qualificato dalla pretesa di uno degli interessati e dalla resistenza dell’altro. Si ha, in altri termini, controversia internazionale quando une dei due Stati titolari degli interessi in conflitto esige che l’interesse dell’altro Stato sia subordinato, in certa guisa, al proprio interesse, mentre questo altro Stato resiste a tale pretesa.’

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alternative.505 That, however, is a mistaken view. The Court cannot address itself to factual issues unless they are bound up with points of law. In other words, the Court can deal only with ‘legal facts’, meaning facts which are relevant to the application of a legal rule. The facts in dispute must therefore be such as constitute elements that are conditions for the application of a legal norm.506 The Court has no jurisdiction to undertake enquiries into disputed facts or to engage in historical research in order to make decisions about the existence and development of certain situations (for example, by writing a history of the colonial period in a particular country507 or a history of a particular genocide). On the other hand the Court does have jurisdiction if such questions must necessarily be addressed in order that the Court can decide on the parties’ legal claims. However, it is possible for the Court to take cognisance only of a point of fact (necessary for the application of a legal norm) without pronouncing on the legal consequences flowing from its finding of fact. This is so because the parties may wish to limit the Court’s jurisdiction to the first question: if the facts implying a violation of a treaty is established to the Court’s satisfaction (a question of ‘fact’), the parties can have agreed to draw the appropriate conclusions from the point of view of international responsibility themselves, without the need for any pronouncement by the Court; alternatively, the parties could have agreed that particular facts constitute a violation of international law, and have asked the Court to decide whether they have occurred. This type of dispute is sometimes called a dispute ‘of pure fact’.508 That is not an entirely precise way of categorising it. In such a case, the dispute relates to the application of the law, since the parties wish to establish the facts in order to draw from them the appropriate legal consequences. There is simply a division of labour: the Court is confined to deciding the facts, and the parties, for their part, draw the legal conclusions. In these circumstances the Court is not engaging in simple historical investigation and enquiry. It is contributing to the solution of a legal dispute, its sphere of competence being confined to the first element of that solution. That is the maximum distance the Court can go towards hearing a dispute of so-called ‘pure fact’. Moreover, the fact in question remains a ‘legal’ fact, one within the contemplation of a legal norm that attaches to it certain predetermined legal consequences.

505   This also seems to be what Hudson is saying, MO Hudson, The Permanent Court of International Justice, 1920–1924. A Treatise (New York, 1943) 412 (in reality, however, he contemplates mixed disputes of fact and law). It has been said – but reservations remain about this judgment – that in international law disagreement about the facts is less common than in municipal law and that generally the disputes relate to points of law – ie about the interpretation of a rule governing a factual situation which is not in itself disputed, or about the legal classification of such a situation: Abi-Saab, above n 484, 122. 506   Art 36, § 2 of the Statute confirms this way of looking at particular situations. It provides that the Court has jurisdiction over all disputes as to ‘the existence of any fact which, if established, would constitute a breach of an international obligation’ (italics added). The Court has been able to indicate that the nature of the facts to be established is not an issue. From the jurisdictional perspective, the Court can take cognisance of any fact, provided it is foreseen (so to speak) by the applicable norm: see the Serbian loans case (1929) PCIJ, Series A, no 20, 19: ‘the facts the existence of which the Court has to establish may be of any kind’. 507   In the case of the Western Sahara (advisory opinion), the Court declined to go any further into the historical reconstruction of the facts of colonisation than was necessary for the purposes of the legal question that had been put to it: ICJ Reports 1975, 18–19. For example, at § 16: ‘It has been suggested that the questions posed by the General Assembly are not legal, but are either factual or are questions of a purely historical or academic character.’ The Court dealt with this in § 17, in the following terms: ‘a mixed question of law and fact is none the less a legal question’.. The Court clearly recognised the links between the questions of fact and those of law. 508   Serbian loans case (1929) PCIJ, Series A, no 20, 19; Hudson, above n 505, 412.



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To sum up, it is therefore possible to submit to the Court a ‘pure question of law’, for example the interpretation of a legal provision by way of a declaratory judgment. Conversely, it is not possible to ask the Court to express on a ‘pure question of fact’, not connected with the applicable law. The relation of the two elements ‘fact’ or ‘law’ must thus generally be understood as a conjunction (‘law and fact’ linked to the application of the law), there remaining the possibility that the judge is seised only on a point of law. The most exact formula would be ‘point of law or mixed point of law and fact, the fact concerning the application of the law’. But it has to be said that such a formula is burdensome and inelegant. It is better to stick to the Mavrommatis phrase, but to construe it with the grain of salt, or, if one may play with the Greek word ‘matis’ (eye), ictu oculi . . . 3) Relationship between the dispute and points of fact and law. So far as concerns jurisdiction, it is insufficient to say that the Court must resolve a point of fact in the context of the elements constituting a legal norm. The fact that a point of law or fact is controversial does not automatically make it into a question that the Court can decide. It is also necessary, in the carefully chosen words of Judge Morelli, ‘that the question should be in a certain relationship with a dispute, in the sense that the settlement of the dispute must depend upon the answer to be given to that question of law or fact’.509 Only if answers to these questions of law and fact are necessary in order to resolve the dispute, defined by reference to the issue formulated in the application or special agreement, can the Court give its answer. It is also possible for the parties to ask the Court to decide only one aspect of the dispute, focusing on a particular point of fact or law, without deciding the other questions of fact and law featuring in the remainder of the dispute. They can, for example, take the view that the Court’s response on the principal point at issue will have a decisive influence on the final outcome. In such a case, the dispute as laid before the Court will not be the same as the overall dispute between the parties. For this reason it is insufficient to say that the Court has subject-matter jurisdiction to deal with a point of fact connected with a point of law. One has to add that the Court has such jurisdiction solely in relation to the aspects of law and fact that need to be decided in order for the subject of the dispute, as brought before the Court, to be decided by the latter, following the line of reasoning that the judges finally select. The dispute submitted to the Court is thus not identical to the real dispute between the parties on a point of law or fact, notwithstanding the fact that all disputes are constituted by such a disagreement. Rather, the dispute is first defined by the subject of the claimant’s application or of the parties’ joint request to the Court. Only at that stage can the disagreements that are relevant, whether of fact or law, be identified. The Mavrommatis formula indicates only whether a dispute exists; it does not address the question whether the Court has subject-matter jurisdiction. In a particular situation, the real dispute tends to be consubstantial with the question of law that the Court has to decide: that is the position when the Court is asked for a declaratory judgment. Here, the subject of the dispute is the interpretation of a certain provision or the legal classification of a certain fact. The point of law or fact on which the parties differ (a dispute under the Mavrommatis formula) is, more often than not, precisely the subject of the whole dispute. Nevertheless, the parties can still differ as to the interpretation of various norms, and yet only submit some of those differences to the judgment of the Court. 509   Dissenting Opinion of Judge Morelli, South-West Africa cases (Preliminary Objections), ICJ Reports 1962, 567–68.

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4) ‘Opposing interests’. Under the Mavrommatis formula, a dispute consists of a ‘conflict of legal views or of interests’. The word ‘or’ suggests that the dispute can relate to legal views (legal disputes) or alternatively to conflicting interests (disputes about interests, political disputes). The value of this alternative formulation lies in the fact that it presupposes that the disputed interests may not be legally protected, since if they were, one would be back into the disputing views (the first limb). From the point of view of defining the dispute, this solution is, when all is said and done, a satisfactory one. It is entirely appropriate as regards a political body capable of deciding both types of dispute: the political and the legal. From the perspective of judicial jurisdiction, however, the definition has to be restricted, because the Court (or any tribunal deciding according to law) can decide only ‘legal disputes’.510 It is therefore needful that the claimant under a unilateral application, or the parties together (in the case of a joint one), put forward claims based on rights and obligations arising under international law. Moreover, one must remember, in this context, that a divergence relating to legal views or to interests does not in itself constitute a dispute: it is only the potential source of a dispute. So there can be a conflict of legal or political interests (opposing interests) without there being an actual dispute; but, conversely, such a conflict will be found wherever there is indeed a dispute. In order for such a conflict to give rise to a dispute, it is necessary that one of the States concerned should ‘activate’ the conflict by formulating claims that the other will have to resist. This can happen through prior diplomatic negotiations or through declarations to the Court itself. 5) ‘Two persons’. Obviously the concept of a dispute is not confined to two persons or two States.511 Quite apart from the question of intervention under Article 62 of the Statute, the Court can be given jurisdiction to deal, in a single case, with a dispute involving several parties on one side or on the other. This has happened several times, for example in the Wimbledon case (1923),512 the Case concerning the territorial jurisdiction of the Danube Commission (1929),513 the South-West Africa case (1962–66)514 or, yet more recently, in the cases relating to the NATO Kosovo bombing – the Legality of the use of force (2004).515 The extent to which the Court can direct the consolidation into a single case of applications made separately depends on the criteria laid down in Rule 47. Also, in the case of obligations owed erga omnes, such as those underlying the Genocide Convention of 1948, it is particularly easy to use jurisdiction clauses as the basis for initiating multipartite proceedings. It may thus happen that in such multiparty proceedings the dispute appears as equivalent to one between two parties (through a set of common interests); however, it can also occur that the dispute is to some extent multiplied. Additional indications resulting from the Court’s jurisprudence. As already noted, the Mavrommatis formula is more concerned with defining the dispute for the purposes of general international law than with delimiting the ICJ’s jurisdiction over contentious proceedings. For that reason the Court has, over time, been progressively constrained to give indications going beyond the PCIJ’s original formula.   Tomuschat, ‘Article 36’, above n 482, 597.   The Court itself admitted this: ‘The number of parties to one side or the other of a dispute is of no importance’ (South-West Africa cases, ICJ Reports 1962, 346). 512   PCIJ, Series A, no 1, 15 et seq. 513   PCIJ, Series A, no 23, 5 et seq. 514   ICJ Reports 1962, 319 et seq., and 1966, 6 et seq. 515   ICJ Reports 2004 (vols. I, II and III) 279 et seq. 510 511



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In the early stages, in the case on the Interpretation of the Treaties of Peace (1950) and the South-West Africa cases (1962), the Court indicated that the existence of the dispute must be objectively and autonomously established by the Court itself. The parties’ allegations were no more than evidence, of greater or lesser weight as the case might be. According to the Court’s formulation in 1950: ‘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.’516 In 1962 the Court put the point in the following terms: [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 non-existence.517

It is for the Court itself to decide this aspect of its own volition. As the Court put it in the Land and maritime dispute (Preliminary Objections, Nicaragua v Colombia, 2007): ‘This determination is an integral part of the Court’s judicial function.’ (§ 138) This can imply making a determination as to the true subject of the dispute, to some extent separating the wheat from the chaff: Nuclear Tests cases (1974).518 The Court made the point with considerable emphasis: Thus it 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.519

The question whether a claim has been justly or unjustly put forward is in principle a merits question: East Timor case (1995).520 Nevertheless, in an extreme case the Court can take the view that the claim is so manifestly unfounded that it is preferable to avoid the merits phase altogether, in the process also avoiding the inevitable waste of time and resources involved in preparing and presenting the parties’ cases on the merits. The Court can therefore decide that there is no dispute in the true sense of the word, and to close the proceedings down at the preliminary stage. Of course, the Court will not do that unless it considers itself obliged to do so in the interests of the proper interests of justice, in particular in the interests of the economy of the process. Such a situation thus turns a substantive issue into a procedural one. The Court adopted this course in the case of the Land and maritime dispute (Preliminary Objections, Nicaragua v Honduras, 2007).521 Second, the Court insists that the opposing positions of the parties, throughout the proceedings, is the cardinal element of a dispute. The Court said, in its 1962 judgment in the South-West Africa case: ‘It must be shown that the claim of one party is positively opposed by the other.’522 The Court returned to this formulation a year later in the case of the Northern Cameroons (1963),523 and subsequently in a series of cases, for example the Headquarters Agreement opinion.524 In this last case, the fact that one side presented no   ICJ Reports 1950, 74.   ICJ Reports 1962, 328. 518   ICJ Reports 1974, 260 et seq., §§ 24 et seq. and 463 et seq., §§ 24 et seq.; 519   ICJ Reports 1974, 262, § 29, and 466, § 30. 520   ICJ Reports 1995, 100, § 22. 521   At §§ 138 et seq. In that case, the Treaty of 1928 recognised sovereignty over the three islands as belonging to Colombia. Objectively, there was no dispute on that point (§ 138). Judge Simma dissociated himself from this view. 522   ICJ Reports 1962, 328. 523   ICJ Reports 1963, 27. 524   ICJ Reports 1988, 27, § 35. 516 517

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argument to justify conduct against which the other protested as a treaty violation, did not prevent the attitudes of the parties, which were in true opposition to each other, giving rise to a dispute as to the interpretation or application of the treaty.525 The opposition of legal arguments need not be a formal matter: it can take its concrete form from the practical course of developments. That, of course, raises the question to what extent a dispute can crystallise simply as a matter of interpreting the parties’ respective attitudes. In other words, is it necessary that the parties should explicitly formulate opposing contentions? Or can the opposition of arguments simply become apparent as an implication from their conduct, for example a protest against an act committed by one side? The Court has not had to go into this question in any great detail, because the respective claims of parties have always been formulated in one way or the other in the application to the Court, and respondents generally take a stance vis-à-vis those claims. The Headquarters Agreement opinion showed the Court acting with a certain flexibility. That is certainly desirable. Informed opinion has, however, conceptualised the matter in various ways. Some commentators think that claims must be formulated explicitly. For them, a dispute is essentially a claim accompanied by a dispute as to the claim’s validity. The conduct of the parties certainly can, in itself, be the basis of a dispute. But it becomes a dispute only when an additional feature comes into play: the fact of asserting a claim and the related fact of the other party’s rejecting it.526 Conversely, however, other commentators think that the material conduct of the parties can constitute a dispute. This was the opinion of that eminent Italian expert in procedural law, Judge Morelli: But it may also be that one of the opposing attitudes of the parties consists, not of a manifestation of the will, but rather of a course of conduct by means of which the party pursuing that course directly achieves its own interest. This is the case of a claim which is followed not by the contesting of the claim but by the adoption of a course of conduct by the other party inconsistent with the claim. And this is the case too where there is in the first place a course of conduct by one of the parties to achieve its own interest, which the other party meets by a protest . . . [A] manifestation of the will, at least of one of the parties, consisting in the making of a claim or of a protest, is a necessary element for a dispute to be regarded as existing.527

The answer must depend on the type of dispute one is dealing with. A political dispute (and a fortiori a mere ‘situation’) can take the form of a fact-orientated attitude on the one side, to which the other side responds by an explicit or implicit expression of its will. This is one example of the greater flexibility and plasticity of political disputes. By contrast, it does not seem possible for a legal difference submitted to a tribunal to come into being other than through the parties’ respective claims, explicitly made. There is no need to justify a mere ‘attitude’ (Headquarters Agreement opinion); it is sufficient if a position has been formulated. On the other hand, until that has been done – until concrete claims have been formulated – the ICJ will not consider a dispute to have arisen. It will send the parties away to negotiate, to decide the subject of their dispute, or even to see if a dispute really exists. The question of prior negotiations is dealt with in a separate subsection.528

  Opinion on the Headquarters Agreement, ICJ Reports 1988, 28, § 38.   Abi-Saab, above n 484, 128–29. 527   Dissenting Opinion of Judge Morelli in the South-West Africa cases, ICJ Reports 1962, 567. See also G Morelli, ‘Nozione ed elementi costitutivi della controversia internazionale’ (1960) 43 RDI. 405 et seq. 528   See below, (b) 1) and 2). 525 526



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Disputes before the ICJ and those before political organs. The distinction we now turn to overlaps with, but is not identical to, the distinction between ‘legal disputes’ and ‘political disputes’, to which we shall return later.529 A legal dispute can be brought before a legal organ, but it can also be brought before a political one. This does not work in reverse: a political dispute cannot, in principle, be brought before a tribunal, since it will not have the necessary subject-matter jurisdiction to deal with it. There is an exception, where the tribunal is given the power to decide the case equitably – ex aequo et bono. If it is given that power, however, the tribunal ex hypothesi ceases to be an institution applying the law. In that case, although it cannot ignore the main principles of the legal order and of justice, and must always adhere to them faithfully, nevertheless it is transformed, at least partially, into the agent of the parties, whose function is to help them, by exercising powers which are in truth legislative in nature, to find a just and balanced solution to their dispute. From the point of view of the merits, such a tribunal is to a considerable extent transformed in this way into a ‘political organ’, in effect designing a compromise (to an extent that varies according to the case) between the parties’ respective positions. It resolves the dispute in the same way as a political body would have done, the only differences being first, that it cannot, even in these circumstances, stoop to decide the case on the basis of considerations of simple convenience,530 and second, that its decision will be legally binding. The substantive elements of a political dispute can be resolved in this way only by a political organ, whether the organ is political by its very nature or ‘political’ by virtue of its function in particular circumstances. As an overall summary, then, a political organ can deal with either legal or political disputes, but a tribunal can, in principle, deal only with the former. The existence of this alternative has been particularly evident since the creation of global bodies, the League of Nations leading the way. The Claimant State (or joint claimants) was now able to choose between two available bodies – for example seising the Council of the League of a legal dispute or the PCIJ of a political one. If it did the former, the Council could proceed to deal with the substantive issues,531 possessing, as it did, unlimited jurisdiction ratione materiae. If it needed legal advice, it could set up a committee of jurists, or could seek the opinion of the PCIJ.532 In the latter case, the PCIJ would have had to declare itself to have no jurisdiction ratione materiae. The Court’s subject-matter jurisdiction is not unlimited. It can take cognisance only of international law or the norms of other legal orders to which international law itself refers. In this sense, there was no symmetry between the two alternatives offered in Article 12 of the Covenant (recourse to a judicial process, or to the Council). It nevertheless remains possible, as we have seen, to take a legal dispute to the Council, for example if the claimant hoped that the result would be a more flexible  See below, section (d).   Judge Kellogg put the point very well in his famous Observation attached to the Order in the Free Zones case (1930) PCIJ, Series A, no 24, 34: even with the consent of the parties, the Court does not have the power to decide purely on the basis of political and economic expediency. As a Court of Justice which needs to preserve its judicial integrity, it remains essential that, even when delivering a judgment on an equitable rather than strictly legal basis, the Court hold fast to the fundamental principles governing the way it acts. One of these principles is that the decision must be made according to the canons of justice, ie the Court must seek a solution which is fair, based on principles which can be applied to other cases, and can be a guideline for future conduct (action modo legislatoris). This is incompatible with behaving in a merely ‘opportunist’ or ‘expedient’ way. 531   This has been criticised, since it was possible to argue that the Council was not an adequate body for dealing with legal disputes: H Kelsen, Legal Technique in International Law: A Textual Critique of the League Covenant (Geneva, 1939) 96; M Gonsiorowski, Société des Nations et problème de la paix, vol II (Paris, 1927) 346. 532   It had recourse to the first of these solutions in the Åland Islands case in 1920. 529 530

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application of the law than could be expected from the PCIJ. In this sense, Article 15 allowed a certain amount of forum shopping so far as concerned legal disputes, but not in the case of political ones. One should add right away, however, that Article 15 was clearly designed for disputes of a political nature. It was quite natural that, in consequence, the cases brought to the Council under that Article were indeed political in character. This situation is reflected in the respective definitions of a ‘dispute’ used by the bodies concerned. The definition is wider for a political organ than for a legal one. A political body can deal with any kind of ‘dispute’ or ‘situation’. Its sphere of competence must be as wide as possible so that all kinds of international frictions can be discussed and attempts made to work towards solutions – a fortiori if that is what the disputing States want. For a political organ, a ‘dispute’ is any conflict of interests over a subject matter. A ‘situation’, by contrast, means tension about a subject the scope of which has not yet been concretely circumscribed.533 In addition, a ‘situation’, unlike a dispute, will often affect an indeterminate number of States, whether at a regional or a global level.534 The tensions of the cold war are prime examples of exactly that. The Mavrommatis formula turns on a general and universal definition of a ‘dispute’ which would be appropriate for a political body, rather than a narrow definition designed to fit the particular requirements of the Court. The concept of disagreement on a point of law or fact, an opposition between legal arguments or between interests, encompasses both legal disputes (point of law/opposing legal arguments) and political ones (issue of fact/ opposing interests). In order to reach a definition of ‘dispute’ that will apply only to the Court, or to another organ deciding on the basis of law, it is necessary to restrict that broad definition to ‘legal disputes’. Obviously, it remains to say what we mean by ‘legal disputes’, which is anything but easy. Given the importance of this question, and its long history, it is dealt with (below) in a subsection of its own.535 At present, one need only add that the Court obviously realises that its jurisdiction is confined to legal disputes. However, it treats this restriction as a matter separate from its subject-matter jurisdiction, and does not confuse it with the question whether a dispute exists. The latter is, at least in a sense, logically a prior one. No necessarily unique concept of a ‘dispute’. The Mavrommatis formula reflects the definition of ‘dispute’ in general international law. It is, however, possible to narrow it or make it more precise, either by agreement between the parties or through special provisions that are found in the Statute. In the first place, the word ‘dispute’ can bear a restricted sense in a treaty conferring jurisdiction on the Court, or in a jurisdiction clause. As already suggested, the Mavrommatis formula is, in itself, always restricted in judicial proceedings, because, unless the tribunal is going to judge the case according to equity (ex aequo et bono), the parties must always indicate a ‘legal dispute’ – an opposition between their legal cases. Also, in the context of jurisdiction clauses and special agreements, the dispute is always restricted ratione materiae, it being always a question solely of submitting to the Court the dispute arising from the interpretation or application of the Treaty or Convention including the clause, or, in the case of a special agreement, the dispute on the subject defined in it by the parties. Thus, 533   See above ch, I section 2(a). See also B Conforti, The Law and Practice of the United Nations, 2nd edn (The Hague/Boston/London, 2000) 162–64. 534   Kelsen, above n 480, 388–89. 535   See below section (c).



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as regards jurisdiction clauses, Article IX of the 1948 Convention on the prevention and punishment of the crime of genocide provides that: Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice536

In truth, the fundamental idea of a dispute does not change: it remains a disagreement on a ‘point of law or of fact’ but it is restricted to a certain field indicated by the limits of the treaty or convention: the clause will not cover just any disagreement on a ‘point of law or fact’. It is equally possible to imagine a widening of the field, for example, if there were to be a judgment in equity under Article 38, paragraph 2 of the Statute. In such a case, the complete Mavrommatis formula, including political disputes, would be covered. It must, however, be emphasised that no disputing parties have ever chosen to empower the Court to give judgment in equity. When they have wanted that, they have always preferred arbitration. In arbitration, their right to nominate the arbitrators of their choice and to exercise a greater degree of control over the procedure is reassuring to them, for reasons it is easy to understand, given that a judgment in equity takes one into waters uncharted by the law – a consideration which naturally makes the States concerned uneasy. Finally, if the provision on jurisdiction contained the simple and unvarnished word ‘dispute’, it would doubtless be presumed to be a reference to the current concept of a dispute under general inter­ national law. The ICJ’s jurisprudence (see above) confirms this. Whether the parties intend to modify the general definition under international law is a matter of interpretation. Where modifications are made, it is generally done in order to restrict the field of dispute by subject matter (ratione materiae), as for example, in a jurisdiction clause. The ICJ’s Statute contains the word ‘dispute’, or expressions connected to it, in several different places. It is not obvious that these expressions all have one and the same legally identical meaning. Even the word ‘legal’ is a relative one. It does not necessary have the same meaning in different contexts or branches of the law, just as the word ‘family’ does not mean the same community in family law as it does in the law of wills and trusts, or tax law, and just as the expression ‘proportionality’ has different meanings in the context of counter-measures and in the law of the sea. In the ICJ Statute, the word ‘dispute’ appears in Article 36, paragraph 2 (‘legal disputes’), whereas paragraph 1 uses the expressions ‘cases’ and ‘matters’); Article 38, paragraph 1 (function to decide disputes in accordance with international law); Article 40, paragraph 1 (subject of the dispute); and Article 60 (in the English-language text the word ‘dispute’ is used; in French, it is ‘contestation’). In Article 60, which is concerned with disputes as to the meaning or scope of the judgment, the Court has had occasion to insist that it means a dispute/contestation in a less formal sense than under general international law. It is sufficient, for the purposes of Article 60, that there are opposing views on the interpretation of the judgment, perhaps finally emerging only before the Court, without the need for prior negotiations.537 Here, the Court is distinguishing ‘dispute’ in general international law from (in English) the same word, and 536   On this clause, see the author’s contributions in P Gaeta (ed), The UN Genocide Convention – A Commentary (Oxford, 2009) 407 et seq. 537   Case of the Request for interpretation of the judgment of 31 March 2004 in the Avena case (Mexico v USA, Order indicating interim measures of protection) ICJ Reports 2008, § 54. See also the earlier case on the Interpretation of Judgments Nos 7 and 8, Factory at Chorzów, PCIJ, Series A, no 13, 10–11.

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in French, the word ‘contestation’, as used in Article 60, in the process invoking the linguistic difference between the English and French texts. The Court thus admits that disputes can be formalised to a greater or lesser degree. The lowest common denominator involves an opposition between positions taken up by the parties. In light of the Court’s very flexible jurisprudence on the crystallisation of disputes under general international law, the difference between that kind of ‘dispute’ and the ‘dispute’ (or contestation) of Article 60 is relatively minimal. What need is there for negotiations before seising the Court, so that the dispute is properly delimited? 538 From the very first, the Court has always shown a very flexible and undemanding attitude to this question. Above all, it has tried to avoid putting unnecessary additional obstacles in the path of States which want to bring it cases. The present question does not arise if the parties jointly seise the Court under a special agreement. In such a case, the parties have already had to go through the direct negotiations leading to the special agreement, and have jointly defined the subject of their dispute. The question does, however, arise whenever the Court is seised unilaterally, either under a jurisdiction clause or under the optional clause. Also, the requirement applies only to the substantive issues. It is on those issues that the parties will have had the option to exchange views before one of them seises the Court. The position is different as regards disputes about the Court’s jurisdiction or the admissibility of a claim. The latter question arises only after the Court is seised. It is not possible to negotiate about it prior to seising the Court, and it would make no sense to negotiate about it after doing so. This is so because only the Court has competence to decide the point, under Article 36, paragraph 6 of the Statute. The question of prior negotiations must be examined first from the perspective of general international law and then in relation to the provisions of particular instruments conferring jurisdiction on the Court. 1)  General international law There is no general rule requiring the parties to a case to have conducted specific negotiations with a view to resolving their dispute, and that such negotiations must have failed before the Court can be seised of the dispute. As the Court itself has put the point: ‘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.’539 In 1920, the Committee of Jurists charged with drawing up the Statute proposed a rule to the effect that the Court would have jurisdiction only over disputes which had been 538  This question has been given considerable attention by authoritative commentators. See in particular, Hudson, above n 505, 413 et seq.; Abi-Saab, above n 484, 122 et seq.; Caflisch, above n 484, 262; MM Ahi, Les négociations diplomatiques préalables à la soumission d’un différend à une instance internationale (Geneva, 1957); M Bourquin, ‘Dans quelle mesure le recours à des négociations préalables est-il nécessaire avant qu’un différend puisse être soumis à la juridiction internationale?’ in Essays Basdevant (Paris, 1960) 43 et seq.; A Miaja de la Muela, ‘Las negociaciones diplomáticas previas a las reclamaciones ante tribunales internacionales’ in Anuario hispano-luso-americano de derecho internacional, vol 2, (1963) 135 et seq.; P Reuter, ‘De l’obligation de négocier’ in Comunicazioni e studi, vol 14 (1975) 711 et seq.; J Soubeyrol, ‘La négociation diplomatique, élément du contentieux international’ (1964) 68 RGDIP 319 et seq.; Ch de Visscher, Aspects récents du droit procédural de la Cour internationale de Justice (Paris, 1966) 81 et seq.; S Torres Bernardez, ‘Are Prior Negociations a General Condition for Judicial Settlement by the ICJ?’ in Essays JM Ruda (The Hague, 2000) 507 et seq. 539   Case of the Land and Maritime boundary between Cameroon and Nigeria (Preliminary Objections) ICJ Reports 1998, 303, § 56.



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impossible to resolve by diplomatic means.540 But this provision was not included in the Statute, and that was deliberate.541 Not only are parties under no obligation to ‘exhaust’ prior negotiations, but they are not even under any obligation to pursue them. If there is no rule of general international law to the effect that one must go through a stage of negotiation prior to seising the Court. This is so because the dispute can very easily crystallise in the course of the Court proceedings, through the claims and responses of the parties in their pleadings.542 In any event, the fundamental objective is that the dispute, once brought before the Court, should ripen or crystallise to the point where the Court can hear it.543 That process of crystallisation does not have to occur prior to the moment the Court is seised of the case; it does, however, have to occur in the preliminary stages of the proceedings.544 So, if the respondent opposes the claimant’s application, the dispute crystallises before the Court. If, however, the respondent is confronted with a certain claim for the first time, one of which it was ignorant until then, and if it is disposed to discuss the question directly with the other State and a negotiated solution can be envisaged, then the Court can decide that there is as yet no dispute – that it is not yet constituted, because the element of opposition by the respondent is still lacking. The Court, as so to speak the substitute for a direct and friendly understanding between the parties, would then have to declare the claim inadmissible at that stage545 and if it were the only claim suspend the proceedings (or simply suspend the proceedings without declaring the claim inadmissible), until such time as the parties have exchanged views and, according to the case, the Respondent State has had the opportunity to accept the claims being made against it.546 The Claimant State will not necessarily have lost any time. It sometimes happens that governments are slow to engage with an issue. They can take refuge behind objective difficulties such as the independence of their own international legal system when it comes to considering the lawfulness of an action in international law so as to string out the situation for a very long time. The aggrieved State can be weaker than the State against which it is making the claim. Its direct levers for obtaining reparation can be rapidly exhausted. Recourse to the ICJ, perhaps with some surprise additional claims that have not hitherto been raised, can stimulate the Respondent State to move more swiftly and in a more conciliatory way. It now knows it is under the Court’s eye and that, if the negotiations do not move forward, the 540   Doubtless it took its inspiration from the preceding arbitral law (see Art 14 of the Hague Convention of 1907 on the peaceful settlement of disputes), in which there is a condition requiring prior diplomatic negotiation, even if only because that would be necessary in order to draw up the arbitration agreement. In a permanent international tribunal, which can be seised at any time, including unilaterally, such a condition is not so important, and in any event is not essential. 541   cf Hudson, above n 505, 414. 542   Case of Certain German interests in Polish Upper Silesia (Jurisdiction) PCIJ, Series A, no 6, 14: ‘Now 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 . . . this condition could at any time be fulfilled by means of unilateral action on the part of the applicant Party.’ 543   Mavrommatis case (1924) PCIJ, Series A, no 2, 15: ‘[The Court] recognises, 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.’ See also Bos, above n 484, 202 et seq.; de Visscher, Aspects above n 538, 22. The Court confirmed this too, in an equally flexible way, in the case on the Right of passage over Indian territory (Preliminary Objections) ICJ Reports 1957, 148–49. 544   See also the following section. 545   In principle, the Court could also declare itself to have no jurisdiction, but given the fact that the procedural obstacle is at least potentially of a merely temporary nature, and that the Court has traditionally treated the absence of a dispute in general international law more as a question of admissibility, the solution indicated in the text appears to be the better and more correct one. 546   Abi-Saab, above n 484, 124.

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proceedings at The Hague, after a provisional period of suspension, can be reactivated at any time. It should, however, be recognised that the Court has never gone so far as to suspend proceedings for want of a properly constituted dispute. It has never refused to consider a claim in international law on the basis that prior negotiations have not been tried. Sometimes – and this is as far as the Court has gone – the Court has emphasised that it would have been desirable to pursue such negotiations prior to seising the Court: It 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.547

This formula reflects the view at the time, in 1927, when State sovereignty on such questions weighed more heavily than it does now. The question was therefore seen from the perspective of courtesy, respect for sovereignty, and the theory of the Court’s subsidiarity as a means of recourse for States trying to resolve disputes. It remains, however, a matter for the parties, and the Court abstains from turning it into a more or less rigid condition of admissibility, even of jurisdiction. This amounts to saying that the establishment of a dispute presupposes a claim by one side, opposed by the other, but that the opposition does not have to be the result of prior negotiation or prior contact between the disputing States. 2) Basis of jurisdiction By contrast, a rule requiring that, to some extent, prior negotiations should have been tried and failed, can arise under particular provisions of international law that is, from the applicable basis for the Court’s jurisdiction.548 In such a case, the Court’s subject-matter jurisdiction is limited by the requirements set out in the consensual document giving the Court jurisdiction. The scope of the obligation depends on the interpretation that the Court gives to the document. The Court is disinclined to give a wide interpretation to limitations of access to it. The PCIJ showed this clearly in the Mavrommatis case (1924), in which the document contemplated prior negotiation. The Court explained its attitude in the following terms: [T]he question of the importance and chances of success of diplomatic negotiations is essentially a relative one. Negotiations do not of necessity always presuppose a more or less lengthy series of notes or despatches; it may suffice that a discussion should have been commenced, and this discussion may have been very short; this will be the case if a deadlock is reached, or if finally a point is reached at which one of the Parties definitively declares himself unable, or refuses, to give way, and there can therefore be no doubt that the dispute cannot be settled by diplomatic negotiation. (italics in the original report)549

  Case of the Interpretation of Judgments Nos 7 and 8 (Factory at Chorzów, 1927) PCIJ, Series A, no 13, 10–11.   Case of the Land and maritime boundary between Cameroon and Nigeria (Preliminary Objections) ICJ Reports 1998, 302–303, § 56. See also the case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility) ICJ Reports 1984, 438–41 (regional negotiating process at Contadora); case on Armed boundary and trans-boundary activities (Jurisdiction and admissibility, Nicaragua v Honduras) ICJ Reports 1988, 92 et seq. 549   PCIJ, Series A, no 2, 13. 547 548



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And the Court added: [T]he Court cannot disregard, amongst other considerations, the views of the States concerned, who are in the best position to judge as to political reasons which may prevent the settlement of a given dispute by diplomatic negotiation.550

Timing aspects. As to the timing, the dispute must, in principle, already be in existence at the time the Court is seised. As just explained, however, it is not necessary that all the elements of the dispute have been fully crystallised by that time.551 The proceedings themselves can reveal the exact scope of the dispute. The aggrieved party’s claim will, up to a point, define the dispute; that definition can then evolve in light of supervening events of the parties’ forensic exchanges; in the course of the case, the parties can drop certain aspects of the dispute, or add new ones to it.552 In this regard, the rather unfortunate dictum of the PCIJ in the case of the Electricity Company of Sofia and Bulgaria (1939), according to which the claimant must demonstrate that before the filing of the application ‘a dispute had arisen between the Governments’,553 should not be interpreted as contradicting its other much more flexible pronouncements regarding prior negotiations. At most, the dictum should be interpreted as meaning that, before the parties seise the Court, there must at least be the beginnings of a dispute. The definitive dispute can, however, crystallise later, in the course of the proceedings. And it can equally well be modified or evolve as the case progresses. Probably these ‘beginnings’ of a dispute, as evoked by the PCIJ, mean nothing more than to exclude the idea that the mere fact of instituting proceedings ipso facto creates a dispute. It is certainly right to say that the institution of proceedings does not automatically create a dispute. If it did, the distinct requirement that a dispute exists would be devoid of all justification and value.554 The words ‘before the filing of the Application’ are, however, too strict and can lead to mistakes. If the dispute takes on a real form and shape only at the time of the first contacts before the Court, following the start of the case, that is not a reason for the Court to refuse it. The rule that the critical date for judging the validity of a Request is the moment the case is begun does apply. Hence, the Mavrommatis principle discussed above also applies: ‘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.’555 It remains necessary to consider whether the conditions for bringing a case are satisfied at the moment the case is brought to the Court, although ‘it would always have been possible for the applicant to re-submit his application in the same terms after’.556 It is, however, unnecessary to oblige the claimant to start again the case by a new application, for want of a dispute at the initial critical date. This would be an excessively formalistic exercise, with no significant effects except to increase the administrative burden on the Court and the parties.   Ibid, 15.   Rosenne, vol II above n 352, 521–23. 552   Thus, in the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Serbia and Montenegro, Preliminary Objections) ICJ Reports 1996-II, 614, § 28, the Court assured itself that certain Bosnian claims were still opposed, in an effective way, by the Serbian side. Legally, the Court was checking that the scope of the dispute had not altered. 553   PCIJ, Series A/B, no 77, 83. 554   See the Individual Opinion of Judge Fitzmaurice, in the case of the Northern Cameroons, ICJ Reports 1963, 109. 555   PCIJ, Series A, no 2, 34. 556  Ibid. 550 551

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The question of the critical date at which a dispute crystallises can arise in another light in the context of a particular instrument giving the Court jurisdiction. Sometimes the instrument limits the Court’s jurisdiction by confining it to disputes crystallising after a certain date, or to disputes whose constituent factual elements date from or after a specified date. This is not a question of subject-matter jurisdiction, or even of the existence of a dispute. Rather, it is an element of consensual jurisdiction. The consent of one party is confined to a category of dispute that is limited in point of time (ratione temporis). The Court has to decide whether the dispute falls within the critical period, so that it is not exceeding the limits of the consent to its jurisdiction. The reality of the dispute (‘moot’ questions).557 First of all, the dispute between the parties must be a real one, so that the Court’s judgment will have practical legal consequences. In other words, no dispute (in the legal sense of the term) exists if the Court’s decision cannot have any practical legal effect. The Court has no remit to try theoretical questions. Its mission is to decide legal questions, in a way that has effects on the respective rights and obligations of the parties. The decisive standpoint is the prospective effects of the judgment – its ‘forward reach’. If the Court cannot, by giving judgment, modify the parties’ subjective legal situations, then there will be no admissible purpose in giving judgment, and the Court will not do so. In such circumstances it is possible to say either that there is no (real) dispute, so that the claim is inadmissible; or that the Court should not give judgment, since it has no jurisdiction to decide any question which is not a (real) dispute; or (third possibility) that the Court’s judicial integrity prevents it entertaining claims that would involve the judges’ engaging their attention on areas outside their proper domain (general admissibility). In any event, the Court must refuse to decide the substantive issues. If necessary, it must examine this question proprio motu. In the past jurisprudence of the Court, the question whether there is a ‘real’ dispute has arisen in three ways. 1) Situations solely concerning the past. A dispute can cease to have any point, or ‘object’, because the situation it is concerned with belongs irremediably in the past. The classic statement is to be found in the Northern Cameroons case (1963). Cameroon asked the Court to rule that the United Kingdom had failed to comply with certain obligations arising from the applicable Trusteeship Agreement. Thus at the date of the application, a dispute existed between the two parties as to the interpretation and application of the Trusteeship Agreement. But Cameroon was not asking for restitution or reparation of loss. It wanted a judgment in which the Court would recognise that maladministration of the territory was linked, as cause and effect, to the result of the vote on independence, a vote which had in the meantime already been amended. The Court’s response was as follows: ‘The 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. The Court’s judgment must have some practical consequence in the sense that it can affect existing legal rights and obligations of the parties, thus removing uncertainty from their

557   See H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’ in BYIL, vol 71 (2000), 152–55. See also L Gross, ‘Limitations upon Judicial Function’ (1964) 58 AJIL 415 et seq.; R Giuffrida, La ricevibilità generale nella giurisprudenza della Corte internazionale di Giustizia (Milan, 1995) 83 et seq.



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legal relations.’558 If the Court had addressed itself to the substantive issues, this would have meant that it would be ‘relegated to an issue remote from reality. If the Court were to proceed and were to hold that the applicant’s contentions were all sound on the merits, it would still be impossible for the Court to render a judgment capable of effective application . . . In accordance with Article 59 of the Statute, the judgment would not be binding on Nigeria, or on any other State, or on any organ of the United Nations.’559 The judgment would therefore not have had the binding effect contemplated by Article 59 of the Statute. The Court, however, cannot derogate from the Statute. It can give judgment only if it will have the effects provided for in Article 59. Also, in this case, the judgment would have had no ‘forward reach’; it’s only bearing would have been on past events. The Court does not exist to give advice to States, or to carry out historical or other investigations, or to debate the possible solutions to a given question. Its sole function is to decide ‘real’ disputes. In this case, there was no such dispute. 2) Situation in which the claimant has already obtained satisfaction. It is possible for a dispute before the Court to evolve in the course of the case, and that, for one reason or another, the claimant will at some stage have obtained the substance of what it sought in its application. In such a case, there is no remaining subsisting issue for the Court to decide. The explosive material has been entirely defused, so that the dispute has simply dried up and disappeared. The classic passage on this subject is to be found in the Nuclear Tests cases (1974): ‘The dispute brought before it [the Court] must therefore continue to exist at the time when the Court makes its decision. It must not fail to take cognisance of a situation in which the dispute has disappeared because the object of the claim has been achieved by other means;’560 and: ‘It 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 fall to be determined. The object of the claim having clearly disappeared, there is nothing on which to give judgment.’561 This was so because ‘the Court faces a situation in which the objective of the applicant has in effect been accomplished, inasmuch as the Court finds that France has undertaken the obligation to hold no further nuclear tests in the atmosphere in the South Pacific’.562 It will be remembered that the Court dealt with the two applications on an autonomous basis. It stated that the object of the application was to obtain the cessation of atmospheric nuclear testing in the Pacific and that the reparations aspect was subordinate to this principal objective to the point where it could be ignored. By taking this line, which did involve certain weaknesses, the Court was able to find that the claims had indeed become pointless, or devoid of any object. It gave judgment accordingly. 3) Situations where the eventual outcome of the claim is obvious from the preliminary stages of the proceedings. Sometimes a claim seems so unfounded that the Court might be tempted to say that there is no real dispute to be decided, so that the claim must be dismissed in limine litis. If the fate of the claim seems clear in advance, the Court may see this rather unusual course as preferable to deferring its ruling to the merits phase. The reason to cut the proceedings short is to avoid the pointless squandering of resources. The Court 558   ICJ Reports 1963, 33–34. On this case, see DHN Johnson, ‘The Case Concerning Northern Cameroons’ (1964) 13 ICLQ 1143 et seq.; H Thierry, ‘Case of the Northern Cameroons’ (1964) 10 AFDI 315 et seq. 559   Ibid, 33. 560   ICJ Reports 1974, 271, § 55 and 476, § 58. 561   Ibid, 272, § 59 and 477, § 62. 562   Ibid, 270, § 52 and 475, § 55.

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took this course in the case of the Land and maritime dispute (Preliminary Objections, Nicaragua v Honduras, 2007).563 A Treaty of 1928 was said to attribute sovereignty over three islands to Colombia. The text was so clear, according to the Court, and so obviously applicable, that the Court concluded that, objectively, there was no dispute, and reached this conclusion at a preliminary stage rather than waiting the parties’ substantive pleadings and then rejecting the Nicaraguan argument at that stage. In other words, there may perhaps have been an artificial dispute ‘in existence’, but not a real one. It is important not to fall into the trap of concluding that a dispute will have no ‘object’ simply because one side is asking for a declaratory judgment as to the interpretation of a norm, detached from the particular facts of the case. The PCIJ thus rightly thought that a party could ask the Court to interpret Article 23 of the Geneva Convention on Upper Silesia independently of a practical case with its particular facts: There seems to be no reason why States should not be able to ask the Court to give an abstract interpretation of a treaty; rather would it appear that this is one of the most important functions which it can fulfil.564

In such a case, the dispute between the parties is still a real one, and the Court’s decision will have practical consequences for the future. The Court’s interpretation was binding on the parties by virtue of Article 59 of the Statute, and would affect their understanding of the Convention in their future relations. Such abstract interpretations can be particularly important as regards conventions whose purpose is fundamentally a civilising one, for example the 1948 Convention against Genocide. In such cases, respect for the international rule of law, and the erga omnes effect of the norms in question, prevail over the bilateral resolution of concrete disputes. Thus it could be a matter of particular importance to give a general ‘fix’ to the meaning of certain terms in the 1948 Convention, defining the exact obligations of the States parties.565 This does not mean that questions which are formulated in too abstract a way will not give rise to problems when it comes to deciding exactly what the Court’s task is.566 Situations in which the existence of the dispute is inextricably bound up with subject-matter jurisdiction over the substantive issues. Sometimes the existence of a dispute, on the one hand, and the Court’s subject-matter jurisdiction, on the other, are inextricably bound up the one with the other. Thus, in the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Serbia and Montenegro, Preliminary Objections, 1996),567 Serbia argued that there was no ‘international dispute’ within the meaning of the Convention, amongst other things because the armed conflict in certain parts of its territory was of an internal nature, and also because Serbia did not exercise effective control in the parts of foreign territory in question. The Court dealt with the first argument by saying that the Convention, by virtue of its Article I, applied in times both of armed conflict and of peace, and that consequently the nature of the armed   At §§ 138 et seq.   Case on Certain German interests in Polish Upper Silesa (merits, 1926) PCIJ, Series A, no 7, 18–19. 565   cf R Kolb, ‘The Scope Ratione Materiae of the Compulsory Jurisdiction of the ICJ’ in P Gaeta (ed), The UN Genocide Convention – A Commentary (Oxford, 2009) 450–51. 566   cf LB Sohn, ‘Settlement of Disputes relating to the Interpretation and Application of Treaties’ CCHAIL, vol 150, 1976-II, 249–50. 567   ICJ Reports 1996-II, 615–17, § 30 et seq. 563 564



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conflict, whether internal or international, was irrelevant. As to the second argument, the Court said that the obligation under the Convention to prevent and punish the crime of genocide, were not subject to any territorial limitation, and that there was a duty to comply with such obligations on an extra-territorial basis according to the factual possibilities of influence or control open to a State in whatever concrete circumstances might obtain. The Court’s judgment on this point thus flowed from an analysis of the material field within which the Convention applied, in turn delimiting the Court’s own subject-matter jurisdiction. The important thing about this judgment was that, in the circumstances, these material (subject-matter) questions were particularly closely linked to the existence of a dispute within the meaning of the Convention. Existence of the dispute on the one hand, and consensual and subject-matter jurisdiction on the other – the two are, in this context, bound together in a highly intimate relationship.

c)  Legal Nature of a Dispute568 The Court has subject-matter jurisdiction only in relation to ‘legal disputes’. Article 36, paragraph 2 of the Statute says so expressly in the context of the optional clause (‘all legal disputes’), while paragraph 1 of the same Article indicates no such limitation in the context of jurisdiction clauses, special agreements and other agreements giving rise to jurisdiction (‘all cases which the parties refer to it’). On the face of it, the concept of ‘legal dispute’ in paragraph 2 seems a narrower one than the ‘cases’ of paragraph 1. The travaux préparatoires would appear to confirm this impression. In the Washington Committee of Jurists, charged with revising the Statute, a proposal was made to insert into Article 36, paragraph 1, the words ‘of a legal nature’ after the word ‘cases’, but the proposal was rejected.569 One should not, however, conclude from this that, under paragraph 1, parties can submit non-legal disputes to the Court when it is engaged in its classic jurisdictional functions. In this context the formula ‘all cases which the parties refer to it’ must be read as implicitly including the additional words: ‘if they decide that such cases are to be resolved on the basis of law’. The wider formula in paragraph 1 must be understood as making a reservation in respect of judgments to be given in equity under Article 38, paragraph 2 of the Statute. The expression ‘cases’ is thus wider than ‘legal disputes’ because Article 36, paragraph 1 encompasses judgments in equity, in which cases the subject of the dispute need not necessarily amount to a ‘legal question’. Judgments in equity can be requested of the Court only by agreement between the parties (Article 38, § 2), that is through the mechanisms of Article 36, paragraph 1. Conversely, requests of that kind are excluded from unilateral applications under Article 36, paragraph 2 (except, that is, where such an application proves acceptable to the other party on the forum prorogatum basis, in which case, however, we are back into § 1). If the parties jointly request a judgment in equity, their legal or political dispute is transformed, as regards the modalities for its resolution, into a ‘political dispute’, in the sense that the Court will decide it on an extra-legal basis, going beyond strict law. Nevertheless, unlike a political organ, the Court, which must state the reasons 568   In this regard see A Cassese, ‘The Concept of “Legal Dispute” in the Jurisprudence of the International Court’ in Comunicazioni e studi, vol 14 (1975) 173 et seq.; E Gordon, ‘“Legal Disputes” under Article 36(2) of the Statute’ in LF Damrosch (ed), The International Court at Crossroads (New York, 1987) 183 et seq.; C Schreuer, ‘What is a Legal Dispute’ in Essays G Hafner (Leyden and other places, 2008) 959 et seq. 569   See Dubisson, above n 49, 161.

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for its decisions, cannot, in such cases, base them on simple expediency. This is an aspect we will need to come back to in the section on judgments in equity. Apart from judgments in equity, the Court can decide only ‘legal disputes’, whether under paragraph 1 or under paragraph 2. This limitation results from Article 38, paragraph 1 of the Statute, which provides that the Court’s mission is to give judgment according to international law on the disputes submitted to it, and accords with the unvarying jurisprudence of the Court itself, as to which see below. Article 38, paragraph 1, setting out the sources on the basis of which the Court can make its decisions, thus imposes a limitation on Article 36, paragraph 1. The Court has, in its actual practice, always refused to rule on the non-legal aspects of disputes. It has refused to indicate how certain non-legal question should be resolved; it has refused to make law; and it has reduced questions put to it to their legal aspects. Thus, in the Free Zones case (1932), the parties (France and Switzerland) had asked the PCIJ to establish a new regime governing the collection of questions ‘regarding the customs and economic regime of the free zones’,570 necessary for the execution of Article 435, paragraph 2 of the Treaty of Versailles.571 The parties asked the Court to settle their conflicting interests accordingly. The Court thought such a role inappropriate for a court of justice, because the dispute, as presented to the Court, was political in nature rather than legal. Its resolution was not a matter of law, but required the adjustment of economic interests.572 So the Court refused to rule on that point. Similarly, in the Haya de la Torre case (1951), the Court refused to decide the modalities by which asylum, granted in an embassy, should be brought to an end, on the basis that: ‘A choice amongst them could not be based on legal considerations, but only on considerations of practicability or of political expediency: it is not part of the Court’s judicial function to make such a choice.’573 In the case on Interpretation of the Statute of the Memel territory (merits, 1932), the Court had taken the view that if Lithuania had been correct (which in fact it was not) in alleging that the claim did not concern a violation of the Memel Statute but rather concerned the question whether a decision by the governor was politically opportune, the Court would have had no jurisdiction to resolve the issue, since it was not a legal one;574 and the Court said broadly the same thing in the case on the Appeal as to the Jurisdiction of the OACI Council (1972).575   Art 1 of the compromis, PCIJ, Series A/B, no 46, 98.   Art 2 of the compromis, ibid. As to the Court’s task, see also the Memorial of the French Government, PCIJ, Series C, no 17-I, vol II, 498–99; Speech of Maître Paul-Boncour for France, ibid, vol I, 32. 572   Ibid, 162: ‘the settlement of such matters is not a question of law, but is a matter depending on the interplay of economic interests . . . Such questions are outside the sphere in which a Court of Justice, concerned with the application of rules of law, can help in the solution of disputes between two States’. On this aspect, see the Free Zones case, cf Abi-Saab, above n 484, 160–61; Mabrouk, Preliminary . . ., op. cit., 204; H Lauterpacht, The Development of International Law by the International Court (London, 1958) 213 et seq.; and JHW Verzijl, The Jurisprudence of the World Court, vol I (Leiden, 1965) 289–90. cf also the Observations of Judge Kellogg, PCIJ, Series A, no 24, 29 et seq. (Order of 1930). On the Free Zones case, cf R Bozon, L’affaire franco-suisse des zones franches de la Haute-Savoie et du Pays de Gex (Paris, 1935). W Burckhardt, ‘L’affaire des zones franches de la Haute-Savoie et du Pays de Gex’ (1930) 11 RDILC 90 et seq.; R Heim, Der Genfer Zonenstreit, (thesis, Cologne University, 1935). O Hoijer, ‘La controverse franco-suisse des zones et le Droit des Gens’ Le Correspondant, no 1624, 542 et seq.; R Jouvet, Le problème des zones franches de la Haute-Savoie et du Pays de Gex, (thesis Geneva University, 1943); AK Kuhn, ‘The Conciliatory Powers of the World Court: the Case of the Free Zones of Upper Savoy’ (1930) 24 AJIL 350 et seq.; AA Roden, ‘La compétence de la Cour permanente. Les observations Kellogg’ (1931) 12 RDILC 757 et seq.; H Tremaud, ‘La solution judiciaire du procès des zones franches’ (1932) 39/454 Revue politique et parlementaire, 491 et seq. 573   ICJ Reports 1951, 79. 574   PCIJ, Series A/B, no 49, 328. 575   ICJ Reports 1972, 58–59, the Court calling to mind the fact that a dispute must relate to legal rights and obligations, and not to questions of equity or expediency. 570 571



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It is not for the Court to engineer peaceful change by adapting treaties so radically to changed circumstances that it amounts to revising them.576 Nor is it the Court’s function to make law in other ways. So, in the South-West Africa cases (second phase, 1966), the Court declined to take any stance which could be interpreted as the making of law.577 It stated: ‘As is implied by the opening phrase of Article 38, paragraph 1, of its Statute, the Court is not a legislative body. Its duty is to apply the law as it finds it, not to create it.’578 In the cases on Fisheries Jurisdiction (1974), Iceland had been able to invoke, in support of its argument for a unilaterally established exclusive fisheries zone of 50 nautical miles, the tendency to everlarger fisheries zones, and in particular the progressive recognition of preferential rights in adjacent waters in favour of States that were especially dependent on coastal fishing. These tendencies had been manifested in the course of the then current work of codifying the law of the sea.579 The Court did not refuse to take account of these developments but it referred very firmly to the cardinal principal of its activity580 in the field of questions that were becoming new law (in statu nascendi): ‘[T]he Court, as a court of law, cannot render judgment sub specie legis ferendae, or enunciate the law before the legislator has laid it down.’581 The question of taking into account a point of law that was in the process of gestation arose again in the Continental shelf case (Tunisia v Libya, 1982).582 In the case of the Legality of the threat or use of nuclear weapons (1996), certain States had argued that in the field of nuclear armaments, the law had nothing to say, the question being governed by politics alone. They argued that consequently, if the Court were to respond to the question put to it, it would be encroaching on the political sphere, and would inevitably be making new law. The Court rejected this view, while at the same time reaffirming that the judicial function excluded the making of law.583 576   Case on the Interpretation of the treaties of peace with Bulgaria, Hungary and Romania (Second phase) ICJ Reports 1950, 229; case of the Rights of nationals of the United States of America in Morocco, ICJ Reports 1952, 196. As to ‘peaceful change’, see the brief comments in R Kolb, Ius contra bellum, 2nd edn (Basle/Brussels, 2009) 333 et seq.; see also, amongst others, Ch de Visscher, Théories et réalités en droit international public, 4th edn (Paris, 1970) 354 et seq.; H Lauterpacht, ‘General rules of the law of peace’ CCHAIL, vol 62, 1937-IV, 371 et seq.; H Mosler, ‘The International Society as a Legal Community’ CCHAIL, vol 140, 1974-IV, 294 et seq.; and also C Rabl-Blaser, Die Clausula rebus sic stantibus im Völkerrecht, (Zurich/St Gallen, 2012) 82 et seq. 577   ICJ Reports 1966, 36, §. 57: ‘If, on a correct legal reading of a given situation, certain alleged rights are found to be non-existent, the consequences of this must be accepted. The Court cannot properly postulate the existence of such rights in order to avert those consequences. This would be to engage in an essentially legislative task, in the service of political ends the promotion of which, however desirable in itself, lies outside the function of a court-of-law.’ 578   Ibid, 48, § 89. 579   ICJ Reports 1974, 23 and 192. 580   In particular, it recognised the emergence of the principle of ‘preferential rights’. In this case, however, it applied the principle against Iceland, because a ‘preferential’ right necessarily excluded any claim to an ‘exclusive’ right as envisaged by the resolution of the Icelandic Parliament: ICJ Reports, 1974, 27–28. 581   ICJ Reports 1974, 23–24, § 53 and ibid, 192, § 45. cf Thirlway, above n 557, vol 60 (1989) 134, 148–51. 582   ICJ Reports 1982, 38, § 24, on the clause of the special agreement which invited the Court to take into account the ‘accepted new tendencies’ in the modern law of the sea that were in the process of crystallisation at the Third UN Conference on the Law of the Sea. 583   ICJ Reports 1996-I, 237, § 18: ‘Finally, it has been contended by some States that, in answering the question posed, the Court would be going beyond its judicial role and would be taking upon itself a law-making capacity. It is clear that the Court cannot legislate, and in the present case, it is not called upon to do so. Rather its task is to engage in its normal judicial function of ascertaining the existence or otherwise of legal principles and rules applicable to the threat or use of nuclear weapons. The contention that the giving of answer to the question posed would require the Court to legislate is based on a supposition that the present corpus juris is devoid of rules in this matter. The Court could not accede to this argument. It states the existing law and does not legislate. This is so even if, in stating and applying the law, the Court necessarily has to specify its scope, and sometimes note its general trend.’

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Sometimes the Court can save its jurisdiction by recuding the questions before it to their legal elements. The Court can then avoid refusing to decide one or more legal points put to it, while at the same time declining to address the extra-legal allegations. So, in the case on the Competence of the ILO (1926), in the context of interpreting the Treaty of Versailles, the PCIJ rejected arguments about certain political and social tendencies which were reserved to the national jurisdictions of the States concerned: The Court, in interpreting Part XIII [of the Treaty of Versailles] is called upon to perform a judicial function, and, taking the question actually before it . . . there appears to be no room for the discussion and application of political principles or social theories, of which, it may be observed, no mention is made in the Treaty.584

If this question had not been capable of being reduced to its legal aspects, eliminating any judicial examination of political and social tendencies, the Court would simply have had to refuse to hear all parts of the case that would have obliged it to go beyond administering the law. When the Court has in fact been unable to cut down a dispute in this way, it has indeed refused to hear the case. Thus, in its opinion on the International Status of South West Africa (1950), the Court refused to order the Union of South Africa to negotiate and to enter into a Trusteeship agreement to replace the mandate dating from League of Nations days. In the Court’s view, no provision of the Charter, and certainly not Article 80, paragraph 2, imposed such an obligation. Consequently: The Court is, however, unable to deduce from these general considerations any legal obligation for mandatory States to conclude or negotiate such agreements. It is not for the Court to pronounce on the political or moral duties which these considerations may involve.585

This jurisprudence shows the Court paying careful attention to this limitation to its subject-matter jurisdiction – that is to the fact that it can deal only with the legal aspects of a dispute. But, to return to the question, what exactly is a ‘legal dispute’? Definition of a ‘legal dispute’.586 A dispute must be categorised as ‘legal’ in the sense relating to the Court’s jurisdiction, if the parties (in special agreement cases) or the applicant (in the case of a unilateral application) are deliberately placing themselves on a legal plane, that is if their claims are formulated on the basis of rights and/or obligations derived from a legal norm which is allegedly applicable to the dispute.587 If the claim is formulated on the   PCIJ, Series B, no 13, 23.   ICJ Reports 1950, 140. Several judges dissociated themselves from this view, notably Judge de Visscher in a famous dissenting opinion (ibid, 186–90). See also the declaration of Judges Guerrero, Zoricic and Badawi Pasha (ibid, 144–45) who shared the views of Judge de Visscher, and the Dissenting Opinion of Judge Alvarez (ibid, 183– 85). On this case, cf E Kahn, ‘The International Court’s Advisory Opinion on the International Status of South-West Africa’ (1951) 4 ILQ 78 et seq.; L Jully, ‘La question du Sud-ouest Africain devant la Cour internationale de Justice’ (1951) 50 Die Friedenswarte, 207 et seq.; JF Lalive, ‘Statut du Sud-ouest Africain’ (1950) 77 JDI, 1,252 et seq.; IS Kerno, ‘L’avis de la Cour internationale sur le statut du Sud-ouest Africain’ (1950) 9 United Nations Bulletin 118–19. 586   See, among others, Hudson, above n 505, 454 et seq.; A Cassese, ‘The Concept of ‘Legal Dispute’ in the Jurisprudence of the International Court’ in Comunicazioni e studi vol 14 (1975) 173 et seq.; E Gordon, ‘ “Legal Disputes” under Article 36(2) of the Statute’ in LF Damrosch (ed), The International Court at the Crossroads (New York, 1987) 183 et seq.; C Schreuer, ‘What is a Legal Dispute’ in Essays G Hafner (Leyden and other places, 2008) 959 et seq. 587   In the classic formula of Kelsen, above n 480, 478: ‘The dispute is legal if it is to be decided according to norms of positive law; it is non-legal, i.e., political, if it is to be decided according to other norms, especially according to principles of justice or equity.’ At this point it is necessary to add to the principles of justice and equity a reference to decisions on the basis of expediency. On the other hand, Kelsen was not right to say that (ibid) ‘the dispute is a legal dispute if this agency [the resolving organ] is authorized to settle it by applying to it rules of positive law; 584 585



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basis of a norm or principle of law, the dispute can be decided by a court; otherwise a court cannot decide the case, because it does not have the necessary subject-matter jurisdiction.588 Thus, a legal dispute exists when the parties making a joint application (or the claimant under a unilateral claim) place the issue in dispute on the legal plane, disputing between themselves about a subjective right or competence. A political dispute, by contrast, is a conflict of interests, or a conflict about the modification of the existing law. In such a case, the parties (or the applicant in the case of a unilateral application) deliberately formulate their claims on a plane which goes beyond the norms of positive law. In the case of the Armed boundary and transboundary activities (Nicaragua v Honduras, 1988) the Court used a formulation which was in truth too sweeping. 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 law589 (italics added)

This formulation certainly made sense in the context in which the Court was using it: the Court was emphasising the fact that the political aspects of a dispute did not prevent the Court from deciding the law – that is did not prevent the dispute’s being also a legal one. However, the Court’s formulation is not appropriate as a general definition of a ‘legal dispute’. Indeed, every dispute is ‘capable of being resolved’ by the application of legal norms (if only by recognition of a freedom to act flowing from the absence of legal constraints);590 the important question is whether the parties have, in presenting their cases, themselves sited the dispute on a terrain which is a legal one. In the case of a unilateral application, the way the case is put is a matter exclusively for the applicant. If it decides to place the dispute, or certain aspects of it, on a legal plane, the respondent, to the extent that consensual jurisdiction exists, is obliged to defend the case before the Court on the basis of law. That does not prevent the respondent from also seising a political organ of the dispute, particularly so that the political organ can take into account other (political) aspects of the dispute. The political organ will then have to be careful not to encroach unduly on the pending case before the Court. It will have to be careful not to allow the respondent in effect to sterilise the Court’s jurisdiction (which, after all, the respondent will have accepted), by seising a political organ in the malicious hope of counteracting the work of the Court.591 In special agreement cases, the parties otherwise it is a political dispute’, because the body so seised of the case certainly could as the formula provides – take account of rules of positive law, but would nevertheless be under no obligation to confine itself to those rules. It is unquestionably the case that a political organ can apply legal norms to a dispute; but it can also take account of other considerations. Such a dispute does not become (entirely) legal just because the organ in question is at least partially applying (or has the right to at least partially apply) legal norms. One can just about say that the dispute may in such a case be partially legal and partially political, the word ‘may’ reflecting the fact that to be authorised or entitled to apply rules of law does not necessarily mean that they will in fact be applied. In such cases, the application of the law is generally only one stage in the process of refining a proposed resolution of the overall dispute on the basis of a compromise. If that is the position, the dispute and its resolution will remain more political than legal. 588   In order for the ICJ to be able to hear such a case, it is also necessary for the applicable law, which the claims are a function of, to be public international law – see below section (e). 589   ICJ Reports 1988, 91, § 52. 590   The word ‘resolved’ can certainly leave room for doubt, since there is no dispute between States to which the norms or principles of international law cannot be applied; on the other hand, there certainly are disputes or tensions which the application of international law will not itself ‘resolve’ or deal with in a factually adequate way. 591   It cannot be said that the Security Council paid this principle all the attention it deserved in the Lockerbie case (1992–98). cf M Bedjaoui, Nouvel ordre mondial et contrôle de légalité des actes du Conseil de sécurité (Brussels, 1994) 88–89.

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jointly define the Court’s task and consequently the legal character (or otherwise) of their requests to it. If a dispute is at least partially formulated in legal terms, the only consequence of the fact that it also has political aspects will be that the Court will have to confine itself to the legally formulated aspects, and to refuse to take cognisance of the other ones. This happens in relation to ‘mixed disputes’, where, for example, an essentially legal dispute – for example, as to the interpretation of a treaty – takes on, in a particular case, a particular political significance that is so great as to distort the lines of dispute; or, conversely, if the mention of general legal principles – such as the prohibition against the abuse of rights – is grafted onto an essentially political dispute. The political importance of a given question, which itself is a subjective and evanescent concept, will not in itself deprive a dispute, an application or a subject, of its legal aspects. So, for example, the atomic bomb has for many years lain at the heart of the policy of deterrence and mutual assured destruction. It is difficult to imagine a subject that is more intensely political, more viscerally linked to the vital interests of States. Nevertheless, it goes without saying that the production, stockpiling and use of such weapons do have legal aspects, and that the Court can deal with them, as it showed in its advisory opinion on the Legality of the threat or use of nuclear weapons (1996).592 The fact that parties are locked into both legal and political aspects of their dispute, does not prevent the Court from deciding the legal aspects.593 There are few (if any) inter­national disputes that do not involve both aspects,594 because international law is a system of public law governing the relationships between States as collective entities with their own particular policies. The famous remark of Montesquieu turns out to have been fully justified: public international law is ‘the political law applicable to the inter-relationship of nations’ (our translation).595 If the Court could be stripped of its subject-matter jurisdiction simply by the inclusion of a political claim, it would hardly ever hear a case. The political aspects of cases would then rule the legal ones, the presence of the former preventing the Court from deciding the latter. Nothing could be further from the intentions of those who drafted the Statute, inspired, as they were, by the old idea of ‘peace through law’, and by the concomitant extension of the judicial function into international affairs. Subjective nature of the distinction. It is important to recognise that the legal character of a dispute does not depend on its intrinsic nature, but solely on the subjective way in which a party (or the parties) chooses to put it. So there are no disputes that are ‘legal’ or ‘political’ by their very nature: there are merely those that are ‘legal’, or as the case may be ‘political’,

  ICJ Reports 1996-I, 226 et seq.   In the case on Armed boundary and transboundary activities (Nicaragua v Honduras, 1988) the Court stated: ‘[T]he Court is aware that political aspects may be present in any legal dispute brought before it. The Court, as a legal 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 legal principles and rules of international law’. ICJ Reports 1988, 91, § 52. The Court has referred to this principle in its advisory capacity – see, eg the advisory opinion in the case on the Conditions for the admission of a State as a Member of the United Nations, ICJ Reports 1948, 61; the opinion on the Request for revision of Judgment no 158 of the United Nations Administrative Tribunal, ICJ Reports 1973, 172, § 14; and the opinion on the Legality of the threat or use of nuclear weapons, ICJ Reports 1996, 234, § 13. 594   It has been possible to say, and say rightly, that most international disputes are of this nature, since political and legal elements are always present, albeit in variable degrees, in an inter-State dispute: cf H Lauterpacht, The Function of Law in the International Community (Oxford, 1933) 153 et seq. 595   De l’esprit des lois, Book X, ch I. 592 593



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by choice.596 The subjective aspect prevails over the objective one.597 This amounts to saying that the characters of disputes cannot be decided except on a case by case basis, and in their contexts, as a function of the precise claims advanced by the claimant or of the parties’ joint request. If some of the questions are more regulated by law than others, if there are some matters that are more legal than others, nevertheless there is no question that cannot be the subject of a claim formulated on a legal basis.598 Whether such a formulation is opportune or appropriate is a question that must be decided either by the claimant or by the parties jointly. In summary, then, the received terminology, with its distinction between ‘legal’ and ‘political’ disputes, is misconceived. Rather, we should speak of ‘legal claims’ and ‘political claims’. Each dispute is a complex mixture of law and politics. First, one must select from it the aspects that are considered relevant to the particular context, clarifying the matter from a certain perspective, in order to find out whether, in the particular case, the dispute is being addressed legally or politically. If one follows the line of argument advanced by G Morelli a legal dispute is distinguished by the fact that the applicant (or the parties) are asking the judges to examine the question whether or not a claim is conforms with the existing objective law.599 By contrast, a political dispute is characterised by the fact that the applicant (or the parties jointly) are asking the body in question to examine the conformity of the claim to requirements, or ‘social’ norms, of a non-legal nature. In the latter case, the ‘sense of the claim’ would be to have the law resolve a conflict of interests which previously it did not regulate, or alternatively to have the law do so in a different way from the way it did before. The salient feature of a political dispute is thus that it becomes a process of ‘legal production’, the production of new legal norms – or, in other words, of legislation. A legal dispute, by contrast, allows the judges to make their decision on the basis of positive law, or by declaring what positive law decrees (sentenza di accertamento di diritto); a political dispute requires the organ in question to make a ‘dispositive’ decision, that is to create law. According to this way of seeing things, the main distinction between the two types of dispute lies not in the subjective claims advanced by the parties, but in the legal effect of the task to be undertaken by the organ (or ‘operator’) in question. A dispute is a legal one if all the operator does is to identify the applicable law and apply it; it is political if, by virtue of the decision made, it produces new law. If this rather ingenious conceptualisation is not adopted in the present work, the reason is that the process of resolving a dispute politically can, produce new law, but it does not have to do so. Often, the methods used to reach a political resolution of a dispute do not result in a binding solution. Nevertheless, it is obvious that, in order to resolve a political dispute effectively, it is necessary either to reach an agreement between the parties or to 596   This is why leading commentators, from the beginning of the 20th century, rejected the idea of matters, disputes or questions that were political in themselves, preferring the subjective formula contained in the Arbitration Agreement between France and Germany in the context of the Locarno Agreements of 1925: ‘All disputes . . . as to which the Parties mutually dispute their rights’ (our translation). cf eg A Verdross, ‘Règles générales du droit international de la paix’ CCHAIL, vol 30, 1929-V, 468 et seq. 597   This reality was particularly highlighted by H Kelsen, eg in ‘Théorie du droit international public’ CCHAIL, vol 84, 1953-III, 175 et seq. 598   This is true in any legal order and for any subject. I can ask myself, for example, if I should walk on the lefthand pavement or the right. I can first put the question in terms of convenience and expediency: more or less sunshine, more interesting shops, greater possibility of meeting someone I want to see or want to avoid etc. Then I can put the question in terms of law: am I under an obligation to use one side rather than the other? – the reply probably being that the law allows me to choose, since by not regulating the question (or by not forbidding either choice) it leaves the decision to me. 599   Morelli, above n 484, 10–12.

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impose on them a given solution, and the latter in effect implies a type of legislative activity. The following are generally political questions: (1) the manner in which foreign policy is conducted; (2) the desirability and manner of changing the law – that is of legislating; (3) historical or political enquiries (questions of fact); and (4) in a certain sense, questions which are apparently complete strangers to international law, such as those relating to purely domestic matters. The right way to look at it is, however, to see all these questions as ones that can receive a legal answer, including under international law, but that are not usually referred to in the context of law. 1) A State’s foreign policy is not normally subject to legal constraints. It can, however, be constrained by a treaty, whether of alliance or for some other purpose. In this case, the State’s foreign policy becomes at least partially a legal question. It can also be the subject of legal scrutiny if certain general principles of law are applied to it: estoppel, abuse of rights and so on. One sees, moreover, that the general principles of law, flexible and malleable as they are, can always be invoked to transform a political fact into a legal question. Does such and such an attitude amount to an abuse of rights, or is it in good faith? In this way, the political question is transformed into a legal one that a court can take cognisance of. The question whether a claim makes sense, and whether it is in substance justified, is irrelevant to its classification as a ‘legal dispute’. 2) The modification of the law by legislative action is a question of legal policy, not a question of law. A tribunal may, however, deal at a legal level with certain questions, for example if States conclude a pactum de contrahendo by which they undertake to take action to create law and perhaps already set out the lines along which the old norms are proposed to be modified. In that case, the transformation of the law – by the will of the parties – becomes a question of positive law. Also, as has justly been said: ‘Even a dispute in the latter category [relating to the modification of existing law] can lend itself [to judicial resolution], as regards some aspects, since there can be an interest in defining the legal situation by a judicial decision, even where the modification of that legal situation is desired by one of the parties’.600(our translation) 3) In addition, any question whatsoever can be given a legal answer, even if that answer is not very helpful. Sometimes it will be sufficient to say that since a certain attitude is not prohibited (or regulated) by the law, it remains permissible. Or it will be possible to reject a claim as being insufficiently based on an applicable legal norm. On other occasions, it is not possible to reject the claim on this basis, because the parties have jointly seised the tribunal. Thus, if the parties together go to the Court and ask it to define their boundary, that request cannot be rejected to the detriment of a non-existent claimant, the parties having seised the Court jointly. The Court can, however, say that it finds there to be no applicable legal principle and it is therefore up to the parties to agree upon ad hoc rules that the Court can take cognisance of, thus enabling the Court to judge the matter on the basis of equity (going beyond strict law) or else declare that, absent such a supplementary element, the parties are free to fix the boundary as they wish. These, of course, are legal responses. There are further examples: do I have the 600   Response of the Swiss Government to the questionnaire of the UN Secretary-General on the Examination of the role of the ICJ, dated 30 June 1971, ASDI, vol 28 (1972) 253. The document adds, immediately afterwards, that: ‘Thus in its decision in 1960 in the case on the Right of passage over Indian territory, the Court defined the rights and obligations of the parties in a disputed situation, and at the time of the Court’s decision a process was already under way whereby that situation was being transformed by political events.’ (our translation)



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right to digest what I have eaten?601 Possible legal responses: since, as a matter of physiology, it is impossible not to digest whatever has been eaten, the law cannot oppose this natural process (ad impossibile nemo tenetur); or the law does not regulate the question and therefore everyone is free to digest whatever he likes, if he is able to do so; or a claim about what I do not digest is insufficiently based on the law and must therefore be rejected; or the question falls within the sphere of the personal liberty (fundamental rights) of every human being, including as regards the body’s metabolic functions, which are protected by the law and so on. A ‘legal dispute’ thus consists of a manner of enquiring into a complex of questions, undertaken from a perspective that is chosen deliberately, and not in the contents or in the questions as such. Matters moving from the legal to the political plane, or vice versa. Independently of whether a question is ‘legal’ or ‘political’, certain matters can at a given moment in history be more (or less) susceptible than at other times to being governed by legal norms. For example, the question of dynastic succession had legal aspects which were far from negligible in a period when the question affected the maintenance of the balance of power in Europe (in the seventeenth and eighteenth centuries). It was a matter of international concern. But for a long time now, this has ceased to be the case. In consequence, the question nowadays no longer appears in the legal garb it used to wear. It was a preoccupation of the international law of the classical period.602 But as soon as republican state-structures made real headway, and the importance of the principle of the balance of power – as a constituent element of European politics – began to be less clear cut, the question of dynastic succession disappeared over the horizon of public international law. The same thing happened to other questions, such as the duties owed by a nation to itself. These were formerly part of natural international law and sometimes even of positive international law. As a result of the anthropocentric revolution of modern times, the natural law of the Middle Ages, which had been objective in nature, was transformed into a system governing the subjective natural rights of the human person, the latter conceived of in his ‘original freedom’. It is understandable that, starting from this premise, authors discussed duties to oneself, and one’s rights against others, in terms of natural law. The first limb, one’s duty to oneself, is not solely a question of ethics. It was in fact possible, by applying the primacy of the duty of self-preservation, to set one’s duty to oneself against one’s duty to third parties in such a way as to release one from one’s legal obligations towards them. Duties towards oneself thus found their way into positive law, particularly into public international law. This way of thinking is to be found in the works of C Wolff603 and subsequently, and quite emblematically, E de Vattel. In his book Le droit des gens ou principes de la loi naturelle . . . (1758), Book I, beginning with Chapter II, Vattel lists the ‘interior rights’ of a nation, in particular the right of self-preservation, but also lesser aspects such as the cultivation and working of the land (Chapter VII) or the upkeep of the public highways (Chapter IX). He takes great 601   See H Kelsen, Controverses sur la théorie pure du droit, Remarques critiques sur Georges Scelle et Michel Virally (Paris, 2005) 74. 602   Traces can still be found in the 19th century: see GF de Martens, Précis du droit des gens moderne de l’Europe, 2nd edn, vol I (Paris, 1864) 208 et seq., 214–15, and the references there cited. The title of the chapter is emblematic: ‘Des Droits qui peuvent appartenir à une nation sur la Constitution de l’autre’ [‘Of the rights that one nation can have over the Constitution of another’]; and mention is made of the principle of the balance of power. 603   Jus Gentium Methodo Scientifica Pertractatum (1749) ch I.

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pains to emphasise that, in the event of a conflict between a fundamental duty owed to oneself and a duty to a third party, the former prevails: ‘Duties to oneself prevail over duties to others, in the event of a collision between them.’ (our translation).604 This subjective system found its way directly into the law of nations, colouring even the very nature of international obligations. In the nineteenth century, such duties to oneself were developed into complete and systematic doctrines of the ‘fundamental rights of the State’. Then, from the end of the nineteenth century, these systems were in their turn abandoned.605 A question which had originally been ‘legal’ had thus returned to the world of ‘political’ questions. The opposite also occurs, political questions moving into the legal field. This happens every time they are subjected to legal regulation where previously there was none. The entire history of public international law is one of a great range of subjects being progressively subjected to legal constraints. A classic example is international human rights law, defining rights which a State must guarantee to its own nationals and all persons under its jurisdiction. This was a matter for domestic jurisdiction, the ‘reserved domain’ of sovereign rights, and in that sense was a political question until 1945. Since then a significant body of conventions and a rather less developed body of customary norms govern it.

604   Book II, Ch II, § 25. See also: Objections, § 14: ‘Duties to oneself indisputably prevail over duties to others’ (our translation). This maxim was then applied in the most varied contexts: Book II, Ch I, § 2 (duties of assistance and solidarity between nations, subject to their duties to themselves); Book II, Ch II, § 25 (the fact of trading with other nations, purpose and scope of such trade); Book II, Ch VII, § 94 (prohibition against admitting foreigners into the national territory, eg out of the fear that they will corrupt morals); Book II, Ch IX, § 123 (in the event of necessity, humanitarian services can be refused: ‘But if this vessel [seeking entry into port in a storm] is infected with the plague, the portmaster may drive it off by canon-fire, and will commit no offence against justice, or even against charity, which, in such a case, begins at home)’ (our translation); Book II, Ch XII, § 170 (conflict between rights of necessity and a treaty); Book II, Ch XVIII, § 332 (duties to oneself prevail over duties to others only when important state interests are at stake); Book III, Ch VI, § 92 (military assistance, even when provided for in a treaty, is not owed if public health would be endangered). In exceptional circumstances, then, necessity can override perfected rights or treaty rights: Book III, Ch VII, § 107; Book III, Ch VII, § 122, 125. This aspect was fiercely criticised by C van Vollenhoven, Du droit de paix, De iure pacis (The Hague, 1932) 133. Vattel also frequently advises taking no action which might endanger the security of the State or undermine its power – eg in relation to the alienation of goods: Book I, Ch XXI, §§ 257–58. 605   On this doctrine of fundamental rights, see amongst many others, L Duguit, Traité de droit constitutionnel, 3rd edn (Paris, 1927) 715 et seq.; G Gidel, ‘Droits et devoirs des nations. Théorie classique des droits fondamentaux des Etats’ CCHAIL, vol 10, 1925-V, 537 et seq.; L Le Fur, Précis de droit international public, 3rd edn (Paris, 1937) §§ 638 et seq. See also A Pillet, Recherches sur les droits fondamentaux des Etats dans l’ordre des rapports internationaux et sur la solution des conflits qu’ils font naître (Paris, 1899); A Pillet, ‘Recherches sur les droits fondamentaux des Etats’ (1898) 5 RGDIP 66 et seq.; (1899) 6 RGDIP 503 et seq.; P Fauchille, Traité de droit international public, vol I, part I (Paris, 1922) 395 et seq.; WGF Phillimore, ‘Droits et devoirs fondamentaux des Etats’ CCHAIL, vol 1, 1923-I, 29 et seq.; S Séfériadès, ‘Principes généraux du droit international de la paix’ CCHAIL, vol 34, 1930IV, 343 et seq.; E Kaufmann, ‘Règles générales du droit de la paix’ CCHAIL, vol 54, 1935-IV, 574 et seq. There are well-known criticisms that can be levied against this doctrine of pre-positive subjective rights (a reprise of the inalienable rights of the human person and hypostasised in the State). However, it is not surprising that this doctrine of the fundamental rights and duties of States enjoyed a prolonged vogue in Latin America, where it was used as a shield against the hegemonic designs of the USA. See H Rolin, ‘Les principes de droit international public’ CCHAIL, vol 77, 1950-II, 353–60, 354: ‘This divergence of attitude between the jurists of the new continent and the old one can, we think, be explained by the difference in their preoccupations: whereas Europe suffers from its divisions, so that finer spirits preach the necessity of an international organisation and denounce the ambitions and mutual incomprehension of rival nationalisms, in Central and South America, by contrast, what is feared is not so much war or anarchy as the determined ambitions of a great power, waving the stars and stripes. Hence the tendency there to talk up the equality of States as the most precious of rights. In the face of this political orientation, there is no point in a lawyer’s raising technical legal objections to the concept of fundamental rights.’ (our translation) For a Latin-American perspective, see RJ Alfaro, ‘The Rights and Duties of States’ CCHAIL, vol 97, 1959-II, 95 et seq.



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Other functions of the distinction between ‘legal’ and ‘political’ disputes. To distinguish between legal and political differences (or applications to the Court that are based on law and those that are not) is a useful exercise that goes beyond the question of the ICJ’s jurisdiction. The distinction can be used more generally, to point more directly towards the most suitable procedure for resolving a dispute. The international community’s objective of justice and peace cannot require that all disputes should, so far as possible, be brought before tribunals and decided as matters of strict law. A tribunal will often be able to deal only with one aspect of the dispute (the legal aspect), which may perhaps be a subordinate or secondary consideration. The tribunal can provide a legal solution, but that solution may be a long way from resolving the numerous political facets of the dispute, facets of which the tribunal cannot take cognisance. The attempt to impose a legal solution can even make the dispute more bitter, developing its scope in an undesirable way. So a State wishing to modify the law may take the view that an attempt to seise a tribunal of the case amounts to an attempt to block an equitable solution. A tribunal will here always decree a ‘conservative’ solution, because its duty is to apply the law as it is. Sometimes States realise that what they need is for the law to be modified. A tribunal, whose only weapon is the law, cannot satisfy them. From this point of view, an excessively court-oriented system of resolving international disputes is undesirable. It is at this point that the distinction between legal and political disputes can be usefully brought into play. The States concerned need to conduct a meticulous examination of their disputes with a view to deciding which are the salient aspects and of understanding the wider context. This analysis will guide them towards the selection of the most appropriate method of resolution. It will remain possible to seise a tribunal of some aspects of the dispute, but others will be subjected to a political procedure. Conversely, in some cases a political procedure may seem more appropriate from the outset. So, today, it would appear to be insufficient to seek to resolve the Israeli-Palestinian problem solely through a legal process and exclusively by applying the law. Political compromises remain necessary, for example on the question of Palestinian refugees. Wide-ranging political regimes, federal or international, will need to be considered. The deftest of handling will be necessary. Thus, the distinction between legal and political disputes is a necessary part of the thinking. The essential responsibility for making the most judicious choices rests with the disputing parties themselves. Broadly speaking, the choice open to the parties is as follows: (1) If the dispute is perceived in legal terms (a legal dispute), the parties can seek a political procedure if they are looking for greater procedural flexibility, a heightened degree of political awareness in the application of the law, and/or a solution which is not legally binding. They can look for a tribunal procedure if what they want is a process that is clearly marked out in advance, the more impersonal approach that judges bring to disputes as they apply legal norms, and a result which is legally binding. (2) If the dispute is perceived in political terms (a political dispute), the parties must submit it to a political process, accepting, if they so desire, that the resolution will be legally binding on them. They also have the option of going to a tribunal and charging it with giving judgment in equity. In that case the tribunal is partially transformed into a political organ, in some senses acting as the agent of the parties. The political sensitivity of a dispute does not alter its character as a ‘legal dispute’. In more than one situation, States seek to claim that the political sensitivity of a dispute in a particular context, or the fact that a legal dispute is only a subordinate aspect of a wider dispute or

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of a situation of international tension, somehow means that the Court should not decide the substantive issues. The Court itself, however, has always refused to accept this theory of ‘contamination’. In its view, it can and must deal with the legal aspects of the dispute once it has been seised of the case in the ordinary way.606 Any other approach would force the Court to make fairly arbitrary distinctions of a kind which would scarcely be appropriate or adequate for a court of justice. It would also lead to an undue limitation on the Court’s jurisdiction, given that international law, (as already mentioned, the ‘political law applicable to the inter-relationship of nations’607), always lies at the heart of international relations. The argument, that the Court has no jurisdiction to deal with the legal aspects of such questions, would, if it succeeded, be equivalent to reducing the role of law in interState relations to a minimum level, divesting the Court of a large part of its subject-matter jurisdiction. There is no valid reason to do that. The Court has therefore been entirely right to refuse to accept this line of argument. The legal intensity of international disputes, which is often a very natural feature, thus justifies a rather different general rule, namely that the context and political implications of a case do not prevent the Court’s deciding it – and even that they may render the legal answer the Court will provide particularly important. The Court affirms that it can take cognisance of the legal aspects of disputes in accordance with the modalities of its proceedings: and, conversely, that it will not take cognisance of the purely political aspects of disputes, those not formulated in legal terms. In the case on the Admission of a State to the United Nations (Article 4 of the Charter) (1948), and also in the case on the Competence of the General Assembly for the admission of a State (1950), the Court affirmed its jurisdiction to interpret a treaty text (the Charter) even in the context of the cold war, that is in a highly politicised situation.608 These dicta were repeated in the advisory opinion on Certain expenses of the United Nations (1962),609 and in the opinion on the Interpretation of the agreement of 25 March 1951 between the WHO and Egypt (1980).610 In the latter case, the Court added: ‘Indeed, in situations in which political considerations are prominent it may be particularly necessary for an international organization to obtain an advisory opinion from the Court as to the legal principles applicable with respect to the matter’.611 In the case of the United States diplomatic and consular staff at Tehran (1980), the Court stated that a wider context of political tension between the parties did not prevent it from taking cognisance of the substantive issues submitted to it, that is in relation to the violations of law alleged to have been committed.612 Four years later, in the case of Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility, 1984), the Court insisted that it could deal with the substantive issues arising on an application resulting from an   cf Tomuschat, ‘Article 36’, above n 482, 599–601.   De l’esprit des lois, Book X, ch I. 608   ICJ Reports 1948, 61 and ICJ Reports 1950, 6–7: ‘[The Court] cannot 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. It is not concerned with the motives which may have inspired this request.’ 609   ICJ Reports 1962, 155–56: ‘The Court, however, cannot attribute a political character to a request which invites it to undertake an essentially judicial task, namely, the interpretation of a treaty provision.’ 610   ICJ Reports 1980, 33. 611  Ibid. 612   ICJ Reports 1980, 20: ‘[Explanation] . . . was the more necessary because legal 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 long-standing 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.’ 606 607



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armed conflict that was under way, in a political context that remained very tense.613 The United States of America, as a party to the proceedings, had pleaded that the assessment of such situations should be reserved to the political organs. Only the latter, it argued, would be capable of taking account of the more flexible criteria necessary in a mobile context in which the simple application of the law would certainly be unsatisfactory.614 The Court rejected this argument. In the case of the Armed boundary and transboundary activities (Jurisdiction and admissibility, Nicaragua v Honduras, 1988), the Court took the view that a political motivation behind the application and the general political context were irrelevant to the question of its jurisdiction.615 In its advisory opinion on the Legality of the threat or use of nuclear weapons (UNGA, 1996), the political aspects of nuclear dissuasion could not be permitted, in the Court’s view, to have the effect of making it impossible to assess the threat or use of such weapons according to the applicable rules of international law.616 The Court again held to this view in its (rather intensely political) opinion on the Legal consequences of the building of a wall in occupied Palestinian territory (2004), when it concluded that, putting aside the political aspects, the construction of the wall could be assessed in light of the principles of the UN Charter, international humanitarian law (including the law on occupation of territory) and international human rights law – a legal task which the Court could undertake.617 This clear and firm jurisprudence deserves full support. The Court’s mission is to promote, in ordine suo, the fundamental aims of the UN Charter by making its own contribution to the peaceful resolution of disputes. It is strictly limited to the field of legal questions, but there is no reason why it should allow itself to be further limited by subjective political conceptions which vary from case to case. As a matter of admissibility, such considerations would be entirely subjective and lead the Court to take political decisions, by ruling on questions in themselves political. One should also remember that only one party to the dispute – the respondent – ever tries to use such considerations to evade the Court’s jurisdiction. One can see in this a kind of compensation for the claimant’s right to choose the field of battle – whether to take the dispute to a legal organ or a political one, as a legal dispute or a political one. There is, however, no reason to permit respondents to escape in this way from the consent they have given to the Court’s jurisdiction. In the face of the Court’s subject-matter jurisdiction, the two sides must remain on an equal footing. 613   ICJ Reports 1984, 436–38. It had been claimed that ‘the resort to force during ongoing armed conflict lacks the attributes necessary for the application of the judicial process, namely a pattern of legally relevant facts discernible by the means available to the adjudicating tribunal, establishable in conformity with applicable norms of evidence and proof, and not subject to further material evolution during the course of, or subsequent to, the judicial proceedings. It is for reasons of this nature that ongoing armed conflict must be entrusted to resolution by political processes.’ (436) For the Court’s response, see ibid, 437, § 101. 614   cf on this argument C Lang, L’affaire Nicaragua/Etats-Unis devant la Cour internationale de Justice (Paris, 1990) 172 et seq.; see also, from a US point of view, the contributions of E Gordon, O Schachter, DE Acevedo and EV Rostow, in LF Damrosch (ed), The International Court at the Crossroads (New York, 1987) 183 et seq., 223 et seq., 242 et seq., and 264 et seq. 615   ICJ Reports 1988, 91–92, §§ 52–54. 616   ICJ Reports 1996-I, 234, § 13: ‘The question put to the Court by the General Assembly is indeed 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 rules and principles, interpret them and apply them to the threat or use of nuclear weapons, thus offering a reply to the question posed based on law. The fact that this question also has political aspects, as, in the nature of things, is the case with so many questions which arise in international law, does not suffice to deprive it of its character as a “legal question”. ’ 617   ICJ Reports 2004-I, 152 et seq., §§ 36 et seq.

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d)  Digression: The Old Distinction between Justiciable Disputes (Legal) and Non-justiciable Ones (Political) Throughout the nineteenth century, and into the early twentieth, the distinction between justiciable disputes (legal) and non-justiciable ones (political) was much more important than it is today.618 It was built into the foundations of the public international law edifice, and embedded in current thinking about progress in international relations. In those days, international justice, so long confined exclusively to arbitration, although its reach was growing, remained straitjacketed by increasing nationalism and the prickly assertion of sovereignty. The function of international arbitrators (the ‘judges’ of the day) was considered to be limited to a certain category of relatively technical disputes which did not put at issue what were called ‘vital interests’, ‘the honour of the State’, its ‘sovereignty’, or even its ‘integrity’.619 This restriction on the judicial function also had a more positive element: it was hoped that it would help overcome governments’ mistrust of the arbitral regime. The criterion for separating political disputes from legal ones was therefore a political one, and its nature was a subjective one. Governments submit to arbitration those issues they choose to submit (consent): in the nature of things, they do not submit disputes which are politically too important – they then simply refuse. Each State freely chooses: agreements to arbitrate were always subject to the requirement of such a further consent to 618   On this distinction, see amongst others, PM Brown, ‘The Classification of Justiciable Disputes’ (1922) 16 AJIL 254 et seq.; Yearbook of the IIL, vol 29 (1922); C Fenwick, E Borchard, Q Wright et al., ‘The Distinction between Legal and Political Questions’ in Proceedings of the American Society of International Law (1924) 44 et seq., 125 et seq.; TW Balch, Legal and Political Questions Between Nations (Philadelphia, 1924); JHW Verzijl, ‘La classification des différends internationaux’ (1925) 86 RDILC 732 et seq.; JL Brierly, ‘The Judicial Settlement of International Disputes’ (1925) 4 Journal of the British Institute of International Affairs 227 et seq.; J Hostie, ‘Différends justiciables et non justiciables’ (1928) 9 RDILC 263 et seq., 568 et seq.; H Lauterpacht, ‘La théorie des différends non justiciables en droit international’ CCHAIL, vol 34, 1930-IV, 499 et seq.; J Fischer-Williams, ‘Justiciable and Other Disputes’ (1932) 26 AJIL 31 et seq.; V Bruns, ‘Völkerrecht als Rechtsordnung II: Politische und Rechtsstreitigkeiten’ (1933) 3 ZaöRV 445 et seq.; Lauterpacht, above n 594, 139 et seq., 351 et seq.; D Schindler, ‘Contribution à l’étude des facteurs sociologiques et psychologiques du droit international’ CCHAIL, vol 46, 1933-III, 280 et seq.; S Rundstein, ‘Le caractère juridique des différends internationaux’ (1934) 15 RDILC, 377 et seq.; M Habicht, ‘Le pouvoir du juge international de statuer ex aequo et bono’ CCHAIL, vol 49, 1934-III, 314 et seq.; S Verosta, ‘Différends juridiques et conflits d’intérêts’ in Jahrbuch der Konsularakademie Wien (1935) 78 et seq.; Oncken, Die politischen Streitigkeiten im Völkerrecht (Berlin, 1936); G Berlia, Essai sur la portée de la clause de jugement en équité en droit des gens (Paris, 1937) 95 et seq.; T Gihl, ‘The Subjective Test as a Means of Distinguishing between Legal and Political Disputes’ (1937) 8 Acta Scandinavica Juris Gentium 67 et seq.; D Schindler, Die Schiedsgerichtsbarkeit seit 1914 (Stuttgart, 1938) 102 et seq.; MA Caloyanni, ‘The Organisation of International Justice Justiciable and Political Disputes’ in Transactions of the Grotius Society, vol 23 (1938) 71 et seq.; LB Sohn, ‘Exclusion of Political Disputes from Judicial Settlement’ (1944) 38 AJIL, 694 et seq.; M Vaucher, Le problème de la justiciabilité et de la non justiciabilité en droit international des différends dits politiques ou non juridiques (Paris, 1951); JG Merrills, ‘The Justiciability of International Disputes’ (1969) 47 Canadian Bar Review 241 et seq.; A Cassese, ‘The Concept of Legal Dispute in the Jurisprudence of the International Court’ in Comunicazioni e studi (Essays G Morelli), vol19 (Milan, 1975) 173 et seq.; A Beirlaen, ‘La distinction entre les différends juridiques et les différends politiques dans la pratique des organisations internationales’ (1975) 11 RBDI 405 et seq.; H Mosler, ‘Political and Justiciable Legal Disputes. Revival of an Old Controversy’ in Essays G Schwarzenberger (London, 1988) 216 et seq. For a brief view cf C Rousseau, Droit international public, vol V (Paris, 1983) 253–55. On the attitude of the Court to highly political disputes, cf T Sugihara, ‘The Judicial Function of the International Court of Justice with Respect to Disputes Involving Highly Political Issues’ in AS Muller et al (eds), The International Court of Justice (The Hague/Boston/London, 1997) 117 et seq. 619   On these old vital interests clauses, see H Wehberg, ‘Restrictive Clauses in International Arbitration Treaties’ (1913) 7 AJIL 301 et seq.; R Wilson, ‘Reservation Clauses in Treaties of Obligatory Arbitration’ (1929) 23 AJIL 68 et seq.; P Mariotte, Les limites actuelles de la compétence de la Société des Nations (Art. 15, §§ 7 et 8 du Pacte) (Paris, 1926)100 et seq.



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subject oneself to the proceedings as for every particular case. De maximis non curant praetor ac lex; de minimis curant. Under rigorous analysis, therefore, the doctrine of ‘vital interests’ only had practical relevance for undertakings to submit to arbitration that had been given prior to the birth of the dispute (the field of ‘compulsory jurisdiction’). It was understandable that governments would be chary of agreeing to the obligations contained in arbitration clauses, when they still did not know in what precise context, at some future date, a dispute might arise. On the other hand, it was pointless to make a reservation of ‘vital interests’ in the context of a direct arbitration agreement (special agreement). Such a reservation effectively leaves the government concerned free to assess whether or not it wants to submit to arbitration in any given context. The practical way of exercising that right was here to enter into the arbitration agreement or to refuse to do so in the first place. If a State thought it was an issue of vital interest, it would simply refuse to enter into the compromis that would have subjected it to the arbitrator’s decision. In both situations – an arbitration clause and a special agreement – the criterion by which the decision is made is purely political and discretionary. States could withdraw cases from the field in which an arbitration clause was to operate by claiming that it was a matter of vital interest; and a State is always free to refuse to enter into a special agreement. ‘Vital interest’ claims in the context of arbitration clauses were thus entirely subjective in nature. The arbitrator had no way of examining or ruling on whether they were well founded. He was not entitled to examine the objection in light of the principles of good faith and abuse of legal rights. He did not, in this respect, have ‘jurisdiction over jurisdiction’. Reservations of vital interests had automatic effects. As soon as they were invoked, the debate ended. The arbitrator had to accept the position adopted by the State invoking the clause. It will readily be understood that these ‘vital interests’ clauses were criticised by all commentators interested in promoting international justice and all those who were attached to the idea of ‘peace through law’. The most effective criticism was that such a reservation virtually nullified the agreement to arbitrate. The reality was that such States did not accept any obligation at all. In truth, all they were promising was to consider, in any given case, whether it suited them to enter into an ad hoc special agreement to arbitrate, without raising their vital interests reservation, and the decision here was entirely for them and not subject to any kind of control or review. This was a triumph for the proponents of sovereign States’ unlimited political freedom; internationalists who had laboured to make the international community less anarchic and to make possible the peaceful resolution of disputes, were left biting the dust. The wind changed with the advent of the League of Nations, which promoted principles based on international law and the peaceful resolution of disputes, considered such peaceful resolution a matter of general international concern, and brought in a permanent court of justice which could more easily be seised of cases than under the nineteenth-century practice of arbitration. Until that time, the arbitral tribunal had to be specially constituted each time round. If a State was unwilling to cooperate, it was simply impossible to set up the tribunal. More often than not, therefore, it was not even necessary to specifically invoke the vital interests clause. Or rather, it was in a sense tacitly invoked, via a refusal to take part in setting up an arbitral tribunal. The creation of a permanent court – the PCIJ – was bound to give new impetus to the negotiation of jurisdiction clauses and of treaties for the judicial resolution of certain disputes. In this respect, the 1920s and 1930s saw the international community launching itself into a kind of pactomania. As such clauses mushroomed and flourished, it became natural to worry whether they actually worked. If one went on

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accepting ‘vital interests’ reservations, one was returning to the nineteenth century, effectively repudiating the principles of the League of Nations Covenant, based as they were on the peaceful resolution of disputes, by eliminating the practical value of the jurisdiction clauses. For this reason, vital interests clauses came in for increasingly severe criticism. Leading commentators proposed not only that such clauses should be dropped, but also a change in the paradigm of the old distinction between political and legal disputes. The criterion for this distinction should no longer be exclusively political (and thus entirely subjective), with the consequence that every obligation with regard to dispute resolution that was entered into in advance was deprived of any truly binding nature. The criterion ought to be a legal one, making it possible to make an objective distinction between a legal and a political dispute and thus ensuring, before the actual dispute even arose, that it would be possible to take it to a tribunal. We have already considered this legal criterion: a dispute is legal if the claims of the applicant (or both parties) are based on legal norms and/or legal principles. In this sense, every dispute is justiciable, everything depending on the perspective from which it is addressed. As a result of these developments, there was a widespread repudiation not only of the idea of disputes being, by their very nature, non-legal, but also of the idea of disputes being non-justiciable because they affected vital interests. Many also rejected the idea that there were some disputes which were incapable of being brought before a tribunal. The most important and influential work in this field was done by that eminent internationalist, H Lauterpacht.620 Lauterpacht recognised that tribunal procedures could not deal with all the causes of international friction, given that, if a State accepted that its claims were outside the scope of positive law, they could not be decided by a judge or arbitrator.621 On the other hand, Lauterpacht’s work, especially his book on The Function of Law, remain central to the rejection of subjective criteria when it comes to deciding whether the dispute is capable of being submitted to a judicial tribunal.622 Other commentators went still further, wanting to give an even more extensive competence to arbitrators and judges. Among them was the eminent Franco-Hellenic internationalist, N Politis.623 This legal ‘totalitarianism’ has, however, also come in for criticism. Amongst other things, it has been argued that to give the paramount role in the resolution of disputes to tribunals (to the exclusion of political organs) would mean giving inadequate responses to the many complex situations that cause controversy in the life of the international community. Certainly, the decisions of judges are binding. However, the result can be that the dispute seems to be resolved, but in fact is not. A whole series of international disputes relating to the modification of international law have shown how it is so often resented in this or that context as anachronistic or inequitable, or as containing too many lacunae. Judges are not in a position to make the necessary modifications to the law, and cannot respond adequately to the parties’ expectations. Their answer may rest on the old and inadequate law. The dispute is then not truly resolved. The ‘tribunalisation’ of international relations is therefore not enough, especially since judges tend to be conservative, to apply the law as it is, whereas, as international society develops, the real problems relate to legislative change.624 For these reasons, it is neces  See especially the fundamental work of Lauterpacht, above n 594.   Ibid, 372 et seq. 622   Ibid, 153 et seq., especially 189. 623   N Politis, Les nouvelles tendances du droit international (Paris, 1927) 139 et seq. 624   JL Brierly, ‘Règles générales du droit de la paix’ CCHAIL, vol 58, 1936-IV, 144: excessive ‘tribunalisation’ of international law is undesirable: ‘all judicial activity is, by its very nature, conservative, and mere conservation never leads to security’. 620 621



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sary to have available a range of solutions for dealing with disputes which are very diverse in nature. This was the philosophy underlying the Covenant of the League of Nations, and it underlies the UN Charter today (whereas the Geneva Protocol of 1924 on the peaceful resolution of disputes tended more towards solutions which in the last resort were ‘judicial’ in nature). In the strong words of RY Jennings: In the 1930s, and even more recently, settlement of disputes by judicial means was seen as almost a “good” of itself. It represented the “peaceful” means of dispute settlement as opposed to force; for it was simplistically supposed that wars were about “disputes”. Thus the achievement of compulsory settlement by an international court was even seen as an essential step in the abolition of war and the illegal use of force;625 The rule of law in a community requires ways of making two different types of decision, both needed and both complementing each other: the decisions made by applying rules of law; and decisions made by applying reasons of policy. The notion once taught by academic international lawyers, that a court of law can and should deal with any kind of dispute is, in this writer’s opinion, fundamentally erroneous. The organs of government must include, alongside courts, other organs for making policy decisions, and in respect of those policy decisions the function of the court of law should be confined to determining whether the political organ is acting intra vires its powers as defined by the applicable constitutional and administrative law.626

It is difficult to dispute the justice of this view. One may perhaps add that the opposing view has been taught in the past only by a limited number of academic international lawyers. As we have seen, with the coming of the League of Nations, the distinction (itself more political than legal) between justiciable and non-justiciable disputes was abandoned, at least in the sense that there is no dispute, however sensitive it may be, which cannot be technically reduced to legal terms and thus decided by a tribunal. This new tendency reflected the wish to try to resolve all international disputes, even the most sensitive ones, in order to avoid war. The great maxim of the League of Nations Covenant was therefore: ‘no lawful war (except in legitimate self-defence, which technically was not called “war”) without a prior attempt to resolve the dispute’.627 In the ultimate analysis, the abandonment of the distinction between legal and non-legal disputes thus took place in the context of the development of a jus contra bellum. So long as it was lawful to make war, so that war could be used as a means to resolve international disputes, there was no reason to abandon the rule that disputes over ‘non-vital’ questions could be settled by arbitration (or other peaceful means), whereas disputes over ‘vital interests’ were settled by negotiation or by war. Once the making of war was legally outlawed as   RY Jennings, ‘General Introduction’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 482, 35.   Ibid, 5. 627   For further details, see R Kolb, Ius contra bellum, Le droit international relatif au maintien de la paix, 2nd edn (Basle/Brussels, 2009) 37. Under the League of Nations Covenant, Member States were obliged, in relation to all disputes capable of leading to a breakdown, to select a means of peaceful settlement (Art 12). The attempt at peaceful resolution of certain disputes thus became compulsory, freedom of choice being confined to the preferred means, whether arbitrators, judges, or the mediation of the League Council or Assembly. Art 12 of the Covenant provided as follows: ‘The Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or to judicial setttlement, or to enquiry by the Council’. The UN Charter is more flexible in this regard (Art 33). It leaves the initiative to the parties, and does not impose an obligation to submit the dispute to a settlement procedure (the political organs of the UN can, however, seise themselves of disputes that might threaten the peace). This takes one back, partially, to the political criterion for defining disputes: the have a free choice as to how to formulate their dispute, and can freely choose the means of resolution that suits them, or even decide not to lay the dispute before any person or body. 625 626

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a solution for disputes, the peaceful branch of dispute settlement had perforce to inherit both types of dispute – the legal and the political, and to concern itself equally with both of them. Since war was no longer permissible as a solution for ‘big’ disputes, the only alternative was to send them, likewise, for peaceful resolution. It was nowhere laid down, however, that all these disputes, both the political and legal, must be sent to judges or arbitrators for resolution. The ‘vital interests’ clauses had to go, because otherwise they would stand foursquare in the path of all attempts at peaceful resolution, with war remaining the ugly last resort. Vital interests clauses did indeed go, replaced by relative criteria based on the type of claim, and leaving it to the parties to choose whether to involve a legal organ or a political one. The overriding rule was that the disputes have to be settled or adjusted peacefully. e)  The Application of Public International Law to Disputes It seems completely natural for an international tribunal, taking cognisance of disputes, to do so on the basis of international law. But, so far as international arbitration is concerned, this has not necessarily been the case. The basis of arbitration is the consent of the parties, which provides the arbitrator with the legal framework within which he operates. Traditionally, it was accepted that parties could bring before the arbitrator(s) all kinds of disputes, under whatever system of law they chose, and naturally they were careful to choose arbitrators who were well versed in the applicable law. On this kind of basis, Hague Convention (I) on the Pacific Settlement of Disputes stated, as late as 1907, that international arbitration was designed for the resolution of disputes between States ‘on the basis of respect for law’ (Article 37). There was no reference here to international law. After the PCIJ was created, it took over much of this traditional outlook. So, for example, Article 38 of the PCIJ Statute did not contain the words currently found in the ICJ Statute ‘whose function is to decide in accordance with international law such disputes as are submitted to it’. Moreover, Article 14 of the League of Nations Covenant, providing for the establishment of a permanent court of justice, provided in quite general terms that the Court would hear and determine ‘any dispute of an international character which the parties . . . submit to it’. Here too, no mention was made of the system of law to be applied. A dispute could be international simply because it arose between two States, without any reference either to its subject or to the applicable system of law. So we need to remember that the PCIJ embarked on its mission in the light of the existing arbitral traditions. A permanent international tribunal was a new concept, not yet sufficiently familiar for it to be easy for contemporaries to identify the differences between the new institutionalised international tribunal and the familiar forms of international arbitration. Nevertheless, the PCIJ began the process of eroding this seeming indifference to the legal system which it was the Court’s mission to apply;628 the process would in due course be 628   So, in the case on Certain German interests in Polish Upper-Silesia (1926, merits) PCIJ, Series A, no 7, 19, the Court declared that it was the organ of international law, saying: ‘From the standpoint of International Law and the Court which is its organ’. In the Brazilian Loans case (1929) PCIJ, Series A, no 21, 124, the Court stated that it was a ‘tribunal of international law’. And in the Serbian loans case (1929) PCIJ, Series A, no 20, 19, the Court stressed that ‘the true function of the Court is to decide disputes between States . . . on the basis of international law: Article 38 contains a clear indication to this effect’. In 1934, in the Oscar Chinn case, the German judge W Schücking took the view that the Court had been set up to be the ‘guardian of international law’ – PCIJ, Series A/B, no 63, 149. In 1935, in the case on the Danzig Legislative Decrees, Judge Anzilotti reinforced the same point: ‘It neither is nor can be disputed, however, that the Court has been created to administer international law’ – PCIJ, Series A/B, no 65, 61.



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further consolidated by the ICJ. Both were helped by their institutional character. The PCIJ was linked to the League, and worked within its institutional context, and it is the same for the ICJ as regards the UN. It was entirely natural for them to operate at the heart of the legal system for which the League was, and the UN now is, the vehicle, and indeed to go further, making themselves the champions of that legal system. In the time of the League, international law made very considerable strides in developing into an entirely freestanding legal system. The major lacunae in the old ‘classical’ system of international law were gradually filled in.629 It thus become much easier than it had been to decide disputes in public international law without involving other legal systems. And, naturally, it remained permissible for the parties to submit their disputes to suitable arbitrators of their own choosing, if they wanted a different system of law to be applied. The Court did not feel it was under any duty to compete with that kind of arbitration, particularly since its judges were rarely experts in anything other than public international law (and sometimes private international law). The Court takes cognisance of legal disputes in relation to which the claims of the parties are formulated on the basis of public international law. It is not enough that the disputing parties are States, as provided in Article 34, paragraph 1 of the Statute. Even States cannot ask the Court to apply just any system of law. In this respect, Article 38, paragraph 1 of the Statute imposes a limitation that is autonomous in nature: ‘The Court, whose function is to decide in accordance with international law such disputes as are submitted to it’ (italics added). In other words, the criterion ratione personae does not deal with the restriction ratione materiae. As already noted, the mentioned formulation in what is now Article 38, paragraph 1 did not appear in the PCIJ Statute. In those days, therefore, it was more debatable than it now is as to whether parties had the right, under Article 36, paragraph 1 (‘The jurisdiction of the Court comprises all cases which the parties refer to it’), to choose a legal system other than public international law. The PCIJ took a fairly liberal approach to this question. Even at that time, this did not seem to be possible on the basis of the optional clause in Article 36, paragraph 2 of the Statute since that provision limits the Court’s jurisdiction to legal disputes on listed issues of public international law. That explicit limitation did not, however, appear in Article 36, paragraph 1. This difference invited discussion on a possible choice of law under special agreements of jurisdiction or under jurisdiction clauses. What questions, then, ‘belong’ to public international law? The answers have evolved over time, and continue to do so, since the boundary between national jurisdiction and international regulation is constantly under modification. Also, parties are free, at any time, to insert any question they like into the corpus of international law applicable between them, regulating it by bilateral or plurilateral agreement. In this way we have on the one hand general international law, with universally recognised rules and principles (objektives Völkerrecht); and on the other hand, ‘particular’ international law, the content of which is infinitely varied because it depends on the wills of parties to treaties (gewillkürtes Völkerrecht). In the latter category of ‘particular’ international law, anything can be made subject to international law. In the context of ‘particular’ law, international law does not have a fixed subject or content. 629   A more recent period has been the subject of the following comment: ‘In fact, the legal position has undergone dramatic changes since the coming into force of the Statute of the PCIJ. The network of rules of international law has become so tight in the contemporary world, in particular through the inclusion of human rights in the body of international law, that there exists hardly any matter to date that would be totally removed from the realm of international law.’ Tomuschat, ‘Article 36’, above n 481, 599.

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Enlargement of the subject matter of international law applicable as between the parties to an international agreement. There is no doubting that the Court can take cognisance of questions of international commercial law, of private international law, and of other questions, provided that they are incorporated into and regulated by a treaty (Article 38, § 1(a)). A treaty can thus operate as a kind of ‘general transformer’: a subject not per se belonging to public international law can be, so to speak, ‘inserted’ into it by the simple wish of the contracting parties, who can in this way tie in whatever topics they want, both internationally and legally. A treaty is the mechanism par excellence of working such a transformation. In themselves, the questions so ‘tied in’ (for example, issues of private international law) remain external to public international law.630 Formally speaking, given that the parties have entered into an international treaty (that is into a source of public international law), the question governed by the treaty becomes a question of public international law, and so the Court can thus take cognisance of it. Just as, in municipal law, private law needs the support of public law because it has to be incorporated into law, but does not lose its own characteristics in the process, in the same way, at the international level, international private law or other questions sometimes need to be formally clothed in the garb of public international law, without altering their true nature and characteristics. The case on the Application of the 1902 Convention on the Guardianship of Minors (Netherlands v Sweden, 1958)631 provides a good example. The claim, which was based on Article 36, paragraph 2 of the Statute, concerned the guardianship measures applied to a minor by the Swedish authorities. The Netherlands disputed Sweden’s jurisdiction to take such steps in relation to a Netherlands citizen, saying that to do so contravened the 1902 Convention on the Guardianship of Minors, to which both States were parties. The dispute concerned a mixed question of private/public municipal law, and in particular a conflict between the Swedish and Netherlands systems of law. The dispute was not covered by public international law, and so it fell within the Court’s subject-matter jurisdiction only by virtue of the 1902 Convention, an applicable international treaty. One could legitimately ask whether the ICJ was really the most appropriate body to resolve disputes of this type, but, at least from the point of view of the Court’s subject-matter jurisdiction, there can be no doubt about the answer. For the reasons stated above, it is clear that the Court can take cognisance of the most varied and unexpected kinds of cases. Absolutely any subject can be transformed into applicable public international law by a treaty or any other type of legally relevant international undertaking. A special agreement is itself a treaty; by it, the parties to a dispute can, in the same way, fix upon the law the Court is to apply. Arbitral practice provides many important precedents for this, the most famous being the Alabama arbitration in 1874, between the UK and the USA. In an arbitration agreement of 8 May 1871, the two States established the famous three Washington rules, under which the tribunal was required to examine the facts of a possible violation of neutral rights by the UK.632 Similarly, in several Latin American   Thus, in international private law, a treaty is often used to harmonise the law on a multilateral basis.   ICJ Reports 1958, 55 et seq. 632   cf N Politis, La justice internationale (Paris, 1924) 36 et seq. See also, amongst the older literature, A Mérignhac, Traité théorique et pratique de l’arbitrage international (Paris, 1895) 63 et seq.; E Reale, L’arbitrage international – Le règlement judiciaire du conflit de l’Alabama (Lausanne, 1929); JH Ralston, International Arbitration, From Athens to Locarno (Stanford/London, 1929) 197 et seq.; and, more generally, JB Moore, History and Digest of the International Arbitrations to which the United States has been a Party, vol I (Washington, 1898) 495 et seq. For a more modern contribution, see the entry in the EPIL, with the bibliographical references there cited. 630 631



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boundary delimitation arbitrations, the uti possidetis juris concepts of 1810 or 1821 were fixed upon as the legal basis for the award.633 As already stated, a particular choice of law can only be made as a result of agreement between the parties. It presupposes a special agreement, or perhaps a forum prorogatum acceptance of jurisdiction. Conversely, it is impossible to impose a particular choice of law on the basis of a unilateral application: the main way to achieve one is via a special agreement. Legally, the parties’ agreement on a particular choice of law should be viewed as an integration of the sources of law indicated in Article 38 paragraph 1(a) – a ‘particular’ international convention ‘establishing rules expressly recognized by the contesting states’. The Court’s role is to apply that agreement, one made by the free choice of the parties. However, the question remains whether there is any limit to parties’ right to choose the applicable law. Are the parties permitted to place some limit on the undisputed right of the Court to administer international law as it thinks fit on the jura novit curia principle? Can they, for example, bind the Court not to apply this or that source of law, this or that rule of international customary law, or this or that multilateral convention? The question is of some delicacy and will be addressed in the next paragraph. And there is another question. Does the international character of the Court, given that its role is to decide disputes of international law, of itself imply some limitation on the parties’ right to choose rules that might in fact be entirely alien to international law, for example the internal laws of one State? Could the Court be called upon to decide a dispute of internal law, on the basis of internal law, if the two disputing States were to ask it to do so? That question will be addressed immediately after the next paragraph. Indications given by parties as to the applicable international law. It can happen that parties which have seised the Court, while not desiring to exclude the application of public international law, nevertheless wish to indicate certain rules of public international law that must be applied either exclusively or on a priority basis. In such a case they have the right to set out the special international rules they wish the Court to apply in an understanding (or special agreement) between themselves. There are a variety of reasons why States might wish to take this course – the feeling that the relevant international law contains too many lacunae, and/or that it is too uncertain about particular questions; or the wish to exclude general rules that normally apply, instead creating a lex specialis regime; the wish to have the case decided entirely or partially ex aequo et bono and so on. Similarly, the parties can equally well indicate to the Court that they wish to disapply, as regards their particular dispute, certain international rules (provided they are not rules of jus cogens) or certain categories of legal source, such as multilateral treaties or points of customary law. In this context, a case that readily springs to mind is the dispute concerning Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility, 1984)634 in which a reservation by the USA excluded the right of the Court to apply multilateral treaties unless all parties to the treaty that the decision was concerned with were also parties to the proceedings, or unless the USA itself expressly accepted the Court’s jurisdiction in that regard. Could provision be made in a special agreement for a limitation of this kind, which in this case was contained in the USA’s declaration under the optional clause?

633   Case on the Boundary between Colombia and Venezuela, (1891) RIAA, vol I, 292 et seq.; case on the Boundary between Guatemala and Honduras (1933) RIAA, vol II, 1309 et seq. etc. 634   ICJ Reports 1984, 421 et seq.

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Article 38, paragraph 1 lists the sources of law that the Court takes cognisance of. That list is not, however, an exhaustive one.635 At various different levels, the question arises as to what extent such sources, whether identified or not, can be ‘manipulated’. First, there are the sources listed in Article 38: can parties require the Court to disregard international conventions and/or general principles of law, in favour of customary law alone? Would the situation be different if the excluded conventions were not multilateral, but bilateral? And conversely, can parties exclude rules of customary law? What is the position, in that case, as regards customary law governing the interpretation of treaties, especially if the 1969 Vienna Convention on the Law of Treaties does not apply to the disputing States? Can the parties exclude the application of Article 38 paragraph 1(c), that is of the general principles of law recognised by civilised nations? Evidently, various permutations are possible here. For the main sources, one can itemise seven logically conceivable possibilities, even though not all of them are relevant in practical terms.636 Second, there are the sources not listed in Article 38. Can the parties require the Court to apply international lex mercatoria, to the extent that it is not the same as the general principles of law? Are they in fact free to devise an international legal confection of their own, applicable by virtue of their agreement, completely excluding the common ordinary rules of international law (subject always to the rules of jus cogens)? And can they turn simple factual usage into law, by prescribing as an applicable source of law what is in truth, merely a simple matter of fact? Third, what exactly is the scope of Article 38, paragraph 2 (the power of the Court to decide cases ex aequo et bono), in particular as regards extending the formal sources and materials underpinning its judgments? Can parties use Article 38, paragraph 2 to have the Court apply categories it would normally refuse to take cognisance in the context of Article 38, paragraph 1? Can ethics, politics or lex ferenda force their way into the citadel where the judges hear cases in international law, through the postern gate represented by a judgment in equity? The main treatment of this question is reserved to the chapter on judgments ex aequo et bono. There are relatively few commentaries on these questions by authoritative sources, perhaps because they are relatively marginal so far as ordinary judicial activities are concerned.637 Most of the commentators who have considered these questions have pronounced in favour of giving parties considerable latitude as to the choice of applicable international law.638 A few, however, have opposed the idea of giving parties any influence over the question. In their view, it is for the Court alone to determine what the law says, and to apply it.639   See, amongst many others, A Verdross and B Simma, Universelles Völkerrecht, 3rd edn (Berlin, 1984) 322 et

635

seq. 636   Treaties, custom, general principles alone (1, 2, 3); Treaties + Customary Law (4); Treaties + general principles (5); Customary law + general principles (6); none of these three sources (7). The simultaneous applicability of the three sources involves no derogation from Art 38 of the Statute. 637   As far as this author is aware, the only commentator who has developed a consequent commentary on this topic is CW Jenks, The Prospects of International Adjudication (London/New York, 1964) 604–16. 638   cf ibid, 604–605, 611–14; D Anzilotti, PCIJ, Series D, no 2, 58; Hudson, above n 505, 601–603. MO Hudson, International Tribunals: Past and Future (Washington, 1944) 106. A Miaja de la Muela, ‘Ius cogens y ius dispositivum en derecho internacional público’ in Essays L Legaz y Lacambra, vol II (Saragossa, 1960) 1140 accepts that parties can ask the Court to apply only treaties and customary law to the exclusion of general principles of law, to the extent that it is concerned with subsidiary principles. On the question in the context of arbitration, cf KS Carlston, The Process of International Arbitration (New York, 1946) 80–81, 140 et seq. 639   cf AG Roche, The Minquiers and Ecrehos Case (thesis, Geneva University, 1959) 145 et seq., 151; Fachiri, above n 356, 101: ‘In international arbitration as hitherto practised the parties themselves determined the legal



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Considered in general terms, the freedom of the parties cannot be allowed to be either absolute or completely non-existent. If the idea of the ‘happy medium’ applies anywhere, it is surely here. The Statute itself opens the way, through the workings of Article 38, paragraph 2, to the possibility of a decision ex aequo et bono, if the parties agree to it. In so doing, it expressly recognises that they can have an influence on the nature of the norms the Court is to apply in a particular case. Four main arguments have been put forward to justify the Court’s taking a liberal and flexible line with regard to choices of law freely made by the parties. The first two are arguments of principle, the third and fourth are essentially practical. (a) Article 38(1)(a) expressly applies to all treaties. It thus includes special agreements, made between the parties to a particular case and creating a lex specialis between them. A special agreement submitting to the Court’s jurisdiction over a dispute is in this category. It establishes, as Article 38(1)(a) puts it, law ‘expressly recognized by the contesting states’. Such an agreement binds the Court, including as to the choice of applicable law.640 (b) The second argument is based on the principle in maiore minus inest, or, in other words, is an a fortiori one. If it is compatible with the Court’s legal function to give judgment ex aequo et bono on request of the parties, it is difficult to see why the Court should not hear a case on the basis of special rules agreed by them.641 If you can give judgment in equity, you can, a fortiori, do so in accordance with the sources of law indicated. The only determinative legal requirement is the agreement of the parties. (c) The Court’s practice shows a flexibility approaching that of arbitral tribunals.642 Examples are to be found in the Minquiers and Ecrehos case (1953),643 the Serbian loans case (1929), Brazilian loans (1929),644 Oscar Chinn (1934)645 and even, despite the different bases of jurisdiction, the Norwegian loans case (1957)646 and Military and rules to be applied by the tribunal, these being generally defined in the compromis, but it is not competent for them to do so in proceedings before the Court.’ See also Bos, above n 483, 76–78; G Schwarzenberger, above n 175, 482 et seq., 485, 499 et seq., 581–82, 723; Separate Opinion of Judge van Eysinga, in the case of Oscar Chinn (1934) PCIJ, Series A/B, no 63, 135–36. 640   Jenks, above n 637, 605, 613. He writes, at 605: ‘The short answer to this objection is that the first of the four sources specified in Article 38 is “international conventions whether general or particular, establishing rules expressly recognized by the contesting States” and that an agreement referring a matter for adjudication on a defined basis is a particular convention within the meaning of this provision.’ cf also Hudson, above n 505, 601. In the case on the Boundary dispute (Burkina Faso v Mali), the Chamber of the Court took the view that certain attitudes and positions could, on analysis, be treated as going beyond simple elements of applicable law according to the ordinary sources set out in the Statute, only ‘if the two parties had requested it to do so, or had given such principles and rules a special place in the Special Agreement, as “rules expressly recognised by the contesting States” (Art 38 § 1 (a) of the Statute.’ (ICJ Reports 1986, 575). The Chamber then referred to the dictum of the full Court in the Continental shelf case (Tunisia/Libya): ‘The Court is bound . . . to have regard to all the legal sources specified in Article 38, paragraph 1, of the Statute of the Court . . . bound in accordance with paragraph 1 (a) . . . to apply the provisions of the Special Agreement’ (ICJ Reports 1982, 37, § 23). 641   Hudson, above n 505, 602; Jenks, above n 637, 611. 642   Jenks, above n 637, 605 et seq. 643   Ibid, 611–12. 644   PCIJ, Series A, no 20/21, 6–7, 123, on the application of municipal law. 645   PCIJ, Series A/B, no 63, 67, 79–81, concerning the Treaty of Saint-Germain-en-Laye (1919), which the special agreement affirmed to be applicable, whereas its relationship with the Berlin General Act of 1885, and thus its validity, gave rise to problems. cf also the Separate Opinion of Judge Van Eysinga, ibid, 135–36. 646   ICJ Reports 1957, 13. This case did not result from a compromis. However, the question of the role of municipal law did arise. Norway had raised a preliminary objection to admissibility, on the basis that the subject of the dispute, as defined by France, was a matter of internal law and not of international law.

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paramilitary activities in and against Nicaragua (1984/1986).647 In addition, in the case on Minority rights in Upper Silesia (Minority schools) (1928), the PCIJ stated: ‘The Court is always competent once the Parties’ have accepted its jurisdiction, since there is no dispute which States entitled to appear before the Court cannot refer to it.’648 (d) Finally, emphasis has been given to the fact that the freedom to fix the rules applicable to a dispute makes it more likely that cases will be brought before international courts. This is even more important in international law, where the uncertainties and lacunae in the law significantly reduce the foreseeability of the judicial outcome and thus the willingness of parties to take their cases to the Court. There is thus a perfectly serious argument that the right to adapt the applicable rules and thus reduce the uncertainty helps to develop the international judicial function (a quantitative benefit) and also the development, via the resulting jurisprudence, of substantive international law itself (a qualitative one).649 Although each of these four arguments obviously carries a certain weight, and is legitimate in itself, none of them can be considered absolutely decisive. (a) To say that a special agreement is an agreement in the sense of Article 38(1)(a) does not make it ipso facto compatible with the Statute. If that were all that were required, every agreement between parties would take pride of place in relation to the provisions of the Statute, and in consequence one would be forced to the (impossible) conclusion that the latter contains no imperative provisions. The real question is trying to address is how far the parties can make effective agreements in this regard.650 To answer that question, one has to consider criteria external to the agreement itself. In short, argument (a) begs the question. (b) Article 38, paragraph 2 of the Statute (judgment ex aequo et bono) empowers the Court to give this kind of judgment as an exception to the Court’s normal functions. The Court has yet to exercise this power.651 Its character is exceptional in that it involves the Court in a function which is not strictly ‘jurisdictional’ in the original sense of that word – ‘speaking the law’. This makes it difficult to find and apply analogies. The economy of this provision within the Statute is based on a clear separation between the classic judicial function (§ 1) and an equitable adjustment of interests as a result of agreement between the parties to seek this alternative kind of ruling (§ 2). Paragraph 2 was not intended to blur the distinction between these two functions, or to subject the judicial role of applying positive law to the insidious (if not fatal) attractions of making ad hoc adjustments to States’ rights. If (and to the extent) that parties were to resort to paragraph 2, they could indeed give very wide-ranging indications to the judges as to the sources of law that are to be applied. If they stuck to ordinary jurisdictional functions, paragraph 2 would not allow the parties almost unlimited freedom as to the applicable sources of law, and would at the same time endanger both the sound administration of justice and the Court’s own integrity. Quite apart from these considerations, the equity provided for in paragraph 2 does not in itself enable the parties   ICJ Reports 1984, 421 et seq. and ICJ Reports 1986, 92 et seq.   PCIJ, Series A, no 15, 22. 649   Jenks, above n 637, 612. 650   Ibid, 615 accepts that the parties’ agreement must be compatible with the Statute. Thus the whole question is reformulated in relation to the aspect which is truly decisive. 651   As to the insertion of this provision into the Statute, cf the separate opinion of Judge Weeramantry in the Jan Mayen case (Denmark v Norway) ICJ Reports 1993, 227 et seq. 647 648



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to ask the Court to decide on any basis whatever. No judge can ever decide a case as a matter of mere convenience or simply on the basis of what is thought opportune. Even when the judges administer equity, it remains necessary for them to be motivated by considerations of justice, of ‘loyalty, honesty and rationality’652 conceived of modo legislatoris and not as questions of political utility, practical prudence, ideological conviction, or other criteria of that kind. As the Court rightly put it in the case of the Continental shelf (Tunisia v Libya, 1982): ‘Equity as a legal concept is a direct emanation of the idea of justice.’653 The simple fact that a particular solution might seem desirable since a powerful State, a party to the case or otherwise interested in it, would be more likely to accept it, cannot be the basis of a judgment ex aequo et bono. Once again, the judges do not have an absolute discretion: their discretion must be exercised if not inter fauces juris, at least inter fauces justitiae. If an application were incompatible with these elementary requirements, the judges would have to declare it inadmissible even if it sought an ‘equitable’ decision under paragraph 2. This is a matter of the general admissibility of an application – in this case, an application on an equitable basis. (c) The Court’s practice will be analysed below. At this point it is sufficient to point out that the PCIJ’s statement in the Minority schools case (cited above) did not concern the Court’s subject-matter jurisdiction but rather the separate and distinct issue of consensual jurisdiction. This appears from the context, in which the Court sought to examine whether there was or was not, in the circumstances, a forum prorogatum. In addition, the sentence preceding the one cited above expressly stated that the Court’s jurisdiction depended on the will of the parties. It is therefore probable that the Court did not intend to suggest that the parties could submit to it disputes outside the scope of public international law, but only that they could, in any event, submit to it, by consent, any dispute within that scope. (d) Flexible access to the Court is certainly important and ought to be encouraged. The Statute leaves ample margin for it. Nevertheless, if the parties wish for an even greater degree of flexibility than an institutional body such as the ICJ can offer them, they can always set up an arbitral tribunal.654 There is nothing to be said for abolishing, or excessively fudging, the differences between courts and arbitral tribunals – it would do nothing for international law. It would therefore be undesirable to ‘arbitralise’ the Court in the interests of a judicial policy that would be excessively deferential to the sovereignty and desires of parties appearing before it only on an occasional basis. Before we attempt an answer to the questions raised, certain distinctions should be drawn. First, as a general matter, the choice of sources of law should be distinguished from the determination of the Court’s task. The latter question is particularly important in a system of consensual jurisdiction. Both aspects may be addressed in the compromis; and they may come together in the circumstances of a particular case; nevertheless they remain distinct, since they belong to different aspects of judicial activity: on the one hand what should the court apply; on the other, how it should be applied? It is also necessary to distinguish the choice of a source (or the general choice of the applicable law) from the definition of a rule, that is from provisions confined to the question of the applicable norm. One can exclude or modify the application of a source of law in its entirety, or one can provide for rules   MO Hudson, La Cour permanente de Justice internationale (Paris, 1936) 623 (our translation).   ICJ Reports 1982, 60, § 71. 654   This is also the argument of A Hammarskjöld in the Annuaire IDI, vol 33 (1927) 822. 652 653

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supplementing received international law where it contains lacunae. The scope and content of these categories is easier to grasp in light of the following examples. (1)  Determining the Court’s Task In this case, the applicable law – applied through the sources of law – does not come in for modification. The parties define and circumscribe an upstream matter – the dispute to be submitted to the court. They carefully set out the modalities for the application of the law to their particular dispute. Here they are concerned with formulating the application to the Court – the petitum. This correlation between the determination of the court’s task and the application of the resulting law is particularly visible in disputes about boundary limitation by land or sea.655 In the Grisbadarna case (1909), which was decided by an arbitral tribunal, a whole series of questions was carefully signposted, and in this way the parties established the conditions under which the law was to be applied. For example, the area to be delimited was not to be determined by the tribunal in such a way as to exclude islands, islets or reefs not permanently covered by water. The parties also renounced certain rights – for example, the mutual right to claim reimbursement of the expense of creating installations to assist navigation.656 The practice of the ICJ contains many examples of similar agreements between the parties. Thus, in the Minquiers and Ecrehos case (1953), the United Kingdom and France asked the Court to decide between them as to sovereignty over the islets and rocks concerned. A condominium or res nullius was thus excluded.657 There was a similar compromis in the case on Sovereignty over certain frontier land (Belgium v the Netherlands).658 In the Gulf of Maine case (1984), the parties asked the Chamber of the Court to draw a single line of delimitation separating both their continental shelves and their fisheries zones, although the rules of delimitation in the two cases were at the time not necessarily the same.659 The parties also defined, using a series of extremely precise criteria, the exact area in respect of which the Court was to draw the line.660 In this case, the defini655   cf JHW Verzijl, ‘Territorial Controversies before the International Court of Justice’ (1953/54) 1 NTIR 253 et seq.; H Mosler, ‘The Area of Justiciability: Some Cases of Agreed Delimitation in the Submission of Disputes to the International Court of Justice’ in Essays M Lachs (The Hague/Boston/Lancaster, 1984) 409 et seq. 656   RIAA, vol XI, 153, Art 2 of the compromis, and ibid, 154, Art 5 of the compromis. As to this case, cf K Strupp, Der Streitfall zwischen Schweden und Norwegen (Munich/Leipzig, 1914). 657   ICJ Reports 1953, 52. cf Roche, above n 639, 148 et seq. 658   ICJ Reports 1959, 211 et seq., and Roche, Minquiers, cited in the preceding footnote, at 170–71. On this rather singular case, cf A Cocâtre-Zilgien, ‘Affaire relative à la souveraineté sur certaines parcelles frontalières (Belgique c. Pays-Bas)’ (1959) 5 AFDI, 284 et seq. 659   ICJ Reports 1984, 263–64. cf also the Dissenting Opinion of the French Judge Gros, ibid, 362 et seq. The Judge thought the Court should consider, independently of the indications given by the parties, the question whether international law required or permitted the drawing of a single line for the continental shelf and the fisheries zone (ibid, 363). The Court took the view that international law did not prevent the drawing of such a line (ibid, 267, § 27). As to the evolution of single-line delimitation in the period concerned, see MD Evans, ‘Delimitation and the Common Maritime Boundary’ in BYIL, vol 64 (1993) 283 et seq. 660   ICJ Reports 1984, 263–64: ‘What is the course of the single maritime boundary that divides the continental shelf and fisheries zones of Canada and the United States of America, from a point in latitude 44°11’12” N, longitude 67°16’46” W to a point to be determined by the Chamber within an area bounded by straight lines connecting the following sets of geographical co-ordinates: latitude 40° N, longitude 65° W; latitude 42° N longitude 65° W?’ (Art 2(1) of the Special Agreement). The Chamber took the view that, in carrying out the task that had been entrusted to it, it should hold fast to the terms in which the Parties themselves had defined that task (ICJ Reports 1984, 266, § 23). The Chamber reserved the right to choose a different point of departure for the line or to draw it in such a way as to end at a point outside the triangle set out in the compromis, if the rules of international law required it (ibid, 266, § 22). For the Chamber, it was a decisive consideration that both international treaty and customary law recognised the agreement between the parties as a priority criterion for the purposes of maritime



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tion of the Court’s task restricted its freedom of action so much that a question arose as to whether the definition was actually compatible with the judicial function. The Court decided, however, that the relevant law was sufficiently malleable for it to do justice according to rule, without its powers being excessively limited by the restrictions contained in the parties’ agreement. (Judge A Gros expressed his doubts on this point.) The law of maritime delimitation refers first and foremost to agreement between the parties. This feature of the applicable substantive law allowed a substantial degree of flexibility right through into the Court’s proceedings and thus softened the rigor of the parties’ indications. In the case of the Boundary dispute (Burkina Faso v Mali, 1986) the parties’ agreement indicated in detail the disputed zone as to which the Chamber should delimit the boundary, as far as the tripoint between Burkina Faso, Mali and Niger.661 In the Land, island and maritime boundary dispute (El Salvador v Honduras, merits, 1992), Article 2, paragraph 1 of the compromis imposed on the Chamber of the Court a series of points of departure for the delimitation. The Chamber was only to delimit the six sectors left undecided in the General Peace Treaty of 30 October 1980.662 In all these cases, it was the manner in which the law was to be applied to the facts of the case that was laid down by the parties through the precise definition of their dispute. The relevant law and sources were not directly modified, either by way of derogation or addition. It is certainly true that the more the parties restrict the Court’s task in this kind of way, the greater will be the effect on the way the law operates. The Gulf of Maine case (cited above) is an example. One can imagine this situation reaching a point at which the Court concludes that, in consequence of excessive limitations imposed on it by the parties, it will simply not be in a position adequately to discharge its role of applying the law to the facts of the case. It may then refuse to decide the case, on grounds of general inadmissibility; sometimes, it might indeed have no alternative. (2)  Provisions Confined to the Applicable Norms One has to make a distinction between the Court’s task (above) and provisions that are confined to the applicable norms on which the parties may rely. In the latter case, the parties are not making any modification to the order in which the sources of law are to be applied, nor excluding one or more of them, nor introducing one or more new sources. Conscious of the dangers presented by uncertainties or lacunae in the international law relating to their dispute, the parties merely take the precaution of setting out the conditions subject to which the norms of general international law applicable to the case are to be applied, or of agreeing on a supplemental norm that will be valid for the purposes of the particular case. Thus in the arbitration on British Guiana,663 the parties decided to assess their territorial claims in light of a rule of acquisitive prescription based on 50 years’ delimitation (ibid). Judge Gros had greater reservations on this point: he took the view that the compromis, in so far as it concerned the starting point of the line, the triangle within which it was to end, and the provision for a single line (‘minor factual details’ and not ‘legal concepts’), could not be binding on the Chamber (ibid, 363). He pointed out that Applications had to be in conformity with the Statute and the Rules, as the Court itself had stated in the Nottebohm case: ‘[T]he seising of the Court is one thing, the administration of justice is another. The latter is governed by the Statute and the Rules’. (ibid, 364). 661   ICJ Reports 1986, 576–80. On the tripoint, cf H Thirlway, ‘The Law and Procedure of the International Court of Justice: Points of Substantive Law (Sovereignty/Territory, State Responsibility)’ in BYIL, vol 66 (1995) 19 et seq. 662   ICJ Reports 1992, 357, Art 2 of the compromis. 663   cf A Stuyt, Survey of International Arbitrations, 1794–1989, 3rd edn (Dordrecht/Boston/London, 1990) 212.

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uninterrupted peaceful possession, when there was (and is) no norm of international law fixing such a period. In other cases, the parties have confined themselves to stating (inter alia for the purpose of bringing them to the Court’s attention) norms which, on any view would be applicable anyway. This was done in relation to the uti possidetis iuris doctrine of 1821, referred to by the parties in the Land, island and maritime boundary dispute (El Salvador v Honduras, merits, 1992).664 In other cases, the parties may renounce the application of dispositive rules of international law, such as the rule requiring the prior exhaustion of internal remedies in cases concerning diplomatic protection.665 Such a renunciation is a matter of the State’s own discretion. It is thus binding on the Court except in very exceptional cases where it is done for reasons that amount to an abuse. Although the particular characteristics of international law – in which the sources of law, the sources of obligations and bilateral situations are all comingled – prevent any sharp separation between the category considered here and the general category of choice of law, nevertheless, there is clearly a difference of degree. (3)  Modification of Applicable Sources Finally, parties can also decide to exclude or modify the order of application of relevant sources of law, or even to include new ones. The Court’s practical experience of this is, however, quite limited. In the Right of Asylum case (1950), Colombia relied on the ‘American international law’ on asylum.666 But this was a case of a special custom, easy to integrate into the sources recognised by the Statute and capable of being applied as a lex specialis. The most interesting dispute of this kind, however, related not to a special agreement but to an application based under the optional clause in Article 36, paragraph 2 of the Statute. In the case on Military and paramilitary activities in and against Nicaragua (1984/1986), a reservation in the USA’s declaration accepting jurisdiction667 excluded the Court’s taking account of multilateral treaties if all the parties to the treaty that were concerned by the Court’s decision were not also parties to the case, unless the USA itself accepted the jurisdiction of the Court even in the absence of all such parties.668 This reservation was equivalent to making inapplicable, in this particular case, an important part of the sources mentioned in Article 38(1)(a) of the Statute, that is multilateral conventions, including such important treaties as the UN Charter itself. The Court took the view that the facts in issue could conveniently be judged solely on the basis of customary law, especially given the limited disparity between treaty law (in particular the UN Charter) and the relevant customary law.669 Perhaps one can conclude that, in the opposite case – that is if the judicial function had indeed been excessively mutilated – the Court would have had to refuse to decide the case. That could be a preferable result from the point of view of the   ICJ Reports 1992, 386 et seq.   See the Elettronica Sicula (ELSI) case, ICJ Reports 1989, 42. 666   ICJ Reports 1950, 269, 270–73; and ibid, 276 et seq. for the Court’s response: Dissenting Opinion of Judge Alvarez, ibid, 295 et seq.; and of Judge Caicedo Castilla, ibid, 370 et seq. 667   This reservation is sometimes called the ‘Vandenberg reservation’; cf ICJ Yearbook, (1984/1985) 100. 668   ICJ Reports 1984, 421–42. cf C Lang, L’affaire Nicaragua/Etats-Unis devant la Cour internationale de Justice (Paris, 1990) 103 et seq.; PM Eisemann, ‘L’arrêt de la Cour internationale de Justice du 26 novembre 1984 (Compétence et recevabilité) dans l’affaire des Activites militaires et paramilitaires au Nicaragua et contra celui-ci’ (1984) 30 AFDI, 381–82; PM Eisemann, ‘L’arrêt de la Cour internationale de Justice du 27 juin 1986 (fond) dans l’affaire des Activites militaires et paramilitaires au Nicaragua et contre celui-ci’ (1986) 32 AFDI, 165–68. 669   ICJ Reports 1986, 92 et seq., 96–97. 664 665



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State that has entered the reservation, which would then to some extent reap a reward from the stance it had adopted. In the case of the Continental shelf (Tunisia v Libya, 1982), Article 1 of the Special Agreement provided that the Court must take account, amongst other things, of ‘recent trends admitted at the Third Conference on the Law of the Sea’. In reality, what seems at first sight like a reference to a particular source of jus in fieri was probably no more than a ‘relevant circumstance’ that the Court must, according to the parties, take into account as a circumstance of fact, at the time of delimiting the boundary. The new accepted trends were said to be ‘factors in the interpretation of the existing rules’.670 The Court began by restating that it could not decide cases sub specie legis ferendae.671 It was, however, willing to accept that parties had the right to fix, by agreement between them, as binding on themselves, a rule that was still in statu nascendi: It would no doubt have been possible for the Parties to have identified in the Special Agreement certain specific developments in the law of the sea of this kind, and to have declared that in their bilateral relations in the particular case such rules should be binding as lex specialis. The Parties have not, however, been so specific.672

A special agreement of that kind would have been what we mean here by the expression ‘provisions confined to the applicable norms’ that is, a choice not of the source, but of the applicable rule. However, the parties had not wanted to go that far. What answers, then, can be given to these difficult questions relating to the choice of sources? One can say that the parties’ freedom is limited in three different ways. To the extent that a claim crosses one or other of the following three lines, the Court must declare it inadmissible or that it has no jurisdiction. In other cases, the Court can give effect to the parties’ choices. 1) Situations affecting third parties. Parties can decide the Court’s task and select the sources or norms to be applied as lex specialis, provided that the situation affects only their own legal interests. This is the case for territorial or maritime delimitations inter se, a prescriptive rule of 50 years, the renunciation of rules such as the exhaustion of internal remedies and so on. On the other hand, to the extent that the interests of third parties are affected by the Court’s task as so defined, or by the norms the parties have selected, and a fortiori in ‘objective’ legal situations (erga omnes), a special agreement cannot bind the Court. In all logic, even in delimitation cases, the Court must be and is careful to avoid pronouncing on areas claimed by third States.673 Similarly, when a multilateral 670   ICJ Reports 1982, 38, § 24. For H Mosler, ‘The Area of Justiciability: Some Cases of Agreed Delimitation in the Submission of Disputes to the International Court of Justice’ in Essays M Lachs, (The Hague/Boston/Lancaster, 1984) 418, it could concern a particular source applicable ‘as contractual law between the parties’. 671   ICJ Reports 1982, 37, § 23 (at the end). 672   Ibid, 38, § 24. 673   In the case on the Continental shelf (Libya v Malta), the area to be delimited by the Court included certain zones claimed by a third State, Italy. The Court rejected Italy’s request to intervene under Art 62 of the Statute, because its admission would have been equivalent to deciding at least partially on the disputes between Italy and one or both of the principal parties, and this without their consent (ICJ Reports 1984, 18 et seq.; cf the remarks – for present purposes more relevant ones – of the dissenting judges – Judges Oda, ibid, 90 et seq.; Ago, ibid, 115; Schwebel, ibid, 131 et seq.; Jennings, ibid, 148 et seq.). At the merits stage, however, the Court took Italy’s claims into account and excluded the areas affected by Italy’s claims from those it delimited, precisely because Italy had been unable to participate in the proceedings and so present its case. The result was that the area actually delimited between Libya and Malta was heavily truncated, which in many ways negated the bases of comparison, eg the proportionality between the lengths of the coastal facades and the maritime spaces allocated (cf ICJ Reports 1985, 24–28.) On this aspect, see the forceful criticisms in the Dissenting Opinion of Judge Schwebel, ibid, 172–78 and

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treaty is concerned, any judicial interpretation will affect the other States that are parties to the treaty. Two litigating States cannot then necessarily tie the Court’s interpretative activity by a special agreement designed to satisfy only their own particular interests.674 ‘Comprehensive’ Statutes, whether territorial (for example, relating to the Antarctic) or otherwise (for example, on disarmament or denuclearisation) are another category which is subject to the same limitations. 2) The requirements of the applicable substantive law. The parties’ special agreement must be compatible with the requirements of the substantive law applicable to the particular circumstances. We have seen how, in relation to maritime boundary delimitation, the Court referred to the role of a special agreement in the Gulf of Maine case. In other cases, the substantive law may exclude an agreement or reduce its role. Some rules of customary law do not allow the substitution for the normative regime of a lex specialis. This is, in particular, the case as regards the jus cogens of general international law. Similarly, States cannot ask the Court to recognise their ‘functional’ rights, or even sovereign rights, over areas of the High Seas or in space outside the atmosphere of the planet, even if the agreement between them relates exclusively to their rights inter se. The rule that such spaces must not be appropriated is an objective rule of international law, whose scope is, moreover, applicable erga omnes. The Court is in no position to ignore it, even at the request of the parties. 3) General requirements of the judicial function. The special agreement must also be compatible with the Court’s general judicial function. This brings us back to the heart of the question of general admissibility, and to the limitations imposed on the judges by the requirements of judicial integrity. This functional integrity is particularly important as regards parties’ choice of sources. The Court has to judge, on a case-by-case basis, whether the concrete request is compatible with the various judicial functions. This problem has arisen with particular force in connection with the application by the Court of municipal law, a question to which we will now turn. Application of a third legal system (especially of municipal law) by renvoi from an international legal rule? Can a dispute in internal law (or under the laws of a third legal system) become a dispute in international law simply by virtue of the fact that a rule of international law refers the question to municipal law or to the third system? Unlike in the case discussed above, where the material rule is textually incorporated into an international treaty, in this case the rule of international law simply refers the solution of a particular problem to the internal regulation of a system of law other than public international law. see also E Decaux, ‘L’arrêt de la Cour internationale de Justice dans l’affaire du plateau continental (Libye/Malte)’ (1985) 31 AFDI 297–99, 320; ED Brown, ‘The Libya/Malta Continental Shelf Case’ in Essays G Schwarzenberger (London, 1988) 4–7 (very hostile to the Court’s decision: ‘the Court’s position is most unconvincing’ ibid, 5). See also B Conforti, ‘L’arrêt de la Cour internationale de Justice dans l’affaire de la délimitation du plateau continental entre la Libye et Malte’ (1986) 90 RGDIP 334 et seq.; TL McDorman, ‘The Libya/Malta Case: Opposite States Confront the Court’ in CYIL, vol 24 (1986) 339–40. In the Boundary dispute (Burkina Faso v Mali), the Chamber of the Court did not refuse to indicate a tripoint (Niger/Mali/Burkina Faso) despite the fact that Niger was not a party. The Chamber considered that the protection of Art 59 of the Statute (relativity of the res judicata) was a sufficient protection for the interests of Niger (ICJ Reports 1986, 577). The Chamber took pains, however, to distinguish this terrestrial delimitation from maritime ones, in order to limit the scope of the case on the Continental shelf (Libya v Malta) cited above (ibid, 578). See also the case of the Land and maritime boundary between Cameroon and Nigeria (Preliminary Objections) ICJ Reports 1998, 309 et seq., §§ 74 et seq. and 322 et seq., §§ 112 et seq. 674   cf Jenks, above n 637, 615.



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Does the reference turn the rules in question into functional rules of public international law? Will the Court have subject-matter jurisdiction in such a case? The PCIJ took a relatively liberal view of this question.675 It considered that such a reference was sufficient to give it subject-matter jurisdiction. It has been possible to doubt whether the ICJ could take so liberal a view under modern conditions. The Court’s international function would at first sight seem to exclude the idea that the parties could in effect prescribe its being seised of a case exclusively on the basis of municipal law.676 However, various aspects of this question merit further comment. There is no doubt that an international court can apply internal law on an incidental basis, whether treating it as a question of fact677 that has legal consequences in international law;678 or as a lex materiae on a particular point (separate from the overall dispute), by renvoi 679 of international law;680 or even as a key component of a request for an advisory 675   Key cases in this regard are the Serbian loans and Brazilian loans cases of 1929 (PCIJ, Series A, nos 20–21). cf Hudson, above n 505, 622 et seq.; CW Jenks, ‘Interpretation and Application of Municipal Law by the Permanent Court of International Justice’ in BYIL, vol 19 (1938) 67 et seq. The Court is not, however, assumed to have knowledge of internal law under the principle jura novit curia; so far as the burden of proof is concerned, internal law is treated as a question of fact; the party relying on it has to prove it to the Court’s satisfaction (in special agreements the parties share the burden). See PCIJ, Series A, no 7, 19. 676   As to the application by the Court of internal law, cf Bos, above n 484, 123–30; M Mabrouk, Les exceptions de procédure devant les juridictions internationales (Paris, 1966) 40–41; Jenks, above n 637, 547 et seq.; Hudson, above n 505, 601 et seq., 622 et seq.; JC Witenberg, ‘La recevabilité des réclamations devant les juridictions internationales’ CCHAIL, vol 41, 1932-III, 77 et seq.; JC Witenberg, L’organisation judiciaire, la procédure et la sentence internationales (Paris, 1937) 162 et seq.; P de Vineuil, ‘La Cour permanente de Justice en 1929’ (1930) 11 RDILC 770 et seq., especially 776; V Bruns, ‘La Cour permanente de Justice internationale, son organisation et sa compétence’ CCHAIL, vol 62, 1937-IV, 632 et seq. See also K Marek, ‘Les rapports entre le droit international et le droit interne à la lumière de la jurisprudence de la Cour permanente de Justice internationale’ (1962) 66 RGDIP 260 et seq., especially 294–98; JA Stoll, L’application et l’interprétation du droit international par les juridictions internationales, (thesis, Geneva University, 1961) 49 et seq. (also Brussels, 1962). A Cassese, Il diritto interno nel processo internazionale (Padua, 1962). 677   In the context of its task in any particular case (as to the contextual question, see the dictum of the Court, cf Jenks, above n 637, 548) the PCIJ was able to treat internal law in a similar way to questions of fact: ‘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.’ (Case on Certain German interests in Polish Upper Silesia, PCIJ, Series A, no 7, 19). However, the Permanent Court, unlike its individual judges, never repeated this statement per curiam (as to other similar passages and the opinions of individual judges, cf Jenks, above n 637, 548 et seq.). The treating of internal law as similar to fact has also been criticised by leading commentators (cf ibid, 552–53; Marek, above n 676, 266–67). 678   Art 36, § 2(c) of the Statute de the Court. The fact constituting a violation of an international norm could be the adoption or application of a national law incompatible with international law. cf eg the Wimbledon case, PCIJ, Series A, no 1, 29; the case on the Treatment of Polish nationals at Danzig, PCIJ, Series A / B, no 44, p. 24; the Franco-Greek Lighthouse case (1934) PCIJ, Series A/B, no 62, 22–24; the case on Peter Pázmány University, PCIJ, Series A/B, no 61, 228 et seq.; or the Elettronica Sicula (ELSI) case, ICJ Reports 1989, 23 et seq. The Court has also sometimes had to interpret a Statute which at one and the same time represents a source of national and of international law: see the Memel case (1932) PCIJ, Series A/B, no 49, 336. 679   This is a case of a renvoi in the formal sense, the norm of international law referring the determination of a condition for its application to a provision of internal law. As to the distinction between a renvoi in the formal sense and renvoi in the material sense, cf F Capotorti, ‘Cours général de droit international public’ CCHAIL, vol 248, 1994-IV, 221–22. 680   This is the case, for example, as regards certain aspects of the law of limited companies which international law can take into account. ‘In this field [of diplomatic protection of limited companies] international law is called upon to recognize institutions of municipal law that have an important and extensive role . . . This [has meant that] international law has had to recognize the corporate entity as an institution created by States in a domain essentially within their domestic jurisdiction. This in turn requires that, whenever legal issues arise concerning the rights of States with regard to the treatment of companies and shareholders, as to which rights international law has not established its own rules, it has to refer to the relevant rules of municipal law’ (Barcelona Traction case [merits], ICJ Reports, 1970, 33–34, § 38). The Court then explained that it was not referring to the internal law of any particular State, but to the general principles informing the generality of such municipal laws (ibid, 37, § 50).

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opinion.681 However, in such cases the internal law is not an autonomous source of law governing the Court’s activity.682 Thus, in the case of Certain German interests in Polish Upper Silesia (1926), the Court took cognisance of internal law on an incidental basis.683 Seen in that light, the role of municipal law in international judicial activity cannot be overestimated. Almost every international dispute touches, in some way, on internal law. As early as 1964, Professor Jenks drew up a list of such questions, classified by subjects;684 in respect of the period since 1964, a number of additional entries can be included.685 Equally, it is accepted that a dispute, which is originally an issue of internal law, can be transformed, in the context of diplomatic protection, into an international one, even if the diplomatic protection dispute has, in substance, very much the same characteristics as the original one.686 Here a dispute becomes an inter-State dispute as a result of the violation of a rule of international law. What is interesting in the present context is the degree to which parties to disputes can, by agreement, modify the directing role of international law in relation to internal law, over and above the situations just mentioned. In other words, are there any limits ratione materiae that require the Court to refuse to take cognisance of certain disputes as a function of the applicable law? As already mentioned, the PCIJ was very liberal and accommodating in this regard. In the case on Minority rights in Upper Silesia (Minority schools, 1928), the PCIJ seems, on a rapid reading of its dicta, to have rejected any idea of material limitations on its power to decide cases: ‘The Court’s jurisdiction depends on the will of the Parties. The Court is always competent once the latter have accepted its jurisdiction, since there is no dispute which States entitled to appear before the Court cannot refer to it.’687 The Court then cited Article 36, paragraph 1 of the Statute, the only exception it made On this point, see the critical comments of Thirlway, above n 557, 35–37). On the subject of renvoi from international law to the internal law of a particular State, in connection with limited liability companies, see the case of AS Diallo (ICJ, 2010) § 104. The same points arise as regards the rules on the conferring of nationality: cf the Nottebohm case, ICJ Reports 1955, 20, 23. 681   Thus, in the case on the Danzig Legislative Decrees (1935), the PCIJ was asked to consider whether certain of Danzig’s decrees were compatible with its Constitution. This question of internal law was internationalised by virtue of the fact that the Constitution of Danzig was guaranteed by the League of Nations – see PCIJ, Series A/B, no 65. 682   In this sense, see also Jenks, above n 637, 553, 603; Hudson, above n 638, 104; Witenberg, ‘La recevabilité’, above n 676, 79–80, pushes the monist approach further. See generally Cassese, above n 676, 17 et seq., 64 et seq; and Stoll, above n 676, 73 et seq. 683   PCIJ, Series A, no 7, 19: ‘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 . . . 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 to Germany under the Geneva Convention.’ 684   He examined the following categories: (1) Internal law and respect for international obligations; (2) Internal law and State succession; (3) Extraterritorial effects of internal legislation; (4) Rule on the exhaustion of internal recourse in cases concerning diplomatic protection; (5) Denial of justice; (6) Rights arising under international contracts entered into by States; (7) The nationality rule in relation to diplomatic protection; (8) Nationality in the determination of enemy property; (9) Municipal law, legislation, administrative acts, as evidence of title to territory; and (10) Municipal law as evidence of a determined intention, relevant to an international legal act; etc. (cf Jenks, above, n 637, 555–87). 685   For example, the role of municipal law in relation to treaties (authorisation, ratification etc), in relation to international customary law (internal legal acts as a material element), unilateral legal acts (internal proclamations etc), land and maritime delimitation (legislation and associated acts), the law of war (declaration of blockade, rules on the organisation of neutrality), the law on limited companies etc. 686   cf the Mavrommatis case (1924) PCIJ, Series A, no 2, 12; the case on the Peter Pázmány University (1933) PCIJ, Series A/B, no 61, 221; and the Serbian loans case (1929) PCIJ, Series A, no 20, 18. 687   PCIJ, Series A, no 15, 22.



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from its general remarks being cases ‘in which the dispute which States might desire to refer to the Court would fall within the exclusive jurisdiction reserved to some other authority’.688 Here, then, the Court in effect for some commentators seemed dissolve jurisdiction ratione materiae into jurisdiction ratione personae. Once two States decide to submit any dispute of whatever kind to the Court, it will have a sufficiently international element for the Court to take cognisance of it. As a result of the nature of the parties, the dispute becomes eo ipso an international one.689 The accessory element (the subject matter) follows the principal element (the subject of law – a State). Paradoxically, therefore, the strict insistence of the Court that only States can appear before it as parties has seemingly had the parallel effect of diluting the characteristics required of the actual disputes. This is close to allowing a very wide choice of law or of jus gentium. This precedent, then, although it seems to encompass the choice of an internal law as the applicable one, goes beyond it. When it came to advisory opinions, the PCIJ took a more restrained line. In the case on the Danzig Legislative Decrees (1935) it carefully indicated, in the context of the question put to it, the international dimension of the interpretation of Danzig’s Constitution.690 Judge Anzilotti, in one of his celebrated dissenting opinions, expressed the view that the Court ought to refuse to give the opinion sought, precisely because, in his view, an international element was missing and the Court had been asked to give an opinion on a question of municipal law.691 The essential judgments on the point we are concerned with were given in relation to the Serbian and Brazilian loans case (1929).692 France had reached a special agreement with Serbia and Brazil to submit to the Court the question whether their two governments had the right to service previously issued bonds with the national paper currency notes or whether the obligation could be discharged only by paying in gold or in foreign currency.693 The answer depended on the contracts between the two governments and their foreign bondholders. The contracts were subject to the internal laws of Serbia and Brazil. Although the application of the contracts might have given rise to an international claim on the basis of diplomatic protection claims (provided, of course, that a breach of international law could be established), the question actually put to the Court under the special agreement sought only a clarification of the two governments’ legal situations under their respective internal laws.694 France was thus asking the Court to decide a question of municipal law,   Ibid, 23.   This seems to be the opinion of Bruns, above n 347, 616. cf also Witenberg, ‘La recevabilité’, above n 676, 81; and Mabrouk, Exceptions, above n 676, 41. In the opinion of Stoll, above n 676, 51, one must distinguish between an international dispute decided on the basis of a rule of internal law, and an internal dispute decided on the basis of international law. The former was the situation in the case on the Serbian and Brazilian loans, the latter in the case on the Danzig Legislative Decrees (PCIJ, Series A/B, no 20/1 and Series A/B, no 65). 690   PCIJ, Series A/B, no 65, 50. cf Jenks, above n 637, 579–81. The relevant international element was the League of Nations guarantee of the integrity of Danzig’s constitution. On this case, see also Stoll, above n 675, 63 et seq. 691   PCIJ, Series A/B, no 65, 63–64. 692   cf on this case, in the context which interests us here, Marek, above n 676, 294–98; Bos, above n 484, 125–30; Bruns, above n 347, 614–16, 633–37; Stoll, above n 676, 52–62; Cassese, above n 676, 41–43; de Vineuil, above n 676, 770 et seq.; DI Evrigenis, La Cour internationale de Justice et le droit interne – Problèmes des éléments latents de la règle de droit international (Thessalonika, 1958) 24–30; R Genet, ‘L’affaire des Emprunts serbes et brésiliens devant la Cour permanente de justice internationale et les principes du droit international’ (1929) 36 RGDIP 688–94. 693   PCIJ, Series A, no 20, 6–7; PCIJ, Series A, no 21, 94. 694   The Court put it as follows: ‘Accordingly, in all cases with which the Court has so far had to deal and in which private interests have been involved, the State’s claim has been based upon an alleged breach of an international agreement. The controversy submitted to the Court in the present case, on the contrary, solely relates to the existence and extent of certain obligations which the Serbian State is alleged to have assumed in respect of the 688 689

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basing itself exclusively on that law. Was it possible, in these circumstances, for the Court to conclude that it had subject-matter jurisdiction – ratione materiae? The Court found that it did have subject-matter jurisdiction. It got there by reasoning which is often described as ‘subtle’,695 or even ‘ingenious’,696 and in doing so went to the limits of permissible deference to parties’ wishes regarding the choice of applicable law. The Court began with a consideration as to its jurisdiction ratione personae. Certainly, it said, the dispute was initially a question of municipal law, an issue between the foreign bondholders and the government that had issued the debt. But, by taking up the bondholders’ cause, without any objection from the issuing governments,697 the French government had transformed the dispute from an internal one into an international one, that is, into an inter-State dispute.698 The simple fact that the two governments were in dispute would have been enough to produce this result. It was not necessary for one of them to rely on an international legal obligation or some other basis of public international law. This was the foundation for the Court’s permissive conclusions on the applicable law. The subject-matter issue (jurisdiction ratione materiae) was completely merged into the personal one (jurisdiction ratione personae).699 So, when the Court came to deal with subject-matter holders of certain loans. It therefore is exclusively concerned with relations between the borrowing State and private persons, that is to say, relations which are, in themselves, within the domain of municipal law.’ (PCIJ, Series A, no 20, 17–18). Cassese, above n 676, 45–46 thinks that even in this case the application of municipal law was incidental to a question of international law (the question of an unlawful international fact). This view misinterprets the express terms of the special agreement and the text of the Court’s judgment. The fact that two States are in dispute does not eo ipso mean that international law must be applied to their dispute. 695   R Genet, ‘L’affaire des Emprunts serbes et brésiliens devant la Cour permanente de justice internationale et les principes du droit international’ (1929) 36 RGDIP, 689; at 693 the Court’s reasoning is described as ‘tendentious’. 696   de Vineuil, above n 676, 775. 697   On this aspect, cf Bruns, above n 347, 615–16: ‘The Court confined itself to recognising that the French Government had substituted itself for the French holders of the Serbian debt, and that, in view of the diplomatic negotiations that ensued, there was a dispute between the two Governments, one which, as regarded the merits, was the same as the dispute between the Serbian Government and the French bondholders. The Court did not go into the question whether the French Government had the right to intervene with the Serbian Government in favour of the French bondholders, i.e. into the question whether there was a legal basis for the French Government to act as their protector. Without some such basis, the intervention lacked any proper legal foundation; the French Government’s legal proceedings were equally lacking in any proper legal foundation.’ (our translation) The Court was able to avoid enquiring into this aspect of things since there had been no objection to its doing so from the Serbian and Brazilian governments. 698   The Court put it as follows: ‘It does however have to be noted that the question whether the manner in which the Serb-Croat-Slovene Government is conducting the service of its loans is in accordance with the obligations accepted by it, is no longer merely the subject of a dispute between that Government and its creditors. When the holders of the Serbian loans, believing that their rights were being disregarded, appealed to the French Government, the latter intervened on their behalf with the Serb-Croat-Slovene Government. Diplomatic negotiations followed, but whatever took place during these negotiations, it is common ground that the Serb-CroatSlovene Government did not reject the French governmental intervention, instead contending that the service of the loans was being effected by it in full conformity with its obligations under the contracts. This view was not, however, shared by the Government of the French Republic. From that point on there was a difference of opinion between the two Governments, one which, though fundamentally identical with the previously-existing dispute between the Serb-Croat-Slovene Government and its creditors, is distinct from it; for this second dispute is between the Government of the Serb-Croat-Slovene Kingdom and the Government of the French Republic, the latter acting in the exercise of its right to protect its nationals. It is this difference of opinion between the two Governments, not the dispute between the Serb-Croat-Slovene Government and the French holders of the loans, which is submitted by the Special Agreement to the Court.’ (PCIJ, Series A, no 20, 18). 699   Marek, above n 676, 295 insists on the fact that, despite the diplomatic protection element, the subject of the dispute remained entirely internal. For her, it was not a question of assessing the conformity to international law of a question of municipal law, or of a fact arising internally. She therefore thought that the Court’s reasoning was based on a confusion between the subject of the dispute and the applicable law (ibid, 295–96). The subject of the



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question, and to consider whether the subject matter of the dispute, which related exclusively to municipal law, disqualified it from having jurisdiction,700 it accepted the primacy of the special agreement and thus in effect the freedom of the parties to choose the applicable law.701 The PCIJ’s argument shows that in this way it gave priority to Article 36, paragraph 1, over Article 38 of the Statute, and even, to a certain extent, over Article 14 of the League of Nations Covenant.702 It took the view that, so far as the applicable law was concerned, there was no limit to the free choice of the parties. As already noted, the underlying reason was the predominance given to the personal aspect (‘when the two States have agreed to have recourse to the Court, the latter’s duty to exercise its jurisdiction cannot be affected . . . by the circumstances that the dispute relates to a question of municipal law’) over any subjectmatter limitation. The rules attributing jurisdiction (Article 36) prevailed over those relating to the sources or applicable law (Article 38). In this way the will of the parties and agreement between them (Article 36) were extended in an unmeasured way and to the detriment of the rules lying at the heart of the Court’s functional identity (Article 38). Various consequences flowed from this jurisprudence: (1) States can, by special agreement, dispute can depend on questions of internal law, but must be assessed on the basis of a rule of international law. That led her to conclude, as does the body of the present text, that the applicable law (and the limits to the choice of it) do not arise from the nature of the dispute and/or the subjects-of-law (States) which are involved in it. Rather, the limits of the Court’s jurisdiction ratione materiae are an independent and objective question, which the Court was over-ready to assess in the light of other concepts. 700   PCIJ, Series A, no 20, 18, below. 701   The Court’s argument on this point was very involved, so we reproduce it here: ‘From a general point of view, it must be admitted that the true function of the Court is to decide disputes between States or Members of the League of Nations on the basis of international law: Article 38 of the Statute contains a clear indication to this effect. But it would be scarcely accurate to say that only questions of international law may form the subject of a decision of the Court. It should be recalled in this respect that paragraph 2 of Article 36 of the Statute provides that States may recognize as compulsory the jurisdiction of the Court in legal disputes concerning “the existence of any fact which, if established, would constitute the breach of an international obligation”. And Art 13 of the Covenant includes disputes of the sort above mentioned among those which are generally suitable for submission to arbitration or judicial settlement. Clearly, amongst others, disputes concerning pure matters of fact are contemplated, for the States concerned may agree that the facts to be established would constitute a breach of an international obligation; it is unnecessary to add that the facts the existence of which the Court has to establish may be of any kind. Is the case altered if the point at issue between two States is the question which must be decided by application of the municipal law of a particular country? There are cases – as the Court has already had occasion to observe in Judgment No 8 – in which an action cannot be brought before an international tribunal when there are legal remedies still open to the individuals concerned. But apart from cases of this kind, and when the two States have agreed to have recourse to the Court, the latter’s duty to exercise its jurisdiction cannot be affected, in the absence of a clause in the Statute on the subject, by the circumstances that the dispute relates to a question of municipal law rather than to a pure matter of fact. The very wide wording of the first paragraph of Article 36, which refers especially to cases which – like the present proceedings – are brought before the Court by Special Agreement, supports this conclusion. Article 38 of the Statute cannot be regarded as excluding the possibility of the Court’s dealing with disputes which do not require the application of international law, seeing that the Statute itself expressly provides for this possibility. All that can be said is that cases in which the Court must apply international law will, no doubt, be the more frequent, for it is international law which governs relations between those who may be subject to the Court’s jurisdiction’ (PCIJ, Series A, no 20, 19–20). On the other hand, the definition of the dispute in the special agreement entailed the exclusion of certain truly inter-State aspects from the field in which the Court exercised its jurisdiction (ibid, 20). 702   Art 14 of the Covenant reads as follows: ‘The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it.’ (italics added) For a commentary on this provision, see JM Yepes and P Da Silva, Commentaire théorique et pratique du Pacte de la Société des Nations, vol II (Paris, 1935) 120 et seq.; J Ray, Commentaire du Pacte de la Société des Nations (Paris, 1930) 432 et seq.; W Schücking and H Wehberg, Die Satzung des Völkerbundes, 2nd edn (Berlin, 1924) 535 et seq. Art 38 of the Statute includes only sources of international law in the law applicable by the Court.

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submit to the Court any question, of whatsoever nature;703 (2) in cases submitted to the Court by special agreement, a question of jurisdiction ratione materiae can never arise.704 This excessively liberal jurisprudence has been attacked by a considerable number of leading authorities.705 Judges Pessôa706 and Novakovitch,707 in their respective dissenting opinions in the Loans cases, were also flatly opposed to it. Such criticisms are thoughtful, and rest on solid foundations. Some of them deal with the internal elements of the Court’s reasoning, and need not be considered further here.708 Others, every bit as weighty, are eminently practical, but likewise do not go to the heart of the present question.709 Some, 703   Disputes of a legal or non-legal nature; disputes of pure fact; disputes of international law or about questions of internal law, etc. Disputes of municipal law would be classified as not referable to the ‘proper’ function of the Court, that ‘proper’ function being to decide disputes according to international law. cf PCIJ, Series A, no 20, 19, and Bos, above n 484, 128, fn 1. 704   cf Bruns, above n 347, 636–37; de Vineuil, above n 676, 776. 705   cf eg Bos, above n 484, 123 et seq.; Bruns, above n 347, 632–33, 634, 637; Marek, above n 676, 295–98; Stoll, above n 676, 56–62; R. Genet, ‘L’affaire des Emprunts serbes et brésiliens devant la Cour permanente de justice internationale et les principes du droit international’ (1929) 36 RGDIP 693–94. A small number of commentators seem to approve of the jurisprudence: S Rosenne, The Law and Practice of the International Court, 2nd edn (Dordrecht/Boston/Lancaster, 1985) 302–303, fn 3 (though his approval is limited by the strong qualification ‘if necessary and in accordance with international law’). 706   PCIJ, Series A, no 20, 62. He thought the Court had no jurisdiction other than to decide disputes of an international nature. ‘[Under Articles 13 and 14 of the League Covenant and the Statute] . . . for the Court to have jurisdiction, it is not enough that the parties should be States or Members of the League of Nations (Articles 34 and 36 of the Statute); it is also essential that the case, in itself, should be “of an international character” and should be governed by international law . . . Now, the judgment itself admits that the Franco-Serbian dispute “is exclusively concerned with relations between the borrowing State and private persons, that is to say, relations which are, in themselves, within the domain of municipal law . . .”. It therefore seems to me clear that the Court is not competent to deal with this dispute.’ (italics in the original) But a dispute in municipal law can very well be submitted to the Court if and to the extent that it forms an element of an international claim (cf Bos, above n 484, 128). What matters is that the interpretation of municipal law is incidental to the application of a rule of international law. The necessary distinction must be made between the subject of the dispute and the international law. 707   PCIJ, Series A, no 20, 76 et seq. His opinion echoes that of Judge Pessôa. 708   Various commentators criticise the way in which the Court tended to assimilate municipal law to a question of fact and to the precise categorisation of that fact. It has thus been said that Art 36(2)(c) of the Statute, which provides that States can recognise as compulsory the jurisdiction of the Court in relation to ‘the existence of any fact which, if established, would constitute a breach of an international obligation’, a provision invoked by the Court to justify its extensive application of municipal law, does not apply to just any fact whatever, as the Court seemed to be suggesting. Quite the contrary: Art 36(2)(c) would establish a link between the fact and a rule of international law “breach of an international obligation” (cf Marek, above n 676, 296; Bruns, above n 347, 634–35). The application of municipal law remains, on this view, confined within the system of Art 36, § 2, incidental to a question of international law, the disputed facts having to be relevant for the purpose of establishing whether or not there has been a breach of international law (cf Bos, above n 484, 125, 128; Bruns, above n 347, 634–35). It has also been said that the transference of a power provided for under the optional clause régime (Art 36(2) (c) of the Statute) to a jurisdiction established by special agreement as contemplated by Art 36(1) of the Statute, gives rise to various concerns (cf Stoll, above n 676, 56–57; Dissenting Opinion of Judge Pessôa, PCIJ, Series A, no 20, 64). Art 36, §2 of the Statute would be limitative, as a lex specialis. The opposing argument seems more convincing: if the Court can take cognisance of a fact under the stricter regime of the optional clause (involving a series of unilateral declarations), then, a fortiori, it must be able to take cognisance of it under a special agreement or as a result of direct agreement between the parties. 709   As a result of the way international tribunals are constituted, their jurisdictions tend to exhibit a marked degree of precarity, eg as to how and by whom they can be seised of cases, the wishes of the parties etc, and this precarity has usually been invoked in support of arguments designed to make the Court more attractive to disputing States through the development of flexible and accommodating functional rules. It is indeed perfectly possible to take the view that, if States think it will be helpful to submit to the Court a dispute of municipal law in which the municipal law in question will be the only applicable law, the Court has no valid reason, and would indeed be failing in its duty, if it did not contribute to the peaceful resolution of the dispute by entertaining the case. However, the objective for which the Court was set up (to contribute to the better solution of disputes) ought not to be used to override the proper analysis of its functions, particularly in an unlimited way. The Court is neither a diplomatic body, nor a municipal tribunal, nor a joint arbitral tribunal. It has been justly said that the Court cannot be called upon to decide questions of private law for which it has neither the necessary expertise nor the neces-



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however, touch on the constitutional limits imposed by the Statute on parties’ wishes. It is these exogynous arguments which are central to the issue of subject-matter jurisdiction. They may be summarised as follows. The Court is a judicial institution of an international nature. It follows that, on a first-hand basis, it can apply only public international law. It can examine municipal law only to the extent that this is incidental to the application of, or a decision about, a rule of international law. The Court’s international function thus draws the line between those disputes in relation to which the subject matter falls within the Court’s competence, and those that do not.710 That line is a mandatory one – that is a matter of imperative law.711 Translated into technical terms, the argument might run as follows: Article 36, paragraph 1 of the Statute deals with disputes that the parties can submit to the Court (which can be international or municipal), and Article 38 of the Statute provides for the applicable law (only international law). Article 36 does not prevail in an unlimited manner over Article 38, each of these two provisions having its own respective sphere of application.712 Thus Article 36 can not be used as the basis for a choice of law incompatible with the essential tenor of Article 38, the latter being the sole sedes materiae of the applicable law. Article 36 cannot be used to deprive Article 38 of any practical effect, in effect to kill it. This is all the more obvious nowadays when Article 38, paragraph 1 of the ICJ Statute contains the words ‘whose function is to decide in accordance with international law such disputes as are submitted to it’. It thus follows that Article 38 limits the scope of Article 36 by not allowing parties to choose any other applicable law than international law. This balance between Articles 36 and 38 seems more appropriate than the excessive privilege that might otherwise be given to parties’ free choice. In conclusion, then, the better view seems to be that, despite the old Court’s own jurisprudence (which anyway is both limited713 and not entirely uniform714) it does not in fact have the right to decide disputes directly on the basis of municipal law. It is reasonable to wonder whether that view is not in truth excessively formalistic. If the parties transcribe into a treaty between them all the applicable rules of municipal law, then in terms of subject matter the case would be subject to public international law through the application of Article 38 paragraph (1)(a) of the Statute, that is as a matter of applying the rules laid down in a treaty.715 But if the parties want to save ink, and instead of transcribing sary material support; that it cannot act in substitution for municipal tribunals; and that in cases where a dispute can be resolved by a lower tribunal which has its own proper jurisdiction, there is real benefit in the Court’s declining to exercise jurisdiction (cf Genet, above n 705, 693–94). 710   cf in this sense Bos, above n 484, 123 et seq.; Bruns, above n 347, 632 et seq.; Marek, above n 676, 296–97; Stoll, above n 676, 57, 62; Genet, above n 705, 689, 693–94; D Negulesco, ‘La jurisprudence de la Cour permanente de Justice internationale’ (1926) 33 RGDIP 200. 711   cf Stoll, above n 676, 57: ‘[T]his obligation [to apply international law] is a general obligation which the Court may not ever neglect’ (italics added: our translation). The author then continues precisely by evoking a special agreement between the parties. 712   cf Bos, above n 484, 127–28; Bruns, above n 347, 632-633 ; Stoll, above n 676, 57; Genet, above n 705, 693–94. 713   The only real precedent is to be found in the very particular circumstances of the Serbian loans and Brazilian loans cases cited above, and this over a period of almost 80 years’ activity by the two Courts. 714   cf the advisory opinion on the Danzig Legislative Decrees, cited above. 715   JA Stoll takes the view that Art 36, §2 does not derogate from Art 38, but that parties can, in conformity with Art 38(1)(a), create an international rule that can be applied by the Court. That rule can be the result of a transformation of certain rules of municipal law, which become international by virtue of being contained in the agreement (Stoll, above n 676, 57 et seq.). This argument does not, however, touch on the hypothesis we are considering here, but rather on the one considered previously: the agreement contains the rules themselves, and does not confine itself to a cross-reference or renvoi to municipal law.

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the municipal rules into the treaty, confine themselves to a cross-reference, the dispute would not be international. Is that a rational or reasonable result? Moreover, the treaty in question need not necessarily be distinct from the special agreement by which the parties agree to send their dispute to the Court, since such a special agreement will itself be an international convention within the meaning of Article 38 paragraph (1)(a) of the Statute. At the same time, it is accepted that a specific renvoi to municipal law will not prejudice the Court’s subject-matter jurisdiction. The Court can even take cognisance of the internal rule to which the treaty cross-refers, as a question of fact or an incidental matter. Up to what point, then, is the renvoi sufficiently limited, and from what point does it involve an illicit wish to incorporate a whole body of municipal law into international law by means of a simple cross-reference? Whether we like it or not, questions of gradation and degree arise, and they can be tricky to decide. It would be wise to accept that the question is a really difficult one, in relation to which, from a certain point of view, the Court is right to demonstrate flexibility. On the other hand, it is difficult to justify the idea of an international tribunal involving itself in the minute interpretation of municipal law as the point of reference for the entire dispute, since such a tribunal really does lack the necessary knowledge and skills. Also, it simply is not its function to take such a general cognisance of municipal law. The formal incorporation of certain rules into a treaty goes a sufficient way to detaching them from the system of municipal law and giving them an autonomous international status, so that the two situations envisaged above are not entirely comparable. Probably the question ought then to be resolved on a case-by-case basis, taking account of the international nature of the Court’s role and functions. If the Court is called upon to decide a dispute which in terms of subject matter is purely and simply a question of municipal law, as was the position in the Loans cases (above), there is room for doubt as to whether the Court has the necessary subjectmatter jurisdiction. Some commentators have therefore doubted whether, in modern conditions, the ICJ would follow the PCIJ and take cognisance of such a case.716 Others, by contrast, emphasise the progressive character of the PCIJ’s Loans jurisprudence, which points in the direction of human rights, international commercial arbitration, the international rights of investors and so on.717 In the final analysis, the Court would have, if such a situation arose, to handle the matter very deftly, but at the same time without ignoring the functional limits of its international judicial mission. Legal disputes on ‘questions of international law’ as referred according to the list in Article 36, paragraph 2 of the Statute. Article 36, paragraph 2 of the Statute provides that the Court’s jurisdiction extends to all disputes of a legal nature relating to: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d)  the nature or extent of the reparation to be made for the breach of an international obligation.

These provisions, contained as they are in paragraph 2, are also valid for paragraph 1, because they give expression to the general limits of the Court’s subject-matter jurisdic  See, eg A Pellet, ‘Article 38’ in Zimmermann, Tomuschat and Oellers-Frahm, above 482, 719–20.   O Spiermann, ‘Historical Introduction’ in Zimmermann, Tomuschat and Oellers-Frahm, above n 482, 55.

716 717



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tion. The drafting of the Statute can certainly not be said to be clear on this point, but the jurisprudence of the Court (except for the Loans cases of 1929 discussed above) at least makes it possible to state that a legal dispute over international law is always necessary before the Court can take cognisance of it. Since the adoption of the list under letters (a) to (d), a great deal of ink has flowed on the subject. The list was taken from Article 13, paragraph 2 of the League of Nations Covenant718 which was intended to indicate which disputes were justiciable, that is which were capable of being resolved by judicial rather than political means. The words ‘judicial settlement’ in that Article 13, paragraph 2 were not included when it was first drafted, and were only added when it was clear that a permanent court was to be created. This provision in its turn was very largely inspired by the late nineteenth-century trend towards international arbitration. At that period, three different types of dispute were generally considered arbitrable (justiciable): (1) disputes as to the interpretation and application of treaties; (2) disputes about the rules and principles of international law; and (3) disputes about the reparation due for a violation of international law when a State admitted to it.719 Items (a) to (d) consolidated this general line of already well-established thinking. Nowadays the list is of little practical importance. The Court’s jurisprudence is fairly clear in the way it delimits the field of the legal questions it will take cognisance of. And anyway, the drafting of the list was never very precise from a legal point of view.720 The four different categories are each very widely drafted, and there are important areas of overlap, so that what distinguishes each from its neighbours is often far from clear. It has often been said, for example, that item (b), in placing ‘any question of international law’ within the Court’s subject-matter jurisdiction, effectively encompasses all the other items on the list. Suffice it to say that the Court can take cognisance of any dispute which the claimant or the parties clothe in the garb of a claim based on public international law.721 A certain amount of supplemental information about the interpretation of this list is provided in the following lines. Today they are of only historical interest. The first point to note is that the list, in its original version as contained in Article 13, paragraph 2 of the League of Nations Covenant, was not exhaustive, as is shown by the words ‘among those which are generally suitable’ or the opening words in the French language text, ‘parmi ceux qui sont généralement susceptibles’. The Covenant left to a future time the job of working out a doctrine on justiciable disputes in the sense of this provision. In Article 36, paragraph 2 of the Statute, the list seems to have become exhaustive: the Court can deal with ‘all or any of the classes of legal disputes concerning . . .’; the omission of the word ‘among’ or in the French language text the word ‘parmi’ seems to indicate that the PCIJ/ICJ can take cognisance only of disputes of the kinds listed.722 There is an apparent distinction here between institutionalised justice and arbitration. An arbitral tribunal 718   ‘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 any reparation to be made for any such breach, are declared to be amongst those which are generally suitable for submission to arbitration or judicial settlement.’ As to this provision, see J Ray, Commentaire du Pacte de la Société des Nations (Paris, 1930) 423 et seq. See also Schücking and Wehberg, above n 702, 525–26. 719   Hudson, above n 505, 458. 720   See the criticism by B Graf von Stauffenberg, ‘Die Zuständigkeit des Ständigen Internationalen Gerichtshofs für die sogenannten politischen Streitigkeiten’ in Deutsche Juristenzeitung (1934) 1,325. 721   See Tomuschat, ‘Article 36’, above n 482, 631; Kelsen, above n 348, 482. See, however, the narrower interpretation of Hudson, reached with a view to safeguarding the valuable effects of other provisions: Hudson, above n 505, 461. 722   This is not, however, certain: see Hudson, above n 505, 459.

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can take cognisance of the four classes of disputes mentioned in Article 13, paragraph 2 of the Covenant, amongst others; institutional justice – the PCIJ and ICJ – by contrast, can take cognisance only of disputes falling within the four categories. In Article 13 of the Covenant, the only sense of the formula was to give a general indication of what disputes were capable of being submitted to arbitration or judicial settlement. By contrast, Article 36, paragraph 2 of the Statute makes the applicability of one of these four classes an actual condition of the Court’s subject-matter jurisdiction. However, item (b) is so widely drafted that its only effect, in referring to ‘any question of international law’, is to indicate that the institution is an organ of international law and cannot, in principle, apply anything else. Next is the question to what extent the list makes it possible to establish ‘automatically’, in any given case, whether the dispute is a legal one. In other words, is it sufficient to argue that a dispute falls within one of the four categories to establish automatically that this is a dispute of international law?723 The only possible response is the negative:724 it is also necessary that the parties’ claims be anchored in international law. The very words of paragraph 2 of Article 36 show this: the parties can recognise as compulsory the jurisdiction of the Court ‘in all legal disputes concerning . . .’. It is not enough that a dispute should have such a subject: it must also be a legal dispute.725 Thus the revision or modification of a rule of international law could be covered by item (b) – ‘any question of international law’ – since the words are perhaps sufficiently wide-ranging. We know, however, that, as a general rule, such a dispute is not a ‘legal dispute’, and that the Court would refuse to entertain it. The listed categories were designed only to indicate the types of disputes that were among those that were ‘generally suitable’ (italics added) for arbitration or judicial settlement, as stated in the second paragraph Article 13 of the Covenant (but these words were omitted in Article 36 of the Statute). Justiciability was not considered automatic just because one was in the general domain covered by the items in the list. On the contrary, one had also to examine the subjective aspect, that is the exact terrain on which the parties sought to place their dispute. It is also worth mentioning that neither the PCIJ or the ICJ have ever given much weight to parties’ arguments to the effect that a particular dispute does not fall within one of the categories in list (a) to (d), so that it can therefore not be heard by the Court. Generally the Court has ignored such arguments,726 approaching the question more generally, from the perspectives of subject-matter jurisdiction (disputes in international law) and consensual jurisdiction. Finally, there is the point that Article 36, paragraph 2 of the PCIJ Statute provided that States could recognise the jurisdiction of the Court ‘in all or any of the classes of legal disputes concerning . . .’. It was thus possible to accept the Court’s jurisdiction with regard to one or more of items (a) to (d). This phrase was deleted in 1945, and the ICJ Statute confines itself to stating that the parties can recognise the compulsory jurisdiction of the Court ‘in all legal disputes concerning . . .’. It does, however, remain possible, for example, by   cf Hudson, ibid, 456.   Contra, Hudson, ibid, who argues that legal security would be better served by identifying the legal dispute as to which the Court has jurisdiction within the four categories in items (a) to (d) on the list ‘[D]efiniteness is desirable with reference to the jurisdiction which States may accept, and this interpretation would avoid controversy about the vague and uncertain term legal’ (italics in the original). It is not clear that our position differs from that of this eminent American internationalist. Probably he subliminally accepts the same limitations as regards disputes within the four categories. 725   Kelsen, above n 348, 480–81. 726   See, eg the Norwegian loans case, ICJ Reports 1957, 21; or the Aerial incident case (Israel v Bulgaria) ICJ Reports 1959, 133. 723 724



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means of reservations accompanying optional declarations, to make particular exceptions to the Court’s subject-matter jurisdiction. From the legal perspective, these limitations are then elements of the Court’s consensual jurisdiction rather than limits to its general subject-matter jurisdiction. Turning now to the implications of each item on the list at the time the Statute was adopted, we find the following: Item (a), ‘the interpretation of a treaty’, was considered to apply to any agreement, whether informal or embodied in a formal treaty.727 In addition, the application or execution of treaties was considered to be covered by the word ‘interpretation’, on the basis that the application of a treaty presupposes a given interpretation of it. Similarly, the question of a treaty’s actual existence is so closely bound up with its interpretation (and must even be treated as a question which inevitably takes priority) that it too was generally considered to be covered by item (a). Item (b), ‘any question of international law’, was at that time understood in a more restricted sense than it is now.728 Similarly to the classification in Article 38, paragraph 1 of the Statute, item (a) was directed towards treaties and conventions, and item (b) to general and customary international law. A ‘question of international law’ was thus understood as a question arising from the existence, interpretation or application of a principle or rule of general international law. Item (c), ‘the existence of any fact which, if established, would constitute a breach of an international obligation’, extends the Court’s jurisdiction to the application of rules of international law to particular facts, on the basis of whether or not they are in conformity with the rule.729 Here we face legal syllogism. The facts of which the Court takes cognisance are connected to legal rules: consequently one can say that they are not just any facts, they are ‘legal facts’. In this way, the dispute remains a legal one and does not become a scientific, political, historical or other type of dispute. The expression ‘breach’ extends to every kind of failure or non-performance, and the word ‘obligation’ comprises both those that arise from agreement, and those arising from customary law. In this way, item (c) extends the disputes indicated in items (a) and (b) into the world of fact. Just as the question of a breach of an obligation contained in an agreement is an implicit element in that agreement’s application, and just as the application of agreements is also covered by item (a), whereas the application of customary law obligations is covered by item (b), it is possible to see the contents of item (c) as already included, as it were by anticipation, in items (a) and (b). Item (d), ‘the nature or extent of the reparation to be made for the breach of an international obligation’, can be considered to be elements of the application and execution of an obligation, and thus already likewise covered by items (a) and (b). The Court itself has taken the view that a jurisdiction clause on the ‘interpretation or application’ of a convention includes the consequences of a breach, (itself including the quantum of the reparations).730 The Court has an inherent jurisdiction to decide in addition whether there   See Hudson, above n 505, 460–61.   Ibid, 461. 729   Ibid, 461–63. 730   Case of the Factory at Chorzów (Claim for reparations, Jurisdiction, 1927) PCIJ, Series A, no 8, 21–25, especially at 25; case on Military and paramilitary activities in and against Nicaragua (merits) ICJ Reports 1986, 142; case on the Application of the Convention for the prevention and punishment of the crime of genocide (Preliminary Objections, Bosnia-Herzegovina v Yugoslavia) ICJ Reports 1996-I, 616, § 32; case of La Grand, ICJ Reports 2001, 485, § 48. 727 728

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has been a violation of an undertaking (if there is disagreement about that), before moving on to assess the quantum of reparation. In this way, item (d) might be considered to be also covered by item (c).

f) Judgment ex aequo et bono731 Article 38, paragraph 2 of the Statute provides that: ‘This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.’ Here, the Court’s subject-matter jurisdiction is effectively enlarged into the role of a kind of amiable compositeur,732 capable of deciding on the basis of equity rather than in strict law, but only if both parties ask it to do so. This is the only case in which claims not based on law (and in this sense disputes which are partially political, or at least partly non-legal, as regards the rules which are to be applied) can be brought before the Court in a way that gives it the capacity to entertain them. For the judges, this is a very exceptional kind of jurisdiction. It was conceded to the Court because of the particularities of the international legal system. The first such particularity lies in the fact, of which the draftsmen of the Statute were well aware, that the international law of the time contained lacunae on a number of subjects and points, some of them highly important ones. Among other things, the ‘reserved domain’ of States’ or domestic jurisdiction was still, at that stage, much more extensive than it is today.733 To plug these many and various gaps, the draftsmen made provision on the one hand for recourse to be had to the general principles of law (by analogy with municipal law)734 and, on the other, if the parties agreed, for recourse to an equity going beyond strict law, as provided in paragraph 2 of Article 38. Secondly, the process of creating new international law is slow, uncertain and laborious. Because of State sovereignty, international law cannot be created or modified by majority decisions. The underlying reality is that every State possesses the liberum veto, and can refuse to consent to any agreement creating a new regime in any field of international law. The inevitable consequence is that old and often anachronistic rules and regimes of international law can last far longer than is ideal, consequently provoking international tensions. It might well be insufficient to judge such cases entirely on the basis of strict law. The judges, normally bound by the limits of positive law, cannot make the legislative modifications necessary to appease the tensions resulting from a legal regime which one of the parties considers inequitable while the other clings to it because it is in its interest to do so. The draftsmen of the Statute thought that disputing States, con731   On this question, see among others, K Strupp, ‘Le droit du juge international de statuer selon l’équité’ CCHAIL, vol 33, 1930-III, 351 et seq.; M Habicht, ‘Le pouvoir du juge international de statuer ex aequo et bono’ CCHAIL, vol 49, 1934-III, 277 et seq.; U Scheuner, ‘Decisions ex aequo et bono by International Courts and Arbitral Tribunals’ in Essays M Domke (The Hague, 1967) 275 et seq. See also Hudson, above n 505, 618–21; Pellet, ‘Article 38’ above n 716, 730–35. See also the separate Opinion of Judge Weeramantry, in the case on the Maritime delimitation in the region between Greenland and Jan Mayen (Denmark v Norway) ICJ Reports 1993, 227 et seq. 732  An amiable compositeur is an arbitrator empowered to decide a dispute by taking into account extra-judicial considerations. ‘Amiable composition’ has thus been defined as a ‘[f]orm of arbitration in which the arbitrator, called an amiable compositeur, is authorised by the agreement of the parties to provide a solution on the basis of arguments based on expediency’: cf Salmon, above n 479, 62 (our translation). 733   The predominant view on the subject of the domain reserved to domestic jurisdiction is that it consists of the fields of activity in which the State or States enjoy a discretionary freedom, unfettered by rules of international law that would require them to adopt a particular attitude. 734   Art 38(1)(c).



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fronted with such a situation, might be permitted, if they had the wisdom to understand that a strict-law solution would be inadequate,735 to give the Court a special mandate to decide the dispute in a binding way on the basis of wider principles, imbued with the spirit of equity. Article 38, paragraph 2 of the Statute was drafted under the inspiration of a long practice of agreements to arbitrate and treaties for the resolution of disputes, providing that the arbitrators would have the capacity to decide the dispute on the basis of equity.736 The 1920 Committee of Jurists responsible for drawing up the Statute had not made provision for decisions in equity.737 The problem was only raised at the Sub-committee of the Third Commission of the League of Nations’ First Assembly, by the French delegate H Fromageot. Fromageot took up the ideas which Albert de Lapradelle had spoken of at the Committee of Jurists, that is that it could sometimes be too reductive, even unjust, to limit the Court entirely to the application of strict law. The two French jurists placed themselves in the tradition of Article 7, paragraph 2 of the Hague Convention XII of 1907 on the establishment of an International Prize Court (which had never actually passed from the projected stage to the sphere of positive law).738 Fromageot’s proposal was connected in a straight line to the 1907 formula and was inserted into what is today paragraph 1 of Article 38. Perhaps it risked creating confusion between the Court’s legal and equitable functions by not making a clearer distinction between the two – that at least was the view of Nicolas Politis, who preferred a clear separation between them. As a result of an intervention by Politis, judgment in equity was inserted into a separate paragraph 2 of Article 38, which also provided that the Court could not venture into these extra-legal waters without the agreement of the parties. In order to form an appreciation of the Court’s politico-legal function in such cases, one needs to start with a clear idea of the meaning of equity in legal theory. What, then, is equity? 735   As a highly aware statesman has put the point: ‘But in politics, the resolution of conflicts always involves the acceptance of compromise. The practical realities of life are so complicated, so fluid, so changeable, so diverse in their manifestations, that no simple law, rule or directive that might take account of an interest, as it were in passing, or might decide a particular dispute, would be capable of embracing all its details, of taking into consideration all the relevant interests or of satisfying all the individuals, parties, classes, peoples and States concerned. In other words, a compromise is generally an essay at parcelling out a certain kind of injustice in equal shares. The two sides have to put up with equal degrees of sacrifice. This is achieved by means of an imperfect compromise, never by an equal sharing and limitation of justice, and never by the complete protection of both sides’ interests . . . No organised body which has to carry forward its policies, day in day out, has ever found any other solution for this situation, nor will any other solution ever be found’; ‘Before applying a moral, political, social or economic principle, one has first to answer the fundamental question, namely this: must we, in daily life, apply a principle in a sequential and uncompromising way, even at the risk of making the main objective underlying the principle unobtainable and reducing the principle itself to an absurdity? Or ought we rather to take account of opposing positions and limit its application so that at least the principle itself is not endangered?’ E Beneš, La démocratie, aujourd’hui et demain (Neuchâtel, 1944) 130–31, 131–32 (our translation). By recognising these inherent limitations in practical life, the parties can sometimes come to the view that they should not insist on the naked application of strict law, because it is too reductive in its objective, however worthy that objective, to achieve legal security. On the other hand, to open up the process to all the other factors mentioned by Dr. Beneš carries the risk of a slide towards the political aspects, or towards decisions made on an equitable basis. 736   cf Hudson, above n 505, 618–19. On these agreements, see Stuyt, above n 663. 737   On the legislative history of Article 38, § 2, see the brief remarks of Pellet, ‘Article 38’ above n 716, 730. See also the separate Opinion of Judge Weeramantry, in the Jan Mayen case (Denmark v Norway) ICJ Reports 1993, 227 et seq. 738   The text reads as follows: ‘In the absence of such provisions, the Court shall apply the rules of international law. If no generally recognized rule exists, the Court shall give judgment in accordance with the general principles of justice and equity.’

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The concept of equity. Equity’s original foundation lies in equality – what is equal is equitable – aequitas est aequalitas. In what was already a slightly more refined version, equity came to be based on the idea of ‘justice for the individual case’, as distinct from the general ‘justice’ produced by treating all cases equally in accordance with generalised abstract legal rules.739 In that context, the difficult questions related to the interaction between the abstract rules and their concrete application. In western thinking, law is essentially a corpus of abstract general rules. The rules are general by reference to the subjects they are designed to deal with – each rule covers a whole category of subjects without treating them individually. The abstract quality of the rule enables it to be detached from specific facts and circumstances and so capable of application to unlimited numbers of cases. The facts to which the legal rule is to be applied are described in sufficiently broad and conceptual terms that the rule can govern a great number of concrete circumstances. The rule itself is formulated in such a way as to avoid mentioning detailed facts. If it were to do so, it would restrict its own field of application by tying itself down to contingent facts, attaching itself to circumstances that are of no real interest or relevance, or which are out of alignment with the developing society to which it is supposed to apply. For that reason, legal rules, in so far as they refer to facts at all, prefer to make reference to ‘typical’ rather than ‘particular’ ones. It has long been realised that the individualisation of legal rules, when pushed to excess, simply leads to their destruction.740 Legal norms, therefore, cannot exhibit the infinite density characteristic of the world of facts. They cannot be so designed as to offer us a rule appropriate for all the manifold specific circumstances that may arise in the life of a given society. Instead, they have to be aimed at a kind of social mean – they are directed at ‘normality’ – bringing into play the idea of the ‘typical’ or ‘ideal’ case. Fundamentally, what this achieves is to simplify things. It is then left to those administering the law to apply it in an adequate way to the actual circumstances of particular cases. In other words, legal norms are incomplete models. They are designed to provide for ‘normal’ cases, and their formulation makes no attempt to cover, by means of a description of ‘legal facts’, the rich canvass of actual circumstances in the life of society. It is only in this way, by paying this price, that a system of rules can exist, as a kind of guarantee of equal treatment, promoting legal certainty and with the capability of moulding the behaviour of those that are subject to it. Numerous questions then arise. Cannot this reducing of reality to rules lead to distortions? What if the legislator has carried out the work of reduction in an unskilful or even ham-fisted way? What if he has simply overlooked important facts that needed to be catered for? What if he exaggerates the necessary degree of abstraction, to the point where various kinds of situation become subject to a rule that is really not appropriate for them, that is what if it is a rule that produces legal consequences which are in some way inadequate or unsuitable? Are there not times when the developing life of society shows that the legislature’s work remains incomplete and that there are now a whole series of new and unforeseen circumstances to which the rule that has been laid down are simply ill-adapted? Is it not clear that in certain cases the ‘abstractive’ aspect of legislation leaves it too schematic, rigid, and poorly calibrated to deal effectively with the objective the legislature has in mind? And if so, is it not necessary for those administering and applying the law to give 739   See below in the text. A rule’s ‘generality’ is concerned with its application ratione personae to an entire class of individuals – never to a particular person, and its ‘abstraction’ is concerned with its application ratione materiae to an entire class of cases defined in terms of general criteria – never for the particular case. 740   de Visscher, above n 576, 170.



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some thought, given the need to do justice in particular cases, to the idea of (so-to-speak) swimming at least a short distance back upstream, so as in some measure to reconnect the norm to the individual circumstances by adapting it slightly to the diverse circumstances of real life – a process which necessarily involves a certain reduction in the seemingly excessive level of abstraction? On the basis of ideas such as these, Aristotle, in his Nicomachean Ethics, developed a theory of equity which remains unequalled in its sharp perceptions. He starts by putting the question of the relationship between justice and equity. Are they not often confused? He says at the outset that between these two notions, there is no difference that is either specific or essential. The only difference is in the degree of generality with which the particular question is addressed.741 Equity is a form of justice, but it is individualised.742 Artistotle’s argument proceeds by four stages. 1) A general rule cannot cover each individual case because it has perforce to govern a ‘typical’ case.743 The need to do that is not a defect, it is simply inevitable: ‘the error is neither in the law, nor in the legislator, but derives from the nature of things’.744 A rule is one thing, a description of each real-life case quite another – not a rule, but a recitation. 2) A judge’s duty is to apply the abstract general rule to the concrete case before him. There will always be a gulf between the rule and the case, sometimes a wide one, sometimes not. The two exist at different levels, and do not have the same level of density.745 3) The result is that sometimes the application of the abstract general rule does not enable the judge to resolve the question in a satisfactory way so that his sense of justice is satisfied. In analytical terms, this means that the facts of the particular case are deviating to a considerable degree, both in themselves and in their context, from the ‘typical’ situation that the legislator had in mind when formulating the rule. Intellectual honesty requires one to accept that an a-typical case of this kind falls outside the field to which the legislative provision applies. In effect, the provision could not and did not cover the actual case. Aristotle says so clearly: here, we have a lacuna (tò elleijqen).746 4) A judge’s duty is to decide the disputes before him. He cannot refuse to do so just because he is aware of obscurities in the law. He has therefore to fill up the lacunae left by the legislator, and can do that only by playing the part of a secondary legislator himself, that is by deciding according to his view of what the formal legislator would have decided in light of the particular circumstances of the case (modo legislatoris).747 The judge has not only to decide the case, he has to decide on the basis of principles and rules which, by their nature and in the way they are formulated, are capable of binding future judges. His decision must therefore be based on an approach that has certain generalised features. That is the tribute that equity must pay to the concept of legal certainty and to the fundamental idea of equality before the law.  Aristotle, Nicomachean Ethics, Book V, ch X, 1137 at 30.   Ibid, 1137, 10. 743   Ibid, 1137, 15: ‘The reason is that every law (nomos) is a general one in that, in any particular case, it is not possible to express with sufficient exactness when speaking in general terms. . . . The law addresses itself only to ordinary situations, without however being unaware of its insufficiency.’ 744  Ibid. 745   Ibid, 1137, 15 and 25, where Aristotle speaks of the indeterminate character of law. 746   Ibid, 1137, 20: ‘When the law prescribes for the generality of cases, and when subsequently something happens which goes against those general provisions, it is normal to fill in the gap left by the legislator’. 747   Ibid, 1137, 20: ‘[A]s the legislator would himself have done, if he had been present and as he would have laid down in the law itself, if he had been aware of the particular case.’ 741 742

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An abstract and general rule of strict law (or ius strictum) is thus Aristotle’s invariable starting point. If, when applied to a particular case, the rule produces a manifestly unjust (that is inequitable) result, it is necessary, in accordance with the legislator’s implicit mandate, to correct the rule by individualising it for the purposes of the particular case, and thus to create a new and more detailed rule, one more appropriate to the particular situation.748 So, for Aristotle, the problem of equity contra legem, of equity in opposition to law, simply does not arise. In his view, an interpretation inspired by the concepts of justice, adaptation and practicability disengages such a-typical cases from the application of a general abstract rule of law. One may thus say there is a lacuna, which needs to be filled because otherwise there is no law applicable to the case. In such circumstances it is logically impossible to decide ‘against’ the law. This teleogically-inspired conception of the law enabled Aristotle to give preference to equity (individualised justice) over ‘legality’ (abstract justice and legal certainty).749 On this model, equity is generally conceived as a corrective: it corrects the unjust rigours of general norms, failings which the legislator, if he been more far-seeing, would have avoided. Since Aristotle’s day, plenty of thought has been devoted to the concept of equity. But no essentially new theory of it has been devised. In one way or another, the question always returns to the tension between the abstraction and individualisation of rules, which takes one straight back to Aristotle’s arguments. However, in modern legal theory and practice, the three categories of equity (intra, praeter and contra legem) are not exactly aligned to the concepts described by Aristotle. There is a very substantial body of jurisprudence on the subject of equity showing widespread agreement in distinguishing between three different aspects of it: equity intra legem; equity praeter legem; and equity contra legem.750 Equity intra or infra legem is concerned with the interpretation of rules. Here, equity is not the source of a decision made independently of the relevant rule of law. On the contrary, it is inherent in that rule. It enables the judge to choose, from among several equally possible interpretations, the one which seems most appropriate to the doing of justice in the individual case.751 In this conception, equity is a kind of prod or goad, a criterion for making choices during the process of interpretation. In applying this kind equity, the judge can consider the interpretational possibilities in light of their practical consequences. As the ICJ put it in the case of the Frontier dispute (Burkina Faso v Mali, 1986): ‘[Equity infra legem is] that form of equity which constitutes a method of interpretation of the law in force, and is one of its attributes.’752 Equity praeter legem is used to fill lacunae.753 Where the law provides no rule, or if the rule is not clear, the court can, according to the circumstances of the case, apply equitable   Ibid, 1137, 25, iustitia corrigens, dikaion diorthotikón.   Ibid, 1137, 10. cf J Evans, ‘Aristotle’s Theory of Equity’ in Essays RS Summers (Berlin, 1994) 225 et seq. This doctrine was taken up by the Aristotelian St Thomas Aquinas in his Summa theologica, II, II, 80, 5, and II, II, 120, 1-2. The word ‘epieikia’ derives from ‘to eikos’ (that which is due) and ‘epi’ (that which is added): see R Marcic, Rechtsphilosophie (Freiburg im Breisgau, 1969) 182. 750   VD Degan, L’équité et le droit international (The Hague, 1970) 95 et seq.; Jenks, above n 637, 316 et seq. 751   Pinson case (1928) RIAA, vol V, 355: ‘[Equity is a] corrective principle . . . in the exceptional cases where the application of strict law would lead to obviously unjust results’ (our translation); case of the Direction générale des ports et voies de communication v Schwartz (1927), Recueil des décisions des TAM, vol VII (1927/8) 744: ‘[Equity seeks to] temper the excessive rigour of positive law . . .’. See also the commentary Aequitas, Dig, 15, 1, 32: aequitas stricto iuri praefertur, or: aequitas praefertur rigori. 752   ICJ Reports 1986, 568, § 28. 753   cf M Akehurst, ‘Equity and General Principles of Law’ (1976) 25 ICLQ 804 et seq.; VD Degan, L’équité et le droit international (The Hague, 1970) and the references there cited. 748 749



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considerations. This is frequently done in territorial disputes. So, in the case of the Land, island and maritime boundary dispute (El Salvador v Honduras, 1992), the boundary on the basis of uti possidetis could not be ascertained in a particular sector. The judges therefore had recourse to the line in a treaty of 1869 which had never been ratified, because in their view it constituted ‘a reasonable and fair solution in all the circumstances’ of the case.754 Equity contra legem, to the extent that it is admitted, enables the court to depart from strict positive law.755 According to the ‘positivist’ view of the law, judges cannot do that unless authorised by the parties. In effect, a court cannot force one party to give up its formal rights just because that seems to the court to lead to a more equitable solution. Equity contra legem is indeed sometimes applied in international law, though generally with the explicit or implied consent of the parties.756 It will have been noted that equity is always defined by its relationship to the ‘law’ or ‘rule’ – that is that it is intra, praeter or contra the law (legem). Consequently, one may speak of it as being above all a ‘relational’ concept. But there is one exception to that. It has been said that in international law there is also equity sine lege. Traces of it can be found in maritime delimitation. The very particular configurations of each geographical situation that comes before the Court for a decision has, from the outset, led the judges to prefer a very factual and individualised approach, rather than an abstract and general one. Thus, the jurisprudence had concentrated on the unique geography and context of each case. This kind of approach involves allowing individual aspects to predominate strongly over general ones. In light of the weighty considerations particular to each case, it was for many years difficult to formulate a general rule. For that reason, in default of a (too) abstract and (over-) rigid rule, which it would have been necessary to ‘correct’ on each occasion, the particular kind of equity that underpinned this intellectual edifice could not be considered ‘corrective’ on the Aristotelian model.757 In order to explain the way judges were behaving, leading commentators had recourse to the concept of ‘autonomous equity’, freed from the usual dependency of equity on a rule of law. It was an equity that applied ‘straight away’ without general rules. Equity itself was the law. It was the projection of ‘equitable principles’ of a very flexible kind, onto ‘relevant circumstances’ which was itself a malleable concept open to a considerable degree of case-by-case assessment and appreciation. The whole exercise was being carried out so as to ensure an equitable result in the particular case, that is a result satisfying the Court’s sense of what was necessary to do justice between the particular parties. In this way the jurisprudence added to the existing unicum of factual situations, a new unicum of normative responses: the norm was tailored to the (extremely circumstantial) facts. Here, then, we can see equity as the guide to a process by which the judge engages in a direct search for a balanced and adequate solution to the particular dispute, without thinking of it as an exercise in the flexible application of an abstract rule. This kind of equity is   ICJ Reports 1992, 514–15, especially § 263.   cf M Akehurst, ‘Equity and General Principles of Law’ (1976) 25 ICLQ 807; VD Degan, L’équité et le droit international (The Hague, 1970) 27, 33 et seq. Aequitas numquam contravenit legi (regula iuris). 756   See, eg the Aroa Mines case (1903) RIAA, vol IX, 445: ‘But if in a given case, not easily to be assumed, it should occur that its precepts [of international law] are opposed to justice, or lead away from it, or are in disregard of it, or are inadequate or inapplicable, then the determination must be made by recourse to the underlying principles of justice and equity applied as best may to the cause in hand.’ A transactional equity can also be supposed to flow from the (implicit) wishes of the parties: see the Beagle Channel case (1977) RIAA, vol XXI, 102, § 46. 757   H Thirlway, ‘The Law and Procedure of the International Court of Justice (1960–89): General Principles and Sources of Law’ in BYIL vol 60 (1989) 58, on the decline of corrective equity in the law of the sea. 754 755

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closer to the concept of equity in English domestic law: those administering the law little by little assemble a body of criteria on the basis of a body of jurisprudence which is both flexible and, in the last resort, the reflection of the judges’ own sense of justice. The various considerations are considered on a rational basis, case by case, and then, in the fullness of time, the resulting corpus of experience is condensed into a set of increasingly general norms. A classic definition of this kind of autonomous equity was provided by Eduardo Jiménez de Aréchaga: [Corrective equity] is not the conception of equity applicable to continental shelf delimitation . . . by reason simply of the absence of a general rule of law which is to be moderated or corrected in its concrete application . . . To resort to equity means, in effect, to appreciate and balance the relevant circumstances of the case, so as to render justice, not through the rigid application of general rules and principles and of formal legal concepts, but through an adaptation and adjustment of such principles, rules and concepts to the facts, realities and circumstances of each case.758

It should be noted that this concept of an equity free of the rules has, since the 1990s, been in retreat in the jurisprudence on maritime delimitation; the rule ‘equidistance/special circumstances’ having progressively taken the leading position.759 The judicial function in the context of a judgment in equity. The judicial function in the context of Article 38, paragraph 2, of the Statute will depend on the special (or other) agreement entered into by the parties. In it, they will indicate exactly what modalities they want to apply to the judges’ pronouncements, and the degree to which the Court will be authorised to go beyond positive law into the categories of equity praeter or, more especially, contra legem. The parties can, if they wish, confine themselves to asking the Court to apply equity intra legem in a way which can, to a greater or lesser degree, be a liberal one. However, if the Court is merely to do that, it does not need their agreement. If the parties confine themselves to reminding the judges that they can use arguments derived from equity intra legem, even encouraging them to do so, it is because the parties are looking for a judgment which will not go beyond international law. Equity here is only intra legem, and judgment is given on the basis of law. This situation falls, therefore, within Article 38, paragraph 1 of the Statute, not Article 38, paragraph 2. This paragraph 2 therefore contemplates situations in which the judge is to go beyond the positive law, acting praeter or contra legem. Since paragraph 2 provides for functions which, for a court of justice, are exceptional ones, which have at least the potential to endanger prestige and integrity, and since agreement between the parties is necessary for a judgment to be given in equity, it is essential that the Court interpret any such agreement strictly. The Court’s jurisprudence is testimony to the need for this. In the Free Zones case, the Court said that ‘a settlement disre-

758   Separate Opinion of Judge Jiménez de Aréchaga, case on the Continental shelf (Tunisia v Libya) ICJ Reports 1982, 105–106, §§ 20, 21, 24. For a critique of this concept of autonomous equity, see P Weil, Perspectives du droit de la délimitation maritime (Paris, 1988) 173 et seq., especially at 179 et seq. See the Dissenting Opinion of Judge Weil, in the maritime delimitation case between Canada and France (St Pierre and Miquelon) (1992) 96 RGDIP 714 et seq., especially at 725 et seq. See also P Weil, ‘Cours général: Le droit international en quête de son identité’ CCHAIL, vol 237, 1992-VI, 245 et seq. 759   See R Kolb, Jurisprudence sur les délimitations maritimes selon l’équité (The Hague/London/New York, 2003); and since then, see, eg the Land and maritime dispute between Nicaragua and Honduras in the Caribbean Sea (ICJ, 2007) §§ 228 et seq.; and the case on Maritime delimitation in the Black Sea (ICJ, 2009), §§ 31 et seq.



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garding rights recognized by it [the Court] . . . could only be derived from a clear and explicit provision to that effect’.760 The purpose of paragraph 2 is to give the Court the right to depart from positive law. That does not mean, however, that it can depart from the very idea of law and justice, of which equity is only one aspect or category. The Court remains bound by certain precepts of justice, precepts which encapsulate the irreducible difference between expediency, however reasonable it may be, and equity as the ‘handmaiden of justice’. Indeed, as the Court itself has rightly noted, equity stems directly from the concept of justice,761 whereas expediency can be inspired by and based on such criteria as practicability, the chances of the solution being accepted and applied by powerful States, the wish to take account of the international politics of the region in question, the psychological importance to the parties of certain matters, the political tensions which may result from certain solutions and so on.762 Here, therefore, as elsewhere, judges must work modo legislatoris, that is must find a solution which at some future date might be used as a precedent in a similar case. They cannot base their decisions on purely political or adventitious reasoning. As Judge FB Kellogg put it so well, in a famous observation: [I]t is scarcely possible that it was intended that, even with the consent of the Parties, the Court should take jurisdiction of political questions, should exercise the function of drafting treaties between nations or decide questions on grounds of political and economic expediency;763 ... The authority given to the Court to decide a case ex aequo et bono merely empowers it to apply the principles of equity and justice in the broader signification of this latter word . . . Neither in the records of the proceedings of this Committee nor in its report to the League, is there a suggestion that this provision of the Statute was intended to give the Court jurisdiction of political and economic questions . . .764

Kellogg added a fundamental consideration: [I]t is of the greatest importance that the prestige and influence of this Tribunal and the confidence which it should inspire among the nations as an impartial judicial body, wholly detached 760   Case on the Free Zones, Order of 6 December 1930, Series A, no 24, 10. See also the Continental shelf case (Tunisia v Libya) ICJ Reports 1982, 47, § 46; and the case of the Territorial dispute (Burkina Faso v Mali) ICJ Reports 1986, 567, § 28. For other precedents, notably at the ICJ, see Pellet, ‘Article 38’, above n 716, 731–32. 761   cf the Continental shelf case (Tunisia v Libya) ICJ Reports 1982, 60, § 71: ‘Equity as a legal concept is a direct emanation of the idea of justice. The Court, whose task is by definition to administer justice, is bound to apply it.’ 762   The PCIJ had said, obiter, that ‘a settlement disregarding rights and taking into account considerations of pure expediency only . . . could only be derived from a clear and explicit provision top that effect’ (Free Zones case, Order of 6 December 1930, Series A, no 24, 10). At a subsequent stage of the same case, the Court was, however, able to limit the scope of this probably excessive statement. France and Switzerland had asked the Court to establish a new regime governing the various questions ‘relating to the customs and economic structure of the free zones’ implicit in the execution of Art 435 § 2 of the Treaty of Versailles. This was a disputes clause. The Court took the view that, amongst other things, this task was inappropriate to the role of a court of justice: PCIJ, Series A/B, no 46, 162: ‘the settlement of such matters is not a question of law, but is a matter depending on the interplay of economic interests . . . Such questions are outside the sphere in which a Court of Justice, concerned with the application of rules of law, can help in the solution of disputes between two States.’ In the same sense, cf U Scheuner, ‘Decisions ex aequo et bono by International Courts and Arbitral Tribunals’ in Essays M Domke (The Hague, 1967) 283–84; K Strupp, ‘Le droit du juge international de statuer selon l’équité’ CCHAIL, vol 33, 1930-III, 478; VD Degan, L’équité et le droit international (The Hague, 1970) 107 et seq., 119 et seq. (on arbitrations), 214 et seq., 237 (ICJ); Pellet, ‘Article 38’, above n 716, 733–34. See also the C de Visscher, De l’équité dans le règlement arbitral ou judiciaire des litiges de droit international public (Paris, 1972) 25–26. 763   Free Zones case, Order of 6 December 1930, PCIJ, Series A, no 24, 34. 764   Ibid, 40–41.

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from political influence, should not be decreased or jeopardized, as would be the inevitable result of its assumption of jurisdiction over matters exclusively within the domain of the political power of a State.765

The line between expediency and equity can of course be a fine one. A judge will almost always be able, if he wishes, to present the former in the garb of the latter. It is ultimately a question of personal ethics, and of the care with which the judge addresses himself to his task. In any event, a modern judge could certainly not depart from the imperative norms (jus cogens) of international law when deciding a case ex aequo et bono.766 If and when, under Article 38, paragraph 2 a judge is expressly authorised to decide other than on a strictly legal basis, is he then obliged to do so? The answer probably depends, in the first case, on the nature of his mandate.767 If, for example, the authorisation states that the parties consider such and such a legal rule (not being jus cogens) does not suit them because they consider it inequitable; and that they wish to modify it but have not reached agreement on how to do so; and they want the judge to decide their dispute by indicating the way forward; then in such a case the mandate itself implies that the judge must go beyond positive law. Of course he is still not necessarily obliged to do so, in the sense that he can always refuse if he considers that considerations of judicial integrity (and thus of general admissibility) require him to adopt that attitude. In any event, he cannot decide on the basis of strict law, since such a decision would be ultra petita – a principle applicable even in relation to judgments in equity. On the other hand, if the authorising clause is ambiguous and capable of various interpretations – for example, if it gives the judge the freedom to decide according to strict law unless he considers that the result would be inequitable (in which case he would be thereby authorised to decide in equity) – the judge is authorised to decide either in law or in equity, or in whatever combination of the two seems to him appropriate. Whatever the exact terms of the court’s mandate, it must always entitle the court to begin by considering what view it would take if it were to apply strict law. Only in this way can the judge or judges be fully aware of why exactly the strict legal result is considered inequitable, so that they then devise the most appropriate solutions to that problem. Just as, in maritime boundary cases, where the equidistance line can be used as an adequate starting point for drawing the boundary, so in cases where the decision is to be made in equity, the necessary starting point for judges looking to design a satisfying solution is the unvarnished legal position. What, then, if the Court thinks that the legal solution which the parties have considered to be inequitable is not actually the right one as a matter of law? In other words, what if the Court thinks the parties are mistaken as to the positive law? What if it then selects another legal solution, as a result of which the inequity disappears? In such a case, can the Court decide the case in strict law even though the parties have, on the basis of an apparent misconception as to the law, asked it to depart from strict law? There is no reason to answer in 765   Ibid, 42. In the carefully measured words of Hudson, above n 505, 620: ‘Yet it does not have complete freedom of action. It cannot act capriciously and arbitrarily. To the extent that it goes outside the applicable law, or acts where no law is applicable, it must proceed upon objective considerations of what is fair and just. Such considerations depend, in large measure, upon the judge’s personal appreciation, and yet the Court would not be justified in reaching a result which could not be explained on rational grounds.’ 766   Pellet, ‘Article 38’, above n 716, 734. 767   If a generalised answer were required, it would be a negative one: ‘Acting ex aequo et bono, the Court is not compelled to depart from the applicable law, but it is permitted to do so’, Hudson, above n 505, 620.



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the negative. By taking this course, the Court would be fully performing the task the parties have set it. They will have explained why they want the Court to take a certain distance from the strict law. If the reasons for doing so appear, in the event, to have been unfounded, so that in reality an equitable solution is possible on a basis fully consistent with the positive law, the Court is even obliged to prefer that outcome, since first and foremost it is and remains a judicial organ of public international law. Technically, the Court could take the view that the equitable solution under Article 38, paragraph 2, is, in the circumstances, the same as what it conceives to be the outcome that would have been decreed as a matter of strict law.768 Finally, it should be remembered that the judges are not bound by the pleadings or legal arguments of the parties. The Court’s reasoning is not to be hedged about in that way: the judges freely assemble their own reasoning on the law, jura novit curia, provided always that they remain within the limits of the petitum (ne eat judex ultra petita partium). These precepts of judicial functioning are also applicable to the equitable function of the Court under Article 38, paragraph 2 of the Statute. The power to decide disputes according to equity (that is outside strict law) is a politically sensitive matter, particularly if the judgment, when given, is binding on the parties. It is therefore understandable that, in such circumstances, parties prefer to proceed by way of arbitration. This gives them a more significant degree of influence on the bench and procedure, and thus reduces their legitimate fears. To ask a judicial bench to decide a political dispute requires great confidence in their wisdom and political acumen. Rather than refer such disputes to a judicial body of 15 judges, who are almost bound to be considered too distant and remote, States have preferred in such cases to appoint people in whom they have particular confidence, to sit on relatively small arbitral tribunals. Also, arbitration procedure is, by its very nature, more malleable and more responsive to the parties’ wishes. It can be influenced in a much more pronounced way than can the procedures of the ICJ. It is therefore unsurprising that up to the present time, States have always taken such cases to arbitral tribunals,769 and that neither the PCIJ nor the ICJ has ever been seised of a case under Article 38, paragraph 2, of the Statute. If the ICJ were to give judgment by applying equity under Article 38, paragraph 2 of the Statute, the judgment would be subject to the ordinary rules applicable under the Statute. The procedure leading up to the judgment would be the same – for example, the provisions for intervention under Articles 62 and 63 would apply. It is legitimate to wonder whether it 768   Pellet, ‘Article 38’ above n 716, 734, also takes the view that the authorisation to give judgment in equity does not prevent the tribunal’s applying international law. 769   See, eg the case on the Brcko region (Serbia v Bosnia-Herzegovina, 1997). Under Annex 2 to the Dayton Accords, a line of demarcation was to be drawn between the areas controlled by the two parties. Having been unable to agree on that line, the parties were faced with the setting up of an arbitral tribunal under the Annex’s Art 5. Political tension between the two sides at once made itself felt, the more so since what was at issue was the future of an area that both of them considered vital. Serbia refused to take part in the exercise, but in the end, the tribunal was appointed. The hearings were punctuated by various incidents. After various problems, the two ‘national’ members of the arbitral tribunal refused to sign the award, which was thus handed down by the President alone (he was Sir Robert Owens). The Tribunal departed from the strict application of the law. It emphasised equitable considerations, as was permitted by the instrument under which it was constituted. It was thus able to take account of such factors as related tensions (§ 101), population, economic interests, psychological questions, the importance of communications and even the interest of the international community in a durable peace ((1997) 36 ILM, 428 et seq.). The award decided that, in light of these factors, and particularly of the related tensions, it would be premature to partition the area, even though this was foreseen in the Dayton Accords. It therefore opted for a provisional joint administrative regime under international supervision, stating by way of reminder that ‘not being required to proceed solely on the basis of legal rules, the Tribunal is authorized to render an award that, in its view, best reflects and protects the overall interests of the parties and that has the strongest likelihood of promoting a long-term peaceful solution’ (ibid, 431, § 97).

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would not be appropriate, in this particular context, to give an especially wide interpretation to the concept of ‘interests of a legal nature’ under Article 62 of the Statute, given that in such a case subjects other than strictly legal ones are in issue. Should the expression be interpreted as meaning ‘interests affected by the decision in equity’? This seems right in principle, but it does give rise to problems. First, the text of Article 62 is not favourable to it. Next, ‘interests which are not legal ones’ is a very vague phrase. And finally, if intervention became too easy and too frequent, this could be another reason for States to hesitate to send cases to the Court under Article 38, paragraph 2. The Court’s judgment on the basis of paragraph 2 is subject to the rules on binding force (Article 59 of the Statute), on interpretation and revision (Articles 60–61) and on giving effect to the decision (Article 94 of the UN Charter). It also seems right to accept that Article 38, paragraph 2, could be applied, by analogy, to advisory opinion proceedings.770 This could happen if the requesting body asked the Court not only for its observations on the ‘legal question’ (Article 65 of the Statute: ‘The Court may give an advisory opinion on any legal question . . .’), but also for its observations as to the most appropriate way of modifying the law or otherwise dealing with it in an adequate way. Here too, we need to remember that the Court could, and should, refuse to respond to this aspect of a request if it took the view that to do so would not be compatible with its judicial integrity (general admissibility). The fact that there is no practical record of this happening, however, shows that no real need for the Court to give politico-legal consultative advice in this way has yet made itself sufficiently felt.

7.  CONSENSUAL JURISDICTION (RATIONE CONSENSUS): WHEN CAN THE COURT DECIDE A CASE?

a)  The Concept and Place of Consensual Jurisdiction In municipal law, it is universally accepted that a court’s jurisdiction is binding on citizens and subjects of law. This reflects the very nature of systems of municipal law, which make citizens and other subjects of law subject to the collective organisation of society and of courts, whose function is to maintain the social order and punish infringements of the law. Citizens and other subjects of law cannot escape the jurisdiction or in some way withdraw from it. Whether the proceedings are criminal, civil or administrative, the tribunal seised of the case will have jurisdiction, whether or not the parties consent. The international community, by contrast, operates on the basis of an entirely different concept, one which in many respects is the opposite. The most important element of State sovereignty is the ultimate power it gives to States to make their own decisions on questions affecting them. At the root of the concept of sovereignty is the idea of not being subject to any superior human authority that can take the decision out of your hands. So, if an international tribunal had compulsory jurisdiction vis-à-vis a State without the latter’s consent, that would be equivalent to saying that the sovereignty of that State, even though recognised in international law, had been drained of its essential feature. In relation to a whole series of ques770   Contra, Pellet, ‘Article 38’, above n 716, 735. The formalist point that there are no ‘parties’ to give their consent can hardly be taken seriously, since there is a requesting body which can indeed give its consent.



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tions, ones which could not even be identified in advance, such a State would, in the last resort, simply not have the power to decide for itself. Instead, the Court would ‘decide’ disputes submitted to it, in a manner that would be binding on all States subject to its jurisdiction. Since the role of deciding in last resort would pass to the Court, the State would cease to be sovereign. It could at any moment be sued before the Court by another State in relation to any legal dispute – for example the delimitation of the boundary or the question of title to part of its territory – and it would have to submit not only to the legal process but also to the judgment that followed. Neither States nor their populations are at this stage of historical development prepared to accept the idea of giving up the supremacy of their own decisions. On one side of the coin, the self-determination of peoples and States, embedded as it is in the principle of sovereignty, remains alive and well; the reverse side is that a state of international anarchy continues and that the law, since it cannot be applied impersonally by a tribunal, continues to be weak and subject to a kind of variable geometry. Sovereignty and international law are eternally locked together in a paradoxical species of loveless wedlock. The spouses are always eyeing each other sardonically, sometimes working together, sometimes at odds. International sovereignty is, however, in turn guaranteed by international law. Without the sovereignty of States, international law would not exist in its present form, but would be a globalised ‘federal’ system. Yet at the same time, the continuance of sovereignty poses an existential threat to international law, which has been placed by it in a kind of straitjacket and subjected to its caprice. One consequence is that, in order for an international tribunal’s jurisdiction to be in conformity with the principle of State sovereignty as recognised by international law itself, it is necessary that the jurisdiction be consensual. A State can be subjected to the jurisdiction of an international tribunal only to the extent that it has agreed. That is the fundamental principle applicable to the jurisdiction of international tribunals. There is practically no authoritative commentator or author who does not state specifically that the Court’s jurisdiction is purely consensual.771 The Court itself unfailingly insists on this principle as one that governs the creation and extent of its jurisdiction. Its precursor, the PCIJ, referred to this in the cases on the Status of Eastern Carelia (1923),772 Mavrommatis (1924),773 Rights of German minorities in Upper Silesia (Minority schools, 1928),774 and the Factory at Chorzów (merits, 1928).775 The present Court has been just as fulsome – see the cases on Corfu Channel (1948),776 Reparation for injury in the service of the United Nations (1949),777 Interpretation of the peace treaties with Bulgaria, Hungary and Romania (1950),778 Anglo-Iranian Oil Company (1952),779 Nottebohm (Preliminary Objection, 1953),780 Monetary gold seized at Rome in 1943 (1954),781 Continental shelf (Libya

771   As to this great principle, cf eg Dubisson, above n 480, 145 et seq.; PM Eisemann, ‘L’arrêt de la ICJ du 26 novembre 1984 (Compétence et recevabilité) dans l’affaire des activités militaries et paramilitaires au Nicaragua et contre celui-ci’ (1984) 30 AFDI 373. 772   PCIJ, Series B, no 5, 27. 773   PCIJ, Series A, no 2, 16. 774   PCIJ, Series A, no 15, 22: ‘The Court’s jurisdiction depends on the will of the Parties’. 775   PCIJ, Series A, no 17, 37–38. 776   ICJ Reports 1948, 27. 777   ICJ Reports 1949, 178. 778   ICJ Reports 1950 71. 779   ICJ Reports 1952, 102–103. 780   ICJ Reports 1953, 122. 781   ICJ Reports 1954, 32.

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v Malta) (Intervention, 1984),782 Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility, 1984),783 Frontier dispute (Burkina Faso v Mali, 1986),784 Land, island and maritime boundary dispute (El Salvador v Honduras, Intervention, 1990),785 Certain phosphate lands at Nauru (Preliminary Objections, 1992),786 and East Timor (1995)787 in which the point was made in particularly peremptory terms: ‘The Court recalls in this respect 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.’ The Court has returned to the principle since then, for example in the case on Armed activities in the territory of the Congo (DRC v Rwanda, Jurisdiction and admissibility, 2006)788 and the case on Certain questions concerning international legal assistance in criminal matters (Djibouti v France, 2008).789 The Court’s attitude to this question is very strict.790 Setting its face against the maxim ‘boni iudicis est ampliare jurisdictionem’, it has, on occasion, declined to entertain a case simply because of doubts about the existence of an agreement giving it jurisdiction. Thus, in the Ambatielos case (1952), Greece had mentioned an offer by the government of the United Kingdom which would have made it possible, in the event of a favourable response as to an obligation to have recourse to arbitration, to choose to ask the ICJ to decide not only on the arbitrability of the dispute, but also on the merits. However, as the Court put it, there was ‘some doubt about the existence of any unequivocal agreement between the Parties upon this matter’. It concluded: ‘The Court has no doubt that in the absence of a clear agreement between the Parties in this respect, the Court has no jurisdiction to go into all the merits of the present case . . .’ (italics added).791 There were indeed some old treaties, dating from 1886 and 1926, that made express provision for an obligation to go to arbitration rather than to a court of justice, and indeed an international court of justice did not even exist in 1886.792 The Court’s restrictive interpretation is nevertheless a revealing one as regards the requisite degree of clarity in the alleged undertaking.793 In the Djibouti v France case cited above, the Court insisted once again, in strong terms, on the fact that clear consent was required: As the Court has recently recalled, whatever the source of the 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’ (Armed activities in the territory of the Congo, New Application: 2002 Democratic Republic of the Congo v Rwanda, judgment on jurisdiction and admissibility), ICJ Reports 2006, p 18; see also the Corfu Channel case (United Kingdom v Albania, Preliminary Objection, judgment, 1948, ICJ Reports p 27; Application   ICJ Reports 1984, 25.   Ibid, 431. 784   ICJ Reports 1986, 579. 785   ICJ Reports 1990, 114 et seq. 786   ICJ Reports 1992, 259 et seq. 787   ICJ Reports 1995, 101. 788   ICJ Reports 2006, § 21, and § 88: ‘. . . its [the Court’s] jurisdiction rests on the consent of the parties, and only to the extent that it is accepted by them’. 789   ICJ Reports 2008, § 48. 790   Lauterpacht, above n 572, 75 et seq., 91 et seq., took the view that it was a matter of ‘judicial caution’. cf also GG Fitzmaurice, ‘The Law and Procedure of the ICJ (1951-4): Questions of Jurisdiction, Competence and Procedure’ in BYIL, vol 34 (1958) 84–86. 791   ICJ Reports 1952, 39. 792   Ibid, 34–36. 793   Ibid, 38–39. 782 783



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of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Yugoslavia, Preliminary Objections) judgment, ICJ Reports 1996 (II), pp. 620–621, para. 40; and Minority rights in Upper Silesia (Minority schools), Judgment No 12, 1928 PCIJ Series A no 15 p 24.794

The great variety in the terminology used, a near plethora, sometimes perhaps bordering on the pointless, is remarkable in itself – ‘unequivocal indication’, ‘will to accept voluntarily’, ‘indisputable acceptance’ and so on: the Court’s restraint is almost palpable. The Court is not only careful to respect the principle of sovereignty, but it is also mindful of the danger of taking an over-robust attitude that might alienate some States to the point where they might withdraw their acceptance of its jurisdiction. The consensual principle has thus become nothing less than a judicial dogma. As to the actual form in which consent to its jurisdiction is expressed, however, the Court takes a flexible view, as will be seen. Alongside the cases in which consent is given in a formal way are those in which it is given informally. The only condition is that the consent, whatever its form, can be considered ‘an “unequivocal indication” of the will of the State concerned to accept the Court’s jurisdiction in a “voluntary and indisputable manner” ’.795 This is all the more remarkable since the Statute does not state the principle as such; it only appears implicitly in Article 36. Will the consent question be raised by the Court motu proprio? Despite the importance of consent to the Court’s jurisdiction, it is not a matter of policy (ordre public) in the sense that the Court will normally raise the question of its own volition. The parties with any interest in the question are those that are before the Court, and the interest conceivably affected is their right not to submit to an international jurisdiction without having consented to it. It is for the State that is affected to decide whether it wishes to maintain a refusal to submit to the Court, or whether to allow the case to proceed. The right to refuse can be given up at any time, either prior to the moment when the Court is seised or thereafter, at any stage of the proceedings on Preliminary Objections, if indeed there are any. It is not for the Court to substitute itself for the free choice of the State concerned by declining, proprio motu and on a peremptory basis, to exercise jurisdiction. If the State concerned makes no objection to the Court’s proceeding to hear the merits, then it is consenting and in that case the Court’s jurisdiction is based on firm ground. It would be strange, to say the least, if the Court were, in such a situation, to refuse to hear the case, thus adding an additional limitation to its already over-restricted international jurisdiction. Not only would it go against the maxim boni judicis est ampliare jurisdictionem, but it would also be a breach of the principle that a judge may not pick and choose the cases he is willing to hear. Once the Court’s jurisdiction is established, then provided there are no remaining blockages preventing the exercise of that jurisdiction (for example, a major effect on the rights of third States under the Monetary Gold doctrine), it is obliged to hear the case. This is so because a court makes its decisions on the basis of law, and cannot therefore be allowed a discretionary freedom to hear or not to hear cases in respect of which it has jurisdiction. Such a discretion would introduce a political and selective element into the process, which would hardly serve either the prestige or the objectivity so necessary in a court of justice.   At § 62.   Case on Armed activities in the territory of the Congo (DRC v Rwanda, Jurisdiction and admissibility, 2006): ICJ Reports 2006, § 21. 794 795

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The Court’s jurisprudence as to whether it can or should of its own volition decide not to hear a case for lack of consensual jurisdiction is analysed below, in section (7(i)) on the forum prorogatum. It clearly demonstrates that the Court will not, motu proprio, engage in the exercise of examining its own consensual jurisdiction. It leaves the initiative to the parties.796 But if one of the parties sheds any doubt on the Court’s consensual jurisdiction, even if it does so quite informally, the Court will consider the point. That does not mean, however, that the Court can never raise questions of this kind on a motu proprio basis. If a State brings a case to the Court without as yet having any consensual basis for its jurisdiction, and if the respondent does not respond to the invitation to accept the jurisdiction under Rule 38, paragraph 5,797 the Court can and must decide that it has no jurisdiction to decide the case. In such a case it must reach that decision motu proprio. In short, then, the Court does not raise such questions motu proprio if the situation is not entirely clear and it should be left to the parties to raise it if they wish. That is how it turns out in most cases. On the other hand, the Court will refuse, for want of consensual jurisdiction, to consider the merits in any case where a title of consent to the jurisdiction is obviously lacking and the Respondent State does not consent. In such a case the Court is protecting the public interest in its not deciding cases that are manifestly beyond its jurisdiction. If it were to go beyond its jurisdiction in that way, its prestige would suffer as a result of the protests and other tribulations that could hardly fail to ensue. There would be a serious risk that its judgment would never, in the event, be carried into execution. It would also cause at least a certain level of discomfort for the majority of States parties to the Statute, who would not wish to see the Court taking such marked liberties with the rule requiring the exercise of its jurisdiction to be based on consent. A question of law, no burden of proof in the technical sense. As a question of law, the issue of consensual jurisdiction must be decided by the Court. It is not subject to the burden of proof, which can work against parties making allegations of fact. Thus in the case on Fisheries jurisdiction (Spain v Canada, 1998), the Court said this: ‘The Court points out that the establishment or otherwise of jurisdiction is not a matter for the parties but for the Court itself’, since it is a ‘question of law to be resolved in the light of the relevant facts’.798 ‘That being so, there is no burden of proof to be discharged in the matter of jurisdiction. Rather, it is for the Court to determine’.799 That is not to say that the parties cannot or must not put forward arguments for or against jurisdiction. They are well advised to do so, supplying the Court with specific arguments one way or the other for the purpose of persuading it to decide in their favour. In the last resort, however, the question is one to which the principle jura novit curia applies: the Court knows what the law is. The Court could not confine itself to rejecting the request of a party seeking to persuade it to declare itself devoid of jurisdiction, if it rejected the request merely on the basis that the party in question had failed to satisfy the Court that it had no jurisdiction. And finally, it must be noted that the   Case on the Rights of minorities in Upper Silesia (Minority schools, 1928), PCIJ, Series A, no 15, 23–24.   ‘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.’ 798   ICJ Reports 1998, 450, § 37. See also the case on the Border and transborder armed actions (Nicaragua v Honduras, Jurisdiction and admissibility, ICJ Reports 1988, 76, § 16. 799   Ibid, 450, § 38. 796 797



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opening words of the passage cited above, beginning with the words ‘The Court points out that . . .’, in no way contradicts what is said above about the fact that the Court does not, as a general rule, raise questions of consensual jurisdiction motu proprio. The passage must be read in context, the Court confining itself to treating the issue of jurisdiction as a point of law, one which in the last resort is the province of the Court itself, not of the parties. In other words, the parties cannot impose on the Court their own view of the law: all they can do is to make proposals or suggestions to the Court as to what the law actually is. An interested Party which desires to prevent the Court deciding the merits must, of necessity, raise at least one objection to jurisdiction. b)  Consent through Bilateral or Unilateral Acts. Optional and Compulsory Jurisdiction. Consent Prior to or after the Start of a Dispute As regards consent to the Court’s jurisdiction to decide cases, the ICJ Statute is divided into three important options. There is a partial overlap between these three elements. A brief commentary follows. Consent by agreement or by unilateral acts. This element is incorporated into the first two paragraphs of Article 36 of the Statute. Paragraph 1 provides that: ‘The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force’; whereas paragraph 2 states that: ‘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 . . .’ Paragraph 1 deals with cases in which consent to the Court’s jurisdiction rests on an agreement (or a treaty) between the parties. Paragraph 2 is the ‘optional clause on compulsory jurisdiction’, concerned with unilateral declarations by which States can accept the Court’s jurisdiction as regards all the other States that have made the same type of declaration. The distinction is based on the fact that consent can be given either, on the one hand, bilaterally or mutilaterally (by agreement), or, on the other, unilaterally (by a promise which is part of a series of unilateral declarations constituting a ‘network of reciprocities’). Paragraph 1 thus provides both for cases in which the jurisdiction is optional and for those in which it is compulsory. A special agreement between the parties after a dispute has arisen is one example of an agreement on the Court’s optional jurisdiction. It is indeed possible to make (or decline to make) such agreements on a case-by-case basis. Absent such an agreement on the particular case, the Court has no jurisdiction over it, and so in each case its jurisdiction is a function of the ad hoc wishes of the parties. For this reason is called ‘optional’ (or in French, ‘facultative’). By contrast, a jurisdiction clause in a treaty is an example of an agreement giving the Court compulsory jurisdiction. In this case, each of the States that are parties to the treaty, when involved in a dispute with another State party about the interpretation or application of the treaty, can, subject to the conditions set out in the clause, unilaterally seise the Court of the case. The Respondent State has then no option but to submit to the Court’s jurisdiction. This is what is meant by calling the jurisdiction ‘compulsory’. Unlike paragraph 1, paragraph 2 deals exclusively with compulsory jurisdiction. Optional declarations subject to the Court’s jurisdiction a whole series of potential disputes between the States that have made such declarations, which can

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unilaterally sue other States in the same category: the Respondent State is then obliged to submit to the jurisdiction. In a similar way, paragraph 1 covers cases in which consent is given vis-à-vis disputes that may arise in the future (jurisdiction clauses) as well as cases in which consent is given only for a dispute which has already arisen and been identified (special agreements). By contrast, paragraph 2 is concerned exclusively with consent in relation to future disputes. It is thus apparent that jurisdiction clauses are in many ways similar to declarations under the optional clause, whereas a special agreement is a different kind of mechanism for establishing the Court’s consensual jurisdiction. Compulsory and optional jurisdiction. We have seen how the concepts of optional and compulsory jurisdiction are tied up with States’ freedom of choice as to whether to submit to the jurisdiction of the Court. When the jurisdiction is optional, the State retains its freedom to choose until the last minute – that is, until it decides, in knowledge of the nature of the dispute, whether or not to submit to the Court’s jurisdiction over it. Where the jurisdiction is compulsory, however, the State has given up its freedom to decide case by case, having committed itself before any dispute even arises, that is, at a much earlier stage. Also, compulsory jurisdiction is based on the idea that each State which is a party to an agreement, or to the system of the optional clause creating compulsory jurisdiction under Article 36, paragraph 2 of the Statute, can unilaterally initiate a suit against the respondent in question. By contrast, optional jurisdiction is based on the idea that States will together submit their dispute to the Court.800 The compulsory jurisdiction is, despite its name, compatible with the ideas of consent and sovereignty. In effect, a State can undertake in advance (and thus by consent) to submit to the Court’s jurisdiction as regards certain types of case (or indeed all cases) that another State which is party to an agreement with it, or to the system of the optional clause, wishes to bring before the Court. There can be no doubt about such a State’s consent, and its attitude is not incompatible with the preservation of its own sovereignty, even if one accepts the idea that it is renouncing a part of that sovereignty: the wider the scope of its submission to the compulsory jurisdiction, the greater the element of sovereignty so renounced. As the PCIJ rightly put it, in its first ever decision, in the case of the Wimbledon (1923): The Court declines to see in the conclusion of any Treaty by which a State undertakes to perform or refrain from performing a particular act an abandonment of its sovereignty. No doubt any convention creating an obligation of this kind places a restriction upon the exercise of the sovereign rights of the State, in the sense that it requires them to be exercised in a certain way. But the right of entering into international obligations is an attribute of State sovereignty.801

One needs to be careful not to confuse the expressions optional/compulsory with the concepts of consent and imposition. Both the optional and the compulsory jurisdiction are subject to the general principle of consent. M Dubisson formulated the point with great precision:802 800   This does not necessarily mean that they will formally act in concert in seising the Court. Either of the parties to a special agreement can notify the agreement to the Court, thus seising the Court of its own unilateral volition. In fact, special agreements often state expressly that the Court will be seised by whichever party goes to the Court first. One needs therefore to make a distinction between seising the Court, which can be done unilaterally, from the actual right to bring the case to the Court, which, in the case of a special agreement, is jointly agreed. 801   PCIJ, Series A, no 1, 25. 802  XXxxXxxx



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Since the Court’s jurisdiction is based on the consent of States, it cannot normally be other than ‘optional’. Once a dispute arises, or is on the point of doing so, the parties make a choice, a choice which is a matter for their own discretion and which is made according to the circumstances, namely whether or not the case should be brought to the Court, and whether or not to accept the latter’s jurisdiction to decide the dispute. However if one looks a little closer, the optional character of the Court’s jurisdiction is not inherent in the principle of State consent. In reality, the Court’s jurisdiction as regards any particular dispute is only optional to the extent that that a States’ consent to it is given subsequently to the moment the dispute arises. It is indeed possible to imagine a State consenting, in advance, to the Court’s jurisdiction over a whole series of cases. In that case, whenever a dispute in the relevant category arises, the Court’s jurisdiction will no longer be optional, it will have become compulsory. The State concerned has, in effect, bound itself in advance, as regards the dispute in question, and when the dispute finally arises it no longer has any freedom of action on this point, because it has previously alienated that right. From this point of view, the Court’s compulsory jurisdiction is perfectly compatible with the principle of State consent, since it rests, in the ultimate analysis, on the agreement given by the State in advance . . . this makes it possible to distinguish, as regards a given dispute, between the Court’s optional jurisdiction and its compulsory one, by reference to the timing803 of the State’s consent. If consent is given after the dispute arises, the Court’s jurisdiction to decide it is optional. If it was given earlier, for a category of disputes (whether the category is narrow or wide-ranging), and if the dispute duly falls within that category, the Court’s jurisdiction becomes compulsory. (our translation)804

Consent in advance of, or after, the moment the dispute arises. We have just seen how the concepts of optional and compulsory jurisdiction turn on the timing of the giving of consent, whether prior to or after the moment the dispute arises. If consent is given after the dispute arises, the parties are contemplating the Court deciding only the particular case in question, and their consent is limited to that particular dispute. They are well aware of the implications, because they know about the dispute, and its parameters will, to at least some extent, already have been delineated, so that they are in little or no doubt about how far it extends. By agreeing to the Court’s jurisdiction they are not ‘mortgaging the future’ in any general sense, since they already understand what is at issue, and are not consenting to the Court’s deciding any other cases that they do not already have in contemplation. Consequently, the authority conferred by their consent on the Court is limited to the particular and necessarily circumscribed circumstances of the particular case that is in contemplation, and so the parties can feel that there is no element of unidentified risk. By contrast, when consent is given in advance, covering a series of disputes which may arise at some future date, the scope of the consent is much more wide-ranging. In these circumstances consenting States do not know the circumstances in which their consent may be invoked, contrary to their interests or desires, at some future date, by which time their political situation might have changed in a significant way. To a greater or lesser degree, such States do not know what claims they will at some future date be obliged to defend as respondents, nor even the identities of the potential Claimant States. When a State brings an action before the Court on the basis of a jurisdiction clause in a treaty, the respondent will always have known that any such case will concern the interpretation or application of that treaty. However even then, the interpretation and application are never entirely separate from the wider questions of general international law with which the treaty provisions   And, one might well add, the extent.   Dubisson, above n 49, 154–55.

803 804

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may have some relevant interaction.805 But if the Claimant State bases the Court’s jurisdiction on an optional declaration under Article 36, paragraph 2 of the Statute, the scope of the Court’s competence will be even more extensive. In such a case, the declaring States submits to the Court’s jurisdiction over a whole series of cases the subject of which cannot be foreseen at the time of the declaration itself. It knows that it can be made the respondent to a suit brought by any other State which is party to the system of the optional clause, on any subject whatever, or on certain classes of subjects, according to the terms of its own declaration. In every particular case covered by its declaration, it will thereby have given up the right to choose whether or not to accept the Court’s jurisdiction, in light of an assessment of what is in its own best interests, made hic et nunc at the potentially much later date when the dispute actually arises. It is therefore not difficult to see why, as a limited hedge against an undertaking so pregnant with potentially adverse consequences, States which are prepared to make such declarations often attach reservations to their declarations with a view to limiting their scope. The purpose of such reservations is to limit the subject matter of the disputes they agree to submit to the Court. The amplitude of their submission to the jurisdiction is thus very different in cases where the compulsory jurisdiction is accepted in advance as regards disputes of an indeterminate nature, as compared with consent given after disputes have arisen and in relation only to one (or exceptionally more than one) particular case. Summing up these aspects, it has justly been said that: The difference is considerable, since in these two hypotheses, the importance and significance of consent is not the same. If consent is given after the dispute arises, it is given in knowledge of that fact; the parties can assess the consequences. They know what they are exposing themselves to by accepting the Court’s jurisdiction. But in the opposite case, where consent is given before the dispute arises, the uncertainties are greater, since it is impossible to foresee the circumstances in which a future dispute will arise. The acceptance of the latter kind of obligation presupposes that there is a particular kind of mutual confidence between the parties. (our translation)806

The same commentator pointed out a factual difference as to the likelihood that the Court’s judgments will be carried into effect without more ado by the parties, once they have been handed down: When the jurisdiction of international tribunals was optional, it was not felt necessary to provide for mechanisms to enforce the execution of their decisions: the parties’ consent to the jurisdiction was too recent for there to be much likelihood of their forgetting it . . . But under the new dispensation the situation has changed: the more binding the obligation, the greater the risks of noncompliance with judgments; often there will be a considerable lapse of time between consent to the jurisdiction and its factual implications; the necessary will to comply with the judgment may be much less in evidence, and so it seems necessary for a mechanism to be available as a sanction and spur to compliance. (our translation)807

The advantages and disadvantages of the two forms of jurisdiction, the compulsory and optional, and consent prior to and after the dispute arises, are correlative. The advantage of the optional jurisdiction, for the respondent, is that it does not give its binding consent until it knows the nature of the dispute, and then it consents in a limited way. Its specific   See below.  Politis, Justice, above n 632, 194. See also N Politis, Les nouvelles tendances du droit international (Paris, 1927) 142–43. 807  Politis, Nouvelles, ibid, 185–86. 805 806



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acceptance of the Court’s jurisdiction over the particular dispute has consequences for the judgment itself – it will have every reason to honour the judgment, even if it loses the case. The disadvantage, for the Claimant State, lies in its awareness that its claim will not automatically find a way onto the Court’s list. Access to the Court will depend on the respondent’s wishes, and if the respondent thinks it risks losing, it will be likely to refuse. The consequence will be that the Claimant State will be deprived of the legal protection available from a compulsory jurisdiction. Finally, the disadvantage, from the perspective of the international community generally, is that this system sets limits to the pre-eminence of law. There is no assurance, in such circumstances, that the claimant will be able to bring its case before any court. The international community will thus remain a prey to the changeable vagaries of politics, which means power politics, political expediency, inequalities and variable political geometry. The advantage of the compulsory jurisdiction is the opposite of what has just been deplored, and the disadvantage the opposite of what has just been approved. From the respondent’s perspective, the disadvantage is that it does not know what it is exposing itself to. It submits in advance to the Court’s jurisdiction in respect of a whole series of unknown disputes that may arise in unforeseeable circumstances. It does not know the identity of the potential Claimant State – whether it will be allied and friendly, or a distant State with which it is at enmity. Either way, it will be obliged to give effect to the Court’s decision, despite the potential embarrassment of doing so. Highly sensitive cases may be brought against it, perhaps by trickery. Interim measures pendente lite can be sought and imposed in a way which may cause it difficulties or embarrassment, even before the Court’s jurisdiction is definitively established. The Court’s judgment may perhaps oblige it to amend its internal laws, even its constitutional law. That could give it severe problems, especially if its constitution, like Switzerland’s, is based on direct democracy. As already noted, the consent to the Court’s jurisdiction may in the event have been given many years before a case comes before it and in very general terms, and in consequence the will to give effect to the judgment may flag or fail. It will be necessary, in some cases, to work hard to revive it. The advantage for the Claimant State (and the respondent to one case may be the claimant in another) is that it is always in a position to seise the court of disputes that affect it, provided of course that the respondent has subscribed to the compulsory jurisdiction without a relevant reservation. A judicial resolution of the dispute is thus guaranteed. An advantage for both sides resides in the fact that it will be much easier to agree in advance on jurisdiction if their relations are sufficiently friendly and not bedevilled by other tensions. Once a dispute arises, however, it is often harder for the disputing States to communicate with each other in a rational way, and to find a suitable space in which they can reach agreement. This includes negotiations about conferring jurisdiction on a third party so that it can decide the dispute, and about that third party’s competence and remit. The advantage from the perspective of the international community is that this system promotes the rule of law in international affairs. International law remains a delicate plant, but the stronger it grows, the weaker the juggernauts of power politics, the less the importance of fluctuating and variable interests, and the smaller the imbalance of initiative in favour of the powerful. Public opinion, however, is not yet sufficiently aware of this; its tendency is to focus almost exclusively on the loss of immediate ‘independence’, overlooking the advantages that the strengthening of the rule of law brings to international relations. There is a failure to understand that, in order to receive, one has to give. All too often, unenlightened selfishness overrides informed reflection on this issue. This is the real reason why the Court’s

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compulsory jurisdiction remains, even today, a very limited one. The opposite side of the coin is a disorderly element in international relations – although we are certainly not suggesting here that all international problems would become soluble simply by recognising the Court’s compulsory jurisdiction over them. Without an appropriate change of attitude to accompany it, a purely externalised and technical recognition of the compulsory jurisdiction would be of only limited assistance. The concepts of compulsory and optional jurisdiction and of consent to the jurisdiction before and after a dispute arises, although they correspond closely, are not a perfect match. Jurisdiction given prior to the moment when a dispute or class of disputes arise can indeed, in exceptional cases, be optional, if the State concerned reserves to itself the right to give or withhold its consent to jurisdiction on a case-by-case basis.808 This turns a compulsory title of jurisdiction into an optional one, whose central axis will be the forum prorogatum. In other words, the Court will have jurisdiction only if the State in question does not object when, in the particular case, the Claimant State seises the Court of the dispute. Conversely, a jurisdiction which is consented to only after the dispute arises can never be compulsory, since it relates only to the particular dispute in question and consent is required before the ICJ can take cognisance of the case. If consent is needed before the Court can have jurisdiction, that consent can take various forms, depending on its modalities and its extent. It can come from agreements, or from unilateral acts taking effect within a mesh of reciprocal ones. Also, the very forms of consent are quite variable. Fundamentally, there are five different kinds: (1) a treaty for resolving international disputes, that makes provision for the Court to have jurisdiction (Article 36, § 1 of the Statute); (2) a jurisdiction clause in a treaty having any subject matter whatsoever (Article 36, § 1 of the Statute); (3) a declaration under the optional clause (Article 36, § 2 of the Statute); (4) a special agreement entered into after the dispute arises (Article 36, § 1 of the Statute); and (5) the forum prorogatum (Article 36, § 1 of the Statute). The first three are mechanisms for accepting the compulsory jurisdiction prior to the moment when a dispute arises; the last two are methods of accepting the optional jurisdiction after a dispute has arisen. The forum prorogatum shows, incidentally, that a formalistic approach is not taken, and that jurisdiction can be established in a very flexible manner. These five ways of establishing jurisdiction will be commented upon in greater detail in the following sections, but first it seems appropriate to address the question of formalism, or rather of the lack of it.

c)  The Absence of Formalism Although the Court requires the parties’ consent before it will exercise jurisdiction, and in principle that consent must be clear and unequivocal, nevertheless the Court is not very concerned with the form in which such consent is expressed. It can be informal or even implied. The forum prorogatum doctrine, which we will return to below, and which is well embedded in the Court’s jurisdprudence, shows this quite clearly. In the case on Minority rights in Upper Silesia (Minority schools, 1928), the PCIJ stated categorically: ‘The acceptance by a State of the Court’s jurisdiction in a particular case is not, under the Statute,   To know whether or not such a reservation is valid is a different matter: see below section 7(g).

808



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subordinated to the observance of certain forms, such as, for instance, the previous conclusion of a special agreement.’809 A simple declaration or attitude, even an implied one, made or exhibited by the respondent in the course of the proceedings, which accepts that the Court can decide a given point, is all that is needed: 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 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.810

This was a classic case of forum prorogatum. In the Corfu Channel case (Preliminary Objection, 1948), the question was whether the acceptance of the Court’s jurisdiction could be signified in an informal manner, outside the modalities contemplated in the Statute, in this case by a simple letter signed by the President of Albania and responding to a recommendation by the Security Council to seise the Court. The Albanian acceptance appeared to the Court to be both voluntary and indisputable, even if it did not take one of the usual forms. The Court said this: 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 particular form . . . The Court cannot therefore hold to be irregular a proceeding which is not precluded by any provision in these texts.811

Once the real wishes of the parties have been established, the actual form is of little importance. A letter will suffice. There is no reason to subject States’ expression of their sovereign will to formal requirements for which there is no particular justification. In passing, one should note the wide interpretation of the texts: the fact that there is no indication of opposition to the Court’s being seised, or to its jurisdiction being established; there is no requirement that the seising of the court, or the establishment of jurisdiction, should be done in conformity with the texts. The provisions as to form are thus cut down to an appropriate size. More recently, in the case concerning Armed activities in the territory of the Congo (DRC v Rwanda, Jurisdiction and admissibility, 2006), the Court made its position just as clear: 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’ . . . 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.812

The Court returned to the same point in the case on Certain questions concerning judicial assistance in criminal matters (Djibouti v France, 2008):   PCIJ, Series A, no 15, 23.   Ibid, 24. Judges Huber, Nyholm and Negulesco dissociated themselves from this view in their Dissenting Opinions, which were attached to the judgment: ibid, 48 et seq.; 56 et seq.; 67 et seq. 811   ICJ Reports 1947/1948, 27–28. 812   ICJ Reports 2006, § 21. 809 810

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The jurisdiction of the Court is based on the consent of States, under the conditions stated therein. However, neither the Statute of the Court nor its Rules require that the consent of the parties which thus confers jurisdiction on the Court be expressed in any particular form;813 ... The Court has also 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 . . . the element of consent must be either explicit or clearly to be deduced from the relevant conduct of a State.814

The jurisprudence is thus eminently consistent and continuous.

d)  Exceptions to the Principle of Consent? At the cost of repetition, the principle of consent has become a kind of dogma, to be reverenced and held inviolate. To contemplate the idea of exceptions to this principle, even in a very distant way, is to risk charges of heresy. There are very strong arguments for a strict and demanding interpretation of the need for consent, and these arguments are completely in line with the Court’s jurisprudence. In the first place, the Court, as an organ of international law, must respect its letter and spirit. The principle of consent is embedded in State sovereignty, and reflected in the Statute. It is not for the Court to ignore or somehow manipulate this fact. Secondly, the Court’s activities, unlike the activities of municipal tribunals, depend fundamentally on the goodwill of those that are subject to its jurisdiction, that is, of the States of the international community.815 That is no reason for the Court either to behave in a servile way or to ignore the limitations inherent in its judicial functions and in its Statute. The Court cannot be unaware that if it were to take too robust a line on consensual jurisdiction, a line disapproved of by the States, there would be a risk that they would withdraw their adherence to the instruments giving the Court jurisdiction, and would become generally disaffected with the Court. A jurisprudence, reflecting the Court’s wish to affirm and excessively extend its jurisdiction would, paradoxically, weaken and restrict it. In addition, too wide a gulf between the pronouncements of the Court and the wishes of the States would have been bound to have some effect on States’ inclination to give effect to the Court’s judgments. The Court could certainly not have gained much from a row of unexecuted judgments. Thirdly, there would have been a risk that the disputes and polemics greeting an over-casual treatment of the consent requirement would   ICJ Reports 2008, § 60.   Ibid, §§ 61–62. 815   Lauterpacht, above n 572, 76 puts the point as follows: ‘A further reason for restraint and caution in the sphere [is] the fact of the voluntary nature of the jurisdiction of international tribunals. An international court which yields conspicuously to the urge to modify the existing law – even if such an action can be brought within the four corners of a major legal principle – may bring about a drastic curtailment of its activity. Governments may refuse to submit disputes to it or to renew obligations of compulsory judicial settlement already in existence.’ cf also RA Falk, ‘Realistic Horizons for International Adjudication’ (1971) 12 Virginia Journal of International Law 314 et seq.; P de Visscher, ‘Cours général de droit international public’ in CCHAIL, vol 136, 1972-II, 178 et seq., especially 183 et seq. 813 814



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have bogged the Court down in recriminations that would hardly have done much for the prestige of the Court and its judicial functions.816 The consensual basis of international justice is therefore both a principle and a rule, both a cornerstone of the judicial edifice and a rule that receives constant concrete application. Unquestionably, this is the dominant rule so far as the establishment of jurisdiction is concerned. Nevertheless, it is only an abstraction, drawn from various concrete titles of jurisdiction. Indeed, the Statute itself does not explicitly lay down the rule at all – it is merely implied. Nowhere in this fundamental text is consent declared to be the exclusive title of jurisdiction. The principle is enshrined not in the Statute, but rather in the jurisprudence of the Court: its origin is essentially a jurisprudential one. Although the idea that jurisdiction is based on will and consent has been formulated in a very absolute way as an abstract principle, its application to particular cases has been remarkably flexible. The necessary legal act,817 of which the manifestation of a State’s will to consent is an integral part, is in truth shadowy, the vagueness or clarity of its outline varying from case to case. It reaches from express will to implicit will, to tacitly expressed will, presumed will, imputed or constructive will, even perhaps to no true will at all (acquiescence through passivity). For this reason it is sometimes possible to interpret the ‘voluntary will to consent’ (according to the pleonastic formula of the Court) in a way which goes beyond any genuine psychological reality. Indeed, more often than not, a will which is described as ‘tacit’ is simply the result of a judge’s putting a reasonable interpretation on the facts of the particular case. This is why examples of forum prorogatum, even when they conform to consensualist theory of the high classical kind, can be interpreted at one and the same time both as flexible applications of the principle of the will to consent and as limitations to (or sometimes even derogations from) that same principle.818 Nor are doses of legal fiction absent even from the most formal declarations of voluntary submission to the Court’s jurisdiction. A declaration under Article 36, paragraph 2 of the Statute could be several decades old by the time the Court is seised of a case under it, and could have been made by a government with very different attitudes from the State’s present government. In such a case, the result may be that the Court will be deciding the case contrary to the strongly expressed will of the current representatives of that State. At the legal level, there is no doubt at all that consent has been expressed. Unless the title of jurisdiction has been withdrawn or annulled, the State remains bound by it. But the political underpinning of that expression of will is now extremely feeble. By contrast, a jurisdiction not founded on the clear will of the State might, in some circumstances, actually be less problematic. This would be the case, for example, if jurisdiction were established by virtue of particularly clear conduct, giving rise to a legitimate and conscious expectation on the part of the government of the State which is the injured party – in other words, jurisdiction by acquiescence or by estoppel. The difficulties would be yet further reduced if the case were between two friendly States and concerned a relatively technical question that was not of any great importance. The reality is that the danger of seeing judgments not carried into execution, the danger of withdrawal from jurisdictional arrangements, and the dangers for 816  S Rosenne, The International Court of Justice (Leiden, 1957) 301–302; Dubisson, above n 480, 204; Fitzmaurice, above n 790, 84 et seq. 817  A legal act is a manifestation of will designed to produce a particular legal effect. cf J Salmon (ed), Dictionnaire de droit international public (Brussels, 2001) 31 (our translation). 818  This ambiguity, and the unease it causes voluntarist commentators, can be gauged by considering B Winiarski, ‘Quelques réflexions sur le soi-disant forum prorogatum en droit international’ in Essays J Spiropoulos (Bonn, 1957) 445 et seq., 452.

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the prestige of the Court that might arise from a robust decision, all these dangers arise every time the Court decides to judge a dispute in the teeth of opposition from the respondent. There is, however, no doubting the fact that the Court must sometimes assert its jurisdiction in this way. This state of affairs is not a sufficient reason to add, to the situations referred to above, other situations in which jurisdiction is a precarious matter. However, when thinking about the ghost continuously haunting all these situations, perhaps we might be a little less inhibited about admitting that, in very exceptional circumstances, the Court’s jurisdiction could indeed be ‘extra-voluntary’, and not truly a reflection of a State’s tangible will to consent. One can envisage two different kinds of exception to the consensualist principle. On the one hand, one could admit that, in exceptional cases, the Court has a jurisdiction based on estoppel and acquiescence (qui tacet consentire videtur si loqui potuisset ac debuisset). Such a jurisdiction perches, so to speak, on the outside ledges of a truly expressed will. On the other hand, it is possible to envisage the Security Council’s having the right to seise the Court and give it jurisdiction by virtue of a binding resolution under Chapter VII of the Charter. Except for cases of forum prorogatum, which may arguably remain within the domain of informal consent, there is no very considerable or persuasive body of jurisprudence on exceptions to the principle of consent. So for many purposes one has to rely purely on first principles. Such exceptions, if one is prepared to admit that they are indeed true possibilities, would surely be interpreted in a very restrictive way. There could be no question of lightly derogating from the rule of consent, given that it reflects, and in a sense expresses, certain principles, effectively set in stone, which govern the way today’s international community is constituted. Moreover in practice, at least in the field of acquiescence and estoppel, there can be no doubt that the Court would not formulate its reasoning on the basis of an exception to the principle of consent. It would prefer to set out its rationale in the context of a flexible and non-formalistic application of that principle. It would thus assert that, by keeping silent in the face of a petition to the Court, a State had accepted the Court’s jurisdiction (acquiescence); or that by giving rise to a legitimate expectation that it would submit to the Court’s jurisdiction (estoppel), the State in question had implicitly consented to it. Discussion about possible exceptions to the sacrosanct principle of consent is obviously a minefield. It would hardly be a skilful tactical move for the Court to blunder straight into the minefield with flags and pennants flying, especially when the painstaking construction of a kind of judicial filigree enables the Court to categorise these situations as implying that consent has indeed been given, albeit informally. That kind of presentation leaves the principle safe and sound, and avoids (if one slightly modifies the still terrifying metaphor) opening the door straight onto a precipice at the foot of which the rocks are strewn with the debris of uncontrollable future consequences. In such a case, the Court would, in substance, indeed be permitting an exception, but the exception would be dressed in the camouflage of consent, a camouflage carefully designed by the Court itself. However, an academic lawyer is not subject to the same constraints of judicial policy. It is easier for him to try to analyse the reality of what is happening. He can try to wipe away some of the greasepaint of legal fiction. In this spirit we turn now to the question of exceptions to the principle of consent. Despite their limited practical importance, the question is all the more interesting because no other commentator has given them much attention, and it is worth looking at some of the detailed implications, both for that reason and because of the subject’s theoretical interest. Those uninterested in (theoretical) digressions, however, can safely ignore the next few pages.



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Jurisdiction by acquiescence/estoppel on a non-voluntary basis. Can the jurisdiction of the ICJ in a particular case be founded on estoppel or acquiescence819 resulting from the behaviour of one of the parties prior to the time the Court was seised or before any procedural step was taken? (After the Court has been seised, the question merges into the forum prorogatum, which will be considered later.) Defined in these terms, the question has not been much discussed. On rare occasions, most often in the context of arbitration, commentators have come to the conclusion that acquiescence or estoppel can give rise to jurisdiction. Mr Reisman has expressed this view. Discussing the effects of estoppel, he concludes: ‘If a communication creates an expectation of arbitration, that, if not executed, will prejudice the position of the other party, jurisdiction is founded by creative as opposed to extinctive prescription.’820 S Rosenne took the same view: If State A by its conduct induces in State B the belief, which is acted upon, that State A will accept, or will not contest, the jurisdiction if State B brings a certain issue before the Court for decision, then State A ought not to be permitted, subsequently, to contest the jurisdiction of the Court when that issue is brought before the Court for decision.821

It is important to distinguish the two roles that estoppel and acquiescence can play in this context. On the one hand, the specific conduct of one or more of the parties to a dispute can operate as an autonomous basis of jurisdiction. Here, the principles discussed above are playing a creative role, in that their function is positive or attributive. On the other hand, estoppel or acquiescence can prevent a party from raising a Preliminary Objection to jurisdiction or admissibility where the jurisdiction is based on a distinct and pre-existing title. In this case their function is negative or deprivatory. The jurisprudence has been faced with both these situations. (1) Estoppel and Acquiescence as Autonomous Bases of Jurisdiction The Court has never made a decision exclusively on the basis that its jurisdiction is established by virtue of conduct giving rise to a legitimate expectation. The practice of the ICJ nevertheless provides us with various indicators in this regard. In the case on the Temple of Preah Vihear (Preliminary Objections, 1961),822 the Court had to examine the validity of a new declaration accepting its jurisdiction under Article 36, paragraph 2 of the Statute, made by Thailand in 1950.823 Thailand argued, after the event, that its former declaration in 1940, deposited with the PCIJ, had lapsed with the 819   As to the precise meaning of these two concepts, see R Kolb, La bonne foi en droit international public (Paris, 2000) 339 et seq., 357 et seq. The only point which needs emphasis here is that we are not giving these two concepts the same scope as a legal act, ie as a declaration of will, whether an explicit or implicit one. Rather, it is a question of objective legal principles under which certain legal consequences arise from various kinds of behaviour, by virtue of a rule of law independent of the will of the parties. The two concepts are concerned with the protection of the legitimate expectations of one party to a social interaction. They flow from the general principle of good faith. Acquiescence gives rise to an obligation when a person or entity, faced with certain facts remains passive when good faith would require him or it to make known any objection he might have. Estoppel is concerned with the protection of the trust created by one party’s deliberate and voluntary attitude and another party is able to and does, in good faith, rely, in determining its own conduct, on the resulting representation, and would suffer some loss or damage if it were permissible for the first party to change its initial behaviour without there being consequences. 820   WM Reisman, Nullity and Revision (New Haven/London, 1971) 394. 821   S Rosenne, The Law and Practice of the International Court, 2nd edn (Dordrecht/Boston/London, 1985) 322. 822   ICJ Reports 1961, 17 et seq. 823   Ibid, 24 et seq.

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dissolution of that court on 19 April 1946. Consequently, it argued, Article 36, paragraph 5 of the Statute did not operate so as to transfer jurisdiction from the PCIJ to the ICJ.824 In making a new declaration in 1950, Thailand simply misunderstood the legal position. It followed, according to the Thai argument, that the new declaration in 1950 was necessarily invalid and inoperative, since its very purpose had disappeared with the dissolution of the PCIJ.825 The Court rejected this argument and declared that it had jurisdiction.826 Its analysis relied on acquiescence to confirm an interpretation reached by other means. Acquiescence corroborated the agreement to jurisdiction based on the new optional declaration in 1950. The Court put it as follows: To sum up, when a country has evinced as clearly as Thailand did in 1950, and indeed by its consistent attitude over many years, an intention to submit itself to the compulsory jurisdiction of what constituted at the time the principal international tribunal, the Court could not accept the plea that this intention had been defeated and nullified by some defect not involving any flaw in the consent given (italics added).827

The Court thus relied on ‘intention’ – apparently meaning, by that word, to refer primarily to the legal act of 1950, that is, Thailand’s voluntary declaration. The subsidiary argument, relating to Thailand’s ‘consistent attitude’, is probably best interpreted as an independent element, concerned with the application of normative principles such as acquiescence in the face of silence and conduct. The Court’s reasoning, connecting them formally to intention (‘indeed by its consistent attitude . . . intention to submit itself . . .’) indicates the point made above, that the Court hesitated to expose itself to the criticism that it had admitted an extra-voluntary element into the context in which its jurisdiction was established. Above all, however, it is the case of the Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility, 1984), still on the interpretation of Article 36, paragraph 5 of the Statute, that the question of jurisdiction by acquiescence received the most significant amount of attention.828 It is worth pausing for a moment to consider this case, which was made especially complex both by the number of facts that were in issue and by the singular position of Nicaragua.829 The Court was faced with a declaration accepting the jurisdiction of the PCIJ under Article 36, paragraph 2 of the Statute. The history of that declaration was, to say the least, an unusual one. In 1935 the Senate of Nicaragua, and then the Chamber of Deputies, had approved the optional declaration proposed by their government: it had been formulated as early as 1929. A telegram had been sent by the Nicaraguan Minister of Foreign Affairs to the League of Nations, notifying the League of Nicaragua’s ratification of the declaration. The telegram stated that the instrument of ratification would be sent to Geneva, but in fact it was never received. It seems to have been 824  ‘Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.’ 825   ICJ Reports 1961, 26. 826   Ibid, 27 et seq. 827   Ibid, 34. 828   See Eisemann, ‘Compétence’ above, n 771, 372 et seq., 376–78; HW Briggs, ‘Nicaragua v United States: Jurisdiction and Admissibility’ (1985) 79 AJIL 374; Rosenne, above n 821, 322; ML Wagner, ‘Jurisdiction by Estoppel in the ICJ’ (1986) 74 California Law Review, 1777 et seq.; Lang, above n 668, 72–87; DW Greig, ‘Nicaragua and the United States: Confrontation Over the Jurisdiction of the International Court’ in BYIL, vol 62 (1991) 158 et seq.; S Oda, ‘The International Court of Justice Viewed from the Bench (1976–1993)’ in CCHAIL, vol 244, 1993VII, 45–47. The citations abbreviated in the present section refer to the present note – eg Lang, above n 668, 43. 829   ICJ Reports 1984, 412, § 46. See also JG Merrills, ‘The Optional Clause Revisited’ in BYIL, vol 64 (1993) 199.



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sent by a sea-borne courier during the Second World War, and was probably lost in transit.830 The question was whether the 1929 declaration, which unquestionably had not acquired full binding force, might nevertheless benefit, as an imperfected legal act, from the transfer from the PCIJ to the ICJ under Article 36, paragraph 5 of the Statute. If it did, the simple deposit of a Nicaraguan instrument of ratification might perfect the 1929 Declaration and establish the Court’s jurisdiction over the present case.831 The essential legal question was thus whether Article 36, paragraph 5 of the Statute presupposed an optional declaration that was formally perfected and in force, or whether an unperfected legal act could also benefit from the transference to the new Court and there be completed by means of the necessary formalities. The Court took the view that Article 36, paragraph 5 should be given a wide interpretation. The essential concern of those who drafted the Statute was to maintain the greatest possible continuity between the PCIJ and the ICJ. The point was to avoid loss – of whatever nature – resulting from the transfer of judicial activity from the old court to the new.832 The interpretation that was most consistent with this conception and with this objective was the one that preserved even the potential (or unperfected) effects of the 1929 declaration, that is, its capacity to be subsequently perfected through the necessary formalities.833 On the basis of these considerations, the words ‘still in force’ and ‘for the period which they still have to run’ in Article 36, paragraph 5, ought to be interpreted in a restricted sense. Having reached this point, the Court sought confirmation for its conclusion. It was at this point that it brought in considerations concerning jurisdiction by acquiescence. This was another case in which the Court was not seeking to found its jurisdiction on an autonomous basis of this kind, but only to use it to buttress an interpretation reached by other means. In this regard, the Judges noted that the first ICJ Yearbook for 1946/1947, showed Nicaragua in the list of States bound by optional declarations under Article 36, paragraph 5 of the Statute.834 This had not been the case in the PCIJ’s sixteenth (and final) report.835 Only with the Yearbook for 1955/1956, and thereafter, was the reference to Nicaragua accompanied by a footnote indicating that the instrument of ratification had never been received by the League of Nations. Nicaragua nevertheless continued to appear on the list of States bound by the optional clause.836 The same went for numerous other documents in which Nicaragua was considered to have submitted to the compulsory jurisdiction: namely, from 1968, the Court’s Annual Reports to the UN General Assembly (which did not mention the failure to deliver the instrument of ratification837); and various publications that had come out under the responsibility of the UN Secretary-General.838 This practice had continued for some 40 years, without any protest. What were the legal consequences? The Court’s argument was in five stages.   ICJ Reports 1984, 399–400.   On the other hand, if Nicaragua deposited a new declaration, without retroactive effect, the Court would not have had jurisdiction in the case, because the USA had in the meantime withdrawn its optional declaration. 832   ICJ Reports 1984, 407–408. This interpretation is analysed minutely, and with approval, by Greig, above n 828, 123 et seq. 833   Ibid, 404. 834   ICJ Reports 1984, 401–402, 408–409. 835   Ibid, 401. 836   Ibid, 402. 837   Ibid, 402. 838   Ibid, 402–403. On these questions, see particularly, Greig, above n 828, 125 et seq., 158 et seq.; Lang, above n 668, 72 et seq. 830 831

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First, the Court indicated that it did not intend to rely decisively on any of the various publications cited. They were all exclusively documents that were part of the Court’s administrative activities, and, as indeed the documents themselves indicated, were not binding either on States or on the Court in its judicial activity. The Court’s view of them was quite different: It is that the listing found appropriate for Nicaragua amounted over the years to a series of attestations which were entirely official and public, and extremely numerous, and ranged over a period of nearly 40 years; and that hence the States concerned – first and foremost, Nicaragua – had every opportunity of accepting or rejecting the thus-proclaimed application of Article 36, paragraph 5 . . .839

Hence: Having regard to the public and unchanging nature of the official statements concerning Nicaragua’s commitment under the Optional-Clause system, the silence of its Government can only be interpreted as an acceptance of the classification thus assigned to it. It cannot be supposed that that Government could have believed that its silence could be tantamount to anything other than acquiescence.840

Certain judges and commentators have severely criticised this line of reasoning. First, it has been said that the Court was giving excessive weight to administrative texts which had no binding force.841 That objection seems, however, to confuse binding force with probative value. The Court took great pains to indicate that the only value of these publications was as an element influencing the question of interpretation, for which purpose a document does not need any particular legal status, and a fortiori does not need to have any legally binding force. It was also said that the information provided in these publications as to Nicaragua’s legal situation was unclear because of the footnotes relating to non­ ratification.842 But these footnotes were certainly not designed to nullify the sense of the principal text, and could not do so. They simply provided a point of information, without invalidating what was said in the body of the text.843 Besides, it was not the Yearbook and other entries, as such, which were the subject of the acquiescence. It was more a certain interpretation of them, according to which the entries showed an opinio juris of being bound to the compulsory jurisdiction. In addition, three other plausible arguments have been made against the Court’s interpretation. However, whether to refute them or confirm them would involve us in an analysis for which we do not have space here. One was that Nicaragua’s attitude was not clear and consistent, and that therefore it could not be interpreted as acquiescence.844 This raises questions of fact. The interpretation of the Court does not, however, seem arbitrary. Then   ICJ Reports 1984, 409, § 38.   Ibid, 410, § 39. 841   Dissenting Opinion of Judge Oda, ibid, 488; Dissenting Opinion of Judge Jennings, ibid, 540–41; Dissenting Opinion of Judge Schwebel, ibid, 594. cf also Eisemann, ‘Compétence’, above n 771, 376. For an opposing view: Greig, above n 828, 138 et seq. and Lang, above n 668, 74 et seq. 842   Dissenting Opinion of Judge Oda, ibid, 484 et seq.; Dissenting Opinion of Judge Jennings, ibid, 541 et seq.; Dissenting Opinion of Judge Schwebel, ibid, 588–92. See also Eisemann, ‘Compétence’, above n 771, 376. Professor Greig subjected the question to minute analysis and concluded that the footnoted caveats were part of the backwash from the Norwegian loans case of 1957: Greig, above n 828, 141 et seq. Another explanation is given in the Dissenting Opinion of Judge Jennings, ICJ Reports 1984, 543 and the Dissenting Opinion of Judge Schwebel, ibid, 590–91. 843   Lang, above n 668, 76; Greig, above n 828, 144. 844   Eisemann, ‘Compétence’, above n 771 377–78; Separate Opinion of Judge Mosler, ICJ Reports 1984, 464. 839 840



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it was said that Nicaragua could and should have put an end to all misunderstandings about its position by delivering its instrument of ratification to the UN Secretary-General or alternatively by sending him a fresh declaration. According to this argument, the Court, in finding that there had been acquiescence, enabled Nicaragua to profit from its own wrong.845 One may reasonably wonder whether the wrongdoing was sufficiently serious to justify debarment. It is doubtful whether Nicaragua should have been sanctioned for not taking steps it was under no obligation to take. Finally, it has been argued that the absence of any binding force in the publications mentioned meant that there was no parallel duty to protest. Nicaragua’s silence would, in that case, not be the kind of silence required for acquiescence, since Nicaragua would have been under no legal obligation to react.846 However this argument overlooks the fact that the duty to break one’s silence does not depend exclusively on the legal value of the act one might protest about. It is enough that the legal interests of the State in question are affected. It follows that the Court’s argument was not a priori defective. Second, to buttress its conclusion on acquiescence, the Court relied on a reciprocity argument. It considered the hypothetical situation in which Nicaragua might have found itself in the position of the respondent to a claim brought by another State which sought to establish the Court’s jurisdiction on the basis of the 1929 declaration. The Court concluded that ‘probably’, if Nicaragua had disputed the Court’s jurisdiction, its argument would have been rejected because of its long silence. But the Court’s jurisdiction cannot depend on the position of a State in proceedings before it as claimant or as respondent. It follows that: If the Court considers that it would have decided that Nicaragua would have been bound in a case in which it was the Respondent, it must conclude that its jurisdiction is identically established in a case where Nicaragua is the Applicant.847

That argument was as strongly disputed as the preceding ones. Eisemann considered it a circular argument.848 Indeed, it does not seem that the reciprocity in question can be considered to be without defects.849 Acquiescence or estoppel can serve as the basis of jurisdiction only if one party can invoke the argument against the other party in a concrete case, either as the basis of the action (positive function), or as a ground for debarring an objection (negative function). They cannot be used to justify a defective title or basis of jurisdiction without regard to the attitude of the opposing party, at least not without taking into consideration the duty to react. That being so, the Court’s argument cannot be considered to be entirely without value. It is part of the logic of a hypothetical argument in favour of a given interpretation. Third, the Court took account of the conduct of States other than Nicaragua. It concluded that none of them had ever challenged the interpretation evidenced by the UN publications.850 It must, however, be admitted that the absence of such a reaction is of little probative value. It cannot reasonably be expected that third States not directly affected, and with no concrete connection to Nicaragua’s particular situation, would have looked into the matter and reacted accordingly.   Separate Opinion of Judge Mosler, ICJ Reports 1984, 464. See also Lang, above n 668, 81.   Eisemann, ‘Compétence’, above n 771, 377. 847   ICJ Reports 1984, 410, § 39. 848   Eisemann, ‘Compétence’, above n 771, 378, fn 33. 849   cf the reservations expressed by Greig, above n 828, 162–63. 850   ICJ Reports 1984, 410, §§ 40, 41. 845 846

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Fourth, the Court was getting further detached from the interpretation of Article 36, paragraph 5 of the Statute, with which all the preceding arguments were to a greater or lesser degree concerned. It was now getting closer to the heart of an argument to the effect that the conduct of the parties might, in itself, be a basis of jurisdiction.851 According to Nicaragua’s argument, indeed, its conduct ‘over a period of 38 years unequivocally constitutes consent to be bound by the compulsory jurisdiction of the Court’.852 The Court, in an obiter dictum, accepted this possibility, thus giving credit to the argument for jurisdiction by acquiescence. This, however, leads back to the ‘consent’ to which this category of passive attitudes is considered to give expression. In this way, the Court pays tribute to the judicial prudence highlighted above. It begins by recognising the unusual nature of Nicaragua’s situation.853 It follows this by saying: [The Court] considers therefore that, having regard to the origin and generality of the statements to the effect that Nicaragua was bound by its 1929 Declaration, it is right to conclude that the constant acquiescence of that State in those affirmations constitutes a valid mode of manifestation of its intent to recognize the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute854

Here, then, the Court is appealing explicitly to the ‘intent’ – the word being used without any qualification. However, it did not attempt to prove the real wishes of Nicaragua. In reality, the Court interpreted the acts in question on the basis of appearances and of the legitimate expectations they inspired. Two main objections have been raised to any kind of jurisdiction based on acquiescence or estoppel, seen as extra-voluntary legal phenomena. The first objection does not really seem to call for much comment. It has been argued that the Court’s jurisdiction is exclusively consensual and that therefore estoppel and normative acquiescence, not the consequence of an act of will, cannot give the Court jurisdiction.855 In the author’s view, this merely begs the question. The second objection is a question of form. The USA,856 and some authors,857 have argued that a declaration expressing a State’s consent to the jurisdiction is an act which is necessarily linked to a certain form. It must be done by depositing a document with the Secretary-General of the United Nations. Also, the manifestation of will must be clear. Consent interpreted from conduct or silence is insufficient for these purposes. This line of argument should be rejected. Consent need not be given in any particular form. The practice of the Court in relation to the lack of formalism, like its jurisprudence on the forum prorogatum (among other cases, those on Minority schools and the Corfu Channel, cited above) shows this clearly. Fifth and finally, the Court rejected the United States’ argument that an estoppel would prevent Nicaragua’s arguing that it had acquiesced in the Court’s jurisdiction.858 The con-

  Ibid, 411, § 43, 413, § 47.   Ibid, 411, § 43. 853   Ibid, 412, § 46. 854   Ibid, 413, § 47. 855   Wagner, above n 828, 1800–801. 856   ICJ Reports 1984, 411–12, § 44. 857  Wagner, above n 828, 1800. cf also the Dissenting Opinion of Judge Ruda, ICJ Reports 1984, 459; the Dissenting Opinion of Judge Ago, ibid, 527; the Dissenting Opinion of Judge Schwebel, ibid, 595. Contra, Greig, above n 828, 158 et seq. cf also Lang, above n 668, 81 et seq. 858   ICJ Reports 1984, 413–15, §§ 48–51. cf Lang, above n 668, 85–87. 851 852



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ditions for an estoppel were not, in the Court’s view, satisfied.859 That view does appear to have been justified. In the Nicaragua case, the Court thus gave a certain credibility to the idea of jurisdiction by acquiescence or estoppel, without however, actually going so far as to cross the conceptual line between the ‘voluntarist’ concept and concepts based on legitimate expectation. In our view, the concept ‘good-faith/legitimate expectation’ can, as a matter of law and via the intervention of an acquiescence or an estoppel, be a basis for the Court to have jurisdiction independently of any ‘voluntarist’ interpretation. However, any such case would be exceptional, and it is absolutely essential that this remain the position. In particular, it is essential to be vigilant to ensure that the strictest conditions required for acquiescence or estoppel are manifestly satisfied in such cases, before concluding that jurisdiction exists on this (at least partially involuntary) basis. (2)  Estoppel and Acquiescence as Factors Nullifying the Plea of Want of Jurisdiction. Estoppel and acquiescence can also play a more limited role, by preventing a party from raising a preliminary objection to jurisdiction or admissibility. There is extensive jurisprudence on this point. The first thing to say about this jurisprudence is that the rule has sometimes been stated to be a rule, without actually being applied to the particular cases in question. So, in the case on the Aerial incident of 3 July 1988 (Iran v United States of America, Order, 1989), the Court noted the Iranian argument put forward in a letter of 11 October 1989, that ‘the United States was estopped and time-barred from raising jurisdictional questions’.860 The case was thereupon struck out of the Court’s role, on the basis that the parties had reached a direct agreement. This type of argument is no new feature of international practice. In the case on the Pious funds of California (1902), an arbitration between Mexico and the USA, the latter claimed that Mexico had acted in such a way that, under the principle of estoppel, it no longer had any right to dispute the jurisdiction of the Mixed Arbitral Commission which had been established.861 The terms of the agreement to arbitrate, and the questions put to the tribunal, enabled the latter not to decide the various arguments that were advanced on the estoppel issues.862 In the case on the Aegean Sea continental shelf (1978), the Greek ad hoc Judge Stassinopoulos took the view that Turkey’s prolonged silence as to the validity of the General Act on Arbitration of 1928 – after the question had received heavy publicity thanks to the Nuclear Tests cases – prevented Turkey from pleading desuetude and thereby depriving the Court of a basis on which its jurisdiction could be founded.863 The rule has, however, sometimes been given actual concrete application. For example, in the case of Loizidou v Turkey (Preliminary Objections) (1995), the European Court of Human Rights took the view that the Turkish government’s allegation that the principal objective of the claim was to make political propaganda was not only unfounded, but could not be raised as a preliminary objection, by virtue of the principle of estoppel. The reason was that the objection had not been raised earlier, at the time of the proceedings before the   Ibid, 415, § 51.   ICJ Reports 1989, 133. 861   H Lauterpacht, Private Law Sources and Analogies of International Law (London, 1927) 248–49. 862   Ibid, 249. 863   Dissenting Opinion of Judge Stassinopoulos, ICJ Reports 1978, 73. 859 860

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Commission.864 As far as the ICJ itself is concerned, an important case for present purposes was Barcelona Traction (Preliminary Objections, 1964). Belgium had made a fresh application to the Court, having previously discontinued earlier proceedings so that direct negotiations could proceed. The basis Belgium invoked to establish the Court’s jurisdiction was a Hispano-Belgian treaty of 1927, Article 17, paragraph 4 which gave jurisdiction to the PCIJ. The Court therefore had to interpret Article 37 of the Statute, transferring the PCIJ’s jurisdiction to the ICJ. In support of its conclusion, it relied on acquiescence or estoppel: The Respondent Government, in the course of the diplomatic correspondence preceding the original proceedings before the Court . . . implicitly recognised the competence of the Court for the purposes of Article 17(4) of the 1927 treaty, and challenged the right of the Applicant Government to resort to the Court only on grounds connected with the third and fourth Preliminary Objections in the present case. It did not demur when the Applicant stated that the International Court of Justice had been substituted for the Permanent Court in Article 17(4) of the Treaty.865

This passage shows that the principles of acquiescence and estoppel do apply to preliminary objection proceedings. The principle we are concerned with here was applied in an interesting way, outside the field of jurisdiction, in the case of the Land, island and maritime dispute (El Salvador v Honduras, Nicaragua’s request to intervene, 1990). Nicaragua had requested to intervene under Article 62 of the Statute, with a view to taking part in the proceedings between El Salvador and Honduras. Nicaragua thought it unnecessary to produce evidence to show that it had a ‘legal interest’ which would be in issue, as required by that Article. In Nicaragua’s view, El Salvador and Honduras had made assertions of fact and law which amounted to recognition of Nicaragua’s legal interests, and were now prevented by equi864   PCIJ, Series A, no 310, 19, § 42 et seq. Since 1970 the European Court of Human Rights has examined the principle of estoppel in light of State conduct which, in some hundreds of cases, had never raised a Preliminary Objection before the Commission or in a relevant Memorial. In a majority of cases, the ECHR has given effect to estoppel arguments, either completely or at least as regards certain objections. See, eg the case of De Wilde, Ooms et Versyp (1971), PCIJ, Series A, no 12, §§ 53 et seq., 57, 58; the Artico case (1980), PCIJ, Series A, no 37, §§ 27–28; the Corigliano case (1983), PCIJ, Series A, no 57, §§ 25–27, 28–29; the case of Foti and others (1982), Series A, no 56, §§ 42–43, 49; the case of De Jong, Baljet et Van den Brink (1984), PCIJ, Series A, no 77, §§ 35, 37, 38–40; the Bozano case (1986), PCIJ, Series A, no 111, §§ 44–47; the case of Barberà, Messegué and Jabardo (1988), PCIJ, Series A, no 146, §§ 56, 58, 63; the Ciulla case (1989), PCIJ, Series A, no 148, §§ 28–29, 33; the Bricmont case (1989), PCIJ, Series A, no 158, §§ 72–73; the Granger case (1990), PCIJ, Series A, no 174, §§ 37–41; the Obermeier case (1990), PCIJ, Series A, no 179, §§ 65–66; the Isgrò case (1991), PCIJ, Series A, no 194-A, §§ 28–29; the case of Pine Valley Development Ltd (1991), PCIJ, Series A, no 222, § 45; the Tomasi case (1992), PCIJ, Series A, no 241-A, §§ 105–106; the Padovani case (1993), PCIJ, Series A, no 257-B, §§ 19–20; the Papamichalopoulos case (1993), PCIJ, Series A, no 260-B, §§ 35–36; the Schuler-Zgraggen case (1993), PCIJ, Series A, no 263, §§ 54–55; the case if the Greek Stan Refineries (1994), PCIJ, Series A, no 301-B, §§ 31–36; the Mansur case (1995), PCIJ, Series A, no 319-B, §§ 45–48; the case of Yagci and Sargin (1995), PCIJ, Series A, no 319-A, §§ 45–46; the Erdagöz case, ICJ Reports 1997-VI, §§ 45–46; the Szücs case, Reports, 1997-VII, § 40; the Werner case, ICJ Reports 1997-VII, § 42; the Zana case, ICJ Reports 1997-VII, § 65; the case of Sakik and others, ICJ Reports 1997-VII, §§ 47–48, 55–56; the Kaya case, ICJ Reports 1998-I, §§ 56–60; the case of Gautrin and others, Reports, 1998-III, §§ 49–51; the Vasilescu case, ICJ Reports 1998-III, §§ 33–34; the Güleç case, ICJ Reports 1998-IV, §§ 60–62; the Ergi case, ICJ Reports 1998-IV, §§ 60–62, 65–67; the case of Demir and others (1998), §§ 32–35; etc. In these cases the Court never examined the question of prejudice, which was inherent in the objection which it was concerned with rejecting. In other cases, the Court has examined estoppel, but rejected it, either because an argument had already, in substance, been presented before the Commission, or because special circumstances prevented the State from invoking the objection at an earlier stage. cf eg the Guzzardi case (1980), PCIJ, Series A, no 39, §§ 68–70; the Deweer case (1980), PCIJ, Series A, no 35, §§ 25–26; the Van Oosterwijck case (1980), PCIJ, Series A, no 40, §§ 25–26; Eckle (1982), PCIJ, Series A, no 51, § 65; Campbell and Fell (1984), PCIJ, Series A, no 80, §§ 58–59; Nölkenbockhoff (1987), PCIJ, Series A, no 123, § 32; Pfeifer and Plankl (1992), PCIJ, Series A, no 227, §§ 31–35; etc. 865   ICJ Reports 1964, 36.



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table estoppel from disputing their existence.866 In light of its view of the facts, the Chamber of the Court rejected this argument, on the basis that the conditions for an estoppel had not been established.867 The Chamber thus seems, by implication, to have admitted that estoppels can apply in such situations. From a general perspective, however, this attitude does not seem altogether desirable. Estoppel can arise only from the legal relationships of parties, on an inter partes basis. It cannot in any circumstances prejudice the question whether an application to the Court complies with the objective requirements of its Statute, of which the only guardian is the Court itself. If there can be no derogation from the Statute even by agreement between the parties, a fortiori there can be no derogation by acquiescence or estoppel. Jurisdiction arising from a binding resolution of the Security Council? Does the Security Council have power, by means of a resolution under Chapter VII of the UN Charter, to compel the parties to a dispute to have recourse to the binding jurisdiction of the ICJ? And there is a further and distinct question, namely does the Security Council have power, via a resolution under Chapter VII, to confer directly on the Court jurisdiction in contentious cases? On one hand, these questions have been answered in the negative, on the basis that Article 36, paragraph 3 of the Charter only gives the Security Council a power to recommend that cases be referred to the Court. The travaux préparatoires on the Charter support this view. Indeed, a proposal to give the Council the power to oblige the parties to seise the Court was turned down.868 If the Security Council cannot bind the parties to seise the Court, then a fortiori it cannot of its own volition give the Court jurisdiction. On the other hand, there have been those prepared to advance arguments in favour of the idea that the Security Council has such a power, and a very few commentators also think that the Council can itself confer jurisdiction on the Court.869 Most of them, however, think that impossible, while still believing that the Council can oblige parties to seise the Court of disputes.870 The negative arguments are based on the supposition that Chapter VI of the Charter, on the peaceful resolution of disputes, is the sole sedes materiae of the Security Council’s powers as regard the Court’s jurisdiction. However, there is no a priori impossibility in the claim that the Council could also impose recourse to the Court under Chapter VII, if it considers that, on an exceptional basis, this is the most appropriate way of dealing with a threat to international peace, a breach of that peace or an act of aggression. It would indeed be possible to argue by analogy that, if the Council can create tribunals with compulsory jurisdiction – such as ad hoc criminal courts – it must also (perhaps a fortiori) be able to impose a requirement to seise a jurisdiction which is already in existence.871 Article 36, paragraph 3 of Chapter VII would, in that case, not be the only basis for referring a case to the Court; it would co-exist with the powers conferred by Chapter VII. Moreover, from a   ICJ Reports 1990, 118, § 63.   Ibid, 118–19, § 63. 868   cf M Bourquin, ‘Pouvoir scientifique et international law’ in CCHAIL, vol 70, 1947-I, 387. In the same sense: B Graefrath, ‘Iraqi Reparations and the Security Council’ (1955) 55 ZaöRV 12 et seq.; P Manin, L’organisation des Nations Unies et le maintien de la paix (Paris, 1971) 69 et seq. 869   See particularly, H Kelsen, ‘The Settlement of Disputes by the Security Council’ (1948) 2 ILQ 213; Tomuschat, ‘Article 36’ above n 482, 617. 870   See G Morelli, Studi sul processo internazionale (Milan, 1963) 63–64. 871   In the latter case, it would not, however, be a matter of jurisdiction over cases involving individuals, but of recourse to a court of justice to resolve inter-State disputes. 866 867

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general point of view, that is in fact the undisputed interpretation of the relationship between the two Chapters. If one assumes that a binding resolution of the Security Council could not automatically give the Court jurisdiction, and that it would remain necessary for the parties to enter into a special agreement giving effect to the Council’s binding resolution by conferring that jurisdiction on the Court, the next question is what would be the position if the parties refused to give effect to the resolution? Could they, by refusing, place an obstacle of indefinite duration in the path of the Council’s binding decision, thus rendering it nugatory? In this context one might be tempted to give a wide reading to Article 36, paragraph 1 of the Statute, which provides that the Court’s jurisdiction extends to ‘all cases which the parties refer to it and all matters specially provided for in the Charter’ (italics added). If one gets away from what this provision was concerned with at the time it was drafted,872 and if one avoids giving any great weight to the word ‘specially’, it would be possible to argue that, in exceptional cases, and if the Security Council says so unambiguously, a binding resolution by it could also operate directly so as to give jurisdiction to the Court.873 Such a course would avoid the problem of the parties not seising the Court in accordance with the orders of the Security Council. However, given the wide-ranging implications of any such proceeding, it would doubtless be preferable to achieve this result by a formal revision of the Statute. On the other hand, we know that subsequent practice has frequently made possible major constitutional developments within the United Nations. It does not appear to be entirely out of the question de lege lata for the Court to obtain jurisdiction by virtue of a Security Council resolution under Chapter VII. Such a result would be a welcome reinforcement of the international rule of law. That power of the Council would have, in any event, to be exercised with extreme circumspection and only in cases where the Council considered that the Court could make an essential or indispensable contribution to the adequate solution of a conflict which was essentially a legal one. Otherwise one would be creating a binding jurisdiction over States by a distorted use of the duty and obligation to keep the peace. Given the limitations of the Council’s attitude to the Court, the question seems for the time being to be a rather theoretical one. In the final analysis, no very firm conclusion can be reached on this point. Legally, given the current interpretation of Chapter VII, the Security Council could, no doubt, direct the parties to seise the Court of their dispute. It is doubtful, however, whether such a Security Council resolution would create an autonomous basis of jurisdiction. In short, it is possible, at a theoretical level, to envisage making marginal exceptions to the purely consensual jurisdiction of the Court. Nevertheless, for prudential reasons, the 872   As regards the argument from the travaux préparatoires, there is no reason for a modern interpretation if the Charter to be bound by the thinking of 1945. As a matter of international practice, especially as regards ‘constitutive’ texts, recourse to travaux préparatoires is, moreover, considered only an aid. 873   In this sense see Tomuschat, ‘Article 36’, above n 482, 617; Kelsen, ‘The Settlement of Disputes by the Security Council’, above n 868, 213. One would not, however, wish to argue that the binding resolution of the Council prevails over the conditions for jurisdiction as set out in Art 36 of the Statute by virtue of Art 103 of the Charter. Art 103 does not apply to the relationship between the Charter and the Statute, the latter being an integral part of the former (Art 92 of the Charter). It is concerned only with normative conflicts between the Charter itself and other elements of international law under treaties and conventions. The focus should rather be on the words ‘all matters specially provided for . . .’ in Art 36, § 1 of the Statute, as showing that the application by the Security Council of its rights under Chapter VII falls within this provision. Once some precedents had been established, it would eventually be possible to identify a new institutional custom giving the Council such power. It would also be possible – but legally very difficult – to argue that Art 36, § 1 does not contain an exhaustive statement of the means by which the Court can acquire jurisdiction.



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Court will never construe acquiescence or estoppel as true exceptions to the general rule, and it is unlikely that international practice will provide many, if indeed any, examples of binding Security Council resolutions requiring parties to seise the Court of their dispute or attempting on an autonomous basis to give rise to such jurisdiction, since doubtless the Security Council itself has little inclination to set so ‘revolutionary’ a precedent. For practical reasons, then, it is justifiable to assert that the principle of consent is the decisive element in the Court’s jurisdiction, and that at present no other element offers any real challenge to its role.

e)  First Head of Jurisdiction: Treaties for the Peaceful Resolution of Disputes First, consent to the Court’s jurisdiction can be expressed in general treaties, whether bilateral or multilateral, whose purpose is the peaceful resolution of disputes.874 The parties agree to resolve some or all of the legal disputes which may arise between them in the manner provided for in the treaty. In such cases, the parties normally provide for a whole range of mechanisms of dispute resolution. The Court is only one of them. The exact conditions for one (or both) parties to seise the Court are governed by the treaty terms. There are a small number of multilateral treaties concerned in a general way with the resolution of disputes. The most important ones are as follows. At the global level: the General Act for the Pacific Settlement of International Disputes of 1928, amended at Lake Success on 28 April 1949.875 At regional level: the Inter-American Treaty on the peaceful settlement of disputes (Bogotá, 30 April 1948);876 and the European Convention on the same subject (Strasbourg, 29 April 1957).877 Each of these treaties has been invoked in certain disputes that have been brought to the ICJ.878 The General Act for the Pacific Settlement of International Disputes of 1928/1949 was invoked by the claimant as the basis of jurisdiction in the following cases: Norwegian loans (1957),879 Temple of Preah Vihear (1961),880

874   As to this basis of jurisdiction, see among others, Hudson, above n 504, 438 et seq.; Tomuschat, ‘Article 36’, above n 481, 618–19; S Rosenne, The Law and Practice of the International Court, 1920–2005,vol II (3rd edn, Leiden, 1997) 668 et seq. 875   United Nations Treaty Collection (UNTC), vol 71, no 912. On the General Act for the Pacific Settlement of International Disputes, see among others, E Borel, ‘L’Acte général de Geneva’ in CCHAIL, vol 27, 1929-II, 499 et seq.; H Wehberg, ‘Die Generalakte zur friedlichen Erledigung internationaler Streitigkeiten’ (1929) 29 Die Friedens-Warte, 300 et seq.; JL Brierly, ‘The General Act of Geneva 1928’ in BYIL, vol 11 (1930) 119 et seq.; JG Merrills, ‘The ICJ and the General Act of 1928’ (1980) 39 Cambridge Law Journal, 137 et seq. 876   UNTC, vol 30, no 449. On the inter-American treaty, see among others, H Accioly, ‘El Pacto de Bogotá’ in Inter-American Juridical Yearbook (1948) 3 et seq.; E Turlington, ‘The Pact of Bogotá’ (1948) 42 AJIL 608 et seq.; JL Kunz, ‘Die Bogotá Charter’, (1948/49) 1 AVR 399 et seq.; JL Kunz, ‘Interamerikanische Streitschlichtung unter dem Pakt von Bogotá’ (1950) 2 OZöR, 486 et seq.; C Fenwick, ‘Revision of the Pact of Bogotá’ (1954) 48 AJIL 123 et seq.; H Lehmann, Das interamerikanische System zur friedlichen Beilegung von Streitigkeiten (Bonn, 1969). 877   UNTC, vol 320, no 4646. On the European Convention, see among others, JPA François, ‘La Convention européenne pour le règlement pacifique des différends’ in Annuaire européen, vol 6 (1958) 54 et seq.; J Salmon, ‘La Convention européenne pour le règlement pacifique des différends’ (1959) 63 RGDIP, 21 et seq.; H Wehberg, ‘La Convention européenne pour le règlement pacifique des différends’ in Essays JPA François (Leiden, 1959) 391 et seq.; AC Kiss, ‘Le Conseil de l’Europe et le règlement pacifique des différends’ (1965) 11 AFDI 668 et seq. 878   Such treaties have been invoked only at the ICJ, never before the PCIJ, in relation to which the only relevant contemporary treaty was the General Act of 1928. 879   ICJ Reports 1957, 25. 880   ICJ Reports 1961, 21, 35.

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Nuclear tests (Interim measures, 1973 and 1974),881 Aegean Sea continental shelf (1978)882 and Aerial incident of 10 August 1999 (India v Pakistan, 2000).883 The Court did not have to base its jurisdiction on the Act, because each time it was able to decline jurisdiction on other grounds. This was convenient, because the respective respondents, basing themselves on a body of influential legal opinion, claimed that the General Act of 1928 had fallen into desuetude and no longer applied (an argument which legally was misconceived).884 The Pact of Bogotá was invoked in the following cases: Border and transborder armed actions (Nicaragua v Honduras, Jurisdiction and admissibility, 1988);885 Territorial and maritime dispute between Nicaragua and Honduras in the Caribbean Sea (2007);886 and Territorial and maritime dispute (Nicaragua v Colombia, Preliminary Objections, 2007).887 The European Convention was the subject of a request in the Certain property case (Liechtenstein v Germany, Preliminary Objections, 2005);888 and then again in the case on Jurisdictional immunites (Germany v Italy, 2012).889 The European Convention gives the ICJ a particularly wide jurisdiction. For that reason it has, to date, been ratified by only some 15 States. The position is, however, similar as regards the inter-American treaty, as to which the USA is conspicuous by its absence. The exact scope of the Court’s jurisdiction varies from each of these treaties to the next. It should also be noted that there are a significant number of bilateral treaties for the settlement of disputes that confer jurisdiction on the ICJ. An example is the Treaty of friendship, conciliation and judicial settlement of 14 March 1949 between Italy and Turkey,890 which, in Articles 18 to 24, provides for recourse to the ICJ; or the Treaty of 7 July 1965 on conciliation, judicial settlement and arbitration between Switzerland and the United Kingdom,891 providing for recourse to the Court under Article 14. The Court has indeed been seised of cases on the basis of such clauses. Thus, in the case concerning the Société commerciale de Belgique (1939), a dispute between Belgium and Greece was taken to the PCIJ on the basis of the jurisdiction clause in the 1929 Treaty of Conciliation, arbitration and judicial settlement between the two countries.892 The position was the same in the Barcelona Traction case (new application, 1964), in which Belgium based its case against Spain on Article 17 of their 1927 Treaty of Conciliation, judicial settlement and arbitration.893

  ICJ Reports 1973, 103, 139; ICJ Reports 1974, 254.   ICJ Reports 1978, 5, 13 et seq. 883   ICJ Reports 2000, 23–25. Pakistan had also invoked this basis of jurisdiction in 1973 in the case on the Pakistani prisoners of war, which was rapidly struck from the Court’s list. 884   cf the careful and convincing argument laid out in the Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Waldock, in the Nuclear Tests case, ICJ Reports 1974, 327 et seq. The Act was not so closely tied to the League of Nations that it failed to survive that institution. 885   ICJ Reports 1988, 84 et seq. 886   ICJ Reports 2007, § 1. Honduras did not dispute the Court’s jurisdiction. 887   Ibid, §§ 1, 43 et seq. 888   ICJ Reports 2005, § 1, 18. It was also invoked in the case currently pending before the Court on Jurisdictional immunities (Germany v Italy) – case introduced before the Court in December 2008. 889   At § 1. 890   UNTC, vol 96, no 1338. 891   UNTC, vol 605, no 8765. 892   PCIJ, Series A/B, no 78, 161 et seq. 893   ICJ Reports 1964, 9. 881 882



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(1) The General Act for the Pacific Settlement of International Disputes Article 17 of the General Act, in its 1928 version, provides as follows: All disputes with regard to which the parties are in conflict as to their respective rights shall, subject to any reservations which may be made under Article 39, be submitted for decision to the Permanent Court of International Justice, unless the parties agree, in the manner hereinafter provided, to have resort to an arbitral tribunal. It is understood that the disputes referred to above include in particular those mentioned in Article 36 of the Statute of the Permanent Court of International Justice.

As regards parties to the 1928 Act, but not those to the revised 1949 version, Article 37 of the Court’s Statute applies providing for the transfer of jurisdiction from the PCIJ to the ICJ.894 The revised version of 1949 replaced the expression ‘Permanent Court of International Justice’ by ‘International Court of Justice’ without otherwise modifying the 1928 text. Consequently, a transfer of jurisdiction under Article 37 of the Statute is not necessary in that case. It should also be noted that, as a function of Article 33, paragraph 1 of the General Act, the Court had power to indicate binding interim measures of protection even before that power was generally recognised to exist in the LaGrand case in 2001.895 Article 17 of the 1928 Act rests on the definition of disputes as contained in the Locarno Treaties of 1925 (‘the parties are in conflict as to their respective rights’). It established a residual but binding jurisdiction in the PCIJ/ICJ as regards all cases where an arbitral tribunal was not set up. In other words, each party to a legal dispute (where the ‘parties are in conflict as to their respective rights’) which is also a party to the General Act may (but is no under obligation to) unilaterally seise the Court of the dispute against any other State which is also a party to the General Act. The Court’s jurisdiction is compulsory. The spirit underlying the General Act remained the spirit of ‘peace through law’, so typical of the League of Nations period. Under the General Act, on the one hand all legal disputes are subject to the compulsory jurisdiction of the Court, unless the parties agree to seise some other body of the dispute with a view to its effective resolution. An optional conciliation procedure can, moreover, precede recourse to the Court. On the other hand, all political disputes are subject to a compulsory conciliation process. If it fails to resolve the dispute, it must then be sent for compulsory arbitration. If the arbitrator cannot find any applicable or appropriate rules of international law, he has the power to decide ex aequo et bono. The underlying concept remains that war is the fruit of unresolved disputes and that the struggle for peace involves the institution of compulsory procedures for resolving them. These concepts bear the particular hallmarks of the League of Nations. States can ratify or adhere to the General Act either as a whole, or in relation to parts of the General Act only. They can also do so subject to reservations. Few States have ratified the General Act, and those few have not been slow to subject their ratifications to restrictions reducing the Act’s scope. Like the Geneva Protocol of 1924, the General Act of 1928 was found to be too robust for the great majority of States to be really prepared to accept it for the resolution of disputes.

894   ‘Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.’ 895   ICJ Reports 2001, 501 et seq., §§ 98 et seq.

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(2)  The Inter-American Pact of Bogotá Article XXXI of the Inter-American Bogotá Treaty (also known as the American Treaty on Pacific Settlement) provides as follows: In conformity with Article 36, paragraph 2, of the Statute of the International Court of Justice, the High Contracting Parties declare that they recognize, in relation to any other American State, the jurisdiction of the Court as compulsory ipso facto, without the necessity of any special agreement so long as the present Treaty is in force, in all disputes of a juridical nature that arise among them concerning . . . [there follows the list of subjects contained in Article 36, paragraph 2 of the ICJ Statute].

From the legal perspective, this is an unusual provision. Textually, it seems to operate as an optional declaration in the sense of Article 36, paragraph 2 of the Statute of the Court, the declaration being collectively made by all States that are parties to the Treaty. Those States recognise that they are mutually bound by the Court’s compulsory jurisdiction in respect of proceedings which can be initiated by a unilateral request made by one of their number. Despite this, the system is, as a matter of law, no different from a treaty clause like Article 17 of the General Act for the Pacific Settlement of International Disputes. The Court’s jurisdiction is accepted and defined in the agreement set out in the Bogotá Treaty. It has been argued that Article XXXI might be perceived either as a collective optional declaration in the sense of Article 36, paragraph 2, or as a classic treaty clause in the sense of Article 36, paragraph 1.896 But, given the fact that not all the parties to the treaty lodged individual optional declarations following their ratification of or adherence to it, and given the fact that, until the present time, the Court’s jurisprudence has not treated this clause as giving rise to jurisdiction under paragraph 2 of Article 36,897 and given also the way in which the clause in practice functions, it is more accurate to see it as a treaty clause in the sense of Article 36, paragraph 1.898 Article 36, paragraph 2 is mentioned in the body of the text in order to make more explicit the compulsory nature of the jurisdiction accepted by the parties, the right to seise the Court unilaterally, and the objectives for which the Court is given jurisdiction. It does not, however, found the jurisdiction, and in that sense is not legally ‘constitutive’.   Tomuschat, ‘Article 36’, above n 482, 618–19.   In the case on Border and transborder armed actions (Nicaragua v Honduras, Jurisdiction and admissibility), the Court rejected the Honduran argument that Art XXXI of the Treaty is referable to Art 36, § 2 of the Statute and that consequently reservations in the Honduran optional declaration also applied, by renvoi, to the Court’s jurisdiction under the Treaty. The Court took the view that Art XXXI constituted an independent head of jurisdiction, and that its validity did not depend on additional optional declarations lodged under Art 36, § 2 of the Statute: see ICJ Reports 1988, 82 et seq. At § 36 of its judgment, the Court insisted once again on the autonomous character of this head of jurisdiction, independent of any other obligation. Finally, the Court insisted on the fact that, in the practice of States since 1948, there was no established link between the two heads of jurisdiction, ie between Art XXXI and Art 36, § 2 (§ 40). 898   Art XXXII of the Treaty certainly leaves some room for doubt. It provides that: ‘When the conciliation procedure previously established in the present Treaty or by agreement between the parties does not lead to a solution, and the said parties have not agreed upon an arbitral procedure, either of them shall be entitled to have recourse to the International Court of Justice in the manner prescribed in Article 40 of the Statute thereof. The Court shall have compulsory jurisdiction in accordance with Article 36, paragraph 1, of the said Statute.’ Art XXXI mentions Art 36, § 2 of the Statute, whereas Art XXXII mentions Art 36, § 1. Both these provisions provide for a compulsory jurisdiction in the sense of Art 36, § 1. In Art XXXII, this is obvious. It works as a jurisdiction clause in a treaty. In the case of Art XXXI, the point is less obvious, but its independence from the system of the optional clause, as affirmed by the Court, makes the point clear. The Court derives its jurisdiction, not from unilateral declarations (so that it is not even necessary for States Parties to the treaty to lodge them), but directly from the inter-American Treaty. Consequently the case falls under Art 36, § 1 of the Statute. 896 897



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The Court’s jurisdiction is residual and compulsory. If the parties have not provided for some other mode of resolving a legal dispute, either of them can (but is not obliged to) seise the Court unilaterally (Article XXXII of the Treaty). Of course, the parties can also agree to seise the Court through a joint application. If the ICJ were obliged to declare that it had no jurisdiction to resolve the dispute in question, the parties would thereupon be obliged to take it to arbitration (Article XXXV of the Treaty). The objective of the Treaty is to ensure that in all cases there is a compulsory method of resolving legal disputes. But this objective has been significantly undermined by the reservations, in some cases very robust and wide-ranging ones, entered by States at the time of ratifying the Treaty. In addition, Articles VI, XXXI and XXXIV of the Pact of Bogotá exclude the Court’s jurisdiction over questions already resolved by direct agreement between the parties, or governed by other treaties in force. Finally, it should be noted that the phrase ‘in relation to any other American State’ is a reference to Article LIV, which provides that any American State can become a party. Is that strict law? Could the Organization of American States allow a nonAmerican State to become a party to the Treaty? In such a case, could one see in that development a ‘subsequent practice’? That question cannot be decided here, but it may be stated that such a subsequent practice condoned by the parties would be a recognised mode of treaty modification. The 1948 Treaty was amended in 1967, above all to provide for new methods of finding political solutions for disputes. In that way the Treaty became less focused on the old ideal of a jurisdictional solution for disputes and inclined more towards the modern tendency to reinforce the political means of reaching solutions. (3)  The 1957 European Convention for the Peaceful Settlement of Disputes Article 1 of the European Convention of 1957 provides that: ‘The High Contracting Parties shall submit to the judgment of the International Court of Justice all international legal disputes which may arise between them including, in particular, those concerning: [the list of subjects then tracks the list in Article 36, § 2 of the Statute of the Court].’ Article 27 of the Convention reserves, inter alia, disputes concerning facts and situations prior to the Convention’s entry into force (that is, is concerned with non-retroactivity). The legal effect of Article 1 is similar to that of Article 17 of the General Act and Article XXXI of the InterAmerican Treaty. It establishes a residual compulsory jurisdiction of the Court, enabling (but not requiring) any party to a legal dispute which is also a party to the Convention to seise the Court of it unilaterally as against any other State which is also a party to the Convention. The parties remain free to agree on other procedures for resolving the dispute. But if the dispute is not resolved, the Court’s residual jurisdiction remains. The Convention is also concerned with political disputes, and provides in that respect for a compulsory conciliation procedure, followed, if necessary, by compulsory arbitration. By ratifying the Convention, States are obliged at least to accept the compulsory jurisdiction of the ICJ as regards legal disputes. By contrast, they can exclude the conciliation and arbitration provisions (Article 34 of the Convention). Even the ICJ’s jurisdiction can be restricted by means of reservations. This Convention is based, like the two preceding ones, on models dating from the time of the League of Nations. With the establishment of the United Nations, the political mechanisms for resolving disputes (and to some extent the arbitration mechanisms also) have been given more attention than recourse to courts and tribunals. The cold war, and the decolonisation process,

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accentuated ideological differences and tensions. They also highlighted disputes that were fundamentally political in nature. In the ultimate analysis, the old ideology of the League of Nations – of ‘peace through law’ – with the old idea of compulsory arbitration at its heart, was now in retreat. The period of grand international conventions for resolving disputes drew to an end. The trends of the times were now more modest: States contented themselves with inserting jurisdiction clauses into particular bilateral or multilateral agreements not primarily concerned with dispute resolution. The application of jurisdiction clauses in ‘general’ treaties on peaceful settlement of disputes depends, in the first instance, on how they are interpreted. Under Article 36, paragraph 6 of the Statute, the last word on interpretation rests with the Court. The Court’s jurisdiction is limited by other provisions of such treaties, such as those relating to the subsidiarity of proceedings before the Court (litispendence and res judicata), limitations on subject matter and temporal jurisdiction and so on. The Court’s jurisdiction is further restricted by the reservations that States have the right to make. The Court’s jurisprudence sheds a certain amount of light on these matters. The Court’s jurisprudence. The Court’s subject-matter jurisdiction under such treaty clauses depends on the scope of the consensual jurisdiction that the parties have agreed upon. In other words, it is necessary, in each case, in order to ascertain how wide-ranging is the jurisdiction that the parties have given the Court, to interpret the treaty provisions. It may also be necessary to interpret any relevant reservations that the parties may have made. Needless to say, the task of interpretation can be difficult and complicated, as a brief overview of the Court’s jurisprudence illustrates. (1)  The Interpretation of Treaty Clauses On several occasions, the Court has been faced with arguments seeking to restrict the scope of jurisdiction clauses contained in such treaties. Sometimes these have been ‘systemic’ arguments, using other provisions of the treaty to limit the scope of the jurisdiction. Given that, generally speaking, parties do wish to submit to the Court’s jurisdiction when they adopt a clause for that purpose and the clause is reasonably clear in its terms (whatever unexpressed mental reservations they may be harbouring), and given the need to ensure the maintenance of and respect for the positive effects of that wish, the Court has usually rejected unduly restrictive attempts to limit the scope of its consensual jurisdiction. In this regard, the Court tends not to apply the old rule that the acceptance of an independent jurisdiction is a limitation on State sovereignty that must therefore be interpreted very strictly. On the contrary, the Court leans towards the principle that the acceptance of such a clause is a free exercise of its sovereignty by a State which is seeking to participate in the modern tendency towards international cooperation and the peaceful resolution of disputes. Here the Court is applying a suitable dose of the old maxim: boni judicis est ampliare jurisdictionem, or to be more exact: boni judicis est non mutilare jurisdictionem. Generally speaking, then, the Court will protect a State’s right of access to it by interpreting such clauses literally, as they stand, refusing to allow the interpretation to be tainted by reference to other provisions of the treaty that are alleged to limit its scope. The Armed activities case, discussed below, shows the Court adopting very much this attitude. The Court will, however, accept restrictions to its jurisdiction if they are clearly stated in the applicable treaty provisions. It has no reason to refuse to give effect to such other (equally valid) provisions



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in the treaty, which would amount to giving a unilateral and unique preference to the principal jurisdiction provision. The Certain property case (also discussed below), illustrates this aspect of the Court’s jurisprudence. −− Duty of prior conciliation. In the case on Border and transborder armed actions (Nicaragua v Honduras, Jurisdiction and admissibility, 1988), the Court was faced with a party’s invocation of Article XXXI of the Inter-American Treaty in the context of a case about the activities of armed groups in the border region between the two States. Honduras argued that Article XXXI, giving the Court jurisdiction, was indissolubly linked to Article XXXII, which provides that either of the parties can seise the Court after conciliation procedures have failed, or after negotiations about arbitration have failed to result in agreement. The argument was that, absent any such prior attempt at conciliation or arbitration, the Court had no jurisdiction. The Court said this view was wrong.899 In the Court’s view, these two provisions made available two separate and distinct means of access to the Court. Article XXXI contains no reference to Article XXXII, and it would therefore be astonishing if the latter were to limit the former. Furthermore, Article XXXI makes reference to Article 36, paragraph 2 of the Court’s Statute, whereas Article XXXII refers to Article 36, paragraph 1. This difference was inexplicable if the two Articles applied to the same case. Finally, the whole object and purpose of the Treaty militated in the same direction: ‘Honduras’s interpretation would however imply that the commitment, at first sight firm and unconditional, set forth in Article XXXI would, in fact, be emptied of all content if, for any reason, the dispute were not subjected to prior conciliation. Such a solution would be clearly contrary to both the object and purpose of the Pact [of Bogotá].’900 In short, the Court affirmed its jurisdiction under Article XXXI of the Inter-American Treaty and refused to interpret it restrictively by subjecting the obligation to submit to its jurisdiction to variable conditions drawn from other provisions of the Treaty. −− Limits ratione temporis. In the Certain property case (Liechtenstein v Germany, Preliminary Objections, 2005),901 the Court had to consider a dispute concerning international liability for the seizure of certain property without indemnification, following the Second World War. The head of jurisdiction invoked was Article 1 of the 1958 European Convention. Germany, however, invoked Article 27 of the 1957 Convention, with its temporal limitation,902 the critical date being in this case 18 February 1980. According to Germany, the facts and situations giving rise to the dispute dated from earlier than 18 February 1980. According to Leichtenstein, however, the change made in 1995 to the German legal position (German tribunals refusing to accept that the 1952 Convention on settlement of matters arising out of the war and occupation903 was   ICJ Reports 1988, 88 et seq.   Ibid, § 46. 901   ICJ Reports 2005, §§ 28 et seq. 902   ‘The provisions of this Convention shall not apply to: 899 900

(a)  disputes relating to facts or situations prior to the entry into force of this Convention as between the parties to the dispute; (b) disputes concerning questions which by international law are solely within the domestic jurisdiction of States.’ 903   Convention on the settlement of questions arising from the war and occupation, signed on 26 May 1952 at Bonn by the USA, UK, France and the Federal Republic of Germany (modified by Annex IX to the Protocol on the cessation of the regime for the occupation of the Federal Republic of Germany, signed at Paris on 23 October 1954), entering into force on 5 May 1955.

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applicable to Leichtenstein) was the fact giving rise to the dispute. The Court mentioned that it had often had to deal with such questions, citing in this respect the following cases: Moroccan phosphates (1938), Electricity Company of Sofia and Bulgaria (1939), and Right of passage (1957); one can also mention the Interhandel case (1959).904 The Court’s reasoning was as follows. It had always, it said, refused to take account of subsequent facts prolonging or grafted onto the ‘generating facts’. The Court had thus always returned to the facts which were, in this real sense, the original cause of the dispute (§ 42). The precedents cited certainly did concern optional declarations within the meaning of Article 36, paragraph 2 of the Court’s Statute, but they were nevertheless relevant for the purposes of interpreting Article 27 of the 1957 Convention, which contained analagous restrictions (§ 43).905 What, then, in the present case, of the principle of the original cause of the dispute? According to the Court, the decisions of the German courts in the 1990s were not the real originating cause of the dispute; they were only a development, one of a series of events. Indeed, those decisions could not be dissociated from the provisions of the 1952 Convention and the Beneš Decrees, which, properly speaking, were their source (§ 51). Also, the German decisions were themselves based on the 1952 Convention (§ 52). Consequently, the Court did not have jurisdiction ratione temporis, and the second German Preliminary Objection was upheld.906 Obviously the Court was endeavouring, among other things, to distinguish between, on the one hand, situations and facts that were the source of the rights claimed by a party, and, on the other hand, situations and facts constituting the source of the actual dispute, only the latter being relevant. Plainly, in any particular case the distinction can be a fine one.907   ICJ Reports 1959, 22.   Here the Court was admitting an analogy between a situation concerning optional (ie unilateral) declarations and a treaty, taking the view that both the text and the ratio were identical. 906   This conclusion by the Court was criticised by Judges Elaraby and Owada, and by ad hoc Judge Berman. On the crucial point, their reasoning was so similar that it is unnecessary to cite more than one of them. For Judge Elaraby, the decisions of the German tribunals were the real cause of the dispute between Liechtenstein and Germany. This was so because the decisions sought, for the first time, to give similar treatment under the Convention to the neutral Liechtenstein assets and German assets abroad. Judge Elaraby considered that no fact or situation prior to those decisions (eg the Convention itself, the Beneš Decrees and the prior decisions on the Convention) amounted to anything more than historic context, and that no such matter could be the real cause of the dispute between the parties. In reaching this conclusion, Judge Elaraby thought it necessary to state that, unlike in the three cases cited by the Court (the Right of passage, the Electricity Company of Sofia and Bulgaria, and the Moroccan Phosphates cases), in the present case there was no fact prior to the critical date that was imputable to the respondent and relevant to the applicant’s claims. The only actions imputable to Germany that might, according to the circumstances, have been capable of giving rise to Germany being held to have engaged its international liability vis-à-vis Liechtenstein, were subsequent to the critical date. The Court ought therefore to have rejected the German Preliminary Objection. 907   It would not seem out of place to reformulate the judicial doctrine in this regard. It would be at least possible to give closer consideration to whether the different phases of a dispute might be differentiated from each other, in such a way as to avoid completely sterilising the Court’s jurisdiction in cases where the facts at the origin of the dispute escape the temporal limits of a treaty or an optional clause declaration. By adopting this approach, the Court might progressively refine the limitation ratione temporis, by successively distinguishing different situations, and might consequently be able to take a more flexible view of its own jurisdiction. However it would, on any view, be necessary to decline jurisdiction in any case where, if the Court were indeed to examine the dispute in successive phases, it would not be able to give them adequate treatment because essential aspects would lie outside the time of which the Court could properly take cognisance. This would take the Court in the direction of the Monetary Gold doctrine, applied not to third parties but to ‘third’ periods of time, ie periods outside the Court’s jurisdiction ratione temporis: the Court could then declare itself unable to exercise jurisdiction as regards the phase in relation to which it had jurisdiction ratione temporis because of the fact that ‘indispensible’ legal aspects of the dispute lay outside the relevant time period. The main concern underlying this critique is to enable the Court to make as full a contribution to the resolution of disputes as is possible. Such resolution is already so exceptional in the international community, and so important for peace and cooperation between nations, as also 904 905



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−− Matters not ‘already settled’. In the case of the Territorial and maritime dispute (Nicaragua v Colombia, Preliminary Objections, 2007), the Court had to be careful about deciding its jurisdiction under the Inter-American Treaty of 1948, Articles VI,908 XXXI and XXXIV of which excluded the Court’s jurisdiction on questions already resolved by agreement between the parties, or by tribunal decisions, or governed by treaties in force. Colombia argued that the Court had no jurisdiction since the questions that arose were in effect already resolved by a relevant Treaty of 1928, and invoked Articles VI, XXXI and XXXIV of the Pact of Bogotá. Nicaragua, for its part, argued that the 1928 Treaty was null and void, alternatively that it did not cover the totality of the questions that were now in dispute. In addition, Nicaragua argued, there was such a close connection with the merits that the Colombian Preliminary Objection was not exclusively preliminary in nature and should be deferred to the merits stage. The Court’s response was to say that the proper administration of justice, and the rights of the respondent, required it to do everything possible to take a position, at this preliminary stage, on all the objections that had been raised, rather than deferring them to the merits phase. It would be otherwise only if: (1) the absence of certain information prevented the Court’s pronouncing at the present stage; and (2) a decision would be equivalent to deciding the merits or certain aspects of the merits (§§ 50–51). In the Court’s view Article VI of the Pact of Bogotá�909 showed that, if the Court must conclude that the questions raised by Nicaragua on the basis of Article XXXI of the Pact had already been settled by one of the means indicated in Article VI, it would, under the Pact, have no jurisdiction to decide the dispute (§ 57). Had the 1928 Treaty, and the Protocol of 1930, settled the disputed points as between the parties (§§ 83 et seq.)? The Court examined the question point by point.910 Its subject-matter for the development of international law itself, that it is right not to further reduce the scope for it. See also the critiques in TH Irmscher, ‘Anmerkung zur Liechtenstein-Entscheidung des Internationalen Gerichtshofs‘ (2005) 43 Archiv des Völkerrechts, 375 et seq. 908   This is the key provision: it excludes the procedures provided for in cases where a question had already been resolved between the parties, whether by a tribunal or by an agreement in force. The aim is to ensure that these legal acts are maintained in the necessary stability, and to prevent their being continually reopened. 909   The text of this provision reads as follows: ‘The aforesaid procedures [for dispute resolution], furthermore, may not be applied to matters already settled by arrangements between the parties, or by arbitral award or by decision of an international court, or which are governed by agreements or treaties in force on the date of the conclusion of the present treaty’ (§ 55). 910   First, there were the islands of the San Andrés archipelago that were identified by name in the Treaty text. Their future was explicitly decided by Art 1, § 1 of the Treaty. Nicaragua argued that the Treaty had come to an end from 1969, because of a substantial violation of its terms. However, that would make no difference to Colombian sovereignty over the islands, since a territorial regime acquires a permanence going beyond that of the treaty establishing it (detachment of the territorial status from the treaty basis for it): see the case of Libya v Chad (1994) ICJ §§ 72–73 (§ 89). The question was thus governed by the 1928 Treaty, and the Court had no jurisdiction to decide it (§ 90). Second, there was the question of the extent and composition of the rest of the archipelago. Art 1, § 1 of the Treaty did not provide a clear answer to the question as to what other features were part of the archipelago in addition to the big islands that were named. Consequently, the question was not resolved by the 1928 Treaty, and the Court had jurisdiction (§ 97). Third, there was the question of sovereignty over the islands of Roncador, Quitasueño and Sarrana (§§ 98 et seq.). Art 1, § 2 of the Treaty stated that it did not apply to the reefs of Roncador, Quitasueño et Sarrana, the right to which was ‘at the present time the subject of a dispute between Colombia and the United States of America’ (§ 98). The meaning of this clause was clear: the Treaty did not apply to these features. The question had not been resolved (Colombia had not claimed that Nicaragua had, by this clause, definitively renounced sovereignty over these islands, on the basis that the dispute was solely between Colombia and the USA, and the Court had jurisdiction.) Fourth, there was the maritime delimitation. For Colombia the question was resolved, the applicable line running along the 82nd meridian; for Nicaragua, the question was unresolved, the 82nd meridian being only the western boundary of the San Andrés archipelago, not a general line of maritime delimitation. In the Court’s view, the terms of the 1930 Protocol, given their natural and ordinary meaning, could not be interpreted as a delimitation of the maritime boundary between Nicaragua and

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jurisdiction depended on the consensual clause in the treaty, which restricted jurisdiction to certain kinds of questions that had not already been resolved. The Court was therefore obliged to examine, point by point, whether this condition was or was not satisfied. (2) Interpretation of Reservations in Respect of a Jurisdiction Clause In the case on the Aegean Sea continental shelf (1978), the Court was faced with the need to interpret a reservation as to the jurisdiction clause. Greece based its claim that the Court had jurisdiction over the case (which concerned the delimitation of the continental shelf and the respective rights of the parties), above all on Article 17 of the 1928 General Act. Greece and Turkey had become parties to that Act, each subject to its own reservations. The Court at once gave consideration to the applicability of the Greek reservation, before even deciding whether the General Act no longer applied, and came to the conclusion that the reservation did apply. For that reason it decided that it had no jurisdiction. The relevant part of the Greek reservation was in the following terms: Without excepting the conciliation procedure envisaged in Chapter I of the Act, the following procedures mentioned in the General Act are excluded: . . . b) disputes concerning questions that international law leaves to the exclusive jurisdiction of States, particularly disputes concerning the territorial status of Greece, including those concerning its sovereign rights as regards ports and communications.

The Court began with a closely argued grammatical, historic and systemic interpretation, the details of which we need not reproduce here.911 This led it to the conclusion that Greece’s wish, and thus the sense of the reservation, had been to except the territorial status of Greece in addition to the ‘reserved domain’ of internal jurisdiction. The Court then came to the second Greek argument,912 to the effect that the words ‘territorial status of Greece’ must be given a restrictive interpretation, so as to reflect Greek intentions at the time when the reservation was formulated, that is, as to the inviolability of the post-war territorial status. The Court rejected that interpretation. First, both the actual words and the natural sense of the reservation had a wider scope, since obviously they were concerned with the entire territorial status (§§ 73–74). In addition, it was argued that the concept of the continental shelf was unknown in 1928, and that therefore the will of the State making the reservation could not have a bearing on that part of the State’s ‘territory’. However, according to the Court, the generic concept of ‘territorial status’ must be ‘intended to follow the evolution of the law and to correspond with the meaning attached to the expression by the law in force at any given time’ (§ 77). This conclusion is all the more necessary in an instrument for the peaceful resolution of disputes that is to last for an indeterminate period. In Honduras. It was simply the line fixing the western boundary of the San Andrés archipelago (§ 115). An examination of the discussions preceding ratification of the 1928 Treaty confirmed this (§ 116). So, for example, Colombia did not think it necessary to again submit the 1928 Treaty to its Congress, as it would not have failed to do if it had been a general line of delimitation; the positions adopted by the Nicaraguan Minister of Foreign Affairs before his country’s Senate militated in the same sense. Neither the same ‘question’ inserted into the preamble of the 1920 Protocol (§ 117), nor the maritime charts (§ 118) proved the contrary. The expression ‘question’ referred to the archipelago and not to the totality of the maritime dispute. The lines on the charts could be interpreted in various ways. In short, the question had not been resolved by the 1930 Protocol, and the Court had jurisdiction (§ 120). 911   cf ICJ Reports 1978, 20 et seq. 912   Ibid, 28 et seq.



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addition, if Greece was to be allowed to interpret the expression ‘rights’ in Article 17 of the General Act in an evolutionary sense, so as to found the Court’s jurisdiction, there was no reason for the expression ‘territorial status’ of Greece not to be interpreted in the same dynamic sense (§ 78). Rights over the continental shelf are an emanation of territorial sovereignty under the principle of natural prolongation of the national territory, that is, the principle that the land rules the sea. Greece had, in addition, invoked the political and territorial unity of its continental and island possessions for the purposes of possessing a continental shelf. To sum up, the reservation under letter (b) therefore applied. Consequently the Court did not have jurisdiction to decide the merits of the dispute (§ 90). This precedent shows the Court giving a fairly strict interpretation to the Greek reservation, to Greece’s own detriment. States which wish to make reservations are therefore well advised to bear in mind that their reservations may, on the basis of reciprocity, be applied against them, in the same way as may optional declarations under Article 36, paragraph 2 of the ICJ Statute. Moreover, the Court does not seem to have leaned, in this case, towards an a priori a restrictive interpretation of reservations, with a view to increasing the scope of jurisdiction clauses. The maxim boni judicis est ampliare jurisdictionem brought to the decision little more than the faint November warmth of a northern sun. Reservations as to clauses giving the Court jurisdiction. What kind of reservations have been made to the three jurisdiction clauses to be found in the General Act of 1928, the InterAmerican Treaty of 1948, and the European Convention of 1957? The Aegean Sea case, touched on above, was concerned with the analysis of a Greek reservation. However many other reservations have been made as regards these three great treaties for the resolution of disputes. It has not been unusual for the robustness of the jurisdiction contemplated in the treaty texts to cause parties to limit with one hand what they concede with the other, as a result of a feeling that the jurisdiction being conceded is somehow excessive. −− General Act of 1928. Eleven States added reservations to their ratifications of or adherences to the 1928 Act.913 The most extensive reservations were made by the ‘Anglo-Saxon’ States. France inserted interpretative declarations. Other States, such as Switzerland, made no reservations at all. Some reservations were general in their scope, applying to the entirety of the Act, including Article 17 (jurisdiction clause). The most frequently encountered reservations of this kind were those ratione temporis: the application of the Act was excluded as regards disputes arising prior to the party’s accession to the Act or arising from facts prior to such adherence (Belgium, UK, Canada, Australia, New Zealand, India, Estonia, Italy, Turkey). The Greek government further amplified the scope of the reservation by including in it facts prior to the ‘accession of another Party which may subsequently have a dispute with Greece’. Next, always along the same general lines, came a series of reservations ratione materiae: disputes on subjects as to which the parties had agreed or might subsequently agree on a different method of resolution; disputes between members of the Commonwealth (UK, Canada, Australia, New Zealand, India); and disputes relating to questions belonging exclusively to States’ internal jurisdictions (the ‘reserved domain’) (UK, Australia, New Zealand, India, Estonia, Greece, Italy, Turkey). Italy added a reservation with respect to disputes ‘concerning the relations between Italy 913  See Selected Treaties of the League of Nations, Part II, no 29 (or Collected Treaties of the League of Nations, vol 93, 344 et seq.), which can be consulted at the UN website (United Nations Treaty Collection), http://treaties.un. org.

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and a third Power’. Greece, for its part, added the reservation already discussed above, relating to its ‘territorial status’. Other reservations related specifically to Article 17, that is, to the clause on the Court’s jurisdiction. The UK, and in line with it the other Commonwealth States referred to above, inserted a clause enabling them to give priority to the Council of the League of Nations, that is, by creating a kind of litispendency favouring a political process. The reservation read as follows: ‘His Majesty reserves the right in relation to the disputes mentioned in Article 17 of the General Act to require that the procedure prescribed in Chapter II of the said Act shall be suspended in respect of any dispute which has been submitted to and is under consideration by the Council of the League of Nations, provided that notice to suspend is given after the dispute has been submitted to the Council and is given within ten days of the notification of the initiation of the procedure, and provided also that such suspension shall be limited to a period of twelve months or such longer period as may be agreed by the parties to the dispute or determined by a decision of all the Members of the Council other than the parties to the dispute.’ To the extent that this reservation was not withdrawn914 following revision of the General Act at Lake Success after the war, and that the Act of 1928 continues to apply, this reservation can only apply mutatis mutandis to the UN Security Council, which has replaced the Council of the League. −− The Inter-American Treaty of 1948. Seven States formulated reservations with respect to this Treaty.915 The following reservations were concerned with Article XXXI (jurisdiction clause). Argentina made reservations, in terms that were not always very clear, as regards disputes whose origins lay in facts prior to her signature of the instrument; as regards questions that were within her internal jurisdiction; and as regards the protection of foreigners. The USA (when signing the Treaty) reserved to itself the right not to submit a conflict to the ICJ if, being the injured party, it considered that the dispute did not truly fall within the Court’s jurisdiction. In addition, the Court’s jurisdiction was expressly limited by the reservations that the USA added to its optional declaration under Article 36, paragraph 2 of the Statute. It is difficult to see, on the evidence of the text alone, the sense of the former reservation by the USA, given that the Treaty does not require the Court to be seised, and is simply an option for States parties. Nicaragua, for its part, repeated its position concerning arbitral awards whose validity was disputed, formulating ‘a reservation as to the acceptance of arbitral decisions that Nicaragua has challenged and whose validity has not been established’. The intention was to enable Nicaragua to dispute awards which it considered unacceptable. The Nicaraguan declaration was ‘interpretative’, and did not amount to a reservation. In any event, it did not limit the Court’s jurisdiction, even confirming it as regards disputes relating to arbitral awards. −− The European Convention of 1957. Eight States formulated declarations or reservations with regard to this Convention.916 Article 1 is affected only by the following reservations on the part of Malta and the UK. Malta excepts from the Court’s jurisdiction a whole series of questions: disputes as to which the parties have agreed, or will agree, to have recourse to another method of peaceful settlement; disputes between Commonwealth States; disputes as to questions which as a matter of international law fall exclusively within Malta’s internal jurisdiction; disputes on any question concerning, or originating 914   Australia withdrew, in a letter of 17 March 1975, all the reservations it made at the time of adhering to the 1928 Act, except for one relating to disputes as to which the parties had agreed on another mode of resolution. 915   See UNTC, vol 30, no 449, 109–13. 916   See the Council of Europe website at: conventions.coe.int.



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in, belligerent or military occupation or the exercise of all functions flowing from a recommendation or decision of a UN organ; disputes arising from a multilateral treaty, unless all the parties to the treaty that would be affected by the decision are also parties to the case before the Court, or the government of Malta specially recognises the Court’s jurisdiction; disputes relating to any matter excluded from compulsory arbitration by virtue of a treaty, convention or other international agreement or instrument to which Malta is a party; disputes in respect of which arbitral or judicial proceedings are under way or take place vis-à-vis a State which, when the proceedings began, had not itself accepted the Court’s compulsory jurisdiction; disputes in respect of which any other party has accepted the Court’s compulsory jurisdiction only as regards or for the purposes of the particular dispute, or as to which the acceptance of the Court’s compulsory jurisdiction in the name of the other party to the dispute was deposited or ratified less than 12 months prior to the lodging of the application seising the Court of the case in question; disputes of the kinds mentioned in paragraphs (i) to (viii) inclusive of the Maltese Declaration with regard to the European Convention of 28 February 1987 for the settlement of disputes; and disputes with the government of Malta concerning or touching on its territory, including its territorial sea and the status of the latter, the continental shelf, and any other zone of maritime jurisdiction, and its resources, the determination or delimitation of any of the foregoing, the prevention of the pollution or contamination of the marine environment, or the struggle against these in the maritime areas adjacent to Malta’s coast. A list of this kind inevitably causes one to wonder whether Malta might not have been better either to refuse the ICJ jurisdiction, or to say that it would not be accepted without a special agreement in each particular case. The UK, for its part, expressed itself in much more concise terms, with a view to subjecting the Convention’s jurisdiction clause to the reservations it had formulated ‘when accepting the compulsory jurisdiction of the International Court of Justice’, that is, those arising from its optional declaration under Article 36, paragraph 2 of the Statute. One may not include all the reservations made in the context of other jurisdictional or compromissory clauses under various treaties (also relating to compulsory jurisdiction), since this would make the reservation indeterminate and give it an excessive and indeed incalculable scope; there is, at least, no reason to presume that such was the intention of the UK: if it was, it was certainly not expressed clearly. Effects of withdrawal or denunciation. If a State withdraws from or denounces one of these general treaties for the resolution of disputes,917 that, as concerns the State in question, will extinguish the particular title of jurisdiction in question. However, it will not do so with retroactive effect. If the Court is seised while the title of jurisdiction remains available, its jurisdiction will continue until the case comes to an end (under the principle of the perpetual forum or perpetuatio fori ).918 On the other hand, unlike the situation with regard to jurisdiction clauses,919 withdrawal from (or denunciation of) such a treaty does put a term, 917   The three treaties mentioned all contain clauses on withdrawal denunciation: Art 45, § 2 of the 1928 General Act; Art LVI of the Inter-American Treaty of 1948; and Art 40 of the 1957 European Convention. 918   See, eg the following cases: Nottebohm (Preliminary Objection), ICJ Reports 1953, 122–23; Right of passage over Indian territory (Preliminary Objections), ICJ Reports 1957, 142: ‘It is a rule of law generally accepted . . . that, once the Court has been validly seised of a dispute, unilateral action by the respondent State in terminating its Declaration, in whole or in part, cannot divest the Court of jurisdiction’; Lockerbie (Preliminary Objections), ICJ Reports 1998, 23–24, § 38 and 129, § 37. 919   See below.

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for the future, on all the jurisdiction clauses in the treaty concerned. There is no scope here for applying Article 60, paragraph 4 of the 1969 Vienna Convention on the Law of Treaties920 or for applying the Court’s jurisprudence921 to the effect that dispute resolution clauses are severable from the substantive provisions of the convention and remain in force against the possibility that a dispute may subsequently arise as to the suspension, termination or denunciation of the convention. This is the position because the relevant provisions are, in the case of a general treaty for the settlement of disputes, substantive ones, not provisions exclusively concerned with the resolution of disputes arising from the application of the particular treaty. Withdrawal/denunciation therefore affects them because they are substantive provisions and not just procedural provisions engrafted onto a different subject matter. The distinction was made by the Court in the case on Fisheries Jurisdiction (Jurisdiction, 1973): The above observations suffice to dispose of a possible objection based on views expressed by certain authorities to the effect that treaties of judicial settlement or declarations of acceptance of the compulsory jurisdiction of the Court are among those treaty provisions which, by their very nature, may be subject to unilateral denunciation in the absence of express provisions regarding their duration or termination. Since those views cannot apply to a case such as the present one, the Court does not need to examine or pronounce upon the point of principle involved. It is sufficient to remark that such views have reference only to 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. The 1961 Exchange of Notes does not embody an agreement of this type. It contains 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. In consequence, when a dispute arises of precisely the sort contemplated, and is referred to the Court, the contention that the compromissory clause has lapsed, or is terminable, cannot be accepted. (italics added)922

One is certainly entitled to wonder whether, by analogy, at least a dispute as to the validity of the withdrawal from, or denunciation of, a treaty might be resolved by means of the procedures provided for in the treaty. It is indeed natural for treaties of this type not to contain separate compromissory clauses for the resolution of disputes about them, since such clauses would have to exist alongside the substantive clauses providing for various modes of resolution. Perhaps the right interpretation involves avoiding allowing this fact (arising from the economy of the drafting and from a certain legal logic) either to damage the parties’ positions or to weaken of the legal protections that the convention provides. Such an interpretation will therefore affirm the Court’s jurisdiction on the basis of the clauses in the convention, limited, however, to the validity of the withdrawal/denunciation, so that the jurisdiction is founded on the will, real or presumed, of the parties. However, the point of real interest here is a different one: there is no scope for separating dispute settlement clauses from the substantive clauses of the treaty, given that, in such treaties, the substantive clauses are concerned with that very subject, namely the resolution of disputes. A whole series of questions arise both in relation to jurisdiction clauses in general treaties and to jurisdiction clauses applicable to the interpretation and application of a particular 920   ‘The foregoing paragraphs [relating to the legal consequences of the substantial violation of a treaty] are without prejudice to any provision in the treaty applicable in the event of a breach.’ 921   The cases on Fisheries Jurisdiction (Jurisdiction), ICJ Reports 1973, 15, § 28 and 60, § 28: ‘The right to invoke the Court’s jurisdiction [on the basis of the compromissory clause] was thus deferred until the occurrence of welldefined future events . . .’, including the suspension of the agreement. See also the passage cited below, in the body of the text. 922   Ibid, 15–16, § 29, and 60, § 29.



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treaty. These questions will be considered in the next section devoted to compromissory clauses. From the terminological perspective, the expression ‘jurisdiction clause’ is sometimes used to cover both competence clauses in general treaties on the resolution of disputes, and ‘compromissory clauses’ in treaties on specific subjects, giving access to the Court as regards any dispute as to their interpretation and/or application. In other contexts, the expression ‘jurisdiction clause’ covers only the former, to the exclusion of the latter. For the purposes of clarity, the restrictive meaning is given preference in the following passages. f)  Second Head of Jurisdiction: Compromissory Clauses923 If general treaties on dispute resolution giving the Court jurisdiction, have been fairly infrequent because they give rise to obligations that are often both extensive and constricting, the same cannot be said of compromissory clauses in particular treaties. Such clauses are found in treaties on all kinds of subjects. They give the Court jurisdiction over disputes arising from the interpretation or application of the treaty in question. Since the days of the League of Nations, this has been the royal road to judicial control over matters that come newly to be regulated by major international treaties – such as labour issues (Part XIII of the Treaty of Versailles), the protection of minorities, mandates, transit rights and communications.924 Numerous other treaties dating from the time of the League include such compromissory clauses, and the process gathered pace after 1945, so that nowadays new treaty clauses of this kind appear every year. They constitute a simple mechanism for guaranteeing the application of the treaty concerned, while at the same time allowing States parties to avoid far-reaching obligations whose ultimate scope is unforeseeable. The essential difference between such clauses and jurisdiction clauses in treaties on dispute resolution lies in the scope of the subject-matter jurisdiction thereby accepted. In the latter case, the jurisdiction conferred relates to ‘legal disputes’ in general, whereas in the former it relates to the interpretation and application of a special category of dispute. The origins of compromissory clauses are to be found in the arbitration practices of ancient Greece.925 Various treaties, particularly peace treaties, contained arbitration clauses designed to provide for the resolution of certain disputes. Subsequently compromissory clauses were used, always in the context of arbitration, between the Italian cities and republics of the Middle Ages.926 At first they were elements of bilateral treaties, but in the time of the League of Nations they started appearing in multilateral treaties as well. 923   On these clauses, see amongst others: Hudson, above n 505, 439 et seq., 445 et seq.; Dubisson, above n 480, 155 et seq.; S Rosenne, The Law and Practice of the International Court, 1920-2005, vol II, 3rd edn (Leiden, 1997), vol. II, 657 et seq., 665 et seq.; Tomuschat, ‘Article 36’, above n 482, 618 et seq.; LB Sohn, ‘Settlement of Disputes Relating to the Interpretation and Application of Treaties’ CCHAIL, vol 150, 1976-II, 195 et seq.; JI Charney, ‘Compromissory Clauses and the Jurisdiction of the International Court of Justice’ (1987) 81 AJIL 855 et seq.; E Cannizzaro and B Bonafé, ‘Fragmenting International Law through Compromissory Clauses? Some Remarks on the Decision of the ICJ in the Oil Petroleum platforms Case’ (2005) 16 EJIL 481 et seq. See also P Pazartzis, Les engagements internationaux en matière de règlement pacifique des différends entre Etats (Paris, 1992) 54 et seq. 924   As to the various treaties and the compromissory clauses they include, see Hudson, above n 505, 439 et seq. 925   cf G Ténékidès, Les relations internationales dans la Grèce antique (Athens, 1993) 299, 301; V Martin, La vie internationale dans la Grèce des Cités (Paris, 1940) 487 et seq.; A Raeder, L’arbitrage international chez les Hellènes (Christiania, 1912) 143 et seq. 926   WG Grewe, The Epochs of International Law (Berlin/New York, 2000) 93 et seq., with references to the literature. See also KH Ziegler, Völkerrechtsgeschichte (Munich, 1994) 102–103; H Waser, Das zwischenstaatliche Schiedsgericht als Spiegel der abendländischen Geschichte (Zurich, 1960) 28–41; KS Bader, ‘Arbiter arbitrator seu amicabilis compositor’ (1960) 77 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung 239 et seq.

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The complete list of the numerous treaties – there are approximately 400 in all, including those dating from the time of the League of Nations – that contain such clauses can be consulted in the ICJ’s Yearbook, in the section on the ‘Chronological list of other instruments governing the jurisdiction of the Court’, or on the Court’s website (www.icj-cij.org). Some examples of treaties containing such clauses follow, in chronological order, mentioning one text for each year: the International Air Services Transit Agreement signed at Chicago in 1944 (Article II, § 2);927 the Convention on Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs (amended at Lake Success, 1946, Article 17);928 the International Convention on the Suppression of the Traffic in Women (amended at Lake Success, 1947, Article 4);929 Convention on the Prevention and Punishment of the Crime of Genocide (1948, Article IX);930 1949 Convention on Road Traffic (Article 33);931 1951 Convention on the Status of Refugees (Article 38);932 1952 Universal Copyright Convention (Article XV);933 1953 Slavery Convention (Article 8);934 1954 International Convention for the Prevention of the Pollution of the Sea by Oil (Article XIII);935 1955 European Convention on Establishment (Article 31);936 1956 Convention on the Recovery Abroad of Maintenance (Article 16);937 1957 Convention on the Nationality of Married Women (Article 10);938 1958 Peace Treaty between Japan and Indonesia (Article 6);939 1959 Antarctic Treaty (Article 11);940 1960 Convention against Discrimination in Education (Article 8);941 1961 Single Convention on Narcotic Drugs (Article 48);942 1962 Exchange of Letters between France and Algeria on the Evian Agreements;943 1963 Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes;944 1964 Consular Agreement between the United Kingdom and Japan;945 1965 Washington Convention for the Settlement of Investment Disputes between States and Nationals of other States (Article 64, as regards inter-State disputes about the interpretation and application of the Convention);946 1966 International Convention for the Elimination of all forms of Racial Discrimination (Article 22);947 1967 Treaty for the Prohibition of Nuclear Weapons in Latin America (Article 24);948 1968 Convention on Road Signs and Signals (Article 44);949 1969 International Health Regulations (Article 106);950 1970 Hague Convention on the Unlawful   UNTC, vol 84, no 252.   UNTC, vol 12, no 186. 929   UNTC, vol 53, no 772. 930   UNTC, vol 78, no 1021. 931   UNTC, vol 125, no 1671. 932   UNTC, vol 189, no 2545. 933   UNTC, vol 216, no 2937. 934   UNTC, vol 212, no 2861. 935   UNTC, vol 327, no 4714. 936   UNTC, vol 529, no 7660. 937   UNTC, vol 268, no 3850. 938   UNTC, vol 309, no 4468. 939   UNTC, vol 324, no 4688. 940   UNTC, vol 402, no 5778. 941   UNTC, vol 425, no 552. 942   UNTC, vol 520, no 7515. 943   UNTC, vol 507, no 7395. 944   UNTC, vol 596, no 8640. 945   UNTC, vol 561, no 8179. 946   UNTC, vol 575, no 8359. 947   UNTC, vol 660, no 9464. 948   UNTC, vol 634, no 9068. 949   UNTC, vol 1091, no 16,743. 950   UNTC, vol 764, no 10,921. 927 928



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Seizure of Aircraft (Article 12, § 1);951 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Article 14);952 1972 European Convention on State Immunity (Article 34);953 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons (Article 13);954 1974 Convention on the Protection of the Marine Environment in the Baltic Sea (Article 18, § 2);955 1975 Treaty on the Status of the Uruguay River between Uruguay and Argentina, (Article 60);956 1977 Agreement between Greece and Italy on the Delimitation of their Respective Continental Shelves (Article IV);957 1978 Protocol to the Convention on the Contract for the International Carriage of Goods by Road (Article 8);958 1979 International Agreement on Olive Oil (Article 14, § 2);959 1980 General Treaty of Peace between Honduras and El Salvador (Articles 31–36 and 39);960 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 30, § 1);961 1985 Convention for the Protection of the Ozone Layer (Article 11);962 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (Article 18, § 1);963 1992 Convention on the Protection and use of Transboundary Watercourses and International Lakes (Article 22, § 1);964 1993 Convention prohibiting Manufacture etc. of Chemical Weapons (Article XIV, § 2);965 1996 Comprehensive Nuclear Test-Ban Treaty (Article 6, §§ 2 and 3);966 1999 International Convention on the Suppression of Financing of Terrorism (Article 24, § 1);967 2000 UN Convention against Transnational Organized Crime (Article 35, § 2);968 2002 Agreement on the Privileges and Immunities of the International Criminal Court (Article 32, § 3);969 2003 UN Convention against Corruption (Article 66, § 2)970 and so on. The most famous of these compromissory clauses – and the one most frequently applied by the Court – is to be found in Article IX of the Convention for the prevention and punishment of the crime of genocide. It reads as follows: Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any other of the acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.971   UNTC, vol 860, no 12,325.   UNTC, vol 974, no 14,118. 953   UNTC, vol 1495, no 2,’699. 954   UNTC, vol 1035, no 15,410. 955   UNTC, vol 1161, no 18’338. 956   UNTC, vol 1295, no 21,425. 957   UNTC, vol 1275, no 21,048. 958   UNTC, vol 1208, no 1,’487. 959   UNTC, vol 1219, no 19,674. 960   UNTC, vol 1310, no 21,856. 961   UNTC, vol 1465, no 24,841. 962   UNTC, vol 1513, no 26,164. 963   UNTC, vol 1891, no 29,004. 964   UNTC, vol 2331, no.33,207. 965   UNTC, vol 2241, no 33,757. 966   Not yet in force (April 2010) : available at: treaties.un.org/Pages/ViewDetails.aspx?src=UNTSONLINE&tab id=2&mtdsg_no=XXVI-4&chapter=26&lang=fr. 967   Registration no 38,349. 968   Registration no 39,574. 969   UNTC, vol 2271, no 40,446. 970   Registration no 42,146. 971   As to this particular clause, see the author’s contributions in P Gaeta (ed), The UN Genocide Convention – A Commentary (Oxford, 2009) 407 et seq.; and C Hillgruber, ‘Die Jurisdiktionsgewalt des IGH nach Artikel IX der Genozidkonvention und ihre Grenzen’ (1998) 53 ZöR 363 et seq. 951 952

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Article 14 of the 1971 Montreal Convention on the safety of civil aviation, contains a compromissory clause intertwined with an arbitration provision: Any dispute between two or more Contracting States concerning the interpretation or application of this Convention which cannot be settled through negotiation, shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

Article 66, paragraph (2)(a) of the Vienna Convention on the Law of Treaties of 1969 proposes a jurisdiction clause that is tightly limited ratione materiae any one of the parties to a dispute concerning the application of article 53 or article 64 [dealing with jus cogens] may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration.

The contents of these clauses are identical as regards certain aspects (the attribution of jurisdiction to the Court), but different on other aspects (the modalities for seising the Court or the material conditions for setting things in motion). In consequence of these differences, it is possible to group the clauses in types, according to their various characteristics. For example, they can be classified in three different groups, as follows: (1)  Grouping as to the process for seising the Court. Some clauses provide that one party to the dispute can seise the Court unilaterally, and that is the general rule. Other clauses, however, allow the Court to be seised only by the joint act of the disputing parties, which amounts to engrafting the need for a special agreement onto the compromissory clause. The latter becomes, in such a case, only an agreement to agree, or pactum de contrahendo, and does not in itself constitute an autonomous clause conferring jurisdiction. An example is to be found in the Antarctic Treaty of 1959, already referred to. (2)  Grouping as to their relationship with other means of settlement. Some clauses provide for the Court to be seised only after the failure of another procedure for resolving the dispute, or after an attempt at such another procedure, the time limit being laid down in the clause. Yet other clauses provide for the possibility of seising the Court directly. (3)  Grouping as to their limits ratione materiae. Some clauses provide for the Court to be seised for the purposes of interpreting or applying (even executing) the treaty in question, and/or certain texts connected with that treaty. Other clauses, by contrast, give the Court jurisdiction only as regards certain specific questions indicated in the treaty, as for example, does Article 66 of the 1969 Vienna Convention on the Law of Treaties, cited above. On many occasions the Court has had to base its jurisdiction on such compromissory clauses, or to decline to do so. In the days of the PCIJ, this happened in the following cases: Wimbledon (1923);972 Mavrommatis (1924 and 1927);973 Certain German interests in Polish Upper Silesia (1925–28);974 Rights of minorities in Upper Silesia (Minority schools, 1928);975   PCIJ, Series A, no 1.   PCIJ, Series A, nos 2, 10. 974   PCIJ, Series A, nos 6, 8, 13. 975   PCIJ, Series A, no 15 (Judgment no 12). 972 973



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Interpretation of the international status of the territory of Memel (1932);976 Appeal against an award of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (Peter Pázmány University, 1933);977 and Pajzs, Csáky, Esterházy (1936).978 The ICJ itself has been seised on this basis in the following cases:979 Ambatielos (1952);980 South-West Africa (1962);981 Northern Cameroons (1963);982 Appeal as to the jurisdiction of the ICAO Council (1972);983 Fisheries Jurisdiction (1973);984 United States diplomatic and consular staff at Tehran (1980);985 Military and paramilitary activities in and against Nicaragua (1984)986 (the section concerned with the Treaty of Friendship, Commerce and Navigation 1955); Elettronica Sicula SpA (ELSI) (1989);987 Lockerbie (1992, 1998);988 Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Yugoslavia, 1996);989 Petroleum platforms (1996);990 Legality of the use of force (1999–2004);991 LaGrand (2001);992 Avena and other Mexican nationals (2004);993 Armed activities in the territory of the Congo (DRC v Rwanda, new application, 2006);994 Application of the Convention for the prevention and punishment of the crime of genocide (Croatia v Serbia, 2008);995 Maritime delimitation in the Black Sea (2009);996 Pulp mills on the River Uruguay (2010);997 Application of the Convention on the elimination of all forms of racial discrimination (Georgia v Russian Federation, Preliminary Objections, 2011, §§ 1 and 20); and Application of the Interim Accord of 13 September 1995 (the Former Yugoslav Republic of Macedonia v Greece, 2011, §§ 2, 24). It is readily apparent, therefore, that there is plenty of variety and vitality in compromissory clauses. Objectives and historical perspective of compromissory clauses. Compromissory clauses serve a dual purpose: on the one hand, to reinforce the expectation that the particular treaty will be applied (legal security inter partes); on the other, the genuine (if limited) promotion of the pre-eminence of law in the international community (legal security inter omnes). Thus the practice adds, to the particular objective of consolidating the effects of a treaty, that wider and more general objective, whether or not it is actually within the contemplation of the contracting States. The general objective is part and parcel of the old concept of ‘peace through law’, and is designed to preserve at least some of its elements. The more such compromissory clauses are entered into, the more widespread the submission of disputes, if not   PCIJ, Series A/B, no 47, 243 et seq.   PCIJ, Series A/B, no 61, 208 et seq. 978   PCIJ, Series A/B, no 68, 30 et seq. 979   Only cases which got as far as a judgment on the Court’s jurisdiction are cited here. 980   ICJ Reports 1952, 28 et seq. 981   ICJ Reports 1962, 321 et seq. 982   ICJ Reports 1963, 15 et seq. 983   ICJ Reports 1972, 46 et seq. 984   ICJ Reports 1973, 3 et seq., 49 et seq. 985   ICJ Reports 1980, 3 et seq. 986   ICJ Reports 1984, 392 et seq. 987   ICJ Reports 1989, 15 et seq. 988   ICJ Reports 1992, 3 et seq., and ICJ Reports 1998, 9 et seq., 115 et seq. 989   ICJ Reports 1996-II, 595 et seq. 990   Ibid, 803 et seq. 991   ICJ Reports 1999, 124 et seq., and ICJ Reports 2004-I, II and III, 279 et seq. 992   ICJ Reports 2001, 466 et seq. 993   ICJ Reports 2004-I, 12 et seq. 994   ICJ Reports 2006, §§ 1 et seq. 995   ICJ Reports 2008, §§ 1 et seq. 996   ICJ Reports 2009, §§ 1 et seq. 997   ICJ Reports 2010, § 1. 976 977

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directly to the discipline of international law, at least to the possibility of invoking the clause, thereby limiting the extent to which power and convenience is likely to prevail over law and rights. It is thus possible to analyse these clauses, from a micro-perspective, as provisions applicable to a particular treaty and between particular parties, and at the same time, from a macro-perspective, as part of a complex network of undertakings for the peaceful resolution of disputes. From the latter perspective, such clauses can (and are likely to be) promoted in certain political contexts as a matter of policy, for example, within the United Nations. The creation of the PCIJ – and then of the ICJ – greatly contributed to the spread and influence of compromissory clauses. Previously, when the only means of legal resolution was through arbitration, parties had to negotiate more detailed agreements, specifying the composition of the tribunal, the procedures to be followed, the functions of the arbitrators, the applicable law and so on. Hague Convention I of 1899 and 1907 was the first step towards simplifying the situation of parties wishing to take their disputes to arbitration, enabling them to refer to the pre-existing provisions of the Convention for the constitution of the arbitral tribunal, the applicable law, and the procedure. It was still necessary to formally refer to or incorporate these rules, and it was easy to do so. The actual tribunals had to be constituted on a case-by-case basis, but progress had been made towards easier arbitration. A further step was taken with the establishment of permanent courts such as the PCIJ. Such a court is already established before the dispute even arises, ready to be involved at any time, and already possessed of its own rules of procedure and of constitutive texts which specify the applicable law. It followed that the parties could now confine themselves to inserting into their particular treaty a brief compromissory clause under which possible future disputes, as determined by the clause, could be referred to the PCIJ, now the ICJ, or indeed to some other international tribunal. To the extent that the treaty does not contain any special rules or derogations, for example as to the applicable law (rules which, in the case of the ICJ, must in any event remain consistent with the Statute and Rules), the Court is able to function in simple accordance with the rules laid down in those texts. This is highly economical for the parties, from the perspective both of norms and of practicalities. The resolution of disputes by the Court is, to this extent, made simple.998 The proceedings can be very easily begun, subject only to the wishes of the States concerned. The Court’s Statute and Rules, and also its permanent character, are constant elements. Under Article 36, paragraph 1 of the Statute, compromissory clauses of one kind or the other are, par excellence, the means by which this economy of action is achieved. A special agreement, on the other hand, can serve to specify the Court’s particular task and the applicable law, sometimes in luxuriant detail. This will be the preferred course if in these respects the parties have special wishes of their own, even perhaps idiosyncratic ones. The relationship between Article 36, paragraph 1 of the Statute and compromissory or jurisdictional clauses. Legally, compromissory (special) clauses or jurisdiction clauses (giving jurisdiction to one or more particular organs and inserted into a general treaty for the settlement of disputes) do not in themselves give the Court jurisdiction. They cannot have that effect, because the Court can act only in conformity with its constitutive texts, first and foremost its Statute. Compromissory and jurisdiction clauses have the necessary effect of awarding jurisdiction only when read in conjunction with Article 36, paragraph 1 of the Statute, 998   This facilitation has been emphasised by numerous authors, eg Hudson, above n 505, 445; Sohn, above n 923, 244.



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which, by the words ‘The jurisdiction of the Court comprises all cases which the parties refer to it’, operates as a kind of renvoi to the clauses. The effect is that the clauses take their legal effect, as bilateral or multilateral agreements between the parties to a treaty, only in conjunction with Article 36, paragraph 1. Strictly speaking, the Court never has jurisdiction on the basis of a treaty; its jurisdiction arises exclusively as a function of its Statute. The latter, however, envisages and operates by reference towards, legal agreements external to itself. If there were some inconsistency between such a clause and the Statute, the clause would be of no legal value. The Court has said, on various occasions, that it can act only on the basis of its Statute.999 It has therefore refused to comply when parties have tried to derogate from provisions of the Statute where the provisions in question are ones from which no derogation is permissible.1000 It follows that, legally, compromissory or jurisdictional clauses remain subordinate to the constitutive provisions of the Statute, which allows them to be made and, so to speak, covers them with its own mantle. For the judges, the Statute represents objective law, whereas the clauses represent subjective obligations that are subordinate to such objective law. In short, if there is a division of labour between the Statute and the clauses, the former remains the ultimate context within which the latter are operative. The precise conditions for seising the Court are set out in the compromissory or jurisdiction clause. The renvoi by the Statute is limited to making it possible for such clauses to take effect by creating a jurisdictional title. On the other hand, it is the clauses, and the clauses only, that lay down the conditions for the exercise of this right. In other words, the way the clauses and Article 36, paragraph 1 work together is a particularly close one: the principle of jurisdictional power is the concern of the Statute, and the concrete field in which jurisdiction is given to the Court in any particular case is the concern of the clause. The Court re-stated this in the South-West Africa case (second phase, 1966): ‘The faculty of invoking a jurisdictional clause1001 depends upon what tests or conditions of the right to do so are laid down by the clause itself.’1002 The conditions ratione materiae, personae, temporis and loci under which the Court can be seised thus depend on the terms and interpretation of the jurisdiction clause. However much such conditions may themselves be material, personal, temporal and spatial in nature, the fact remains that, legally, through their connection to the jurisdiction clause, which delimits the Court’s consensual jurisdiction, they take their actual effect as conditions ratione consensus. The Court will in any event treat them as conditions of jurisdiction, not of admissibility. This is so even if, taken by themselves outside the context of a clause of this type, they would be considered conditions as to admissibility. The legal nature of a condition can thus change as a result of its being embodied in a compromissory or jurisdictional clause. A compulsory but nevertheless subsidiary jurisdiction of the Court. Compromissory clauses generally give the Court a compulsory but nevertheless subsidiary jurisdiction. In rare cases, such clauses confer what is only an optional jurisdiction, as for example does the Antarctic Treaty referred to above, doing so by merely making provision for a future special agreement. But, even in such cases, the clause does make a certain sense, and is not devoid of practical consequences: entry into a special agreement can itself become   Case on Military and paramilitary activities in and against Nicaragua (merits), ICJ Reports 1986, 59.   See, eg the Order in the Free Zones case dated 19 August 1929, PCIJ, Series A, no 22, 12. 1001   The expression here covers both compromissory clauses and jurisdictional clauses in the narrow sense. 1002   ICJ Reports 1966, 37, § 60. 999

1000

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obligatory under the terms of the clause, even though, as a matter of general international law the making of a special agreement is a purely optional matter for the States concerned. A jurisdiction clause of this kind is thus an agreement to agree, or pactum de contrahendo: but if, when the moment comes, a special agreement is not entered into, the Court cannot be seised of the case, even though the failure to enter into the special agreement may be a violation of the clause. The only sanctions available against the recalcitrant party in such a situation may be of little or no effect,1003 and that is the reason why such clauses are so rare, since the added value they bring to the text is very relative. Such clauses indeed usually reflect the parties’ preference for creating a jurisdictional option which can easily and effectively be invoked at an appropriate future time. However, by using reservations, or by putting the jurisdiction clause into an optional protocol which is separate from the main treaty and requires separate ratification,1004 States which do not wish to tie their own hands too tightly for the future are able to retain a high level of control over their submission to the Court’s jurisdiction. The Court’s compulsory jurisdiction arises from the fact that each party to the treaty in question can normally – in the absence of any stipulation to the contrary – seise the Court unilaterally in a case against the other party as to the interpretation or application of the treaty. The Court’s jurisdiction is compulsory, in the sense that it is normally sufficient to establish the Court’s jurisdiction for the applicant to cite an appropriate basis of jurisdiction, that is, the clause. Then, the opposing party (or parties) are obliged to submit to it. Obviously, this does not prevent a respondent from arguing that the compromissory clause has not been properly invoked, and that in reality the Court does not have jurisdiction. Respondents raise such arguments, if they wish to do so, by one or more Preliminary Objections to jurisdiction. Even in such cases, however, the parties have, by ratifying the Statute or adhering to it, accepted that the Court alone will have jurisdiction to decide the preliminary points, under Article 36, paragraph 6 of the Statute. Nevertheless, the Court’s jurisdiction is a subsidiary one, in two respects. First, any contracting party with the right to invoke a compromissory clause has the right to bring the dispute to the Court on that basis, although it also has the right to refrain from so doing. The clause thus creates a subjective right, a legal option; it does not create an obligation or legal duty. Of course, it would be possible to stipulate otherwise, but it is easy to see why States do not accept obligations of that kind. There would be little sense in their doing so. The absence of an obligation means, first and foremost, that one or more parties have the right to remain passive rather than actively seeking a solution to the dispute. They may adopt this stance because they think the dispute too unimportant to justify investing money in expensive proceedings, or because they think the time is not ripe, or because they take the view that the dispute is quite likely to resolve itself within a reasonable lapse of time. There would be little sense in the law’s depriving them of the freedom to make such judgments. Secondly, the absence of a positive obligation also means that a party, or the parties acting together in concert, can involve some other organ or body, or choose some other process of dispute resolution, ranging from direct negotiation through mediation, conciliation, arbitration, the action of an international organisation and so on. Such an alternative process will then take priority over proceedings before the Court. Public international law does not give priority to one means of dispute resolution over another, nor to   For example, peaceful counter-measures.   As in the 1961 Vienna Convention on diplomatic relations and the 1963 Vienna Convention on consular

1003 1004

ones.



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legal processes over political ones. The principle is that parties have ‘free choice as to the means’. If the parties are acting together in concert, the priority given to their decision can be seen as flowing from their subsequent agreement which, as such, prevails over their previous one and thus enables the Court to be seised (lex posterior . . .). Technically, however, it is unnecessary to invoke the lex posterior principle. That principle applies where there are two conflicting norms of equivalent strength. Here, however, there is no equivalence. On the one hand there is a simple and non-binding right under the clause; on the other, a positive decision in favour of another mode of dispute resolution. The latter prevails over the former simply because the latter is binding, the former not. If a party unilaterally decides to seise another organ, or to follow another procedure that is open to it under other texts, it is exercising a right given to it by the law. Once a party has subscribed various instruments permitting it, in certain circumstances, to seise a particular organ, it goes without saying that, if the conditions are satisfied, it can choose whichever procedure it prefers. Obviously it will seldom make much sense for the State to exercise a plurality of these rights all at the same time. If it did that, there would be overlapping competences and jurisdictions, leading either to parallel competences (political organs and judicial ones) or to litispendence (more than one judicial forum being involved). The applicable rule is that, in the same class of procedures, the first mechanism chosen takes priority (prior tempore, potior jure). The Court’s jurisdiction under a compromissory or jurisdiction clause will not be excluded unless the parties have clearly chosen another forum. The Court will not presume that another forum has been chosen,1005 since this would undermine the value and effects of such clauses. That is one of the reasons why, in the case on Minority rights in Upper Silesia (Minority schools, 1928), the Court said that its jurisdiction could be set aside only in cases where ‘the dispute which States desire to refer to the Court would fall within the exclusive jurisdiction reserved to some other authority’.1006 In the present context, the Court’s formulation is a little restrictive. For a start, international law knows very few exclusive jurisdictions in the field of dispute resolution. Almost all such jurisdictions are parallel ones, the only objective being to reach a settlement. To set aside the Court’s jurisdiction, all that is needful is for the parties to prefer some other procedure. If the Court has already been seised of the dispute, the parties can discontinue it or ask that it be suspended. Above all, the absence of any actual obligation to seise either the Court or any other body means that the settlement of the dispute is not guaranteed.1007 Here, State sovereignty remains in control. Not only is a legal settlement not guaranteed; but nor is there any guarantee that any body other than the Court will be seised, or any other particular procedure followed. At the end of the day, it is not certain that there will be any settlement at all. States can seise the Court, or seise a political body, or seise nobody at all. A particular dispute might be decided as a matter of law (or in accordance with other rules), by a binding   See Sohn, above n 923, 248.   PCIJ, Series A, no 15, 23. 1007   It was otherwise under Art 15 of the League of Nations Covenant, where the Council’s competence was compulsory on a subsidiary basis if the parties did not choose arbitration or the PCIJ, or if, according to the dominant interpretation of the Covenant, the parties did not submit to another procedure which could ensure binding resolution. Art 15, § 1 of the Covenant reads as follows: ‘If there should arise between Members of the League any dispute likely to lead to a rupture, which is not submitted to arbitration or judicial settlement in accordance with Article 13, the Members of the League agree that they will submit the matter to the Council.’ Here, then, the Court’s jurisdiction is primary, and the Council’s is secondary; nevertheless the Court’s jurisdiction is facultative and the Council’s is compulsory. 1005 1006

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decision, or it might become the subject of a non-binding political recommendation; or it might simply remain untreated. Apart from certain procedures which in some cases can be binding on States – as for example those in Chapter VI of the UN Charter, which in any event never give rise to binding decisions as regards the substantive issues – dispute settlement remains a subject rich in forums that may optionally be resorted to, but poor in compulsory jurisdictions and competences. Far from doing anything to change this scheme of things, compromissory and jurisdictional clauses fit admirably into it. By permitting without binding, they guarantee very little, and the reason for this is that they are essentially founded on the goodwill of the States concerned. However, as soon as one State decides to take a dispute to the Court, the jurisdictional avalanche is triggered and the procedural millstones begin to grind. The main missing element, then, is not so much the existence of a binding jurisdictional procedure, as the obligation to set the procedure in motion so as to guarantee a solution (in this case legal solution) for the dispute. The means of applying the law are to hand, but the means of ensuring the pre-eminence of the law are not. What are the important criteria by which parties decide whether or not to invoke compromissory clauses? First and foremost, the question is whether they want to profit from the two-fold advantage of proceedings before the Court: (1) the relative ‘depoliticisation’ of the dispute, given the nature of judicial argument and the application of impersonal rules of law; and (2) the binding nature of the decision, enabling the dispute to be resolved. One party seising the Court. As regards seising the Court, there are three types of compromissory clause. First, there are clauses which allow any party to the treaty to unilaterally seise the Court of any dispute between itself and another party about a question concerning the treaty’s interpretation or application. This is the most common type, and is the best way to ensure that the Court will have jurisdiction, without any obstacle, over any case where a party wishes to seise it of the dispute. Article IX of the Genocide Convention of 1948 is an example of this type of clause: ‘Disputes . . . shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.’ (italics added) Second, there are clauses which provide that a dispute must be brought before the Court by means of a special agreement between the parties. This amounts, according to the case, to a pactum de contrahendo. A typical example of this type of clause is to be found in Article 11, paragraph 2 of the Antarctic Treaty of 1959: Any dispute of this character [between Contracting Parties as to the interpretation or application of the present Treaty] not so resolved [by any other means] shall, with the consent, in each case, of all parties to the dispute, be referred to the International Court of Justice for settlement

In this case the parties did not wish to give each other the right to seise the Court unilaterally, but did agree to impose the obligation to seise the Court jointly by a document in which the parties would together indicate the nature of the dispute and the task that was being entrusted to the Court. If such a clause were to say not that the dispute must, but only that it can or may be taken to the Court by special agreement, it would have no specific legal effect except, by a kind of ‘soft law’ process, to encourage the parties to consider a special agreement. Third, there are clauses that give no indication one way or the other. In such cases, the Court’s jurisprudence makes a presumption in favour of the idea that each party to the



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dispute that is also a party to the treaty has the right to seise the Court unilaterally.1008 The presumption is based on the principle of useful effects. If the parties want to exclude the idea that any of them can seise the Court unilaterally, they must say so in the text. Otherwise, the Court will follow the underlying logic of its compulsory jurisdiction under compromissory and jurisdictional clauses and allow a party to seise it unilaterally. If the Court reached the opposite decision it would simply render stillborn the parties’ wish to settle the relevant disputes by recourse to the Court. The Court’s attitude must therefore be approved. It is supported by the maxim boni judicis est ampliare jurisdictionem, and also responds to a concern not to increase the already over-numerous obstacles to the seising of the Court. The first case in which the Court spoke of such a presumption was the dispute concerning United States diplomatic and consular staff at Tehran (1980). Article XXI, paragraph 2, of the 1955 Iran–USA Treaty on Friendship, Trade and Consular Rights, read as follows: Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.

The Court interpreted this provision as follows, in so far as it concerned the right to seise it: While that Article does not provide in express terms that either party may bring a case to the Court by unilateral application, it is evident . . . that this is what the parties intended. Provisions drawn in similar terms are very common . . . and the intention of the parties in accepting such clauses is clearly to provide for such a right of unilateral recourse to the Court, in the absence of agreement to employ some other pacific means of settlement.1009

In the first sentence, the Court does, admittedly, refer to the actual intentions of the parties. But the second goes further, establishing a kind of presumption as to what must reasonably be supposed to have been the parties’ intention. This reading of the text is confirmed by the case on Maritime delimitation and territorial questions (Jurisdiction and admissibility, Qatar v Bahrain, 1995). The applicable clause provided that: ‘All the disputed matters shall be referred to the International Court of Justice, at The Hague, for a final ruling binding upon both parties, who shall have to execute its terms’. The Court took the view that under this clause it could be seised unilaterally. Its view was based first and foremost on the wording of the clause1010 and then on considerations relating to its object and 1008   See R Szafarz, The Compulsory Jurisdiction of the International Court of Justice (Dordrecht/Boston/London, 1993) 30; V Starace, La competenza della Corte internazionale di Giustizia in materia contenziosa (Naples, 1970) 93 et seq.; Tomuschat, ‘Article 36’, above n 482, 623–24. 1009   ICJ Reports 1980, 27, § 52. 1010   ICJ Reports 1995, 18–19, § 35: ‘The Court will first analyse the meaning and scope of the phrase “Once that period has elapsed, the two parties may submit the matter to the International Court of Justice.” It notes the use in that phrase of the verb “may”, which, in its ordinary meaning, envisages a possibility, or even a right. Accordingly, the expression “the two parties may submit the matter to the . . . Court” suggests in the first place, and in its most natural sense, the option or right for them to seise the Court. Taken as such, in its most ordinary meaning, that expression does not require a seisin by both Parties acting in concert, but, on the contrary, allows a unilateral seisin. In the view of the Court, that interpretation is reinforced both by the form of words and by the logical implications of the expression “Once that period has elapsed”, which constitutes the other component of the phrase in question. Indeed, those words imply that the option or right to move the Court was capable of being exercised as soon as the time-limit expired; this in turn necessarily implies the existence of an option or a right of unilateral seisin.’

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purpose.1011 Although the actual wording of the clause is a matter of circumstance, the considerations in question are a matter of principle. Overall, then, one must conclude that the Court will interpret a compromissory or jurisdictional clause which is silent as to whether the seisure of the Court can be unilateral or must be done jointly, as entitling parties to seise the Court unilaterally, unless there are facts or circumstances, relevant to the particular case (that is to the text or the parties’ intentions) that point clearly in the other direction. If parties are concerned about the possibility that the Court may be seised unilaterally, it is for them to take the appropriate steps at the time the text is negotiated. They can cover themselves against any such eventuality by appropriate drafting in the treaty, by specific reservations as to the relevant clause, or by refusing to ratify the treaty if the clause is not modified. If they do not do so, it is not for the Court to place difficulties in the path of dispute resolution: on the contrary, it is for the Court to do what it can to make dispute resolution easier, swifter and more effective. Compromissory clauses and the termination or suspension of the treaty. General international law allows a State to terminate or suspend the application of a treaty for certain accepted reasons, such as a substantial violation of the treaty (Article 60 of the Vienna Convention on the Law of Treaties of 1969) or states of emergency in relation to human rights treaties (suspension of certain guarantees, Article 4 of the International Covenant on Civil and Political Rights (ICCPR)). If a treaty is terminated or suspended in this way, it would be strange if its compromissory clause were extinguished (or suspended) at the same time. The clause is there in order to ensure that the Convention will be applied and to subject that question to the review of an impartial third party. It is often the case that, when one State unilaterally invokes a particular reason to terminate or suspend a treaty, a dispute will arise. Another State, affected by the first State’s unilateral act, may demand that the reasons and justification for it be subjected to proper examination and scrutiny, and may indeed dispute the legality of the unilateral act right from the outset. It may say that it has never violated the treaty or that it has not committed a substantial violation such as would permit the opposing State to terminate or suspend it under Article 60 of the 1969 Vienna Convention on the Law of Treaties. This kind of dispute is another reason to include a compromissory clause in a treaty. The clause itself therefore cannot be taken to be extinguished or suspended along with the rest of the treaty. Legally, the clause has to be given a special status, severable from the rest of the provisions, so as to make safe the provision for dispute resolution. Article 60, paragraph 4 of the 1969 Vienna Convention on the Law of Treaties contains, in this regard, a provision which is capable of general application, on a case-by-case basis, to other grounds for the suspension or termination of a treaty.1012 It reads as follows: ‘The foregoing paragraphs [as to certain legal consequences flowing from a substantial 1011   Ibid, 19, § 35: ‘Any other interpretation would encounter serious difficulties: it would deprive the phrase of its effect and could well, moreover, lead to an unreasonable result. In fact, the Court has difficulty in seeing why the 1990 Minutes, the object and purpose of which were to advance the settlement of the dispute by giving effect to the formal commitment of the Parties to refer it to the Court, would have been confined to opening up for them a possibility of joint action which not only had always existed but, moreover, had proved to be ineffective. On the contrary, the text assumes its full meaning if it is taken to be aimed, for the purpose of accelerating the dispute settlement process, at opening the way to a possible unilateral seisin of the Court in the event that the mediation of Saudi Arabia . . . had failed to yield a positive result by May 1991.’ 1012   See, for fundamental change of circumstances, Art 62 of the Vienna Convention on the Law of Treaties; the case on Fisheries Jurisdiction (Jurisdiction), ICJ Reports 1973, 65.



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violation of a treaty] are without prejudice to any provision in the treaty applicable in the case of breach.’1013 The Court has expressed the same principle in rather more general terms: Nor in any case could a merely unilateral suspension per se render jurisdictional clauses inoperative, since one of their purposes might be, precisely, to enable the validity of the suspension to be tested. If a mere allegation, as yet unestablished, that a treaty was no longer operative could be used to defeat its jurisdictional clauses, all such clauses would become potentially a dead letter . . . The result would be that means of defeating jurisdictional clauses would never be wanting.1014

The general way in which this is formulated has two aspects. First, the formulation relates to ‘jurisdictional clauses’, covering both compromissory clauses and jurisdiction clauses in the narrow sense of those contained in general treaties on dispute resolution. Second, it applies to the most diverse reasons for suspending a treaty, from the moment they are unilaterally invoked (also not necessarily ‘by a party’ but perhaps also by several States, all on the same ‘side’, against another group of States). In short, a challenge to the validity or applicability of the treaty does not present an obstacle to a jurisdictional clause; on the contrary, it brings it into application. One might think that an alternative legal construction, perhaps a simpler one, would be to affirm the Court’s competence on the basis of the principle of ‘jurisdiction over jurisdiction’ (Article 36, § 6 of the Statute). If a State brings a case to the Court on the basis of a compromissory clause in a treaty, and the respondent pleads the termination or suspension of the treaty, the Court will be obliged, on an incidental basis, when considering its own jurisdiction, to examine the question to what extent, if at all, the treaty provisions continue to apply. Since, under its Statute, the Court has both the power and the duty to decide on its jurisdiction, and since the power and duty extend to all questions necessary to the decision, the Court’s enquiry into the continuance of the treaty falls under the jurisdiction question, and the Court can deal with this aspect of the dispute. Nevertheless, the legal difference between these two approaches is not entirely negligible. It makes the ‘severability’ approach a preferable one. That approach enables the Court, when tackling the dispute as to the continuance of the treaty, to do so as a principal element of its jurisdiction, and consequently gives it the power to issue all necessary orders and directions. By contrast, the doctrine of ‘jurisdiction over jurisdiction’ enables the Court to deal with the question of the treaty’s continuance solely for the purpose of deciding on its jurisdiction. On this basis, the operative part of the Court’s Judgment – the dispositif – must be confined to the question whether there is or is not jurisdiction, whereas on the ‘severability’ basis the Court’s reasoning as to continuance can be more wide-ranging, and this can in turn colour the type of dispositif that results. If the treaty in question has been validly denounced, terminated or suspended, it will cease to apply. With it, the compromissory clause will likewise cease to apply except, as we have seen, as regards disputes concerning the validity of the challenge to the treaty. However, if an application is made to the Court prior to the (critical) date on which the treaty ceases to be applicable, the Court will retain jurisdiction to deal with the matter until it is finally disposed of; its jurisdiction will extend even to subsequent applications for 1013   As very succinctly explained by the ILC, having prepared this text: ‘Paragraph 4 merely reserves the rights of the parties under any specific provisions of the treaty applicable in the event of a breach’ in Yearbook of the ILC 1966-II, 255. (Doc. A/6309/Rev.1). 1014   Appeal regarding the jurisdiction of the ICAO Council, ICJ Reports 1972 53–54, §16.

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revision or interpretation of the final judgment.1015 This is an application of the forum perpetuum principle discussed above. Conversely, the compromissory clause will become operative not only from the date when the treaty enters into force for the disputing parties, but also, according to the circumstances, prior thereto, if the parties agree that the treaty shall be given provisional application under Article 25 of the 1969 Vienna Convention on the Law of Treaties (unless they explicitly exclude such application for that time). Jurisdiction ratione temporis on the basis of compromissory/jurisdictional clauses. In the context of optional declarations under Article 36, paragraph 2 of the Statute, there is no presumption that submission to the Court’s jurisdiction is limited in point of time. The principle of non-retroactivity does not apply. Quite the contrary, it is taken as read that States wish, through such optional declarations, to assure to themselves the possibility of resolving all their disputes resulting from events past, present and future. For that reason, a series of States, wishing to make provision for the principle of non-retroactivity, have included, in their declarations, reservations to exclude disputes based on facts that occurred prior to the dates of their declarations. As regards compromissory or juridisdictional clauses featuring in treaties, the general rule of non-retroactivity prevailing in this respect, reflected in Article 28 of the Vienna Convention on the Law of Treaties (1969),1016 seems to point the other way. The jurisdiction would seem to be automatically limited to disputes all the elements of which arose after ratification or accession to the treaty by the State concerned, and also to presuppose that the treaty is already in force. However, the States in question can always use an interpretative declaration to indicate that they are also agreeing to submit to the Court disputes arising prior to that date. This practice amounts to a kind of ‘reverse reservation’, operating not to reinstate non-retroactivity, but to eliminate it. States can also refrain from raising preliminary objections to the Court’s temporal jurisdiction, if and when a case is brought outside the temporal limitations of the clause. The system of the optional clause thus seems firmer and more binding (through the presumption against temporal limitations) than the system of compromissory or jurisdictional clauses (where there is a presumption in favour of temporal limitation). The old jurisprudence shows that the ICJ had not accepted – or, to be more exact, had not presumed – the retroactive application of compromissory clauses.1017 For the Court, this was a case-by-case question that needed to be decided according to the wishes of the parties. If it were positively established that the parties wanted a temporal limitation, or even if their wishes could not be established with the appropriate degree of certainty, the Court had no jurisdiction. However, in the case on the Application of the Convention on the prevention and punishment of the crime of genocide (Preliminary Objections, BosniaHerzegovina v Yugoslavia, 1996), the Court took a certain distance from its previous stance. Yugoslavia had claimed the benefit of non-retroactivity in the context of Article IX of the Convention, which deals with compromissory clauses. It argued that the clauses should be limited to ‘events subsequent to the different dates on which the Convention 1015   See the Nottebohm case (Preliminary Objection), ICJ Reports 1953, 123; Right of passage over Indian territory (Preliminary Objections), ICJ Reports 1957, 142; Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility), ICJ Reports 1984, 416, § 54; and merits, ICJ Reports 1986, 28, § 36; Lockerbie, ICJ Reports 1998, 23–24, § 38. See also Szafarz, above n 1008, 39. 1016   Sometimes it is specifically referred to, as for example in Art 27 of the 1957 European Convention on the peaceful settlement of disputes. The Court applied this provision in the case on Certain property (Liechtenstein v Germany) ICJ Reports 2005, §§ 28 et seq. 1017   Ambatielos case (Preliminary Objections), ICJ Reports 1952, 40–41.



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might have become applicable as between the Parties’.1018 The Court’s response was as follows: In this regard, the Court will confine itself to the observation that the Genocide Convention – and in particular Article IX – does not contain any clause the object or effect of which is to limit in such manner the scope of its jurisdiction ratione temporis, and nor did the parties themselves make any reservation to that end, either to the Convention or on the occasion of the signature of the Dayton-Paris Agreement. The Court thus finds that it has jurisdiction in this case to give effect to the Genocide Convention with regard to the relevant facts which have occurred since the beginning of the conflict which took place in Bosnia and Herzegovina.1019

Here, then, the presumption was reversed: absent some express reservation, the temporal limitation did not apply. Compromissory clauses (and perhaps, generally, jurisdictional clauses in treaties) are thus aligned with the regime of the optional clause. Also, a distinction is thus introduced into the Convention, whose material provisions do not apply retroactively; the compromissory clause obtains a special status and does apply retroactively. This conclusion by the Court, which at first sight is so off-putting, can be interpreted in various ways. The simplest explanation is to note the ‘special’ elements of the Yugoslav cases: the Court was behaving politically when, each time, it found against Serbia, which had become a kind of international pariah State. That explanation cannot be examined here, and it would be inappropriate to do so anyway, since it is entirely extra-legal in nature. From the legal perspective, three possible readings are as follows: (1) In cases of State succession, as this one was, the successor State so fully succeeds to its predecessor’s legal position that there is a perfect legal continuity in the application of the Convention and no new critical date comes into existence. It has to be accepted, however, that if the Court had wanted to follow this line of reasoning, it is, to say the least strange that it did not say a word about it. (2) The Genocide Convention is a special treaty because its object is a fundamentally humanitarian and civilising and this requires it to be interpreted more liberally and more extensively than other treaties. The Court did indeed mention this object and special objective of the Convention, at the end of paragraph 34 of its judgment, cited above. It had already emphasised this aspect in its 1951 advisory opinion.1020 (3) The Court intended a general alignment of the regime for jurisdictional (or purely compromissory) clauses alongside the optional clause regime, so as to establish a unitary rule against the temporal limitation of a title of jurisdiction, except where relevant reservations require otherwise. It is difficult to choose between the last two interpretations, since the Court gives us no clear indication which to prefer. Prudence suggests that the only interpretation we can be confident of is No 2, which rests on a distinction between treaties which are fundamentally humanitarian in nature and the rest (although this distinction itself raises thorny issues of interpretation). Perhaps the Court did not even want to say that much. Interpretation No 3 is in line with the maxim boni judicis est ampliare jurisdictionem, and dispenses the Court from the need to get bogged down in minute examinations of facts and lapses of time, which are sometimes too complex to unravel properly. The principle of non-retroactivity does not necessarily require one to ignore facts prior to the treaty or convention’s entry   ICJ Reports 1996-II, 617, § 34.  Ibid. 1020   Case on Reservations to the Genocide Convention, ICJ Reports 1951, 23 (‘purely humanitarian and civilizing purpose’). 1018 1019

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into force and prior to its becoming applicable to the relevant parties. All it requires is that the compromissory clause itself should not be applied prior to that critical date.1021 If the solution in the Genocide case were of general application, both compromissory and jurisdictional clauses would apply as from the critical date, but the facts on which the dispute was based would not be temporally limited. It would be enough that the dispute was current at the moment the Court was seised of it. This solution does, at all events, have the merit of greatly simplifying the legal situation. It is, however, too early to claim that the traditional view of non-retroactivity, extending to the facts that led to the dispute, has been overturned. States remain attached to it and the Court has not so far given any sufficiently firm indication of how it sees the question. However, there are some good arguments in favour of solution No 3. Can it be argued that the Convention’s substantive provisions apply retroactively through the interplay with the compromissory clause? Even if the facts of the dispute date from the past, are not those facts nevertheless relevant only by reference to the treaty norms, given that the compromissory clause is concerned with the ‘interpretation and application of the treaty’? Can it be said that the norms thus refer back – so to speak becoming transported back into the past? This is an interesting objection, but when one considers it carefully, it fails. The Convention provisions are applied only at the moment when the Court reaches its decision, that is at a time when they are already in force. Facts prior to the critical date do no more than constitute the dispute. The norms are thus applied after the critical date, to a dispute after the critical date, but some of whose constitutive facts date from prior to that date. All that the solution contemplated here does is to make it possible for the Court to retain jurisdiction even when certain of the facts which have led to the dispute’s crystallising occurred prior to the critical date. Jurisdiction ratione personae on the basis of compromissory/jurisdictional clauses. The Court’s jurisdiction under a compromissory or jurisdictional clause is limited to the parties to the dispute that have ratified or acceded to the treaty containing the clause. Signature is not enough, because in itself it neither makes the treaty applicable nor brings it into force. As already noted, if the provisional application of the treaty has been stipulated for in accordance with Article 25 of the Vienna Convention on the Law of Treaties, this will suffice to make the clause applicable to a party which has so applied the treaty, unless the parties have otherwise agreed. In addition, the treaty must be in force and the operation of the compromissory clause must not be paralysed by applicable reservations. In this case the Court’s jurisdiction is confined to an inter partes network: it extends to the reciprocal relations of all States which are parties to the treaty and have not excluded the Court’s competence. In addition, the States in question must be parties to the Statute of the Court or be authorised to appear before the Court under Article 35, paragraph 2 of the Statute. The most difficult problem here relates to reservations. States are generally free to formulate reservations in respect of compromissory clauses. It will be remembered that under general international law, fairly summarily codified in Articles 19 to 23 of the Vienna Convention on the Law of Treaties, a State is free to attach reservations to a treaty unless the text prohibits the practice and provided the reservations are not contrary to certain restrictions of international law, the most important being that the restrictions are not contrary to the object and purpose of the treaty. The presumption 1021   Obviously with the exception of advance application of the treaty under Art 25 of the Vienna Convention on the Law of Treaties.



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is thus in favour of reservations, provided that the treaty is silent on the point. It is very rare for treaties to prohibit reservations as to compromissory or jurisdictional clauses. The only remaining practical question is to what extent a reservation restricting or excluding the ICJ’s jurisdiction might be contrary to the object and purpose of the treaty. Put in those terms, the question obviously depends on the particular treaty. The permissibility of the reservation will depend on the interpretation of the particular clause in its particular context, in the light of the parties’ intentions and of the object and purpose of the treaty. It is impossible to lay down a general rule that restrictions as to the Court’s jurisdiction are contrary to the objects and purposes of any treaty. If that were so, it would be necessary to conclude that the numerous treaties containing no jurisdictional clause do not make good legal sense, and are even invalid. That would be an absurd conclusion. A compromissory or jurisdictional clause can obviously be an essential element of a treaty. The parties may feel that an arrangement for binding dispute resolution by an independent third party, is an essential sanction, buttressing the obligations accepted in the treaty and preventing it from being seen as a mere list of good intentions, or even just a ‘scrap of paper’. The Court recognised this in the Fisheries Jurisdiction cases (Jurisdiction, 1973) in which it emphasised that the applicants’ right of recourse to the Court against unilateral extensions of Iceland’s exclusive zones was an essential element in the overall balance of the treaty balance: ‘the real intention of the parties was to give the Government of . . . the United Kingdom . . . the right to challenge before the Court the validity of any further extension of Icelandic fisheries jurisdiction’.1022 In the internal balance of the treaty, the jurisdiction of the ICJ was a key element. In such a treaty, a reservation with respect to the compromissory clause would have been unthinkable, because it would have been contrary to the treaty’s object and purpose (but it has to be conceded that these were here bilateral treaties, to which reservations are not usually attached). There are some treaties which are plainly of such a nature that it is important to include a spur for the parties’ to respect their obligations, in the form of a compromissory or jurisdictional clause. The 1948 Genocide Convention is a good example. The Court has, on two occasions,1023 stressed the fundamentally civilising nature of the Convention and that therefore it applies erga omnes. Can one extrapolate from that, that, although compromissory clauses may often be merely procedural supports for substantive provisions, when it comes to a crime as serious as genocide, and to its prevention and punishment, the sanction of law, through judicial oversight, is of the first importance not only symbolically but legally? If that were the case, then the compromissory Article IX of the Genocide Convention would be essential to the Convention’s object and purpose. For that reason, in accordance with the codified rule in Article 19(c) of the 1969 Vienna Convention on the Law of Treaties, reservations would not be allowed. However, the Convention does not prohibit reservations, and the travaux préparatoires provide little enlightenment on the point.1024 At the time of writing (early 2010), 17 out of the 140 States Parties have entered reservations as to Article IX of the Convention, many of them in line with long-standing tradition such as the reservations of the Communist States which led to the request for the 1951   ICJ Reports 1973, 13, § 23. See also ibid, 58, § 23.   Case on Reservations to the Convention against genocide, ICJ Reports 1951, 23, and case on the Application of the Convention for the prevention and punishment of the crime of genocide (Jurisdiction and admissibility, BosniaHerzegovina v Yugoslavia), ICJ Reports 1996-II, 616, § 31. 1024   See R Kolb and S Krähenmann, ‘The Scope Ratione Personae of the Compulsory Jurisdiction of the ICJ’ in Gaeta (ed), above n 971, 433–34. 1022 1023

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advisory opinion.1025 As we shall see, the Court did finally decide whether reservations excluding submission to Article IX were compatible with the object and purpose of the Convention and were therefore valid. What is true of the Genocide Convention, the paradigm case of a humanitarian and civilising treaty, is surely true a fortiori for practically any other treaty. In the cases on Legality of the use of force (Order, 1999) that concerned Spain and the USA, the Court confined itself to giving effect to the reservations to Article IX, excluding the Court’s jurisdiction, that had been entered by those two States.1026 Given that the validity of the reservation was not challenged by the Applicant State (Serbia and Montenegro), the Court did not think it necessary to examine the question ex officio. The question was to some extent resolved for the purposes of the particular case by acquiescence, the validity of the reservation being neither raised nor disputed by the applicant. Subsequently, in the case on Armed activities in the territory of the Congo (new application, DRC v Rwanda, 2006), the Court for the first time decided this point in a judgment. The DRC had challenged the validity of the Rwandan reservation, that reservation posing an obstacle to the Court’s jurisdiction. Without any legal analysis the Court baldly contented itself with the following ipse dixit: In the circumstances of the present case, the Court cannot conclude that the reservation of Rwanda in question, which is meant to exclude a particular method of settling a dispute as to the interpretation, application or fulfilment of the Convention, is to be regarded as being with the object and purpose of the Convention.1027

And the Court added: In fact, the Court has already had occasion in the past to give effect to such reservations to Article IX of the Convention (see Legality of the use of force (Yugoslavia v Spain), Provisional measures, Order of 2 June 1999, ICJ Reports 1999, p 772, paras 32–33; Legality of the use of force (Yugoslavia v United States of America), Provisional measures, Order of 2 June 1999, ICJ Reports 1999, p 924, paras 24–25). The Court further notes that, as a matter of the law of treaties, when Rwanda acceded to the Genocide Convention and made the reservation in question, the DRC made no objection to it.1028

We are not suggesting that the Court’s conclusion was necessarily wrong in law, but the absence of any reasoning on a question of international law of such importance does leave one with a certain sense of dissatisfaction, the more so since the Court took care to confine its finding to the ‘circumstances of the case’, which is a fairly clear indicator that the conclusion was far from obvious, and that there were divergent opinions on this point among the judges. Indeed, five of them, in a joint separate Opinion relating to these paragraphs of the judgment, said it is thus not self-evident that a reservation to Article IX could not be regarded as incompatible with the object and purpose of the Convention and we believe that this is a matter that the Court should revisit for further consideration.1029

The Court added a further argument solely relating to the particular case, namely that the DRC had not objected to the reservation when Rwanda made it. The fact that important   Ibid, 434–35.   ICJ Reports 1999-II, 772, §§ 29–33 (Spain) and ibid, 923–24, §§ 21–25 (USA). 1027   ICJ Reports 2006, § 67. 1028   Ibid, § 68. 1029   Ibid, § 29. 1025 1026



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States such as the USA had made reservations of this kind doubtless had some subtle influence in deciding the Court not to declare it invalid. Legally then, it is possible to argue either that compromissory clauses in such treaties are merely adventitious and procedural, so that reservations are permissible, or alternatively that the object and purpose of the Convention, namely to ensure that in all cases a legal sanction is available, would be defeated if such reservations were permissible, and that therefore they are prohibited. But, on any view, the question needs closer examination by the Court, so that the legal world is provided with judicial reasoning rather worthier of the name. It has to be recognised that on this point the Court has not so far stepped up to the mark in the way it ought to. If the applicant has, without reservations, accepted a compromissory clause giving the Court jurisdiction, but the respondent has done so subject to reservations, can the applicant invoke the respondent’s reservations on a reciprocal basis? As we will see, this kind of reciprocity applies in the context of optional declarations under Article 36, paragraph 2 of the Statute. That practice enables the Court to ensure a certain equality between the parties, and to avoid incentivising States that are preparing optional declarations to pile up their reservations with a view to arming themselves as heavily as possible against future unpleasant surprises. So far as compromissory and jurisdictional clauses are concerned, one might at first sight suppose that this particular kind of reciprocity is inapplicable.1030 Why, after all, should one wish to extend the right to block judicial settlement to a State which had not sought the right and had entered no reservation of its own? On the face of it, the desirability of safeguarding the Court’s jurisdiction from avoidable restrictions ought to militate against this kind of reciprocity, which would increase the scope for debarring the Court from the exercise of jurisdiction. Be that as it may, however, under Article 21, paragraph 1 of the 1969 Vienna Convention on the Law of Treaties,1031 the reciprocal application of the reservation as between the reserving State and all the other States Parties to the treaty that have accepted the reservation is guaranteed. This means not only that, if the reservation excludes a jurisdiction the Court would otherwise enjoy under a compromissory or jurisdictional clause, no other State can successfully bring a dispute before the Court against the reserving State (if that State decides to raise the reservation), but also vice versa. Between the reserving State and the other States Parties to the treaty in question, the treaty either does not apply at all (in the case of a radical reservation), or applies with the exception of the provision to which the reservation relates, so that to that extent the Court’s jurisdiction is likewise excluded (a simple reservation): Article 20, paragraph 4(b) and Article 21, paragraph 3 of the 1969 Vienna Convention on the Law of Treaties. In consequence, there is no difference as regards reciprocity, between compromissory/jurisdictional clauses and optional declarations, that is between paragraphs 1 and 2 of Article 36 of the Statute. Subject-matter jurisdiction on the basis of compromissory clauses. The Court’s subject-matter jurisdiction on the basis of a compromissory clause typically extends to ‘all questions as to the interpretation or application’ (and sometimes the fulfilment or ‘execution’) of the 1030   It would then be a feature specific to the system of the optional clause and designed to maintain that system’s functionality. In relation to compromissory and jurisdictional clauses, the applicant and respondent could invoke only the reservations they had themselves made, not those of their opponents. The system of the optional clause would in that case present a more integrated conception. 1031   See also A Verdross and B Simma, Universelles Völkerrecht, 3rd edn (Berlin, 1984) 469. On reciprocity before the Court, see generally, S Torres Bernardez, ‘Reciprocity in the System of Compulsory Jurisdiction and in Other Modalities of Contentious Jurisdiction exercised by the ICJ’ in Essays TO Elias (Dordrecht, 1992) 291 et seq.

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treaty in which the clause is to be found.1032 And that is as far as it goes. The Court has jurisdiction to decide preliminary questions as to whether a dispute does or does not relate to the ‘interpretation or application’ of a treaty. That particular power is explicitly provided for in some treaties,1033 but this is legally unnecessary since the Court in any event has, in the last resort, the right to decide the question as part of its general power to decide all disputes about its jurisdiction, including subject-matter jurisdiction (Article 36, § 6 of the Statute, ‘jurisdiction over jurisdiction’). If the Court did not have that power, compromissory and jurisdictional clauses would lose their entire efficacy. The respondent could simply (and definitively) claim that the dispute did not relate to a question concerning the interpretation or application of the treaty, and that would be that. The expressions ‘interpretation’, ‘application’ and (where mentioned) ‘execution’ are alternatives, not to be interpreted cumulatively. They are to be read disjunctively, separated by the word ‘or’ not ‘and’. It is enough, therefore, that the dispute relates to one or the other: the Court then has jurisdiction. This alternative application of the three terms corresponds perfectly to the legislative intention of opening up access to the Court as widely as possible, so that all disputes relating to the treaty can be resolved. Also, given the fairly wide areas of overlap between the three terms, it would artificial to require all these elements to be present, although it must be said that, at least in a sense, they will all be present willy-nilly. Interpretation of a treaty is directly relevant to its application, given that the latter presupposes a certain interpretation of the text and gives expression to it. As for execution, it is merely a particular form of application. In a broad sense, then, any dispute about a treaty turns, at least indirectly, on all three elements simultaneously. That does not mean that the parties cannot request a declaratory ruling only on a point of interpretation. However, for the dispute to be a real and not artificial one, and so that the Court does not refuse to decide the question on the ground that it is a moot one, it is accepted practice that the interpretation must be directed towards practical effects and not to purely theoretical ones. The practical effects in question can only be either the application of the treaty or convention concerned, or else, perhaps, its modification. Even in the latter case, the parties are trying to find out what their text actually means and how it ought to be applied, so that, if necessary, they can decide that it ought to be amended. Here again, the three elements are inextricably interwoven. What are the exact meanings of these three expressions? Interpretation is concerned with understanding the meaning of a rule and giving it sense. It is thus the classic cognitive or constructive concept, linking the Sage (the person with the knowledge) to the Demiurge (the creative power). Application consists of giving practical effect to a norm by material acts of the kind that it requires. In other words, in classic theory interpretation is both logically and temporally prior to application: interpretation fixes the meaning and content of the rule, application brings out the consequences by giving practical expression to the rule. The interpretation is always an implicit element in the application. The latter presupposes that it is necessary to act in ‘this’ way or ‘that’ and not in some other way, meaning it presupposes that ‘this’ or ‘that’ action, rather than some other action, is required by the texts. The action that is actually required flows from understanding the text, and thus from its interpretation. It is only if one reserves the expression ‘interpretation’ to the understanding of the text in cases of obscurity or doubt, that any more radical difference can be identified   cf Sohn, above n 923, 228.   See the examples in ibid, 231.

1032 1033



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between the two expressions. In this latter case, ‘application’ does not always presuppose ‘interpretation’, nor does it do so on a regular basis, because there will still be a whole series of clear provisions which will not need to be interpreted. However, we have no reason to remain anchored in this old and very narrow conception of interpretation. Modern hermeneutics have demonstrated that even the apparent clarity of a rule is, in reality, only contextual, and results from a certain understanding in a given situation.1034 It is thus the result of ‘interpretation’ in the broad sense of the term, since the resulting conclusion cannot be taken for granted. Finally, there is the word execution, which is normally taken to mean a particular form of application, namely an application directed towards the concrete satisfaction of the obligations incurred under the text, or assumed in respect of the object and purpose of the treaty. The word ‘application’ is a little wider, and a little less rigid.1035 Execution is the application of the treaty ‘without exercising a licence or taking liberties’; application means execution, but can also involve, for example, reflection on the circumstances in which the treaty ought or ought not to be applied1036 or in which some other act ought to be done by virtue of it.1037 Given that the expression ‘execution’ is, so to speak, contained within the wider concept of ‘application’, it is unnecessary to give it separate mention. That is why compromissory clauses dating from after 1945 rarely refer to it. Mentioning it separately was a particular usage of the inter-war period, the reason for which was to give the Court cast-iron jurisdiction, so that no cracks or lacunae would prevent the Court having full power to deal with all the issues that might crop up in the life of the treaty. As the PCIJ put it in the case of the Factory at Chorzów in 1927: ‘a jurisdiction [excluding important aspects of the application of a treaty, for example the consequences of its violation], instead of settling a dispute once and for all, would leave open the possibility of further disputes’.1038 Since that time, the Court has often insisted on the need to resolve disputes definitively rather than leaving them to subsist in a merely altered form.1039 It has sought to avoid leaving inflammatory issues unresolved in the relations between parties, its underlying purpose being the fullest possible discharge of its pacificatory role. Concentrating on that underlying purpose in the context of compromissory clauses – cherishing the maxim boni judicis est ampliare jurisdictionem1040 – it is appropriate to understand all three expressions in a broad sense: ‘interpretation’, ‘application’ and ‘execution’. All disputes connected to the ‘life of the treaty’ must be capable of being submitted to the Court. Then the issue is which questions are ‘within’ the treaty, or sufficiently connected to it for the Court to have jurisdiction, and which are not. It is not always easy to draw that line. If it is right to give a wide meaning to these expressions, on the basis that this must have been what the parties intended, that does not obviate the need to draw a line beyond which one does, so to speak, 1034   For the international law, see R Kolb, Interprétation et création du droit international, Esquisse d’une herméneutique juridique moderne pour le droit international public (Brussels, 2006). 1035   See the Mavrommatis case (1925), PCIJ, Series A, no 5, 47–48. 1036   See the argument of the Indian delegate at the time of adoption of Art IX of the 1948 Genocide Convention: Official Records of the Third Session of the General Assembly, Part I, Sixth Committee, Summary Records of Meetings 21 September–10 December 1948, 437. 1037   PCIJ, Series A, no 5, 48. 1038   PCIJ, Series A, no 9, 25. 1039   cf A Orakhelashvili, ‘Interpretation of Jurisdictional Instruments in International Dispute Settlement’ in The Law and Practice of International Courts and Tribunals, vol 6 (2007) 181–82. 1040   Which Judge De Castro erroneously held to be inapplicable in international law because of the parties’ sovereign status: Separate Opinion of Judge De Castro, case on Fisheries Jurisdiction (German Federal Republic v Iceland, merits), ICJ Reports 1974, 226.

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go beyond the ‘atmosphere’ of the treaty and on into an outer space in which jurisdiction has not been consented to. At the end of the day, the maxim boni judicis . . . has never meant that a court can simply extend its jurisdiction indefinitely, without giving careful attention to its true legal limits. Treaties are not made in a legal vacuum, but in the context of general international law, with which they are, of necessity, closely interwoven. It is quite normal for them to refer to the general international law or to be based on it, so that they can function adequately in concrete circumstances. It is simply not possible for parties to write down in the text all the existing rules of general international law that may apply. If they tried, they would quickly be faced with a swollen and indigestible text. Anyway, the exercise would be a pointless one. The rules apply automatically as international customary law, except to the extent that the treaty modifies or disapplies them. In positive terms, this means that, when drafting treaties, parties implicitly rely (and base their activity) upon a series of rules of general international law. It even means that, by implication, they are referring to those rules, for example, to customary norms of treaty interpretation, to those relating to the conclusion, validity, termination of the treaty, to the consequences of violations, to State succession and so on. Are these rules therefore incorporated into the treaty by some sort of renvoi, and can the Court take cognisance of them under a compromissory clause? And further, what about modifications to the treaty, brought about by the parties’ ‘subsequent practice’? The latter is a matter of the customary practice of the parties to the treaty, closely connected to the treaty itself. Also, if the object and purpose of the treaty are legally protected by international law, as the Court suggested in the Nicaragua case (1986),1041 then the Court’s competence must extend to the object and purpose also, since these aspects are obviously inextricably connected to the treaty itself. Better still! Treaties can govern the most diverse matters. If a treaty contains certain provisions on territorial integrity and non-recourse to force, are not those treaty norms voluntarily linked, very closely, to the related provisions of the UN Charter and of general international law? How could it be possible for the Court to take cognisance of the treaty without also taking cognisance of those rules that are external to the treaty, given that the parties must be supposed to have been referring constantly to the latter and, indeed, to have taken their inspiration from them? Is it not then correct to say that these rules have been indirectly incorporated into the treaty, so as to be covered by the compromissory clause? Obviously this line of reasoning widens the scope of the treaty, and of the compromissory clause. A series of concentric normative circles come successively into view, each to a greater or lesser degree bound up with the treaty provisions, rippling across the hitherto glassy waters of the treaty itself. There must, surely, be some limit to this process. But where does one draw the line? The first and most simple point to be made is that a compromissory clause is purely adventitious in nature and operates as a simple reference – by renvoi. In itself, it creates no substantive rights and obligations. The rights and obligations falling within the Court’s jurisdiction must be sought in the other provisions of the treaty. As the Court itself put the point with great clarity, in the South-West Africa cases (Second phase, 1966): Jurisdiction clauses are adjectival, not substantive, in their nature and effect; [they] cannot simultaneously and per se invest the parties with the substantive rights the existence of which is exactly what they will have to demonstrate in the forum concerned, and which it is the whole object

  ICJ Reports 1986, 135 et seq.

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of the latter to determine . . . Jurisdictional clauses do not determine whether parties have sub­ stantive rights, but only whether, if they have them, they can vindicate them by recourse to a tribunal.1042

Unlike jurisdictional clauses and optional declarations, compromissory clauses therefore work by simple renvoi. In themselves, they do not decide the scope of the Court’s subjectmatter jurisdiction, which has to be determined in light of the rest of the treaty. This technique is unnecessary in the case of jurisdictional clauses and optional declarations, because, in principle, they create a materially unlimited jurisdiction (any actual limitations being the result exclusively of any reservations the parties may have made). That much is clear but from there on, things get more difficult. Where the treaty begins and ends in its various contexts and links to the rest of the normative international order is a question which depends largely on considerations of judicial policy. The answers that are possible thus evolve over time. At a certain stage of historical development, a tribunal may take the view that the international community is (or simply that certain disputing States are) ready to accept a rather wider jurisdiction, in the hope that the result will be the widest possible resolution. At other historical stages, tensions in international relations or between certain disputing States can require the adoption of a more cautious attitude. The main problem is always to find an acceptable balance between two factors. On the one hand, there is the wish to bring the entire dispute to an end and to prevent the clause bringing about an artificial fragmentation of the applicable international law, since the clause itself will not allow the application of any law other than the particular law of the treaty. The risk here is that the legal solution will sometimes be somewhat blinkered, often failing adequately to reflect the various sources of law that would normally apply.1043 On the other hand, there is the Court’s duty to apply the law as it stands, and to observe and respect the limits of the subject-matter jurisdiction conferred on it by the parties. Judicial caution in striking the right balance is all the more important in view of the risk – which, however, one must be careful not exaggerate – that States, dissatisfied with the Court’s over-robust jurisprudence, will, in effect, desert it by annulling the titles of jurisdiction they have previously agreed to and/or refusing to enter into new ones. It may very well be rational and indeed laudable to wish to resolve the dispute completely; but if the parties have not consented to that, the Court must not force their hands.1044 If the result is a truncated legal solution that is of little practical use, the responsibility rests with the parties, not with the Court. One may reasonably ask, of course, whether the Court is not in some way responsible for the good sense and practical effects of its pronouncements. The principle of the good and proper administration of justice, and the value of precedent, may be seen as compelling reasons for the Court to take these matters into account. For these reasons the scope of the Court’s assertion of jurisdiction always rests on the razor’s edge, both legally and as a matter of judicial policy. For the purposes of these complex decisions the judges have to weigh activism against caution, and to do so in constantly changing circumstances.   ICJ Reports 1966, 39, §§ 64–65.  Among recent ‘doctrine’, see E Cannizaro and B Bonafé, ‘Fragmenting International Law through Compromissory Clauses? Some Remarks on the Decision of the ICJ in the Oil Petroleum Platforms Case’ (2005) 16 EJIL, 481 et seq., placing remarkable emphasis on this problem. See also Sohn, above n 923, 248. 1044   See the Dissenting Opinion of Judge Schwebel in the Petroleum platforms case (Preliminary Objections), ICJ Reports 1996-II, 882; and the Dissenting Opinion of Judge Oda, ibid, 899–900. See also M Reisman, ‘The Other Shoe Falls: The Future of Article 36(1) Jurisdiction in the Light of Nicaragua’ (1987) 81 AJIL 169–70, 172. 1042 1043

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In any event, it is necessary to bear in mind that jurisdiction based on a compromissory clause is by its nature limited and narrow, and that its only object can be the interpretation or application of the treaty of which the clause is part. In this context, it is of paramount importance for all the parties to the dispute to be sufficiently aware of, and attentive to, this fact. They ought not to hesitate to broaden the scope of the Court’s jurisdiction, either by explicit agreement or by way of forum prorogatum, where this is necessary in order to enable the Court to take cognisance of the dispute in the most appropriate manner and context. The primary responsibility for giving the Court adequate jurisdiction must, and does, rest with the parties, since the Court’s jurisdiction is essentially a consensual one. The Court itself has only very limited room for manoeuvre, which, however, it does not hesitate to exploit where appropriate (see below). Generally speaking, applicants’ natural tendency is to give the Court as wide a jurisdiction as possible, and of respondents to do the opposite. So, when it comes to compromissory clauses, applicants will often try to enlarge their scope to cover general international law and other treaties in pari materia, while respondents will be looking for a much more restrictive exercise of jurisdiction. In such cases, if the Court takes too robust a line, it will go beyond the strict limits of the treaty ‘to an excessive degree’. The opposition between parties’ wishes on the one hand, and the Court’s cautious attitude on the other, is well illustrated by the case of the Pulp mills on the Uruguay River (2010).1045 To the extent that a more comprehensive jurisdiction is seen as desirable, parties need to act in concert to give the Court the necessary freedom of action. One can see that both the PCIJ and the ICJ, no doubt in consequence of their respective institutional ties to the League and the UN, and of the role given to them in the key issue, for the maintenance of peace, represented by the settlement of international disputes, have always to some degree tended to extend their jurisdiction under compromissory clauses. Thus, the Court has treated its jurisdiction as extending to other agreements connected to the one actually containing the clause, even when the other agreement is not a protocol to the clause-bearing treaty,1046 and as extending to norms of international law on the subject at issue, for example, of the use of force, in the context of a treaty of friendship, trade and navigation.1047 In addition, the Court’s interpretation of such clauses has often been a highly meticulous one, as to which there is a strong body of jurisprudence that is very rewarding to study. As a result, we can distinguish between various categories of question that are covered by compromissory clauses, according to the interpretation put upon the matter by the Court’s jurisprudence. 1) Abstract or declaratory interpretation of a treaty provision. If the question concerns the interpretation of a treaty provision, it is obviously covered by a compromissory clause. The interpretation need not necessary bear directly on the actual application of the text. As the Court put it in the case on Certain German interests in Polish Upper Silesia (mer1045   See §§ 53 et seq. Argentina, the applicant, had pleaded that Arts 1 and 41 of the 1975 Treaty on the Status of the Uruguay River worked by way of renvoi, incorporating into the treaty a whole series of international agreements on the protection of the environment, together with the related general international law. The Court rejected this interpretation of the provisions, taking the view that the words upon which Argentina relied were more properly interpreted as a safeguard, a clause designed to emphasise that the Treaty itself had been adopted in conformity with these other texts of international law. 1046   Ambatielos case (Preliminary Objections), ICJ Reports 1952, 39. See Fitzmaurice, above n 790, 73–74; Charney, above n 923, 873–76. 1047   Case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility), ICJ Reports 1984, 426; idem, merits, ICJ Reports 1986, 115–17, 135 et seq.; see also Petroleum platforms case (Preliminary Objections), ICJ Reports 1996-II, 810. As to the latter case, cf Cannizzaro and Bonafé, above n 923, 482–84.



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its, 1926): ‘[Compromissory clauses] appear also to cover interpretations unconnected with concrete cases of application . . . There seems to be no reason why States should not be able to ask the Court to give an abstract interpretation of a treaty.’1048 Although the applicant must have a practical and current reason for seeking the Court’s interpretation, the Court will not be excessively strict about this requirement. 2) Determining the scope of the field within which a particular provision applies. This is, even more truly, a classic question of interpretation. The applicability of a norm is here to be distinguished from its concrete application, the former being logically prior to the latter and being an element of interpretation rather than application. The Court showed itself well aware of this in the case on Certain German interests in Polish Upper Silesia (1925), in which it stated that the dispute can extend also to ‘the extent of the sphere of application of those articles’.1049 3) International responsibility for the violation of a treaty clause. A compromissory clause will cover the question whether a treaty provision has been breached and of the consequences that result under the law of international responsibility: the Court said so in the cases on the Factory at Chorzów (1927),1050 Military and paramilitary activities in and against Nicaragua (merits, 1986).1051 Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Yugoslavia, Preliminary Objections, 1996)1052 and LaGrand (2001).1053 Some compromissory clauses say so in express terms, for example, Article IX of the Genocide Convention, ‘including those relating to the responsibility of a State for genocide’. Strictly speaking, the breach of the treaty, and in particular, the consequences of such a breach, are not elements of the treaty itself; rather they are aspects of the general international law of international responsibility. Nevertheless, these questions are, of course, closely connected to the treaty, so to speak engrafted upon it. They relate to the treaty’s application, or misapplication, and are thus covered by the compromissory clause. On a strict reading, it is   PCIJ, Series A, no 7, 18.   PCIJ, Series A, no 6, 16. 1050   PCIJ, Series A, no 9, 25: ‘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.’ 1051   ICJ Reports 1986, 142, § 283: ‘Under the 1956 FCN Treaty, the Court has jurisdiction to determine “any dispute between the Parties as to the interpretation or application of the present Treaty”’ (Art XXIV, para 2) and, as the Permanent Court of International Justice stated in the case concerning the Factory at Chorzów : ‘Differences relating to reparations, which may be due by reason of failure to apply a convention, are consequently differences relating to its application’ (Jurisdiction, Judgment no 8, 1927, CPJI Series A, No 9, p 21).’ 1052   ICJ Reports 1996-II, 616, § 32: ‘The Court now comes to the second proposition advanced by Yugoslavia, regarding the type of State responsibility envisaged in Article IX of the Convention. According to Yugoslavia, that article would only cover the responsibility flowing from the failure of a State to fulfil its obligations of prevention and punishment as contemplated by Articles V, VI and VII; on the other hand, the responsibility of a State for an act of genocide perpetrated by the State itself would be excluded from the scope of the Convention. The Court would observe that the reference in Article IX to “the responsibility of a State for genocide or for any of the other acts enumerated in Article III”, does not exclude any form of State responsibility.’ 1053   ICJ Reports 2001, 485, § 48: ‘The Court considers that a dispute regarding the appropriate remedies for the violation of the Convention alleged by Germany is a dispute that arises out of the interpretation or application of the Convention and thus is within the Court’s jurisdiction. Where jurisdiction exists over a dispute on a particular matter, no separate basis for jurisdiction is required for the Court to consider the remedies a party has requested for the breach of the obligation (Factory at Chorzów, PCIJ Series A No 9, p 22).’ See also the separate Opinion of Judge Jiménez de Aréchaga, in the case on the Jurisdiction of the ICAO Council, ICJ Reports 1972, 147. 1048 1049

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possible to argue that it is only the recognition that the treaty has not been correctly applied which truly ‘belongs’ to the treaty, and in that sense to its ‘application’. But if that were really the correct reading, the Court would have to confine itself to recognising the fact of breach, without entering into the consequences of the misapplication (or breach) of the treaty, since the consequences are questions of international responsibility rather than about the treaty itself. However, the Court rejected this view, and rightly so, in the case (cited above) on the Factory at Chorzów. The broader interpretation obviously makes more sense, because the consequences of the unlawful acts remain engrafted onto the treaty: to borrow a metaphor from another field, they are its ‘natural prolongation’. Any other solution would prevent the Court’s giving meaningful treatment to the dispute. In fact, a crucial element of the dispute would remain unresolved. There is no reason to prefer so blinkered an outcome, since the word ‘application’ is sufficiently flexible to cover all the consequences flowing from a breach of the treaty. As shown by the Genocide case (cited above), unless there is an express indication to the contrary, all forms of international responsibility, that is, all the consequences of the unlawful act, are covered by such clauses, probably including the counter-measures, if any, which may ensue. 4) Questions relating to the termination or suspension of the treaty. These questions too are connected with the ‘application’ of the treaty, in a sense negatively, since they terminate its application. The Court decided in this sense in the case on the Jurisdiction of the ICAO Council (1972).1054 5) Questions connected with one or more provisions of the treaty. If a particular or general question of international law is connected to a provision of the treaty and serves to give it a legally correct application, the Court has held that the rule of general or particular international law governing this question is covered by the compromissory clause. A fairly liberal view has been taken of the degree of connection required. Within the limits of the possible, the Court has thus been able to reach decisions that reinforce the unity of the international legal order, the integrity of Article 38, paragraph 1 of the Statute, and the possibilities for finding legally sensible solutions to disputes. For example, the Court decided that if the applicable convention gave jurisdiction or competence to a third organ in respect of certain disputes, the Court itself could nevertheless decide not only a preliminary point as to whether that third organ had jurisdiction, but also, in an appropriate case, whether that organ had correctly exercised its competence or jurisdiction or had in fact committed procedural irregularities.1055 Similarly, the Court has taken the view that it can decide a dispute with regard to the extent of respective fisher1054   ICJ Reports 1972, 64–65, § 32: ‘This contention [that the compromissory clause is not applicable to the claim to terminate or suspend the treaty] would be equivalent to saying that questions that prima facie may involve a given treaty, and if so would be within the scope of its jurisdictional clause, could be removed therefrom at a stroke by a unilateral declaration that the treaty was no longer operative. The acceptance of such a proposition would be tantamount to opening the way to a wholesale nullification of the practical value of jurisdictional clauses by allowing a party first to purport to terminate, or suspend the operation of a treaty, and then to declare that the treaty being now terminated or suspended, its jurisdictional clauses were in consequence void, and could not be invoked for the purpose of contesting the validity of the termination or suspension – whereas of course it may be precisely one of the objects of such a clause to enable that matter to be adjudicated upon. Such a result, destructive of the whole object of adjudicability, would be unacceptable.’ 1055   The Court nevertheless exercises a certain degree of restraint, so as not to dwindle into an appeal tribunal: see the case on the Jurisdiction of the ICAO Council, ICJ Reports 1972, 69–70. Certain judges have criticised this restraint – see the Separate Opinion of Judge Jiménez de Aréchaga, ibid, 153–54; the Dissenting Opinion of Judge Morozov, ibid, 157–59; and the Dissenting Opinion of Judge Nagendra Singh, ibid, 166. See also the case on the Interpretation of the Statute of the Memel territory (1932), PCIJ, Series A/B, no 47, 248.



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ies rights and the adequacy of measures taken for the protection of resources, on the basis of a compromissory clause in a treaty exclusively concerned with settling the modalities for a possible extension of Iceland’s exclusive fisheries zones.1056 And, still in the same vein, the Court has accepted that treaties of friendship, trade and navigation can give rise to questions as to the use of force and the related issues of general international law, violent measures being the exact opposite of the peace and friendship promised in the treaty. Such a use of force could thus constitute a violation of the treaty, by, for example, being contrary to particular provisions in the treaty that are directed towards measures for the maintenance and re-establishment of the peace, as also to those on the subject of the protection of the parties’ vital interests.1057 One could also mention the fact that the Court can take cognisance of the conformity to a treaty of steps taken on the basis of Security Council resolutions. Its jurisdiction probably also includes the incidental power to review the validity of such resolutions in order to decide whether one or more parties is entitled not to apply a convention – containing a compromissory clause – because of the binding and prior authority of UN measures under Articles 25 and 103 of the UN Charter.1058 In every case the decisive criterion seems to be functional necessity: if the Court takes the view that a body of rules, in themselves outside the treaty itself, needs to be invoked in order to produce a legally correct solution to a dispute whose foundation is rooted in the treaty containing the compromissory clause, the indispensible rules of law are imported into the treaty on the basis that they are tied up with its ‘application’. It is indeed the word ‘application’ which makes possible a considerable extension of the applicable law covered by the compromissory clause. 6) Questions arising under other connected treaties. Compromissory clauses in treaties have sometimes been interpreted as also covering the provisions of other treaties which, in 1056   Case on Fisheries Jurisdiction (merits), ICJ Reports 1974, 21, § 47. The compromissory clause stipulated that the Court would have jurisdiction over disputes relating to ‘the extension of fisheries jurisdiction around Iceland’. The Court took the view that ‘ it would be too narrow an interpretation of the compromissory clause to conclude that the Court’s jurisdiction is limited to giving an affirmative or negative answer to the question of whether the extension of fisheries jurisdiction, as enacted . . . is in conformity with international law . . . the dispute between the Parties includes disagreements as to the extent and scope of their respective rights in the fishery resources and the adequacy of measures to conserve them. It must therefore be concluded that those disagreements are an element of the “dispute in relation to the extension of fisheries jurisdiction around Iceland”.’ Obviously this interpretation goes beyond the clear and natural meaning of the terms of the compromis. It rests on a teleological interpretation, which comes into play by virtue of the guiding maxim ‘resolve the dispute’. It must however be noted that, in this case, the disputes covered by the text of the clause were not literally those bearing directly on the extension or enlargement, but were ‘in relation to’ it. Of course one can, if one wishes, indulge in this kind of wordplay, but the line to be drawn is a fine one. Some of the individual judges were in full agreement with the reasoning of the majority – see the Separate Opinions of Judges De Castro, ibid, 102 and Waldock, ibid, 122–23. Others, however, took the view that a restrictive interpretation, respectful of the parties’ sovereignty and of the text as finally formulated in negotiation between them, ought to have prevailed – see the Separate Opinion of Judge Dillard, ibid, 63; and the Dissenting Opinions of Judges Gros, ibid, 127–28; Pétren, ibid, 152; and Onyeama, ibid, 173. 1057   Case concerning Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility, ICJ Reports 1984, 426 and merits, ICJ Reports 1986, 115–16, 135; the Petroleum platforms case (Preliminary Objections), ICJ, Reports, 1996-II, 810–12 and merits, ICJ Reports 2003, 178 et seq., §§ 31 et seq. 1058   Lockerbie (Preliminary Objections), ICJ Reports 1998, 18, § 25. In the opposing sense, see the Dissenting Opinion of Judge Schwebel, ibid, 65–66: ‘Libya’s complaint that the Security Council has acted unlawfully can hardly be a claim under the Montreal Convention falling within the jurisdiction of the Court pursuant to that Convention’. See also the Dissenting Opinions of Judges Oda, ibid, 89–90 and Jennings ibid, 100: the validity of Security Council measures was ‘not a matter arising under the provisions of the Convention, but one concerning the interpretation or application of the UN Charter: and to pretend that it is one that comes within Article 14, paragraph 1, of the Convention [the compromissory clause] is not free from absurdity’.

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one way or another, are bound up with the text containing the clause itself. Thus, for example, the compromissory clause in a Mandate Agreement was also considered to cover Protocol XII to the Lausanne Peace Treaty of 1923, on the basis that Article 11 of the Mandate Agreement explicitly referred to the other ‘international obligations accepted by the Mandatory Power’.1059 Similarly, a compromissory clause in a treaty of 1926, a treaty which referred back to an older treaty on the same subject and between the same parties, was interpreted as covering the provisions of the old agreement referred to in the new one.1060 In the context of the important Article IX of the Genocide Convention, a question might arise as to the relationship between the Convention itself and the Statute of the International Criminal Court, which was adopted at Rome in 1998. Article VI of the 1948 Convention provided for the creation of an international criminal court with jurisdiction in genocide cases. The International Criminal Court can thus be perceived as resulting from the application of Article VI of the Convention.1061 In this way it is legally possible to establish a kind of transmission belt connecting the ICJ’s jurisdiction to the Rome Statute subject, of course, to the case being one of genocide. The Court could, for example, examine the validity of a Security Council Resolution by virtue of Article 16 of the Rome Statute. The result would be a partially concurrent jurisdiction between the ICJ and the ICC, as to questions the latter might be called upon to decide on an incidental basis, for example, precisely the question of the validity of a Security Council Resolution seising the ICC. It is possible to envisage a division of labour whereby the ICJ might evolve, at least partially, into the body which decides such ‘prejudicial’ questions, exercising an oversight into the proper functioning of the ICC, whereas the latter might confine itself essentially to criminal process. It will also be noted that the definition of genocide in the Rome Statute is no different from the one to be found in the 1948 Convention. This kind of division of labour would at least eliminate the complications that might otherwise be caused by the divergent subject-matter jurisdictions of the two courts. In the opposite sense, however, in the case on the Pulp mills on the Uruguay River Uruguay (2010),1062 the Court refused to accept that certain provisions of a bilateral Treaty of 1975 operated so as to incorporate into the Treaty text (which also contained a compromissory clause) a whole series of treaties on environmental protection. The connection between the latter treaties, which contained concrete obligations in relation to the particular river in question, seemed to the Court too tenuous to enlarge its jurisdiction in such an extensive way. 7) Other questions of international law inextricably connected with the application of a treaty. Other legal questions frequently arise, external to a treaty, not formally referred to in it,   Mavrommatis case (Preliminary Objection, 1924), PCIJ, Series A, no 2, 26.   Ambatielos case (Preliminary Objections), ICJ Reports 1952, 46. 1061   cf Cannizzaro and Bonafé, above n 923, 485–86, fn 5: ‘[T]he Rome Statute can be considered as an implementation of the Genocide Convention providing under Art VI that “persons charged with genocide . . . shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction” . . . Thus, the principle according to which the jurisdiction of the Court should be strictly connected to the applicable law (the Genocide Convention) clashes with the principle of consent (the subsequent ratification of the Rome Statute) . . . Arguably, the Court should still apply the first agreement while taking into account later provisions which modify its obligations. Moreover, to rule out the possibility of the Court taking into account the subsequent treaty provisions would lead to the paradoxical result that the dispute would be settled according to a legal regime that applied only in part.’ 1062   See §§ 53 et seq. 1059 1060



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but nevertheless needing to be taken into account as if they had in fact been formally referred to. Unlike the situations considered above, in which the application of one or more of the treaty norms makes it necessary to take account of other sources of international law, and also unlike the cases in which the treaty specifically refers to other texts and rules, what we are considering here is a situation in which the treaty, in its overall context, cannot be divorced from certain elements of international law that are necessary to its proper functioning. One can think of this as if there were an implicit renvoi in the treaty. But here the basis on which one reads the renvoi into the treaty is a much wider one. It no longer depends on particular provisions in the treaty, but on the treaty in its overall totality. The rules of international law on the interpretation of treaties are thus necessary for the ‘interpretation’ of the particular treaty. Similarly, the fate of the treaty in a case of State succession is an element of the treaty’s ‘application’ and presupposes that this must be referred to the general rules of international law on State succession. The same goes for the effect on a treaty of war or armed conflict. 8) Exception: the protection of the object and purpose of the treaty. There is one particular consideration in consequence of which the Court has broken with its general jurisprudence and interpreted the question in a restrictive spirit, creating a kind of aberrant element in the jurisprudence on the scope of compromissory clauses. In the case on Military and paramilitary activities in and against Nicaragua (merits, 1986), the Court held that there was a rule of customary international law according to which the parties to a treaty must abstain from depriving the treaty of its effects by conduct deliberately aimed against its object and purpose, in so far as the latter can be distinguished from the obligations specifically undertaken in the treaty. The spirit of a treaty is thus prayed in aid to complete the letter. During the period between the signature of a treaty and its entry into force, the obligation arises under Article 18 of the Vienna Convention on the Law of Treaties. According to the Court, it continues thereafter, alongside the principle pacta sunt servanda. If you accept that such an obligation exists in customary international law,1063 then obviously it is directly connected to the treaty. If one follows the logic and argument to be found in the Court’s jurisprudence, it should therefore be covered by the compromissory clause. But that was not the Court’s conclusion: ‘It should however be emphasized that the Court does not consider that a compromissory clause of the kind included in Article XXIV, paragraph 2 of the 1956 Treaty on Friendship, Commerce and Navigation (FCN), providing for jurisdiction over disputes as to its interpretation or application, would enable1064 the Court to entertain a claim alleging conduct depriving the treaty of its object and purpose.’1065 There is no doubt that the conservation of the treaty’s purpose can, in an appropriate case, considerably enlarge the scope of the treaty and thus the scope of the jurisdiction clause,1066 even though the Court, and 1063   cf R Kolb, La bonne foi en droit international public (Paris, 2000) 283 et seq., with the numerous references there provided. Contra, H Thirlway, ‘The Law and Procedure of the International Court of Justice: Points of Substantive Law (Sovereignty/Territory, State Responsibility)’ in BYIL, vol 63 (1992) 48 et seq. 1064   The French text says ‘interdise’ but this is clearly an error. The English is clear: ‘It does not consider that the clause would ‘enable’ the Court to . . .’. 1065   ICJ Reports 1986, 136, § 271. The Court declared itself competent as regards this aspect by virtue of an optional declaration under Art 36, § 2 of the Statute. This view was approved in the Dissenting Opinion of Judge Jennings, ibid, 539; and later in the Dissenting Opinion of Judge Oda in the Platforms case, ICJ Reports 1996-II, 897. 1066   According to Judge Jennings, above n 1065, ‘Suppose hostilities, or even war, should arise between the parties to an FCN-Treaty, then the Court under a jurisdiction clause surely does not have jurisdiction to pass judgment upon the general question of the lawfulness or otherwise of the outbreak of hostilities or of war, on the ground that this defeated the object and purpose of the treaty . . . If it were otherwise, there would be no apparent

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leading commentators, endeavour to apply the principle in a reasonably restrictive way. The fact remains that, from the point of view of the scope of the compromissory clause – which is all that concerns us here – the Court’s reasoning does seem faulty. The obligation in question is rooted in the treaty: the customary norm for the conservation of the object and purpose of the treaty is engrafted upon it, referring the obligation to the treaty and incorporating it into the treaty. Indeed, it is precisely by virtue of the treaty that the parties incur the obligation; non-parties do not do so. It follows that if a dispute arises in this regard, it will manifestly concern the ‘application’ of the treaty, exactly as if there had been a violation of the treaty and international responsibility had in consequence arisen. The argument from the object and purpose of the treaty will, moreover, often be formulated as a claim resulting from a breach of the treaty. In such a case of international responsibility, the Court has indeed accepted that compromissory clauses do cover the situation. On this point, then, there is a manifest internal contradiction in the Court’s jurisprudence. The contradiction can doubtless be explained as a result of an argument relating to judicial policy, which one may reasonably consider to be dubious: having already accepted a wide jurisdiction under the compromissory clause in Article XXI of the Treaty in the face of opposition from the USA, the Court had little taste for going even further in apparent opposition to the wishes of that great and powerful State.1067 It would be wrong to suppose that, independently of this particular case concerning the object and purpose of a treaty, the Court feels unrestricted in its attitude and untroubled by scruples: quite the reverse is the case. Whenever sources are invoked which are manifestly external to, and not helpful in, the application of a norm provided for in the treaty containing the compromissory clause, the Court refuses to take cognisance of it. If necessary, it examines the question most meticulously, and does not flinch from reducing the dimensions of the dispute before it. The case on the Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Serbia and Montenegro, merits, 2007) bears eloquent testimony to this attitude.1068 In that case, the Court insisted on the difference between the limited jurisdiction conferred on it by a compromissory clause and the general jurisdiction arising under other jurisdictional clauses. In passing, it restated the point that it had no jurisdiction, under a clause in the Genocide Convention, to deal with claims under human rights law, or international humanitarian law, unless they were connected with the application of a provision of the 1948 Convention, limit to the kinds of dispute which might in certain circumstances be claimed to come under such jurisdiction clauses. The conferment of such a potentially roving jurisdiction could not have been within the intention of the parties when they agreed the jurisdiction clause.’ Contrary to the claims advanced by this eminent English international jurist, the prohibition against depriving a treaty of its subject and purpose does not extend to all acts which have an effect, whether it be a close effect or a relatively distant one, on the treaty, and, in particular, not to the exercise of a competence recognised in international law. Analysis of Art 18 of the Vienna Convention on the Law of Treaties (and by extension of the legal doctrine set out by the Court) shows that it was, above all, a matter of combatting acts, contrary to good faith, that were manifestly directed against the spirit of the treaty, sterilising its effects, and often done deliberately, but without attacking a black letter provision in the treaty text itself. The Court is aware of this restriction, since it states that the inimical acts in question cannot be precisely categorised as acts contrary to the object and purpose of a treaty of friendship: ICJ Reports 1986, 136–37. 1067   What is in issue here, is the coherent application of the law within reasonable limits (ie without any fiat justitia, pereat mundus; in the original sense, by the way, that maxim was designed to ensure equality between parties). A State which is a party to the dispute in question will always have a better understanding of a ruling issued under such conditions than any judicial manipulations to fit political purposes, and will have greater respect for sound decisions, even if it disagrees with them. 1068   Decision of 27 February 2007, § 147.



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and that this was so even if the norms in question had the character of jus cogens or applied erga omnes. This limitation to genocide obliged the applicant to formulate its claims in a way that was in many respects artificial. Indeed, Bosnia-Herzegovina, as applicant, was forced into a problematical legal strategy. It had to try to claim that the crimes committed by the Bosnian Serbs during the period of armed conflict constituted genocide, and that individual acts were only illustrations of a wider genocidal design. And, for the same reason, the Court’s decision on the substantive law involved it in something of a contortion, given the narrowness of the aperture through which the Court had jurisdiction.1069 The Court’s jurisdiction under a compromissory clause is thus limited to the treaty containing the clause, in an appropriate case to other instruments embodying agreements to which the treaty makes reference, and to certain norms of general law connected to the treaty. That does not mean, however, that in a given case the Court will never have its jurisdiction enlarged beyond the scope of the treaty. Its jurisdiction can be enlarged via the forum prorogatum mechanism.1070 That mechanism seems particularly relevant in connection with compromissory clauses which, in themselves, grant the Court only a limited competence. The mechanism can be used to enlarge and so-to-speak ventilate a limited jurisdiction which may otherwise be excessively turned in upon itself. Respondents can informally accept that the Court should have a wider jurisdiction, in particular by not objecting to applications (or parts of applications) going beyond the relevant treaty and thus exceeding the scope of its compromissory clause. From the temporal point of view, compromissory clauses work as a kind of ‘mobile renvoi’. They renvoi to the interpretation or application of the treaty at the moment the Court decides the case, and not at the time the treaty was adopted or at any other time prior to the Court’s decision. If the treaty is formally amended and the clause is included in the new text, this temporal mobility is more striking a feature than it might otherwise be. The rule is the same if the treaty is modified through the subsequent conduct of the parties. Even where the modification is not governed by the Vienna Convention on the Law of Treaties (for example, because it concerns the extra-conventional modification of the text by a kind of custom followed by the parties), the jurisprudence shows it to be nevertheless a possibility.1071 All such informal modifications that are accepted by the parties determine the 1069   Under the 1948 Convention the Court could take cognisance only of genocide. It was only under that Convention that the court had jurisdiction to adjudicate upon international crimes. There is no equivalent convention covering crimes against humanity. The conventions on humanitarian law do not give jurisdiction to the Court. So the Court had to take cognisance exclusively of a crime which was very narrowly defined in international law. From the outset this made a heavy impression on the case. The crimes committed in Bosnia were difficult to fit into the definition of genocide. They fell quite naturally into the category of crimes against humanity and war crimes. It is likely that under those headings convictions could have been achieved. The limitations of the Court’s jurisdiction pushed Bosnia-Herzegovina into a problematical line of attack, artificially forcing it to focus the half-light of genocide alone on all the relevant acts committed in its territory. The Court itself was ill at ease with this. It seems to have analysed the evidence before it point by point, without ever being able to put its finger on a decisive item that would have enabled it to conclude that there had been genocide. The whole case was somehow a fleeting and fugitive affair, like a scene projected from an unfocused projector. Many leading commentators have drawn attention to these difficulties: cf M Milanovic, ‘State Responsibility for Genocide: A Follow-Up’ (2007) 18 EJIL 671 et seq. 1070   On this idea, see below. 1071   For more detail, cf Kolb, Interprétation et création du droit international, above n 1034, 479 et seq., and Kolb, La bonne foi en droit international public, above n 1063, 297 et seq., as well as the literature there mentioned. See also R Kolb, ‘La modification d’un traité par la pratique subséquente des parties – Note sur l’affaire relative au régime fiscal des pensions versées aux fonctionnaires retraités de l’UNESCO résidant en France; sentence du 14 janvier 2003’ (2004) 14 RSDIE 9 et seq. Such informal modifications are particularly frequent as regards the great instruments constituting international organisations, such as the Pact of the League of Nations and the Charter of the United Nations: cf R Kolb, An Introduction to the Law of the United Nations (Oxford, 2010) 170–71.

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concrete contents of the treaty, and it is the contents that the compromissory clause covers and refers to. It can happen that a dispute about the material scope of a compromissory clause is not an exclusively preliminary question and has to be deferred until the merits stage. Such disputes cannot in themselves affect the Court’s jurisdiction: they are defences on the merits.1072 Thus, in the case on Military and paramilitary activities in and against Nicaragua (merits, 1986), the USA had argued that certain measures adopted by it in relation to security issues were ostensibly covered by the safeguard clause in Article XXI(d) of the 1956 Treaty of Friendship, Commerce and Navigation, and so fell outside the scope of application of that treaty, with the consequence that the compromissory clause could not, in this respect, confer jurisdiction on the Court. The Court refused to accept this argument. It said that its jurisdiction was established once a measure fell within the field of application of one of the treaty norms. The question whether the safeguard clause applied to such measures was perceived as going to the merits, presupposing a substantive interpretation of the treaty. The Court explained its attitude in the following terms: This Article [Article XXI] cannot be interpreted as removing the present dispute as to the scope of the Treaty from the Court’s jurisdiction. Being itself an article of the Treaty, it is covered by the provision in Article XXIV that any dispute about the ‘interpretation or application’ of the Treaty lies within the Court’s jurisdiction.1073

In other words, since the safeguard clause required interpretation, the dispute was about a question concerning the ‘interpretation or application’ of the Treaty, within the meaning of the compromissory clause. Whether any particular interpretation (including the USA’s) was more or less convincing was not an issue of jurisdiction, but a question of the merits. That would not prevent the Court retaining or rejecting any particular interpretation that was put forward at the jurisdiction stage, if the argument were manifestly either justified or ill-conceived. But the Court would do this only in exceptional circumstances, since it rightly took the view that the substantive interpretation of treaty clauses was, in a ‘natural’ sense, an issue going to the merits. This liberal interpretation, favourable to the Court’s jurisdiction, was confirmed in the Oil platforms case (Preliminary Objections, 1996): The Court sees no reason to vary the conclusions it arrived at in 1986. It accordingly takes the view that Article XX, paragraph 1 (d), does not restrict its jurisdiction in the present case, but is confined to affording the Parties a possible defence on the merits to be used should the occasion arise.1074

In this way the Court’s jurisdiction is extended; the Preliminary Objection, having emigrated to the merits phase, can always come into play at that stage. What, then, can be said of this jurisprudence? On the one hand, it has to be applauded. The Court is attempting to establish a clear division of labour between the preliminary and merits stages. It seeks to dissuade States from using the preliminary stage to put forward a   On these concepts, see above, section 4.   ICJ Reports 1986, 116, § 222. Contra, the Dissenting Opinions of Judges Oda, ibid, 246; Schwebel, ibid, 306; Jennings, ibid, 538. In the same critical sense, WM Reisman, ‘Has the International Court Exceeded its Jurisdiction?’ (1986) 80 AJIL 128; WM Reisman, ‘The Other Shoe Falls: The Future of Article 36(1) Jurisdiction in the Light of Nicaragua’ (1987) 81 AJIL 166; Charney, above n 923, 881–83. It has to be admitted that the Court’s reasoning is a little brief. But that is all. 1074   ICJ Reports 1996-II, 811, § 20. Contra, the Dissenting Opinions of Judges Schwebel, ibid, 875–76, 882, and Oda, ibid, 899–900. 1072 1073



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mass of arguments connected with the substantive interpretation of the treaty, with a view to persuading the Court to refuse jurisdiction. The Court takes the view, and not without reason, that the most appropriate moment to undertake an analysis of these arguments is at the merits phase, by which time it is in possession of all the necessary information and other elements, and is then concerned with the substantive meaning of the applicable norms. On the other hand, the postponement to the merits phase, as we have seen, always carries with it the danger of the Court’s wrongly claiming jurisdiction, and thereby significantly lengthening the duration of the case, wasting time, money and other resources in the process. It does, therefore, seem that the Court’s ‘separatist’ jurisprudence deserves approval and support, but that, at the same time, the Court should be encouraged to decide relevant aspects of interpretation in limine litis, if it seems possible for the Court to do so effectively at that stage. Standard of proof. What is the degree of certainty or probability that must be in the judges’ minds, at the stage when they decide they have jurisdiction, so as to enable them to accept that certain claims fall within the field of application of this or that treaty norm, or are in some other way connected to the application of the treaty? Is it enough for the applicant to assert that its claim is one in respect of which this or that norm is to be applied (that is, a subjective system)? Or must the applicant make out a case which is free of absurdity or unreasonableness (one might call that a ‘modifiedly subjective’ system)? Is it for the Court to check that the applicant’s claims fall prima facie (in a reasonable way, with a preponderance of probability, with a higher degree of certainty, or beyond all reasonable doubt) within a provision of the treaty (let us call these systems ‘objective’ ones)? Obviously, at the stage where the Court affirms its jurisdiction, the standard of proof must not be too rigorous, since otherwise the effect would be to merge the preliminary and merits phases completely. Also, a great deal depends on the compromissory or jurisdiction clause in question. Thus, as we have seen, Article VI of the 1948 Pact of Bogotá excludes from the Court’s jurisdiction ‘matters already settled by arrangement between the parties . . . or which are governed by agreements or treaties in force’. This would usually imply that, from the preliminary stage, the Court should enter into a minute examination of the parties’ substantive obligations and, on that basis, prejudge some part of the merits.1075 Generally speaking, if the Court were to be too demanding at the preliminary stage, it would be presenting a significant obstacle to parties wishing to seise it of cases, and in that sense would be acting against the wishes of the treaty parties and against the objective of the UN Charter in facilitating the settlement of disputes. If, on the other hand, the Court were to be too relaxed about this question, it would be accepting jurisdiction when either it should not do so, or it is at least less obvious that it does have jurisdiction. It is also easy to see that the standard of proof will vary, depending on how advanced the proceedings are at the relevant time: the burden will be a low one in the opening preliminary stages (so that, for example, when it comes to provisional measures of protection, the Court generally contents itself with a conclusion that it has prima facie jurisdiction), and a little higher in the succeeding preliminary phases (Preliminary Objections, or even at the merits stage if some of the Preliminary Objections are deferred to that stage).

1075   The case of the Land and maritime dispute (Nicaragua v Colombia), ICJ Reports 2007, §§ 43 et seq., shows this very clearly.

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Overall, the Court’s jurisprudence exhibits various uncertainties and fluctuations as regards the standard of proof.1076 Its precursor, the PCIJ, had normally been fairly strict in applying an objective standard, on the basis that it needed to be convinced that the dispute truly fell within the scope of the treaty provisions.1077 This reflected the way in which the PCIJ was still obliged to show its deference to States’ sovereignty and their sovereign wills. For the international society, this was the ‘Lotus’ period, centring on sovereign States. The ICJ has usually asked for evidence ‘of a sufficiently plausible character’ or of an ‘arguable construction of the treaty’,1078 that is, of a reasonable possibility. This is a less elevated standard of proof. It is evidence of a certain refinement of judicial procedure, now habituated to separating the preliminary phase from the merits stage, and also of a certain retreat from ‘sovereignism’ in the course of the second half of the twentieth century. With the passing of the years, the Court has from time to time shown itself to be less demanding, and more disposed thus to extend its jurisdictional limits. It has, for example, considered it sufficient to show a ‘reasonable connection between the Treaty and the claims submitted to the Court’,1079 and has even enquired, admittedly at the stage of provisional measures of protection, whether ‘the breaches alleged are capable of falling within the provisions of that instrument’.1080 At the same time, the Court has sometimes taken account of applicants’ allegations without specifically examining them (see the Nicaragua case),1081 no doubt because they seemed convincing; on other occasions, the Court has at least stated that it ought to examine the question more closely (see the Petroleum platforms case),1082 doubt1076   On the jurisprudence up to the 1980s, see Charney, above n 923, 860 et seq. On the more recent jurisprudence, see Tomuschat, ‘Article 36’, above n 482, 624–26. 1077   Mavrommatis case (Objection to jurisdiction, 1924), PCIJ, Series A, no 2, 16: ‘For this reason, the Court, bearing in mind 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, cannot content itself with the provisional conclusion that the dispute falls or not within the terms of the Mandate. For the Mandatory has only accepted the Court’s jurisdiction for such disputes.’ 1078   See the Ambatielos case (merits), ICJ Reports 1953, 18: ‘In order to decide, in these proceedings, that the Hellenic Government’s claim on behalf of M Ambatielos is “based on” the Treaty of 1886 within the meaning of the Declaration of 1926, it is not necessary for the Court to find – and indeed the Court is without jurisdiction to do so – that the Hellenic Government’s interpretation of the Treaty is the correct one. The Court must determine, however, whether the arguments advanced by the Hellenic Government in respect of the treaty provisions on which the Ambatielos claim is said to be based, are of a sufficiently plausible character to warrant a conclusion that the claim is based on the Treaty. It is not enough for the claimant Government to establish a remote connection between the facts of the claim and the Treaty of 1886. On the other hand, it is not necessary for that Government to show, for present purposes, that an alleged treaty violation has an unassailable legal basis. The validity of the arguments presented by the Hellenic Government, as well as the validity of those presented by the United Kingdom Government, would be determined by the Commission of Arbitration in passing upon the merits of the difference. If the interpretation given by the Hellenic Government to any of the provisions relied upon appears to be one of the possible interpretations that may be placed upon it, though not necessarily the correct one, then the Ambatielos claim must be considered, for the purposes of the present proceedings, to be a claim based on the Treaty of 1886. In other words, if it is made to appear that the Hellenic Government is relying upon an arguable construction of the Treaty, that is to say, a construction which can be defended, whether or not it ultimately prevails, then there are reasonable grounds for concluding that its claim is based on the Treaty.’ 1079   Case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility), ICJ Reports 1984, 427, § 81. 1080   Case on the Legality of the use of force (Order, Serbia and Montenegro v Belgium), ICJ Reports 1999-I, 137, § 38. 1081   ICJ Reports 1984, 428, § 83, the Court taking the view, as we have already seen, that there was no doubting the fact that the dispute related to the interpretation and application of the treaty, while the arguments of the USA in relation to the safeguard clause were deferred to the merits stage. 1082   ICJ Reports 1996-II, 810, § 16: ‘[T]he Court cannot limit itself to noting that one of the Parties maintains that such a dispute exists, and the other denies it. It must ascertain whether the violations of the Treaty of 1955 alleged by Iran do or do not fall within the provisions of the Treaty and whether, as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain, pursuant to Article XXI, paragraph 2.’



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less because the allegations seemed to require to be treated with greater caution. In some cases, the Court has been able to say explicitly that the treaty manifestly applies1083 or manifestly does not apply.1084 If a number of these findings are referable simply to the circumstances of the particular case, it remains fair to say that, overall, the standard of proof required could be developed and set out in the round, in a clearer and more detailed way. It sometimes looks as if the Court does not wish to be too specific about the standard, so as to maintain a certain flexibility in its approach and to keep its options open from case to case. That is a comprehensible and even laudable aim, but it should not be allowed to stand in the way of a clarification and firming-up exercise as regards this aspect of the Court’s procedural law. Conditions requiring prior negotiations. Some compromissory clauses provide for recourse to be had to other settlement procedures, particularly to direct negotiation, before a party is allowed to seise the Court. Thus Article 14, paragraph 1 of the 1971 Montreal Convention on the safety of civil aviation provides that: ‘Any dispute between two or more contracting States concerning the interpretation or application of this Convention which cannot be settled through negotiation, shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

The requirement for diplomatic contacts and an attempt at arbitration are interposed here between the moment the dispute emerges and the time the Court is seised of it. Such provisions can give rise to interpretation problems. The parties did not want the Court to concern itself with every and any dispute between them. They wanted to place the Court in a back-stop position. The Court has therefore to take a view as to what extent it should show deference to procedures to which the parties wished to give priority. The question arises in those frequent cases where the dispute leads to such a glacial relationship between the disputing States that such priority procedures, based (as they so often are) on the need for cooperation between the parties, turn out to be impracticable, or at any rate extremely difficult. If the dispute continues, it will have a tendency to become both more deep-seated and more bitter. The chances that procedures based on direct understanding between them will have any hope of success thus tend to decline progressively. Little by little, a peaceful settlement becomes harder and harder, as the disputing States dig themselves in. By avoiding delay in dealing with the dispute one increases the chances of a successful outcome, with fewer headaches and less expense. It is for that reason that the Court’s jurisprudence shows a certain degree of flexibility in dealing with such prior requirements to the seising of the Court. Such flexibility is in line with the jurisprudence on the need for prior negotiations under general international law, as discussed above. If it appears to the Court that attempts have been made to satisfy such prior requirements, but that they   Case of the United States diplomatic and consular staff at Tehran, ICJ Reports 1980, 25, § 46.   Case on the Legality of the use of force (Order, Serbia and Montenegro v United States of America), ICJ Reports 1999-II, 923–26, §§ 21 et seq. The Court took the view that the NATO attacks did not fall within the scope of the compromissory clause in the Genocide Convention, both because the US had made a reservation as to Art IX of the Convention and because there was no specific intention to destroy a protected group. At the stage of provisional measures of protection, the Court must, however, decide according to the standard of a prima facie jurisdiction. 1083 1084

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have not been crowned with success, it will not insist that they be pursued further, but will agree, as in fact is in line with the spirit of these compromissory clauses, to step in, hearing and deciding the case as a kind of Deus ex clausula. The Court is able to show flexibility even as regards the time limits provided for in such clauses, on the basis that it sometimes makes little sense to insist rigidly on the running of a particular fixed number of days.1085 In this field, the PCIJ paved the way in the Mavrommatis case of 1924.1086 There is no need to deal separately with the case here, since the terms of the judgment have been repeatedly and consistently cited with approval by the present Court (see below). In the South-West Africa case (Preliminary Objections, 1962), the compromissory clause was in Article 7 of the Mandate Agreement of 17 December 1929. It provided that disputes relating to the Mandate should be settled by the Court, if they were not susceptible of being resolved by negotiation. The Court saw no point in imposing heavy requirements for satisfying this condition. Given the overall situation, it would have made no sense. The Court’s general reasoning clearly shows that it did not intend to place the bar very high. The Court began by declaring that: The fact that a deadlock was reached in the collective negotiations in the past and the further fact that both the written pleadings and oral arguments of the Parties in the present proceedings have clearly confirmed the continuance of this deadlock, compel a conclusion that no reasonable probability exists that further negotiations would lead to a settlement;1087 ... Now, in the present cases, it is evident that a deadlock on the issues of the dispute was reached and has remained since, and that no modification of the respective contentions has taken place since the discussions and negotiations in the United Nations. It is equally evident that ‘there can be no doubt’, in the words of the Permanent Court, ‘that the dispute cannot be settled by diplomatic negotiation’, and that it would be ‘superfluous’ to undertake renewed discussions.1088

Thus far, the Court was addressing the circumstances of the particular case before it. It then followed up by setting out its general doctrine on the question. In repeating the 1085   The Court reached a conclusion in this sense, through the interpretation of the applicable texts, in the case of the United States diplomatic and consular staff at Tehran, ICJ Reports 1980, 25–26, § 48, under the pressure of the serious turn of events: ‘Articles II and III of the Protocols, it is true, provide that, within a period of two months after one party has notified its opinion to the other that a dispute exists, the parties may agree either: (a) “to resort not to the International Court of Justice but to an arbitral tribunal” or (b) “to adopt a conciliation procedure before resorting to the International Court of Justice”. The terms of Articles II and III, however, when read in conjunction with those of Article I and with the Preamble to the Protocols, make it crystal clear that they are not to be understood as laying down a precondition to the applicability of the precise and categorical provision contained in Article I establishing the compulsory jurisdiction of the Court in respect of disputes arising out of the interpretation or application of the Vienna Convention in question. Articles II and III provide only that, as a substitute for recourse to the Court, the parties may agree upon resort either to arbitration or to conciliation. It follows, first, that Articles II and III have no application unless recourse to arbitration or conciliation has been proposed by one of the parties to the dispute and the other has expressed its readiness to consider the proposal. Secondly, it follows that only then may the provisions in those articles regarding a two months’ period come into play, and function as a time-limit upon the conclusion of the agreement as to the organization of the alternative procedure.’ See also the very clear terms of the Dissenting Opinions in the Lockerbie case (Order), ICJ Reports 1992, by Judge Bedjaoui at 36–37, § 9; Judge Ajibola, ibid, 83–84; and Judge El-Kosheri, ibid, 108–109. Contra, the Declaration of Judge Ni, ibid, 23. 1086   PCIJ, Series A, no 2, 13. 1087   ICJ Reports 1962, 345. 1088   Ibid, 346.



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Mavrommatis formula of 1924, the Court made it known that it intended to keep the bar relatively low and that it wanted to preserve its ability to show a certain degree of flexibility from case to case: The true value of this objection [as to the non-exhaustion of diplomatic means] will readily be seen if it be remembered that the question of the importance and chances of success of diplomatic negotiations is essentially a relative one. Negotiations do not of necessity always presuppose a more or less lengthy series of notes and despatches; it may suffice that a discussion should have been commenced, and this discussion may have been very short; this will be the case if a deadlock is reached, or if finally a point is reached at which one of the Parties definitely declares himself unable, or refuses, to give way, and there can be therefore no doubt that the dispute cannot be settled by diplomatic negotiation. But it is equally true that if the diplomatic negotiations between the Governments commence at a point where the previous discussions left off, it may well happen that the nature of the latter was such as render superfluous renewed discussion of the opposing contentions in which the dispute originated. No general and absolute rule can be laid down in this respect. It is a matter for consideration in each case.1089

This Mavrommatis formula has underlain the Court’s reasoning in all the cases that, up to the present, amount to precedents in this field.1090 It all indicates a concern to limit the importance of such requirements of preliminary action prior to seising the Court. Each time, the objection is ‘reduced to its true value’: an assessment of the probability of success is ‘essentially relative’, to the point where the question is judged purely in relation to the circumstances of the particular case; a deadlock or breakdown in negotiations can be identified quite early on if they run into apparently immovable obstacles; fresh discussions may, in light of the prior ones, appear pointless; there can be no absolute rules on questions of this kind. To sum up, then, a simple attempt at negotiation, or to bring the case to arbitration or take some other course of concerted action, as contemplated in the clause, will be considered sufficient if it seems to have reached an impasse. Such a situation, one in which any significant negotiation seemed pointless, was considered in the case on the United States diplomatic and consular staff at Tehran (1980): [W]hen the United States filed its Application on 29 November 1979, its attempts to negotiate with Iran in regard to the overrunning of its Embassy and detention of its nationals as hostages had reached a deadlock, owing to the refusal of the Iranian Government to enter into any discussion of the matter. In consequence, there existed at that date not only a dispute but, beyond any doubt, a ‘dispute . . . not satisfactorily adjusted by diplomacy’ within the meaning of Article XXI, paragraph 2 of the 1955 Treaty; and this dispute comprised, inter alia, the matters that are the subject of the United States’ claims under that Treaty. The provision made in the 1955 Treaty for disputes as to its interpretation or application to be referred to the Court is similar to the system adopted in the Optional Protocols to the Vienna Conventions which the Court has already explained. Article XXI, paragraph 2 of the Treaty establishes the jurisdiction of the Court as compulsory for such disputes, unless the parties agree to settlement by some other means. In the present instance, as in the case of the Optional Protocols, the immediate and total refusal of the Iranian authorities to enter into any negotiations with the United States excluded in limine any question of an agreement to have recourse to ‘some other pacific means’ for the settlement of the dispute. Consequently, under the terms of Article XXI, paragraph 2, the United States was free on   Ibid, 345–46.   Sometimes the substance of this passage is invoked without citing its source, as happened in the Namibia case, ICJ Reports 1971, 44, § 85: ‘it may be sufficient to show that an early deadlock was reached and that one side adamantly refused compromise’. 1089 1090

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29 November 1979 to invoke its provisions for the purpose of referring its claims against Iran under the 1955 Treaty to the Court1091 (italics in the original).

In those proceedings, any other interpretation would have meant giving the law-breaker the power to use delaying tactics to effectively sterilise the effects of the compromissory clause, and ultimately would have prevented the Court’s being brought in as the instrument for resolving urgent and potentially very serious disputes. In a sense it would have meant that, the more superficial the dispute, the easier for the Court to have jurisdiction, whereas the graver and more urgent the dispute, the less the ability of the Court to take cognisance of it. A conception of that kind is difficult to reconcile with the parties’ original intentions at the time they sign up to a compromissory clause. In its advisory opinion on the Applicability of the obligation to go to arbitration under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (1988), the Court had to interpret a compromissory arbitration clause – Article 21(a) of the Headquarters Agreement. Under this clause, disputes as to the interpretation or application of the Agreement were to be sent to arbitration unless ‘settled by negotiation or other agreed mode of settlement’. The UN Secretary-General argued that, in order to oblige the USA to go to arbitration, the UN would have to establish that it had endeavoured, in good faith, to resolve the dispute by negotiations or some other means of settlement. The USA did not dispute this point. It claimed that it was continuing to look into the situation arising from US anti-terrorism legislation that was contrary to the Headquarters Agreement (contrary to the Federal Government’s desire), with a view to finding a suitable solution. There was a danger that the question would simply drag on indefinitely. The Court took the view that, given the situation facing him, the Secretary-General had exhausted the avenues of negotiation open to him. The Court cited the famous Mavrommatis formula, culminating in the famous words ‘non volumus vel non possumus’ (we either don’t want to or we can’t).1092 This precedent shows that even where one of the parties is seriously inclined to find a solution to the dispute because it shares the other side’s point of view, but is faced with obstacles which prevent it from doing justice to the claims made against it (in this case obstacles under internal law), the other party can seise the arbitrators or judges of the case in order to unblock the impasse. That is indeed an essential reason for including such settlement clauses in the first place. Contrariwise, if there is no attempt to enter into an exchange of views or negotiation on the subject-matter of the dispute submitted to the Court, the procedural condition for the latter’s jurisdiction will not be fulfilled.1093 To sum up, in respect of such compromissory clauses, where they are subject to requirements for prior action of some kind, the Court’s jurisprudence shows that it is indeed necessary to engage in a minimal level of diplomatic contact in order to test the chances of finding a solution. There is no such requirement in the context of declarations under the system of the optional clause, or in general international law. However, in the context we are concerned with, the Court is still placing emphasis on the word ‘minimal’. It is only a question of attempting to find a solution, and there are no formal requirements as to how such démarches should be carried out. It is enough, in order to allow the Court to exercise   ICJ Reports 1980, 27, §§ 51–52.   ICJ Reports 1988, 33–34, § 55. 1093   See the Application of the Convention against Racial Discrimination (Georgia v Russia) case, ICJ judgment of 1 April 2011, §§ 148 et seq. 1091 1092



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its residual competence over the matter, to show that, with whatever degree of flexibility, direct contacts have failed to deliver and have reached an impasse. The reasons for the deadlock are irrelevant. Even a demonstration of the opposing government’s goodwill is an insufficient reason to obstruct access to the Court if the negotiation is not going anywhere. Moreover, there is no time limit. The attempt to negotiate need not last long. In the ultimate analysis it is always possible that in the end, future negotiations could deliver a result. But this is a purely speculative question. The value of having compromissory clauses, even those requiring ‘prior negotiations’, is thus fully preserved and protected, and is not sacrificed to delaying tactics, whether skilful or otherwise. Here again, therefore, and in an entirely reasonable measure and degree, the Court is facilitating access to its services, under the guidance of the famous maxim so frequently cited above, boni judicis est ampliare jurisdictionem; at the very least, the Court is avoiding undue restrictions on access to its services.

g)  Third Head of Jurisdiction: The Optional Clause of Compulsory Jurisdiction1094 The optional clause of compulsory jurisdiction is an original head of jurisdiction, specifically invented for the PCIJ in 1920. It was, and still is, unknown to municipal tribunals and to arbitration tribunals alike. It has nevertheless been copied, since the days of the PCIJ, for the purposes of other international organs, notably the International Fact-Finding Commission1095 under Article 90 of Additional Protocol No I of 1977 to the four Geneva Conventions of 1949 on international humanitarian law. Unfortunately the Commission has yet to be called upon to exercise its functions. The sedes materiae of the optional clause is to be found in Article 36, paragraph 2 of the Statute: 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 . . .

Article 36 paragraph 3 adds that: ‘The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time’; and Article 36, paragraph 4 provides for the formalities: ‘Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.’ Here we are concerned with a mechanism of compulsory jurisdiction. Each State which is a party to the system of the optional clause can unilaterally seise the Court of legal disputes. The 1094   On this clause, see, among others: MO Hudson, The Permanent Court of International Justice, 1920–1924. A Treatise (New York, 1943) 449 et seq.; M Dubisson, La Cour internationale de Justice (Paris, 1964) 159 et seq.; S Rosenne, The Law and Practice of the International Court, 1920–2005, vol II, 3rd edn (Leiden, 1997), 727 et seq.; C Tomuschat, ‘Article 36’ in A Zimmermann, C Tomuschat and K Oellers-Frahm, (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 626 et seq.; JG Merrills, ‘The Optional Clause Today’ in BYIL, vol 50 (1979) 87 et seq.; idem,, ‘The Optional Clause Revisited’ in BYIL, vol 64 (1993) 197 et seq.; idem, ‘The Optional Clause at Eighty’ in Essays S Oda (The Hague/Boston/London, 2002) 435 et seq.; S Oda, ‘The Compulsory Jurisdiction of the International Court of Justice: A Myth?’ (2000) 49 ICLQ 251 et seq.; R Szafarz, The Compulsory Jurisdiction of the International Court of Justice (Dordrecht, 1993); CHM Waldock, ‘Decline of the Optional Clause’ in BYIL, vol 32 (1955/1956) 244 et seq. 1095   As to this Commission, see particularly, S Vité, Les procédures internationales d’établissement des faits dans la mise en œuvre du droit international humanitaire (Brussels, 1999).

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fundamental underlying idea is that every State is free to make (or withhold) a declaration by virtue of which it submits to the Court’s compulsory jurisdiction vis-à-vis every other State making the same type of declaration. This creates a network of compulsory jurisdiction applicable to the States which have made such declarations, so that any one of them can unilaterally bring suit against another of them. The main purpose of the system of the optional clause is to create a compulsory jurisdiction in the Court as regards all States that are willing to accept it. It is a form of voluntary or limited compulsory jurisdiction. This also explains what at first sight seems the rather strange terminology: ‘optional clause of compulsory jurisdiction’, a terminology sometimes mocked for its apparent selfcontradiction. The clause is optional, yet the jurisdiction based on it is compulsory. But if the declaration is optional, why then is this not also true of the jurisdiction? That question, however, by no means brings us to the root of the matter. In international law State sovereignty prevents the existence of any jurisdiction which is strictly-speaking ‘compulsory’, in the sense of being automatically compulsory. But there is nothing to stop States from accepting the compulsory jurisdiction of the Court on a ‘special’ basis, if they wish to do so. The PCIJ explained this very well in the 1923 Wimbledon case: the fact of entering into an agreement (or the making of an optional declaration) is an exercise of State sovereignty.1096 In this way, States can bind themselves to certain lines of conduct. They can, for example, accept the binding jurisdiction of an international tribunal. It follows that the international jurisdiction is not automatically compulsory; its compulsory character depends on the expression by the State, in its declaration, of its own free choice; and since it is a matter of free choice, the making of the declaration is necessarily an optional matter. Once the declaration is made and delivered, however, the Court’s jurisdiction becomes compulsory, meaning that it is no longer necessary for the State in question, as respondent, to give special consent to the Court’s exercising jurisdiction over a dispute to which the State is party. That consent has been given in advance by virtue of the declaration. The Court can thus be unilaterally seised by the applicant, and it will have jurisdiction if the conditions imposed by the clause as to the seising of the Court are satisfied. To sum up, then, the system of the optional clause represents the creation of a kind of special agreement for compulsory jurisdiction, constituted by a series of unilateral declarations. The declarations are optional, in the sense that no State is obliged to make one, but once a State has made and delivered its declaration, the jurisdiction becomes compulsory in the sense indicated above. Legislative history. The above analysis is confirmed by the legislative history of Article 36, paragraph 2 of the Statute.1097 The optional clause represents a compromise between two different and opposing tendencies. At the end of the Great War, in 1919, the dominant feeling was that that great cataclysm had overtaken the world because there was no mechanism enabling interested governments to consult together with a view to avoiding such devastating chain-reactions of events – in other words, because there was no binding mechanism for the settlement of disputes. It was for this reason that many of the smaller and medium-sized States were in favour of creating an international court of justice endowed with compulsory jurisdiction. Such a court would be able to deal definitively with disputes between States, and so to preserve the peace, good relations and cooperation. The small and medium-sized States felt they could only gain from such a development, since they were insufficiently powerful to use war as a means for imposing their will on others.   PCIJ, Series A, no 1, 25; See also PCIJ, Series B, no 10, 21.   In this respect see in particular, Hudson, above n 1092, 189 and the necessary references there provided.

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The greater Powers, on the other hand, were opposed to the idea, and expressed important doubts about it. They claimed that the prospective Court would only be able to apply law, and yet international law still contained numerous lacunae and uncertainties about a wide range of questions. Also, the Court would not be able to resolve ‘political disputes’, since disputes of that kind could not be reduced to legal terms. In the uncertain world of 1919, with the implosion of ancient empires, the creation of new international boundaries and the associated problems of irredentism, not to mention the economic and financial crises of the post-war period, the Bolshevik revolution, the emergence of non-European Powers, in view, in short, of the great instability in the world, it was in their view premature, to say the least, to hazard a great deal on a compulsory jurisdiction. Without doubt, it was the Great Powers that stood to gain the least from a compulsory jurisdiction. Judicial procedures are based on the strict equality of parties, placing giants on a footing of equality with dwarves. Standing before the Court, the Great Powers would lose the essential features of the advantages they normally enjoyed. When it is a matter of bilateral relationships, a Great Power can bring all its influence and preponderant power to bear; by contrast, when the parties are before the Court, a Great Power is just a party like any other.1098 Unsurprisingly, therefore, the Great Powers were unenthusiastic about accepting the PCIJ’s binding jurisdiction, particularly since, given their important roles and responsibilities in international affairs, they would probably be at greater risk than the smaller Powers of finding themselves in the position of respondents. Thus, at the time the PCIJ came into being, there was a division between on the one hand, the small and medium powers, particularly in Latin America, and on the other, the Great Powers. It was spoken of as ‘the greatest contest waged in the creation of the Court’.1099 In the Committee of Jurists charged with preparing the Statute of the new Court, the predominant view was that the PCIJ’s jurisdiction ought to be compulsory. This was the natural reflex of jurists accustomed to the workings of municipal law. Also, the Committee was, at least in terms of numbers, predominantly composed of jurists representing the lesser Powers. The idea of compulsory jurisdiction meant, in this context, that the Court would automatically have jurisdiction over any dispute against any of the States which had ratified or acceded to its Statute. Ratification or accession would have been sufficient to enable any State party to bring suit against another, and to give the Court jurisdiction. Consent to the compulsory jurisdiction would thus have been given, eo ipso, by ratification of, or accession to, the Statute. As against that, in order that the compulsory jurisdiction should not become excessive, the Committee thought it wise to confine it to disputes of a legal nature and to specify which disputes fell within that category – hence the list, analysed 1098   N Politis put it as follows, penetratingly, in commenting on the Mavrommatis case: ‘Seven years ago, I was pleading on my country’s behalf at the bar of the Court [the PCIJ] against a powerful Empire [the United Kingdom]. As I represented the Applicant, I spoke first. In the course of my address, I took from my file, in order to read it, an extract from a speech in the British Parliament. My opponent, opposite, who was none other than the most important Judge in the United Kingdom’s judicial hierarchy, interrupted me with the words: “I’m not allowing this to be read.”’ Astonished, I replied: “By what right?” His response was “That isn’t allowed in Great Britain.” I replied: “We’re not in Great Britain, nor indeed in Greece, but in international terrain, in which international law knows nothing of the rule you’re invoking.” He insisted, and asked to be allowed to explain his point of view. I replied to it. The members of the Court retired in order to decide the question. They came back a few minutes later, and the President read a laconic order to the effect that the document should be read. From that moment on, the eminent Head of the English judiciary unfailingly showed me his regard and sympathy. I had ceased, for him, to be the representative of a small country, and had become, at the Bar of the International Court, in every way his equal.’ (our translation, from ‘Les progrès de la justice internationale et la récente jurisprudence de la Cour permanente’, course delivered at the new Ecole de la Paix, roneo, Paris, 1931, 9). 1099   Hudson, above n 1092, 190.

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above,1100 in sub-paragraphs (a) to (d) of Article 36, paragraph 2. The Committee’s final draft therefore provided for a compulsory (albeit subsidiary) jurisdiction: the Court’s jurisdiction would be compulsory if the dispute had not been resolved by other means, in particular by diplomatic ones. In order to justify this preference, the Committee based itself above all on Article 13, paragraph 1 of the League of Nations Covenant.1101 However, when the question then came to be examined by the League’s political bodies – the Assembly and the Council – the wind changed, as a result of pressure from the Great Powers. In the Council, the Italian delegate argued that there was no precedent for giving States the right freely to bring suit against each other in an international court, and that such a practice could not be tolerated by a great State. Italy suggested that compulsory jurisdiction should be permitted via the adoption of a special Protocol which would link together those States who wished to reinforce the Court’s jurisdiction in this way. The UK, for its part, thought the Committee’s solution went far beyond what the Covenant contemplated. This threw down the gauntlet and, as was only to be expected, there was a fierce debate in the Assembly. The Latin American States, together with certain European States such as Norway and Belgium, supported the Committee’s position; the great Powers opposed it, in some cases quite bitterly. The arguments against a compulsory jurisdiction were essentially of two kinds. One kind was political: it was said to be premature to create a compulsory jurisdiction; it was unacceptable to Great Powers; and it was incompatible with a certain conception of sovereignty. The other kind was more legal, at least in appearance: the compulsory jurisdiction was said to be incompatible with the economy of the Covenant, that is, with the free choice of the means of dispute settlement under Article 12, paragraph 1.1102 M Nicolas Politis, speaking on behalf of Greece at a meeting of the Sub-Committee of the Third Commission (legal), produced an outline of the solution that was finally resolved upon. He proposed, as a compromise, the creation of a network of separate agreements, through which those States wishing to do so could accept the compulsory jurisdiction. As the debate dragged on, the Brazilian delegate, Mr Raoul Fernandes, proposed that it be agreed that ratification of, or adherence to, the Statute would not, in itself, give rise to a compulsory jurisdiction (thus satisfying the Great Powers), but that those States which wished to do so could ratify or adhere to an alternative text of the Statute that would provide for such a jurisdiction (in deference to the wishes of the smaller and medium States). This proposal was accepted, but on a technically simpler basis: there would be a single   See above section 6(e).   ‘The Members of the League agree that whenever a dispute shall arise between them which they recognise to be suitable for submission to arbitration or judicial settlement and which cannot be settled by diplomacy, they will submit the whole subject-matter to arbitration or judicial settlement.’ 1102   ‘The Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture, they will submit the matter either to arbitration or judicial settlement or to enquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report by the Council.’ The objection was that Art 12, § 1 of the Covenant gave the parties a choice between judicial proceedings and conciliation before the Council, and that in order to give the Court compulsory jurisdiction this provision ought to have been modified. This argument was contended to be legally unsound (but in any event is nowadays of little interest): ‘[The] objection was far from being a decisive one, because since the Court can acquire jurisdiction by agreement between the parties, there is no reason why that agreement should not be embodied in a general convention’ (N Politis, La justice internationale (Paris, 1924) 168, our translation). In other words, although Art 12 of the Covenant gave them a choice, the parties could freely choose to be bound, by a particular agreement, to renounce that freedom, either in certain fields or generally, and give priority to the Court. Art 12 did not require this choice to be made concrete case by concrete case: it can be exercised generally, or in advance. In addition, the freedom of choice set out in Art 12 did not amount to a rule of jus cogens. 1100 1101



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Statute open to ratification or adherence by all States; those who wished to accept the compulsory jurisdiction of the Court could then do so by unilateral declarations. Thus was born the system of the optional clause. States which did not wish to submit to an automatic compulsory jurisdiction would nevertheless participate in the system of the Statute. The Court would have jurisdiction over disputes concerning them, but only when there was some other distinct head of jurisdiction in existence, based on their consent. States which wished to accept a general compulsory jurisdiction could do so by a unilateral declaration, as provided for in the Statute. The effects of this system of declarations would thus be similar to a multilateral treaty for the settlement of disputes that included in its provisions a general jurisdictional clause to be separately accepted. There can be no doubt that this was a wise solution. It would have served no purpose to adopt, in the enthusiasm of the moment, robust and wide-ranging solutions, which, subsequently, many States would not have wished to implement. Insufficiently reflective action of this kind in the long term does greater disservice to the law than more modest and practical solutions. As was said at the time: It [the reticence about compulsory jurisdiction], showed, as regards certain States, the lack of any will to bind themselves definitively, at least in certain circumstances, vis-à-vis other Members of the League. The idea of a compulsory jurisdiction depends upon reciprocal confidence. If there is no such confidence as regards all concerned, the compulsory obligation is undesirable because, being stipulated for without any real conviction, the risk is that in practice it will be a dead letter, which is actually worse than a refusal to accept it in the first place.1103

The partisans of ‘peace through law’ were betting that States would become slowly habituated to the system, lose their initial atavistic mistrust of it, and would in the end be tempted into making declarations. The careful jurisprudence of the PCIJ would, it was hoped, contribute to allay such fear and mistrust. They thus hoped that an ever denser network of declarations would, in the course of the years, come to be an almost perfect substitute for a compulsory jurisdiction stipulated for directly in the Statute. These hopes were, however, to be only very partially fulfilled. Cases brought before the Court on the basis of Article 36, paragraph 2 of the Statute. In the early years of the PCIJ, States preferred to seise the Court on the traditional bases, in particular through compromissory clauses. In the fullness of time, however, the use of the optional clause became more and more frequent. The normal advantage States derived from doing so (subject, however, to the reservations often accompanying declarations) was that no limits were then placed on the Court’s jurisdiction. By contrast, jurisdiction on the basis of a compromissory clause is limited to the treaty containing the clause. Jurisdiction based on a special agreement depends, by definition, on the agreement of the parties to the dispute and its scope cannot be decided unilaterally in line with the applicant’s wishes. There is, however, no rule that States can seise the Court on the basis of only a single head (or title) of jurisdiction. On the contrary, it is possible to rely on several, and indeed this happens fairly frequently, a subject which will be dealt with in a separate chapter. In the days of the PCIJ, the optional clause was relied on as the basis for initiating 11 cases. The first was in 1925, but did not proceed to a decision on jurisdiction, let alone on the merits, since the applicant (Belgium) withdrew the case after reaching an agreement   Ibid, 168 (our translation).

1103

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with China in 1928. This was the case on the Denunciation of the Sino-Belgian Treaty.1104 Other cases followed: the case on the Legal Status of Eastern Greenland (1931–33);1105 the two cases on the Legal status of South-Eastern Greenland (1932),1106 which were discontinued; the Losinger case (1935–36),1107 likewise discontinued; the case of Pajzs, Csáky et Esterházy (1935);1108 the case on Diversion of water from the Meuse (1936–37);1109 the Moroccan phosphates case (1936–38);1110 the case of the Panevezys-Saldutiskis railway (1937–39);1111 the case on the Electricity Company of Sofia and Bulgaria (1938–39);1112 and the Gerliczy case (1939),1113 which was impeded by the war. The ICJ has been much more frequently seised on the basis of the optional clause, and over a considerably longer period. Below are mentioned only those cases which actually proceeded at least to a judgment on jurisdiction or merits:1114 the Norwegian Fisheries case (1951):1115 the Anglo-Iranian Oil case (1952);1116 the case on Nationals of the United States of America in Morocco (1952);1117 Nottebohm (1953);1118 Norwegian loans (1957);1119 Right of passage over Indian territory (1957);1120 1902 Convention on the guardianship of minors (1958);1121 Interhandel (1959);1122 Aerial incident of 27 July 1955 (1959);1123 Temple of Preah Vihear (1961);1124 the Nuclear Tests cases (1974);1125 the case on Military and paramilitary activities in and against Nicaragua (1984);1126 the case on the Arbitral award of 31 July 1989 (1991);1127 the case on Certain phosphate lands at Nauru (1992);1128 the case on the Maritime delimitation in the region between Greenland and Jan Mayen (1993);1129 the East Timor case (1995);1130 the case on the Land and maritime boundary between Cameroon and Nigeria (1998);1131 the case on Jurisdiction in fisheries matters (1998);1132 the cases on the Legality of the use of force (1999);1133   PCIJ, Series A, no 8, 4.   PCIJ, Series A/B, no 53. 1106   PCIJ, Series A/B, nos 48 and 55. 1107   PCIJ, Series A/B, nos 67 and 69. 1108   PCIJ, Series A/B, no 66, discontinued because Yugoslavia was no longer bound by the old optional clause, which had expired; then PCIJ, Series A/B, no 68, in which the optional clause is mentioned only on a basis that is subsidiary to a compromissory clause. 1109   PCIJ, Series A/B, no 70. 1110   PCIJ, Series A/B, no 74. 1111   PCIJ, Series A/B, nos 75 and 76. 1112   PCIJ, Series A/B, no 77. 1113   PCIJ, Series E, no 15. 1114   Since the paragraphs were introduced at the end of the 1960s, the basis of jurisdiction has always been mentioned in § 1 of the judgments. Prior to that, it was right at the beginning of the judgment. 1115   ICJ Reports 1951, 116 et seq. 1116   ICJ Reports 1952, 93 et seq. 1117   Ibid, 176 et seq. 1118   ICJ Reports 1953, 111 et seq. 1119   ICJ Reports 1957, 9 et seq. 1120   Ibid, 125 et seq. 1121   ICJ Reports 1958, 55 et seq. 1122   ICJ Reports 1959, 6 et seq. 1123   Ibid, 127 et seq. 1124   ICJ Reports 1961, 17 et seq. 1125   ICJ Reports 1974, 253 et seq., 457 et seq., the optional clause being invoked on a subsidiary basis. 1126   ICJ Reports 1984, 392 et seq. 1127   ICJ,Reports 1991, 53 et seq. 1128   ICJ Reports 1992, 240 et seq. 1129   ICJ Reports 1993, 38 et seq. 1130   ICJ Reports 1995, 90 et seq. 1131   ICJ Reports 1998, 275 et seq. 1132   Ibid, 432 et seq. 1133   ICJ Reports 1999, 124 et seq. 1104 1105



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the case on the Aerial incident of 10 August 1999 (2000);1134 the case on Armed activities in the territory of the Congo (DRC v Uganda, 2005);1135 the case of Ahmadou Sadio Diallo (2007);1136 the case of the Territorial and maritime boundary between Nicaragua and Honduras in the Caribbean Sea (2007);1137 the case of the Land and maritime dispute (Nicaragua v Colombia, 2007);1138 and the Dispute on navigation and related rights (Costa Rica v Nicaragua, 2009).1139 It is noticeable that the optional clause was very frequently invoked in the 1950s. Subsequently, parties sometimes preferred special agreements or compromissory clauses. The objective was to avoid the reservations accompanying declarations under the optional clause, or else to avoid disputes about jurisdiction and the wasting of time on procedural battles. That does not mean, however, that there had been a real reversal in the fortunes of the optional clause, and this is clear from the experience of recent years. The optional clause remains an attractive basis of ‘general’ jurisdiction, as opposed to the more ‘special’ jurisdiction that arises from compromissory and jurisdictional clauses, and from special agreements. The period when doubts were being expressed about the effectiveness of the optional clause1140 – running from the end of the 1950s to the end of the 1980s – is long since over. The current position as regards optional declarations. At the time of writing (15 April 2010), there are 66 outstanding optional declarations under Article 36, paragraph 2 of the Statute. The States that have made these declarations are the following:1141 Australia, Austria, Barbados, Belgium, Botswana, Bulgaria, Cambodia, Cameroon, Canada, Cyprus, DRC, Costa Rica, Denmark, Djibouti, Commonwealth of Dominica, Dominican Republic, Egypt (only for the Suez Canal), Estonia, Finland, the Gambia, Georgia, Germany, Greece, Republic of Guinea, Guinea-Bissau, Haiti, Honduras, Hungary, India, Ivory Coast, Japan, Kenya, Lesotho, Liberia, Liechtenstein, Luxembourg, Madagascar, Malawi, Malta, Mauritius, Mexico, the Netherlands, New Zealand, Nicaragua, Nigeria, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Senegal, Slovakia, Somalia, Spain, Sudan, Sweden, Switzerland, Surinam, Swaziland, Togo, Uganda, United Kingdom of Great Britain and Northern Ireland and Uruguay. This means that, in overall terms, slightly over a third of existing States are actually bound by the clause. Amongst them, small and medium States predominate. The Great Powers, which have never really favoured the mechanism, are either not bound, or are no longer bound. Only the UK maintains a declaration, quite extensively limited by reservations. Other States have withdrawn their declarations under the system following reverses at the Court. States are unused to having to accept ‘reprimands’. Thus France withdrew its declaration after the blow it received in the Nuclear Tests case of 1974, even though it had not really lost; and the USA withdrew its declaration in the context of the Nicaragua case in 1983/1984. The Communist States have never accepted the compulsory jurisdiction of an international tribunal: not only would it   ICJ Reports 2000, 12 et seq.   ICJ Reports 2005, at § 1. 1136   ICJ Reports 2007, at § 1. 1137   Ibid, at § 1, in parallel to a jurisdictional clause. 1138   Ibid, at § 1, in parallel to a jurisdictional clause. 1139   ICJ Reports 2009, at § 1. 1140   Waldock, ‘Decline of the Optional Clause’, above n 1094, 244 et seq. 1141   The up to date list can be found on the Court’s website: www.icj-cij.org. It is also published in the ICJ Yearbook, 2006/2007, no 61, 122 et seq. 1134 1135

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be contrary to their prickly conception of sovereignty, but they rightly feared finding themselves in a minority in tribunals dominated by jurists who in their eyes were ‘bourgeois’. For these reasons neither the USSR nor China have ever been parties to the system of the optional clause. Nor has Russia chosen to become a party since the fall of Communism there. The most committed members of the system are the small and medium States, especially in Latin America, and States such as Belgium, Denmark, Estonia, Finland, Georgia, the Netherlands, Sweden and Switzerland, or, outside Europe, Cameroon, the Republic of Guinea-Bissau, Haiti, Nicaragua, the DRC, the Dominican Republic and others. To sum up, then, the hope that an ever growing network of optional declarations would spread across the globe has yet to be realised. A large number of States are apprehensive about the compulsory jurisdiction. After perhaps 100 years of experience, only about a third of States are parties to the system. Back in 1920 there were far greater hopes for it. Also, the more powerful States, which could have given an example, tend to maintain a distance from the system. There is, on the other hand, no reason to disdain what has in fact been achieved. Compared with the old system of arbitration, very considerable progress has been made. An appreciable number of States do permit dispute resolution through the Court without any other condition than that the dispute be legal in nature. Thus the Court is regularly seised of applications based on the optional clause. One can also say that it is better to have a clause ratified by only about 70 States, who take it sufficiently seriously to make a free choice to subscribe, than a clause ratified by 160 States many of which in truth balk at giving it its true value, seeing it more as a threat to their sovereignty than a rational means of dispute resolution. If that had been the situation, the degree of progress would have been more apparent than real, and would have given satisfaction only to those who are more concerned about superficial appearances and presentation than about the underlying realities. When matters came to a head, the States that were not truly committed would have failed to live up to their obligations, and gaping holes would have opened up, imperilling the supposedly imposing structure in its entirety. Nothing would have done more to undermine the system – and with it international law itself, than an ill-conceived venture of that kind. The system we have, more modest in scope though it may be, is also more real and more solid and better satisfies the needs of the international community than an overblown and artificial system, which could only lead to repeated difficulties and crises, and thence to ridicule and contempt. The legal nature of an optional declaration. The legal nature of optional declarations has given rise to controversy among leading commentators. This was all the more so when for a certain time some authors did not admit the existence, in public international law, of unilateral legal acts (that is, acts having legal effects) other than agreements (principle of consensualism).1142 In some authors’ view, optional declarations are in effect unilateral acts;1143 in the view of others, the system of optional declarations in reality gives rise to an international agreement.1144 The truth surely is that an optional declaration is legally a hybrid. At bottom, and taken in itself, an optional declaration is a unilateral legal act which the declaring State carries out 1142   In this sense see, eg R Quadri, Diritto internazionale pubblico, 5th edn (Naples, 1968) 569 et seq. See also S Carbone, Promessa e affidamento nel diritto internazionale (Milan, 1967) 34 et seq. Also JW Garner, ‘The International Binding Force of Unilateral Oral Declarations’ (1922) 27 AJIL 493. The question of the nature, in legal theory, of unilateral and bilateral acts has been of particular interest to Italian jurists. 1143   See, eg G Balladore Pallieri, Diritto internazionale pubblico, 7th edn (Milan, 1956) 317–18. 1144   See, eg G Morelli, Studi sul processo internazionale (Milan, 1963) 107.



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of its own free will, and which is perfected simply by depositing the declaration with the Secretary-General of the United Nations.1145 There is no need for the declaration to be accepted by the other States in the system, because that acceptance is in place in advance, by virtue of their ratification of or adherence to the Statute. Their advance acceptance puts the making of a unilateral declaration into a category which is, at least in a sense, a consensual one. What is more, these unilateral declarations do not simply exist in isolation, each having its own independent legal effect in a perfectly autonomous way. On the contrary, each of them is a part of a reciprocal and mutual network, like an unsaturated molecule taking on its concrete meaning and effects only in relation to other atoms and molecules. The Court actually acquires jurisdiction only to the extent that the substances of two or more declarations coincide. In other words, the system of the optional clause is a network of bilateral or consensual legal relations. This, then, is a fairly complex system; it is sui generis and was designed with a view to preserving both unilaterality and ‘agreement’ in the narrow sense of that word (since the optional undertakings under Article 36, § 2, remain something less than legal agreements, as can be seen, for example, from the fact that they can be denounced or withdrawn from at any time, by a unilateral act, which would be unthinkable if they were treaty obligations). Perhaps the best way to categorise these declarations is as unilateral legal acts with bilateral or multilateral effects. The Court has sensed this ambivalent nature of the declarations and has indeed given adequate expression to it. In the case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility, 1984), the Court started out by saying that: ‘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.’1146 Then the Court then moved on to speak of the transition: ‘However, the unilateral nature of declarations does not signify that the State making the declaration is free to amend the scope and the contents of its solemn commitments as it pleases.’1147 Such acts form indeed part of a network of mutual relationships. A declaration gives rise, in the other parties to the system, to a legitimate expectation of a certain stability and continuity, arising from the principle of good faith: In fact, the declarations, even though they are unilateral acts, establish a series of bilateral engagements with other States accepting the same obligation . . . In the establishment of this network of engagements, which constitutes the Optional-Clause system, the principle of good faith plays an important role1148

Declarations are thus unilateral acts within a quasi-conventional context. Sometimes their unilateral nature carries with it certain legal consequences (for example, the right to 1145   One can certainly say, as Morelli does (ibid, 109–10), that this unilateral act cannot take effect until other States are aware of it. Morelli is thus forced into saying that the depositary of the declarations is acting as the passive representative of the States in the system. Its receipt of a declaration is ipso facto notification to the States parties, who have made the depositary their agent by virtue of ratifying the Statute. This interpretation gives rise to no legal problem. From a practical point of view it is equivalent on all points to the interpretation which does not bother with the passive representation point and simply says that the declaration takes effect upon notification to the depositary. That being so, it is perhaps better to embrace the simpler construction. 1146   ICJ Reports 1984, 418, § 59. 1147   Ibid. One finds this same duality expressed in the case on Fisheries Jurisdiction (Spain v Canada), ICJ Reports 1998, 453, § 46. 1148   Ibid, 418, § 60. Elsewhere, the Court has emphasised this hybrid and partially bilateral aspect – see the Right of passage over Indian territory (Preliminary Objections), ICJ Reports 1957, 146; the Land and maritime boundary between Cameroon and Nigeria (Preliminary Objections), ICJ Reports 1998, 291, § 25; the Fisheries case (Spain v Canada, Jurisdiction), ICJ Reports 1998, 453, § 46.

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withdraw or denounce one’s declaration, or to modify it unilaterally, the practice of interpreting declarations in light of the declaring State’s wishes and intentions and so on), and on other occasions it is their bilateral effects which entail other consequences (for example, the limitations to the right of withdrawal or denunciation posed by the requirement of a reasonable period of time prior to its taking effect, reciprocity between the effects of reservations, the establishment of jurisdiction on the basis of coinciding elements in the declarations of the applicant and the respondent and so on). Overall, therefore, we are dealing with complex juridical acts. The above considerations show that it is impossible to draw easy and fast analogies between the law of treaties and optional declarations. That is not in any way to say that such analogies cannot be drawn. But, since declarations are complex acts and not simple bilateral or multilateral agreements, arguments by analogy need to be applied with careful reflection and restraint. So, for example, the Court was able, and rightly so, in the Nicaragua case cited above,1149 to take comfort from Article 56 of the Vienna Convention on the Law of Treaties, to state that a reasonable period of time was required before the withdrawal of an optional declaration (containing no time-indication itself) can take effect. The Court might justly do the same as regards a whole series of questions: for example, the validity of a reservation attached to a declaration (whether, for example, it is contrary to the object and purpose of the optional clause system or of the Statute); the principles governing the interpretation of a declaration, including the modifications necessary in view of it unilateral character; the application of the clause rebus sic stantibus1150 and so on. It is for the Court, through its jurisprudence, to indicate up to what point such declarations should be ‘bilateralised’. The more the Court emphasises their unilateral aspect, the more it leaves them to the free wishes of the declaring States; conversely, the more it treats them as if they were agreements, the greater will be the limits it is necessary to impose on the freedom of action of the declaring State in the interests of protecting the legitimate expectations and trust of other parties, thus also reinforcing the grip of, and the degree of constraint imposed by, the whole system of the optional clause. Given that States remain free to make (or abstain from making) such declarations, and also free to withdraw from participation in the system, it will be well for the Court to pay close attention to the balance between liberty and constraint at different stages in the history of international relations. If the Court leans too far in favour of States’ freedom of action, the risk will be that the compulsory jurisdiction will be turned into an optional one, of the forum prorogatum type, effectively extinguishing the unique benefit of the system. Leaning too far in the opposite direction of constraint will bring the converse risk of exaggerating the compulsory element, in a way that will cause States to turn their backs on it. One can only hope that, as the Court steers its way endlessly between this Scylla and that Charybdis, it is able to do so suavitur in modo ... Form of optional declarations. Public international law is not formalistic. In governing the relationships between sovereign States, which are free and autonomous in every respect, and possessing their own legal services, it seeks above all, so far as legal acts are concerned, 1149   ICJ Reports 1984, 420, § 63: ‘It appears from the requirements of good faith that they [optional declarations] should be treated, by analogy, according to the law of treaties, which requires a reasonable time for notice of withdrawal from or termination of treaties that contain no provision regarding the duration of their validity.’ 1150   The latter was invoked by certain allied States (States of the Commonwealth, and France) at the outbreak of war in 1939, to suspend the applicability of the optional clause: cf Rosenne, above n 1094, 416.



CONSENSUAL JURISDICTION 457

to identify the will of the declaring State. It does so without imposing conditions as to form, conditions which would, in any event, be rather inconsistent with the State sovereignty. This attitude is adopted in connection with optional declarations as in many other fields. Although States usually model their declarations on existing precedents, there is practically no requirement as to form other than to inform the UN Secretary-General of the State’s wish to be bound by the Court’s compulsory jurisdiction. The Court explained the position in the case on the Temple of Preah Vihear (Preliminary Objections, 1961). It is worth citing what it said in extenso: 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 no particular form, parties are free to choose what form they please provided their intention clearly results from it. It is this last position which obtains in the cases of acceptances of the compulsory jurisdiction of the Court. The only formality required is the deposit of the acceptance with the Secretary-General of the United Nations, under paragraph 4 of Article 36 of the Statute . . . The precise form and language in which they [States] do this 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. Such being, according to the view taken by the Court, the position in respect of the form of declarations accepting its compulsory jurisdiction, the sole relevant question is whether the language employed in any given declaration does reveal a clear intention, in the terms of paragraph 2 of Article 36 of the Statute, to ‘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 the categories of questions enumerated in that paragraph.1151

The Court showed itself as accommodating and flexible as possible about formalities questions in the case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility, 1984). Nicaragua had declared, in a telegram, that it had ratified the optional declaration of 1929, and that it would send the original act of ratification to the League. But the communication was never received at Geneva. One explanation is that it was lost in transit across the Atlantic during the Second World War. Despite this, Nicaragua was listed by all the international bodies concerned (including the PCIJ’s Yearbook) as being bound by the system of the optional clause. The Court reached the conclusion that it need not give greater weight to the formalities for delivery and receipt of the instrument of ratification than to the real wish of the State concerned to be bound by the system. The Court put it as follows:   ICJ Reports 1961, 31–32.

1151

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The Court must enquire whether Nicaragua’s particular circumstances afford any reason for it to modify the conclusion it then reached [in the case of the Temple of Preah Vihear, cited above]. After all, the reality of Nicaragua’s consent to be bound by its 1929 Declaration is, as pointed out above, attested by the absence of any protest against the legal situation ascribed to it by the publications of the Court, the Secretary-General of the United Nations and major States. The question is therefore whether, even if the consent of Nicaragua is real, the Court can decide that it has been given valid expression even on the hypothesis that the 1929 Declaration was without validity, and given that no other declaration has been deposited by Nicaragua since it became a party to the Statute of the International Court of Justice. In this connection the Court notes that Nicaragua’s situation has been wholly unique, in that it was the publications of the Court itself (since 1947, the ICJ Yearbook; since 1968, the Reports to the General Assembly of the United Nations), and those of the Secretary-General (as depositary of the declarations under the Statute of the present Court) which affirmed (and still affirm today, for that matter) that Nicaragua had accomplished the formality in question. Hence, if the Court were to object that Nicaragua ought to have made a declaration under Article 36, paragraph 2, it would be penalizing Nicaragua for having attached undue weight to the information given on that point by the Court and the Secretary-General of the United Nations and, in sum, having (on account of the authority of their sponsors) regarded them as more reliable than they really were. The Court therefore recognizes that, so far as the accomplishment of the formality of depositing an optional declaration is concerned, Nicaragua was placed in an exceptional position, since the international organs empowered to handle such declarations declared that the formality in question had been accomplished by Nicaragua. The Court finds that this exceptional situation cannot be without effect on the requirements obtaining as regards the formalities that are indispensable for the consent of a State to its compulsory jurisdiction to have been validly given. It considers therefore that, having regard to the origin and generality of the statements to the effect that Nicaragua was bound by its 1929 Declaration, it is right to conclude that the constant acquiescence of that State in those affirmations constitutes a valid mode of manifestation of its intent to recognize the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute, and that accordingly Nicaragua is, vis-à-vis the United States, a State accepting ‘the same obligation’ under that Article.1152

It has been argued that the Court was excessively deferential to Nicaragua, because Nicaragua could and should have dissipated all doubts as to its position by subsequently sending its instrument of ratification to the Secretary-General of the United Nations, or alternatively by submitting a fresh declaration. By its non-formalistic interpretation, therefore, the Court was enabling Nicaragua to profit from its own wrongdoing.1153 One might well ask whether the wrongdoing was sufficiently serious – it was not, after all, an illegal or immoral act – to act as a bar to the Nicaraguan argument. Should Nicaragua really have been punished for failing to do something it was under no legal obligation to do? Also, the Court’s affirmation of its non-formalistic stance in that particular case was a question of wider scope and interest, going beyond the interests of the particular parties. In short, if Nicaragua’s situation was ‘unique’, the Court’s response to it was not. The Court took the opportunity to confirm and develop a line of jurisprudence indicating that conditions as to form will be handled with great flexibility, so as not to place unnecessary hurdles in the path of access to the Court. This trend in the jurisprudence responds both to the need to respect the sovereignty of declarant States and also to the maxim boni judicis est ampliare jurisdictionem.

  ICJ Reports 1984, 412–13, §§ 46–47.   Separate Opinion of Judge Mosler, ICJ Reports 1984, 464.

1152 1153



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This absence of formalism can lead to ‘optional declarations’ taking very diverse forms. Some consist of a single sentence expressing the desire to submit to the Court’s compulsory jurisdiction. The declaration of Haiti dated 4 October 1921 states that: ‘On behalf of the Republic of Haiti, I recognize the jurisdiction of the Permanent Court of International Justice as compulsory. Signed . . .’. The usual form for declarations nowadays is as follows: (1) an introductory section in which the declaring State tracks the words of Article 36, paragraph 2 of the Statute with possible minor variations, and in which it states that it recognises, by the present declaration, as compulsory, ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the International Court of Justice, in conformity with paragraph 2 of Article 36 of the Statute of the Court (often in respect of all disputes arising from facts or situations subsequent to the declaration in question); (2) a section in which certain categories of dispute are excepted from the Court’s jurisdiction (reservations); and (3) a concluding section dealing with the duration of the declaration, its renewal and its modification, as for example: The Government of the Republic of Hungary reserves the right at any time, by means of a notification addressed to the Secretary-General of the United Nations, and with effect of [sic] six months of such notification to amend, add to or withdraw any of the foregoing reservations or any that may hereafter be added. This declaration shall remain in force until the expiration of six months after notification has been given of its termination.1154

On the other hand, following the requirements of Article 36, paragraph 4 of the Statute (delivery of the declaration to the Secretary-General, who sends a copy to the Registrar and to the other States) and the usual practice in this regard, it is accepted that non-formalism does not go so far as to allow purely oral, or even tacit, adherence to the system of the optional clause. To allow that would be to go too far, not only for reasons of legal certainty, but also because of the requirements flowing from the interplay of reciprocities. Reservations attaching to declarations.1155 Optional declarations can be made in a very simple way (that is, without conditions), subject to a reservation about reciprocity, or they can be accompanied by reservations of any kind. The adage ‘If you can do more you can do less’ applies here: just as a State has the right to make or not to make a declaration, so a fortiori it can make a declaration with partial or limited scope, submitting some questions to the Court’s compulsory jurisdiction but withholding others. If a State can submit ‘all’ disputes to the Court, it can also submit only ‘some’ of them. That does not mean that States can make reservations of absolutely any kind and that all reservations are automatically valid. A reservation has to be compatible with the Statute and the Rules of the Court and, in addition, must not derogate from the jus cogens of general international law. The general applicable legal rule is thus that States, by virtue of the freedom of action reserved to them in this field under international law, and as a function of the adage just mentioned, can include as many reservations as they like. Article 36, paragraph 3 in no way states an   Hungarian Declaration of 22 October 1992.   On the subject of such reservations, see the works and articles cited at the beginning of this chapter, and in addition: SA Alexandrov, Reservations in Unilateral Declarations Accepting the Compulsory Jurisdiction of the International Court of Justice (Dordrecht, 1995); SA 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’ (2001) 14 Leiden Journal of International Law, 89 et seq.; HW Briggs, ‘Reservations to the Acceptance of Compulsory Jurisdiction of the International Court of Justice’ CCHAIL, vol 93, 1958-I, 223 et seq. See also J Verhoeven, ‘Jus Cogens and Reservations and “Counter Reservations” to the Jurisdiction of the ICJ’ in Essays E Suy (The Hague, 1998) 195 et seq. 1154 1155

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exhaustive limit; nor does it limit ‘reservations’ to reciprocity in the sense we will come to shortly; quite the reverse, States can make any kind of reservation, ratione materiae, ratione temporis, ratione loci and even ratione personae.1156 States have sometimes achieved, by means of such reservations, very considerable restrictions on the scope of the jurisdiction that they are conceding. Most declarations contain at least one reservation, and many contain several. Some contain so many that few remains for the Court to adjudicate upon (for example, India and Malta). In this way, a number of States have taken back (at least partially) with one hand what they have conceded with the other. This reduces the value of their participation and qualifies the view, expressed above, that it is better to have a reduced number of declarations, if only they are solid and real. One does indeed need to take the point a little further: it is better to have a smaller number of declarations unaccompanied by reservations, than a larger number but larded with reservations; and it is better to have a higher number of declarations with few reservations than a higher number of declarations with many reservations. From another (and particularly from a political) perspective, such reservations are, however, understandable. The world remains full of risks and uncertainties, and is also evolving very rapidly. By accepting the obligations arising under the Clause, States are committing themselves in a very serious way. They cannot know in what circumstances they will be called upon to defend a case and find themselves on the receiving end of a judgment, particularly in such a mobile international environment. Also, whether or not they accept the jurisdiction, States continue to possess vital interests and to be confronted with sensitive questions: national defence and military questions, questions that are purely internal, disputes with neighbouring States and so on. It is entirely natural that they should seek to arm themselves against obligations that they will not, or cannot, accept. In that sense, the view expressed above applies in this context also: better a reservation that is frank and clearly stated in advance – even though it may appear difficult or irritating – than an illusory acceptance of the jurisdiction from which, when the going becomes tougher, the State will shy away altogether. Fundamentally, reservations are merely the reflection of the difficulties that the cause of justice inevitably faces in our divided world. From a purely legal point of view, these limitations to the Court’s jurisdiction are obviously sufficient to disquiet the jurist. Up to a point, however, he can console himself with the thought that, if the Respondent State invokes a reservation, in the last resort it is for the Court to decide whether or not the State’s reliance on that reservation is well founded – the Court taking the decision under Article 36, paragraph 6 of the Statute (subject, however, to so-called ‘automatic’ reservations, which will be considered below). Some States have made ‘clean’ declarations, that is, without any restrictive condition. Haiti, for example, as already quoted, declared on 4 October 1921: ‘On behalf of the Republic of Haiti, I recognize the jurisdiction of the Permanent Court of International Justice as compulsory. Signed . . .’. On 24 September 1929 Nicaragua made the following declaration: ‘In the name of the Republic of Nicaragua, I declare its recognition as compulsory and without condition of the jurisdiction of the Permanent Court of International Justice.’ These declarations have continued valid to the present day under the transfer clause in Article 36, paragraph 5 of the Statute. Some declarations refer to or make a reservation concerning reciprocity. For example, Uganda in 1963, said: 1156   This right was recognised by the Fifth Assembly of the League of Nations, at the Third Commission. See Hudson, above n 1094, 467.



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I hereby declare on behalf of the Government of Uganda that Uganda recognizes as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, and on condition of reciprocity, the jurisdiction of the International Court of Justice. ...

This formula is found in numerous declarations (for example, the Swiss one of 1948). It is not, however, a reservation. According to the Court’s practice, it is simply a reminder of a principle which is automatically applicable in respect of optional declarations under Article 36, paragraph 2 of the Statute: jurisdiction is established only inter partes, as between States which have made such declarations; it exists only to the extent that their declarations coincide; and it enables each State to invoke the reservations qualifying the opposing party’s declaration (see below). In this way, numerous States have echoed and reproduced the terms of Article 36, paragraphs 2 and 3. Legally, this is only done ex abundante cautela; even if the ‘reminder’ were not there, reciprocity would still apply because it is part of the regime of optional declarations, as provided for in the Statute and applied by the Court’s jurisprudence.1157 Since reciprocity is not truly a reservation, but rather an inherent element in the legal regime for optional declarations, a State which has accepted the Court’s compulsory jurisdiction without mentioning reciprocity and a State doing the same but also mentioning reciprocity, are, in reality, in the same legal position. The same goes for those few States who have accepted the Court’s jurisdiction while including in their declarations ‘reminders’ as to ‘absolute reciprocity’.1158 These remarks are not inconsistent with Article 36, paragraph 3. That paragraph provides that declarations can be made ‘unconditionally’ or ‘on condition of reciprocity’. In the minds of the draftsmen, back in 1920, this provision enabled a State to make an optional declaration whose validity would have been subordinated to the making of declarations of the same type by certain other States or by a certain number of other States. Brazil had asked for this, fearing that it would be disadvantageous for a State to deliver such a declaration without being certain that a reasonable number of other States would do the same.1159 Besides, this formula enabled a State to exclude the condition of reciprocity,1160 for example, to accept the Court’s jurisdiction ‘unconditionally’ vis-à-vis every other State, without the two declarations having to coincide as regards the obligations accepted and the reciprocal right to invoke reservations accompanying the declaration of the opposing party.1161 This was a way of extending the compulsory jurisdiction even further, and that, after all, was the ultimate aim of the draftsmen working on the clause. This did not mean, however, that a State which made no express mention of reciprocity would be excluded from the 1157   Tomuschat, above n 1094, 633; Hudson, above n 1094, 465; AP Fachiri, The Permanent Court of International Justice: its constitution, procedure and work, 2nd edn (London, 1932) 96–97. 1158   An expression which, in this context, seems to have no particular significance other than reciprocity: See the Declaration of Mexico of 28 October 1947. 1159   Dubisson, above n 1094, 163. 1160   See E Hambro, ‘Some Observations on the Compulsory Jurisdiction of the International Court of Justice’ in BYIL, vol 25, (1948) 136. 1161   It has even been asked whether jurisdiction could exist even when the opposing State had not deposited an optional declaration. The words ‘in relation to any other State accepting the same obligation’ seem to argue against that (and that is the Court’s practice). But can States parties renounce this benefit by explicitly renouncing reciprocity? Back in 1920, there was nothing to exclude this: the Court’s jurisdiction would thereby have been enlarged. It was, however, unlikely that any State would accept such an inferior status, and at least as unlikely that the Court would readily accept it, given that it created an inequality of treatment before the Court. If a State brings a case before the Court against a State which has not subscribed to the optional clause, there is still the possibility that the jurisdiction of the Court will be accepted on an ad hoc basis, through the forum prorgatum mechanism.

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benefit of it. That question was at least left open, for the Court to decide it in the course of its eventual caseload. We will return to the subject of reciprocity in a separate subsection. It is perhaps helpful to remember that, in 1920, the exact meaning of the reciprocity condition was not yet clear, and that the PCIJ did not have many opportunities to set limits to it.1162 The Court did, however, focus particularly on one element: the right of the respondent to invoke the reservations or restrictions in the applicant’s declaration, so that the Court’s jurisdiction would be based on the more restrictive of the two declarations.1163 Nor was the precise legal basis of reciprocity any more clear, except that it was an element in Article 36, paragraph 2 of the Statute. In concrete terms, one could treat it as connected to the words ‘in relation to any other State accepting the same obligation’,1164 or rather to the words ‘may be made unconditionally or on condition of reciprocity’,1165 which appeared at that time in paragraph 2 and today are to be found in paragraph 3; alternatively, they can be seen as flowing from a consolidated view of the two provisions.1166 Right through into the 1960s, various possible interpretations of reciprocity – interpretations that were, to a greater or lesser degree, expansionist – were being put forward and discussed.1167 It was the Court’s own jurisprudence which clarified the concept somewhat and gave it progressively clearer and cleaner contours. A sizeable majority of declarations contain reservations. Their effect, assuming them to be valid, is to restrict the Court’s consensual jurisdiction. By withdrawing disputes of a certain type from the Court’s jurisdiction, the State making the reservations is protecting itself against an exercise of jurisdiction by the Court over questions which the State does not wish to see treated in that way, that is, in questions in respect of which it does not wish to submit to the binding judgment of a third party. Generally, reservations concern questions that are considered ‘vital’ or ‘important’ by the State concerned, to the point that one can see in reservations to optional declarations a kind of continuation of the old ‘vital interests’ clauses that used to appear in arbitration agreements. Thus Greece made a reservation concerning all disputes relating to military measures adopted by her for reasons of national defence. Apart from such reservations, relating to interests which, subjectively, the State considers of supreme concern, States also make reservations for more practical reasons: for example because a judgment on a question which, both objectively and subjectively, is actually of quite limited importance, would nevertheless be embarrassing for the declaring State, given that it would be obliged to break with its own internal law. This can give rise to particularly difficult problems if there had been a popular vote about it. Further, reservations can address a problem of time so as not to oblige the State to defend cases dating back to a period when it was not (or not yet fully) sovereign, which might be considered incongruous or at least inappropriate. Some States have made very few reservations. Greece is an example, the only Greek reservation being the one cited above. Other States sometimes make so many reservations that one asks oneself why they are bothering to adhere to a system of compulsory jurisdiction in the first place. That is the case of Malta, for example, which holds the record in this field, or of India’s declaration, as reformulated after the case on the Right of passage over Indian territory, in 1957–60.   cf Rosenne, above n 1094, 384.   Case of the Electricity Company of Sofia and Bulgaria, (1939), PCIJ, Series A/B, no 77, 81. 1164   Hudson, above n 1094, 465; Fachiri, The Permanent Court, above n 1157, 96. 1165   Thus probably, Politis, above n 1102, 236. 1166   See Dubisson, above n 1094, 163. 1167   Ibid, 163–64. 1162 1163



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Reservations are normally made at the time the declaration is deposited with the SecretaryGeneral. They can, however, be inserted at a later date. On legal analysis that must be seen as a partial denunciation of the old declaration and the substitution of a new one. The new one takes effect after a reasonable period of time has elapsed. This question will be considered further in the context of the denunciation of/withdrawal from optional declarations. There is no analogy here with the law of treaties. In the latter field, reservations can be made only at the time the treaty is ratified, or up to the moment of acceding to it. The position is different only if the treaty itself stipulates otherwise, or if all the parties accept a reservation made at a later stage. This is position in view of the requirements of the principle pacta sunt servanda: otherwise one could scarcely ever know how far a State was really to be bound, since by a simple unilateral act committed at any time, a State could free itself of one or more of its treaty obligations. Similarly, there is a presumption that a treaty cannot be withdrawn from (denounced) unless it contains an indication to that effect (see Article 56 of the Vienna Convention on the Law of Treaties). Optional declarations, for their part, are in this context considered unilateral acts. In accordance with long-established practice, such acts are considered denouncable. It follows that there is no reason to refuse to accept reservations made at any time after the declaration has been deposited. Here again, he who can do more can, of course, do less: if you can entirely withdraw from a clause, you necessarily have the right to withdraw partially (or to restrict the declaration by fresh reservations). With a view to maintaining the confidence of third States in the functioning of the system all that is required is a reasonable period of notice before the modification takes effect. There is, a fortiori, good reason to accept that States can withdraw their reservations at any time. In that case, the withdrawal takes immediate effect, given that the rights of other States, far from being restricted thereby, are increased by it. There is an analogy here with the law of treaties, under which a reservation can likewise be withdrawn at any time. States can consequently modify their reservations by depositing a fresh declaration, as did India on 18 September 1974, and the UK on 1 January 1969 and again on 5 July 2004. Alternatively, a kind of amendment can be added to the existing declaration. This was what Malta did by a note dated 2 September 1983 additional to its declaration of 6 December 1966. This difference in the way of doing things has no legal consequences. In both cases, it is in legal terms, a matter of withdrawing (in whole or in part) from the old declaration and the making of a new one. The contents of reservations are remarkably diverse. They can and do relate to subjects, to timing, to space, and to persons. In practice, there are certain well-worn types of reservation, dating back to the gradual consolidation of practice in the days of the PCIJ. At that period, 10 different types of reservation were in widespread use:1168 they related to (1) disputes prior to the deposit of the declaration; (2) facts and situations prior to the deposit of the declaration, even if the dispute itself crystallised later; (3) disputes that had proved impossible to resolve by negotiation; (4) alternative dispute resolution procedures; (5) disputes taken to the Council of the League; (6) questions relating to the reserved domain/ national jurisdiction; (7) questions concerning the constitution of the State; (8) disputes as to the status of the national territory; (9) disputes about particular treaties; and (10) disputes about acts of war or in time of war. In broad terms, this typology continued after 1945, except that reservations became even more far-reaching, both quantitatively and qualitatively. An overall review of the declarations currently in force (15 April 2010) presents the following picture:   cf Hudson, above n 1094, 468–72.

1168

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(1) Reservations ratione materiae This is the most common type of reservation and also the one that presents itself in the greatest variety of different forms: Reservation of other dispute resolution mechanisms. The most frequent reservation exempts from the Court’s compulsory jurisdiction disputes in respect of which the parties have agreed, or might agree, upon another mode of dispute resolution. For example: ‘any dispute which the Parties thereto have agreed or shall agree to have recourse to some other method of peaceful settlement or which is subject to another method of peaceful settlement chosen by the Parties’.1169 Equivalent reservations are to be found in the declarations of Australia,1170 Barbados,1171 Belgium,1172 Botswana,1173 Cambodia,1174 Canada,1175 Djibouti,1176 Estonia,1177 the Gambia,1178 the Republic of Guinea,1179 Honduras,1180 Hungary,1181 India,1182 Ivory Coast,1183 Kenya,1184 Lesotho,1185 Liberia,1186 Luxembourg,1187 Madagascar,1188 Malawi,1189 Malta,1190 Mauritius,1191 the Netherlands,1192 New Zealand, 1193 Nigeria,1194 the Philippines,1195 Poland,1196 Portugal,1197 Senegal,1198 Slovakia,1199 Spain,1200 Sudan,1201 Suriname1202 and the   Germany, Declaration of 1 May 2008. The dates are those on which the declaration was registered.   Declaration of 22 March 2002. 1171   Declaration of 1 August 1980. 1172   Declaration of 17 June 1958. 1173   Declaration of 16 March 1970. 1174   Declaration of 19 September 1957. 1175   Declaration of 10 May 1994. 1176   Declaration of 2 September 2005. 1177   Declaration of 21 October 1991. 1178   Declaration of 22 June 1966. 1179   Declaration of 4 December 1998. 1180   Declaration of 6 June 1986. 1181   Declaration of 22 October 1992. 1182   Declaration of 18 September 1974. 1183   Declaration of 29 August 2001. 1184   Declaration of 19 April 1965. 1185   Declaration of 6 September 2000. 1186   Declaration of 20 March 1952. 1187   Declaration of 15 September 1930. 1188   Declaration of 2 July 1992. 1189   Declaration of 12 December 1966. 1190   Declaration of 6 December 1966. 1191   Declaration of 23 September 1968. 1192   Declaration of 1 August 1956. 1193   Declaration of 22 September 1977. 1194   Declaration of 30 April 1998. 1195   Declaration of 18 January 1972. 1196   Declaration of 25 March 1996. 1197   Declaration of 25 February 2005. 1198   Declaration of 2 December 1985. The Senegalese formula read as follows: ‘Senegal may reject the Court’s competence in respect of . . .’. The text does not really satisfy the requirements for a reservation, which might read ‘Senegal reserves . . .’. Perhaps the Court would give greater consideration to the real wishes of the declaring State than this probably defective expression of them. In relation to unilateral legal acts, the will of the declaring State carries greater weight than it does in relation to treaties. See the Anglo-Iranian Oil case (Preliminary Objections), ICJ Reports 1952, 105. 1199   Declaration of 28 May 2004. 1200   Declaration of 29 October 1990. 1201   Declaration of 2 January 1958. 1202   Declaration of 31 August 1987, using a slightly different formula: the disputes in respect of which the parties ‘have agreed to settlement by means of arbitration, mediation or other methods of conciliation and accommodation’. 1169 1170



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United Kingdom of Great Britain and Northern Ireland.1203 This reservation, in the general formulation mentioned above, is, in terms of absolute numbers, the one most frequently made; it is to be found in 35 declarations out of 66, that is, in approximately 53 per cent. Some States limit the scope of this reservation to alternative means of dispute resolution that ensure a binding decision. In that way they are ensuring that the Court’s jurisdiction will not be ousted unless there is going to be an equivalent decision – that is, a binding one, and not just a simple recommendation. This is the position as regards the reservations of Austria1204 and Peru.1205 Japan’s1206 is more precise still, since it makes an exception from the Court’s jurisdiction only if another mode of jurisdictional or arbitral decision-making is provided for. Liberia1207 and Pakistan1208 make exceptions for proceedings before ‘other tribunals’, amongst which one must include arbitral tribunals. Overall, this reservation is the most benign one. It is not designed to restrict the Court’s jurisdiction unduly, but rather to organise, in a rational way – in conformity with the principle of ‘free choice as to the means’ – the various modes or peaceful settlement as a function of existing agreements and of the type of dispute concerned. This reservation is thus not open to criticism, especially in the restrictive version favoured by States such as Austria. Such a comment, from the point of view desiring the widest possible degree of acceptance of the Court’s jurisdiction, can be made of this type of reservation only. Reservation of questions belonging exclusively to internal jurisdiction – the ‘reserved domain’. This is a traditional reservation, and is still quite frequently made. It features in the declarations of Barbados,1209 Botswana,1210 Cambodia,1211 Canada,1212 Cyprus,1213 Djibouti,1214 the Gambia,1215 the Republic of Guinea,1216 Honduras,1217 Hungary,1218 India,1219 Ivory Coast,1220 Kenya,1221 Liberia,1222 Madagascar,1223 Malawi,1224 Malta,1225 Mauritius,1226 Mexico,1227

  Declaration of 5 July 2004.   Declaration of 19 May 1971. 1205   Declaration of 7 July 2003. 1206   Declaration of 9 July 2007. 1207   Declaration of 20 March 1952. 1208   Declaration of 13 September 1960. 1209   Declaration of 1 August 1980. 1210   Declaration of 16 March 1970. 1211   Declaration of 19 September 1957. 1212   Declaration of 10 May 1994. 1213   Declaration of 3 September 2002. 1214   Declaration of 2 September 2005. 1215   Declaration of 22 June 1966. 1216   Declaration of 4 December 1998. 1217   Declaration of 6 June 1986. 1218   Declaration of 22 October 1992. 1219   Declaration of 18 September 1974. 1220   Declaration of 29 August 2001. 1221   Declaration of 19 April 1965. 1222   Declaration of 20 March 1952. 1223   Declaration of 2 July 1992. 1224   Declaration of 12 December 1966. 1225   Declaration of 6 December 1966. 1226   Declaration of 23 September 1968. 1227   Declaration of 28 October 1947. 1203 1204

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Nigeria,1228 Pakistan,1229 the Philippines,1230 Poland,1231 Senegal,1232 Slovakia,1233 Sudan1234 and Swaziland.1235 The reservation can be found in 27 declarations out of 66, that is, in about 41 per cent. It will be remembered that according to the most current construction the ‘reserved domain’ is a reference to what are questions in relation to which States remain free to act because the questions are not governed by international law, being left to the free action of States and their governments. Generally, these are questions connected with the internal organisation of the State. The absence of international norms in these fields is considered to amount to assent to the idea that individual States are free to do as they will. From the legal point of view, in so far as the ‘reserved domain’ is understood in the sense described above, the reservation does not seem to have any tangible reach or effects. In declarations, it is included on an ex abundante cautela basis. If the reservation is not made, the Court will, just the same, be obliged to apply the principle of exclusive national jurisdiction, to the extent that this is required under international law (jura novit curia). The fact is that if no norm of international law governs a question, then there is by definition no rule for the Court to apply, precisely because none exists. In such a case, usually on the basis of a preliminary objection, the Court would have to declare that it does not have jurisdiction, or to say that the application was inadmissible, because the application would not be based on an applicable rule of international law. It is possible that, in such circumstances, the Court might on occasion, in the absence of a preliminary objection, proceed to reject the substantive application, on the basis that it is not based on an international legal norm and therefore appears to be misconceived on the substantive issues. A State cannot require from another State any particular line of conduct, unless it is based on a legal duty. If there is no legal duty, then the first State has no basis for the demand. This is a question concerning the existence or non-existence of a duty, that is, a substantive question. It does, however, remain possible to wonder whether a reservation as to internal questions would, at the least, result in the Court’s abstaining from basing its decision on ‘general principles of law’ by analogy with internal legal systems,1236 to the extent that the latter may fill in lacunae in the international law – that is, the absence of rules constituting, or giving rise to, such legal duties. The answer, however, seems implicit in the very notion of the ‘reserved domain’, as it exists in international law. International law here positively leaves or concedes freedom of action to States. Its attitude represents not a lacuna, but what a jurist would call a ‘qualified silence’. Freedom of action is positively desired, it is more than a matter of mere residual conclusion a contrario. In consequence, there is no gap here to be filled in by a general principle of law. In many ways the Court does indeed apply gen  Declaration of 30 April 1998.   Declaration of 13 September 1960. 1230   Declaration of 18 January 1972. 1231   Declaration of 25 March 1996. 1232   Declaration of 2 December 1985. As already noted in n 1198, the Senegalese formulation read as follows: ‘Senegal may reject the Court’s competence in respect of . . .’. This is not truly sufficient for the requirements for a reservation (‘Senegal reserves . . .’). Possibly the Court would have more regard to the true will of the declaring State than to the probably defective expression given to it. In relation to unilateral legal acts, the will of the declaring State carries more weight than in relation to treaties. See the Anglo-Iranian Oil case (Preliminary Objections), ICJ Reports 1952, 105. 1233   Declaration of 28 May 2004. 1234   Declaration of 2 January 1958. 1235   Declaration of 26 May1969. 1236   Art 38, § 1(c) of the Statute. 1228 1229



CONSENSUAL JURISDICTION 467

eral principles as legal norms recognised by international law, so as to fill up lacunae. But that will never affect the reserved domain or internal questions. The next question is whether the reservation of internal questions might be of some procedural significance. Might it mean that the reserving State, by explicitly reserving its rights in this regard, is signalling, right from the outset, that it intends to object? That is not the position. Once the Court is seised of a case, the State concerned is always free to choose whether or not to raise an objection on the basis of its reservation. So far as concerns the ‘reserved domain’, the Court is, as noted above, obliged, on a motu proprio basis, to respect it. This is a question intimately and inextricably linked to the law the Court applies and for which it is responsible: jura novit curia. If the Court cannot find any international legal norm on the basis of which the application might be founded, that is a fact it cannot ignore. Absent a formal objection from the State concerned, the Court will not begin separate proceedings as to jurisdiction and admissibility, and will not necessarily declare that it has no jurisdiction or that the application is inadmissible. It might proceed straight to the merits phase, and will reject the applicant’s claims as devoid of any legal basis. Although this reservation therefore does not have any tangible legal value, it nevertheless possesses a political importance of a quite different order. In its essence, it is tightly linked to the sovereignty of the State concerned. It is easy to understand why numerous States wish to emphasise their sovereignty and to give it an honoured place. Sometimes this is necessary for internal political reasons in order to get an optional declaration ratified. It is hardly surprising that the reservation is frequently found in declarations emanating from developing countries, where States are traditionally sensitive about their internal affairs. Some of these reservations are conceived in objective terms, that is, they constitute reminders that the question whether a particular issue is part of the ‘reserved domain’ must be decided in accordance with international law.1237 Some are the opposite, subjective in nature, leaving it to the declaring State to decide whether or not, in its opinion, the question belongs to the ‘reserved domain’. In such cases the State’s own opinion will be decisive. These ‘automatic’ reservations give rise to particular problems, and will be considered further in a separate subsection. Finally, some declarations do not state whether they are objective or subjective, but simply reserve questions belonging to the national jurisdiction. That, for example, is the position as regards Nigeria’s declaration.1238 In cases such as this, it is to be presumed that the clause is objective, and that the limits of the reserved domain will be determined in accordance with international law. That is the ordinary way of defining the concept. Exceptions to it are not to be presumed. Reservation for ‘multilateral treaties’. In this case we are considering a type of reservation that was invented by the USA (the ‘Vandenbergh reservation’). It was applied by the Court in the case on Military and paramilitary activities in and against Nicaragua (1984). In that case the wording excluded from the Court’s jurisdiction disputes ‘relating to the interpretation of application of a multilateral treaty, unless all the parties to the treaty are also 1237   This is the case, for example, as regards the Declaration of Honduras, dated 6 June 1986: ‘Disputes concerning matters subject to the domestic jurisdiction of the Republic of Honduras under international law’ (italics added). See also: Kenya, Declaration of 19 April 1965 (‘by general rules of international law’); Madagascar, Declaration of 2 July 1992 (‘under international law’); Malta, Declaration of 6 December 1966 (‘by international law’); Mauritius, Declaration of 23 September 1968 (‘by international law’); Pakistan, Declaration of 13 September 1960 (idem); Poland, Declaration of 25 March 1996 (idem); Senegal, Declaration of 2 December 1985 (idem); Slovakia, Declaration of 28 May 2004 (idem); Swaziland, Declaration of 26 May 1969 (idem). 1238   Declaration of 30 April 1998.

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parties to the case of which the Court is seised or the Government [of the reserving State] specially accepts the jurisdiction of the Court’. Certain other States have echoed this reservation.1239 In the 1984 Nicaragua case1240 the Court to some extent cut down the scope of the reservation, taking the view that it did not prevent the Court from taking cognisance of the dispute on the basis of international customary law, formally distinct from the multilateral treaty, but often largely identical in subject matter, especially in cases where the treaty reflects general international law. The ‘military’ reservation. This reservation is about the deployment of military force outside the national territory and/or any question connected to it;1241 about the military use of the national territory;1242 about all situations concerning hostilities, self-defence, aggression, measures of collective international security and so on;1243 measures of a defensive nature for the purposes of national defence;1244 acts of armed conflict or originating in armed conflict which might affect the national territory;1245 and all questions concerning occupation in time of war or a military occupation;1246 including where the steps concerned are taken in the execution of a decision or recommendation of one of the organs of the United Nations.1247 Reservation regarding the ‘national territory’. A series if reservations exclude the Court’s jurisdiction as regards questions concerning the status of the national territory1248 or the modification/delimitation of boundaries;1249 usually this includes maritime zones.1250 These are the archetypal sensitive issues. Sometimes the reservation relates only to disputes about boundaries.1251 Reservation with respect to maritime delimitation. Certain States, such as Australia1252 and India,1253 have made reservations excluding the Court’s jurisdiction over disputes relating to maritime boundary delimitation, without, however, going so far as to exclude all disputes relating to their maritime areas. 1239   Djibouti, Declaration of 2 September 2005; India, Declaration of 18 September 1974; Malta, Declaration of 6 December 1966; Pakistan, Declaration of 13 September 1960; Philippines, Declaration of 18 January 1972. 1240   ICJ Reports 1984, 421 et seq., §§ 67 et seq. 1241   Germany, Declaration of 1 May 2008. 1242  Ibid. 1243   Djibouti, Declaration of 2 September 2005; Hungary, Declaration of 22 October 1992; India, Declaration of 18 September 1974; Nigeria, Declaration of 30 April 1998; Sudan, Declaration of 2 January 1958 (disputes arising from events connected with participation in hostilities). 1244   Greece, Declaration of 10 January 1994. 1245   Honduras, Declaration of 6 June 1986. 1246   Malawi, Declaration of 12 December 1966. 1247   Kenya, Declaration of 19 April 1965; Malta, Declaration of 6 December 1966; Mauritius, Declaration of 23 September 1968. 1248   Philippines, Declaration of 18 January 1972. 1249   Djibouti, Declaration of 2 September 2005; Honduras, Declaration of 6 June 1986; India, Declaration of 18 September 1974; Malta, Additional Note to its Declaration of 6 December 1966, dated 2 September 1983; Poland, Declaration of 25 March 1996. 1250   Djibouti, Declaration of 2 September 2005; Honduras, Declaration of 6 June 1986; India, Declaration of 18 September 1974; Malta, Additional note to the Declaration of 6 December 1966, dated 2 September 1983; Nigeria, Declaration of 30 April 1998. 1251   Surinam, Declaration of 31 August 1987. 1252   Declaration of 22 March 2002. 1253   Declaration of 18 September 1974.



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Questions relating to resources and the environment. Barbados has made a reservation concerning disputes relating to the conservation, management or exploitation of the biological resources of the sea, and to the question of marine pollution in areas adjacent to its coasts;1254 New Zealand has entered a reservation on the same questions, except for marine pollution;1255 the Philippines’ reservation excludes disputes over the natural resources, including living organisms, of certain maritime areas;1256 Canada has excluded the fisheries and conservation measures in the NAFO Regulatory Area of the North-West Atlantic;1257 Malta excludes disputes arising from measures against pollution or the contamination of the marine environment in the areas adjacent to its coasts;1258 Poland1259 and Slovakia1260 generally reserve disputes relating to the protection of the environment. Miscellaneous. Cambodia1261 and Portugal1262 both have reservations as to questions the judicial settlement of which is excluded under treaties to which they are respectively parties. Malta1263 and Mauritius1264 have reservations excluding questions withdrawn from judicial or arbitral resolution by virtue of treaties to which they are respectively parties; and disputes which have given rise to arbitral or judicial proceedings with a State which, at the time the proceedings commenced, had not accepted the compulsory jurisdiction of the Court. India has reserved questions arising from any treaty concluded under the auspices of the League of Nations, unless India has specially consented.1265 Nicaragua has reserved disputes originating in the interpretation of treaties that were signed or ratified, or arbitral awards that were given, prior to 31 December 1901.1266 Poland has reserved disputes relating to foreign debts and engagements (which must probably be understood to be a reference to financial engagements).1267 (2) Reservations ratione temporis The most frequent exclusion ratione temporis concerns disputes that arose prior to the date when the declaration was deposited, or disputes arising from facts or situations dating from prior to that date;1268 or subsequent to a particular date mentioned in the

  Declaration of 1 August 1980.   Declaration of 22 September 1977. 1256   Declaration of 18 January 1972. 1257   Declaration of 10 May 1994. 1258   Additional note to the declaration of 6 December 1966, dated 2 September 1983. 1259   Declaration of 25 March 1996. 1260   Declaration of 28 May 2004. 1261   Declaration of 19 September 1957. 1262   Declaration of 25 February 2005. 1263   Declaration of 6 December 1966. 1264   Declaration of 23 September 1968. 1265   Declaration of 18 September 1974. 1266   Declaration of 24 September 1929. This reservation was the subject of an objection by Costa Rica dated 9 January 2002. 1267   Declaration of 25 March 1996. 1268   Spain, Declaration of 29 October 1990; Declaration by Finland, 25 June 1958; India, Declaration of 18 September 1974; Luxembourg, Declaration of 15 September 1930; Mexico, Declaration of 28 October 1947. Paraguay excludes only those disputes that arose prior to the date the declaration was signed: Declaration of 25 September 1996; Senegal, Declaration of 2 December 1985 (exception for disputes arising prior to the declaration); Slovakia, Declaration of 28 May 2004 (exception for disputes arising prior to signature of the declaration); Somalia, Declaration of 11 April 1963. 1254 1255

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declaration.1269 Sometimes the specific date is the date on which the declaring State achieved independence – as, for example, in the case of Nigeria.1270 ‘Twelve month’ reservation. The Court’s jurisdiction has in some cases been excluded if the ‘acceptance of the Court’s compulsory jurisdiction on behalf of any other party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court’.1271 Here, the declaring State is fore-arming itself against surprise attacks, such as occurred in the case of the Right of passage over Indian territory, 1957–60. Other States have made the same reservation.1272 (3)  Reservations ratione personae A reservation of this type used frequently to be found in the declarations made by States of the Commonwealth. They reserved, between themselves, the primacy of procedures they had agreed upon, that is, procedures internal to the Commonwealth (in particular appeals to the Privy Council in London).1273 This reservation can still be found in a few declarations: Barbados,1274 Canada,1275 the Gambia,1276 India,1277 Kenya,1278 Malta,1279 Mauritius,1280 the United Kingdom of Great Britain and Northern Ireland.1281 In addition, one often finds a personal reservation hidden among conditions that seem to relate to subject matter, as the following examples show. Reservation as regards a ‘single dispute’. A whole series of reservations have sought to exclude jurisdiction vis-à-vis any State which has accepted the Court’s jurisdiction only 1269   Declaration by Belgium of 17 June 1958, the critical date being 13 July 1948; Japan, Declaration of 9 July 2007, the critical date being 15 September 1958, inclusive; the Netherlands, Declaration of 1 August 1956, the critical date being 5 August 1921; Poland, Declaration of 25 March 1996, the critical date being 25 September 1996; Portugal, Declaration of 25 February 2005, the critical date being 26 April 1974, excepting disputes as to territorial rights or titles, or as to sovereign rights or a sovereign jurisdiction; the United Kingdom of Great Britain and Northern Ireland, Declaration of 5 July 2004 with a critical date of 1 January 1974; Sudan, Declaration of 2 January 1958, the critical date being 1 January 1956; Sweden, Declaration of 6 April 1957, the critical date being 6 April 1947. 1270   Declaration of 30 April 1998. 1271   Germany, Declaration of 1 May 2008. 1272   Australia, Declaration of 22 March 2002; Bulgaria, Declaration of 24 June 1992; Cyprus, Declaration of 3 September 2002; Spain, Declaration of 29 October 1990; Hungary, Declaration of 22 October 1992; Japan, Declaration of 9 July 2007; India, Declaration of 18 September 1974 (with one variation: ‘or where the acceptance of the Court’s compulsory jurisdiction on behalf of a party to the dispute was deposited or ratified less than 12 months prior to the filing of the application . . .’); Malta, Declaration of 6 December 1966; Mauritius, Declaration of 23 September 1968; Nigeria, Declaration of 30 April 1998; New Zealand, Declaration of 22 September 1977; Philippines, Declaration of 18 January 1972; Poland, Declaration of 25 March 1996; Portugal, Declaration of 25 February 2005; United Kingdom of Great Britain and Northern Ireland, Declaration of 5 July 2004; Slovakia, Declaration of 28 May 2004; Somalia, Declaration of 11 April 1963. 1273   See, eg the Declaration of the UK dated 19 September 1929, reproduced in Hudson, above n 1094, 689. This formula was used in identical terms in the declarations of other Commonwealth Members, Australia (ibid, 683), Canada (ibid, 685), India (ibid, 692), New Zealand (ibid, 696) and South Africa (ibid, 699). 1274   Declaration of 1 August 1980. 1275   Declaration of 10 May 1994. 1276   Declaration of 22 June 1966. 1277   Declaration of 18 September 1974. 1278   Declaration of 19 April 1965. 1279   Declaration of 6 December 1966. 1280   Declaration of 23 September 1968. 1281   Declaration of 5 July 2004.



CONSENSUAL JURISDICTION 471

over a particular dispute brought before the Court1282 or certain particular disputes brought before it.1283 These reservations insist on a minimum of substantive reciprocity in the declarations, and in a sense ‘punish’ a State which has accepted the Court’s jurisdiction on a basis which is only quite a narrow one. Such a State is prevented from bringing suit against other States across a whole range of highly diverse situations, while itself accepting the jurisdiction only on the narrowest imaginable basis, that is, in relation to one (or several) specific cases before the Court. This reservation does not seem to apply in the case of Egypt, which has accepted the Court’s jurisdiction only as regards certain agreements relating to the Suez Canal. Egypt has indeed restricted the Court’s jurisdiction to a particular question, but not to a particular dispute. Reservation as to ‘recognition’. Some reservations exclude the Court’s jurisdiction as regards States which the declaring State does not recognise or with which it does not have diplomatic relations. Under Djibouti’s reservation, the Court does not have jurisdiction over disputes ‘with the government of any State with which, on the date of an application to bring the dispute before the Court, the Government of Djibouti has no diplomatic relations or which has not been recognized by the Government of Djibouti’.1284 Nigeria has a reservation which contains a more sweeping exclusion of disputes with States with which it does not have diplomatic relations.1285 An unusual reservation is to be found both in the declaration of Djibouti1286 and also in some others:1287 it excludes the Court’s jurisdiction vis-à-vis States and territories which are not sovereign. Broadly-speaking, this is legally unnecessary, since the Court cannot in any event have jurisdiction in such cases (Article 34, § 1 of the Statute). A ‘State’ which is not sovereign is not a State at all in the sense of modern international law. The reservation is made ex abundante cautela and is an attempt to be fore-armed against any extensive interpretation of the word ‘State’ in Article 34, paragraph 1. (4) Reservations ratione loci This type of reservation is usually made in respect of areas which have some special status. In particular, it is used to exclude the Court’s jurisdiction over disputes in relation to certain maritime areas, for example fisheries and conservation measures in the NAFO Regulatory Area of the North-West Atlantic.1288 The same goes for the exclusion of disputes regarding maritime zones (see above).

1282   Germany, Declaration of 1 May 2008; Australia, Declaration of 22 March 2002; Bulgaria, Declaration of 24 June 1992; Cyprus, Declaration of 2 September 2002; Japan, Declaration of 9 July 2007; India, Declaration of 18 September 1974; Nigeria, Declaration of 30 April 1998 (probably, the formulation being unclear); Slovakia, Declaration of 28 May 2004; Somalia, Declaration of 11 April 1963. 1283   Spain, Declaration of 29 October 1990 (disputes in respect of which another mode of settlement has been chosen); Hungary, Declaration of 22 October 1992 (idem); New Zealand, Declaration of 22 September 1977 (idem); Malta, Declaration of 6 December 1966 (disputes as defined in the declaration); Mauritius, Declaration of 23 September 1968 (idem); Philippines, Declaration of 18 January 1972 (idem); United Kingdom of Great Britain and Northern Ireland, Declaration of 5 July 2004 (idem). 1284   Declaration of 2 September 2005. See, in identical terms, India, Declaration of 18 September 1974. 1285   Declaration of 30 April 1998. 1286   Declaration of 2 September 2005. 1287   For example, India, Declaration of 18 September 1974. 1288   Canada, Declaration of 10 May 1994.

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The Egyptian Declaration. In some situations, a State will participate in the system of the optional clause without accepting any general jurisdiction of the Court and, of course, without gaining reciprocal benefit either. In such a case it will not formulate a declaration accepting the jurisdiction generally, and then reduce its scope by means of reservations, but will instead deposit a special declaration in which it accepts jurisdiction only in a precisely defined field. In reality, what we have here is a background in which the Court’s jurisdiction is generally denied, but an exception is made in the form of a single window, through which the Court’s jurisdiction can, in appropriate circumstances, be introduced. Egypt’s declaration is of this kind. It reads as follows: [the] Government of the Republic of Egypt accept as compulsory ipso facto, on condition of reciprocity and without special agreement, the jurisdiction of the International Court of Justice in all legal disputes that may arise under the said paragraph 9 of the above Declaration dated April 24, 1957 [relating to the Suez Canal], with effect as from that date.1289

In functional terms, this optional declaration operates in the same way as a compromissory clause in a treaty, to which, hypothetically, all States which are parties to the system of the optional clause under Article 36, paragraph 2 of the Statute are parties. ‘Interpretative’ declarations. Finally, just as with treaties, there are optional declarations on which interpretative declarations or understandings have been engrafted. To the extent that any such declaration does not seek to modify the substance of the obligations accepted by the declaring State, these are not reservations. What they do is to make known the way in which the declaring State wishes a provision to be interpreted, or to operate as reminders about an applicable rule of law; or to say that the State is ready to grant supplemental facilities to persons affected by the norm, or to give expression to a political stance. The crucial point is that such declarations, provided they are purely interpretative and do not amount to true (albeit camouflaged) reservations (in which case the law on reservations would apply to them), in no way alter the substance of the State’s obligations and engagements. They may flesh things out with explanations or additional undertakings, but they do not detract from the provisions of the treaty or the optional clause. The Norwegian declaration is an example.1290 It states, by way of reminder, that the Norwegian restrictions, exceptions and declarations as to the resolution of certain disputes under the United Nations Convention on the Law of the Sea (1982) and under the Agreement on the conservation and management of highly migratory fish stocks (1995) will also apply in the context of cases before the Court under the optional clause. From the legal point of view, these rules and declarations would have been applicable in any event, at least between the parties to the aforementioned treaties.1291 Norway is taking the opportunity here to issue a reminder, and thus to emphasise the importance it attaches to these matters. Summary. To sum up, it can be seen that sovereign States have made active if somewhat corrosive use of their freedom to formulate reservations to their declarations under Article 36, paragraph 2 of the Statute. Certain optional declarations are so heavily laden with restrictions that the tree of jurisdiction seems to be bending under the weight of the excessive number of reservations weighing down its branches. Some commentators are conse  Declaration of 22 July 1957.   Declaration of 24 June 1996. 1291   Given that they are part and parcel of the conventional regimes indicated. 1289 1290



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quently tempted to conclude that the compulsory jurisdiction has been turned into a kind of mirage, suitable only to impress the simple-minded, the idealists, and what the Italians so aptly call acchiappanuvole – the chasers of clouds. Such commentators criticise the fact that States have a seemingly almost total freedom, rather as if they were in a supermarket, to load down their declarative trolleys with the widest imaginable range of reservations. Such reasoning is a natural reflection of the municipal lawyer’s impatience, borne up by much greater confidence in his own system, or of the man in the street, with little knowledge of international relations. Of course, from a certain axiological point of view, there is justice in the criticism.1292 But it is essential to recognise that sovereign States accept the Court’s jurisdiction up to the point they wish to do so, since the jurisdiction is consensual. There is really very little point in postulating a wide-ranging and robust jurisdiction that States are not prepared to accept, and which, if per impossibile it did in fact exist, would be faced with unexecuted judgments. If it were possible to ensure that all the Court’s judgments would be finally carried into execution even against recalcitrant States, one would nevertheless have to face the fact that, in international affairs, forced execution is, in the final analysis, really just heavy sanctions or war. Decisions on forced execution obviously cannot be made lightly; their numbers cannot be multiplied at will. There is little doubt that a certain quiet satisfaction is justified in the fact that certain States do accept at least a certain measure of compulsory jurisdiction (since after all, they are not obliged to do so), and that praise is due to those States that accept the jurisdiction more extensively than others do, in the process setting an example. At the same time, one may very well deplore the frequency with which excessive reservations are made. A measured judgment of this kind is the natural reflection of the modest patience which has to be the hallmark of an internationalist’s behaviour if he wants to do useful work within and for a complex international community that has laws of its own to govern its life and its development. The distinction between reservations and the conditions for the application of the declaration. Reservations to an optional declaration take effect by restricting the Court’s jurisdiction. They are designed to exclude from it certain kinds of dispute. One needs to distinguish between the reservations themselves and the conditions or provisions as to the entry into force of the declaration or as to its modification or withdrawal. Reservations, by their nature, relate to the submission of disputes to the Court, that is, to the substantive obligation entered into by the State at the time of making its declaration. The conditions, by contrast, relate to the duration of the declaration, as an instrument into which the reservations are incorporated. The position of the two is not the same. The field in which the declaration operates is internal to it, and is a material/substantive one. The field in which the conditions operate is external, or formal, so that here we have, so to speak, a contrast between content and container. In the case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility, 1984), the Court, in referring to 1292   It is, however, worth noting the usual contradictions in the mind of the man in the street, with his contempt for the apparent disfunctionality and weakness of these international systems, but who, if allowed to express his view, nevertheless systematically votes in favour of preserving national sovereignty. Obviously one cannot have a strong system of collective security, or a powerful international Court, when no State wants to give up parts of its national sovereignty. The reality is, therefore, that peoples have what they really want: national sovereignty, and the concomitant international anarchy. It is astonishing that they accept this so readily and do not see the connection between these things. If they want sovereignty, that is a respectable choice, but in that case they are not in a position to criticise the weakness of international institutions, because that is precisely what they themselves desire. That is what lies at the heart of the contradiction.

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reciprocity, explained the concept as follows: ‘The notion of reciprocity is concerned with the scope and substance of the commitments entered into, including reservations, and not with the formal conditions of their creation, duration or extinction.’1293 The distinction is made since certain practical consequences flow from it. We will return to this distinction both in the next subsection (dealing with reciprocity) and again when we come to deal with withdrawal from the denunciation of optional declarations. Reciprocity.1294 Reciprocity is not purely concerned with reservations, but informs the whole subject of optional declarations. It seems best, however, to deal with it at this point, because it is a necessary element for the understanding and contextualisation of questions specifically connected with reservations. As we have seen, the Court’s Statute contains a dual reference to reciprocity. The relationship between these two references was neither very obvious nor much clarified at the time the Statute was drafted. The question was left to be worked out as a matter of State practice, and above all through the jurisprudence of the Court and its regulatory activities. The first basis of reciprocity is to be found in Article 36, paragraph 2 of the Statute: ‘in relation to any other State accepting the same obligation’. The second basis is to be found in Article 36, paragraph 3: ‘The declarations referred to above may be made unconditionally or on condition of reciprocity’. The primary objective of paragraph 2 was apparently to guarantee mutuality ratione personae: a State could invoke an optional declaration, and the jurisdiction resulting from it, only against another State which had made a similar declaration, so that the system had to operate on an inter partes basis.1295 The purpose of paragraph 3 seems to have been to enable States, operating within the system, to tie the applicability of their declarations to conditions requiring special reciprocity, for example, a condition that certain other States should also be parties to the system.1296 Some States did indeed fear that, being amongst the first to be parties to the system, they might become guinea pigs for a trial run of ‘extended’ or ‘aggravated’ jurisdiction, from which other States were standing aloof. Another reason for these restrictions was to draw other States into the system, by giving them additional reasons to subscribe to the optional clause – ‘I’ll bind myself if you do, come and join me’. Back in 1920, however, these ideas and trends were neither absolute nor well developed. The regime of the optional clause was completely new, and there were wide-ranging doubts about it. To some extent, the growth of a body of practice reduced these uncertainties. So, for example, the Court’s jurisprudence accepted that mutuality ratione personae was only a relative one. A State which was a party to the system of the optional clause could perfectly well bring suit against a State which was not a party on the basis of Article 36, paragraph 2 of the Statute. If this happened, the Court would not automatically have jurisdiction, because the respondent would not have made a declaration. Nevertheless, the respondent   ICJ Reports 1984, 419, § 62.   As to reciprocity in optional clauses, see in particular, E Brown Weiss, ‘Reciprocity and the Optional Clause’ in LF Damrosch (ed), The International Court of Justice at Crossroads (New York, 1987) 82 et seq.; V Lamm, ‘Reciprocity and Compulsory Jurisdiction of the International Court of Justice’ (2003) 44 Acta Juridica Hungarica 45 et seq.; S Torres Bernardez, ‘Reciprocity in the System of Compulsory Jurisdiction and in Other Modalities of Contentious Jurisdiction Excercised by the International Court of Justice’ in Essays TO Elias (Dordrecht, 1992) 291 et seq. See also Tomuschat, ‘Article 36’, above n 1094, 607–608, 630–31, 633. 1295   Even if during the travaux préparatoires the terminology used was different: see Torres Bernardez, ibid, 298. 1296   This is what Brazil required: cf Hudson, above n 1094, 684; Torres Bernardez, above n 1294, 298. See also Waldock, ‘Decline of the Optional Clause’ above n 1094, 255; Tomuschat, ‘Article 36’ above n 1094, 631. Brazil did not want to submit to the optional clause until the point at which two Permanent Members of the League of Nations Council had done likewise. 1293 1294



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could still accept the Court’s jurisdiction, albeit on an ad hoc basis, via the forum prorogatum. This procedure is now governed by Article 38, paragraph 5 of the Rules. It was also possible to wonder whether a State could completely renounce any question of reciprocity, that is, whether there could be a derogation from the reciprocity provided for in paragraph 2, by virtue of paragraph 3.1297 If a State renounced reciprocity under paragraph 3, would that not mean that the reciprocity of paragraph 2 would likewise no longer apply, at least if that was the stated will of the declaring State? As might have been expected, this supposition was not validated by the practice of States. No State accepted the inequality that would result from agreeing to the compulsory jurisdiction vis-à-vis all other States in the world, whether or not they were parties to the optional clause, without some symmetrical concession by them. Furthermore, the Court interpreted the system as one that based its jurisdiction entirely on reciprocity, a principle closely connected to the principle of consent. Consent is always mutual or reciprocal. And, according to the Court, consent is the ultimate basis of its jurisdiction. Even after the war of 1939–45, leading commentators were still prospecting various possible ways in which reciprocity could be accepted, and in doing so, demonstrating the potential complexity of the concept.1298 One school of thought believed that the concept of reciprocity should be confined to ‘special’ reciprocity, the only kind of reciprocity which was in truth discussed and desired by the draftsmen at the time of the travaux préparatoires. This is reflected in Article 36, paragraph 3 of the Statute, which is the only place where ‘reciprocity’ is mentioned as such. Here reciprocity is designed to make the applicability of a declaration conditional upon one or more given States depositing their own declarations; this is, so to speak, reciprocity reduced to its proper proportion. In functional terms, it works as a suspensive condition. However, in practice the concept has expanded. According to a second school of thought, reciprocity, as embodied in both paragraphs 2 and 3, means that a State is bound by its declaration only as against other States which have made declarations identical to its own. Paragraph 2 does indeed stipulate that jurisdiction arises as against any other State ‘accepting the same obligation’. In this view of things, the Court would not, for example, have jurisdiction as between a State which had subscribed the declaration on an unconditional basis and one which had made reservations. As a matter of law, the least divergence between the two declarations would be sufficient to block jurisdiction. It is easy to see why in practice the Court has not interpreted the Statute in so narrow and formalistic a way, which would have effectively checked the main point of the Article, that is, the establishment of a system of compulsory jurisdiction on as ample a basis as possible. The view of a third school of thought involved seeing reciprocity as anchored only by paragraph 2, and as meaning that the Court has jurisdiction only to the extent that the concrete dispute in question is covered by the two optional declarations. The Court will then have to refer to whichever of the two declarations in question imposes, as regards the subject of the dispute, the narrowest limits to the Court’s jurisdiction (since that narrower field is common to both declarations and thus covered by consent). At that point the Court will consider whether the question falls within those limits. If it does, the Court has consensual jurisdiction; if not, not. The current practice of the Court inclines towards this third view.

 Above.   Dubisson, above n 1094, 163–65.

1297 1298

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In modern times, how is reciprocity understood? There are basically three concepts of it, to which a fourth should be added, albeit its interest is largely a matter of evanescent circumstance. 1) ‘Personal’ mutuality: optional declarations operate ipso facto by giving rise to a perfected jurisdiction in the Court solely as between States which have deposited optional declarations. If a State which has not deposited one brings suit against a State which has, or vice versa, it will be possible to establish jurisdiction only on the basis of some other head of jurisdiction, possibly via the forum prorogatum. In that case, however, the jurisdiction will fall outside the system of Article 36, paragraph 2, and into the scope of Article 36, paragraph 1. If this ‘personal’ mutuality were not required, then the Court’s jurisdiction under Article 36, paragraph 2 would be compulsory ipso facto for all States parties to the Statute (which was proposed at the time of drafting, although in the end the idea was rejected) or would be based on an inequality between States (that is, those having made a declaration and those not having made a declaration being treated alike).1299 A State which had deposited a declaration would not, if this had been the position, have been able to bring suit on the basis of the system against a State which had not done so; whereas a State which had not deposited a declaration would have been able to bring suit, on the basis of the system, against a State which had deposited a declaration. A solution of that kind would have provided a strong disincentive to States’ becoming parties to the system. They would have derived every advantage from holding aloof, because they would in any event have been able to bring cases against States that participated, while at the same time remaining safely reassured that such States could not make them respondents against their will. By not subscribing to the optional clause, States would have had the benefit of the sword, but would not need the shield – receiving, but not giving. It is easy to see why few States would have agreed to subscribe to an obligation of that kind, which would probably have meant that the optional system was stillborn. 2) Material/subject-matter reciprocity : the Court’s consensual jurisdiction is established only to the extent that the Parties to the case, in their respective declarations, have accepted jurisdiction over disputes with the same subject matter. Given the necessity for the two declarations to coincide in this way, logically it follows that the more narrowly-drawn of the two declarations will determine the scope of the Court’s jurisdiction. We will see later how the Court applies this principle. In any event, the Court’s jurisdiction always rests on the consent of the parties, and as a matter of logical necessity is thus bounded and restricted by their declarations. 3) Reciprocal reservations : When the party initiating proceedings on the basis of an optional declaration has made a reservation, as to the Court’s jurisdiction, in connection with its declaration, but the respondent’s declaration contains no such reservation, the respondent is nevertheless able to shield itself ‘by way of reciprocity’, with the reservation in the applicant’s declaration, and may thus be able to decline to defend the merits of the case. Or, more simply, the respondent can raise, for its own advantage, reservations contained not in its own declaration but in the applicant’s one.1300 This   Tomuschat, ‘Article 36’ above n 1094, 607.   The applicant could, obviously, also raise reservations in the respondent’s declaration, but as a general rule it has little inclination to do so, since it is trying to establish the Court’s jurisdiction, not to deny it. Nevertheless, one cannot altogether exclude the possibility that a situation such as arose in the Monetary Gold case (ICJ Reports 1954, 29) may one day arise in relation to optional declarations. It will be remembered that in that case, Italy, 1299 1300



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means that reservations work ‘reciprocally’, a rule derived from the Court’s jurisprudence (see below). It is useful to examine the reasons for this rule. First, the Court wished, so far as was possible, to preserve equality in the positions of States coming before it, and, by extension, as regards the merits of disputes. Here, the principle of equality before the law, fundamental in judicial proceedings, is reinforced by an equally important consideration, namely the principle of the equality of States, which is an important element of State sovereignty. If reciprocity, as discussed here, were not an applicable concept, then the State which had formulated the fewer reservations would be forced to concede a wider jurisdiction to the Court than the State which had formulated more. As respondent to a case brought by a State which had formulated a greater number of reservations, it would not be in a position to raise all the reservations which its adversary might raise, because some of them would not be in its own declaration, and the result might give the Court jurisdiction. If the positions of the parties were reversed, in the same dispute, the same party, now as applicant, would be opposed by the reservations in its opponent’s declaration, and the Court would then not have jurisdiction.1301 There is no equality in this. Of course, it would have been possible to provide that States have sovereign freedom to choose their reservations and that if inequalities result, they do so from the States’ own decisions. It is easy to see, however, why the Court is disinclined to allow such inequalities, far less to increase them, and that its tendency is to reduce them. Second, if there were no rules about reciprocity as between reservations, this would incentivise States to make the most sweeping reservations possible. Knowing that other States might make more extensive reservations than they themselves initially contemplate, States drafting declarations would have every reason to include as many reservations as they possibly could, relating to questions, matters, situations and so on. This would be a ‘race to the bottom’ or, to be more exact, to the lowest common denominator. It goes without saying that an incentive of this kind would be diametrically opposed to the intention underlying the system of the optional clause. Instead of encouraging a measure of compulsory jurisdiction that is as wide-ranging and generous as possible, States would, in practice, be pushed into the exact opposite, giving the Court the narrowest and most restrictive jurisdiction. For these reasons the Court was right to admit this degree of reciprocity, even though it is not provided for in the Statute, as a necessary implication of the reciprocity of the declarations themselves. By adopting this attitude, the Court has been able to preserve the value of the system. 4) Special reciprocity: it is possible for a State to formulate its own special requirements as to reciprocity, requirements deriving not from the Statute but solely from its own optional declaration. Brazil did this in its declaration of 1 November 1921:1302 it accepted which was the applicant, in order to benefit from certain provisions in an agreement, was obliged formally to bring a case before the Court, but at the same time it was in Italy’s interest, hoping, as it did, not to lose the gold, that the Court should not decide the merits. 1301   Example: State A has accepted the Court’s jurisdiction, except as regards sea fisheries. State B has accepted the jurisdiction without any reservation. First hypothesis: State A sues State B about a dispute relating to sea fisheries. If there were no rule about reciprocity as between reservations, the Court would have jurisdiction, because the respondent has not made a reservation relating to fisheries. Second hypothesis: State B sues State A in relation to the same dispute about fisheries. As soon as State A raises its reservation, the Court has no jurisdiction. In relation to the same dispute, as between the same States, and under the same head of jurisdiction, the Court has jurisdiction one way but not the other. 1302   See the text in Hudson, above n 1094, 684.

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the Court’s compulsory jurisdiction under the optional clause subject to the proviso that at least two Permanent Members of the League of Nations Council were also bound by such declarations. At the present time, however, none of the declarations deposited with the UN are subject to conditions of this kind. General reciprocity (see points 1 to 3 above) is based on the Court’s Statute1303 and therefore applies automatically, and on an objective basis. It is unnecessary for a State, when making its optional declaration, to express a reservation for enjoying the benefit of such reciprocity.1304 The operation of the rules on reciprocity, in the sense set out below, thus rests on the objective law of the ICJ. The very numerous references to that reciprocity in so many and various optional declarations reflect only the habits of draftsmen.1305 The formulations draftsmen use are usually copied from previous declarations – yet another example of the formidable power of sheer inertia. From the legal point of view, however, such references are only declaratory, and do not in themselves have an operative or constitutive effect. They are included only ex abundante cautela, and do not create any new rights. General reciprocity is one of the dominant features of the whole system, derived from the principles of consensual jurisdiction and procedural equity – principles which, in their turn, are based in the requirement of good faith in Article 2, paragraph 2 of the UN Charter. The same cannot be said, however, of special reciprocity. This does not arise from the Statute, and is therefore not part of the objective law of the ICJ. It rests solely on the subjective law created by a State party to the system and therefore, if it is to apply, has to be set out in its declaration. Any interpretation of such a provision in the declaration or an accompanying reservation must, in accordance with the requirements of special reciprocity, be carried out by reading the text in a restrictive spirit (see the subsection below on interpretation). General reciprocity, which, by contrast, does flow from the provisions of the Statute, is probably not a matter of imperative law (jus cogens), so that a State can renounce it, either unilaterally or by agreement.1306 In this way a State could accept the Court’s compulsory jurisdiction even against States which had not made the same declaration; it could renounce, in advance, the right to invoke reservations reciprocally, and so on. However, it is easy to see why no State is inclined to do that. Nevertheless, it is possible to ask whether the equality of States and the overall fairness of the procedure (connected as they are to Article 2, § 2 of the UN Charter) do not militate in the contrary sense, leading to the supposition that general reciprocity is a matter of imperative law. If the good and proper administration of justice is in fact dependent on the operation of the reciprocity principle, States will not be able to dispense with it, since by doing so they would affect not only their own legal positions, which they are perfectly free to do, but also the proper functioning of the Court, which they are not. One may also ask whether this would not also amount to an attempt at derogation – impermissible derogation – from provisions of the Statute, given that reciprocity is contemplated in paragraphs 2 and 3 of Article 36. However, paragraph 3   It is inherent in Art 36, §§ 2 and 3 of the Statute.   That is the strongly dominant view: Tomuschat, ‘Article 36’, above n 1094, 633. Also Hudson, above n 1094, 465; Fachiri, The Permanent Court, above n 1157, 96–97; Dubisson, above n 1094, 165; Waldock, ‘Decline of the Optional Clause’, above n 1094, 254; Rosenne, above n 1094, 387; Briggs, ‘Reservations’, above n 1155, 267. For a more sceptical view, see E Hambro, ‘The Jurisdiction of the ICJ’ CCHAIL, vol 76, 1950-I, 184–85. 1305   The most usual formula is: ‘recognises as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court’, or an equivalent formulation. 1306  These seems to be the attitude of Hambro, ‘Some Observations’, above n 1160, 136; Hambro, ‘The Jurisdiction of the ICJ’, above n 1304, 185. 1303 1304



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does allow States to dispense with reciprocity.1307 The question is whether paragraph 3 covers the general reciprocity (personal and material) of paragraph 2. Several interpretations are both possible and plausible here. The essential point seems to be that the good and proper administration of justice, and the equality of States before the Court, are not affected by a voluntary exclusion (or indeed limitation) of reciprocity. Such exclusion affects States’ legal positions only as regards seising the Court, and as regards the scope of the Court’s jurisdiction. It does not affect their procedural positions before the Court. As soon as one admits the hypothesis that limitations on equality as to seising the Court are voluntary, the Court can accept them, given that the Court’s actual functioning is not itself put in issue. It is accepted that seising the Court is one thing, the administration of justice another.1308 It must, however, be admitted that this question has no practical implications at the present time, and that may very well remain the position in the future. What does the Court’s jurisprudence have to say about statutory or general reciprocity? The requirements of such reciprocity were first examined towards the end of the PCIJ period, when cases were brought to the Court on the basis of the optional clause. The reciprocity of reservations was first examined by the PCIJ in the Moroccan Phosphates case (Preliminary Objections, 1938). In that case, the Court accepted a reservation restricting the Court’s competence which was included in the respondent’s declaration. The Court allowed it to apply as between the parties even if it was not reciprocated in the applicant’s declaration. In the circumstances of the case, it was not for the respondent to reciprocally raise a reservation from the applicant’s declaration, but simply a matter of saying that the respondent could raise a reservation contained in its own declaration, because it also applied as between the parties. To justify this limited effect of reciprocity the Court said: This declaration [by Italy] does not contain the limitation that appears in the French declaration concerning the situations or facts with regard to which the dispute arose; nevertheless, as a consequence of the condition of reciprocity stipulated in paragraph 2 of Article 36 of the Statute of the Court, it is recognized that thus limitation holds good as between the Parties.1309

Here we have a reservation reciprocity with minimal effects that result simply from its being available to be invoked. The converse situation, and legally a more interesting one, came up in the case of the Electricity Company of Sofia and Bulgaria (Preliminary Objections, 1939). In that case, a reservation in the declaration of the applicant (Belgium) was invoked for its own benefit by the respondent (Bulgaria). In this case then, one had a State raising a reservation that was to be found, not in its own optional declaration, but in its opponent’s one. The Court held that it could be invoked by the respondent, reciprocity requiring that the totality of the reservations in the two declarations should apply as between the parties: Although this limitation does not appear in the Bulgarian Government’s own declaration, it is common ground that, in consequence of the condition of reciprocity laid down in paragraph 2 of Article 36 of the Court’s Statute and repeated in the Bulgarian declaration, it is applicable as between the Parties.1310 1307   ‘The declarations referred to above may be made unconditionally or on condition of reciprocity . . .’ (italics added). 1308   Nottebohm case (Preliminary Objection), ICJ Reports 1953, 122. The Court insisted on the fact that, unlike in respect of seising the Court, which remains within the domain of the parties, the administration of justice is governed by the Statute and the Rules, ie by the objective law of which the Court itself is the guardian. 1309   PCIJ, Series A/B, no 74, 22. 1310   PCIJ, Series A/B, no 77, 81.

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In this case, reciprocity in a sense transfers the contents of the parties’ reservations into a common legal space, as if this were provided for by an agreement between them. The ICJ has followed this jurisprudence. The right to rely on one’s opponent’s reservations was accepted in truly exemplary fashion in the Norwegian loans case (1957). Norway, the respondent, had invoked a reservation in the declaration of France, the applicant.1311 The Court said this: In accordance with the condition of reciprocity to which acceptance of the compulsory jurisdiction is made subject in both Declarations and which is provided for in Article 36, paragraph 3 of the Statute, Norway, equally with France, is entitled to except from the compulsory jurisdiction of the Court disputes understood by Norway to be essentially within its national jurisdiction.1312

In the Interhandel case (1959), the Court was again just as clear on this point: Reciprocity in the case of Declarations accepting the compulsory jurisdiction of the Court enables a Party to invoke a reservation to that acceptance which it has not expressed in its own Declaration but which the other Party has expressed in its Declaration.1313

The Court returned to questions of general reciprocity on subsequent occasions, notably in the cases of the Right of passage over Indian territory (Preliminary Objections, 1957),1314 Interhandel (Preliminary Objections, 1959),1315 Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility, 1984)1316 and Land and maritime boundary between Cameroon and Nigeria, 1998).1317 We shall return to some of these judgments below. The most interesting aspects of the above jurisprudence are as follows: 1)  ‘Coincidence theorem’. The Court has emphasised the material ‘coincidence’ of the declarations as the basis of its consensual jurisdiction. In the Norwegian loans case (1957), it put the point as follows (the formulation was to be frequently repeated thereafter, but with variations): in the present case the jurisdiction of the Court depends upon the Declarations made by the Parties in accordance with Article 36, paragraph 2 of the Statute on condition of reciprocity; and that, since two unilateral declarations are involved, such jurisdiction is conferred upon the Court only to the extent to which the Declarations coincide in conferring it. A comparison between the two Declarations shows that the French Declaration accepts the Court’s jurisdiction within narrower limits than the Norwegian Declaration; consequently, the common will of the Parties, which is the basis of the Court’s jurisdiction, exists within these narrower limits indicated by the French reservation.1318   ICJ Reports 1957, 21. The same argument features in the case of Anglo-Iranian Oil Co, ICJ Reports 1952, 103.   Ibid, 24. France had argued that the fact that it had seised the Court showed that it, France, was convinced that the dispute did not relate to a matter that was essentially within the national jurisdiction, and that this French classification ought to bind Norway too, by a process of reciprocity. The Court rejected this argument. Reciprocity related only to the reservations in a declaration, not to the interpretation of a reservation in concrete circumstances by a party to the case. If it were otherwise, it would suffice for the applicant to give an interpretation of its reservation favourable to itself, and so to nullify all benefit to the respondent of the reciprocity which was its right. That would amount to sterilising the effects of reciprocity. 1313   ICJ Reports 1959, 23. 1314   ICJ Reports 1957, 144–45. 1315   ICJ Reports 1959, 23. 1316   ICJ Reports 1984, 419–21. 1317   ICJ Reports 1998, 298–300. 1318   ICJ Reports 1957, 23. 1311 1312



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The Court’s reasoning here is clear. It has two stages. First, the material contents of a declaration (including the reservations) is, so to speak, projected into a common space, like an agreement between the parties, so that either of them can invoke whichever elements it chooses to select from either of the two declarations. The two unilateral acts are thus merged, through the effects of reciprocity, into a bilateral or (where the case features more than two principal parties) potentially a multilateral one. Next, the Court comes to the logical aspect, which consists of stating that its jurisdiction can exist only on the basis of a ‘coincidence’ between the declarations. If, indeed, the Court’s jurisdiction is a consensual one, then the narrowest terms of the declarations will indicate the maximum extent of the jurisdiction conferred upon it. Consent supposes a common terrain; the declaration which gives the Court the widest jurisdiction will be partly uncovered, since the narrower of the declarations will not extend so far; the only common terrain as the one within which the two declarations coincide, and it is the narrower of the two declarations that defines it. Obviously this way of looking at things presupposes that the declarations cover overlapping terrains. If one of them entirely excludes the terrain opened to the Court by the other, then there is no ‘coincidence’ at all between the declarations, and the Court is automatically devoid of jurisdiction over disputes between the two States on the basis of the optional clause. Both in fact and in law, such States are not materially bound by the Court’s compulsory jurisdiction under the system of the optional clause and in their mutual relations, even though they will remain formally bound to each other unless and until they withdraw their declarations. It must also be emphasised that the decision as to which of the declarations is the narrower one cannot be made in the abstract. One declaration can be narrower than the next on one point, but wider on another. The question has to be decided in a concrete perspective, based on the material submitted by the applicant for the attention of the Court, or, reciprocally, submitted by the respondent. That is also the reason, as we shall see, why reciprocity can be adjudicated upon only after the Court has been seised. It is only at that stage that the concrete perspective which needs to be examined (with the request of the applicant and the response of the respondent) will have taken shape. The Court has often returned to this ‘coincidence theorem’. It can, for example, be found, at least in outline, as early as the Anglo-Iranian Oil case (1952)1319 and was repeated in the cases on Fisheries Jurisdiction (Spain v Canada, Jurisdiction, 1998),1320 Land and maritime boundary between Cameroon and Nigeria (Preliminary Objections, 1998)1321 and Legality of the use of force (Orders, 1999).1322 2)  The ‘single beneficiary theorem’. Another important aspect of the Court’s jurisprudence is what one might call the single beneficiary theorem. In the Interhandel case of 1959, the USA advanced an ingenious argument based on the rule of ‘coincidence’ as set out in the Court’s jurisprudence. In its second Preliminary Objection, the USA invoked the principle of reciprocity, to challenge the Court’s jurisdiction on the basis that the USA’s own optional declaration, which had come into force on 26 August 1946, contained a clause limiting the Court’s jurisdiction to disputes which might arise in the future. The USA emphasised that there was no similar limitation in the Swiss declaration, which had come into force on 1319   ICJ Reports 1952, 103 ‘By these Declarations, jurisdiction is conferred on the Court only to the extent to which the two Declarations coincide in conferring it. As the Iranian Declaration is more limited in scope than the United Kingdom Declaration, it is the Iranian Declaration on which the Court must base itself.’ 1320   ICJ Reports 1998, 453, § 44. 1321   Ibid, 298, § 43. 1322   ICJ Reports 1999, 135, § 30, 771, § 25, 836, § 25.

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28 July 1948. On this basis, they argued, the Court should decide its jurisdiction on the narrower basis, in this case the US basis, but should, as a matter of reciprocity, also apply the Swiss critical date, which was 28 July 1948. Since the dispute had arisen prior to that date, they argued, the Court had no jurisdiction. The Court rejected this argument, and relied on the ‘coincidence’ rule. That rule did not operate so as to enable a State interested in undoing or limiting the Court’s jurisdiction to rely on a reservation not contained in the other State’s declaration. Only the State which had more widely accepted the Court’s jurisdiction could, to protect itself, invoke a reservation of the State which had accepted a narrow jurisdiction; not vice versa. The Court put it as follows: Reciprocity enables the State which has made the wider acceptance of the jurisdiction of the Court to rely upon the reservations to the acceptance laid down by the other Party. There the effect of reciprocity ends. It cannot justify a State, in this instance, the United States, in relying upon a restriction which the other Party, Switzerland, has not included in its own Declaration.1323

The ‘coincidence’ or ‘common space’ (bilateralised) is thus doubly restricted. First, it is only possible to invoke reservations that are truly contained in the other State’s declaration; it is not permissible to project onto that declaration, via the principle of reciprocity, a reservation which has not in truth been made. Second, the beneficiary of the reciprocity cannot be a State invoking it in order to avoid the Court’s jurisdiction, but only a State which has accepted a wider jurisdiction and which is seeking to re-establish equality by invoking the reservations of the other State. The purpose of reciprocity is to ensure equality of the parties, and above all to enable the State which has formulated lesser reservations to avoid inequality and thereby avoid being prejudiced. It is therefore not permissible to invoke a combination of one’s own declaration or reservations, and simple data from the opposing State’s declaration. The problem resurfaced in the case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility, 1984). In that case, the USA again tried to advance an argument similar to that put forward in the Interhandel. The USA’s optional declaration contained a stipulation entitling the USA to withdraw it on six months’ notice. The optional declaration of the applicant, Nicaragua, contained no such clause. The USA sought to argue that, absent any restrictive wording, Nicaragua could withdraw its declaration with immediate effect. Consequently, by the operation of reciprocity, the USA claimed the benefit of the same right to withdraw its own declaration with immediate effect, so that the letter of Secretary of State G Schultz, withdrawing the USA’s optional declaration three days before Nicaragua brought the proceedings, should be considered decisive. This reasoning was defective in several ways. The first was that it confused a condition as to the duration of the optional declaration with a material (subject-matter) reservation. The second was that it presupposed that an optional declaration containing no provision as to the length of a notice of withdrawal could take effect immediately. The Court had no difficulty in showing that this was not the case, and that the rule as to a ‘reasonable period of time’ applied.1324 Even applying reciprocity, the USA should consequently have allowed a reasonable time to elapse from the moment of withdrawal, and three days was obviously not long enough. Third, the USA’s argument ran counter to the fact that reciprocity is applicable only from the moment the Court is seised, and between parties to a concrete case (see below, 3). There is no ‘pre-seisin’ reciprocity. At the pre-seisin stage reciprocity would, in   ICJ Reports 1959, 23.   ICJ Reports 1984, 420, § 63.

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any event, have to be multilateral and inchoate, and not an inter partes reciprocity, which is the only kind admitted by the Statute. Fourth, the USA’s argument ran up against the theorem that we are considering here: the USA was projecting a ‘reservation’ into the Nicaraguan declaration (a reservation which was not actually there), and was claiming to rely on it against a State (Nicaragua) which had not accepted the Court’s jurisdiction in terms narrower than its own. The Court stated, by way of reminder, that: It appears clearly that reciprocity cannot be invoked in order to excuse departure from the terms of a State’s own declaration, whatever its scope, limitations or conditions. . . . Reciprocity enables a State which has made the wider acceptance of the jurisdiction of the Court to rely upon the reservations to the acceptance laid down by the other party. There the effect of reciprocity ends.1325

In the face of this situation, which legally is very clear indeed, it is difficult not to be greatly astonished that three of the judges considered the USA’s argument to be well founded.1326 The Court subsequently referred with approval to the above theorem, in general terms, in the case of the Land and maritime boundary between Cameroon and Nigeria (Preliminary Objections, 1998).1327 3)  Rejection of ‘pre-seisin’ reciprocity. A particular problem that is bound to come up is to know at what point reciprocity in relation to reservations comes into play. The general rule is that the existence of the same obligation (coincidence in the substance of the declarations) is assessed, and that reservations in the declaration of the other party come into play, at the moment when the Court is seised of the case by the lodging of the application. These steps cannot be taken prior to that time, because the reciprocity of the Statute in relation to reservations operates on an inter partes basis. It is designed to place the relationship of the parties to the case on a footing of equality. Conversely, it does not exist to create reciprocity erga omnes on an inchoate basis between all the States that are parties to the system of the optional clause, so as to permit a State to select, in advance, any declaration whatever so that, by way of reciprocity, that State achieves favourable terms in relation to any question connected with the State’s own declaration. Reciprocity is not a kind of supermarket in which one shops for detached documents, arranged on hypothetical shelves housing all the declarations outstanding from all over the world. This question first arose in the case on the Right of passage over Indian territory (Preliminary Objections, 1957). Portugal began its proceedings immediately after India deposited its declaration, but Portugal had previously attached the following condition to its own optional declaration: The Portuguese Government reserves the right to exclude from the scope of the present declaration, at any time during its validity, any given category or categories of disputes, by notifying the Secretary-General of the United Nations and with effect from the moment of such notification.1328

First of all, India argued that this condition introduced complete uncertainty into the declaration as to reciprocal rights and obligations. This uncertainty was incompatible with the reciprocity recognised by the Statute. Also, India said, the precipitate nature of the   Ibid, 419, § 62.   Separate Opinion of Judge Oda, ibid, 511; Separate Opinion of Judge Jennings, ibid, 545 et seq.; Dissenting Opinion of Judge Schwebel, ibid, 616 et seq. 1327   ICJ Reports 1998, 298–99. 1328   ICJ Reports 1957, 141. 1325 1326

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Portuguese application deprived India of the opportunity of itself claiming, via the operation of reciprocity, the right to exclude from the Court’s jurisdiction a particular category of disputes. In short, India argued that there was a procedural unfairness in that Portugal would enjoy a more advantageous position, incompatible with mutuality, equality and reciprocity. It might at any time exclude the Court’s jurisdiction over this or that dispute, while India did not have the right to do the same because the application had been so precipitously presented to the Court. The Court rejected this argument, based primarily on the argument that reciprocity remains unaltered once the Court has been seised – and that at that point one identifies the proper field within which reciprocity operates.1329 Indeed, once the Court has been seised, no subsequent modification can affect the case already begun, since jurisdiction is established as at the moment the application is made to the Court. In relation to the title of jurisdiction thus established, the respondent enjoys full reciprocity. It can invoke, for its own benefit, reservations in the applicant’s declaration, in exactly the same way as the applicant. As for surprise attacks, the Court stated, by way of a reminder, that at any time a new State can so to speak ‘arrive’ and become party to the system. States that are already parties to the system must hope that it will develop and grow ever larger. Obviously a further question that arises is whether a declaration can be withdrawn or modified with immediate effect. This question, however, has nothing to do with reciprocity and will therefore be considered separately, at a later point. The question preoccupying us here was posed again, in a more acute way, in the case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility, 1984). The USA claimed to be able to base its position, by way of reciprocity, on the right claimed by Nicaragua to withdraw its optional declaration with immediate effect, even though the declaration contained no clause indicating that this could be done. The USA argued that consequently the US withdrawal of its own optional declaration in the Schultz letter, three days before the Nicaraguan application was delivered to the Court, must be considered valid. The USA claimed, by reciprocity, the benefit of the right to withdraw with immediate effect, and thus not to have to respect the provision in its own declaration which required six months’ notice. The Court rejected this argument. It was a defective argument because, as we have seen, first, Nicaragua could not in fact withdraw its own declaration with immediate effect, since the rule requiring reasonable notice applied. The US argument failed for a further reason: because reciprocity was here being transferred to the temporal plane prior to the moment the Court was seised, which is not allowed. The Court put this point as follows: The Court would also recall that in previous cases in which it has had to examine the reciprocal effect of declarations made under the Optional Clause, it has determined whether or not the ‘same obligation’ was in existence at the moment of seising the Court, by comparing the effect of the provisions, in particular the reservations, of the two declarations at that moment. The Court is not convinced that it would be appropriate, or possible, to try to determine whether a State against which proceedings had not yet been instituted could rely on a provision in another State’s declaration to terminate or modify its obligations before the Court was seised. The United States argument attributes to the concept of reciprocity, as embodied in Article 36 of the Statute, especially in paragraphs 2 and 3, a meaning that goes beyond the way in which it has been interpreted by the Court, according to its consistent jurisprudence. That jurisprudence supports the view that a determination of the existence of the ‘same obligation’ requires the presence of two parties to a case, and a defined issue between them, which conditions can only be satisfied when proceedings   Ibid, 143–44, 147–48.

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have been instituted . . . The coincidence or interrelation of those obligations thus remain in a state of flux until the moment of the filing of an application instituting proceedings. The Court has then to ascertain whether, at that moment, the two States accepted ‘the same obligation’ in relation to the subject-matter of the proceedings; the possibility that, prior to that moment, the one enjoyed a wider right to modify its obligation than did the other, is without incidence on the question.1330

Anyway, to admit the concept of pre-seisin reciprocity would be to enlarge considerably the scope of reciprocity under the Statute, and would enable States to engage in a very wide range of manipulations with a view to avoiding the Court’s jurisdiction. The Court cannot be blamed for rejecting the idea. The opinions of the minority of judges who disputed this viewpoint do not appear to rest on very solid foundations. Thus the eminent English Judge Jennings stated: In this climate it would in my view be as impracticable as it would be inequitable to hold that a State whose declaration, like that of the United States, is expressed as subject to six months’ notice, is bound by that statement of intention in respect of all comers, including those very many States which have declined to risk even a potential liability to jurisdiction . . .1331

For this reason he thought that the concept of pre-seisin reciprocity needed to be accepted.1332 That line of argument is, to say the least, an adventurous one. It is difficult to see how it could be possible to make a direct comparison between the situation of States that are parties to the system of the optional clause and States that are not. That is certainly not the meaning and sense of reciprocity. According to the logic of Judge Jennings, States that are parties to the system would have to be allowed to do anything they wished, including the disregarding of engagements they had solemnly entered into, simply because other States, not parties to the system, are entirely free in relation to the Court and thus have more extensive ‘rights’ to do as they like, to submit or refuse to submit to the Court’s jurisdiction by special agreement, and so on. This would seem to project reciprocity not just onto all States parties to the system of the optional clause, but onto all the States of the world. This was an unprecedented proposal. The eminent Japanese Judge Oda, for his part, posed the following rhetorical question: [I]s it reasonable or equitable to allow a party which, as a Respondent, is free to escape at any time from the compulsory jurisdiction of the Court to take advantage, as an Applicant, by imposing upon the other party the burden of inescapability, which it does not itself bear?1333

of course his answer was ‘no’.1334 Certainly, one can retort that the USA had freely undertaken to give six months’ notice, and that there was no apparent reason why it should subsequently have the right to free itself from that undertaking via the operation of reciprocity: but that is not the essential point. Judge Oda was basing his criticism of the Court’s judgment on a false premise. In effect, he was saying that Nicaragua could ‘escape at any time from the compulsory jurisdiction of the Court’, and that was where he thought the   ICJ Reports 1984, 420–21, § 64.   Ibid, 548. 1332   Ibid, 549. 1333   Ibid, 511. 1334   Ibid. The argument is already to be found in Waldock, ‘Decline of the Optional Clause’, above n 1094, 278–79, but in abstract terms based on the supposition that the applicant’s declaration is really capable of being withdrawn with immediate effect. In our sense, that argument – certainly admissible in these terms – argues against the law of the Court’s allowing declarations to be withdrawn with immediate effect. On this question, see below. 1330 1331

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evil lay: Nicaragua could withdraw with immediate effect, the USA only on giving six months’ notice; the State which had accepted the Court’s jurisdiction on the wider basis was trapped, to the advantage of the State which had accepted the jurisdiction on the narrower basis. But this is, quite simply, not an exact comparison. The Court did indeed state, in the clearest possible terms, that Nicaragua could not withdraw its declaration with immediate effect, and that it could do so only after a reasonable notice period.1335 One can either agree or disagree with that statement by the Court; what one cannot do, however, is to ignore it altogether. In the eyes of the Court, the evil was eliminated by a levelling-up process: neither Nicaragua nor the USA could withdraw its declaration with immediate effect. This interpretation is, from every point of view, sounder and more solidly based than an interpretation which allows withdrawals with immediate effect. In short, then, the Court is right to reject the concept of pre-seisin reciprocity. 4)  Reciprocity unaffected by a ‘surprise attack’. As we shall see later, the deposit of a new optional declaration ipso facto brings with it the possibility of seising the Court of a dispute without the need for any particular delay. The new declaration takes effect at once. This means that a surprise attack is a possibility: a State can deposit its declaration and simultaneously or immediately afterwards seise the Court of a dispute. In the case on the Right of passage over Indian territory (Preliminary Objections, 1957), India argued that such a right was contrary to the principle of reciprocity, and that the applicant’s conduct should be sanctioned by the Court’s refusing to accept jurisdiction. The Court rejected this argument.1336 Equality and reciprocity are not affected by the fact that States may institute proceedings suddenly and without warning. Any State must expect other States, in ever-growing numbers, to participate in the system of the optional clause – that, indeed, is the whole point of the system. As and when a case is brought to the Court, the Respondent enjoys perfect equality and reciprocity, because it can invoke all the reservations in the applicant’s declaration. This jurisprudence was confirmed in the case of the Land and maritime boundary between Cameroon and Nigeria (Preliminary Objections, 1998).1337 The Court refused to give the mention of reciprocity in the Nigerian declaration a special meaning going beyond the meaning of the Statute, so as thereby to give it a purported ‘useful effect’. Nigeria claimed that the reference to reciprocity in its declaration was intended to modify the effects of the Right of passage jurisprudence, so that it had wished, in its declaration, to make the requirements of reciprocity stronger reason than they are in the Statute. The Court, however, fully reconfirmed its jurisprudence of 1957. It rejected the Nigerian argument, and rightly so, given that the stipulation in the Nigerian declaration as to reciprocity in no way differed from the formula in so many other optional declarations. A special meaning would have had to be established either in the text of the declaration or by other means of concrete proof, but both elements were entirely lacking. In short, the fact of bringing a case before the Court, and the modalities of seisin, are not questions referable to the reciprocity of the Statute. The reciprocity of the Statute affects only the parties’ legal positions once the Court has been seised of their dispute. One other aspect of reciprocity ought to be mentioned at this point, even though it has never given rise to a judgment of the Court. Security Council Resolution 9, of 15 October 1946, opening the Court to States which are not parties to the Statute, contains the follow  Ibid, 420, § 63.   ICJ Reports 1957, 145–47. 1337   ICJ Reports 1998, 291 et seq., 298–300. 1335 1336



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ing wording as to the general declarations by which such States can submit to the Court’s jurisdiction: A State, in making such a general declaration, may, in accordance with Article 36, paragraph 2, of the Statute, recognize as compulsory, ipso facto and without special agreement, the jurisdiction of the Court, provided, however, that such acceptance may not, without explicit agreement, be relied upon vis-à-vis States parties to the Statute which have made the declaration in conformity with Article 36, paragraph 2 of the Statute of the International Court of Justice.

This excludes reciprocity between the declaration of a State which is not a party to the Statute and the declarations of States which are. The Security Council had no wish to permit a State which was not a party to the Statute to enjoy all the advantages of the optional system on the cheap, without ratifying or acceding to the Statute. Understood in the sense, this passage merits approbation. It gives States an incentive to become parties to the Statute rather than abstaining from doing so. The perfect equality of the system is, after all, due only to States parties, not to other States. However, this provision, which as noted previously, is ambiguous in its drafting, has been interpreted as probably also meaning that a State which has subscribed a declaration as contemplated in the Resolution would not be able to profit by way of reciprocity from reservations included in the declaration of a State which is a party to the Statute.1338 Reciprocity as to reservations would thus also be excluded. It follows that there would be inequality between the two parties to the case (even though this ‘seems no longer to be justifiable’).1339 However, there is nothing to make such an interpretation inevitable. It ought to be avoided precisely in so far as it creates an inequality within an actual case before the Court. It is incompatible with the fundamental principle of equality before the Court. The Statute specially recognises this principle in the present context in Article 35, paragraph 2, in the words ‘but in no case shall such conditions place the parties in a position of inequality before the Court’ (italics added). The Security Council has no power to derogate from this provision. Article 103 of the Charter does not apply to the Statute of the Court which is an integral part of the Charter. If only for that reason, the Security Council Resolution ought to be interpreted as not intending to depart from this requirement of the Statute (an argument in favorem validitatis). But it is not even necessary to go that far. It seems obvious that the Security Council only wished to limit reciprocity as regards the right mutually to invoke the compulsory jurisdiction of the Court as between States that are parties to the Statute (and to the system of the optional clause) and States which are not parties to the Statute. The Security Council did not intend to limit the equality of parties before the Court, once it was seised. The first sentence of Resolution 9 is testimony to that: ‘In virtue of the powers conferred upon it by Article 35, paragraph 2, of the Statute of the International Court of Justice, and subject to the provisions of that Article . . .’ (italics added). Equality of the parties before the judges was thus guaranteed, this part of Article 35, paragraph 2 being reserved. Given that reciprocity in relation to reservations is an integral part of the equality of parties before the Court, guaranteed by Article 35, § 2, one must conclude that its application is neither excluded nor limited in the slightest by the restrictive terms of Resolution 9 cited above. Interpretation of reservations. Quite often a State invokes a reservation in its optional declaration or in the optional declaration of the opposing party (by way of reciprocity) in order   Dubisson, above n 1094, 139.   Ibid, 167 (our translation).

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to decline the Court’s competence. Sometimes the terms of the reservation are quite plain and no difficulties arise. The Court can more or less confine itself to accepting the contention of the State which raises the objection. Those are the easy cases. But it would be a mistake to think that an Applicant State should never bring a case to the Court simply because a reservation, being one that fairly obviously does apply, affects the issue it wants to raise before the Court. The respondent is entitled not to raise its own reservation by way of objection, and thus to give rise to a kind of quasi- forum progatum. For this reason, it would also be wrong to assume that an applicant proceeding in this way is behaving recklessly or abusing the process. In other situations it is less clear that a particular reservation does in fact apply in the circumstances of a dispute that has arisen. In such situations, it is for the Court to engage in a much more elaborate process of interpretative reasoning, in order to determine the meaning and scope of the reservation. These are the hard (or at least harder) cases. Independently of interpreting particular reservations in specific circumstances, the Court has also had to develop certain specific rules and principles as guides to the interpretation of these optional declarations and the associated reservations, since after all they are legal acts of a sui generis nature, formally unilateral, but with bilateralised effects. The law on the interpretation of optional declarations and reservations must, on the other hand, be analysed in a more detailed way, because it is the key to unlocking potentially large numbers of concrete situations. For that reason, we will take that analysis first, before considering the examples of how the rules have been applied in particular cases. In essence, the interpretation of declarations and the accompanying reservations must be carried out according to the ordinary rules of interpretation, as codified in Articles 31 to 33 of the 1969 Vienna Convention on the Law of Treaties.1340 The initial point of reference is the ordinary meaning of the words used, but a more marked emphasis is then given to the will of the declaring State than is the case in treaty interpretation.1341 In this way, inter1340   Case on Fisheries Jurisdiction (Spain v Canada), ICJ Reports 1998, 453, § 46, containing the following cautionary words: ‘The Court observes that the provisions of that Convention [the 1969 Vienna Convention on the Law of Treaties] may only apply analogously to the extent compatible with the sui generis character of the unilateral acceptance of the Court’s jurisdiction.’ As to Arts 31–33 of the Convention, see among others, O Corten and P Klein (eds), The Vienna Conventions on the Law of Treaties, A Commentary, vol I (Oxford, 2011) 804 et seq. 1341   The interpretation of unilateral acts presents us in raw form with the potentially competing effects of, on the one hand, an enquiry into the declaring State’s true will, and, on the other, the interpretation of a legal document in accordance with the principles of trust and confidence, ie that every legal document must be understood in the manner in which a recipient reasonably could and should understand it. If one should see in such legal acts first and foremost an exercise of will, ie of subjective power, it is only natural that, in interpreting these acts, one must, above all, seek out the true will of the declaring State, and of the declaring State alone. The declaring State is the sole dominus negotii, and it is only its will that counts. On the other hand, if one perceives these acts as messages that can give rise to legitimate expectations and thus place the declaring State under an obligation even going beyond its will, by a kind of estoppel, then in that case the interpretation must be oriented towards the principles of trust and confidence, as they exist in municipal contract law. As T Franck puts it: ‘[An] intention cannot be determined solely by reference to the speaker’s state of mind but must also take into account that of the listeners.’ And he adds ‘if a state speaks, through an ostensible agent, and the statement contains an express commitment to a course of conduct by that state, it should not be necessary to inquire whether the state intends to be bound but merely whether other States with an interest at stake could reasonably assume that the statement constituted a commitment’ (TM Franck, ‘Word Made Law: The Decision of the International Court of Justice in the Nuclear Test Cases’ (1975) 69 AJIL 616). Finally, there is a possible middle way, affirming that unilateral legal acts must be interpreted according to the same principles as treaties (especially according to the ordinary meaning, if any, of the relevant text), and simply leaving a great deal of margin to the means of determining the true will of the declarant, for example, via its internal travaux préparatoires at the time of drawing up the instrument in question. This middle way is the one the Court has chosen for interpreting optional declarations, in contrast to international practice as regards other unilateral acts that do not take place in a bilateral melting-pot. In this latter case, the subjective will of the declarant is the principal criterion of interpretation. Nevertheless, the judges also exam-



CONSENSUAL JURISDICTION 489

pretations take account of the hybrid character of these declarations, formally unilateral but in substance bilateral. In treaty interpretation, the text prevails over the non-expressed will of the treaty parties, the better to ensure legal certainty and the better to satisfy their legitimate expectations. The position with regard to optional declarations is very similar. In this respect, their ‘bilateralisation’ or ‘conventionalisation’ is carried quite far, always in the interests of legal certainty and the reasonable meaning of the words on which the parties to the system can and must rely. Since declarations are unilateral acts, it could have been legitimate to suppose that the will of the declaring State would be the primary factor to be taken into account. But, as in relation to treaties, the ordinary sense of the text comes first. Doubtless it is considered more important because of the fact that the declaration is a written document, and because it is so important that legitimate confidence should be sustained within a system containing so tightly-knit a framework of reciprocities. However, the precise connexity of the text and the will of the declaring State depends on the circumstances of the particular case, the treatment to be given to it evolving with the jurisprudence of the Court. The treatment will never be entirely systematised, given the rich diversity of angular nuance that is characteristic of the Court’s caseload. If the text of the declaration remains the natural point of departure, the Court will possibly be readier than it is in relation to treaty wordings to adjust it in light of evidence of a ‘special meaning’ (by analogy with Article 31, § 4 of the 1969 Vienna Convention on the Law of Treaties), the special meaning being, in this case, the one that the declaring State, and it alone, intended. Once a State claims that it intended a different meaning for the wording of its declaration than that which the text actually suggests, the Court steps in. It carefully analyses the documents to see whether such a particular meaning does indeed reflect the will of the State in question at the time it drew up the declaration (not at the time the Court examines the text, because otherwise it would be too easy to ‘produce’ – albeit in bad faith – the meaning that satisfies the momentary interests of the State concerned). That does not mean, however, that the Court will necessarily give effect to such a particular meaning. It is possible for the Court to state that the interpretation in question is too idiosyncratic to be compatible with a reasonable interpretation of the text, and that elementary considerations of mutual trust and good faith militate in favour of not allowing a State, which ex hypothesi had given very poor expression to its wishes, to gain the point, to the detriment of the other participants in the system of the optional clause, which have relied on the apparent meaning and reasonable interpretation of the declaration. It is now accepted that a restrictive interpretation of optional declarations is not required. Submission to the Court’s jurisdiction is not a matter of an exception to the sovereign freedom of States, so that it must be restrictively interpreted. In the Free Zones case (1932), the PCIJ was still able to state that ‘every Special Agreement, like every clause conferring ine the text of the declaration, if it is in writing. Thus, in the case on the Legal status of Eastern Greenland (1933), the Permanent Court had to consider the famous Ihlen Declaration, from the Norwegian Minister of Foreign Affairs, addressed to his Danish counterpart, unilaterally undertaking not to occupy any part of Greenland in exchange for a similar undertaking on the part of Denmark in relation to the Spitzbergen archipelago. The Court identified criteria enabling it to decide that the undertaking was a binding one, doing so in terms which, in a way, are early evidence of the legal ambiguity subsequently found in the Nuclear tests cases. Was the declaration equivalent to formal recognition? The Court thought not: ‘A careful examination of the words used, as well as of the subsequent developments, shows that M Ihlen cannot have meant to be giving then and there a definitive recognition of Danish sovereignty over Greenland, and shows also that he cannot have been understood by the Danish Government at the time as having done so’ (PCIJ, Series A/B, no 53, 69). On this whole question, see R Kolb, Interprétation et création du droit international (Brussels, 2006) 243 et seq.

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jurisdiction on the Court, must be interpreted strictly’.1342 But in the Moroccan phosphates case (Preliminary Objection, 1938), the same Court repudiated this ‘sovereignist’ doctrine, going so far as to state, and with greater justice, that the question ought not to be decided on the basis of a rigid general presumption, but rather ought to be perceived as a circumstantial one related to the facts of the particular case. On this basis the Court stated that optional declarations must be interpreted according to their clear sense, and not in a restrictive way. A restrictive interpretation is appropriate only in cases of doubt ‘in regard to a clause which must on no account be interpreted in such a way as to exceed the intention of the States that subscribed to it’.1343 In this case, the Court took the view that the words were clear, and that it was therefore simply a matter of giving effect to them.1344 A restrictive interpretation of reservations is no more desirable than a restrictive interpretation of declarations (claiming that they are ‘exceptions’ from jurisdiction). As the Court put it in the case on Fisheries Jurisdiction (1998), reservations or conditions to optional declarations do not by their terms derogate from a wider acceptance already given. Rather, they operate to define the parameters of the State’s acceptance of the compulsory jurisdiction of the Court. There is thus no reason to interpret them restrictively. All elements in a declaration under Article 36, paragraph 2, of the Statute . . . are to be interpreted as a unity, applying the same legal principles of interpretation throughout.1345

This is also the reason the Court refused to apply the contra proferentem maxim1346 according to which, where there is doubt, the interpretation should lean against the party which drafted the clause, the advantage of having formulated it being counterbalanced by the disadvantage of having to accept an unfavourable interpretation if the clause is unclear. Overall, the context is balanced in the optimal way: the declaration does not constitute an exception to an ‘original’ freedom of action and therefore does not need to be restrictively interpreted; the reservation is not an exception to an acceptance of general jurisdiction, and therefore, likewise, does not need to be restrictively interpreted. In short, then, interpretation remains a question for the particular case, situated somewhere between on the one hand, the ordinary and reasonable sense of the words used in the declaration, and on the other, the will of the declaring State. Nevertheless, there is more room for doubt about the exclusion of the contra proferentem maxim. It does not seem inequitable that, ordinarily, the consequences of a lack of clarity are visited upon the party responsible for it. It is one thing to say that there is no a priori reason to interpret reservations generally in a restrictive way. But it is another to say that there is no value in having recourse to a restrictive interpretation of the reservation where there is doubt about the exception it is making provision for. The first proposition is not a logical justification for the second one. On the other hand, it does seem reasonable not to restrict the Court’s jurisdiction unduly in cases where several interpretations are possible, some enabling the jurisdiction to be preserved but others either eliminating it entirely or else restricting it: there is always the maxim boni judicis.   PCIJ, Series A/B, no 46, 138–39.   PCIJ, Series A/B, no 74, 23–24. 1344   Ibid, 24. 1345   ICJ Reports 1998, 453, § 44. 1346   Ibid, 454–55, § 51: ‘The contra proferentem rule may have a role to play in the interpretation of contractual provisions. However, it follows from the foregoing analysis that the rule has no role to play in this case in interpreting the reservation contained in the unilateral declaration made by Canada under Article 36, paragraph 2, of the Statute.’ 1342 1343



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What, then, is the general jurisprudence of the Court on the interpretation of declarations and the accompanying reservations? Having made the above points, it is useful to consider the jurisprudence as it has developed from case to case. This approach is the more advantageous in that it illustrates the extent to which the eternal process of judicial reassessment affects the decision-making process as one moves from one case to the next. It will also be seen that the Court has significantly fluctuated about this matter. The appropriate way of interpreting declarations and reservations was first set out in detail in the Anglo-Iranian Oil case (Preliminary Objections, 1952). The question was what was meant by ‘postérieures’ (‘subsequent’) in the Iranian declaration. The Court stated that preference ought to be given to an interpretation that was in harmony with the natural and reasonable reading of the text, ‘having due regard to the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of the Court’.1347 The Court added this: But the text of the Iranian Declaration is not a treaty text resulting from negotiations between two or more States. It is the result of unilateral drafting by the Government of Iran, which appears to have inserted, ex abundanti [sic] cautela, words which, strictly speaking, may seem to have been superfluous.1348

It was, therefore, a matter of ascertaining the declaring State’s true wishes. This would lead the Court into an examination of the travaux préparatoires following debates in the Iranian Majlis (parliament) about participation in the system of the optional clause.1349 The Court could thus conclude that: ‘Having regard to these considerations, the Court is satisfied that it was the manifest intention of the Government of Iran to . . .’.1350 Among the observations of leading commentators on the subject of this decision, one finds a statement that the difference in methods is justified by the different interests that arise. It is true that certainty in contractual relations requires the drafting to be done in such a way that all the terms are carefully weighed and expressed, but a unilateral declaration requires the disclosure of an intention whose true scope can be sought even outside the text, by an inquiry into the declarant’s attitudes.1351

It should be noted, however, that there has been criticism of the fact that internal Iranian travaux préparatoires were taken into account, as contrary to principle. No other State could be considered to be on notice as to such internal work, and on that basis no other State should be considered to be subject to it in some way .1352 In the case on the Temple of Preah Vihear (Preliminary Objections, 1961), the Court took the view that it should interpret Thailand’s optional declaration in accordance with the ordinary rules of interpretation, giving primacy to the natural and ordinary meaning of the words, and paying attention to the context.1353 There is a perfect analogy here with the law of treaties. The optional declaration was no longer seen from the perspective of a unilateral act, but as a link in a more extensive bilateral system. The way the Court placed the emphasis is doubtless explained by the situation underlying the case. Thailand was trying   ICJ Reports 1952, 104.   Ibid, 105. 1349   Ibid, 106–107. 1350   Ibid, 106. 1351   Ch de Visscher, Problèmes d’interprétation judiciaire en droit international public (Paris, 1963) 202–203, (our translation). 1352   cf eg the Dissenting Opinion of Judge Hackworth, ICJ Reports 1952, 136–37. 1353   ICJ Reports 1961, 32. 1347 1348

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to avoid the Court’s jurisprudence by deploying arguments not far from the borders of bad faith.1354 Presented with these arguments, the Court turned its attention to the manifest sense of Thailand’s own declaration as it appeared from the face of its text. It would have been excessively deferential to Thailand, and of no real use, for the Court to involve itself in any kind of enquiry into Thailand’s true will. Also, such an enquiry would have been difficult to reconcile with the Court’s concern to safeguard the system of the optional clause from abuses and evasions of all kinds. In the case on the Aegean Sea continental shelf (1978), the Court was faced with a reservation as to its jurisdiction. It returned to its jurisprudence in the Anglo-Iranian Oil case, with its strong subjective element: ‘regard must be paid to the intention of the Greek Government at the time when it deposited its instrument of accession to the General Act’.1355 The Court said it was prepared to examine all the explanations given at the time as to the way the reservation was formulated, the reservation itself being unclear. In such circumstances of lack of clarity, it was natural for the Court to wish to know more, including taking into account the Greek intentions. There was therefore no real break with the pre-established jurisprudence. In the Fisheries Jurisdiction case (Spain v Canada, 1998), the Court partially confirmed its leaning towards subjective elements. It retained the idea of seeking to know the declaring State’s intentions from the ordinary sense and context of the words used in the declaration.1356 In this respect the Court continued the analogy with treaty interpretation along the lines of the Anglo-Iranian Oil precedent. But, at the same time, the Court emphasised, a little more strongly than it had done in 1952, the element of intention. It said that argument on the basis of the contra proferentem rule, from useful effect, the presumption of conformity with general international law, and so on, applicable though they are to treaty interpretation, must, in relation to the interpretation of optional declarations, be considered secondary to the intentions of the declaring State: ‘At the same time, since a declaration under Article 36, paragraph 2, of the Statute, is a unilaterally drafted instrument, the Court has not hesitated to place a certain emphasis on the intention of the depositing State.’1357 Thereafter, the Court confined itself to the application of this ‘intention’ criterion.1358 It was strongly criticised for this subjectivist method in the Dissenting Opinion of Judge Torres Bernárdez, who wrote: In my view the legally material intention is that embodied in Canada’s declaration . . . and that intention must be ascertained by applying the rules for the interpretation of international instruments laid down by international law and, in particular, all of the interpretative elements accepted by those rules which are applicable to the circumstances of the case, namely: the principle of good faith; the rule that words must be given their ordinary meaning, in their context, in the light of the object and purpose of the declaration; the relevant rules of international law applicable in the relations between the parties; together with all relevant circumstances as supplementary means of 1354   Thailand had accepted the PCIJ jurisdiction in 1929 for a period of 10 years. That period was extended in 1940 and again in 1950.Thailand argued that the Court’s decision in the Aerial incident case (1959) had shown that the succession from the PCIJ to the ICJ was not an automatic one, and that consequently there was no basis for its declaration of 1950. But Thailand had taken a legal step by which it intended to extend the duration of its declaration. In 1950, Thailand knew that the PCIJ no longer existed and that the ICJ had succeeded it. Its declaration in that year could therefore only have been intended to accept and prolong the ICJ’s jurisdiction. 1355   ICJ Reports 1978, 29, § 69. 1356   ICJ Reports 1998, 454, § 49. 1357   Ibid, 454, § 48. 1358   Ibid, 454 et seq.



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interpretation . . . What counts for purposes of the interpretation which we have to make is not these reasons, or any other motives that the declarant may have had, nor the unilateral and sovereign nature of the acts of drafting and deposit . . . but the intention manifested in solemn written form . . . which is the sole legally material intention notified to other States, including Spain . . . Elementary reasons of legal security and logic require that, in order to interpret the intention of the declarant State, we take as our starting point the actual text of the instrument in which the obligation is set forth, rather than seeking out, ab initio, as it were, some extrinsic, indefinable psychological intention supposedly governing the one embodied in the instrument to be interpreted, and prevailing over that intention. Yet this is what the Judgment does.1359

Judge Torres Bernárdez thus gave categorical preference to a perfect analogy between declarations and international agreements, to the point where the principles of interpretation should be the same. His underlying reason was the importance of the principle of trust and confidence, that is, the idea that a third State, in considering the terms of the declaration, should and must be given a reasonable understanding of its meaning, having regard to text and context. The battle lines were thus clearly drawn. The Court seems to have committed itself to a more subjectivist approach, based on unilateral intentions, rather than a more objectivist one, based on the ordinary meaning of words and the fact that they can and should give rise to expectations. In the case on the Legality of the use of force (Yugoslavia v Belgium, interim measures, 1999), the Court interpreted the Yugoslav optional declaration from the point of view of a limitation ratione temporis of its jurisdiction. In doing so, the Court drew first on the terms of the declaration, then taking the view that the bombardments of Serbian territory gave rise to a single overall dispute, which could not be divided up as between the period prior to signature of the declaration (that is prior to 25 April 1999) and a post-signature phase thereafter. The Court therefore found that it had no jurisdiction in respect of the overall period of time to which the dispute related.1360 This view was, however, challenged by certain of the judges, who thought that the case might have been split into two parts, the Court having jurisdiction over the bombardments after 25 April 1999. These judges also thought that the Court’s reading of the optional declaration was contrary to Yugoslavia’s manifest intention at the time it signed it, namely to open the way to the possibility of bringing the dispute before the Court. Intention, they added, is an essential element when it comes to the interpretation of unilateral legal acts.1361 The Court’s attitude can perhaps be explained as a repackaging of its 1998 jurisprudence, slanted in the direction of an approach that was new both in being more textual, and also in the slightly greater weight given to the principle of confidence. The Court’s attitude can also be interpreted as a (debatable) exercise of judicial policy, designed to avoid taking jurisdiction over a case which, in view of its political implications, might prove extremely troublesome for the Court to handle. On this interpretation, the Court would have concentrated on the text because this was a clearer way towards a finding that the Court had no jurisdiction than would have been provided by an examination of Yugoslavia’s intentions. In the next case, on the Aerial incident of 10 August 1999 (Pakistan v India, Jurisdiction, 2000),1362 the Court returned to its usual approach. On the one hand, it went back to the subjective formulations in the Anglo-Iranian Oil case, as reiterated in the Fisheries case of   Ibid, 666–69, § 224, 226, 230.   ICJ Reports 1999-I, 131 et seq. 1361   Dissenting Opinion of Judge Weeramantry, ibid, 188–89; Dissenting Opinion of Judge Vereshchetin, ibid, 212. 1362   ICJ Reports 2000, 30–31, § 42. 1359 1360

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1998. On the other hand, the judgment showed a more tempered, mixed subjective/objective and intention/textual approach, which appears very clearly in the passage devoted to the application of general principles to the circumstances of particular cases: While the historical reasons for the initial appearance of the Commonwealth reservation1363 in the declarations of certain States under the optional clause may have changed or disappeared, such considerations cannot, however, prevail over the intention of a declarant State, as expressed in the actual text of its declaration. India has repeatedly made clear that it wishes to limit in this manner the scope ratione personae of its acceptance of the Court’s jurisdiction. Whatever may have been the reasons for this limitation, the Court is bound by it. (italics added)1364

In the end the subjective element prevailed over the objective one, the Court giving full effect to India’s intentions. Analysis of the jurisprudence thus shows the Court fluctuating, as a function of particular cases, between emphasising the subjective and objective elements. More often than not, it has given decisive weight to the declaring State’s intentions, when to do so is not plainly incompatible with the text and the State is not trying to elude its meaning of it in a way which amounts to an abuse. In a certain sense, there is no definitive answer to the question of choosing between these two elements. Both have to be taken into account, and their relative importance (for the question is always relative) has to be decided on a case-by-case basis. All that really matters is to insist that the true intention of the declaring State cannot be allowed to prevail against a text which is clear, or if it is otherwise incompatible with the legitimate confidence to which the declaration gives rise (the principle of good faith). In this sense, the objective element must retain its priority, and defines the outer limit of the effect to be given to intentions. At the same time, the Court could perhaps be somewhat clearer and straightforward in its case law. At this point it will be useful to consider some examples of concrete interpretations as a function of their legal difficulty. We will take three relatively easy cases and two difficult ones. It would have been interesting to review the entire jurisprudence of the Court, but unfortunately space does not permit that. It is also worth remembering that some of the questions discussed in the chapter on compromissory and jurisdictional clauses – for example the Court’s jurisdiction ratione temporis in light of reservations to a compromissory clause – can also be relevant, by analogy, to reservations accompanying declarations under Article 36, paragraph 2 of the Statute. Ubi eadem ratio, idem ius. Easy cases. A typical easy case is the Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility, 1984), concerning the so-called ‘Vandenbergh’ reservation relating to multilateral treaties.1365 That reservation read as follows: [The United States’ acceptance of the Court’s compulsory jurisdiction shall not extend to] disputes arising under a multilateral treaty unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specialty agrees to jurisdiction.1366

1363   This reservation excepts from the jurisdiction of the Court disputes with the government of any State which is or has been a member of the Commonwealth of Nations (ICJ Yearbook 2006–2007, no 61, 140). 1364   ICJ Reports 2000, 31, § 44. 1365   cf Tomuschat, ‘Article 36’, above n 1094, 638. See also V Lamm, ‘The Multilateral Treaty Reservation Revisited’ (2006) 47 Acta Juridica Hungarica 331 et seq. 1366   ICJ Reports 1984, 421–22.



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The UN Charter, which was invoked in the case, was obviously a multilateral treaty, and conditions (1) and (2) were likewise obviously not satisfied. The Court, therefore, had to yield to and apply this reservation, without needing to involve itself in prolonged argument on the subject.1367 The Court nevertheless took cognisance of the substance of this case on the basis of international customary law and a bilateral treaty, disregarding all multilateral treaties. However, it was obvious, and also inevitable, that the result would be to truncate the jurisdiction in a way that was troublesome from the legal perspective. This in consequence affected the whole way that the substantive issues were dealt with. The only alternative was for the Court to refuse to exercise a jurisdiction of the kind available to it, on the basis that to do so would be contrary to its judicial integrity. Another easy case was the Right of passage over Indian territory (merits, 1960).1368 The Indian declaration reserved ‘disputes with regard to questions which by international law fall exclusively within the jurisdiction of India’. It was easy for the Court to apply this reservation when India raised it in the case. What the Court said was that a claim to a right of passage to a foreign territory, on the basis of treaties, customary law and general principles of law, was manifestly a matter of international law and not of the internal ‘reserved domain’ of the State. To decide the issue as to rights under international law was not exclusively an issue of internal Indian jurisdiction. In the Court’s view, the exclusively national jurisdiction (‘reserved domain’) meant the field within which international law did not regulate the question, but left it to municipal law. To invoke treaties and other sources of international law amounted precisely to a claim that international law governed the question. It could not, therefore, fall exclusively to the national jurisdiction. Whether international law actually did govern the question, and if so how, were both, from this perspective, questions going to merits, not to jurisdiction. In the Fisheries Jurisdiction case (Spain v Canada, 1998), the Court was obliged to accept a reservation which obviously did apply, despite the ingenious efforts of Spanish counsel to refute its applicability.1369 Canada had made a reservation as regarded disputes ‘arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area’. The dispute fell more or less exactly within this phraseology. The Court recognised this and declined to decide the merits.1370 It did, however, have to address itself to the Spanish arguments and took the time to do so.1371 Difficult cases. In a whole series of cases, the Court has been obliged to dwell more specifically on the sense of the reservation’s actual wording, in order to decide what, in concrete practical terms, is its scope. Either the conditions for the application of the reservation have required a particular effort to apply the law to the facts; or else the words of the declaration were uncertain in themselves and needed to be interpreted. The first of these situations crops up regularly when it is a matter of determining the scope of a reservation ratione temporis. In such cases it is necessary to decide to what extent the constitutive elements of the dispute and its crystallisation as such are prior to a certain date, or subsequent to it. In such cases, the application of the reservation – not its interpretation – can be complicated. The Court had to make determinations of this kind in the following cases: Moroccan   ICJ Reports 1984, 421 et seq. and ICJ Reports 1986, 92 et seq.   ICJ Reports 1960, 32–33. 1369   See, eg the Dissenting Opinion of Judge Bedjaoui, ICJ Reports 1998, 533 et seq. 1370   ICJ Reports 1998, 438 et seq. 1371   Ibid, 458 et seq., §§ 63 et seq. 1367 1368

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phosphates (Preliminary Objections, 1938),1372 Electricity Company of Sofia and Bulgaria (Preliminary Objections, 1939),1373 Interhandel (Preliminary Objections, 1959),1374 Legality of the use of force (1999)1375 and the Certain property case (2005),1376 even though the latter had been brought to the Court on the basis of a jurisdictional clause and not under the optional clause (the temporal problem, which concerns us here is, however, the same). The second situation does not come up as frequently as one might suppose. One finds more examples of complicated reservations in the field of compromissory and jurisdictional clauses (as in the case of the Aegean Sea continental shelf of 1978,1377 which is an outstanding example) than in the field of declarations under the optional clause. States endeavour to formulate their reservations as exactly as they can, knowing that the Court is not inclined to give them a favourable or extensive interpretation. There is, however, the Anglo-Iranian Oil case (1952).1378 The Iranian optional declaration confined the Court’s jurisdiction to ‘situations or facts relating, directly or indirectly, to the execution of treaties and conventions which the Government will have accepted after the ratification of the Declaration’. The question turned on the interpretation of the word ‘after’: did it refer solely to ‘treaties or conventions’ or also to ‘situation or facts’? In this case the Court invoked the ordinary sense of the text (read naturally), and also Iran’s intentions, together with some arguments about useful effects, finally coming to the conclusion that the word ‘after’ referred only to the preceding words, that is, to ‘treaties and conventions’, and not also to ‘situations or facts’. The interpretation of the clause also affected the decision whether the Court could take cognisance, under the optional clause, of certain treaties prior to the critical date, but connected to other treaties via the ‘most favoured nation’ clause mechanism.1379 The Court decided they could not, on the basis that these other treaties were themselves either prior to the critical date or else res inter alios acta. In that respect too, a real problem of interpretation had indeed arisen. The validity of reservations. Under the law of treaties, States are free to formulate reservations whenever these are not prohibited by the treaty and do not contravene the limits, few in number, provided for in general international law, in particular as codified in Articles 19 and 20 of the 1969 Vienna Convention on the Law of Treaties.1380 There is a presumption that, unless the treaty limits the parties’ right to make reservations, States are free to do so. They also remain free to decide the contents of their reservations. International law will not censure them for doing so. At the same time, however, this freedom of action is not absolute, since general international law does have substantive prohibitionary rules affecting reservations, either as regards their subject matter or as regards their effects. In other words, the fact that a State has made a reservation does not prejudge the reservation’s validity, which remains a separate question. Do these limitations also apply to reservations made in the context of optional declarations? In this respect one has to distinguish between three different legal aspects. First, to what extent can reservations be prohibited or invalid   PCIJ, Series A/B, nos 21 et seq.   PCIJ, Series A/B, no 77, 80–82. 1374   ICJ Reports 1959, 22. 1375   ICJ Reports 1999, 131 et seq. 1376   ICJ Reports 2005, §§ 28 et seq. 1377   ICJ Reports 1978, 20 et seq., meaning of the words ‘statut territorial de la Grèce’. 1378   ICJ Reports 1952, 103 et seq. 1379   Ibid, 107 et seq. 1380   On these provisions, see among others, the contributions in O Corten and P Klein, The Vienna Conventions on the Law of Treaties, above n 1340, 405 et seq. 1372 1373



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in the context of optional declarations? Second, there is, as a corollary to that, the question of who decides in the last resort whether a reservation is lawful and thus valid. Third, there is the question whether the Court is entitled to refuse to apply an unlawful reservation, or whether it even has the power to declare a reservation legally null and void, with all the resulting consequences. Although these three questions are intimately inter-connected, no one of the three prejudges the others. A legal act might be invalid (for example, a law contradicting the constitution) but there might nevertheless be no-one with power to sanction the invalidity (for example, if there is no constitutional court, in which case, in a democratic regime the people are the final guardians of legality through the political voting mechanism). The answers to these three questions are as follows. 1) Similarly to the position as regards the law of treaties, so in relation to optional declarations, some reservations are invalid, and thus in principle null and void. So, for example, a reservation would certainly be invalid if it were contrary to a provision of the Statute. As a treaty, the Statute binds together the collectivity of States that are parties to the system of the optional clause. They are under an obligation to respect its provisions fully, and cannot unilaterally depart from it. This conclusion is supported by the fact that, as we have seen,1381 derogations from the Statute are not permitted even by agreement between States. A fortiori, therefore, States cannot free themselves from provisions of the Statute by unilateral legal acts. In addition, the rules of general international law prohibiting reservations that are contrary to the object and purpose of a treaty must be applied by analogy to reservations attaching to optional declarations. The legal basis for every declaration is to be found in Article 36, paragraph 2 of the Statute. A declaration is therefore not an autonomous legal act, but rather is a unilateral legal act under a treaty. Consequently, a reservation directly reduces the scope of Article 36, paragraph 2, a treaty provision, and logically it must be subject to the limits applicable under the law of treaties. Any other conclusion would allow States to evade the object and purpose of the treaty (that is, the Statute) by interposing a unilateral legal act. The purpose of optional declarations is not to allow holes to be blown in the system, thus making it inoperable: quite the reverse, the purpose of optional declarations is to enable the system to work. Also, the system of the optional clause cannot be reduced to a regime of black letter law. It has its own rationale and spirit, and these need to be protected against acts equivalent to attempts to render the system sterile. A State participating in the system must therefore respect its fundamental spirit: otherwise it should not be participating at all. 2) The validity of a reservation affects the degree to which the Court will or will not declare itself to have jurisdiction. Either the reservation is valid, and the Court will then be obliged to declare that it does not have jurisdiction over the dispute in the areas covered by the reservation; or it is invalid, in which case the Court will or will not have jurisdiction, depending on whether the reservation is severable from the rest of the optional declaration.1382 Since this preliminary question about the reservation’s validity affects the Court’s decision about jurisdiction, the final decision on it rests with the Court. Article 36, paragraph 6 of the Statute is very clear: ‘In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.’ To put it in simple terms, the Court has to have the power to decide the validity   Above ch III, section 1(b).   See Art 44, § 3, of the 1969 Vienna Convention on the Law of Treaties, applied by analogy.

1381 1382

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of the reservation, because the exercise of that power is necessary to its decision as to its jurisdiction, and the latter decision is, under the Statute, within the power of the Court. The first power is therefore necessarily implied in the second. 3) Since the final power to decide the validity of a reservation rests with the Court, as a preliminary matter to its decision on jurisdiction, the Court obviously has the right to refuse to apply the reservation if it is invalid. But can the Court also declare it to be legally null and void? From a purely technical point of view, there is no reason why it should not do so. The Court is the foremost guardian of the Statute’s integrity. It would be appropriate if, where a reservation is incompatible with the founding text, the Court were to hold the relevant State to the Statute and declare the reservation to be a general nullity. But although other international tribunals (such as the European Court of Human Rights) and quasi-judicial bodies (such as the UN Committee on Human Rights) have assumed and exercised corresponding powers, until now the Court has not taken this step. In cases where the validity of a reservation has become an important issue – which is the position as regards the ‘automatic reservation’ (see next subsection) – the Court has found other ways to refuse jurisdiction, or alternatively other bases to found it on, without going into the validity question. In this respect the Court is being deferential to the sovereignty of States and taking care not to take steps that might seem shocking to its highly sensitive sovereign ‘clientele’. Also, the question of the severability of a reservation from the rest of the declaration is frequently an additional source of difficulty. If it is accepted that a reservation is a nullity, can the declaration to which it is attached be simply purged of the invalid reservation, so as to continue operative without it? It is easy to see that the scope of the obligations binding on the State in question might, in such circumstances, change considerably: if it can no longer rely on its reservation it may then have to accept a wider jurisdiction of the Court; if the reservation was important, or very sweeping in its scope (particularly the case as regards ‘automatic reservations’), the extent of the Court’s jurisdiction assumed could be radically different from that which the State had contemplated. There is a rule of the law of treaties that applies, by analogy, to every legal act flowing from the will of a subject of law. Article 44, paragraph 3 of the 1969 Vienna Convention on the Law of Treaties reads as follows: If the ground [for invalidating, terminating, withdrawing from or suspending the operation of a treaty] relates solely to particular clauses, it may be invoked only with respect to those clauses where: (a) the said clauses are separable from the remainder of the treaty with regard to their application; (b) it appears from the treaty or is otherwise established that acceptance of those clauses was not an essential basis of the consent of the other party or parties to be bound by the treaty as a whole; and (c) continued performance of the remainder of the treaty would not be unjust.

Without analysing this provision in detail here,1383 it does appear that (b) will often give rise to a problem. It will be difficult to say that the State making the reservation would have accepted a declaration obliging it to accept the Court’s having a considerably more extensive jurisdiction, losing the protective shield represented by the reservation. For the State concerned, the reservation will generally have been an essential feature. If so, then the nullity of the reservation brings down the whole optional declaration. The Court 1383   See in this regard, M Bedjaoui, M Didat and T Leidgens, ‘Article 44’ in Corten and Klein, The Vienna Convention on the Law of Treaties, above n 1340, 1046 et seq.



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cannot then declare itself to have jurisdiction, and the declaration will be eliminated, both de facto and de jure, from the list of extant optional declarations. It is easy to understand the Court’s reluctance to venture into a minefield of this nature. Before examining the Court’s jurisprudence more closely, it is worth taking stock of the jurisprudence of other international tribunals that, in this respect, take a more robust line than the ICJ. It has sometimes been suggested that this stricter body of jurisprudence can be explained by the fact that solidarity and political integration are stronger in regional systems such as the European or the Inter-American, and that therefore, within such systems, judges can allow themselves a more activist role in examining the validity of States’ legal acts in so far as such acts affect jurisdiction.1384 This explanation, however, is only partially valid. In the first place, the Human Rights Committee of the United Nations under the International Covenant on Civil and Political Rights of 1966 Pact, and other comparable UN committees, operating at a global level, follow a similar line of conduct. Perhaps they are influenced in doing so by the fact that they do not issue binding judgments, but that is only speculation. Second, the ICJ has often emphasised how seriously it takes its obligation to safeguard the integrity of the Statute. This attitude has led it, on more than one occasion, to refuse to comply with the jointly expressed wishes of the parties before it. The Court would seem to have all the more reason to concern itself with the integrity of its Statute in situations where it is faced with unilateral acts that are incompatible with it. In short, it is difficult to see any valid reason for the Court not to go through the exercise of verifying the validity of reservations accompanying optional declarations (or compromissory or jurisdictional clauses), and difficult to see any valid reason for the exercise not to include, in appropriate cases, declaring them inapplicable, and even void. The issue of legal policy – whether it is appropriate to exercise this power in a given case, or whether it is not better to find other grounds on which to base the decision – is quite another matter.1385 To accept the existence of a general power to take cognisance and to issue rulings is one thing. It does not necessarily mean, however, that the Court is deprived of the freedom to construct its judgment in such a matter as it wishes. In two cases, Belilos v Switzerland (1988)1386 and Loizidou v Turkey (1995),1387 the European Court of Human Rights has declared particular reservations invalid and thus to be nullities, severing them from the rest of the declaration submitting to the Court’s 1384   Or at least that the objections by States to such control have been less strong (or even absent) in the regional context: R Riquelme Cortado, Las reservas a los tratados (Murcia, 2004) 346. 1385   In light of the frequency with which the reservation is made, the resulting effects of the judgment, the legal complexity of the issues, and the risk of not being able to sever the reservation from the declaration, etc. 1386   PCIJ, Series A, no 132, §§ 50 et seq. Here, the reservation was contrary to Art 64, § 2, of the ECHR, imposing a duty to make reservations sufficiently precise in scope, which the general reservation as to ‘cantonal laws’ did not comply with. The Court held, however, that Switzerland would have considered itself bound by the Convention independently of the validity of the reservation – hence its severability (§ 60). 1387   PCIJ, Series A, no 310, §§ 65 et seq. Turkey had limited the application of the European Convention to its metropolitan territory, thus excluding Northern Cyprus. But according to the Court, Arts 25 and 46, dealing with the spatial scope of the Convention, are essential provisions since they have a decisive influence on the material guarantees it provides, and thus on the object and purpose of the protections provided by it. If such reservations were allowed there would be inequalities, modulations and lacunae in the protection, contrary to the idea of European public policy (ordre public). The reservations were therefore held to be invalid (§ 89). Were they severable? According to the Court, Turkey was not unaware of the challenges its reservations had given rise to, nor of the jurisprudence of the bodies at Strasbourg. It knew the risk it was running that the reservations would be considered invalid. It nevertheless went ahead, showing its willingness to accept the risk that the relevant bodies under the Convention would declare the reservation null and void and would sever it from the rest of the Turkish declaration (§ 95). In addition, the ‘public policy’ character of the ECHR militated in favour of severance (§ 96).

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jurisdiction. The old European Commission on Human Rights had reached analogous conclusions in the case of Chrysostomos et al v Turkey (1991).1388 The Inter-American Court of Human Rights does not lag behind: it followed the same precepts in Hilaire v Trinidad and Tobago (Preliminary Objections, 2001).1389 The UN Human Rights Committee under Covenant II of 1966 (ICCPR) claimed the same right of examination in its General Observation no 24 (1994)1390 and applied it in various cases that came before it, notably the case of R Kennedy v Trinidad and Tobago (1999).1391 It should, however, be added that this assertion of the Committee’s jurisdiction, at the global level, has given rise to major challenges by a whole series of States and induced Trinidad and Tobago itself to withdraw its submission to the quasi-jurisdictional controls of the Committee. The ICJ has been faced with this question above all in the context of so-called ‘automatic’ reservations. However, on each such occasion it has been able to evade the question of validity. It is better to consider this aspect of its jurisprudence in the next subsection, which deals with this particular type of reservation. For the rest, the Court has been faced with the problem of the validity of a reservation on two occasions, once in the context of an optional declaration, the other time in the context of a compromissory clause. The question first arose, in a fairly oblique way, in 1998, in the Fisheries Jurisdiction case (Spain v Canada). Spain, the applicant, claimed that the Canadian interpretation of the reservation accompanying the declaration was incompatible with the Statute, the UN Charter and international law.1392 The validity of the reservation was, however, not openly disputed. The dispute concerned only certain modalities of its application and interpretation. The Court gave full effect to Canada’s intentions as the declaring State. It added that the question whether the reservation was or was not in conformity with international law did not prevail over the text and the intention of the reserving State. The Court’s reasoning was as follows: In point of fact, reservations from the Court’s jurisdiction may be made by States for a variety of reasons; sometimes precisely because they feel vulnerable about the legality of their position or policy. Nowhere in the Court’s case-law has it been suggested that interpretation in accordance with the legality under international law of the matters exempted from the jurisdiction of the Court is a rule that governs the interpretation of such reservations . . . The fact that a State may lack confidence as to the compatibility of certain of its actions with international law does not operate as an exception to the principle of consent to the jurisdiction of the Court and the freedom to enter reservations. There is a fundamental distinction between the acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law. The former requires consent. The latter question can only be reached when the Court deals with the merits, after having established its jurisdiction and having heard full legal argument by both parties.1393

This passage very clearly shows the Court accepting the right of States to exempt themselves from its jurisdiction on all questions they wish to exclude. The legal permissibility of   (1991) 12 Human Rights Law Journal 113 et seq.   Inter-American Court of Human Rights, Series C, no 80, § 93. The Court rejected the Respondent State’s Preliminary Objection, claiming that the Court had no jurisdiction because of the reservation concerning the primacy of its Constitution (acceptance of jurisdiction solely to the extent compatible with the Constitution of Trinidad and Tobago). The Court set aside the reservation and gave judgment on the merits. 1390  CCPR/C/21/Rev.1/Add.6. 1391   Communication no 845/1998. See (2000) 12 Revue universelle des droits de l’homme 218 et seq. 1392   ICJ Reports 1998, 451, § 40. 1393   Ibid, 455–56, §§ 54–55. 1388 1389



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the exemptions under general international law is not the same as the question of the validity of the exemption outside the Court’s jurisdiction issue, and in fact the former is irrelevant to the latter. A further point is this: one cannot use an interpretation in favorem validitatis in order to bring back into the fold of material international law a reservation which was manifestly designed to break away from it. That in favorem validitatis maxim applies only in cases of doubt; but here there is no doubt about the meaning of the reservation. At the end of the day it is obvious that one cannot interpret these passages from the Court’s judgment as meaning that the reservation itself is not required to be compatible with the Statute or arguably with the general canons of imperative international law. That question remained on the table. In this case, however, the Court did not think that Canada’s interpretation was in conflict either with the Statute or with the jus cogens of general international law. To sum up, then, one has to distinguish between on the one hand, the question of a reservation’s compatibility with non-imperative law outside the Statute, and on the other, the compatibility of its interpretation with the international law of the Statute itself (of which certain parts of the Charter are an integral part, in particular Chapter XIV) and with imperative international law (jus cogens). Reservations may freely limit the Court’s competence: a State may withdraw from the Court’s jurisdiction this or that material question of international law, just as it may indeed except either the entire category represented by the jus cogens of general international law, or certain specific norms within that category (which would simply mean that a State does not want to argue about such questions at the ICJ). A State may not, however, except the application of the Statute or the Rules. In addition, there are limits to the exclusion of certain sources of international law in the context of general admissibility.1394 However, the reservation will be void, as a legal act, if its contents are materially and in themselves contrary to the jus cogens of general international law. In that case it is no longer a simple question of the Court’s jurisdiction: a State is actually trying to confer upon itself the material right to behave in a way that is incompatible with the imperative norms in question. Applying Article 53 of the 1969 Vienna Convention on the Law of Treaties by analogy, such a reservation is a nullity. The question of a reservation’s validity arose more directly in the case of the Armed activities in the territory of the Congo (DRC v Rwanda, new Application, Jurisdiction and admissibility, 2006). Rwanda had made a reservation as to Article IX of the 1948 Genocide Convention. It excepted the Court’s jurisdiction over any dispute as to the interpretation or application of that Convention. The DRC claimed that the Convention contained norms of jus cogens under general international law, and that therefore the reservation was void. In addition, the DRC argued that the reservation was contrary to the protective object and purpose of the Convention, as to which the jurisdictional provisions in Article IX were a key element. The Court rejected the first Congolese argument on the basis of the classic argument that the character of a norm is one thing, the Court’s jurisdiction quite another.1395 Jurisdiction depends on the consent of the parties, and they are free to reduce its scope or withhold consent altogether. The more or less fundamental character of the norm does not prevent their doing so. Once consent is lacking, the Court cannot take jurisdiction to deal with the merits of the dispute. In short, the question of consent is really treated as a constitutive legal fact, which in any event is required as an essential element. In this regard   See above, section 6(e).   Armed Activities in the territory of the Congo (DRC v Rwanda, new Application, Jurisdiction and Admissibility, 2006) §§ 56 et seq. 1394 1395

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the Court repeated its consistent jurisprudence since the East Timor case (1995).1396 As to the second Congolese argument, about object and purpose, the Court stated that the Court’s jurisdiction question was fundamentally no more than a procedural matter which did not affect substantive obligations. The reservation was therefore not contrary to the object and purpose of the 1948 Convention. The Convention was connected to substantive obligations rather than to the procedural extension of the compromissory clause. The Court put the point as follows: Rwanda’s reservation to Article IX of the Genocide Convention bears on the jurisdiction of the Court, and does not affect substantive obligations relating to acts of genocide themselves under that Convention. In the circumstances of the present case, the Court cannot conclude that the reservation of Rwanda in question, which is meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfilment of the Convention, is to be regarded as being incompatible with the object and purposes of the Convention.1397

The Court also noted that it had already given effect to such reservations,1398 appearing in a significant number of declarations (including that of the USA). The Court did indeed lay down a cautionary marker, when it said that it could not conclude that the reservation was invalid ‘in the particular circumstances of the case’. Doubtless this was due to the fact that several of the judges took the view that the Court was giving the question inadequate treatment and that its conclusions ought to be reviewed.1399 This reasoning by the Court’s was both eliptical and unsatisfactory. A question, which was both legally important and complicated, was swept aside with an ipse dixit unaccompanied by any deeper analysis. The case shows the Court’s legendary reticence when it comes to the examination of reservations in relation to jurisdiction. The experience of the Human Rights Committee has perhaps influenced it, inducing a prudent position in the face of the potentially uncontrollable reactions of States. In the ultimate analysis, however, the Court cannot evade its duty to examine and review the validity of a reservation if validity may be an issue, since that question affects the scope of the Court’s jurisdiction. If the Court were to treat as valid a reservation which was in fact invalid, that would be a failure in the Court’s exercise of part of its jurisdiction. It would amount to ignoring the integrity of Statute, Rules and indeed the judicial function of the Court itself, foundering in a denial of substantive justice, and selling short its role as guardian of the integrity of the Statute and of respect for that Statute. The Court has taken this very role very seriously when it comes to bilateral legal acts by States attempting to take liberties with the Court’s constitutive texts.1400 It is to say the least, paradoxical that the Court should take a different approach when the legal acts are unilateral ones, since a fortiori such acts ought to yield to the same discipline. The principle to be defended in such cases in no way prevents the Court’s exer1396   ICJ Reports 1995, 102, § 29. Supporting this jurisprudence as legally correct, albeit doing so with regret, Tomuschat, ‘Article 36’, above n 1094, 606; supporting it with conviction: H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’ in BYIL, vol 65 (1995) 59, fn 205. For a questioning and critical view: C Chinkin, ‘The East Timor Case’ (1996) 45 ICLQ, 712 et seq. 1397   § 67. 1398   § 68: ‘In fact, the Court has already had occasion in the past to give effect to such reservations to Article IX of the Convention (see Legality of the use of force (Yugoslavia v Spain), Provisional measures, Order of 2 June 1999, I.J Reports 1999 (II), p 772, paras 32–33; Legality of the use of force (Yugoslavia v United States of America), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999 (II), p 924, paras 24–25). The Court further notes that, as a matter of the law of treaties, when Rwanda acceded to the Genocide Convention and made the reservation in question, the DRC made no objection to it.’ 1399   See the joint Separate Opinion of Judges Higgins, Kooijmans, Elaraby, Owada and Simma, especially § 29. 1400   See above, section 1(b).



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cising appropriate judicial caution, which the Court can (and indeed must) do on a caseby-case basis. The problem of automatic reservations.1401 Automatic reservations can be grafted onto optional declarations or indeed onto other jurisdictional clauses. The most famous examples are, however, to be found in the law on optional declarations. Reservations of this kind, as to the Court’s jurisdiction, have been variously called ‘automatic’, ‘subjective’, ‘double’, ‘peremptory’ and ‘self-judging’. The characteristic feature of such reservations is that the State making the reservation gives to itself the decisive last word on whether the conditions for the reservation’s application are satisfied. The Court is merely left to giving effect to its determination, automatically and without any autonomous control over the decision the State has taken. This makes such reservations a prolongation (both conscious and unconscious) of the former reservations as to the parties ‘honour’, ‘sovereignty’, ‘independence’ and ‘vital interests’, which used to feature in old treaties on the settlement of disputes by arbitration.1402 In the regime of the optional clause, the example traditionally cited is the USA’s declaration of 14 August 1946. The USA accepted the Court’s jurisdiction, with the exception of ‘disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States of America’.1403 In optional declarations, the automatic reservation has usually been grafted onto the ‘reserved domain’ – 1401   Such reservations have given rise to a rich body of literature. See, eg: FO Wilcox, ‘The United States Accepts Compulsory Jurisdiction’ (1946) 40 AJIL 699 et seq.; H Waldock, ‘The Plea of Domestic Jurisdiction before International Legal Tribunals’ in BYIL, vol 31 (1954) 96 et seq., 131–37; G Guerrero, ‘La qualification unilatérale de la compétence nationale’ in Essays J Spiropoulos (Bonn, 1957) 207 et seq.; Briggs, ‘Reservations’ CCHAIL, vol 93, 1958-I, 328–63; K Holloway, Les reserves dans les traités internationaux (Paris, 1958) 317 et seq.; RY Jennings, ‘Recent Cases on “Automatic” Reservations to the Optional Clause’ (1958) 7 ICLQ 349 et seq.; WP Rogers, ‘The United States “Automatic” Reservation to Optional Clause Jurisdiction of the International Court of Justice’ (1958) 7 ICLQ, 758 et seq.; HW Briggs, ‘The United States and the International Court of Justice: A Re-Examination’ (1959) 53 AJIL 301 et seq.; B Maus, Les réserves dans les déclarations d’acceptation de la juridiction obligatoire de la Cour internationale de Justice (thesis, Geneva University, 1959) 149–63; P Guggenheim, ‘Der sogenannte automatische Vorbehalt der inneren Angelegenheiten gegenüber der Anerkennung der obligatorischen Gerichtsbarkeit des Internationalen Gerichtshofes in seiner neuesten Gerichtspraxis’ in Essays A Verdross (Vienna, 1960) 117 et seq.; LFE Goldie, ‘The Connally Reservation: A Shield for an Adversary’ (1962) 9 University of California Los Angeles Law Review, 277 et seq.; de Visscher, Problèmes d’interprétation judiciaire, above n 1351, 209–13; G Döker, ‘Das Connally Amendment und die obligatorische internationale Gerichtsbarkeit’ (1963/64) 11 AVR 155 et seq.; Dubisson, above n 1094, 180 et seq., especially 185–89; IF Shihata, The Power of the International Court to Determine its Own Jurisdiction, Compétence de la compétence (The Hague, 1965) 271 et seq., 284–97; K Holloway, Modern Trends in Treaty Law (London/New York, 1967) 654 et seq., 683 et seq.; DW Greig, International Law (London, 1970) 501–506, (2nd edn, London, 1976 65157); E Zoller, La bonne foi en droit international public (Paris, 1977) 131 et seq.; J Crawford, ‘The Legal Effect of Automatic Reservations to the Jurisdiction of the International Court’ in BYIL, vol 50 (1979) 63 et seq.; S Rosenne, The Law and Practice of the International Court, 2nd edn (Dordrecht/Boston/London, 1985) 395–99; Rosenne, above n 1094, 778 et seq.; DW Greig, ‘Nicaragua and the United States: Confrontation over the Jurisdiction of the International Court’ in BYIL, vol 62 (1991) 182–86, 206–207; Szafarz, above n 1094, 52–55; SA Alexandrov, Reservations, above n 1155, 76–91. See also the Separate Opinion of Judge H Lauterpacht, in the Norwegian loans case, ICJ Reports 1957, 43 et seq. and the Dissenting Opinion of Judge H Lauterpacht, in the Interhandel case (Preliminary Objections), ICJ Reports 1959, 97 et seq. 1402   As to this connection between the two phenomena, cf Guerrero, above n 1401, 210; Maus, Les reserves, above n 1401, 154; Crawford, ‘The Legal Effect of Automatic Reservations’, ibid, 70; the Separate Opinion of Judge H Lauterpacht in the Norwegian loans case ICJ Reports 1957, 61 et seq. cf also JL Brierly, ‘Vital Interests and the Law’ in BYIL, vol 21 (1944) 51 et seq. 1403   ICJ Yearbook 1950/1951, 206 (italics added). For the US senatorial debates and the other travaux préparatoires leading up to this declaration, cf Wilcox, above n 1401, et seq.; L Preuss, ‘The ICJ, the Senate and Matters of Domestic Jurisdiction’ (1946) 40 AJIL 720 et seq.; Briggs, ‘Reservations’, above n 1155, 328 et seq.; Briggs, ‘The US and the ICJ’, above n 1401, 306–307. See also M Whiteman, Digest of International Law, vol 12 (Washington, 1971) 1295 et seq., 1305 et seq.

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matters of an exclusively internal nature. In this way it gains a considerable scope. Conceptually, however, this type of reservation can accompany any kind of subject matter. Paragraph 5 of the UK’s Declaration of 18 April 1957 thus included an automatic reservation in connection with ‘national defence’.1404 In all cases, the essential element is to know who has the ultimate power to decide whether the conditions for the reservation’s application are satisfied. If the ultimate power belongs to the court or tribunal, the reservation is an objective one; if the power remains the exclusive privilege of the declaring State, the reservation is a subjective or ‘automatic’ one. The distinction depends solely on the criterion ratione personae and not ratione materiae. At the time of writing (27 April 2010), there are five extant automatic reservations (all accompanying the ‘reserved domain’ exception), namely to the optional declarations of Liberia (1952), Malawi (1966), Mexico (1947), the Philippines (1972) and Sudan (1958). The USA, for its part, withdrew its optional declaration in 1984 and since then has no longer been a party to the system of the optional clause. As examples, the Liberian declaration states that: ‘This declaration does not apply . . . to any dispute which the Republic of Liberia considers essentially within its domestic jurisdiction’; and the Mexican declaration provides that: ‘This declaration . . . does not apply to disputes arising from matters that, in the opinion of the Mexican Government, are within the domestic jurisdiction of the United States of Mexico . . .’. The dates of those declarations that are accompanied by automatic reservations show that this is, in fact, rather an old type of reservation, now running out of steam, none of the reservations of this type having been included in a declaration dated after 1972. The fact that the number of reservations of this kind is relatively marginal (five out of 66, or some 7.6 per cent of the declarations) likewise helps to keep the phenomenon within bounds. Nevertheless, the problem of such a reservation’s effect could arise immediately if any of the five States mentioned were to sue or be sued by another State before the Court on the basis of Article 36, paragraph 2 of the Statute. The only important legal question that arises as regards such reservations is the issue as to their validity. Can a State reserve to itself the ultimate decision as to the Court’s jurisdiction? Is that not directly contrary to Article 36, paragraph 6 of the Statute, which expressly reserves the final decision to the Court? If there is an inescapable conflict between the reservation and the Statute, should not the former be declared void? And should the Court not consider to what extent it is possible to separate the reservation from the rest of the declaration, applying (by analogy) Article 44, paragraph 3 of the 1969 Vienna Convention on the Law of Treaties? The question has been widely debated among leading commentators. The Court itself, by contrast, has so far always refused to take a position on this point, sometimes using highly ingenious means to avoid doing so. A clear majority of commentators have not only deplored the practice of making such reservations on political grounds, but have also taken the view that they are legally invalid, that is, void.1405 Various arguments have been put forward in support of this proposition. 1404   ICJ Yearbook 1957/1958, 211: ‘or relating to any question which, in the opinion of the Government of the United Kingdom, affects the national security of the United Kingdom or of any of its dependent territories’. 1405  Separate Opinion of Judge H Lauterpacht, in the Norwegian loans case, ICJ Reports 1957, 43 et seq.; Dissenting Opinion of the same Judge in the Interhandel case, ICJ Reports 1959, 97 et seq. In the same sense, see the Dissenting Opinion of Judge Guerrero, in the Norwegian loans case, ICJ Reports 1957, 68 et seq.; the Dissenting Opinion of Judge Read, ibid, 94–95; the Separate Opinion of Judge Spender in the Interhandel case, ICJ Reports 1959, 55 et seq.; the Dissenting Opinion of Judge Klaestad, ibid, 76 et seq.; the Dissenting Opinion of Judge Armand-Ugon, ibid, 93–94 (the last two with an exception on the question of severability – see below); the Dissenting Opinion of Judge Chagla in the case on the Right of passage over Indian territory (Preliminary



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1) Incompatibility with Article 36, paragraph 6 of the Statute. Automatic reservations are incompatible with Article 36, paragraph 6, of the Statute. Paragraph 6 gives expression to a fundamental principle of the law on judicial dispute resolution, that the ultimate power to decide the question of jurisdiction rests with the tribunal seised of the case – here, the Court itself (jurisdiction over jurisdiction/compétence de la compétence).1406 This is the most obvious reason to think automatic reservations invalid. It will be remembered that States have no right to derogate from the Statute and nor can they depart from it unilaterally in such a way as to be binding on the Court. 2) Incompatibility with Article 36, paragraph 2 of the Statute. Automatic reservations are also incompatible with Article 36, paragraph 2 of the Statute. The paragraph institutes a system of compulsory jurisdiction established before actual disputes arise. It requires at least a minimum level of binding commitment from States submitting to its provisions.1407 A State whose reservation is ‘automatic’, since it retains the exclusive right to judge whether the reservation is or is not applicable in any given circumstances, is not in reality making a binding commitment to any obligation at all. In effect, its reservation means that all that is created is an illusion of binding jurisdiction, the underlying reality of binding obligations simply being missing.1408 Submission to the Court at this level is turned into something that is merely potestative – in effect it purports to give the State a right to submit but not an obligation to do so. The compulsory jurisdiction is turned into an optional one, and the optional clause into a forum prorogatum. This is incompatible with the whole system of compulsory jurisdiction.

Objections), ICJ Reports 1957, 166 et seq.; and the Dissenting Opinion of Judge Schwebel, in the case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility), ICJ Reports 1984, 601–602. At the level of argument, cf the Swiss Observations and Guggenheim pleading, in the Interhandel case, ICJ, Pleadings, Oral arguments and Documents (1959) 407 et seq., 575 et seq.; the Australian Memorial and Ellicott pleading in the Nuclear tests case, ICJ, Pleadings, Oral arguments and Documents vol I (1974) 208 et seq., 306 et seq. In the same sense, cf JHW Verzijl, The Jurisprudence of the World Court, vol II (Leiden, 1966) 284; Merrills, above n 1094, 114; Briggs, ‘Reservations’, above n 1155, 360–61, 363; Briggs, ‘The US and the ICJ’, above n 1401, 310 et seq.; Waldock, ‘Decline of the Optional Clause’, above n 1094, 271 et seq.; Jennings, ‘Recent Cases’, above n 1401, 361 et seq.; Guggenheim, ‘Der sogenannte automatische’, above n 1401, 124 et seq.; Holloway, above n 1399, 687–88; Dubisson, above n 1092, 186, 189; Preuss, above n 1403, 729; Zoller, La bonne foi, above n 1401, 135; Maus, Les reserves, above n 1401, 153 et seq.; Goldie, ‘The Connally Reservation’, above n 1401, 290; KR Simonds, ‘The Interhandel Case’ (1961) 10 ICLQ 522 et seq., 531; RP Anand, Compulsory Jurisdiction of the International Court of Justice (London, 1961) 204; D Vignes, ‘Observations sur la nouvelle déclaration française d’acceptation de la juridiction obligatoire de la CJI’ (1960) 64 RGDIP 59; G Berlia, ‘La jurisprudence des tribunaux internationaux en ce qui concerne leur compétence’ CCHAIL, vol 88, 1955-II, 115 et seq.; G Perrin, ‘L’affaire de l’Interhandel (Exceptions préliminaires)’ (1959) 16 ASDI 167 et seq., 174–75; L Gross, Essays on International Law and Organization, vol II (New York, 1984) 750. cf also the Resolution in the Yearbook of the IIL, 1959-II, 359. 1406   Individual Opinion of Judge H Lauterpacht, in the Norwegian loans case, ICJ Reports 1957, 43–48, 43–44; Dissenting Opinions of Judges Guerrero, ibid, 68 et seq.; and Read, ibid, 94–95; Dissenting Opinion of Judge H Lauterpacht, Interhandel case, ICJ Reports 1959, 101, 103 et seq.; Separate Opinion of Judge Spender, ibid, 56; Dissenting Opinion of Judge Klaestad, ibid, 76; Dissenting Opinion of Judge Armand-Ugon, ibid, 92–93. cf Shihata, The Power of the International Court, above n 1401, 32 et seq., and 285 et seq., 48 et seq.; Waldock, ‘The Plea of Domestic Jurisdiction’, above n 1401, 131 et seq.; Crawford, ‘The Legal Effect of Automatic Reservations’ 64 et seq., 68 et seq. 1407   Art 36, § 2, of the Statute: ‘The states parties to the present Statute may at any time declare that they recognize as compulsory, ipso facto . . .’ (italics added). 1408   Separate Opinion of Judge H Lauterpacht, Norwegian loans case, ICJ Reports 1957, 48. Dissenting Opinion of Judge Guerrero, ibid, 68. Dissenting Opinion of Judge H Lauterpacht, Interhandel case, ICJ Reports 1959, 106– 107. Separate Opinion of Judge Spender, ibid, 56. cf Shihata, The Power of the International Court, above n 1401, 284 et seq. Waldock, ‘The Plea of Domestic Jurisdiction’, above n 1401, 135. Crawford, ‘The Legal Effect of Automatic Reservations’ 74 et seq.

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3) No reciprocity. Article 36, paragraph 2 of the Statute provides that the Court’s jurisdiction can be accepted by a unilateral declaration ‘in relation to any other state accepting the same obligation’. As the Court has often emphasised, it has jurisdiction to the extent that the parties declarations coincide, that is, within the limits of the more narrowly drafted of them.1409 In the case of an automatic reservation, this common denominator is completely lacking. The substance of the obligations apparently assumed by the parties diverges to the point where it actually excludes any residual obligation that can be classified as identical.1410 What we have here is a variant of the argument that in reality no obligation has been undertaken. 4) Impossibility of withdrawing unilaterally from a case once the Court is validly seised of it. The reserving State in effect claims, by virtue of its automatic reservation, to retain the power to withdraw unilaterally from a case even after the Court has been validly seised of it. This amounts to a violation of the principle that the elimination of a head of jurisdiction after the Court is seised of a case does not eliminate the Court’s jurisdiction (the principle of the forum perpetuum or perpetuatio fori).1411 5) Priority of municipal over international law. The acceptance of automatic reservations would lead to the primacy of municipal law over international law. The reserving State could in effect impose on the Court its own internal conception of the ‘reserved domain’, or indeed of some other notion it considered relevant. In the absence of any renvoi from international to municipal law, this approach contradicts the principle of a hierarchy of norms to be strictly applied before an international jurisdiction such as the Court.1412 If one accepts these arguments, or at least one of them, the incompatibility of automatic reservations with the Statute (or international law linked with the Statute) must be considered to make the reservations null and void. Does that, in turn, make the entirety of the declarations null and void? Or can the reservation be separated from the rest of the declaration, so as to apply the maxim utile non debet per inutile vitiari,1413 the nullity of one part of the declaration not prejudicing that part of the declaration that is legally irreproachable? The real question here relates to the degree of intimate connection between declaration and reservation. Leading commentators are singularly divided over this issue.1414 The majority favour non-severability, which means double nullity;1415 a 1409   Moroccan phosphates case (1938), PCIJ, Series A/B, no 74, 22. Case of the Electricity Company of Sofia and Bulgaria (1939), PCIJ, Series A/B, no 77, 81. Anglo-Iranian Oil case, ICJ Reports 1952, 103. Norwegian loans case, ICJ Reports 1957, 23–24. Right of passage case (Preliminary Objections), ICJ Reports 1957, 142. 1410   As to this aspect, cf Greig, International Law, above n 1401, 501, 503. 1411  Waldock, ‘Decline of the Optional Clause’, above n 1094, 261–63. cf generally Waldock, ‘The Plea of Domestic Jurisdiction’, above n 1401, 136; Briggs, ‘Reservations’ above n 1155, 362; Dubisson, above n 1094, 189 (‘potestative’ condition); Alexandrov, Reservations, above n 1155, 84–85; L Gross, ‘Bulgaria Invokes the Connally Amendment’ (1962) 56 AJIL 378–79 (more reserved). Contra, Greig, International Law, above n 1401, 502, 504; Shihata, The Power of the International Court, above n 1401, 288–89. 1412   Greig, ‘Nicaragua’, above n 1401, 193. 1413   Corpus iuris canonici, Liber Sextus, De regulis iuris, regula 37. Gloss Non tenere, to Dig 32, 9 pr. (Accurse). cf HH Seiler, ‘Utile per inutile non vitiatur’ in Essays M Kaser (Munich, 1976) 127 et seq. In our own context, cf the Dissenting Opinion of Judge H Lauterpacht in the Norwegian loans, case, ICJ Reports 1957, 56–57. 1414   cf Shihata, The Power of the International Court, above n 1399, 286–89; Alexandrov, Reservations, above n 1155, 85–86; Greig, ‘Nicaragua’, above n 1401, 186 et seq. 1415   In this sense, the Separate Opinion of Judge H Lauterpacht in the Norwegian loans case, ICJ Reports 1957, 55–59; Dissenting Opinion of Judge H Lauterpacht in the Interhandel, ICJ Reports 1959, 116–17; Separate Opinion of Judge Spender, ibid, 55, 57; Dissenting Opinion of Judge Chagla, Right of passage case (Preliminary Objections), ICJ Reports 1957, 167. Szafarz, above n 1094, 54; Jennings, ‘Recent Cases’, above n 1401, 362; Dubisson, above



CONSENSUAL JURISDICTION 507

minority, however, accept severability, and thus think that the validity of the declaration survives.1416 The majority view is that there cannot be severance, because the links between the two elements (declaration and reservation) are simply too strong. The reservation is, for the reserving State, an essential basis of its consent to participate in the system of compulsory jurisdiction.1417 In addition, a separation of the two would result in a radical transformation of the extent of the obligation undertaken. This is particularly the case as regards automatic reservations relating to the reserved domain of internal jurisdiction, since it is a particularly malleable category. Obviously the declaring State cannot be taken to have consented to such a transformative change in the scope of its declaration. Unless the State gives notice that it has changed its view, the Court, if it simply deletes the reservation and leaves the declaration, will completely subvert the State’s wishes. It follows that the nullity of the reservation must lead to the nullity of the entire declaration. The whole head of jurisdiction under the optional clause is annulled, and in respect of that clause there cannot be said to be any consensual jurisdiction at all. The contrary argument runs that the declaration and the reservation constitute two distinct legal acts, provided for under different paragraphs of Article 36 of the Statute.1418 One of these provisions relates to the establishment of jurisdiction, the other to limitations to that jurisdiction. There is no reason to consider one of these two elements solely as a function of the other. Two essential arguments are advanced in support of this ‘independence/ severability’ thesis. The first is that, taking into account the object and purpose of the system of the optional clause under Article 36, paragraph 2 of the Statute, the declaring State manifestly has the necessary will to give the Court a compulsory jurisdiction. Otherwise it would be difficult to see why the State would have chosen to become a party to the optional clause system in the first place, rather than to continue accepting or declining jurisdiction only on an optional ad hoc basis. The reservation merely expresses a limitation as to the primary wish of the State. The two elements, declaration and reservation, thus operate on different planes. The first is a matter of fundamental intention; the second is an ancillary matter. From this perspective, it becomes possible to consider the question of effet utile of the system and the question of respect for the fundamental will of the declarant State. They ought to lead to the elimination of the invalid aspects of the reservation while still preserving the State’s participation in the system. A supporting argument is to be found in the presumption in favour of the validity of a legal act (interpretatio in favorem validitatis). It is better, when faced with various equally possible interpretations, to choose the one that is compatible with the applicable law and thus with the validity of the legal act in question. n 1094, 189; Crawford, ‘The Legal Effect of Automatic Reservations’, above n 1401, 68; Maus, Les reserves, above n 1401, 157; Waldock, ‘Decline of the Optional Clause’, above n 1094, 272–73; de Visscher, Problèmes d’interprétation judiciaire, above n 1351, 212–13. 1416   Dissenting Opinion of Judge Klaestad, Interhandel, ICJ Reports 1959, 76; Dissenting Opinion of Judge Armand-Ugon, ibid, 91; Judge Carry, Declaration, ibid, 32; Memorial of Australia in the Nuclear Tests case, ICJ, Pleadings, Oral arguments and Documents, vol I (1974) 308 et seq. See also Briggs, ‘Reservations’, above n 1155, 360–61; Vignes, ‘Observations’above n 1405, 59; Greig, ‘Nicaragua’, above n 1401, 186 et seq.; Perrin, ‘L’affaire de l’Interhandel’, above n 1405, 167–68; JHW Verzijl, ‘L’affaire relative aux Emprunts norvégiens’ in Verzijl, The Jurisprudence of the World Court, above n 1405, 285–86, 287–88. 1417   Art 44, § 3(b) of the 1969 Vienna Convention provides that invalid clauses can be separated from the remainder of the treaty only if ‘it appears from the treaty or is otherwise established that acceptance of those clauses was not an essential basis of the consent of the other party or parties to be bound by the treaty as a whole’. 1418   At §§ 2 and 3.

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There is always a presumption that the subject-of-law intends to act in conformity with the law.1419 Finally, there is D Greig’s reminder that, after all, although the USA’s Congress wished to limit the Court’s jurisdiction via the reservation, there was another state organ, namely the Executive branch, which was no less clear in its desire to give the Court jurisdiction via the declaration.1420 Nevertheless, it is difficult, perhaps even rash, to accept that suppletive maxims of interpretation and various legal presumptions should be allowed to upset the balance and internal economy of a declaration, and the will of the declarant State, to the point where doing so conflicts with the apparently clear intentions of that State, as expressed through the complex and unique regime of an optional declaration accompanied by a reservation. Also, the Court itself has accepted, in the case on Fisheries Jurisdiction (1998), that the regime of declaration and reservation is itself a unity, and that neither of the two elements is a priori subordinate to the other.1421 If we take the principles in Article 44, paragraph 3 of the 1969 Vienna Convention on the Law of Treaties (applicable by analogy) seriously, the nullity of the reservation ought probably to bring in its train the nullity of the entire declaration, on the basis that that the conditions for severing the two will not normally be satisfied. Without the protecting shield of the automatic reservation, the declaring State would not have subscribed the optional declaration at all. The Court’s own jurisprudence, with its many allusions to the subject, sheds only indirect and uncertain light on this question. For reasons of judicial policy that are quite easy to understand, the Court, whenever it could base its decision as to jurisdiction on other grounds, has always avoided addressing the problem head-on, which would have meant deciding the validity of the automatic reservation. In this way the Court has managed to avoid getting into a complex debate which might have been embarrassing whatever the outcome. The case on Nationals of the United States of America in Morocco (1952) was based on the optional declarations of the USA and France, both featuring an automatic reservation. An ad hoc agreement was, however, made between the two States as to the Court’s jurisdiction, and consequently neither side invoked a (subjective) reservation. The agreement enabled the Court to take cognisance of the case, in what has sometimes been interpreted as a particular kind of forum prorogatum.1422 In the Norwegian loans case (1957), between France and Norway, Norway raised a Preliminary Objection to the Court’s jurisdiction on the basis of the French automatic reservation (relating to the ‘reserved domain’ of internal jurisdiction). However, Norway relied, first and foremost, on an objective determination of national jurisdiction, invoking in that regard the norms of international law. Secondly, and on a subsidiary basis, Norway claimed the benefit, on the basis of reciprocity, of the reservation to the French declaration excepting from the Court’s jurisdiction all questions of national jurisdiction ‘as understood by the French Government’. Here, then, the automatic reservation was turned against the State which had made it in the first place.1423 It might seem that in this situation it would be impossible for the Court to avoid 1419   In an often cited passage, the Court emphasised that: ‘It is a rule of interpretation that a text emanating from a Government must, in principle, be interpreted as producing, and being intended to produce effects in accordance with existing law and not in violation of it.’ (Right of passage over Indian territory, Preliminary Objections, ICJ Reports 1957, 142) 1420   Greig, ‘Nicaragua’, above n 1401, 192. 1421   ICJ Reports 1998, 453, § 44. 1422   Separate Opinion of Judge H Lauterpacht, in the Norwegian loans case, ICJ Reports 1957, 60. 1423   On this effect, cf Briggs, ‘Reservations’, above n 1155, 338, 344 and more generally Gross, ‘Bulgaria Invokes the Connally Amendment’, above n 1411, 357 et seq.



CONSENSUAL JURISDICTION 509

taking a position on the validity of the reservation.1424 However, the Court contrived to do exactly that, basing itself instead on the fact that neither of the parties had disputed the validity of the French declaration;1425 it also took advantage from the objective conception put forward by Norway. In the case on the Aerial incident of 27 July 1955 (USA v Bulgaria, 1959), Bulgaria, like Norway in the case cited above, sought to rely on the USA’s reservation. The USA then asked that the case, which it had itself brought before the Court, should be struck from the list because it wished to withdraw it. So the Court was once again able to avoid pronouncing on the validity of the automatic reservation.1426 The question arose again, the same year, in the Interhandel case (Interim measures).1427 The Court said it should be dealt with at the same time as jurisdiction and admissibility, taking the view that it had an autonomous power to order provisional measures of protection based directly on Article 41 of the Statute. In 1959, when dealing with jurisdiction and admissibility,1428 the Court declared a Swiss request inadmissible because internal means of recourse had not been exhausted.1429 Once again, the Court was able to navigate round the reef of the automatic reservation. It was exactly the same in the Nuclear tests cases of 1974:1430 the Court was able to use other grounds as the basis of its declaration that the applications were ‘without object’.1431 Finally, in the case on Military and paramilitary activities in and against Nicaragua,1432 the USA renounced the right to invoke its automatic reservation.1433 The Court avoided raising the question of its own volition, being only too happy to avoid it. Since that time, the question of the automatic reservation has lain dormant. It has sometimes been argued that the Court’s attitude necessarily implies that the automatic reservation is valid.1434 If the reservation is legally null and void and is also not detachable from the declaration, it will automatically bring with it the nullity of the optional declaration. For that reason the head of jurisdiction would simply not have existed, so that the Court could not have taken cognisance of various cases which it has in fact decided. For another school of thought, the Court’s position is simply contradictory, the Court saying it does not want to decide a question that, in reality, it has, by its attitude, decided implicitly.1435 But the following argument is also possible: if the Court would in any event have to declare itself to be devoid of jurisdiction on other grounds, then the 1424   In this sense, the Dissenting Opinion of Judge Guerrero in the Norwegian loans case, ICJ Reports 1957, 67–69. See also the Separate Opinion of Judge H Lauterpacht, ibid, 46; the Separate Opinion of Judge Spender in the Interhandel case, ICJ Reports 1959, 54, 56; the Dissenting Opinion of Judge Klaestad, ibid, 75–76; the Dissenting Opinion of Judge Armand-Ugon, ibid, 91; and the Dissenting Opinion of Judge H Lauterpacht, ibid, 97 et seq. 1425   ‘The validity of the reservation has not been questioned by the Parties . . . In consequence the Court has before it a provision which both Parties to the dispute regard as constituting an expression of their common will relating to the competence of the Court. The Court does not therefore consider that it is called upon to enter into an examination of the reservation in the light of considerations which are not presented by the issues in the proceedings. The Court, without prejudging the question, gives effect to the reservation as it stands and as the Parties recognize it.’ (ICJ Reports 1957, 27) 1426   As to this case, see Gross, ‘Bulgaria Invokes the Connally Amendment’, above n 1411, 357 et seq.; Alexandrov, Reservations, above n 1155, 87–88. 1427   ICJ Reports 1957, 105 et seq. 1428   cf Alexandrov, Reservations, above n 1155, 83 et seq.; Shihata, The Power of the International Court, above n 1401, 279 et seq. 1429   ICJ Reports 1959, 29. 1430  ICJ, Memorials, Pleadings and Documents, vol. I (1974) 208 et seq., 306 et seq., where Australia pleaded nullity and severability without making any mention of good faith. 1431   ICJ Reports 1974, 253 et seq., 457 et seq. 1432   ICJ Reports 1984, 392 et seq. 1433   As to the reasons, cf Greig, ‘Nicaragua’, above n 1401, 181–82. 1434   Szafarz, above n 1094, 55, on the Nicaragua case. 1435   Dissenting Opinion of Judge H Lauterpacht, Interhandel, ICJ Reports 1959, 119.

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economy of the process might be a legitimate basis for the Court to avoid a diversion into the bye-ways of automatic reservations, and to go instead straight to the argument that is decisive for disposing of the particular case it is hearing.1436 The lesson of all this practical experience is that the Court does not tend to see the validity of the reservation in general terms.1437 It applies the declaration if its validity is not challenged by a party.1438 In some of the cases, the Court’s abstention can be explained by the supervening event of a kind of forum prorogatum. It has been argued that Article 36, paragraph 6 represents strict law and that consequently the Court ought, in theory, to raise the question proprio motu.1439 However, Article 36, paragraph 6 imposes on the Court a positive duty to decide only if its jurisdiction is challenged. Here, however, the hypothesis is that the validity of the reservation is not disputed by either of the parties. The possibility of the Court being under a duty to raise the question motu proprio would therefore rest more on its duty to watch over the integrity of the Statute and the Rules and not allow clauses contrary to these constitutive texts to take effect. What constructive solutions can be suggested to resolve the problem of automatic reservations? If we accept that the declaration and the reservation are inseparable,1440 the consequent practical differences between nullity, on the one hand, and validity on the other, are at least slightly reduced.1441 If the reservation is valid, the subjective determination of the extent of the reserved domain (or some other matter) will deprive the Court of jurisdiction whenever a State invokes it. To some extent, the reserving State will thus profit from its own ‘turpitude’.1442 If, however, the reserving State (or its opponent, invoking the principle of reciprocity) does not actually invoke the reservation, the Court will have jurisdiction. A window of opportunity is thus kept open. If the reservation is invalid and this entails the nullity of the entire declaration (that is, severability is not admitted), the title of jurisdiction – on the basis of the optional clause regime – will be inapplicable. It will always be inapplicable, without any distinction as to whether or not the reservation is invoked. The nullity of the reservation has a more radical and indeed more unwelcome effect. Although nullifying the reservation better respects the integrity of the Statute, and there are powerful (even decisive) reasons in favour of that course, it would mean that in every case the Court would have no jurisdiction and would be deprived of the opportunity to hear even those cases which neither State actually invoked the automatic reservation. Perhaps that is the price that has to be paid for safeguarding the integrity of the judicial function. One has at least to admit, however, that it is a difficult dilemma. With a view to avoiding these dangers, two solutions have been proposed. 1)  The theory of consent after the event (‘post hoc’). According to one doctrinal school, automatic reservations are valid, but their true legal effects are not quite the same as their texts say. In this scheme of things, the situation is analysed from the perspective of subse  cf Jennings, ‘Recent Cases’, above n 1401, 361.  Shihata, The Power of the International Court, above n 1401, 295 et seq. 1438  Alexandrov, Reservations, above n 1155, 87. 1439   See generally, Shihata, The Power of the International Court, above n 1401, 66 et seq. 1440   See above. 1441   On the few marginal differences, cf Shihata, The Power of the International Court, above n 1401, 293–94; Jennings, ‘Recent Cases’, above n 1401, 362–63. 1442  Alexandrov, Reservations, above n 1155, 85. For Judge H Lauterpacht (Dissenting Opinion in the Interhandel case, ICJ Reports 1959, 118), there was no illegality in the making of such a reservation and therefore there could be no sanction against it. The reservation was simply deprived of legal effects. 1436 1437



CONSENSUAL JURISDICTION 511

quent conduct or the forum prorogatum.1443 The true legal meaning of the reservation, on this reading, is that the Court’s jurisdiction may be perfected by the subsequent conduct of the parties in not invoking it, either directly or on the basis of reciprocity.1444 On this reading, the reservation provides a flexible framework within which the reserving State promises to consider the question of jurisdiction every time the Court is seised of a relevant case. What then happens is either that one of the parties to the case invokes the reservation, thus eliminating the Court’s jurisdiction, or they renounce the use of the reservation and thus confirm the Court’s jurisdiction. In short, then, the declaration, accompanied by its automatic reservation, is an unperfected (soft) undertaking as to jurisdiction. Its effect is to create a context for special consent on a case-by-case basis, and it is the latter which constitutes the true basis of the Court’s jurisdiction. This means, of course, that the compulsory jurisdiction is transformed, by the act of the declaring State, into a facultative or optional one. Within this ingenious construction, the question of the reservation’s validity does not ultimately matter. Everything turns on the parties’ attitude to each given case. One still needs, however, to consider whether this reading is in fact compatible with the Statute. According to D Greig, who has studied the matter meticulously, the Statute has, in this regard, been modified by ‘subsequent practice’. States have acquiesced expressly or by not opposing this functioning of the automatic reservation within the system of the optional clause.1445 This is an interesting and subtle chain of reasoning, which makes it possible to avoid the paradoxes which tend to result from more decisive solutions. 2)  Invoking the principle of good faith. An alternative conception, every bit as ingenious as the above reading, would make it possible for the Court to review and oversee the subjective allegation made by a State under an automatic reservation, in light of the principle of good faith and the prohibition against the abuse of rights. This would respect the essence of Article 36, paragraph 6 of the Statute; and a firm obligation (albeit reduced in scope) would thus have been undertaken in advance.1446 The idea of intervening in such a way as to use the good faith and abuse of rights principles as stabilisers seems to have originated with Maurice Bourquin in the Norwegian loans case (1957). Norway had argued, along these lines, as follows: Certainly, such a reservation must be interpreted in good faith, and a Government which hid behind it in order to deny the Court’s jurisdiction in a case which was not manifestly one ‘belonging essentially to the internal jurisdiction’ would be committing an abuse of its rights, to which the Court would not yield. (our translation)1447 1443   Waldock, The Plea of Domestic Jurisdiction’, above n 1401, 133–34. Greig, ‘Nicaragua’, above n 1399, 198 et seq. Shihata, The Power of the International Court, above n 1401, 293. cf also Crawford, ‘The Legal Effect of Automatic Reservations’, above n 1401, 83 et seq. (against the concept of the forum prorogatum, but leading to a solution which in substance is similar). 1444   Greig, ‘Nicaragua’, above n 1401, 199. Dissenting Opinion of Judge Read, in the Norwegian loans, case, ICJ Reports 1957, 91 et seq. 1445  Greig, International Law, above n 1401, 503–504 (2nd edn, 654–57). 1446   If the Court were in a position to examine the question whether the use of the reservation does or does not constitute an abuse, the objection that the reservation is incompatible with the Statute would lose much of its force. There could be no disputing the fact that a minimal and effective obligation had been accepted in the sense of Art 36, § 2, of the Statute, but the Court’s jurisdiction could not be disputed in an abusive way. In addition, if the Court were in effect to be sharing ‘jurisdiction over jurisdiction’ with the reserving State, the irreducible core of that second degree jurisdiction would belong to the Court and exclusively to the Court, because the Court alone would decide whether the invocation of the reservation was abusive. 1447   Preliminary Objections of Norway, ICJ, Pleadings, Oral arguments and Documents, vol I (1957) 131, § 26. As to the origins of the formulation in the work of M Bourquin, cf Guggenheim, ‘Der sogenannte automatische’, above n 1401, 128.

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The final phrase suggests that the Court can at least consider whether the allegations made by virtue of the reservation are or are not manifestly abuses, which in the last resort is the key danger from which the Court should be safeguarding the system. On the basis of this line of legal analysis, if and when a State involved in a case invokes the reservation in a valid way, the result will be to exclude the Court’s jurisdiction without doing any real collateral harm. Of course, it will still be regrettable that the Court’s jurisdiction was accepted on so qualified a basis, but even a very limited acceptance is better than none at all, unless, that is, it allows States to behave in an arbitrary way. If, on the other hand, the reservation is invoked in an abusive manner, it will be possible to avoid the general invalidation of the entire optional declaration and the ill effects resulting for the whole system of the optional clause. It is then only the concrete abusive argument, based on the reservation (and not the reservation itself, nor indeed the optional declaration) which can be set aside by the Court, leaving the declaration and the reservation intact. In this way the application of the principles of good faith and abuse of rights leads to the declaration and the reservation being separated only for the purposes of the particular case. It is difficult to see any disadvantages in this intellectual structure. There are no apparent disadvantages for the State, which remains in a position to rely on its reservation without having to face an argument that the reservation is null ab initio; and equally, none for the opposing party, which will not have to suffer the consequences of seeing the title of jurisdiction declared void. In addition, there are no apparent disadvantages for the Court, which is thereby enabled to avoid having to set excessive limits to its own judicial functioning. Given all these advantages, a school of thought amongst leading commentators has not shied away from the idea of applying the good faith principle in this manner and context.1448 A parallel effort was made in the early twentieth century in relation to reservations in arbitration clauses excepting ‘vital interests’ or the ‘honour of the State’. It was stressed that such determinations must be made in good faith.1449 In the context of a Treaty between Brazil and Switzerland, containing an automatic reservation with regard to ‘constitutional principles’, the Swiss Federal Council, in a message of 1924 to the Federal Assembly, said that: [The parties] will interpret a reservation of this importance not from the perspective of their own convenience, but in light of the principles of good faith, and the good faith that activates States carrying out their international obligations remains the best guarantee for the loyal application of a Treaty.1450

1448   cf JB Elkind, Non-Appearance before the International Court of Justice, (Dordrecht/Boston/London, 1984) 162–63, 163: ‘The odiousness or difficulty of the exercise ought not to prevent the Court from doing it’; Verzijl, The Jurisprudence of the World Court, above n 1405. 288; Greig, International Law, above n 1401, 504–506; Greig, ‘Nicaragua’, above n 1401, 182 et seq., 206–207; GG Fitzmaurice, The Law and Procedure of the International Court of Justice, vol II (Cambridge, 1986) 617–18; Szafarz, above n 1094, 53, 55; Perrin, ‘L’affaire de l’Interhandel’, above n 1405, 172 et seq.; Gross, ‘Bulgaria Invokes the Connally Amendment’, above, n 1411, 376 et seq.; Guggenheim, ‘Der sogenannte automatische’, above n 1401, 128 et seq.; Dissenting Opinion of Judge Basdevant, Norwegian loans case, ICJ Reports 1957, 73. 1449   H Lammasch, Die Lehre von der Schiedsgerichtsbarkeit in ihrem ganzen Umfange (Berlin, 1914) 69 (exclusion of arbitrary and abusive behaviour, etc); L Renault, in Actes et Documents de la Seconde Conférence de La Haye, 15 juin–18 octobre 1907, vol II (The Hague, 1907) 67. cf also H Lauterpacht, The Function of Law in the International Community (London, 1933) 191–92; Art 30 of the Draft on arbitral procedure, obligation to execute in good faith the undertaking to arbitrate: Yb ILC 1952-II, 58, 60; Yb ILC 1953-II, 201, 208; Yb ILC 1958-II, 85. 1450   Message of 28 October 1924, P Guggenheim (ed), Répertoire suisse de droit international public, vol III (Berne, 1975) 1825.



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In a message of the same type, dated 15 June 1931, the Federal Council said, in relation to a Treaty between Switzerland and the USA: Nevertheless, the fact that there is no legal possibility of disputing the legitimacy of a reservation does not in itself lead to the inference that the application of the agreement will depend on the good pleasure of the contracting States International treaties are governed by the principle of good faith, and there is no reason to suppose that the contracting parties will fail in loyalty to this principle in interpreting their reservations to the arbitration treaty.1451

Although these messages did have to conclude that there could be no control over the exercise of good faith,1452 that was because, if a party refused to submit to arbitration, there was no tribunal in existence that could decide whether the refusal constituted an abuse. When one comes to the PCIJ and the ICJ, the position is different for obvious reasons. More recently, in the Framatome case (1982), an arbitral tribunal constituted under the auspices of the International Chamber of Commerce said this: The Iranian Government, in entering into the inter-State agreements which were the context for the disputed Contract, in creating the AEOI [Atomic Energy Organization of Iran] and in having it enter into the disputed Contract, containing the compromissory clause . . . thereby accepted, or caused to be accepted, an international obligation as regards arbitration, one which it certainly considered valid and binding (when even the subject of the contract, the installation of nuclear factories, was a matter of national sovereignty). It is impossible to suppose that the Iranian Government, or the AEOI, could have subscribed such an obligation to arbitrate without truly intending to be bound. Such an interpretation would, indeed, be incompatible with the principle of good faith.

Citing an award of 1971, the tribunal added: International public policy [(ordre public)] would be strongly opposed to the idea that a State organ, dealing with persons foreign to that State, could openly and deliberately agree to an arbitration clause in which the co-contracting party confides, and then, whether in the arbitration proceedings or in the execution proceedings, plead the nullity of its own given word.1453

This reasoning is capable of application mutatis mutandis to automatic reservations in respect of the Court’s jurisdiction. On several occasions since 1957 arguments have been advanced in favour of applying the principles of good faith and non-abuse of rights to automatic reservations. In particular, one can cite the pleadings by P Guggenheim on behalf of Switzerland in the Interhandel case (1959).1454 The USA had initially pleaded the same argument in the case on the Aerial incident of 27 July 1955 (1959), when Bulgaria relied on its automatic reservation. According to the USA, the Connally reservation ‘does not permit the Government of the United States, or any other government seeking to rely on this reservation reciprocally, arbitrarily to characterize the subject matter of a suit as essentially within the domestic jurisdiction’; it ‘does not permit the United States or any other State to make an arbitrary determination, in bad faith’.1455 However subsequently, in a sudden change of tactics, the USA’s Agent asked for the case to be withdrawn. He explained, in a letter of 13 May 1960, that a more   Ibid, 1829.   ‘there is no legal possibility of disputing the legitimacy of a reservation’ (ibid, our translation) 1453   (1984) 111 JDI 78–79 (our translation). 1454  ICJ, Pleadings, Oral arguments and Documents (1959) 579–80. 1455   Ibid, 305 and 308; cf also ibid, 324. On this aspect, see Greig, ‘Nicaragua’, above n 1401, 184–86; Alexandrov, Reservations, above n 1155, 87–88; Gross, ‘Bulgaria Invokes the Connally Amendment’, above n 1411, 369–70. 1451 1452

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detailed study of the travaux préparatoires leading to the USA’s reservation had led to the conclusion that the premises on which the argument about the control of abuses was based were not correct: that there could be no controls of that kind; and that the automatic reservation was a purely subjective and unilateral barrier to the Court’s jurisdiction.1456 In D Greig’s view,1457 the Court should not give any considerable weight to such assertions, dictated as they are by the needs of the moment. Besides which, the interpretation of an international reservation could not depend solely on the travaux préparatoires of internal bodies within the USA. A school of thought among leading commentators, and among the judges of the Court also, remains resistant to the idea of applying the principles of good faith and non-abuse of rights to automatic reservations.1458 Some of them, however, have displayed a relatively nuanced attitude. For example, Sir Hersch Lauterpacht, objecting to the idea of the Court having ultimate control on the basis of these principles, nevertheless accepted that, as a matter of law, the principles do apply.1459 Similarly, the Canadian Judge Read, although ‘little inclined’ to introduce the concepts of good faith and abuse of rights into this field of law of the Court, because he considered that they were purely subjective and somewhat infamous, immediately added, from the objective perspective: ‘the Respondent State, in invoking the reservation, must establish that there is a genuine understanding i.e. that the circumstances are such that it would be reasonably possible to reach the understanding that the dispute was essentially national’.1460 The Canadian judge accepted that there could be judicial control provided it was seen from an objective angle. His rejection of good faith and abuse of rights reflected a certain misunderstanding of the sense of these concepts, derived as they are from the Roman law tradition. Three main objections have been raised to the Court’s reviewing and controlling the question as a function of the good faith principle. 1) First, it is said that the ultimate power of control has been deliberately refused to the Court. The reserving State has declared itself to have sole and exclusive jurisdiction to decide the scope of the reserved domain or some other excepted category. The Court’s power to examine and control such allegations is excluded, even from the perspective of controlling the abuse of rights and good faith.1461 It is, however, difficult for a reserving State to be heard arguing before the Court that its participation in the system of the  ICJ, Pleadings, Oral arguments and Documents (1959) 676–77.   Greig, ‘Nicaragua’, above n 1401, 185–86. 1458   Separate Opinion of Judge H Lauterpacht, Norwegian loans case, ICJ Reports 1957, 52 et seq.; Dissenting Opinion of Judge Read, ibid, 94; Separate Opinion of Judge Lauterpacht, Interhandel case, ICJ Reports 1959, 111 et seq.; Separate Opinion of Judge Spender, ibid, 58–59; de Visscher, Problèmes d’interprétation judiciaire, above n 1351, 210–11; Crawford, ‘The Legal Effect of Automatic Reservations’, above n 1401, 67; Jennings, ‘Recent Cases’, above n 1401, 361; Briggs, ‘Reservations’, above n 1155, 303. 1459   Dissenting Opinion of Judge Lauterpacht, Interhandel case, ICJ Reports 1959, 113. This eminent jurist had also defended the contrary view, accepting the Court’s control of the good faith aspect, when he was the ILC’s Rapporteur on the law of treaties: Yb ILC, 1953-II, 90; he accepted it in the Norwegian loans case, ICJ Reports 1957, 52. Without committing himself on the Court’s powers, Hambro, ‘The Jurisdiction of the ICJ’, above n 1304, 189, expressed the hope that States would not invoke the reservation except by way of reasonable interpretations made in good faith. 1460   Dissenting Opinion of Judge Read, Norwegian loans case, ICJ Reports 1957, 94 (italics added) and ibid, 94–95. 1461   Separate Opinion of Judge H Lauterpacht, Norwegian loans case, ICJ Reports 1957, 52–53; Dissenting opinion of Judge H Lauterpacht, Interhandel, ICJ Reports 1959, 112, 115; Separate Opinion of Judge Spender, ibid, 59; Crawford, ‘The Legal Effect of Automatic Reservations’, above n 1401, 67; de Visscher, Problèmes d’interprétation judiciaire, above n 1351, 210–11. 1456 1457



CONSENSUAL JURISDICTION 515

optional clause was based on the right to abuse its position at will. The power conferred on the Court to sanction abuses cannot be hypothetically supposed to radically alter the nature of the obligation undertaken, since that would mean simply accepting a State’s claim to have the right to commit any abuse, which is inadmissible both as a matter of general law, and more particularly under the law of treaties (the principle of good faith). 2) Next, it has been argued that the concept of the ‘reserved domain’ of internal jurisdiction is already devoid of any objective legal limit, to the point of becoming a subjective catch-all. For this reason it is said to be impossible to impose controls over it from the abuse of rights perspective. There would be no objective criterion on the basis of which to categorise a decision as an abuse.1462 This could be a valid objection only in relation to a cloudy and politicised conception of the reserved domain, not in relation to the legal concept. There simply is no legal notion of an unlimited or totally subjective reserved domain, and if there were, it could not be truly legal. The conception of the reserved domain in the legal sense that today has the widest currency, defines the reserved domain in negative terms, as the field from which international obligations are absent.1463 In addition, it may be possible to base an argument on the practice of the particular reserving State (or State invoking the reservation via the reciprocity rule) in relation to the material to be examined by the Court. This practice may show that the State in question traditionally considers a particular concrete question as an essentially internal matter.1464 If that is the case, then there is no abuse. If it is not the case, and if indeed it seems that the State is invoking the argument in a manner inconsistent with its own consistent practice, then unless there is some exceptional justification, it will be possible to conclude that the invocation of the reservation is indeed an abuse. Who, for example, can doubt that military operations in the territory of another State are not a question for the reserved domain? Who can doubt that, in such a case, the invocation of an automatic reservation as to the reserved domain would constitute an abuse?1465 3) Third, it has been claimed that the application of the principles of good faith and nonabuse of rights would introduce a practice whereby the Court would have to form an appreciation, covering subjective considerations of an odious and injurious nature, as to the motives and intentions of the State invoking the reservation. In Holloway’s view ‘[it would be] placing the judicial functions of the Court on dangerous, delicate, movable and unstable grounds . . . of highly subjective character’.1466 This line of argument is based on a conceptual equivocation, under which good faith is necessarily a subjective psychological notion. But what would really be applied would be the objective acceptance – as a principle of law – of good faith and the prohibition of abuse of rights. 1462  Separate Opinion of Judge H Lauterpacht, Norwegian loans case, ICJ Reports 1957, 54–55; Dissenting Opinion of the same judge in the Interhandel, ICJ Reports 1959, 54–55; Jennings, ‘Recent Cases’, above n 1399, 361; Maus, Les reserves, above n 1401, 159–60. Contra, Greig, ‘Nicaragua’, above n 1401, 206–207; Fitzmaurice, above n 1448, 617–18; Verzijl, The Jurisprudence of the World Court, above n 1405, 288. 1463   cf eg B Cheng, ‘La jurimétrie: Sens et mesure de la souveraineté juridique et de la compétence nationale’ (1991) 118 JDI 579 et seq., 590 et seq., 596. In this context, cf Perrin, ‘L’affaire de l’Interhandel’, above n 1405, 173. 1464   This proceeding particularly applies outside the law of contract. cf Shihata, The Power of the International Court, above n 1401, 290. 1465   Such an argument on the part of the USA in the Nicaragua case would have amounted to an abuse of rights, if it had been put forward. The USA seemed to understand this: cf Szafarz, above n 1094, 53. 1466   Holloway, above n 1405, 688, fn 21. In the same sense, the Dissenting Opinion of Judge H Lauterpacht, Interhandel, ICJ Reports 1959, 111–12. cf also Zoller, La bonne foi, above n 1401, 138–39; Briggs, ‘Reservations’, above n 1155, 303; Perrin, ‘L’affaire de l’Interhandel’, above n 1405, 173. Contra, Elkind, above n 1448, 163.

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The judges would refer to the habitual practice of the State in question, or of other States, in a given field. The actual terminology used to describe this judicial démarche hardly matters – prohibition of abuse of rights, requirement of good faith, examination of reasonableness and so on. What, then, should be our overall conclusion?1467 The question is a difficult one. Let us briefly recap on the possibilities. First of all, there is no decisive objection to the judicial examination of arguments based on the automatic reservation, carried out from the perspective of good faith and abuse of rights. We have seen the advantages of such a proceeding. If one combines these principles with the forum prorogatum concept, the result is even more satisfying. If the reservation is not invoked at all, the Court is not deprived of its jurisdiction. If the reservation is invoked, the Court can examine the State’s decision as to whether the exception applies, and the Court can then either declare that there is legitimate reason to say that it has no jurisdiction, or, in an exceptional case, where the State’s decision constitutes an abuse, can reject the argument and proceed to hear the merits. In this way the Court’s functioning would be virtually unaffected by the harmful features of this reservation. This dual line of argument also serves the general interests of the system of the optional clause. It avoids the situation in which the whole head of jurisdiction simply becomes a nullity in a rather pointless way. But is the principle of good faith in fact applicable in this way? Is the view of things outlined above compatible with the Statute? If, objectively speaking, the automatic reservation is incompatible with the imperative requirements of Article 36, paragraphs 2 and 6 of the Statute, then, in principle, it will necessarily entail the nullity of the reservation, and so, given non-severability, of the entire declaration. This would be the price payable for protecting the integrity of the Statute, which is a ‘public policy’ issue (in French, ordre public). The Court cannot dispense with respect for the provisions of the Statute.1468 Seen from this perspective, the choice is an extremely difficult one, involving steering between a Scylla and a Charybdis. Either one accepts the nullity of the reservation, in which case the head of jurisdiction simply disappears, and in that case the parties are deprived of the benefits of a solution which in fact serves their interests and would enable the Court’s activities to develop with the fewest obstacles being left in the way; or alternatively, one accepts the dual approach via forum prorogatum/good faith, in which case the Court’s head of jurisdiction is preserved and the system of the optional clause does not suffer a major reverse. However, a certain amount of damage is nevertheless then done to the Court’s ‘public policy’ that is, to the general public interest of the Court’s proper functioning and the integrity of the Statute. Perhaps, then, it is right to make the choice in favour of applying the good faith theory, given the advantages of doing so. After all, it has not been proved beyond doubt that the solution based on good faith and no-abuse of right is actually incompatible with the Statute, that is, that the solution outlined above, on the basis of those principles, in some way truly does contradict the requirements of Articles 36, paragraphs 2 and 6. In any event, if one does not accept the good faith/non-abuse of rights approach, the reservation is probably void, entailing the nullity of the declaration itself. But is it still pos1467   In any event it would be a good thing if States understood that this reservation will be useful to them only in very marginal cases, and yet can be unintendedly useful to the Respondent State on the basis of reciprocity. See Tomuschat, ‘Article 36’, above n 1094, 638. 1468   KR Simmonds, ‘The Interhandel Case’ (1961) 10 ILCQ 531.



CONSENSUAL JURISDICTION 517

sible to argue that it would suffice to interpret the reservation as the basis for a forum prorogatum? The reserving State would thus be protected from the confirmation of an unrestricted jurisdiction (which it self-evidently did not desire when it made its reservation), and at the same time the head of jurisdiction would not be annulled. The question remains as to whether such a declaration envisaging a forum prorogatum is compatible with Article 36, paragraph 2. That is a point of some difficulty. The system of the optional clause is designed to create not an optional jurisdiction, but a compulsory one. But as a matter of Article 36, paragraph 1 of the Statute, such a forum prorogatum would be valid. It would seem, therefore, that either one accepts the solution based on good faith and non-abuse of rights, or one accepts that the declaration itself becomes a nullity (which does not necessarily mean, however, that it has no value as a kind of promise to consider, in an appropriate case to consider favourably, a possible forum prorogatum outside the scope of any compulsory jurisdiction). On balance, the first approach seems perhaps preferable; and it does not exclude the forum prorogatum possibility in each single case. Immediate effect of a new optional declaration. The system of the optional clause is based on the hope that the greatest possible number of States will submit to the Court’s compulsory jurisdiction and that, with the fewest possible formal obstacles, they will thus be enabled to bring their legal disputes to the Court. One facet of this facilitated access to the Court is that the Court’s jurisdiction is established immediately when the optional declaration is deposited with the UN Secretary-General.1469 The decisive moment is when he receives the declaration. From then on, it is, in principle, possible to lodge an application with the Court. In theory, an application could be sent to the Court at the same moment when the optional declaration is sent to the Secretary-General. If there is a small difference of time in receipt to the detriment of the application, the Court will certainly apply the Mavrommatis rule (no necessity to bring a new application if the old one is in the meantime admissible) and consider itself to have jurisdiction. This rule of immediate effect arises both from the Statute and from the Court’s practice. Article 36, paragraph 2 of the State provides that the acceptance of the compulsory jurisdiction through a declaration can also be effected ‘ipso facto’ (the Latin expression in the English language text) or ‘de plein droit’ (in the French), meaning that the declaration takes immediate effect and that the Court’s jurisdiction is created by the fact of depositing the declaration. The word ‘may’ (‘pourront’) indicates that immediate effect is not a peremptory norm. States may, if they so wish, indicate that the declaration will give the Court jurisdiction only after whatever period they specify (a series of declarations do this). The fact that jurisdiction arises ipso facto from the deposit of the declaration, not from its notification to the States parties to the optional system, results from basic considerations of legal certainty. The date of deposit is certain and identical for all parties to the system. The date of notification, by contrast, is uncertain and variable. It also depends on the degree of diligence on the part of the UN Secretary-General and his staff. It would be troublesome if the temporal aspect of the Court’s jurisdiction depended on a collection of such uncertain dates, and would open the way to uncertainties and also to various kinds of manipulation. Of course, one has to accept that in consequence, the system of the optional clause does make it possible to carry out ‘surprise attacks’. At any moment, a State which was not a party may become one, simply by depositing its declaration. As from that moment, it can 1469   See Tomuschat, ‘Article 36’, above n 1094, 630. For a more singular legal argument, but leading to the same result, see G Morelli, Studi sul processo internazionale (Milan, 1963) 103 et seq.

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bring suit before the Court against another State. It will indeed enjoy a small advantage in the period between depositing its own declaration and the notification of its declaration to the other States parties to the system. Since at that time it is probably the only State aware that it has adhered to the system, it can bring a suit against another State without incurring much risk of itself being sued. Pre-seisin reciprocity is thus impaired, albeit very lightly during this brief transitory period. Any State which the newly declaring State sues does, however, have the right to take advantage, by way of reciprocity, of the reservations made by the Applicant State, and also to bring counterclaims. Reciprocity after the Court has been seised – before the Court, in other words – is fully safeguarded, whereas pre-seisin reciprocity is subject to a slight disequilbrium for a short time. Such surprise attacks are generally considered not to pose any particular legal problem. A State which is a party to the system must expect that other States may adhere to it at any time; indeed, should even wish this to happen. The existing parties continue fully to enjoy the benefits of reciprocity before the Court, and that in itself is one reason why there seems little or no need for some kind of general prohibition against surprise attacks. Nevertheless, some States have been dissatisfied by the fact that others can try to profit from this situation, most notably of all India, in the 1957 Right of passage case. Dissatisfied States take the view that the ‘third’ State is trying to obtain an undue and inappropriate advantage. The third State begins by staying outside the system and preparing itself against any possible attack; then, it becomes a party to the system at the precise moment when it wishes to make a claim against another State. In other words, it protects itself against attack for as long as possible, and exposes itself to attack only when it wants itself to attack another State. This has about it something of the appearance of guerrilla tactics. For this reason, numerous declarations have been formulated or modified in the years since 1960 so as to contain a ‘12 month reservation’ of the kind we have already discussed. The reserving State recognises the Court’s jurisdiction only ‘in cases where the instrument accepting the compulsory jurisdiction of the Court in the name of the other party to the dispute was deposited or ratified at least twelve months prior to the deposit of the application bringing the dispute before the Court’.1470 This prevents surprise attacks. A State which has newly become a party to the system can bring suit against such a State only after it has participated in the system for a period of 12 months. As a matter of reciprocity, it will equally be protected against any attack by a State having made such a reservation during that period. There is no reason to doubt the legality and validity of this reservation. It re-establishes complete preseisin reciprocity and is so designed as not to encourage States to remain outside the system until the moment they want to bring suits of their own. If a new party to the system includes this reservation in its own declaration, it must obviously bear in mind that, on the basis of reciprocity, the reservation might be invoked against its maker, and that therefore it could not immediately bring suit against another State party to the system. The question of a new declaration’s immediate effect was sharply posed in the case on the Right of passage over Indian territory (Preliminary Objections, 1957). Portugal had seised the Court of a dispute against India only three days after depositing its own optional declaration, and before India could have become aware of it in the ordinary course of notification. The Court held that the steps taken by Portugal were compatible with the Statute and correctly reflected the functioning of the system of the optional clause. It is worth citing the Court in extenso:   As to these reservations, see Tomuschat, ‘Article 36’, above n 1094, 636.

1470



CONSENSUAL JURISDICTION 519

The Court considers that, by the deposit of its Declaration of Acceptance with the SecretaryGeneral, 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 a result of the deposit by that signatory of a Declaration of Acceptance. 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 Secretary-General 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 existence between the States concerned. When India made its Declaration of Acceptance of 28 February 1940, it stated that it accepted the jurisdiction of the Court for a specified period ‘from today’s date’. It has been contended by the Government of India that as Article 36 requires not only the deposit of the Declaration of Acceptance with the Secretary-General, but also the transmission by the Secretary-General of a copy of the Declaration to the parties to the Statute, the Declaration of Acceptance does not become effective until the latter obligation has been discharged. However, it is only the first of these requirements that concerns the State making the Declaration. The latter is not concerned with the duty of the Secretary-General or the manner of its fulfilment. The legal effect of a Declaration does not depend upon subsequent action or inaction of the Secretary-General. Moreover, unlike some other instruments, Article 36 provides for no additional requirement, for instance, that the information transmitted by the SecretaryGeneral must reach the Parties to the Statute, or that some period must elapse subsequent to the deposit of the Declaration before it can become effective. Any such requirement would introduce an element of uncertainty into the operation of the Optional Clause system. The Court cannot read into the Optional Clause any requirement of that nature.1471

The Court fully confirmed this view in the case of the Land and maritime boundary between Cameroon and Nigeria (Preliminary Objections, 1998), with plenty of citations from its own decision of 1957 and in terms which again merit a lengthy citation here: The conclusions thus reached by the Court in 1957 reflect the very essence of the Optional Clause providing for acceptance of the Court’s compulsory jurisdiction. 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 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;1472 ... The Court furthermore recalls that, contrary to what is maintained by Nigeria, this Judgment [in 1957] is not an isolated one. It has been reaffirmed in the case concerning the Temple of Preah Vihear (Preliminary Objections, ICJ Reports 1961, p 31) and in the case concerning Military and paramilitary activities in and against Nicaragua (Nicaragua v United States of America) (Jurisdiction and admissibility, ICJ Reports 1984, p 392).1473

  ICJ Reports 1957, 146–47.   ICJ Reports 1998, 291, § 25. 1473   Ibid, 292, § 27. 1471 1472

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The Court went on to draw a clear distinction between the situation in which a new head of jurisdiction is created and the situation in which a declaration is withdrawn: The Court considers that the foregoing conclusion in respect of the withdrawal of declarations under the Optional Clause is not applicable to the deposit of those declarations. Withdrawal ends existing consensual bonds, while consent establishes such bonds. The effect of withdrawal is therefore purely and simply to deprive other States which 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. [35] 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 is not there.1474

The legal position could thus not be clearer. This was what enabled Yugoslavia to deposit an optional declaration on 26 April 1999 and to seise the Court of Applications against the NATO States as early as 29 April 1999 (before withdrawing its own declaration).1475 Doubtless we shall see further examples of this kind of practice in the future. The problem of withdrawing optional declarations.1476 So far as withdrawal of an optional declaration is concerned, two distinct questions arise. The first is as follows. Can a State withdraw its optional declaration? The answer is not obvious, particularly if the declaration itself does not reserve the right to withdraw it. As far as treaties are concerned, the parties are often unable to withdraw unilaterally at all. Is the position different as regards optional declarations, which are fundamentally unilateral legal acts? The second question is as follows: if declarations can be withdrawn, after what period of time will the withdrawal take effect, so as to annul the Court’s jurisdiction? Is the effect immediate or must a reasonable period of time first elapse? Is the position different if the declaration itself expressly provides that the declaring State can withdraw its declaration with immediate effect? What exactly is the role of a subjective stipulation as to time in a declaration, as opposed to the objective rules of the Statute? These questions need now to be examined in greater detail. 1)  Denunciation/withdrawal. Can a State withdraw its optional declaration? For a long time, especially under the regime of the PCIJ,1477 the question was uncertain. The principle of international law in relation to treaties is that there can be unilateral withdrawal only in particular kinds of exceptional circumstances. If this were not so, then the legal certainty that States are looking for when they enter into treaties and agreements (and these are the   Ibid, 295–96, §§ 34–35.   See, eg ICJ Reports 1999, 133, §§ 24–25. 1476   See Tomuschat, ‘Article 36’, above n 1094, 628–29, 634; F Orrego Vicuña, ‘The Legal Nature of the Optional Clause and the Right of a State to Withdraw a Declaration Accepting the Compulsory Jurisdiction of the International Court of Justice’ in Essays S Oda (The Hague/London/New York, 2002) 463 et seq.; JJ Quintana, ‘The Nicaragua Case and the Denunciation of Declarations of Acceptance of the Compulsory Jurisdiction of the International Court of Justice’ (1998) 11 Leiden Journal of International Law 97 et seq.; Rosenne, above n 1094, 815 et seq. 1477   There was only one case of denunciation/withdrawal, and its legal effects never became very clear: See Hudson, above n 1094, 476. 1474 1475



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main means of creating stability in an international community that has no central legislating body and in effect is otherwise headed for a state of permanent anarchy, the politics of sheer power) would simply be illusory. Pacta sunt servanda would not rule. Any State could simply withdraw its undertakings at any time. It could comply with them for as long as it saw an immediate interest in doing so, and then withdraw them immediately it ceased to see such an interest. Since it would have to be recognised that every State had this right, agreements would seldom run their course, since in each phase of the life of every agreement it tends to be more advantageous to one side than to the other(s). Should one not then apply these same considerations, mutatis mutandis, to optional declarations? Given the original legislative wish to extend the compulsory jurisdiction as widely as possible, the right to withdraw optional declarations cannot necessarily be considered to have been accepted. It weakens the system, which is contrary to what the draftsmen intended. And indeed, there was a presumption flowing from treaty-law analogy that militated against the capacity to unilaterally withdraw a declaration. In the time of the Permanent Court, there was no case of withdrawal until Paraguay in 1938, when that country quitted the League of Nations.1478 Unsurprisingly, this withdrawal led to challenges from a series of other States that were parties to the system. Also, when war broke out in 1939 the States of the Commonwealth (Australia, Canada, India, New Zealand, South Africa and the UK) and also France, all made declarations modifying their acceptance of the Court’s jurisdiction under Article 36, paragraph 2 of the Statute, so as to exclude from judicial settlement disputes arising from the hostilities. To this end, they did not invoke any supposed right to withdraw declarations, but instead relied on the rule of fundamental change of circumstances.1479 Even so, various States, including Switzerland, objected to this too.1480 The attitude adopted by these Commonwealth States and by France amounted to an implicit admission that the right to withdraw (especially with immediate effect) was not considered available, because otherwise it would have been unnecessary for them to have recourse to the problematic doctrine of fundamental change of circumstances (rebus sic stantibus). It was only with the Statute of the new Court that withdrawals have been notified to the Registrar and that in the end it has come to be accepted, as a matter of practice, that optional declarations can be withdrawn. Following the Anglo-Iranian Oil case, Iran withdrew its own declaration of 10 July 1951. Similarly, following the Right of passage case, India withdrew its own declaration on 7 January 1956, following up immediately with a new declaration containing a great number of new reservations. France withdrew its declaration following the Nuclear Tests cases of 1974. The USA withdrew its declaration while the Nicaragua case was before the Court, in 1984. There have also been a series of withdrawals or modifications restricting the Court’s jurisdiction,1481 sometimes done with a view to preventing the bringing of a case on a particular subject. Examples include the UK (2 June 1955, 31 October 1955, 18 April 1957, 1 January 1969 and 5 July 2004);1482 Malta (2 September 1966); France (10 July 1959, 20 May 1966, then its complete withdrawal in 1974); Australia (6 February 1954);1483 South Africa (13 September 1955); Canada (7 April   On this question, cf AP Fachiri, ‘Repudiation of the Optional Clause’ in BYIL, vol 20 (1939) 52.   PCIJ, Series E, no 16, 337 (France), 339 (UK) etc. 1480   Ibid, 333; (1939) Official Journal of the League of Nations 407 et seq.; ibid (1940) 45 et seq. 1481   cf in particular, the Separate Opinion of Judge Jennings, in the Nicaragua case, ICJ Reports 1984, 551–52. 1482   One of the UK’s modifications was designed to exclude, vis-à-vis Saudi Arabia, any legal follow-up to the Buraimi arbitration; cf Waldock, ‘Decline of the Optional Clause’, above n 1094, 268; Dubisson, above n 1094, 174. 1483   The objective was to exclude from the Court’s jurisdiction the pearl fishery dispute with Japan; cf Waldock, ‘Decline of the Optional Clause’, above n 1094, 267–68; Dubisson, above n 1094, 174. 1478 1479

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1970);1484 the Philippines (18 January 1972); India (18 April 1974);1485 Honduras (6 June 1986); Norway (24 June 1996); and Portugal (25 February 2005). The Court’s Yearbooks bear witness to this constant flow of modifications and withdrawals, and the practice has not been disputed by the States parties to the system of the optional clause. Legally, this amounts to a subsequent (interpretative) practice, and is of authentic type.1486 It can therefore be taken as an established fact that the total or partial withdrawal of an optional declaration is indeed lawful. 2)  Notice period. What are the modalities for withdrawing an optional declaration? Such withdrawal can occur in three legally different types of situation, each of which needs to be analysed separately. The first possibility is that the text of the declaration itself indicates a specific notice period. Another possibility is that it contains no such indication. Finally, it may contain an express stipulation that withdrawal, at any time, can be carried out with immediate effect. i)  Clauses containing an indication as to the notice period. This is the easiest situation to analyse. If a declaration contains an indication of the precise notice period required, the declaring State will be obliged to respect that notice period. In particular, the State cannot invoke reciprocity in order to withdraw by shorter notice (or even immediately) under the provisions applicable to another State’s declaration. In this respect, a certain inequality in treatment is countenanced and accepted, because it is covered by the express will of the declaring State. That does, however, leave open the question of what would happen if the declaring State had also included in its declaration an express reservation allowing it to invoke such reciprocity. Probably the Court would have to give effect to such an express reservation and allow reciprocity to be invoked. In the case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility 1984), the question arose as to whether such a clause, containing a specific notice period, should be given effect. The USA had tried to modify its optional declaration three days prior to the delivery of Nicaragua’s application, intending thereby to avoid the Court’s jurisdiction.1487 The USA’s declaration of 14 August 1946 had stipulated that it would remain in force for a period of five years, ‘and thereafter until the expiration of six months after notice may be given to terminate this declaration’.1488 On 6 April 1984, the government of the USA had lodged with the UN Secretary-General a notification signed by the Secretary of State, Mr George Schultz, stipulating that the USA’s declaration would no longer be applicable to disputes with the States of Central America or arising from events there. As to the timing, the letter provided: ‘Notwithstanding the terms of the aforesaid declaration, [as to the six month period], this proviso shall take effect immedi1484   The objective was to exclude from the Court’s jurisdiction any dispute regarding the Canadian legislation as to the 100 nautical mile pollution protection zone in Arctic waters; cf the Separate Opinion of Judge Jennings, ICJ Reports 1984, 551–52. 1485   Following the Right of passage case (1960), India had withdrawn its declaration. In its new declaration of 15 September 1974, it brought in an impressive array of reservations: cf ICJ Yearbook, 1974/1975, 59–60. 1486   The ‘authentic’ interpretation is that ‘of the author or collective authors of the provision to be interpreted – in particular, as regards a treaty, by all the parties – according to forms such that its authority cannot be disputed’. cf J Salmon (ed), Dictionnaire de droit international public (Brussels, 2001) 604 (our translation). 1487   cf especially C Lang, L’affaire Nicaragua/Etats-Unis devant la Cour internationale de Justice (Paris, 1990), 88 et seq.; Greig, ‘Nicaragua’, above n 1399, 165 et seq.; the Separate Opinion of Judge Oda, Nicaragua case, ICJ Reports 1984, 489 et seq.; the Separate Opinion of Judge Jennings, ibid, 545 et seq.; the Dissenting Opinion of Judge Schwebel, ibid, 616 et seq. 1488   ICJ Reports 1984, 398, § 13.



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ately and shall remain in force for two years’.1489 Technically, it was based on the USA’s view that Nicaragua had the right to withdraw its own declaration with immediate effect, given that it contained no notice clause as such. In light of this, the USA must, it is argued, be allowed the same right, as a matter of reciprocity. The modification was obviously designed to forestall the imminent Nicaraguan application. On 9 April 1984, three days later, Nicaragua lodged its application against the USA with the Court. Did the Schultz notification deprive the Court of jurisdiction? The Court said it did not. It began by referring to the exact scope of the reciprocity rule, which did not extend to withdrawal clauses: The notion of reciprocity is concerned with the scope and substance of the commitments entered into, including reservations, and not with the formal conditions of their creation, duration or extinction. It appears clearly that reciprocity cannot be invoked in order to excuse departure from the terms of a State’s own declaration.1490

Citing its dictum in the Interhandel case,1491 the Court affirmed that: ‘Reciprocity enables the State which has made the wider acceptance of the jurisdiction of the Court to rely upon the reservations to the acceptance laid down by the other party. There the effect of reciprocity ends.’1492 This excluded reciprocity from coming into play until the moment the Court was seised, at which point it started to apply. Reciprocity could not be used, prior to the Court’s being seised, to modify the jurisdiction.1493 We have already seen the reasons why this jurisprudence gave rise to no inequality between the USA and Nicaragua, the Court stating that the latter also had not been, and was not, in a position to withdraw its declaration with immediate effect. ii)  Clauses with no notice period. If a declaration is completely silent as to the circumstances in which it may be withdrawn, in particular as to when a notice to that purpose will take effect, what in that case is the legal position? The Court gave a very clear answer in the Nicaragua case (1984): But the right of 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 . . . from 6 to 9 April would not amount to ‘a reasonable time’.1494

This careful and in a sense contingent reasoning by the Court in the first part of the decision is explained by the place this aspect occupied in the Court’s overall reasoning. The point was not autonomous, since this was only part of the argument about reciprocity. The USA had based its reciprocity argument on the hypothesis that Nicaragua had the right to withdraw its declaration with immediate effect. The Court, however, had rejected that  Ibid.   ICJ Reports 1984, 419, § 62. 1491   ICJ Reports 1959, 23. 1492   ICJ Reports 1984, 419, § 62. 1493   Ibid, 420, § 64. 1494   ICJ Reports 1984, 420, § 63. Separate Opinion of Judge Mosler, ibid, 467. cf Lang, Nicaragua, above n 1487, 97–98. Greig, ‘Nicaragua’, above n 1401, 166 et seq., 176 et seq. On this whole question, see also 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’ in BYIL, vol 59 (1988) 1 et seq.; H Thirlway, ‘The Law and Procedure of the International Court of Justice (1960–1989), Treaty Interpretation and Other Treaty Points’ in BYIL, vol 63 (1992) 68–71; Szafarz, above n 1094, 70–78; Alexandrov, Reservations, above n 1155, 56–66. 1489 1490

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claim, on the basis of other considerations, and in the context of its decision merely added, on what was strictly speaking only an obiter basis, that the first of the USA’s hypotheses, which supposed that Nicaragua could withdraw its declaration with immediate effect, was not itself based on a solid foundation. The Court had no need, for the purposes of deciding the case, to dwell any further on this aspect of the problem. That being so, the Court expressed a clear preference for what one may interpret without exaggeration as an expression of the law in force. What, then, is a ‘reasonable period’ of notice? The first thing to be said, albeit in a sense obvious, is that the concept is the opposite of an unreasonably short period, meaning any period which opens the way to abuses of rights or to manipulation of the system. In the Nicaragua case (1984), the Court confined itself to the dry statement that ‘it need only be observed that from 6 to 9 April would not amount to “a reasonable time”’.1495 Unless and until the notice period is fixed by the Statute or the Rules, the Court has to assess what is reasonable on a case-by-case basis. In this respect it will be influenced by whatever appears to it to be unreasonable given the intentions of the withdrawing State, the abusive effects of that State’s attitude, and the distortive effects on the system of the optional clause. If one took a high normative view of the question, one would have to make reference to the time limits applicable under treaty law, that is a year (or at least six months). The way the standard of ‘reasonable time’ is to be applied might then either vary according to the circumstances (abuse in a particular case) or alternatively might be more standardised (six months or a year). Perhaps three months might be accepted as the minimum period,1496 since that should be enough to prevent undesirable ad hoc manipulations, which are the essential reason for insisting on any notice period at all. A six-month period is, however, more in conformity with the good administration of the system of optional declarations, and also mirrors current practice in the drafting of clauses that specifically state the notice period for withdrawal. iii)  Clauses stating that the declaration can be withdrawn with immediate effect. A series of optional declarations reserve to the declaring State the right to withdraw or modify its declaration in any sense whatsoever, doing so with effect ‘from the date of notification’ or ‘upon receipt by the Secretary-General’. Eighteen of the 66 declarations in force in 2010 contain such a clause. That is far from being a negligible proportion, being more than one in four (27.3 per cent). The declarations in question are those of Botswana (1970), Canada (1994), Cyprus (1988), Germany (2008), Kenya (1965), Madagascar (1992), Malawi (1966), Malta (1966 and 1983), Mauritius (1968), Nigeria (1998), Peru (2003), Portugal (2005), Senegal (1985), Slovakia (2004), Somalia (1963), Swaziland (1969), Togo (1979) and the UK (1969).1497 A particularly disquieting aspect is that some of these declarations, for example those of Canada, Cyprus, Madagascar, Nigeria, Peru, Senegal and Slovakia, were delivered after the Court’s decision in the Nicaragua case (1984) had specifically stated that a reasonable notice period is required. In the Nicaragua case, some eminent judges did argue that the practice of the parties to the Statute had by this point come to enshrine, beyond any shadow of doubt, a right to the ‘immediate’ withdrawal of optional declarations that were of indeterminate duration.1498   ICJ Reports 1984, 420, § 63.   In this sense, see Quintana, above n 1476, 118. 1497   These declarations can be reviewed in the Yearbook of the ICJ. 1498   Separate Opinion of Judge Oda, ICJ Reports 1984, 489 et seq.; Separate Opinion of Judge Jennings, ibid, 550 et seq.; Dissenting Opinion of Judge Schwebel, ibid, 620 et seq. 1495 1496



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However, matters are not in truth so clear. From a close reading of the opinions of Judges Oda, Jennings and Schwebel, it would seem that their analysis was primarily concerned with the right to withdraw one’s declaration at any time (dies a quo), and not necessarily the moment from which the withdrawal will take effect (dies ad quem). The fact that this was their primary concern is borne out by their frequent mention of ‘perpetual obligations’, which declarations in the sense of Article 36, paragraph 2 of the Statute do not concern.1499 The possibility of withdrawing at any time (and in that sense immediately) does not support the quite different proposition that such a withdrawal will necessarily have an immediate legal effect on the Court’s jurisdiction.1500 No conclusive practice is put forward as the basis for the latter proposition. In relation to this argument, therefore, one needs to take a step backwards, and to examine what reasons of principle militate for or against the acceptance of the idea of withdrawal with immediate effect. In other words, one needs to test and measure the acceptability of that idea against the fundamental requirements of the Statute, as the text which guarantees the efficacy and integrity of, and the equality of States within, the system of the optional clause. The fact that declarations containing a clause providing for withdrawal with immediate effect occur so frequently is no basis on which to prejudge the question. On proper analysis, such declarations contain no more than a unilateral assertion which has never been tested in the crucible of contentious proceedings. It is perfectly true that the existence of such declarations bears testimony to a view that cannot be ignored. But the mere fact that a reservation is included in a declaration, even if this is done frequently, cannot eo ipso give it legal validity.1501 Its validity depends solely on whether it is compatible with the Statute. The problem is similar to the one of the automatic reservation.1502 The frequent use of that reservation has never been a reason to believe that the question of its validity was, by virtue of that simple fact, resolved. On the contrary, the majority of leading commentators had in fact concluded that it is a nullity. Considering the problem more closely, it is difficult to avoid the conclusion that the ‘reasonable delay’ criterion, as applied by the Court in the cases of declarations that make no mention of a notice period, ought to apply in this situation too. The search for a solution involves a consideration of the object and purpose of the system of the optional clause, and of its capacity to function efficaciously and in conditions of legal equality between the parties. In other words, one has to go back to the general principles of procedure and take account of the effects that any particular interpretation would have on the Court’s ability to guarantee efficacious and equal treatment of cases. The Court followed a similar line of reasoning in the LaGrand case (2001), with regard to the binding force of provisional

  Separate Opinion of Judge Jennings, ibid, 553; Dissenting Opinion of Judge Schwebel, ibid, 622–23.  This confusion has its counterpart among leading commentators: Dubisson, above n 1094, 173–74. Waldock, ‘Decline of the Optional Clause’, above n 1094, 265 et seq. 1501   The stance adopted by Tomuschat, ‘Article 36’, above n 1094, 628, to the effect that the Court must bow to this practice as the price to be paid for getting States to submit to its jurisdiction, seems a curious one. The eminent author himself accepts (ibid, 629) that the right to withdraw with immediate effect would deprive of all ‘real meaning’ a declaration silent as to the notice period for withdrawal; why would the position be otherwise here? On the other hand, if it is true that a declaration that can be withdrawn immediately is, in essence, deprived of any real effect, the only possible conclusion is that it is incompatible with the Statute and must be prohibited. Indeed, it would be better to have fewer optional declarations if all those that were deposited did at least involve States in assuming a minimum level of real obligation, rather than a hypocritical pretence of it. In short, our eminent German colleague’s argument seems to us both ill-founded and self-contradictory. 1502   cf Waldock, ‘Decline of the Optional Clause’, above n 1094, 273. 1499 1500

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measures of protection.1503 If one were to accept the concept of a right to withdraw with immediate effect, the object and purpose of the system of the optional clause would be entirely subverted. Such reservations are, in effect, equivalent to an automatic reservation which comes into play prior to the moment the Court is seised. If the immediate effect concept were accepted, the declaring State would retain sole control over which cases could be brought against it before the Court. It would suffice if, even on the eve of the very day proceedings began, it were to give notice of withdrawal or modification. Acceptance of withdrawal with immediate effect thus amounts to a transformation of the entire optional clause system into a general framework within which there may be informal agreements to give the Court jurisdiction of an ad hoc nature, on a forum prorogatum basis. Once again, the compulsory jurisdiction would have been turned into an optional one. If the State did not withdraw or modify its declaration, it would be agreeing to submit to the Court’s jurisdiction. A specific attitude of that kind would be necessary every time a case was brought, as a condition of the Court’s jurisdiction over it. In the same way as Judge H Lauterpacht emphasised in relation to automatic reservations,1504 no autonomous obligation to submit to the Court’s jurisdiction would in fact exist. There would be a mere illusion of compulsory jurisdiction,1505 its illusory nature manifestly contravening the object and purpose of the system. No State is obliged to submit to the Court’s compulsory jurisdiction; but States that decide to do so must respect a certain number of limits inherent in the proper functioning of the Court, especially those necessary for the due administration of justice. This aspect was highlighted by a Swedish objection to the alleged right to restrict the jurisdiction by means of a modification taking immediate effect: The Swedish Government is compelled to state that in its opinion the cited condition in reality signifies that Portugal has not bound itself to accept the jurisdiction of the Court with regard to any dispute or any category of disputes. The condition nullifies the obligation intended by the wording of Article 36, paragraph 2, of the Statute where it is said that the recognition of the jurisdiction Court shall be ‘compulsory ipso facto. For the stated reason, the Swedish Government must consider the cited condition as incompatible with a recognition of the “Optional Clause” of the Statute of the International Court of Justice’.1506

A withdrawal of the declaration after the Court has been seised would clearly have no effect on its jurisdiction. However, a withdrawal effected some days or hours before the application is lodged would deprive the Court of jurisdiction. Since States generally know quite well which other State is likely to bring a claim against it (for example, through prior negotiations), it would remain open to it to withdraw at the most opportune time. Also, the theory of immediate effect is open to every kind of abuse and manipulation. The withdrawal of one’s declaration just before the lodging of an application against one is an example, as the Nicaragua case (1984) shows. All kinds of other abuses can be imagined. For example, it would be permissible for a State to instantly modify its declaration just before a case was begun (or possibly also thereafter), with a view to avoiding some trap of reciprocity if, in the circumstances, it would work in its opponent’s favour. When the case was finally adjudicated upon (or even just when the Preliminary Objections phase came to an end), the State in question might then make a further modification, bringing back the   At §§ 98 et seq.   Norwegian loans case, ICJ Reports 1957, 48. Interhandel case, ICJ Reports 1959, 106–107. 1505   Waldock, ‘The Plea of Domestic Jurisdiction’ above n 1401, 135, on the subject of automatic reservations. 1506   Right of passage over Indian territory (1957–60), ICJ, Pleadings, Oral arguments and Documents, vol I, 217. 1503 1504



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original form of declaration. In fact, all kinds of ad hoc manipulations would become possible, and every such manipulation would constitute a challenge to the judicial integrity of which the Court is the guardian.1507 The malign effects would be just as serious at the practical level. It is to be feared that in such circumstances States would keep their claims secret,1508 avoiding negotiation altogether and trying to bring their cases on suddenly, precipitately and prematurely, before the title of jurisdiction could be restricted or manipulated away.1509 Obviously this would be harmful to the development of the practice of peaceful dispute settlement, in which steps that are political in nature (direct contacts, negotiation, mediation and so on) are vital elements. It was no accident that, in the Free Zones case (Order, 1929), the Permanent Court said that judicial settlement was ‘simply an alternative to the direct and friendly settlement of [such] disputes between the Parties’.1510 Judges Oda and Schwebel thought it right to support the theory of withdrawal with immediate effect, in the best interests of the functioning of the system. In this regard they took a different attitude to the one put forward above. Their arguments merit closer examination. A more flexible position on the withdrawal of optional declarations than the ‘reasonable period of time’ concept was, in their view, advisable in order to encourage the ‘maintaining and widening the extent of adherences to the compulsory jurisdiction of the Court’.1511 In Judge Oda’s view the Court’s own interpretation even risked accelerating the decline of the system of the optional clause: I am sure that the interpretation of the Optional Clause given by the present Judgment will inevitably induce declarant States to terminate their declarations or at least drop from them any advance notice clause, so as to avoid having to answer any case unilaterally brought by other States, which themselves can take advantage of withdrawing at any time from their obligations under the Court’s jurisdiction. This would vastly diminish the importance of the Optional Clause.1512

In our view these opinions were not well founded. To want to save the system of compulsory jurisdiction by lightening it of every element of real obligation, is to indulge in what, in logical terms, can only be called a fearsome exercise, and furthermore an exercise whose practical utility remains to be demonstrated. C Lang rightly delivered a fairly lapidary judgment on this line of reasoning: In the name of safeguarding the optional clause, the reality is that one risks killing it off. What is the point of safeguarding the clause if States can withdraw their declarations just before an Application is lodged against them? It is true that Faust, by selling his soul to the devil, did recover some semblance of his youth, but in doing so he lost himself irretrievably.1513

Today, we can see that the pessimistic prognostications as to the effects of the Nicaragua decision were not, in the event, to be realised. There has not in fact been a decline in optional declarations. Indeed, the system has seen an accretion of various new ones.   See the very decided statement of the Court in the case of the Northern Cameroons, ICJ Reports 1963, 29.   Of course, international disputes often crystallise only slowly, and States are almost always aware of their opponents’ claims from the moment they choose to seise the Court. A contrary example, however, is the ‘surprise attack’ by Portugal on India in the 1950s. 1509   Waldock, ‘Decline of the Optional Clause’, above n 1094, 266. 1510   PCIJ, Series A, no 22, 13. 1511   Dissenting Opinion of Judge Schwebel, Nicaragua case, ICJ Reports 1984, 628. 1512   Separate Opinion of Judge Oda, ibid, 513. 1513  Lang, Nicaragua, above n 1487, 95 (our translation). 1507 1508

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Clauses allowing withdrawal with immediate effect are thus equivalent to a ‘let-out’ from all obligation to accept the jurisdiction, and thus violate the spirit of Article 36, paragraph 2 of the Statute. If the reservation is incompatible with the Statute, then it should be considered a nullity. And if the provision as to withdrawal with immediate effect is indeed a nullity, does that make the entire declaration likewise a nullity? This question turns on whether the reservation is severable from the rest of the declaration.1514 The essential criterion is whether the declaring State would have made the declaration even without the invalid provision, or whether the invalid provision was so essential to the State’s attitude that, without it, it would not have proceeded with the rest of the declaration. It ought to be accepted that the rest of the declaration can in fact be severed from the provision as to withdrawal with immediate effect. The consequence will then be that the declaration cannot be withdrawn without reasonable notice. The substitution of this delay for the stipulation as to immediacy does not radically alter the scope of the undertakings subscribed by the State concerned. It would be wrong to conclude that a State would not have made its declaration (that is, to conclude that the condition as to immediacy was a sine qua non) unless it at the same time acquired the right to manipulate its participation in the system in light of ad hoc considerations as they developed, or, in other words, that the State would not have made its declaration if it had known that it was assuming a real jurisdictional obligation and not just the appearance of one. It would follow that an immediate withdrawal provision is void, but is detachable from the remainder of the declaration, which survives and subsists. Absent any valid provision as to the period of notice, general international law applies. The withdrawal then takes effect after a reasonable period of time. This situation is not to be compared with that relating to automatic reservations. In the latter case, the State does not wish to engage itself unless protected by the very aggressive contours of its reservatory shield. Here, by contrast, it is difficult to accept that a notification period of merely reasonable duration would have been a sufficient reason not to adhere to the system, unless of course there were, in a particular case, circumstantial evidence to show that it would in fact have been considered sufficient reason. Might withdrawal with immediate effect be allowable in exceptional circumstances? At least one such situation (admittedly a very particular one and probably inapplicable in today’s circumstances) is to be found in the Court’s jurisprudence. In the case on the Aerial incident of 27 July 1955 (Israel v Bulgaria, Preliminary Objections, 1959), withdrawal of the declaration with immediate effect was conceivable precisely because it did not lend itself to the ad hoc manipulations discussed above. The question was whether Article 36, paragraph 5 of the Statute, automatically transferring optional declarations under the PCIJ’s regime to the ICJ ‘for the period which they still have to run’, could be applied to the Bulgarian declaration. That declaration had been deposited under the PCIJ regime and had yet to expire at the time the ICJ was created. However, Bulgaria did not become a UN Member until 1955, so that its acceptance of the new Court’s jurisdiction did not occur until that year. Could Article 36, paragraph 5, give the Court jurisdiction over events occurring prior to Bulgaria’s becoming a Member of the UN, by virtue of a transfer of the old declaration? As is well known, the Court responded negatively, taking the view that Article 36, paragraph 5, applies only to signatories of the Charter, and not to States that might be subsequently admitted to the UN system.1515 The Court’s very elaborate interpretation does not   See again Art 44, § 3 of the 1969 Vienna Convention on the Law of Treaties.   ICJ Reports 1959, 136 et seq.

1514 1515



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seem very convincing, however, and it was in effect to reverse its jurisprudence in subsequent cases.1516 In a very well-argued joint dissenting opinion – more convincing than the Court’s majority decision – Judges H Lauterpacht, Wellington Koo and Sir Percy Spender said that the principal objective of Article 36, paragraph 5 was to ensure the greatest possible degree of continuity between the PCIJ declarations and the new Court. This ratio applied equally to the signatories to the Charter and to States subsequently ratifying the Statute of the Court. Consequently, the effect of Article 36, paragraph 5 was simply postponed to the moment when a State was admitted to the United Nations. Until then, its obligations under its old optional declaration were merely suspended, but they remained extant, and were not eliminated. At this point, the three judges felt obliged to accept a tempering point: what if a State became a UN Member only decades after the dissolution of the PCIJ? Would it not be excessive, in that case, to attribute continuing effects to so old a declaration? Could one really give such an extensive reach to Article 36, paragraph 5? The three judges’ sense of fairness caused them to reply in the negative. Any State in a situation of that kind could withdraw its old declaration if an excessive period of time had elapsed since the dissolution of the PCIJ.1517 The three judges did not say whether a withdrawal in such particular circumstances would have immediate effect. The idea is, however, acceptable, precisely because no State that is a party to the system could expect, in good faith, that the statutory transfer would operate after such a long period of time. Withdrawal with immediate effect would, in such a case, enable the State in question to avoid being held to an excessive obligation deriving from an unreasonable interpretation of Article 36, paragraph 5. Plainly this is nothing like the situation previously considered. There is no question here of opening the way to ad hoc manipulations: on the contrary, one is concerned here to preserve the State’s right against an inequitable and excessive interpretation of the automatic transfer. It should in any event be remembered that in practice, this question has long been academic, because all the various successions of PCIJ declarations have long since been definitively sorted out. At this point, therefore, the question is entirely hypothetical. To sum up, then, the withdrawal of optional declarations with immediate effect is inadmissible except in very particular circumstances. The essential legal reason for this rule, and indeed for the possible exceptions to it, is simply the requirements of the rule and preeminence of law. The principle of the rule of law is weak in general international law, but it becomes much more important in the judicial law of the Court. The Court cannot allow unlimited manipulation of the bases of its jurisdiction, inducing an improper administration of justice. Faced with the eternal pseudo-realist argument that either ‘You pay this price, or else it’s nothing at all’, our response is that it is better to have less (not nothing), but built on foundations that feature a minimum level of legality and good faith. It is important not to forget that, sometimes, less (quantitatively) is more (qualitatively).

1516   Barcelona Traction, ICJ Reports 1964, 26 et seq., on the subject of Art 37 of the Statute; and Nicaragua, Jurisdiction and admissibility, ICJ Reports 1984, 403 et seq. 1517  See ICJ Reports 1959, 189.

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h)  Fourth Head of Jurisdiction: Special Agreements1518 States that are parties to a concrete dispute that has already arisen can agree to submit it to the Court by virtue of a specific agreement duly made and ratified between them. In this agreement they define the dispute, state the precise task they wish to entrust to the Court, specify any relevant procedural requirements, and declare that they agree the Court should decide the dispute as so limited and defined. This is called a ‘special agreement’, or in French, a ‘compromis spécial’. The French expression is an echo of the old usage by which the parties to a dispute when submitting it to arbitration, did so by means of a ‘compromis arbitral’ (agreement to arbitrate),1519 the word compromis deriving from older French arbitration practice, with its root in the Latin com-promittere, to promise conjointly: in this case the joint promise was an undertaking to recognise the arbitrator’s jurisdiction. The agreement is ‘special’ in the sense that it applies to only one particular dispute, as defined in the agreement, and is thus not ‘general’. The parties give the Court only a very limited jurisdiction, in relation to a known and already delimited dispute. In the French language dictionary of public international law edited by J Salmon, a special agreement is defined as a ‘written agreement by which the parties to an actual and current dispute submit it to arbitral or judicial resolution’1520 (our translation). An example of a special agreement is to be found in the Minquiers and Ecrehous case of 1953.1521 The preamble and operative provisions of the agreement read as follows: The Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the French Republic; Considering that differences have arisen between them as a result of claims by each of them to sovereignty over the islets and rocks in the Minquiers and Ecrehos groups; Desiring that these differences should be settled by a decision of the International Court of Justice determining their respective rights as regards sovereignty over these islets and rocks; Desiring to define the issues to be submitted to the International Court of Justice; Have agreed as follows: The Court is requested to determine whether the sovereignty over the islets and rocks (in so far as they are capable of appropriation) of the Minquiers and Ecrehos groups respectively belongs to the United Kingdom or the French Republic. Without prejudice to the burden of proof, the Contracting Parties agree, having regard to Article 37 of the Rules of Court, that the written proceedings should consist of: 1) a United Kingdom memorial to be submitted within three months of the notification of the present Agreement to the Court in pursuance of Article III below; 2) a French counter-memorial to be submitted within three months of the delivery of the United Kingdom memorial; 1518   See particularly, MO Hudson, The Permanent Court of International Justice, 1920–1924. A Treatise (New York, 1943) 435–38; M Dubisson, La Cour internationale de Justice (Paris, 1964) 210–11; S Rosenne, The Law and Practice of the International Court, 1920–2005, vol II, 3rd edn (Leiden, 1997) 663–65; C Tomuschat, ‘Article 36’ in A Zimmermann, C Tomuschat and K Oellers-Frahm, (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 613–17; P Tomka, ‘The Special Agreement’ in Essays S Oda (The Hague/London/New York, 2002) 553 et seq. 1519   See, eg A Mérignhac, Traité théorique and pratique de l’arbitrage international (Paris, 1895) 156 et seq.; JH Ralston, International Arbitrations, From Athens to Locarno (London, 1929) 49; N Politis, La justice internationale (Paris, 1924) 70–71. 1520   J Salmon (ed) Dictionnaire de droit international public (Brussels, 2001) 220. 1521   ICJ Reports 1953, 49–50.



CONSENSUAL JURISDICTION 531

3) a United Kingdom reply followed by a French rejoinder, to be delivered within such times as the Court may order.

In the North Sea Continental Shelf case (1969),1522 the special agreement between Denmark and the German Federal Republic read as follows: Article 1 1) The International Court of Justice is requested to decide the following question: What principles and rules of international law are applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary determined by the above-mentioned Convention of 9 June 1965? 2) The Governments of the Kingdom of Denmark and of the Federal Republic of Germany shall delimit the continental shelf in the North Sea as between their countries by agreement in pursuance of the decision requested from the International Court of Justice. Article 2 1) The Parties shall present their written pleadings to the Court in the order stated below: 1. A Memorial of the Federal Republic of Germany to be submitted within six months from the notification of the present Agreement to the Court; 2. A Counter-Memorial of the Kingdom of Denmark to be submitted within six months from the delivery of the German Memorial; 3. A German Reply followed by a Danish Rejoinder to be submitted within such time-limits as the Court may order. 2) Additional written pleadings may be presented if this is jointly proposed by the Parties and considered by the Court to be appropriate to the case and the circumstances. 3) The foregoing order of presentation is without prejudice to any question of burden of proof which might arise. Article 3 The present Agreement shall enter into force on the day of signature thereof.

On the same day, the parties to the dispute (Denmark, the Netherlands and the German Federal Republic) made a trilateral agreement on procedural matters: Protocol. At the signature at today’s date between the Government of the Federal Republic of Germany and the Governments of the Kingdom of Denmark and the Kingdom of the Netherlands respectively, on the submission to the International Court of Justice of the differences between the Parties concerning the delimitation of the continental shelf in the North Sea, the three Governments wish to state their agreement on the following: 1. The Government of the Kingdom of the Netherlands will, within a month from the signature, notify the two Special Agreements together with the present Protocol to the International Court of Justice, in accordance with Article 40, paragraph 1, of the Statute of the Court. 2. After the notification in accordance with item 1 above, the Parties will ask the Court to join the two cases. 3.  The three Governments agree that, for the purpose of appointing a judge ad hoc, the Governments of the Kingdom of Denmark and the Kingdom of the Netherlands shall be considered parties in the same interest within the meaning of Article 31, paragraph 5, of the Statute of the Court.   ICJ Reports 1969, 6–7.

1522

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Seising the Court. The special agreement is either jointly notified to the Court so that the case is begun by the parties in concert, or is notified by one of them when it lodges its application. Sometimes the special agreement provides that it will be jointly notified to the Court (in fact to the Registrar) or that it will be notified by whichever of the parties moves more swiftly to do so. In this sense, Article 40, paragraph 1 of the Statute provides that: Cases are brought before the Court, as the case may be, either by the notification of the special agreement or by a written application addressed to the Registrar. In either case the subject of the dispute and the parties shall be indicated.

A special agreement coming before the Court does so either by joint notification or by unilateral action. The latter, however, is normally not called a ‘unilateral application’ but rather the ‘unilateral notification of the special agreement’. Besides, Article 39, paragraph 1 of the Rules states more clearly as follows: When proceedings are brought before the Court by the notification of a special agreement, in conformity with Article 40, paragraph 1, of the Statute, the notification may be effected by the parties jointly or by any one or more of them. If the notification is not a joint one, a certified copy of it shall forthwith be communicated by the Registrar to the other party.

The practice of the Court also shows cases being brought before it on the basis of a special agreement via the application of one party unilaterally.1523 In this sense, special agreements constitute a separate head of jurisdiction, allowing the Court to be seised by either of the parties unless the right to bring suit unilaterally is expressly excluded by the text of the special agreement.1524 If an agreement were to include a clause stating generally that the parties shall jointly notify the agreement to the Court, that would not necessarily invalidate a unilateral application. In such a case, it would certainly be good and proper practice to respect the terms of the agreement and to proceed by way of a joint notification and then by joint application. If, nevertheless, one of the parties were to refuse to cooperate in the making of a joint application, seeking thereby to block the proceedings to which it had previously consented, it would still have to be possible for the other State to react by submitting the case unilaterally to the Court. To interpret the joint notification clause in any other way would amount to rewarding bad faith and would place an obstacle in the paths of both the pacta sunt servanda rule and the jurisdiction of the Court. It can also become impossible to make a joint application because of excessive delay or because the parties subsequently agree, either tacitly or expressly, to drop the requirement that the Court be seised jointly. In all these cases, the clause about joint notification should not be read as a peremptory requirement, but rather as a simple suggestion as to the procedure to be followed. A State does not breach the special agreement merely by proceeding by way of unilateral application, especially if it has good reasons for doing so. Since to proceed unilaterally is at worst a discourtesy, the Court will still have jurisdiction. The giving of jurisdiction to the Court is indeed the fundamental purpose of the special agreement, the question of how the Court is to be seised being a simple accidentalium negotii. Until the present time, no great difficulties have ever arisen in this regard. However, if a special agreement were to contain specific time   For example, the case of the Arbitration award by the King of Spain, of 23 December 1906, ICJ Reports 1960,

1523

194. 1524   In the time of the PCIJ, the legal situation was even less clear. In those days it was possible to say, on the basis of the Court’s Annual Reports published in Series E, that where a special agreement did not expressly provide for the Court to be seised unilaterally, only a joint application was possible: cf Hudson, above n 1518, 436.



CONSENSUAL JURISDICTION 533

limits and other precise rules relating to the seising of the Court, the question could indeed arise (see immediately below). What then is the time limit for seising the Court? Some special agreements make express provision about this. Thus in the case of the Land, island and maritime boundary dispute (El Salvador v Honduras, 1992), Article 8 of the special agreement provided dates and time limits for notifying the special agreement, whether or not accompanied, on those dates, by a formal request (application) to the Court initiating a case. Paragraph 1 of the Article provided that the parties would jointly give notice of the special agreement not later than 31 December 1986, and paragraph 2 that if the joint notification were not served within that period, the Court could be unilaterally seised within a period of one month from the date indicated above.1525 What are the legal effects of such dates or time limits? Are they of the essence? If the Court is not seised in conformity with these time limits, will it have no jurisdiction? Or are these mere procedural indicators that do not have the effect of invalidating the Court’s jurisdiction merely because it is not seised in strict accordance with them? The first point to make is that if the parties were jointly to seise the Court by a joint notification outside the time limits provided for in the special agreement, the Court would be seised validly. The parties remain the domini negotii: if, acting in concert, they seise the Court at some other date, then they have implicitly derogated from their prior agreement by a subsequent one (lex posterior derogat legi priori). There is no reason, in such circumstances, for the Court to take a formalistic view, faced, as it would be, with a clear consensual wish to seise it of the case. What if a State unilaterally seises the Court after the time for doing so has expired? So far, it does not seem that the Court has ever been faced with such a situation. If the Court is unilaterally seised after the end of the period provided for in the special agreement, the Court must declare itself to have no jurisdiction. This is so because the other State must be able to be confident that it will be entitled to interpret the failure to act within the agreed timetable as a renunciation of the right to take the case to the Court. In such a case, the special agreement does not operate so as to open the Court door for ever and a day, in saecula saeculorum. Quite the opposite: the parties have stipulated for a window of time during which the Court may be seised, and the limits of this window must be respected because it is an integral and essential part of the parties’ agreement. Moreover, the time limit does not contravene any provision of the Statute or Rules. It is, of course, possible that the other party will not oppose the Court’s being seised even outside the time limit, in which case jurisdiction will be established on the forum prorogatum basis. In that situation the jurisdiction will, strictly speaking, no longer be based on the special agreement itself. The other situation is where one party unilaterally seises the Court during the period precisely laid down in the special agreement as the time for a joint application. In such a case there are two possible lines of argument. On the one hand, it might be argued that the special agreement, since it is a treaty, must be respected, because it is covered by the rule pacta sunt servanda. The Court cannot approve a breach of the special agreement. Indeed, its jurisdiction will apparently have been accepted only if the modalities for notification and seising the Court, as laid down in the special agreement, are complied with. If one of the States Parties departs from the terms, the Court has no jurisdiction. The other possible line of argument is different, namely to say that the provision as to joint notification is a   ICJ Reports 1992, 358.

1525

534  CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES

procedural matter, and is ancillary in nature. It indicates how, in the normal course of things, the parties contemplated the Court’s being seised, but there is no reason to suppose that the parties wished to invalidate the seisin of the Court by other means merely because those particular provisions were not complied with. This view places considerable weight on the argument that the main aim of the special agreement is to give the Court jurisdiction. It would be excessively formalistic to set that main aim at nought simply because of what would clearly on this view, be rather minor procedural failure, and if the Court were to do so that would represent a failure to recognise the parties’ implicit wish – utile non debet per inutile vitiari. It would also be possible to argue that the notification of the special agreement is not legally identical to seising the Court, and that the latter is not a subject contemplated by a clause which addresses itself solely to the question of notification. Moreover, it also remains possible in such a case to argue that an obligation to seise the Court jointly is contrary to the Statute and Rules (see the provisions quoted above). It remains, however, doubtful if the alternative offered in these provisions as to joint seising or unilateral application is part of jus cogens or only jus dispositivum, yielding to a special agreement. Absent any conclusive practice, it can seem difficult to choose in the abstract between these two interpretations. Perhaps the circumstances of the particular case should also be reflected in the decision. In any event, if the other State is not opposed to the Court being seised in a manner not contemplated in the special agreement, the Court will have jurisdiction (in an appropriate case via the forum prorogatum process). If the other State raises a Preliminary Objection, the Court will have to decide on the basis of one or other of these lines of argument. In the face of a unilateral application of this kind, the Court would probably be well advised to show flexibility and avoid an over-formalistic approach. Certainly, such a unilateral application seems lacking in courtesy and not entirely compatible with the provisions of the special agreement. In some cases a party unilaterally seising the Court will have been in a position to use delaying tactics to avoid jointly seising the Court during the agreed period of time, instead waiting for that period to expire so that it can seise the Court unilaterally. If the Court does not immediately accept such jurisdiction, it might then be encouraging hypocritical practices of this kind. Certainly the Court might pronounce some kind of sanction against it, as an abuse of the process (nemo commodum capere potest de sua propria turpitudine).1526 In that case, it would be necessary to assess, on the basis of the particular case, the attitude the State in question has adopted, which in some situations might well prove a delicate task. At a more general level, the application of the ‘Mavrommatis formula’,1527 by way of analogy, would also seem to be a possibility. If the special agreement fixes no date or modalities for seising the Court, then it can be seised unilaterally by whichever of the parties acts first. That, as a matter of law, is the fallback position. It is easy to see why this is so, given that the purpose of the special agreement is to open the way to the Court. Cases submitted to the Court under a special agreement. Over a period of two decades, 11 special agreements were notified to the PCIJ, namely in the Treaty of Neuilly (1924),1528 Lotus (1927),1529 Serbian and Brazilian loans cases (1929),1530 Territorial jurisdiction of the 1526   As to this maxim, see R Kolb, ‘La maxime “nemo ex propria turpitudine commodum capere potest” en droit international public’ (2000) 33 RBDI 84 et seq. 1527   See above. 1528   PCIJ, Series A, no 3, 4–5 and Series C, no 6, 9. 1529   PCIJ, Series A, no 9, 5 and Series C, no 13-II, 25. 1530   PCIJ, Series A, nos 20 and 21, 6–7, 94 and Series C, no 16-III, 292 and 16-IV, 145.



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International Commission for the River Oder (1929),1531 Castellorizo (1929),1532 Free Zones (1932),1533 Franco-Lighthouses case between France and Greece (1934),1534 Oscar Chinn (1934),1535 Lighthouses on Crete and Samos (1937)1536 and Borchgrave (1937).1537 It is noticeable that France was a party in seven of these 11 cases. As for the ICJ, it has been seised of numerous special agreement cases, amongst which only those that got as far as a judgment on jurisdiction or admissibility are listed below: Corfu Channel (second phase, merits, 1949),1538 Right of asylum (1950),1539 Minquiers and Ecrehos (1953),1540 Monetary Gold seised at Rome in 1943 (1954),1541 Sovereignty over certain frontier land (1959),1542 Arbitral award by the King of Spain dated 23 December 1906 (1960),1543 North Sea Continental Shelf (1969),1544 Fisheries Jurisdiction (1974),1545 Continental shelf (Tunisia v Libya, 1982),1546 Delimitation of the maritime boundary in the area of the Gulf of Maine (1984),1547 Continental shelf (Libya v Malta, 1985),1548 Frontier dispute (Burkina Faso v Mali, 1986),1549 Land, island and maritime boundary dispute (El Salvador v Honduras, 1992),1550 Territorial dispute (Libya v Chad, 1994),1551 Gabcikovo-Nagymaros (1997),1552 Kasikili/Sedudu (1999),1553 Sovereignty over Pulau Ligitan and Pulau Sipadan (2002),1554 Boundary dispute (Bénin v Niger, 2005)1555 and Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (2008).1556 Amongst the various bases for establishing the Court’s jurisdiction, cases begun by special agreement have the most easily recognisable profile. First, these are usually not cases that are highly sensitive from a political point of view. If they were, at least one of the two governments concerned, normally the respondent, would probably be unwilling to take the case to the Court. Often such States hesitate to enter into a special agreement, and it is common for them to refuse to do so. In such cases of high political sensitivity, the claimant normally has to proceed under the compulsory jurisdiction, if there is one available, in particular under Article 36, paragraph 2 of the Statute. Secondly, cases before the Court on the basis of a special agreement are very often concerned with sovereignty over territory or   PCIJ, Series A, no 23, 6–7, and Series C, no 17-II, 244.   PCIJ, Series C, no 61, 10, the case subsequently discontinued. 1533   PCIJ, Series A/ B, no 46, 97–99 and Series C, no 17-I (vol 2), 490. 1534   PCIJ, Series A/B, no 62, 5–6 and Series C, no 74, 11. 1535   PCIJ, Series A/B, no 63, 66–67, and Series C, no 75, 9. 1536   PCIJ, Series A/B, no 71, 95–96 and Series C, no 82, 10. 1537   PCIJ, Series A/B, no 72, 159–60 and Series C, no 83, 10. 1538   ICJ Reports 1949, 6. 1539   ICJ Reports 1950, 267–68. 1540   ICJ Reports 1953, 49–50. 1541   ICJ Reports 1954, 21. 1542   ICJ Reports 1959, 210–11. 1543   ICJ Reports 1960, 194. 1544   ICJ Reports 1969, 5–7. 1545   ICJ Reports 1973, 8, 54–55. 1546   ICJ Reports 1982, 21–24. 1547   ICJ Reports 1984, 252–55. 1548   ICJ Reports 1985, 15–16. 1549   ICJ Reports 1986, 557–58. 1550   ICJ Reports 1992, 356–58. 1551   ICJ Reports 1994, 8–10. 1552   ICJ Reports 1997, 10–13. 1553   ICJ Reports 1999-II, 1049–51. 1554   ICJ Reports 2002, 630–31. 1555   See §§ 1–2. 1556  Ibid. 1531 1532

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boundary delimitation (whether land or maritime). Out of the 29 cases cited as having come before the ICJ on the basis of a special agreement, 13 concerned disputes of that kind, that is 68.4 per cent. This is explained by the factual and legal complexity of such disputes. The disputed area needs to be exactly defined, as do the sectors in which the boundary is uncertain or disputed, and the applicable law (which the parties may frequently wish to be a ‘special’ law for the purposes of the case). There is also the question of indicating to the Court the tasks which the parties wish it to undertake in light of their particular wishes, and the question of setting exact limits to the modalities by which the parties are to cooperate with the Court as regards evidence and procedure, so that issues with a high factual content can be dealt with properly. Given these particular necessities, which involve the parties in ‘preparing’ the dispute for the Court’s decision via bilateral negotiation and interaction between them, a special agreement is normally a better way of meeting these needs than a unilateral application on the basis of the Court’s compulsory jurisdiction. At the same time, the territorial disputes in issue in these cases were, in qualitative terms, mostly quite minor and limited ones. Sometimes they concerned a maritime boundary, important from a resource point of view but not to national security. In some cases they concerned an island, in others borderland territory. There has never been a case in which the Court has been seised, by way of special agreement, of a major territorial dispute that is politically divisive in a serious way, like the former claims of France and Germany to Alsace-Lorraine and, in our own times, the territorial disputes relating to Palestine. That does not mean that long sectors of boundaries are never in issue in such cases, as in the 1992 El Salvador v Honduras case. But, in that case, the ICJ intervened to resolve a dispute between States that were fundamentally well disposed to each other, and in the course of its intervention it merely determined the exact boundary line, rather than drawing one anew (the latter exercise might well have been considered by the two States to be giving the Court too extensive a discretion). Advantages and disadvantages of special agreements. The advantages of a special agreement are as follows.1557 First, the agreement enables the parties to cooperate in defining the dispute and in working out the modalities for it to be resolved by the Court. These preliminary contacts can easily result in a prior negotiation which can either reduce the dispute or resolve it, prior to the Court’s ever actually being seised. In that event the special agreement has a ‘prophylactic’ effect. It pushes the parties into cooperating with each other, to listening to each other and towards compromising on the substantive issues. Even if the parties do not succeed in these preliminary contacts, in settling their dispute, so that the Court is then duly seised of it, the Court will benefit, both from the fact that the dispute will have been carefully studied and ‘prepared’ in the course of diplomatic contact. It also takes advantage from the subject matter having been defined and circumscribed with as much clarity as the parties are able to achieve in negotiation. Second, a special agreement gives the parties the greatest possible influence over the Court, so that it approaches the case in line with their wishes. The parties delineate the issues, identify the applicable law, direct the Court towards its task, and so on. Here, then, the influence of parties over the Court’s activities reaches its apogee. For this reason, States which, although they wish to submit a dispute to the Court, at the same time have their own idiosyncratic wishes about the manner in which they want the dispute to be treated, tend to choose to proceed either by way of special agreement or by way of arbitration. This right of the parties to give directions to the Court can come into conflict with – and be restricted by – the Statute and the Rules.   cf Tomka, above n 1517, 553 et seq. Tomuschat, ‘Article 36’ above n 1518, 614.

1557



CONSENSUAL JURISDICTION 537

However, within the limits of what those instruments permit, the parties do have a certain degree of latitude, which is at its widest if they proceed by special agreement. Third, the Court’s optional jurisdiction, in respect of which a special agreement is par excellence the way to proceed, offers the parties the advantage of not having to submit to the Court’s jurisdiction in advance, in respect of a series of potential cases which cannot yet be foreseen and which might arise in equally unforeseeable international contexts. States often hesitate to enter into commitments and undertakings of that kind, which can be felt to be a little rash. For those who do not wish to assume such extensive obligations in relation to dispute resolution, a special agreement is a welcome and useful alternative. Once a dispute arises, the various methods of resolving it have been considered, and its relative importance has been assessed and understood, it is possible to submit it to the Court, each time on a caseby-case basis, within whatever scope is considered desirable, knowing exactly what one is about. This mechanism is of particular interest to the most powerful States, which traditionally have been hesitant about submitting freely to the potential torments of a compulsory jurisdiction. The Court is nevertheless open to them on a case-by-case basis, each time through an ad hoc agreement. States in dispute with such Powers will be all the more ready to enter into such agreements given that the judicial procedure, with at its heart the principle of strict equality between the parties, favours them more than any other means of resolving disputes with States that are more powerful than themselves. Fourth, in special agreement cases the procedure is normally a simplified one. The time ‘lost’ in negotiating the special agreement is ‘regained’ before the Court. The main reason for this is because it is extremely rare for Preliminary Objections to be raised in cases of this type. Fifth, the fact that the parties have recently agreed, by agreement between them, to submit the particular dispute to the judgment of the Court, almost always ensures that the Court’s decision will be complied with. To date, there has never been a case at the PCIJ or the ICJ in which a judgment handed down in a special agreement case was not faithfully complied with. That cannot be said of cases brought under the Court’s compulsory jurisdiction, even if, to date, cases of flagrant non-compliance have been extremely rare. Sixth and finally, there are cases in which governments find themselves embarrassed at having to make certain concessions to other States.1558 Such concessions are, however, inevitable if conflicts are to be resolved, since it is simple-minded to imagine that one can receive concessions in a negotiation to settle a dispute without giving something in return. Where public opinion is whipped up on a tide of nationalistic feeling, inflated and exacerbated by a chauvinistic Press seising what it perceives as a glorious opportunity, it will be opposed to all concessions and repudiate them as a betrayal of the national interest, for the benefit of foreigners.1559 Such a public opinion will be neither sufficiently detached, nor   cf Politis, La justice internationale, above n 1518, 107; and, eg Tomuschat, ‘Article 36’, above n 1518.   The narcissism of the infant is generally overcome when human beings pass into adulthood (although the effort has to be sustained throughout life). It is appalling to see the truly primitive level at which it is maintained as regards international affairs, hypostasised and multiplied by the collective ‘me’, which becomes a kind of ‘super-me’ that is both exclusive and hyper-sensitive. The result is a transference outwards, against foreigners, of apparently irrepressible aggressive instincts, so as to make it easier to maintain civil and domestic peace internally. As has been truly said: ‘Exaggerated, exclusive, aggressive nationalism amounts to a veritable international disease’ (N Politis, La morale internationale (Neuchâtel, 1943) 78, – our translation). It prevents peaceful understandings between States, which can only be achieved through cooperation and mutual concessions, exactly as in any civil society. The aggression and intransigence of States thus contributes to keeping the international community in a state not so far removed from anarchy and the law of the jungle. There is a particular contradiction in the fact that some of the worst offenders are amongst the quickest to denounce this situation. The only means we have to reduce these dangers, even if we cannot eliminate them, is to educate people in an internationalist spirit from an early age. 1558 1559

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sufficiently informed, to understand and form a cool-headed assessment of the interplay of overall concessions by both sides in the course of negotiation. Public opinion readily perceives the concessions made by its own government, but not those of the other side. And even when made aware of the other side’s concessions, it will underestimate their value.1560 Governments that come under fire in this way may feel the need of a firm argument to which they can anchor the argument that the State has no choice and that the concession is unavoidable. The judgment of an international tribunal – acting as a kind of scapegoat or lightning conductor – can be a real help here. Sometimes both governments are caught in the same difficulty. A special agreement – independent of any question of compulsory jurisdiction – can serve them both very well. However, this kind of exercise, even if it is sometimes very useful to States, is not without difficulties of its own. What we see here is States sheltering behind an international institution because they do not have the political courage to do what needs to be done. The ICJ is interposed as a kind of buffer between government and population. Of course there is a danger that the Court itself, and its judgment, will be the subject of public debate that is both passionate and ill-informed, involving virulent attacks and political diatribes. The danger then is that, instead of the Court’s services being seen in a calm and dispassionate light, they will for a long period be seen from a biased perspective which, especially in democratic societies, may have a negative impact on the State’s willingness to accept the Court’s jurisdiction in later cases. The casting of the Court in the role of scapegoat is therefore a matter which needs careful attention. In order for the Court to discharge its role properly as an international court of justice, it is very important for the Court’s prestige and authority to be preserved. It is hardly helpful to the Court, as it strives to discharge its vitally important mission, to be seen as a player on a noisy stage, in the pitiless glare of lamps and projectors, rather than operating in a calm and gently lit environment in which much of its proceedings can be virtually ignored and forgotten by the wider public. As to the disadvantages of a special agreement, there are none as such, but of course there are limitations inherent in the mechanism’s nature. It does not guarantee compulsory or automatic jurisdiction through the right to seise the Court unilaterally. It cannot ensure that the Court will have extensive jurisdiction going beyond the needs of individual cases and established in advance. It does not, therefore, go as far as one would like in making it possible to resolve disputes. In addition, it is unlikely to be a way of seising the Court where the dispute is a politically sensitive one. The Court’s activities under special agreements are effectively limited to deciding cases that are either not very sensitive or are of average sensitivity, the kind of cases that might in former times have been submitted to arbitration. On the other hand, as already repeatedly noted, it is better for the Court to have jurisdiction within narrower limits that are scrupulously respected, than to erect a smokescreen of compulsory jurisdiction, announced with great pomp and fanfare, whose unreality is then exposed as soon as it is put to the test, as the States concerned wriggle (the degree of ele1560   One of the biggest problems about public opinion on international affairs, about which public opinion is excessively ill-informed, was very well highlighted by a British diplomat of the old school: ‘[T]he ordinary elector does not yet even realise that foreign affairs are foreign, i.e. that they are not concerned only with national interests but also with the interests of other countries. He imagines that foreign policy is made in much the same way as one prepares a budget or a draft law on education; that the policy is prepared by the Minister responsible, submitted to the Cabinet, approved by Parliament, and that all that then remains is to send it to the Foreign Office, which will then carry it out’ (H Nicolson, Diplomatie (Neuchâtel, 1948) 80, (italics in the original; our translation)). This is the basis of the unilateralism which one constantly finds amongst the peoples of the world, even though diplomats are well aware how unrealistic it is.



CONSENSUAL JURISDICTION 539

gance and conviction with which they wriggle scarcely mattering) out of the obligations which they have pretended to accept. In short, one must be looking to maximise the two modes of jurisdiction, the optional and the compulsory, and thus adding this category to the category of States that are willing to take their commitments a stage further. Only this overall perspective ensures a balanced judgement. Binding character and validity of special agreements. A special agreement is an international treaty. It therefore enters into force only when duly ratified. It is thus necessary for the parties to notify the Court that instruments of ratification have been exchanged, or for the parties to declare that signature of the treaty has the effect of ratification (an abbreviated form of treaty-making), or alternatively simply to assure the Court that the special agreement is in force.1561 Until it is in force, the special agreement is not a valid basis on which the Court’s jurisdiction can be founded. Similarly, if there are grounds for nullifying the special agreement (Articles 46 et seq. of the 1969 Vienna Convention on the Law of Treaties), it may, depending on the circumstances, not be possible to rely on the special agreement as a ground of jurisdiction. It should also be emphasised that although in principle a compromissory clause can be severed from the rest of the treaty containing it1562 that principle does not apply to special agreements. The head of jurisdiction falls with the nullity of the special agreement, since they are effectively one and the same thing. What would happen if there were a defect in the compromis but it did not come to light until after the Court had given judgment? First, one should consider the situation in which the compromis is an absolute nullity, which in practice probably means that the agreement will have been made by using coercion against the representative of one side or, in very exceptional circumstances, by the secret threat to use force. In such cases, the judgment would likewise be a nullity. The procedure for bringing home that nullity would be by way of extraordinary revision of the judgment. In reality, however, States do not consider it so essential to establish the Court’s jurisdiction that, with that end in view, they are prepared to commit such serious acts as the use of force. Then there are the cases in which the special agreement, although not void, is voidable – if, for example, it were to be discovered that a representative of the State had been bribed. Such cases are unlikely to arise in practice, since the entire ruling establishment of the State will be well aware that the Court has been seised, and the State also receives formal notification. So it is effectively impossible to argue voidability on the basis of error, fraud or corruption. Once the State authorities are aware that the Court had been seised, it would be incumbent on them to react, and to object. If they do not do so, they are acquiescing, in the sense of Article 45 of the 1969 Vienna Convention on the Law of Treaties.1563 The only argument that would be available against jurisdiction might be irregular ratification, as contemplated by Article 46 of the Convention.1564 However, the circumstances in which that Article can be called in aid are so tightly defined that it is difficult to see how it might be successfully invoked in such a case. If it were, however, the Court’s judgment would have been ultra vires. It would then be 1561   In the days of the PCIJ, evidence of ratification was strictly required when one party unilaterally seised the Court on the basis of a special agreement: cf Hudson, above n 1518, 436, fn 6. 1562   See above. 1563   As to this provision, see MG Kohen, ‘Article 45’ in O Corten and P Klein (eds), Les Conventions de Vienne sur le droit des traités, Commentaire Article par Article, vol II (Brussels, 2006) 1667 et seq. One might also consult ME Villiger, Commentary on the Vienna Convention on the Law of Treaties (Leiden/Boston, 2009) 572 et seq. 1564   See M Bothe, ‘Article 46’ in O Corten and P Klein (eds), Les Conventions de Vienne sur le droit des traités, Commentaire Article par Article, vol II (Brussels, 2006) 1719 et seq. and Villiger, above n 1563, 583 et seq.

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necessary to unravel the resulting legal position by analogy with the provisions of Article 69, paragraph 2 of the Convention.1565 Again, the procedure is that of revision of the judgment. All these considerations are, it must be said, highly theoretical and will probably remain so. At the time of writing no such case has occurred. Conditions as to form. A special agreement must be in writing, but apart from that, there are no conditions as to its form. The reason it cannot be oral is that it has to be notified to the Court, and define the dispute, as well as containing the instructions the parties wish to give the Court as to procedural and substantive matters. It is not reasonably to be supposed that all that could be done orally. This does not mean, however, that the Court could not be seised on the basis of an informal oral agreement. In such a case, however, one would be involved in one of the categories of forum prorogatum. There are, however, some informal written agreements, giving the Court jurisdiction, that do not follow the ordinary lines of a special agreement as analysed above. This simply illustrates the rule that a special agreement must be in writing but is not subject to any other requirement as to form. The Court simply needs to be satisfied of the parties’ unequivocal will to submit to its jurisdiction. Three examples show how this has worked out in practice. In the case on the Aegean Sea continental shelf (1978), the Foreign Ministers of Greece and Turkey had, in a joint written press communiqué issued after a press conference, considered the prospect of negotiating and seising the Court of questions concerning the delimitation of their maritime areas. The relevant passage of the Brussels Press Communiqué of 13 May 1975 reads as follows: ‘[The Prime Ministers] decided that those problems should be resolved peacefully by negotiations and as regards the continental shelf of the Aegean Sea by the International Court at The Hague’.1566 Greece claimed that this communiqué amounted to a binding agreement and that its contents provided a direct foundation for the Court’s jurisdiction, since the parties had recognised and accepted it. The Greek argument dwelt particularly on the words ‘decided’ and ‘should be resolved’, clearly carrying the sense of legal obligation. The Court began by emphasising the absence of formalistic requirements in this field. In its view, a press communiqué could indeed be a way of constituting an agreement to give the Court jurisdiction. The Court did not even think a restrictive interpretation was required; nor did it consider that there was any presumption against the press communiqué’s having binding force.1567 Rather, it took the view that such a question should be left to be assessed on a case-by-case basis. It said 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 . . . [it] essentially depends on the nature of the act or transaction to which the communiqué gives expression . . . the Court must have regard above all to its actual terms and to the particular circumstances in which it was drawn up.1568

Although the communiqué itself could amount to an agreement to give the Court jurisdiction, its travaux préparatoires showed, in the Court’s view,1569 that the parties did not intend   See J Verhoeven, ‘Article 69’ in Corten and Klein above n 1564, 2481 et seq. and Villiger, above n 1563, 853 et

1565

seq.   ICJ Reports 1978, 39–40.   C Tomuschat objects to this, ‘Article 36’ above n 1518, 615–16. It may be enough to say that so informal an understanding ought not to be lightly assumed. The question does, however, depend very clearly on the circumstances of the particular case. 1568   ICJ Reports 1978, 39, § 96. 1569   Ibid, 41 et seq. 1566 1567



CONSENSUAL JURISDICTION 541

to confer jurisdiction on the Court then and there. Rather, they contemplated that, if they could not reach a direct understanding, they would enter into a special agreement to jointly submit the dispute to the Court. The 1975 press communiqué was therefore no more than a promise to conclude a special agreement in certain circumstances: it was an agreement to agree, or pactum de contrahendo. In short, the Court took a liberal approach towards the idea that a binding legal agreement might in principle have been entered into, but a more restrictive view as regards accepting that jurisdiction had, in fact, been conferred upon it. Overall, one may well conclude that the Court would, in an appropriate case, accept a joint press communiqué, notwithstanding its relative informality, as an agreement giving it jurisdiction. If so, then such an agreement would fall within the category of a special agreement, and within the sub-category of informal special agreements. In the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Preliminary Objections, Bosnia-Herzegovina v Yugoslavia, 1996), the Court was faced with a letter from the presidents of the two States, recognising that legal disputes arising from the break-up of the former Yugoslav federation and not resolved by other means, must be submitted to the ICJ.1570 Certainly, a letter of that kind is capable of founding the Court’s jurisdiction, as shown by the Corfu Channel case (1948).1571 The Court took the view that, having due regard to the circumstances, the letter could not, in this particular case, amount to more than the canvassing of a possibility, one which would take concrete form only with the conclusion of a special agreement: it did not amount to a direct and unconditional acceptance of the Court’s jurisdiction. The moving and highly political context in which the letter was written makes it understandable that the Court took such a prudent and cautious view. It said this: The Court finds that, given the circumstances in which that letter was written and the declarations that ensued, it could not be taken as expressing an immediate commitment by the two Presidents, binding on Yugoslavia, to accept unconditionally the unilateral submission to the Court of a wide range of legal disputes. It thus confirms the provisional conclusion which it had reached in its Orders of 8 April (ICJ Reports 1993, 16–18, paras 27–32) and 13 September 1993 (ICJ Reports 1993, 340–41, para 32).1572

It will be noted, moreover, that the relevant part of the letter was less strongly worded than the Greco-Turkish press communiqué. Although the latter contained expressions which, given their ‘ordinary meaning’ seemed to connote an obligation,1573 in the letter it was reasonably clear that the words ‘should be’ expressed no more than a simple wish. The Court could not assume jurisdiction on so frail and fragile a basis. Faced with this text, the Court did not even feel the need to buttress its interpretation with a study of such travaux préparatoires as might perhaps have been available to it. Nevertheless, the fact remains that, as a matter of principle, a joint letter can be enough to give the Court jurisdiction.

1570   The letter read as follows: ‘FR Yugoslavia holds the view that all disputes which cannot be settled by agreement between FR Yugoslavia and the former Yugoslav republics should be taken to the International Court of Justice, as the principal legal organ of the United Nations. Accordingly, and in view of the fact that all the issues raised in your letter are of a legal nature, FR Yugoslavia proposes that in the event that agreement is not reached amongst the participants in the Conference, these questions should be adjudicated by the International Court of Justice, in accordance with its Statute.’ See ICJ Reports 1996-II, 618, § 37. 1571   ICJ Reports 1947/1948, 18 et seq. 1572   ICJ Reports 1996-II, 618, § 37. 1573   Which the Court short-circuited by bringing in the travaux préparatoires.

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The position was somewhat different in the case of the Maritime delimitation and territorial questions between Qatar and Bahrain (Jurisdiction and admissibility, 1994).1574 In this case, Qatar and Bahrain were involved in negotiations, with Saudi Arabia acting as mediator. Minutes of the meetings were drawn up by the Saudi secretary, and were subsequently signed by the two sides’ Ministers of Foreign Affairs. The signed Minutes contained the following conclusion, as drafted in the course of the negotiations: ‘After the end of this period [of negotiation and mediation, until May 1991], the parties may submit the matter to the International Court of Justice in accordance with the Bahraini formula’.1575 Bahrain argued that these were only Minutes and did not constitute a binding international agreement; Qatar, for its part, said they were an international agreement in good and due form, and a sufficient basis for the Court to have jurisdiction. The Court began by recalling that, as a matter of international law, an agreement can be made in an informal way.1576 In the present case, the signed Minutes did not confine themselves to a record of the discussion and a summary of the points of agreement and disagreement. The Minutes went further, enumerating the undertakings of the parties. In this way it created legally binding rights and obligations. In addition, Bahrain was not in a position to argue that it had no intention to subscribe a legally binding agreement. Having signed a text of this kind, Bahrain could not then come before the Court and plead that it had wanted to sign an agreement that was only a political one. The principle of good faith and the protection of the legitimate trust of the co-contracting State prevented it. That left the question whether the agreement, in itself, was an immediate title of jurisdiction, or whether it merely contemplated the subsequent entry by the two States into a special agreement; another question, also remaining, was whether the Court could be unilaterally seised by either of the two States or whether it could only be seised jointly (the text read: ‘the parties may submit’ and in this respect was ambiguous, since it might mean that they could do so in concert, or alternatively that they might do it severally). In a decision of 1995, the Court had decided that an immediate title of jurisdiction had been created,1577 and had then decided that it gave the applicant the right to seise the Court unilaterally, a decision in line with a body of jurisprudence that was already well established.1578 To sum up, in the present case, the Court accepted that the minutes of the negotiation, signed by the Ministers of Foreign Affairs of the two States, were an instrument validly establishing its jurisdiction, or in other words that they amounted to an informal special agreement. If one rejects the classification proposed here, refusing to treat such informal agreements as special agreements, and reserving the expression ‘special agreement’ to agreements made in the usual form, then, in that case, the only options are to treat the question as an issue of forum prorogatum or else to create an additional category of titles of jurisdiction, which we may simply call ‘informal agreements’. It is true that the cases discussed here resemble forum prorogatum situations in as much as the agreement is informal in nature. However, the fact that the governments proceed in concert, by a single joint document, and that they do so voluntarily, brings these agreements closer to the classical form of a special agreement. That is why they are dealt with here under the present heading. But in any event, the actual classification is not a very important matter, since whatever the typology adopted, the Court’s jurisdiction is established.   ICJ Reports 1994, 116 et seq.   Ibid, 119, § 19. 1576   Ibid, 120–22. 1577   ICJ Reports 1995, 15–17. 1578   Ibid, 17 et seq. 1574 1575



CONSENSUAL JURISDICTION 543

Registering the special agreement under Article 102 of the UN Charter as a condition of validity? Article 102 of the UN Charter reads as follows: 1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it. 2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations.1579

Every written and legally binding international agreement (but not political agreements which are not legally binding) to which a Member of the United Nations is a party must be registered with the responsible service of the UN. Registration is not a condition of the agreement’s validity in international law, but the agreement cannot be invoked before a UN organ unless and until it has been registered. The ICJ is, of course, the principal legal organ of the UN (Article 92 of the Charter). Does this mean that a special agreement that has not been registered cannot be invoked before the Court and consequently cannot be used to found its jurisdiction? In the days of the PCIJ, when Article 18 of the League of Nations Covenant imposed an even stricter condition as to registration, special agreements were rarely registered.1580 The parties thought their ambit too restricted, limited to conferring jurisdiction on the Court in a single case, for it to be sensible to add them to the League’s collection of treaties. It is true that, in those days, the PCIJ was not the principal legal organ of the League. However, the PCIJ was under an obligation to apply the law. Therefore, it would not have been free to ignore such an agreement’s absence of binding force for members of the League, under the terms of Article 18 of the Covenant. In our own day, special agreements are registered by the United Nations Treaty Service. The problem continues to arise as to informal treaties of the kind considered in the previous subsection. By their very nature, such informal treaties are less suited to registration; often it does not even occur to the parties to register them. Certainly, registration is possible at any time, even if it is late, so that a failure to register can be cured in the course of proceedings before the ICJ, that is, even after the Court has been seised. The Court has not been very formalistic in this respect. In the Corfu Channel case (1949), it accepted jurisdiction on the basis of a special agreement that had not been registered.1581 In the 1978 Aegean Sea case (cited above), the Court accepted the possibility that a joint press communiqué could constitute an agreement giving it jurisdiction, without mentioning the matter of registration.1582 1579   This provision, originating in Art 18 of the League of Nations Covenant and President Wilson’s Fourteen Points, was directed against secret diplomacy. People were convinced, at the end of World War I, that secret diplomacy and treaties with secret clauses had poisoned international relations, sapped mutual confidence, and, as a result of secret alliances, led to wars. The remedy was supposed to lie in giving publicity to treaties. cf O Hoijer, Le Pacte de la Société des Nations (Paris, 1926) 325 et seq.; U Knapp and E Martens, ‘Article 102’ in B Simma (ed), The Charter of the United Nations – A Commentary, 2nd edn, vol II (Oxford, 2002) 1278; JP Jacqué, ‘Article 102’ in JP Cot, A Pellet and M Forteau (eds), La Charte des Nations Unies, Commentaire Article par Article, 3rd edn, vol II (Paris, 2005) 2117. 1580   cf Hudson, above n 1518, 435. Only three out of 11 special agreements seem to have been registered. 1581   ICJ Reports 1947/1948, 15. 1582   Judge Dillard had, however, put a question in this regard to Counsel for Greece, who replied that his government had taken the view that, given the informal nature of the agreement, it had thought itself under no obligation to register it, but that in the meantime the agreement had been sent to the Secretariat of the United Nations. cf ICJ, Pleadings, oral arguments and documents (1976) 309, 479–82.

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In Qatar and Bahrain (1994), cited above, Bahrain argued that non-registration for several months showed that Qatar did not consider the Minutes to be a legally binding agreement, since otherwise it would have moved immediately to have them registered. Faced with that argument, the Court could not duck the issue. It reaffirmed that such agreements must indeed be registered, but also that late registration did not have consequences for their validity: The Court would observe that an agreement or treaty that has not been registered with the Secretariat of the United Nations may not, according to the provisions of Article 102 of the Charter, be invoked before any organ of the United Nations. Non-registration or late registration, on the other hand, does not have any consequences for the actual validity of the agreement, which remains no less binding on the parties. The Court therefore cannot infer from the fact that Qatar did not apply for registration of the 1990 Minutes until six months after they were signed, that Qatar considered, in December 1990, that those Minutes did not constitute an international agreement.1583

The Court’s reasoning must be taken in its context, that of an argument raised by one party. The Court reaffirmed the obligation to register (arising from a practice which is now generally followed as regards special agreements), declined to see in late registration evidence that a State did not consider the instrument to be a legally binding one, and emphasised that registration can be effected even though it is out of time. If the registration needed to be effected pendente lite, the Court would doubtless apply the ‘Mavrommatis rule’1584 on defects of form: there would be little point in ruling that the proceedings were invalid and forcing a party to start a new case after registering the agreement. In short, the requirement of registration is not a very onerous condition. Interpretation of a special agreement. Special agreements are international ones, and therefore in principle, are to be interpreted in accordance with the rules on treaty interpretation, particularly in Articles 31 to 33 of the 1969 Vienna Convention on the Law of Treaties. The Court confirmed, in the case on the Land, island and maritime boundary dispute (El Salvador v Honduras, 1992) that it must be guided by those rules when interpreting the special agreement in that case. First, it must ascertain the ordinary meaning of the terms.1585 In other cases, doubtless because the special agreements were bilateral instruments in relation to which the parties’ wishes could be interpreted more easily than in relation to a multilateral treaty, and were therefore a useful aid to interpretation, the Court has emphasised the importance of their intentions. So, for example, in the Continental shelf case (Libya v Malta, 1985), the Court said: 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 by interpretation of the Special Agreement.1586

Here we can clearly see a modest change of course in the process of treaty-interpretation, since it is rare for the Court to lay stress on the parties’ intentions. On the other hand, it will also be remembered that the Court was not so focused on the ‘plain meaning’ of the

  ICJ Reports 1994, 122, § 29.   See above, section 1(b). 1585   ICJ Reports 1992, 582–83, § 373. 1586   ICJ Reports 1985, 23, § 19. 1583 1584



CONSENSUAL JURISDICTION 545

document in the Aegean Sea case, preferring to analyse the travaux préparatoires and thus to engage in a direct investigation of the parties’ intentions.1587 In addition, there is the fact that the Court applies the various maxims of interpretation to special agreements just as it does to other legal instruments. There is, for example, the ‘useful effects’ maxim, as considered in the Free Zones (1929)1588 and Corfu Channel cases (1929).1589 In short, then, the ordinary rules of interpretation apply, but with a slight leaning in favour of the true intentions of the parties. At the same time it has to be said that the Court’s jurisprudence on this point does seem fairly fluid, since sometimes it goes more directly into an exploration of the will of the parties (if it knows that the exercise will provide it with useful arguments in support of its interpretation), and yet on other occasions it insists on the simple ordinary meaning of the words used. The requirement that the special agreement be in conformity with the mandatory provisions of the Statute and the Rules. One of the reasons for seising the Court on the basis of a special agreement is that it allows the parties to indicate the applicable law and the task entrusted to the Court. But indications of this kind can easily come into conflict with the Statute or the Rules, or indeed with the principle of judicial integrity. It is, therefore, not unusual for the Court to have to interpret a special agreement in such a way as to conform its terms to the Statute and Rules. It may occur that the Court’s only alternative is to refuse to decide the point in question in the way the parties ask. Thus in the 1929 Free Zones case, the parties had asked the Court, in their special agreement, to officially inform them of the results of its deliberations, and this the Court refused to do, founding itself on the Statute.1590 In the Gulf of Maine case (1984), the parties asked the Court to end the line of delimitation within a triangle that they had defined in advance, thus imposing a potentially significant limit on the way the Court was to deal with the applicable law (jura novit curia). In that case, however, the Court took the view that the relevant law was sufficiently flexible to allow it to comply with the parties’ wishes.1591 In the Continental shelf case (Tunisia v Libya, 1982), the parties had asked the Court to take account of ‘new accepted trends’ in the law of the sea, which the Court read as a purely interpretative request and not as an unacceptable obligation to decide the case sub specie legis ferendae;1592 These questions have already been considered and there is no need to repeat the analysis here.1593 It is, however, worth emphasising that the Court will do its best to interpret the indications in a special agreement in such a way as to make them conform to the Statute and the Rules. In that regard, the maxim of interpretation in favorem validitatis is applied in tandem with the maxim about interpretation in conformity with the Statute and Rules.

  ICJ Reports 1978, 41 et seq.   PCIJ, Series A, no 22, 13: ‘Whereas, in cases 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.’ 1589   ICJ Reports, 1949, 24. 1590   PCIJ, Series A, no 22, 12–13. 1591   ICJ Reports 1984, 265–66, §§ 19 et seq. 1592   ICJ Reports 1982, 37–38, §§ 23–24. 1593  See above, ch 3 section 1(b). 1587 1588

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i)  Fifth Head of Jurisdiction: The forum prorogatum1594 Fundamental elements of the forum prorogatum. The forum prorogatum is a residual legal category bringing together under a single heading a whole series of situations, with certain common legal characteristics but also with other characteristics that can and do diverge.1595 As a common legal denominator, there are four characteristics of the forum prorogatum: the informal and residual nature of the way in which consent is given; the acceptance of the jurisdiction on an optional and purely ad hoc basis; the fact that it occurs subsequent to the seising of the court; and the fact that it remedies a defect in the main title of jurisdiction. We will consider these four elements in turn. 1) Informality. The first common denominator in all these situations is that consent to the Court’s jurisdiction is expressed informally, without following the ordinary procedure of drawing up a document in due and proper form, whether it be a treaty for the purpose of settling disputes generally, a special agreement, the insertion into a text of a compromissory or jurisdictional clause, or the formulation of an optional declaration – all of which are formal methods. As a counterweight to these, the forum prorogatum opens access to the Court via an extraordinary means, which is informal in that it requires no documentary agreement or unilateral instrument of the kind mentioned above. Acceptance can come, or be inferred, from anything that demonstrates consent. The forum prorogatum is, in a sense, the very epitome of consent, shorn of forms and reduced to its most direct expression. For that very reason it is also a residual category, bringing together all the ‘other’ modalities for establishing the Court’s jurisdiction. This residual character gives it a greater degree of malleability than other titles of jurisdiction, and consequently a wider range of facets and colorations. 1594   See in this regard, H Waldock, ‘Forum Prorogatum or Acceptance of a Unilateral Summons to Appear before the International Court’ (1948) 2 ILQ 377 et seq.; S Rosenne, ‘Forum Prorogatum in the ICJ’ (1953) 6 RHDI 1 et seq.; B Winiarski, ‘Quelques réflexions sur le soi-disant forum prorogatum en droit international’ in Essays J Spiropoulos (Bonn, 1957) 440 et seq.; GG Fitzmaurice, ‘The Law and Procedure of the ICJ (1951–1954): Questions of Jurisdiction, Competence and Procedure’ in BYIL, vol 34, (1958) 80 et seq.; H Lauterpacht, The Development of International Law by the International Court (London, 1958) 103 et seq.; Dubisson, above n 1518, 198 et seq.; P Stillmunkes, ‘Le forum prorogatum devant la PCIJ et la ICJ’ (1964) 68 RGDIP 665 et seq.; IF Shihata, The Power of the International Court to Determine its Own Jurisdiction (The Hague, 1965) 128 et seq.; J Soubeyrol, ‘Forum prorogatum et CJI: De la procédure contentieuse à la procédure consultative’ (1972) 76 RGDIP 1098 et seq.; M Bedjaoui, ‘La forum prorogatum devant la Cour internationale de Justice: les ressources d’une institution ou la face cachée du consensualisme’ Annuaire africain de droit international, vol 5 (1997) 91 et seq.; S Yee, ‘Forum Prorogatum in the International Court’ in GYIL, vol 42 (1999) 145 et seq.; S Yee, ‘Forum Prorogatum and the Advisory Proceedings of the International Court’ (2001) 95 AJIL, 381 et seq.; S Yee, ‘Forum Prorogatum Returns to the International Court of Justice’ (2003) 16 Leiden Journal of International Law 701 et seq. See also Rosenne, The Law and Practice of the International Court, above n 1518, 695 et seq. 1595   The expression ‘forum prorogatum’ is derived from Roman law, although the term itself was not used in classical times. The formula of Ulpien in Dig., 5, 1, 1, under the heading ‘De iudiciis: ubi quisque agere vel conveniri debeat’ evokes the subject: ‘Si se subiciant aliqui iurisdictioni et consentiant, inter consentientes cuiusvis iudicis, qui tribunali praeest vel aliam iursidictionem habet, est iurisdictio,’ For further detail, see M Kaser and K Hackl, Das römische Zivilprozessrecht, 2nd edn (Munich, 1996). The expression ‘forum prorogatum’, a forum created by the parties, was subsequently opposed to the concept of the ‘forum legale’, the compulsory jurisdiction of the State’s courts. It became customary to use the expressions ‘forum prorogatum’ or ‘pactum de foro prorogando’ only in mediaeval times, in the jurisprudence of the Roman law/canon law ius commune: cf J Weissmann, Das Forum Prorogatum (thesis, Zurich, Vienna, 1935) 7; and more generally C Deybeck, Der Gerichtsstand der Vereinbarung in historischer und dogmatischer Darstellung (Erlangen, 1888) and R Adam, Die civilprozessuale Zuständigkeitsvereinbarung in geschichtlicher Entwicklung (Munich, 1888).



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2) Optional and ad hoc jurisdiction. Such an acceptance of the Court’s jurisdiction is always confined to the particular case. The forum prorogatum is thus a means to create an optional jurisdiction of limited and predetermined extent, just as a special agreement does. Theoretically, there is nothing to stop States from accepting a generalised compulsory jurisdiction by way of a special sort of forum prorogatum, but it is of course easy to see why they do not do so. If a State wanted to accept such sweeping obligations, it would have recourse to the well-tried system of optional declarations under Article 36, paragraph 2 of the Statute, or alternatively would enter into general agreements for the resolution of disputes, in that event creating titles of jurisdiction under Article 36, paragraph 1. Conversely, the forum prorogatum enables a State to accept the Court’s jurisdiction within the framework of a pre-existing legal regime that is tried and tested, and which guarantees reciprocity. 3) The forum prorogatum mechanism operates after the Court is already seised. The forum prorogatum is characterised by the fact that the Court’s jurisdiction is accepted (or as the case may be enlarged) after the Court has already been seised. That is the reason why, nowadays, the forum prorogatum mechanism is used mainly within a jurisdiction that is already institutionalised, or, at the very least, already exists. Only such an existing tribunal can be unilaterally seised without a perfected head of jurisdiction being already established. The head of jurisdiction can in fact be entirely non-existent, or alternatively may be too narrow in scope to be able to accommodate the entirety of the claim. The respondent’s attitude is then crucial. If it agrees, either expressly or by filing documents, to defend the case on the merits, it is effectively waiving the initial defects and accepting the Court’s jurisdiction. 4) ‘Remedial’ or ‘curative’ character. Another characteristic of the forum prorogatum mechanism is that it always operates in connection with a defective or non-existent head of jurisdiction – something necessary to establish jurisdiction is simply missing. If there is a perfected head of jurisdiction, there is no need for the forum prorogatum, which strictly speaking is a subsidiary mechanism that can apply only if and when the jurisdiction cannot be sufficiently established on the basis of existing titles of jurisdiction. The forum prorogatum is thus, in essence, a ‘remedial’ or ‘curative’ mechanism. For these reasons the Dictionnaire de droit international public defines the forum prorogatum in the following terms: The forum prorogatum is when a State accepts the jurisdiction of an institutionalised international jurisdiction, such as the International Court of Justice, after the jurisdiction is seised of the case in question, signifying its acceptance either by an express declaration to that effect or by defending the case in such a way as to imply tacit acceptance.1596

In other words, under the forum prorogatum mechanism the tribunal’s jurisdiction is based (or enlarged in scope) by reference to a title of jurisdiction that is pre-existing to the extent that the respondent submits to the proceedings that have begun without objecting to the tribunal’s jurisdiction. The absence of any objection is inferred either from express agreement or acceptance, or from acts, defending the case, whose legal significance is equivalent to such agreement or acceptance. As the Court stated in the Minority schools case (1928): ‘[T]he consent of a State to the submission of a dispute to the Court may not only result   Salmon, above n 1520, 518 (our translation).

1596

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from an express declaration, but may also be inferred from acts conclusively establishing it’.1597 The forum prorogatum can thus provide a title of jurisdiction where previously none existed. But equally, it can enlarge the scope of a pre-existing title of jurisdiction that was limited ratione personae, materiae, loci or temporis.1598 A small number of commentators have tried to confine the forum prorogatum to cases in which the scope of another, preexisting, head of jurisdiction is extended, taking the view that the forum prorogatum on its own cannot provide an autonomous head of jurisdiction.1599 However, that view is contrary to judicial practice, and reflects an excessive degree of formalism which is ill-adapted to the Court’s need for flexibility. Types of forum prorogatum. The expression ‘forum prorogatum’ covers a variety of different situations. At least two different types should be distinguished. Express consent. The first kind of forum prorogatum takes the form of an express agreement made after the Court has been seised (a kind of post hoc special agreement), or of an express unilateral act on the part of the respondent, such as a letter to the Court, signed by its duly authorised representative, in which the State accepts the Court’s jurisdiction. The Preliminary Objections stage of the Corfu Channel case is a good example.1600 The Security Council had used its powers under Article 36, paragraph 3 of the Charter to recommend the parties to submit their dispute to the Court.1601 The UK had seised the Court by a unilateral application. The Albanian government, while protesting that this was irregular, sent a letter of 2 July 1947 to the Registry, signed by the Deputy Minister of Foreign Affairs, declaring that it was ready ‘to appear before the Court’.1602 Only later did Albania dispute the Court’s jurisdiction to decide the merits. The Court, however, considered itself to have been validly seised and to have jurisdiction. In its view, the respondent had, in response to a solicitation by the applicant, consented to the jurisdiction by its duly signed letter: In submitting the case by way 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 . . . Furthermore, there is nothing to prevent the acceptance of jurisdiction, as in the present case, from being effected by two separate and successive acts . . . 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 . . . The Court cannot therefore hold to be irregular a proceeding which is not precluded by any provision in these texts.1603

1597   PCIJ, Series A, no 15, 24. cf also the Right of asylum case (ICJ Reports 1950, 280) and Haya de la Torre (ICJ Reports 1951, 78). 1598   See Stillmunkes, above n 1594, 669 et seq., 670 et seq., 679 et seq.; Rosenne, ‘Forum Prorogatum in the ICJ’, above n 1593, 13. See also L Daniele, ‘L’apport de la deuxième ordonnance de la ICJ sur les mesures conservatoires dans l’affaire Bosnie-Herzégovina contre Yougoslavie (Serbie et Monténégro)’ (1994) 98 RGDIP 939 et seq.; S Oda, ‘The International Court of Justice Viewed from the Bench (1976–1993)’ CCHAIL, vol 244, 1993-VII, 46. 1599   See Dubisson, above n 1518, 199–200, 202. 1600   See in this regard Waldock, ‘Forum Porogatum’, above n 1594, 377–82, 386–91; Soubeyrol, ‘Forum prorogatum’, above n 1594, 1099–100; Stillmunkes, above n 1594, 681–82. 1601   As to these activities of the Council in the circumstances of the case, see Waldock, ‘Forum Prorogatum’, above n 1594, 378 et seq. 1602   ICJ Reports 1947/1948, 19. 1603   Ibid, 28.



CONSENSUAL JURISDICTION 549

In the concluding words cited, the Court’s liberal approach reached its apogee. The Statute was now considered to pose only negative limits to the validity of methods of seising the Court. In other words, it was enough that the method of seising the Court was not excluded by the Statute; provided that was the position, the Court would be validly seised. Conversely, the Statute itself was not the positive basis for seising the Court. It was not necessary to show that the Court was seised in conformity with a particular provision of the Statute. By avoiding all formalism, considered to be inappropriate in this context, the judges were giving effect to the maxim boni judicis est ampliare jurisdictionem. It also happens that a State may seise the Court without being able to show that it has any title of jurisdiction at all. Such an Application in effect solicits the respondent’s acceptance of the jurisdiction. The modern Article 38, paragraph 5 makes express provision for this, as follows: 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.1604

Since the end of the cold war,1605 Respondent States have, with ever-increasing frequency, accepted the ‘invitation’, especially if diplomatic soundings have already been taken and given the green light for the applicant to go ahead and seise the Court in this way. Two such cases have been brought against France at the ICJ: the case concerning Certain criminal proceedings in France (DRC v France);1606 and the case on Certain questions of mutual legal assistance in criminal matters (Djibouti v France, 2008).1607 In this way France has allowed a kind of lesser jurisdiction to function as against it, replacing the optional declaration it withdrew in the 1970s after the Nuclear Tests cases (1974). The advantage for France is that it is able to decide on a case-by-case basis whether or not it wants to submit to the jurisdiction. The lesson may not be lost on other States, so that it is difficult to know whether this practice will become more common. Instead of being tied down in advance by fixed and binding heads of jurisdiction, States may prefer to adopt this highly flexible stance, pursuant to which they can always bring suit against another State, although it is then for that other State to decide, on an ad hoc basis, whether or not to consent to the jurisdiction. The mechanism does have the potential to enlarge the Court’s overall jurisdiction. It has particular value for States – often powerful ones – which balk at submitting to a jurisdiction rigidly established in advance. This kind of forum prorogatum might thus become a ‘younger brother’ of the special agreement: the latter would provide a route to the Court where the parties were willing to give express assent prior to the Court’s being seised, the former by assent given subsequently. Unlike the Franco-Congolese proceedings, which were withdrawn, the case between France and Djibouti went all the way to judgment. There are various things we can learn from it as to the way the Court establishes the scope of its jurisdiction in cases of this kind. The Court’s reasoning in this latter case was as follows.

1604   As to this provision, see G Guyomar, Commentaire du Règlement de la Cour internationale de Justice, adopté le 17 avril 1978: Interprétation et pratique, 2nd edn (Paris, 1983) 244–46. 1605   During the cold war, attempts of this kind were unsuccessful: cf ibid, 245. 1606   ICJ Reports 2003, 143. 1607   See §§ 39 et seq. of the decision of 4 June 2008.

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The case was about the refusal of the French authorities to execute international letters rogatory concerning the transmission of a criminal dossier to the authorities in Djibouti. Djibouti said this was a violation of the 1986 Convention on legal assistance, and also of the 1977 Treaty of Friendship and Cooperation between Djibouti and France. It also claimed that France had issued witness summonses, against certain Djiboutian personalities, in contravention both of the conventions governing diplomatic relations and of the 1977 Friendship Treaty. The first question for the Court was to satisfy itself as to its jurisdiction. France accepted it under the mechanism of Article 38, paragraph 5, ‘strictly within the limits of the application as formulated’. France then invoked restrictions ratione materiae et temporis as to the Court’s jurisdiction to take cognisance of certain alleged violations. France argued that they went beyond the limits of Djibouti’s initial application, which defined the limits of France’s acceptance of the jurisdiction. The Court reaffirmed that the question of consent went to its jurisdiction and not to the admissibility of the Application (§ 48). Jurisdiction ratione materiae was a question that lay at the heart of the problem. Indeed, the French argument was that the subject of the dispute which it had agreed to defend before the Court covered only the letters rogatory of 2004, not the witness summonses or other subsequent acts. The Court took the view that the Statute and Rules did not require that the jurisdiction be accepted in a definite form (cf the Corfu Channel case, 1947); consent could also be inferred from certain acts conclusively establishing it (cf the Minority schools case, PCIJ, 1928). At all events, it has to be possible to see in the respondent’s attitude an unequivocal manifestation of its will to accept the Court’s jurisdiction (§ 62). Consent must either be explicit, or clearly demonstrated by relevant conduct of the State (cf the Anglo-Iranian Oil case, 1952). On these bases, Article 38, paragraph 5, accepts the principle of the forum prorogatum (§ 63). In the present case, therefore, the Court had to decide the scope of France’s consent. The subject of the dispute in relation to which France had consented to the jurisdiction was not determined solely by reference to the questions set out in that part of the application itself that bore the rubric indicating the subject of the dispute (cf the Right of passage case, 1960) (§ 70). In that part of the application, Djibouti had mentioned the failure to transmit the dossier under the letters rogatory; but no other question was mentioned (§ 71). However, under the rubric ‘Legal arguments’, Djibouti had mentioned the problem relating to the summonses in 2004 and 2005, which it considered unlawful, and had demanded an end to them (§ 72). That aspect, then, was formally included in the application (§ 75). Under the terms of its letter, France had accepted the jurisdiction as regarded the entire dispute; indeed, it referred generically to the subject of the application, without any particular words of limitation (§ 83). All these questions were therefore covered by France’s acceptance. There was still the problem of the restrictions ratione temporis as regarded the summonses of 2007 and the arrest warrants of the preceding year. Djibouti stressed that, in its application, it had reserved the right to modify and complete its claims. However, France’s consent – as set out in its letter – did not go beyond the ‘declared subject of the Application’ (‘objet de la requête dans les strictes limites des demandes formulées’ ) (§§ 87–88). The application contained no mention of these subsequent events (indeed it would have been impossible for it to do so), so that the Court had not been given jurisdiction over them (§ 88). That left, last of all, the problem of the summons addressed in 2007 to the President of Djibouti himself. It was simply a repetition of a summons dated 2005, which had been defective in form. Since France had imposed no temporal limit on its acceptance of the Court’s jurisdiction, and since it was in substance a matter of the same summons (except



CONSENSUAL JURISDICTION 551

that the formal defects had been eliminated), the Court had jurisdiction in that regard also (§§ 94–95). When a State submits to the jurisdiction in a manner which, although express, is also informal, as France did in this case, the question arises as to how the terms of its submission should be interpreted. On the one hand, the Court may be tempted to give it a reasonably liberal interpretation so as to cover all the issues in dispute and not leave any important questions unresolved, to trouble the subsequent relationship of the parties. In that case, the Court will apply the maxim boni judicis est ampliare jurisdictionem. On the other hand, the Court may feel a particular inclination to give a restrictive interpretation to the terms of forum prorogatum consent, given that the Respondent State is making a concession it does not have to make, and that the abandonment of rights and protections cannot be simply assumed.1608 There is also an issue of judicial policy, which might incline the Court in the same direction. If the Court does not wish to discourage States potentially tempted by the idea of accepting jurisdiction by way of forum prorogatum, it needs to be careful not to give too liberal an interpretation to the terms of acceptances, since otherwise such States may feel that they are at risk of being drawn in further than they might choose to agree to. So, in this context, the Court must be particularly careful about how it exercises its ‘jurisdiction over jurisdiction’ under Article 36, paragraph 6 of the Statute. In the Djibouti v France case, the Court tried to balance these two opposing tendencies. At paragraph 88 of its judgment, it refused to read the French acceptance as covering future acts that were not expressly mentioned. Conversely, however, at paragraphs 94 to 95, it refused to restrict its jurisdiction in relation to a summons which fell outside the temporal framework solely because a defect in form required the summons to be repeated. The Court has therefore balanced the treatment of these questions. Acceptance by taking appropriate procedural steps. Another form of forum prorogatum consists of seising the Court without there being any existing title of jurisdiction, or via an application in respect of which the title of jurisdiction invoked is actually too narrow in scope, where nevertheless the Respondent State, by taking certain procedural steps, accepts that the Court can decide the merits. For these purposes, the ‘procedural step’ par excellence is to plead a defence to the merits without raising Preliminary Objections to the Court’s jurisdiction. Another such ‘procedural step’ is the making of counterclaims. In such cases, the respondent is considered to have implicitly expressed its consent to the Court’s jurisdiction. An example of the first type of step is to be found in the case on Minority rights in Upper Silesia (Minority schools, 1928). Germany had made an application against Poland on the basis of Article 72, paragraph 3 of the Geneva Convention on Upper Silesia (1922). It subsequently transpired that the German government was also basing its application on other provisions of the Convention.1609 Poland had pleaded solely to the merits, even in its Counter-Memorial. Its objection to the jurisdiction came only in its rejoinder. The Court rejected the objection, on the grounds that Poland had shown, in its Counter-Memorial, that it wanted a decision on the full merits, without raising any objection to the jurisdiction. From that point on, it was too late for Poland to reverse course.1610 The Court said: 1608   See the Nuclear Tests case, ICJ Reports 1974, 267, § 44: ‘When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for.’ 1609   See the brief résumé of the case in AP Fachiri, The Permanent Court of International Justice – Its Constitution, Procedure and Work, 2nd edn (London, 1932) 276–80. 1610   PCIJ, Series A, no 15, 25.

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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 a suit;1611 ... The acceptance by a State of the Court’s jurisdiction . . . is not, under the Statute, subordinated to the observance if certain forms, such as, for example, the previous conclusion of a special agreement.1612

The Court had been able to decide accordingly to the extent that the other provisions relied upon by Germany did not significantly alter the Court’s task. Given the new direction that this represented as regards the jurisprudence, this view of things met, as might have been expected, with the lively dissent of certain judges, in the event from Judges Huber,1613 Nyholm1614 and Negulesco.1615 In Max Huber’s view, the Court’s jurisdiction could only be the result of an express and explicit agreement.1616 He did not think that the failure to dispute jurisdiction could give rise to jurisdiction in a positive way.1617 Nor, in his view, could the taking of procedural steps ever be a substitute for the formal establishment of jurisdiction prior to the start of proceedings. The other dissenting judges thought, in substance, much the same. However, this formalistic conception of things was rejected at the time the Rules of the Court were revised in 1934. The French Judge H Fromageot had proposed bringing in a provision obliging the Claimant State to specify, at the outset, the title(s) of jurisdiction it intended to rely upon. Judge Anzilotti responded by saying that it was undesirable to obstruct access to the Court by formal requirements of that kind.1618 In the end, a compromise formula was adopted, under which the Claimant State was required to specify the title of jurisdiction (that is, the provision by virtue of which it intended to establish the Court’s jurisdiction) only ‘as far as possible’.1619 This compromise was effectively a defeat for the minority judges of 1928 (since it opened the way for informal establishment of jurisdiction after the Court being seised), and one can only be glad of that. Another example of such a forum prorogatum is to be found in the Right of asylum case (1950). Seised of a counterclaim by Peru, the judges thought the Court had jurisdiction since ‘the Government of Colombia did not contest the jurisdiction of the Court in respect of the original counter-claim’.1620 Having given its decision, the Court was faced with an application from Colombia, asking it to say how the decision should be carried into effect. The situation was somewhat embarrassing, since officially this was neither a request for interpretation under Article 60 of the Statute nor a new application in due and proper

  Ibid, 24.   Ibid, 23. 1613   PCIJ, Series A, no 15, 52–55. 1614   Ibid, 56–59. 1615   Ibid, 67–73, evidencing strict consensualism. 1616   Ibid, 53. 1617   Ibid, 53. 1618   PCIJ, Series D, no 2, Add 3, 67–68. 1619   Guyomar, above n 1604, 234 et seq. 1620   ICJ Reports 1950, 280. 1611 1612



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form. The title of jurisdiction was therefore not very clear. In this case, the Haya de la Torre (1951), the Court resolved the difficulty by recourse to the forum prorogatum:1621 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.1622

A similar but more recent case was that of the Arrest warrant of 11 April 2000 (2002). As the basis for the Court’s jurisdiction, the DRC invoked the informal consent of Belgium, without giving details about it.1623 Since Belgium in fact defended the merits, the Court was able to decide the case. Sometimes States do indeed have an interest in having an international tribunal decide on their laws or other measures, perhaps because of the importance of the issue of principle to be decided, or out of attachment to the concept of international justice, or for more particular reasons. How then does one evaluate the procedural steps that might amount to tacit acceptance of the Court’s jurisdiction? The question is more subtle than might at first sight appear to be the case. In the Anglo-Iranian Oil case (Preliminary Objection, 1952), the UK had tried, with undoubted ingenuity, to construct a forum prorogatum on the basis of Iranian pleadings. Iran had raised, as Preliminary Objections, several arguments against admissibility, as well as some arguments to the effect that there was no jurisdiction. The UK contended that arguments going to admissibility presupposed that the Court’s jurisdiction itself was accepted, since the Court could not decide them until it had found itself to have jurisdiction. Therefore, the UK argued, the Iranian arguments must be interpreted as conferring jurisdiction on the Court on the basis of the forum prorogatum.1624 The Court rejected this argument. To do otherwise would have amounted to the rejection of the long-established practice of presenting the Court with contingent arguments, and would also have led to a considerable and highly unwelcome lengthening of the Court’s procedures. The Court said this: It is the true that [Iran] 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.1625

The Court had just reaffirmed that: 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.1626

The purpose and general direction of the acts in question are in this respect the decisive criterion. When they all point in a negative direction, when they seek, as defensive arguments, to dissuade the Court from taking cognisance of a case, a forum prorogatum cannot   Fitzmaurice, ‘The Law and Procedure of the ICJ’, above n 1594, 81–82.   ICJ Reports 1951, 78. 1623   ICJ Reports 2002, 6, § 1. 1624   ICJ Reports 1952, 101. cf the arguments of Sir Lionel Heald (UK), ICJ, Pleadings, oral arguments and documents (1952) 540 et seq. and of Sir Eric Becket (UK), ibid, 630 et seq. 1625   ICJ Reports 1952, 114. 1626  Ibid. 1621 1622

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be implied.1627 In other words, one must not rely on an isolated act, interpreted out of context. Rather the reverse: it is necessary to form an assessment of the objectives behind the respondent’s overall conduct, always considering the dominant element: is it defensive, or is it more active than that?1628 The problem arose again in the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Yugoslavia, Serbia and Montenegro, Provisional Measures, new applications, 1993). Perhaps acting without sufficient forethought, the Yugoslav Foreign Minister had sent a letter dated 1 April 1993 to the Registrar of the Court. In it, in classic counter-attacking spirit, he requested a series of Provisional Measures against Bosnia.1629 However, the only title of jurisdiction on which Bosnia had based itself in seising the Court was the Genocide Convention of 9 December 1948. A significant number of the Provisional Measures requested by Yugoslavia fell outside the scope of the Court’s jurisdiction under the Convention. There was therefore a question as to the jurisdictional basis on which the Court might examine the respondent’s counterclaims. Had Yugoslavia, by requesting measures that were clearly outside the context of the Convention itself, implicitly accepted that the Court should have a wider jurisdiction? The question was raised, and rightly raised, by the ad hoc Judge, E Lauterpacht.1630 The Court adopted the classic consensualist position1631 asking itself 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 the forum prorogatum’.1632 Applying the same criterion used in the Anglo-Iranian Oil case, the Court took the view that the respondent’s overall conduct showed it had been constantly disputing the Court’s jurisdiction.1633 The Court therefore concluded that ‘in the circumstances, the communication from Yugoslavia cannot, even prima facie, be interpreted as an “inequivocal indication” of a “voluntary and indisputable” acceptance of the Court’s jurisdiction’.1634 To sum up, it was incorrect to see the counterclaim as an isolated act. Rather, it was necessary to contextualise it within Yugosolavia’s overall strategy of disputing the Court’s jurisdiction. Yugoslavia’s global attitude was sufficient to cover and eliminate the effects of in isolated act to the contrary. As with the old law in relation to contraband, ‘Robe d’ami confisque robe d’ennemi ’.1635 In his individual opinion ad hoc Judge Sir Elihu Lauterpacht dissociated himself on this point from the majority decision.1636 He started by drawing a distinction between the present case and Anglo-Iranian Oil. In the latter case, the Iranian arguments had been defensive ones, whereas in the present case Yugoslavia’s arguments were on the offensive, designed to persuade the Court to adopt specific measures.1637 For that, what could be the jurisdictional basis? 1627   cf the Independent Opinion of Judge Sir E Lauterpacht, in the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Yugoslavia, Provisional Measures), ICJ Reports 1993, 419. 1628   See the Nottebohm case, ICJ Reports 1955, 17–20. 1629   The text of this letter features in ICJ Reports 1993, 9–10. 1630   Independent opinion of Judge Sir E Lauterpacht, ibid, 418. 1631   ICJ Reports 1993, 341–42, § 34. In the same sense see the Independent Opinion of Judge Shahabuddeen, ibid, 353–55. 1632   Ibid, 341, § 34. 1633   Ibid, 341. 1634   Ibid, 342. 1635   See, eg H Bonfils, Manuel de droit international public, 3rd edn (Paris, 1901) 797 et seq. 1636   See the various Individual and Dissenting Opinions on this point: ICJ Reports 1993, 353–55, 412–13, 416– 21, 446–47. 1637   Ibid, 419.



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In my view, the insistence by the Respondent that Article IX of the Genocide Convention is the sole source of the Court’s jurisdiction is not persuasive. Were this insistence valid, it would be impossible for the Respondent to justify its clear requests for measures which fall outside the coverage of the Convention. Yet these requests were neither brief nor accidental . . . The Respondent cannot blow hot and cold. It cannot ask the Court to go beyond the limits of the Genocide Convention and simultaneously request the Court to limit its jurisdiction to that Convention.1638

He therefore concluded that the Court had jurisdiction by virtue of the forum prorogatum in so far as Yugoslavia’s specific requests coincided with those of its adversary.1639 Unlike the majority judges, who had given preference to a subjective interpretation (the will of the State concerned), Judge Lauterpacht based himself on a principle of objective law, namely estoppel. His position found a ready echo among some leading commentators. L Daniele, in his article on the Court’s decision thought its attitude excessively restrictive.1640 He concluded, and one can imagine the thin smile accompanying such exquisite understatement, that: ‘It would seem that the application of the forum prorogatum principle was not entirely out of the question in this case.’1641 The Court again faced this kind of problem in the case on Armed activities in the territory of the Congo (DRC v Rwanda, new application, 2006). The DRC claimed that Rwanda had implicitly consented to the Court’s jurisdiction, given its deferential attitude to all procedural steps. In short, Rwanda was said to have consented to the Court’s jurisdiction by not refusing to appear, and by consenting to plead its case.1642 This claim was obviously extremely difficult and fragile. To deliver pleadings as to want of jurisdiction, rather than simply not appearing, can hardly be perceived as consent to jurisdiction on the merits. The Court therefore, had no difficulty in rejecting this argument. It said that the Respondent State’s attitude has to be capable of being seen as the unequivocal manifestation of its will: ‘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’ (§ 21). In the present case, however, Rwanda had consistently objected to the jurisdiction at every stage in the proceedings, and had done so in a manner which was not only repeated but explicit. It was therefore impossible to apply the forum prorogatum doctrine (§ 22). The Court referred particularly to the case on the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Yugoslavia, Serbia and Montenegro, Provisional Measures, 1993).1643 Once again, the Court’s interpretation remained essentially a voluntarist and consensualist one. In order to assess whether it would be right to see in the situation a forum prorogatum, the Court applied the test of the ‘overall’ or ‘global’ attitude of the State alleged to have acquiesced in its jurisdiction. In overall terms, did its attitude reveal hostility to the jurisdiction, or did it not? What was decisive was the preponderant line of its conduct. An isolated act, even if it clearly implies the existence of an additional head of jurisdiction, is not to be interpreted as conceding that head of jurisdiction if the overall attitude of the State concerned is to dispute the Court’s jurisdiction (see the Genocide case). This means that, so   Ibid, 420.   Ibid, 420–21. 1640   Daniele, above n 1598, 939 et seq., 942, 945. 1641   Ibid, 945, our translation. cf also the doubts of L Boisson de Chazournes, ‘Les ordonnances en indication de mesures conservatoires dans l’affaire relative à l’Application de la Convention pour le prévention et la répression de la crime de génocide’ (1993) 39 AFDI 524–25. 1642   ICJ Reports 2006, 18, § 19. 1643   ICJ Reports 1993, 341–42, § 34. 1638 1639

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far as the forum prorogatum is concerned, the principle boni judicis est ampliare jurisdictionem is not fully applicable. Although an echo of the latter principle can be found in the idea of allowing the Court to be seised informally, the principle itself is nevertheless subject to two limitations: the first limitation is the narrow interpretation given by the Court to unilateral acceptances of its jurisdiction (Djibouti v France); and the second is the ‘preponderance’ test mentioned above. The Court is dealing here with a method of seisin that is not only an exceptional one, but also poses potential dangers for the principle of consent (especially where the Court would have to adopt a sweeping and robust interpretation). Up to now, the Court has responded to such questions in a meticulous and careful way, both when considering whether the conditions for a forum prorogatum are satisfied, and when deciding the exact limits of the jurisdiction that has actually been accepted in any particular case. Forum ‘quasi-prorogatum’. A careful distinction must be drawn between the two foregoing situations and what might be called the ‘forum quasi-prorogatum’. In this case, perfected titles of jurisdiction are already in formal existence. For example, the disputing States may both have made optional declarations under Article 36, paragraph 2 of the Statute. But perhaps one or other of the declarations is qualified by certain reservations. The Respondent State is entitled to invoke these reservations for its own benefit. Of its own free will, however, it may decide not to do so, and to allow the case to proceed to the merits phase. If a Preliminary Objection were to be raised, the result might be that the Court would not have jurisdiction. The respondent’s decision not to raise a Preliminary Objection thus enables the Court to proceed to hear the merits. In this way the situation is somewhat similar to the forum prorogatum, but it is also different in one major respect. In this case titles of jurisdiction do exist, and, in formal terms, they are perfected. States found the Court’s jurisdiction upon them. To decide whether in ‘material’ (subject-matter) terms claims are covered by the title of jurisdiction is a question of interpretation. But from the moment that a formally applicable title of jurisdiction exists, the Court’s jurisdiction is based upon it, that is, on an ordinary basis: in the example just given, it would be on the optional declarations. It is not based on the forum prorogatum mechanism, which we must remember is only a subsidiary mode of founding jurisdiction. This situation must be distinguished from the type of forum prorogatum that operates by enlarging the scope of a pre-existing jurisdiction which was too narrow. Obviously, if a State invokes Article IX of the 1948 Genocide Convention as the basis of the Court’s jurisdiction, it will not be able to follow up by alleging violations of international law that are in the different category of crimes against humanity, because the title of jurisdiction will not cover such allegations. If the State wishes to stay within the limits of the jurisdiction provided by Article IX, it will be obliged to argue that the acts it complains of constitute acts of genocide. On the other hand, if the respondent has no objection to giving the Court a wider jurisdiction, for example so that it can respond on the merits to the allegations of crimes against humanity, then absent an objection to jurisdiction, the scope of the Court’s jurisdiction is enlarged to include such crimes even though they fall outside the definition of genocide. There was no pre-existing title of jurisdiction to cover them, and the enlargement of jurisdiction to do so thus results from the respondent’s subsequent attitude. This is a case of forum prorogatum. If, on the other hand, there is an existing title of jurisdiction (for example, in a jurisdiction clause, or in optional declarations), if the Court is seised on that basis, and if the



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claims made in the course of the case remain within the limits of the jurisdiction thereby created, the forum prorogatum mechanism does not come into play, even if the Court’s jurisdiction depends on the attitude of the respondent, for example, as to whether it will invoke a relevant reservation. In the case of the genocide jurisdiction discussed above, the case fell outside the title of jurisdiction that is invoked (praeter titulus); in the situation we are now considering it falls within the title of jurisdiction invoked (intra or infra titulus). In the situation in which reservations are not cited by way of objection, it is possible to speak of a ‘forum quasi prorogatum’ to indicate that it is the attitude of the Respondent State which clears the way for the Court to have jurisdiction over the merits. But where a jurisdiction is established that goes beyond the title invoked, one must speak of forum prorogatum in the full sense. An example of a forum quasi prorogatum is to be found in the case of the Dispute as to navigational and related rights (Costa Rica v Nicaragua, 2009).1644 Nicaragua’s optional declaration was subject to a reservation which was applicable to the dispute as formulated (concerning the interpretation of a treaty dating from prior to 31 December 1901). There were other existing titles within Article 36, paragraph 1 of the Statute that might have given the Court jurisdiction. Doubtless that was one reason why Nicaragua did not raise any Preliminary Objection to jurisdiction. The Court therefore had no need to dwell on the scope of the title of jurisdiction, and was able simply to treat its jurisdiction as having been established right away. In this case, therefore, the jurisdiction rested on the conjunction between the parties’ behaviour during the case and their respective optional declarations. The case also shows clearly that the Court does not raise motu proprio the question of the existence of consent to its jurisdiction, and that it is for a State that does object to raise such a Preliminary Objection under Rule 79.1645 Legal basis of the forum prorogatum. What is the legal basis of the forum prorogatum? In principle, it is a means or modality by which consent is expressed. Here the consent is informal, or inferred from conduct in the form of acts such as pleadings. However, the interpretation by lawyers of documents and behaviour all too easily gets turned into a very elaborate exercise in legal goldsmithry, by which the analysis of the objective meaning of a State’s behaviour sometimes determines the nature of an act that is then imputed to that State. In this way, the forum prorogatum can be extended to consents which the Court considers it right to impute to respondents because of inaction on their part which can and ought to be interpreted in good faith by a third party as acquiescence (or as giving rise to an estoppel).1646 Interpretations of the forum prorogatum can thus vary from the highly voluntarist (consent 1644   At §§ 27–28. § 27: ‘On 24 October 2001, Nicaragua made a reservation to its declaration accepting the jurisdiction of the Court (see paragraph 1 above) according to which it would no longer accept the jurisdiction of the Court in regard to “any matter or claim based on interpretations of treaties or arbitral awards that were signed and ratified or made, respectively, prior to 31 December 1901” . . .’. § 28 ‘Once the agreed three year period had elapsed without the Parties having been able to settle their differences, Costa Rica, on 29 September 2005, instituted proceedings before the Court against Nicarague with regard to its disputed navigational and related rights on the San Juan River (see paragraph 1 above). Nicaragua has not raised any objections to the jurisdiction of the Court to entertain the case.’ 1645   When it is a matter of a body or organ with an exceptional competence or jurisdiction as defined in its constitutive document, it may be necessary to examine that competence/jurisdiction ex officio. It was in that sense that the second Chamber of the Commission on assets, rights and interests in Germany came to its decision in the Purfürst case (1958): 25 ILR, 530 et seq. However, given that judicial competence is always of exceptional nature in international law, this reasoning cannot be taken too far. It is justified only to the extent that it serves to preserve or guarantee the proper administration of justice (judicial integrity). 1646   See R Kolb, La bonne foi en droit international public (Paris, 2000) 628 et seq.

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informal but nevertheless clear) to the highly objectivist (consent imputed as a result of the objective assessment of the State’s conduct and its effects on the other parties to the case, by virtue of the principle of legitimate confidence and expectation). The Court’s general propensity is to stick to the safe terrain of the voluntarist approach.1647 The watchword here is prudence. Some judges, however, have dissociated themselves from this way of seeing things. Amongst them was Judge Koroma, who spoke highly of the estoppel and good faith aspects of the concept. In his view, the forum prorogatum, in gauging the jurisdiction that is consented to, does so in terms of conduct not evincing opposition, in terms of a duty not to blow first hot then cold. In other words, jurisdiction can arise by forum prorogatum in consequence of the objective representation made by, or resulting from, an attitude, regardless of the Respondent State’s real wishes. To some extent this was also the view of Judge E Lauterpacht in the Genocide case (1993) cited above.1648 However, it often happens that the attitudes and positions adopted are deliberately ambiguous. The old edition of Nguyen Quoc Dinh’s manual was a fine example of this ambivalent stance between the subjective and the objective: ‘Such attitudes are considered by the Court to be the manifestations of the fact that its jurisdiction is being tacitly accepted, so that the Respondent cannot go back on it because of the principle of good faith or estoppel.’1649 But if the forum prorogatum rests on real (albeit informal) consent, there is no need to invoke the estoppel principle. Consent, whether tacit or express, is a perfected legal act, and the Statute immediately attaches to it a legal effect, namely the establishment, according to rule, of the Court’s jurisdiction. The legal link being thus perfected, estoppel is no more necessary than in the matter of treaties. No-one would think to argue that a party must discharge its agreed obligations under a concluded treaty because it is estopped from unilaterally withdrawing from the treaty. One simply says that there is an obligation to discharge one’s undertakings, under the principle pacta sunt servanda. There are finally also some leading commentators who give clear preference, for the construction of forum prorogatum, to the estoppel principle,1650 thereby giving greater rein to the principle of protecting legitimate confidence and expectation.1651 It was that same sense of good faith and legitimate confidence that was expressed by Honduras in its Reply in the case concerning the Arbitral award given by the King of Spain on 23 December 1906 (1960).1652 In the course of the case, P de Visscher, agent for Honduras, particularly insisted on this aspect.1653 1647   This is also the position of the overwhelming majority of leading commentators: See, eg Dubisson, above n 1518, 198 et seq.; Fitzmaurice, ‘The Law and Procedure of the ICJ’, above n 1594, 80 et seq.; Stillmunkes, above n 1594, 668, 671 et seq.; Soubeyrol, ‘Forum prorogatum’, above n 1594, 1098–99; Waldock, Forum Prorogatum’, above n 1594, 383 et seq.; JES Fawcandt, ‘General Course on Public International Law’ CCHAIL, vol 132, 1971-I, 525; G Salvioli, ‘Problèmes de procédure dans la jurisprudence internationale’ CCHAIL, vol 91, 1957-I, 588; Lauterpacht, The Development of International Law, above n 1594, 103 et seq. Dissenting Opinion of Judge H Lauterpacht in the Interhandel case, ICJ Reports 1959, 114; Dissenting Opinion of Judge Shahabuddeen, in the case on the Application of the Convention for the prevention and punishment of the crime of Genocide (Provisional Measures), ICJ Reports 1993, 353–55. 1648   Individual Opinion of Judge E Lauterpacht, ICJ Reports 1993, 418–21. 1649   Our translation. See also Nguyen Quoc Dinh, P Dailler and Pellet, Droit international public, 5th edn (Paris, 1994) 846. In the eighth edition of P Dailler, M Forteau and A Pellet, Droit international public (Paris, 2009) 994, this formula was modified and realigned with the voluntarist version. 1650   JL Simpson and H Fox, International Arbitration, Law and Practice (London, 1959) 65–66; M Mabrouk, Les exceptions de procédure devant les juridictions internationales (Paris, 1966) 110. 1651   JP Müller, Vertrauensschutz im Völkerrecht (Cologne/Berlin, 1971) 110–12. 1652  ICJ, Pleadings, oral arguments and documents (1960) vol I, 507. 1653  ICJ, Pleadings, oral arguments and documents (1960) vol II, 42 et seq. on the subject of the absence of any challenge by Nicaragua to the arbitrator’s jurisdiction. The Court decided this case on the basis of acquiescence and estoppel.



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It is not really helpful to take up a definitive position on this question to the exclusion of one or other of the elements we have been considering. Both have their place and value for what they include, and both are insufficient in what they tend to exclude. More often than not, the forum prorogatum will be the fruit of an informal expression of subjective will. To the extent that such a will can be demonstrated, it will take priority, because a legal act is a more solid foundation than estoppel can provide. By contrast, in cases where it is a matter of interpreting conduct as the measure of the legitimate expectations that have been created, the forum prorogatum will give concrete expression to the principle of good faith and protect the legitimate expectations that have been aroused. But it is nevertheless highly probable that the judges will not dare actually to say so those terms, preferring to anchor their interpretation to the more formal argument that the State in question has, by its acts, consented to the jurisdiction, or, in a more subtle formulation, that, given the conduct of the parties, the conclusion that the State did not intend to submit to the jurisdiction is an impossible one. This course has the advantage of enabling the Court to give reassurance to States, by avoiding any suggestion that there has somehow been a wide-ranging judicial revolution. Nevertheless, the Court will have formally rejected the idea of allowing the State in question to avoid the jurisdiction after clearly and freely representing that it would submit to it, in a manner upon which its opponent was obliged and entitled to rely. To sum up, then, the forum prorogatum can as well be based on an informal agreement (the Corfu Channel case being a good example) as on the idea of an estoppel arising from a legitimate expectation created by the estopped State. If that State adopts a clear and unequivocal line of conduct that is one on the basis of which the legitimate conclusion must be that it has accepted the jurisdiction, it will not thereafter be allowed to adduce evidence to the effect that its true wish was otherwise. It will be estopped from doing so:1654 there is a forum forclusionis. For the foregoing reasons, it is very probable that the estoppel concept will be translated, in the course of interpretation by the Court, into the small change of ‘will’, in order to safeguard the reassuring dogma that the Court’s jurisdiction is exclusively consensual. Ultimately, this matters little: suaviter in modo, fortiter in re . . .

j)  The overall position The overall conclusions that can be drawn from this long chapter as to the ICJ’s jurisdiction can be presented in four points. First, the issue of jurisdiction is both more important and more complex in international tribunals than in municipal ones. International jurisdiction is exceptional, occasional, and beset by the difficulties aroused by States’ jealous (and zealous) protection of their sovereignty. The issue necessitates meticulous examination, which can easily lead into a thousand and one tortuous bye-ways. By contrast, national jurisdiction is ordinary, regular and guaranteed by the institutions of State. It can swiftly adopt an authoritarian posture, cutting short excessive delays and meanderings. In international law the complexity of the question is accentuated by States’ frequent wish not to accept the Court’s jurisdiction clearly and frankly, but instead to hedge about their acceptance with a range of reservations, conditions and exceptions. These considerably complicate the job of determining 1654  Müller, Vertrauensschutz im Volkerrecht, above n 1606, 111; S Rosenne, The Law and Practice of the International Court, 2nd edn (Dordrecht/Boston/Lancaster, 1985) 322 (allegans contraria non audiendus est).

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the existence and exact scope of such jurisdiction as may have been accepted. The difficulties reach their high-water mark when it comes to issues of consensual jurisdiction. A problem of that kind would not trouble a municipal judge, however, because his jurisdiction is binding under national law. Second, the jurisdiction of the ICJ – as indeed of any international tribunal – is distinguished by its voluntary or consensual nature. There is no compulsory jurisdiction in the narrow sense of the term; only an optional jurisdiction in the widest sense, there being a rich palette of different possibilities as to the concrete form it takes in any particular case. The requirement of consent flows directly from State sovereignty, the founding principle of international law and the international community. Sovereignty means that, in the last resort, the power of decision rests with the State. It would be rendered nugatory if an international tribunal could be automatically seised of any dispute, with the power to give a legally binding decision. The voluntary nature of the Court’s jurisdiction is not only an obstacle and a limit; it is also an asset and an opportunity. Even if it were somehow possible to impose a binding jurisdiction on States that did not want it, there would be little point in doing so. The resulting judgments would generally not be executed, which would gravely tarnish the tribunal’s prestige and reputation. Essentially, any court of justice – and especially in international relations – lives or dies by the authority, prestige and respect it is able to inspire. The principle of consensual jurisdiction tends, to a significant degree, to assist in maintaining workable relationships between the Court and the States of the international community, and so to ensure the execution of the Court’s decisions. It is possible to imagine obtaining that ‘guarantee’ of execution being provided by the very different mechanism of constant recourse to far-reaching international sanctions or even armed force. In this respect, however, the international community is fundamentally different from national societies. Normally, the execution of internal judgments by force is a simple police matter. By contrast, the forced execution of tribunal judgments by the international community depends on collective responsibility, and ultimately on recourse to war. The will to submit to the Court’s jurisdiction also implies the will to execute the resulting judgment, and in the international community that is of fundamental importance. It is a matter of record that the Court’s judgments have been very well executed. Only a handful, as a result of the respondent’s bad faith, have remained unexecuted. From another perspective, however, one has to note that the principle of consent obviously prevents the Court from acting as the guarantor of the rule of law in international affairs. This fact faithfully reflects the preponderant place of politics over law. Third, the principle of consent serves as a spur to the separation of those disputes that the Court is well placed to help with, from those where it is not. The old distinction between ‘political disputes’, not susceptible to judicial treatment, and ‘legal disputes’, which are, is out of date if taken in its old sense of a clean distinction arising from the very nature of the dispute. Every dispute is capable of being handled by a tribunal, because the law can be applied to whatever circumstances arise. Nevertheless, there is still a question as to what extent it is desirable to send a particular dispute for judicial resolution. In every society there are situations requiring political action: changes to the law, the assessment of what policy is appropriate, the balancing of opposing interests, and so on. These matters must be left largely to political bodies, because the latter alone are so positioned as to be able to deal with them in an adequate way. The problem that obviously remains, however, is that there are too few international political bodies, and that therefore these questions requiring political action too often remain in the hands of 194 governments, each one pursuing its



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own interests. The lack of a world government accentuates the tendencies of this or that State to want to have such questions decided by international tribunals, which provide one of the few international decision-making mechanisms. But, in such cases, there is a danger of asking the tribunal to play a part that is ultimately beyond its capacities. The more it is possible to confer such a juridico-political function on a carefully chosen arbitral body, requesting it to arbitrate on a ‘diplomatic’ rather than a simply legal basis, the more harm would be done to the judicial integrity of a permanent court of justice. At such a court, the combined rules on consensual and subject-matter jurisdiction, and on general admissibility, operate like a filter protecting the Court against ‘over-problematical’ cases. The consensuality of its jurisdiction plays a part, given that States frequently hesitate to submit such cases to the Court. They try to protect themselves against unilateral applications of this kind, sometimes by pursuing a general policy highly sensitive to the titles of jurisdiction they are willing to submit to, sometimes by other means, particularly the use of reservations. Fourth, it is plain for all to see how much time, space and energy the Court devotes to jurisdictional questions, giving them the highest consideration and treating them, as they deserve, with the utmost gravity. In this field, the Court has developed a subtle and complex body of jurisprudence, resting on the most careful efforts to balance the important interests that are affected. This body of jurisprudence, which surely counts among mankind’s most ingenious and subtle intellectual constructs, lays bare not only the law on jurisdiction as applied by the Court, but also its judicial policy in this field. What then are the ‘important interests’ that are affected? On the one hand, the Court must take account of States’ wills and of the principle of consent. In doing so, it must bridle its natural propensity to accept a broader jurisdiction, going beyond those aspects that are solidly anchored in the wills of States. In this respect the role of the consent principle is clearly a restrictive one. Here the Court faces a problem unknown to municipal tribunals. If the Court were to develop an over-robust body of jurisprudence that was unacceptable to most States, a probable consequence would be that they would either withdraw from the titles of jurisdiction they had previously accepted, or else reduce their scope. The desire to broaden the Court’s jurisprudence would thus backfire, narrowing it to at least some extent. By wishing to advance, the Court might in fact propel itself into retreat. On the other hand, the Court exists in order to make the maximum possible contribution to the international community’s collective interest in the peaceful resolution of international disputes. This is one of the great principles proclaimed in the UN Charter. Peaceful dispute resolution is essential to the vitality of international cooperation, to the maintenance of the mutual trust indispensable for that cooperation, and to eliminate early signs of tensions that might otherwise grow to the point where they seriously disrupt the life of the international community. The urgent need for such activity is obvious in an international community that faces such a constant round of new disturbances to its peaceful and harmonious development. Also, given the already very limited field in which judicial dispute resolution is possible, it is important for the Court to take this function seriously and make the greatest contribution open to it. Its doing so has the further advantage of reinforcing the pre-eminence of law in international relations, a pre-eminence which today remains far from being securely established. The mission of peaceful dispute resolution, inherent in the Court’s constitution, inevitably means that there is a certain degree of pressure in favour of interpreting jurisdiction in an expansionary spirit.

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There is no doubting the fact that the law on jurisdiction has resulted from the development and exercise of a judicial policy which sets out to create a careful balance between these two aspects, consensualism on the one hand, and the collective interest in dispute resolution on the other. This is judicial policy in the true sense if the term, the fruit of knowledge of what is involved, studious attention, and a meticulous weighing of the underlying issues. The balance is always a delicate one, never quite achieved, constantly renewed and reviewed, as the Court steers its course between the Scylla of excessive deference to States’ wishes and the Charybdis of an over-robust orientation towards the ideal of an international community in which the rule of law predominates. Overall, one has to applaud the long jurisprudential thread that has been spun since 1921, throughout which period the Court has been remarkably careful and effective in maintaining the requisite balance.1655 Its strenuous efforts are visible throughout the case law, even if sometimes half hidden in the folds of its judgments. The quality and drive of its thinking in this field certainly command one’s admiration.

8.  FREEDOM TO USE SOME OTHER MODE OF DISPUTE RESOLUTION EVEN WHERE THERE IS ‘COMPULSORY JURISDICTION’

If two States have agreed in advance to submit to the Court a dispute that might arise between them, thus giving rise to a compulsory jurisdiction, can they subsequently agree to use some other mode of dispute resolution (for example, arbitration) instead? Where the jurisdiction is optional, this question does not arise,1656 because the parties have not made a predetermined choice. When the dispute arises, they remain free to choose the forum they consider most suitable. Unfettered by any prior undertaking in this regard, they remain entirely free to make the choice of whatever mode of dispute resolution they think, when the moment comes, most appropriate. But is the position the same where there is a compulsory jurisdiction? In the early years of the PCIJ, there might have been room for doubt. According to one view,1657 the parties were indeed free to take the case to a different tribunal if they were subject to the PCIJ jurisdiction by virtue of a special agreement applicable to them and to them alone. They were free to ‘unmake’ the agreement they had made. The position might be the same if the PCIJ jurisdiction arose from optional declarations, since a State is under no obligation to invoke or rely upon such a declaration. However, it was nevertheless argued that, in the case of a collective obligation under a multilateral convention to have recourse to the Court, disputing parties that were also parties to the convention had no discretionary right to depart from the convention’s provisions on jurisdiction. On this view, the collective convention contained an objective rule overriding any ‘private’ bilat1655   The Court has sometimes strayed from the path, notably in the Bosnian/Yugoslav Genocide cases (1993– 2007), through lacking the courage necessary to enable it to decide the questions concerned on a principled basis, rather than trying, by various tergiversations, to avoid the most politically sensitive aspects of cases. 1656   The concepts of optional and compulsory jurisdiction are connected with States’ sovereign right to submit, or to refuse to submit, to the Court’s jurisdiction. Where the jurisdiction is optional, the State retains the right of decision until the last moment, by which time it is fully aware of the precise nature of the dispute concerned and can then take a view as to whether to submit to the jurisdiction. Where the jurisdiction is compulsory, the State ties its hands in advance, before the dispute even arises, ie at a much earlier stage. 1657   Politis, above n 1519, 244–45.



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eral agreement between particular parties. As the main argument in support of this view, its proponents reached for a substantive point: If, in this hypothesis, the parties were free to take their dispute to a jurisdiction other than the Permanent Court of International Justice, these treaties would fail in their objectives. In the cases contemplated by the treaties (such as the interpretation of the treaties, regimes for international rivers, the protection of ethnic minorities, and the international organisation of labour) the necessary uniformity of the law would be lacking because there would be no uniting corpus of jurisprudence.1658

At the same time, however, it was accepted that the rigorous implications of this view were mainly theoretical ones, since no international body had the power to stop parties agreeing to take their disputes to tribunals other than the PCIJ. According to another school of thought, the parties were in all cases entirely free to submit their dispute for resolution either by the PCIJ or by any other mechanism.1659 Indeed, they could always reach agreement on the substantive issues by negotiation, and thus avoid any external mechanism at all. If that were the position, that is, if the parties could at any time freely make arrangements between themselves, and if the PCIJ remained, to use its own expression, only an ‘alternative’ mechanism for situations in which they failed to reach an amicable agreement by direct negotiation, what was to prevent their agreeing to take the dispute before somebody other than the one provided for in a previous agreement? If you can do more (settle the dispute by negotiation), you can do less (submit the dispute to a different tribunal). Subsequently this ceased to be a topical question. Nowadays it is accepted that titles of jurisdiction do no more than give parties the right to seise the Court; they do not give them an obligation to do so. This applies not only to optional titles of jurisdiction but to compulsory ones, including compromissory clauses. The Court has thus been reduced to one of a number of mechanisms for resolving disputes, and is not, even in particular contexts, a mechanism that replaces the others. The general rule that States have ‘free choice as to the means’ of dispute resolution, rooted, as it is, in the principle of State sovereignty, is ever more firmly embedded in the law of the United Nations. The Court recognised this from an early stage. It thought, and said, that the resolution of a dispute through a judgment it handed down was only an ‘alternative to the direct and friendly settlement of such disputes between the Parties’.1660 In legal terms, direct and friendly settlement covered not only the resolution of the substantive issues, but also agreements as to other mechanisms for peaceful resolution. In this particular sense, where there is a possibility of concerted action by the parties, the Court’s jurisdiction is not compulsory in the strict sense, but optional. As already noted, the jurisdiction is more akin to a ‘civil’ than to a ‘criminal’ one, in that it is concerned with ‘private’ interests, not ‘public’ ones. In consequence, the adage ‘no plaintiff, no judge’ – wo kein Kläger, da kein Richter – is fully applicable here. If one of the parties, acting alone, can renounce the right to bring a case before the Court, a fortiori two parties can. Quite apart from attempts at amicable settlement by bilateral negotiation, it occasionally does happen that States bound by a compromissory clause giving the   Ibid, 245 (our translation).   IDI (IIL) Yearbook, vol 28 (1921) 179, 201–202. 1660   Free Zones case (Order, 1929), PCIJ, Series A, no 22, 13. See also the Boundary dispute (Burkina Faso v Mali), ICJ Reports 1986, 577; and the case on Passage through the Great Belt (Finland v Denmark, Provisional Measures), ICJ Reports 1991, 20. 1658 1659

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Court jurisdiction come to a subsequent agreement to submit their dispute to some other international body. However, since a compromissory clause opens up unilateral access to the Court, each party can take advantage of it at any time. More often than not, one side (at least) has no interest in avoiding the Court’s jurisdiction. The Lockerbie case (1992), between Libya and the UK/USA, shows this clearly. The fact that another organ is seised does not therefore also preclude a seisin of the ICJ under a head of compulsory jurisdiction. One then ends up with concurring jurisdictions of two or more different organs. The rule of free choice as to the mechanism can be rendered inapplicable in any particular case only if it is possible to show that the parties to a multilateral agreement had positively intended to eliminate any right to seise any tribunal or body in place of the Court itself. This might, for example, have been intended and agreed in order to ensure the development of a uniform body of jurisprudence on a particular matter. At the present time there is a presumption in favour of the parties’ having the freedom, if they agree on some other tribunal, to choose whichever tribunal they consider most appropriate. That presumption, rooted (as it is) in State practice, can be rebutted by showing the existence of a contrary wish on the part of the contracting States. However, if their will in that regard is not clearly set out in the text, it will be difficult to establish its existence. In the process of interpretation, it can be useful to take account of the economy and system of the dispute resolution provisions in the treaty containing the compromissory clause, and also of the travaux préparatoires. The hypothesis is that in these situations the Court will not already have been initially seised of the case, so that it will be for other judges or arbitrators, seised in lieu, to consider the provisions of the treaty containing the clause, as a matter of international law applicable between the parties, and if necessary to decide that they themselves have no jurisdiction or that the claim is inadmissible. For that to happen, the other judges or arbitrators who will probably have been seised by special agreement, need to have been made aware of the compromissory clause. This cannot be taken for granted. Such awareness is much more likely where materials are submitted in a context in which the Court’s jurisdiction is fairly generally accepted. It is not obvious, however, that it will be easy for the other judges or arbitrators to divest themselves of jurisdiction on the basis that the parties previously willed the exclusive jurisdiction of the ICJ. They are unlikely to recognise very readily that the parties’ previous wishes were designed in such an exclusive spirit. However, there is no need to pursue the point further, since in practice the question has never actually arisen.



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9.  LIMITATION OF THE COURT’S JURISDICTION IF THE SUBJECT OF THE DISPUTE AFFECTS THE RIGHTS AND OBLIGATIONS OF THIRD STATES WHICH HAVE NOT CONSENTED TO IT1661

a)  General Aspects In any dispute coming to a court, the subject matter can have various effects on the rights and interests of third parties which are not parties to the proceedings. In an ever more interdependent world, effects of this kind can only grow in number. Sometimes the Court needs knowledge about the rights of the third party before it can decide between the parties actually before it, for example, where their rights depend on whether or not an internationally unlawful act has been committed by the third party. On other occasions, the Court’s decision will have an indirect effect on third parties, for example, because it accepts that certain States have incurred international responsibility, some of them (being parties to the proceedings) having acted conjointly with others which are not parties to the proceedings. Such indirect effects also arise when a boundary line is drawn between two States as far as the point where areas claimed by a third States or even their territorial rights, are in issue. Like international law, municipal law also faces such situations. However, in such cases, the question is usually easier to resolve than it is in international law. Municipal law has mechanisms whereby, if it is really necessary, third parties can be obliged to defend their positions. If they refuse, they do so at their own risk. In international law, the position is different. States are sovereign, and do not wish to see their positions prejudiced by what they regard as res inter alios acta. There is also the fact that the Court’s jurisdiction is purely consensual. A third State, free and sovereign, cannot consider its legal position to be affected by a judgment of the Court, and it is under no obligation to participate in the proceedings. For many years, whenever the Court has been faced with such a situation, it has been obliged to engage in a debate designed to find the right (always delicate) balance between giving full effect to the jurisdiction conferred upon it by the parties, and taking care not to encroach on the legal positions of third States. At the PCIJ, the problem never received much attention and the leading commentators of the day did not address their minds to it.1662 The ICJ finally came to grips with the problem in the 1950s. It goes without saying that a decision of the Court is likely to have factual effects on third States. The Court’s jurisprudence, which it considers to state the general international law applicable to the circumstances of particular cases and the rights and obligations which it recognises with regard to particular parties, can have very varied knock-on effects on States that are not parties to the proceedings. Such States do have the right, in some situations, to intervene in the proceedings in order to assert their rights and interests (see Articles 62 and 1661   See in this regard, C Tomuschat, ‘Article 36’, in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 603–606; H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’ in BYIL, vol 69 (1998) 34 et seq; S Rosenne, The Law and Practice of the International Court, 1920–2005, vol II, 3rd edn (Leiden, 1997), 552 et seq; C Rousseau, ‘Le règlement arbitral et judiciaire et les Etats tiers’ in Essays H Rolin (Paris, 1964) 300 et seq.; C Chinkin, Third Parties in International Law (Oxford, 1993) 147 et seq.; A Zimmermann, ‘Die Zuständigkeit des Internationalen Gerichtshofes zur Entscheidung über Ansprüche gegen am Verfahren nicht bandeiligte Staaten’ (1995) 55 ZaöRV 1051 et seq. 1662   Significantly, the leading manual on the PCIJ says nothing whatever about it: cf MO Hudson, The Permanent Court of International Justice, 1920–1924. A Treatise (New York, 1943) 410 et seq.

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63 of the Statute). Such factual effects (intimately linked, naturally, to the law) are inevitable and uncontroversial. Third States have no subjective right not to be affected in this way. They must put up with the factual effects, which are inextricably bound up with the very fact of the Court’s existence and activities. If the factual effects were somehow outlawed, this would amount to prohibiting the Court from doing its job. Nevertheless, the thorny question remains as to the limits of the legal effects on third States, which are within their rights to refuse and reject such effects. A State’s legal position cannot be placed in issue by the fact that other States seise the Court of a dispute relating to their own affairs. In this respect, the Court’s jurisprudence is instructive. The Court has endeavoured, by developing this jurisprudence, to fill in the lacunae in the fairly summary provisions of the Statute and Rules, provisions that, although referable to these issues, do not attempt to address the tortuous complexities unfailingly thrown up by international relations. However, before analysing the jurisprudence, we must first consider what exactly the Statute and the Rules have to say on the subject. Article 59 of the Statute provides as follows: ‘The decision of the Court has no binding force except between the parties and in respect of that particular case.’ This provision, to which we will return for more detailed analysis, makes it clear that the Court’s judgments are binding and executory only on the parties to the case. The negative implication is that they are not binding on third States, and do not constitute res judicata so far as third States are concerned. Article 59 of the Statute thus covers only a small corner of the relationship between the Court’s pronouncements and third States that are not parties to cases. It confines itself to guaranteeing that the judgment will not be binding on and executory for third States. If the cooperation of a third State were necessary for the proper execution of the judgment, it could not be insisted upon. In fact, of course, this aspect of the provision goes without saying: the judgment applies only as between the parties to the case, since only they have consented to submit to the Court’s jurisdiction. The judgment can therefore be addressed only to parties whose consent to the jurisdiction within the context of a specific concrete case is the basis of the Court’s jurisdiction and the basis upon which it can issue its orders. The relationship between the Court and certain subjects of law is, for third parties, simply a res inter alios acta. From another perspective, Article 59 says nothing about the other potential effects of the Court’s judgment on third States. Nor, for that matter, does it mention the potential effects on the case of third States’ legal positions. The Statute thus left it to the Court to develop its jurisprudence on these questions. Little by little, the Court has created a body of jurisprudence that goes beyond the necessarily quite particular circumstances of specific cases. It sets out the conditions for the appropriate exercise of the Court’s jurisdiction at the boundary between the Court’s jurisdiction and the sphere in which State action is free and unfettered. It can be said that the question of third States and the Court’s jurisdiction arises in two main contexts. First, there are the cases in which the Court cannot exercise the jurisdiction conferred on it by the parties because their claims so intimately affect the rights of third States that it is impossible to resolve the issues while at the same time respecting the principle that the jurisdiction is purely consensual (unless, that is, the third State were to authorise the Court to take cognisance of its rights and obligations as affected by the principal questions in dispute). Here we can see the freedom of the principal parties to entrust their dispute to the Court colliding with the equal right of the third State not to consent to the Court’s jurisdiction. This state of affairs makes it necessary, and indeed a duty on the Court, to bring the two freedoms into some kind of harmony. It is easy to see that this can



LIMITATION OF THE COURT’S JURISDICTION 567

be done only in relation to the subject of the dispute: if it ‘too closely’ affects the rights and obligations of the third State, the Court will not be able to exercise jurisdiction; if the effect is ‘more remote’ the Court will not be able to refuse to decide the dispute brought to it by the principal parties. Here, the exercise essentially involves a careful balancing act between the respective rights of those concerned, astride the fundamental fulcrum of principle that is consent. It goes without saying that one needs to be much clearer about generic expressions such as ‘too closely’ and ‘more remote’, as used above. That indeed is what the Court has done. In such cases the Court must therefore decide whether it can exercise any jurisdiction at all. Second, the possibility of taking cognisance of the substantive issues, as the principal parties desire, may not be an issue. There are indeed cases in which the Court must simply take account of the rights (seldom of the obligations) of third States as regards some particular aspect of the dispute between the principal parties. In such cases the Court gives its judgment, but is very careful to encroach as little as possible on third States’ legal positions. The Court has developed a very well-developed jurisprudence in this regard, through cases on the delimitation of maritime and land boundaries. A third category slips into the space between these two: the possibility for a State which is a party to the proceedings to raise an inadmissibility argument as regards a claim which to a greater or lesser degree, affects the interests of a third State.

b)  Exercise of Jurisdiction Generally Prevented: the Monetary Gold Principle In the case on Monetary Gold seised at Rome in 1943 (Italy v France, United Kingdom, United States of America, preliminary issue, 1954),1663 the Court was faced with a highly unusual situation. By a declaration signed at Washington in 1951, the governments of France, the UK and the USA, acting as members of the tripartite Commission for the restitution of the Monetary Gold seised by Germany since 1938,1664 endeavoured to resolve a dispute in relation to the part of the gold that was claimed by Albania. They agreed that, if an arbitral opinion, sought by them, were to recognise that a certain amount of the gold seised at Rome in 1943 belonged to Albania, it would be remitted not to that country, but to the UK, in partial satisfaction of the reparations due under the Court’s judgment in the Corfu Channel case,1665 which Albania had not complied with. At the same time, the three governments agreed to submit to the Court’s jurisdiction, as respondents, if either Albania or Italy (which also had certain claims against Albania) disputed the principle of such a distribution of the gold.1666 Unlike Albania, Italy did seise the Court within the time limit allowed.1667 Its application at first went to the merits. But in the course of the proceedings Italy developed doubts about the Court’s jurisdiction, and ended up by presenting it with a 1663   ICJ Reports1954, 19 et seq. On this case, see DHN Johnson, ‘The Case of the Monetary Gold Removed from Rome in 1943’ (1955) 4 ICLQ 93 et seq.; and OJ Lissitzyn, ‘Jurisdiction of the International Court of Justice, Case of the Monetary Gold Removed from Rome in 1943 (Preliminary Question)’ (1954) 48 AJIL 649 et seq. See also R Giuffrida, La ricevibilità generale nella giurisprudenza della Corte internazionale di Giustizia (Milan, 1995) 123 et seq. and M Dubisson, La Cour internationale de Justice (Paris, 1964) 149–50. On the aspect we are concerned with here, see also G Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour internationale (Paris, 1967) 156–57. 1664   ICJ Reports 1954, 25–26. 1665   Ibid, 21. 1666   Ibid, 21. 1667   Ibid, 22.

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Preliminary Objection asking it to decide that question first.1668 The Court was thus faced with the wholly exceptional situation of the applicant itself raising a Preliminary Objection. In order to safeguard its rights under the 1951 Agreement, Italy had to seise the Court, and this it had done. At the same time, it was apprehensive about the eventual substantive decision on the merits, fearing (not without reason) that the Court might find in favour of the UK’s claims. In these circumstances, the skilful litigation tactics developed in Rome involved first seising the Court, and then disputing its jurisdiction. The Court took the view that, in order to decide whether Italy had a prior claim to the UK, it had first to examine whether Albania had committed an internationally unlawful act against Italy. That was a dispute between Italy and Albania. The Court could not resolve it without Albania’s consent.1669 The fundamental reason was set out by the Court in the famous passage which reads as follows: ‘In the present case, Albania’s interests would be not only affected by a decision, but would form the very subject-matter of the decision’ (italics added).1670 The Court could not decide the dispute before it without first deciding another dispute, one in respect of which one party had not consented to its jurisdiction. Here, then, the Court was faced with an issue which, logically and temporally, was a prior one, namely the dispute between Italy and Albania, and a second issue, logically and temporarily subsequent to it, namely the dispute between Italy and the UK as to the division of the gold.1671 Logically, therefore, it was necessary first to decide the dispute over which the Court did not have jurisdiction, in order to then be able to decide the dispute over which it did. The second decision was therefore legally impossible, because it depended entirely on a prior decision which the Court had no jurisdiction to make. No other aspect remained for the Court to decide in the context of the second dispute. Its jurisdiction was blocked. It should be stressed that the Court did not declare that it had no jurisdiction. Rather, it stated that the jurisdiction conferred upon it by the Washington agreement did not enable it, absent Albania’s consent, to decide the case;1672 therefore it ‘cannot exercise this jurisdiction [the jurisdiction so conferred] to adjudicate’,1673 in other words that, in the circumstances, it could not decide the case. In substance, the Court was seeking to avoid the introduction of a back-door form of compulsory jurisdiction.1674 It is such situations that the Court had in mind when, in the case on the Northern Cameroons (1963), it said that it was the Court’s own job, not the parties’ to be vigilant on this point.1675 It should be empha  Ibid, 22.   Ibid, 32. 1670  Ibid. 1671   Ibid: ‘The first Submission in the Application centres round 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 13th 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.’ 1672   Ibid, 34. 1673   Ibid, 33. 1674   Abi-Saab, above n 1663, 156. 1675   ICJ Reports 1963, 29. In that case, the Court would have faced a situation similar to the Monetary Gold case, had it not been that the Court found the application to be inadmissible for other reasons. The Nigerian Federation was not a party to the case, although the territory had been administered by it on an attached basis (see the Independent Opinion of Judge Fitzmaurice, ICJ Reports 1963, 105–106). 1668 1669



LIMITATION OF THE COURT’S JURISDICTION 569

sised that the Court had no discretion in this matter.1676 It was objectively not in a position to exercise jurisdiction without encroaching on the rights of a third State and infringing the principle of consensual jurisdiction.1677 The compelling limitation on the Court’s jurisdiction is represented by the fact that the rights of a third State constitute ‘the very subjectmatter of the dispute’. This is a matter of general admissibility and of the integrity of the judicial function.1678 Nevertheless, the Court has felt the need to place some limit upon the extent to which its jurisdiction can, in this way, be so limited that it has to refuse to resolve the dispute between the principal parties. The Court therefore requires that the effect on the third State’s rights must be a powerful one. It is insufficient that its rights be affected, even significantly affected, in one way or another. What is necessary is that the issues raised amount to a prior dispute which the Court would inevitably have to decide, given the circumstances of the case before it, prior to deciding the issues in that case. A decision on the prior dispute, over which the Court does not have jurisdiction, is here a condition sine qua non of the Court’s ability to take cognisance of the principal dispute. In such a situation, the Court will refuse to exercise the jurisdiction that has been conferred upon it, because it can do so only by violating its own Statute. However, the restriction here is in fact a relatively limited one. A third State is protected by the Court’s refusal to exercise its jurisdiction only if the case is such that the third State’s own rights would be the very subject matter of a prior decision by the Court. Only in such cases does the position of a third State merit a degree of protection going so far as to deny the consenting States a decision on their own dispute. In all other cases, it is sufficient, when the Court exercises its jurisdiction, that it do so in a carefully modulated way, so as not to encroach upon the rights of third States. It is here not a question of not exercising jurisdiction at all, but one on the way of exercising jurisdiction. The question of third States resurfaced in the case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility, 1984).1679 The case gave the Court the opportunity to emphasise the inherent limits of what it had said back in 1954. The USA had claimed that in order to decide Nicaragua’s claims, the Court would necessarily have to decide the rights of third States, notably Honduras, ‘since it is alleged that Honduras has allowed its territory to be used as a staging ground for unlawful uses of force against 1676   The Court’s formulation of the point in the Boundary dispute (Burkina Faso v Mali), ICJ Reports 1986, 579, § 49, can give rise to a certain amount of confusion: ‘[I]n a given case it may be clear from the record that 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 . . . so that the Court has to use its power “to refuse to exercise its jurisdiction”’ (italics added). It is interesting that the French-language text, using the word devrait (the English text saying, ‘has to’, as we have already seen), might at first sight appear misconceived, in seeming to allow a certain margin of appreciation. But that is not the position. The Court concluded in this case that the rights of the third State were not affected to the necessary degree. That was the reason why the French text (though not the English) used the conditional form devrait. If the interests of a third State had been affected to the necessary degree, which in the circumstances of the case was not the position, the Court would have had to refuse to exercise its jurisdiction. The word devrait did not denote a discretion, but was merely equivalent to the hypothetical formulation that the Court might otherwise have used. What was being described was a matter of duty on the Court’s part. Otherwise the French text of the judgment might have used the word pourrait, in which case the equivalent English text would perhaps have read ‘might [use its power] ’ rather than, as it did, ‘has to use its power’. 1677   ICJ Reports 1954, 32: ‘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 wellestablished principle of international law embodied in the Court’s Statute, namely that the Court can only exercise jurisdiction over a State with its consent.’ 1678   cf Abi-Saab, above n 1663, 157, fn 273; Giuffrida, above n 1663, 60. 1679   ICJ Reports 1984, 430–31, §§ 86–88.

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Nicaragua’.1680 The collective nature of the self-defence argument made against Nicaragua would also bring in other States, such as El Salvador and Costa Rica. In short, the case would have to involve a certain number of ‘indispensible parties’ before the Court could decide on the merits of the Nicaraguan claims.1681 These other States had been asked by the USA and had already asserted that, in their view, the Nicaraguan case put their own rights in issue.1682 The Court rejected these arguments, emphasising that the position of these third States was not comparable to the position of Albania in 1954, in as much as decisions on the rights of these other States were not a prior condition to the Court’s adjudicating upon Nicaragua’s claims in the principal proceedings.1683 The Court added, most significantly, that the circumstances of the Monetary Gold case ‘probably represent the limit of the power of the Court to refuse to exercise its jurisdiction’. If the word ‘probably’ leaves the door slightly ajar for subsequent jurisprudential nuances to slip through, and in that regard must be read as an adverb slipped in for reasons of judicial prudence, nevertheless, this statement clearly shows that the Court is not going to renounce the exercise of a jurisdiction conferred on it in the ordinary way merely because third States will be ‘affected’, in the general sense of the term, by the Court’s exercise of jurisdiction. If the Court were to reach a conclusion that was more deferential towards the interests of States that are not parties to the particular case, the Court would be pushed towards a situation in which, just because a third State would be affected, it would be unable to exercise its jurisdiction. In an interdependent world, a doctrine of that kind would, broadly speaking, lead to the Court’s being deprived of a great deal of its jurisdiction, to the effective elimination of the value of jurisdiction clauses, and to an all-too-easy escape route for respondents. The sovereign right of third States not to consent would thus have been given unjust and unjustified priority over the rights of the parties to the actual case – or at least to the rights of the applicant – who want the Court to decide their dispute. In this respect, the Court reaffirmed that the interests and sovereignty of third States are already sufficiently protected by Article 59 of the Statute. In short, the Court’s doctrine can be summed up as follows: ‘protection against the fact of itself being the subject of a truly necessary prior decision, yes’; ‘protection against   Ibid, 430, § 86.   As to this ‘essential parties’ argument, cf among others J Verhoeven, ‘Le droit, le juge and la violence. Les arrêts Nicaragua c. Etats-Unis’ (1987) 91 RGDIP 1184–86; P M Eisemann, ‘L’arrêt de la CJI du 26 novembre 1984 (Compétence et recevabilité) dans l’affaire des activités militaires au Nicaragua et contre celui-ci’ (1984) 30 AFDI 385. See also generally, S Torres Bernardez, ‘The New Theory of “Indispensable Parties” under the Statute of the International Court of Justice’ in Essays E Suy (The Hague, 1998) 737 et seq. 1682   ICJ Reports 1984, 184, § 3 and 430, § 87. 1683   The relevant passage reads as follows: ‘There is no doubt that in appropriate circumstances the Court will decline, as it did in the Case concerning Monetary Gold Removed from Rome in 1943, to exercise the jurisdiction conferred upon it where the legal interests of a State not party to the proceedings ‘would not only be affected by a decision, but would form the very subject-matter of the decision’ (ICJ Reports 1954, p 32). Where, however, 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 on those submissions, with binding force for the parties only, and no other State, in accordance with Article 59 of the Statute. As the Court has already indicated (paragraph 74, above), other States which consider they may be affected are free to institute separate proceedings, or to employ the procedure of intervention. There is no trace, either in the Statute or in the practice of international tribunals, of an “indispensable parties” rule of the kind argued for by the United States, which would 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. The circumstances of the Monetary Gold case probably represent the limit of the power of the Court to refuse to exercise its jurisdiction; and none of the States referred to can be regarded as in the same position as Albania in that case, so as to be truly indispensable to the pursuance of the proceedings’, ICJ Reports 1984, 431, § 88. 1680 1681



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any (col)lateral effects of the Court’s decision, no’. Overall, one can see with the benefit of hindsight, that the Court was already opening the way to the line it was to formulate in the Nauru case (1992) (discussed below). In addition, the USA’s argument was similar to an inadmissibility argument that had been rejected in the Court’s jurisprudence, that is, the inexpediency of taking cognisance of one isolated aspect of the dispute if it were embedded in a wider factual, legal or personal context. The Court rejected precisely this ‘autonomous inadmissibility’ argument, stating that there was no trace, either in the Statute or in the practice of international tribunal, of a rule on ‘indispensable parties’.1684 The situation was in this context different from the one in the Monetary Gold case. The restrictive condition laid down in that case was an inherent necessity of the judicial function and integrity. It was also designed to protect the essential principles of the Statute. For these reasons it was different from and more narrowly based than the USA’s argument as to ‘opportuneness’. The 1954 rule is independent of the interests of the parties and rests only on an appreciation of what is necessary for the Court’s legal functioning. The private interests of the applicant or other States (the ‘essential parties’ argument) is in opposition to the public interest in the Court’s being able to exercise its jurisdiction and administer the law. The implications of the Court’s judgment in the Nicaragua case, which had not yet been clearly explained at that stage, were laid bare in the case concerning Certain phosphate lands at Nauru (Nauru v Australia, Preliminary Objections, 1992). Nauru’s application related to the rehabilitation of certain phosphate lands that had been jointly exploited by three administrating powers, Australia, New Zealand and the UK, prior to the time Nauru achieved independence. For jurisdictional reasons (the need for a valid title of jurisdiction), Nauru could bring the case before the Court only as against Australia. Australia objected to the jurisdiction, relying on the Monetary Gold rule. Australia argued that the Court could not exercise its jurisdiction unless and until the other two administering powers gave their consent. The joint legal position of the three States prevented the applicant from turning its fire on only one of them, since any judgment by the Court against one of the three would directly affect the positions of the other two, their responsibility being automatically established because of their joint legal position. In short, to say that Australia was responsible for an internationally unlawful act would be to say at the same time that so were New Zealand and the UK, even though neither of them consented to the jurisdiction. The Court said that its decision would have only incidental (though simultaneous) effects on third States. Their legal situation was not the subject matter of the decision the Court needed to take: In the present case, the interests of New Zealand and the United Kingdom do not constitute the very subject-matter of the judgment to be rendered on the merits of Nauru’s application and the situation is in that respect different from that with which the Court had to deal in the Monetary Gold case. In the latter case, the determination of Albania’s responsibility was a prerequisite for a decision to be taken on Italy’s claims. In the present case, the determination of the responsibility of New Zealand or the United Kingdom is not a prerequisite for the determination of the responsibility of Australia, the only object of Nauru’s claim. Australia, moreover, recognizes that in this case there would not be a determination of the possible responsibility of New Zealand and the United Kingdom previous to the determination of Australia’s responsibility. It nonetheless asserts   ICJ Reports 1984, 431.

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that there would be a simultaneous determination of the responsibility of all three States, and argues that, so far as concerns New Zealand and the United Kingdom, such a determination would be equally precluded by the fundamental reasons underlying the Monetary Gold decision. The Court cannot accept this contention. In the Monetary Gold case, the link between, on the one hand, the necessary findings regarding Albania’s alleged responsibility and, on the other, the decision requested of the Court regarding the allocation of the gold, was not purely temporal, but also logical; as the Court explained, ‘In order . . . 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 (ICJ Reports 1954, p 32). In the present case, 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 situation will be needed as a basis for the Court’s decision on Nauru’s claims against Australia. Accordingly, the Court cannot decline to exercise its jurisdiction.1685

If, in the Monetary Gold decision, the position of the third State had to be judged as a preliminary step, so as to enable the Court to come to grips with the question before it, in the present case the position of the third States was affected in the immediate aftermath, that is, a posteriori, and this was because the Court had dealt with the question before it. A substantive situation (the ‘very subject-matter’) was transformed into a tangential one (‘concerns’, ‘has implications for’ and so on). It is a fair point to argue that if the Court accepts the responsibility alleged against the respondent, that strongly colours the de facto position of the other two States. But that is fact, not law. This is so not only because Article 59 of the Statute expressly limits the scope of the decision to the parties before the Court, but also because responsibility must be judged as against each State individually, since it might be, for example, that one State could validly invoke a circumstance precluding wrongfulness not open to the others. Since what we are considering here is the total inability of the Court to exercise its jurisdiction, it is easy to see the disproportionate effects that would flow from the Court’s declining to exercise its jurisdiction simply because third party interests are affected, even in a very direct way. It is enough in such cases for the Court to take precautions as to the concrete way in which it exercises its jurisdiction, or to issue a particular reminder about the effects of Article 59 of the Statute. Taken in the round, the Court’s jurisprudence, although it is certainly subtle and not particularly easy to follow, is to be commended, since so far as possible it does preserve the jurisdiction which the principal parties have chosen to confer on the Court. Here again, the maxim boni judicis est ampliare jurisdictionem is in point, but since the jurisdiction is preserved rather than enlarged, what is actually applied is the more restrictive form boni judicis est preservare jurisdictionem. Not all the judges on the Court have been satisfied by this approach. Judges Jennings and Ago, for example, dissociated themselves from it. In his Dissenting Opinion, Judge Ago1686 emphasised that the Court’s decision would ‘inevitably, affect the legal situation of the two other States, namely, their rights and obligations’ (italics in the original). If the Court had to accept the liability of Australia, ‘it would thereby indirectly establish that the remainder of the responsibility would fall on the two other States’. And he concluded that there was no consensual basis for the Court to venture into that type of conclusion. Having brought the case to the Court in this way, Nauru must face the consequences of its decision. Similar   ICJ Reports 1992, 261–62, § 55.   Ibid, 328.

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sentiments were expressed in the Dissenting Opinion of Judge Jennings,1687 who took the view, abandoning habitual British understatement, that ‘it is surely manifest’ that the legal interests of New Zealand and the United Kingdom would be the very subject matter of any decision reached by the Court in the present case. The Court would not be able to avoid giving what was, in substance, a simultaneous decision as to the legal interests of these two other States, since they were inextricably linked with the issues in the case. The Australian Preliminary Objection should therefore have been upheld. Amongst leading and authoritative commentators, likewise, there are those whose views cast doubt on the relevance of the distinction made by the Court, which they accuse of over-subtlety: whether or not one drew a distinction between the vertical effects of a prior question and the horizontal consequences of simultaneous effects, the fact remained that the rights of third States might be affected in the same way. It was not a matter of designing logical categories, but of assessing and taking account of the practical effects of the conceptualisations that were under consideration. And, in that respect, the differences were only of degree, to the point where the Court’s distinction might seem fairly unconvincing.1688 However, the logic of the minority judgments, or of the critical commentators, is to create too extensive a field over which the Court would not be able to exercise jurisdiction. The sovereignty of third States would be given excessively favourable treatment at the expense of the sovereign rights of the States that are parties to the actual case. Although there is no doubting the fact that, in the Nauru case, the legal positions of the three States were bound together in a particularly tight way, nevertheless, the life of the international community features an ever-growing number of situations in which legal interests are multilateral or collective. If the views of the minority judges were accepted, the effect would be to prevent the Court hearing all such cases except those in which every single State involved in the legal relationship consented to the jurisdiction. This would bring into the jurisprudence a generalised doctrine of ‘necessary parties’, which would be equivalent to the application by analogy, to all cases before the Court, of the (Vandenbergh) reservation as regards multilateral treaties. In other words, each third State would automatically imply a veto. This would do just as much wrong to the claimant and would be just as inappropriate as regards the functions of the Court, since, unlike in systems of municipal law, the third parties could not be forced to appear before the Court. The claimant would thus be deprived of its right to have its case decided by the Court, as soon as, on any such occasion, the respondent took shelter, in the context of a multilateral legal relationship, behind one or other of the absent parties. For these reasons, the Court’s stricter interpretation is to be preferred. Although H Thirlway rightly casts doubt on the solidity and logic of the Court’s reasoning, and even of its relevance, that is not truly the point. The fundamental issue is the one that is hardly mentioned, namely sound judicial policy. In the East Timor case (Portugal v Australia, 1995), the Court had occasion to reapply the Monetary Gold decision in its original sense. To decide whether Australia had the right to enter into a continental shelf treaty with Indonesia (rather than with Portugal as the former administering power for Timor), the Court would have had to consider the circumstances in which Indonesia had acquired and maintained its power over Timor. However, Indonesia had not consented to the Court’s jurisdiction, and these questions as to title to Timor would indeed have constituted the very subject matter (prior) of the   Ibid, 301–302.   See Thirlway, above n 1661, 50.

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Court’s decision.1689 The Court therefore decided that it could not exercise the jurisdiction conferred on it by the parties’ optional declarations under Article 36, paragraph 2 of the Statute.1690 Once again, the issue of judicial propriety was decisive.1691 Certain of the judges did, however, think the Court could have exercised jurisdiction, since they took the view that a decision as to the legal position of Indonesia was not a condition precedent to their deciding the issues as between the actual parties to the case.1692 The rule was applied again in the case on Armed activities in the territory of the Congo (DRC v Uganda, 2005). Uganda alleged the absence of an indispensable third party. Rwanda had participated in the military events which would be the subject of the Court’s judgment. It was not a party to the proceedings and had not consented to the Court’s having such a jurisdiction. Uganda argued that the legal interests of Rwanda constituted the ‘very subject-matter’ of the dispute, so that the rule in the Monetary Gold case should be applied. The Court, however, took the opposite view, finding that the rights and interests of Rwanda were not in truth the ‘very subject-matter’. Unlike in the Monetary Gold case, this time there was no need to decide first on the rights and interests of Rwanda so as then to be in a position to decide the rights and interest of the parties to the proceedings. Quite the reverse: it was only the attitude of Uganda that was in issue. If, and to the extent that, Uganda had been acting jointly with Rwanda, the Court’s decision would have only an indirect reflex effect on Rwanda. On this basis, the Court directly applied the Nauru rule and Uganda’s objection was rejected (§ 204). In summing up, one can draw the following conclusions: (1) the Court will refuse to exercise a jurisdiction that has been conferred upon it in a regular manner only in extreme cases, and in line with a very restrictive interpretation of its duty to refuse, so as to respect the liberty and sovereignty of States that bring their disputes before it; (2) the only situation which up to now, the Court has accepted as permitting it not to exercise its jurisdiction is when the Court would, in order to decide the dispute before it, have to give a prior decision on the legal position of, or on a dispute with, a third State; (3) in such situations, the Court does not declare that it has no jurisdiction (since jurisdiction has been conferred on it in regular manner), but only that it cannot exercise that jurisdiction; (4) this limitation as to jurisdiction results from the fundamental principles of judicial integrity and consensual jurisdiction; (5) the Court thus has no discretion in the matter, and must refuse to exercise the jurisdiction conferred upon it if to exercise it would conflict with the rights of third States; (6) it also follows that the Court must raise this question motu proprio as soon as it becomes aware of the legal interests of a third State; and (7) this restrictive jurispru1689   ICJ Reports 1995, 102, 105. The fact that one is concerned with obligations erga omnes (the right of selfdetermination) makes no difference The erga omnes quality of certain rights and obligations decides only who holds the rights, the holders being multiplied. However, the questions as to the title of jurisdiction and of judicial propriety are prior to the question of who holds the rights and who is subject to the obligations. An inquiry into the latter questions presupposes that the two initial questions have already been answered (ibid, 102). For an opposing view, see the Dissenting Opinion of Judge Weeramantry, ibid, 172. 1690   Ibid, 106. 1691   cf JM Thouvenin, ‘L’arrêt de la Cour internationale de Justice du 30 juin 1995 rendu dans l’affaire du Timor Oriental (Portugal c. Australie)’ (1995) 41 AFDI 342 et seq.; Zimmermann, ‘Die Zuständigkeit’, above n 1661, 1051 et seq.; N Sybesma-Knol, ‘The Indispensable Parties Rule in the East Timor Case in Essays P de Waart (The Hague, 1998) 442 et seq. 1692   cf the Dissenting Opinion of ad hoc Judge Skubiszewski, ICJ Reports 1995, 244–45. His main argument was that it would have been possible to separate the rights and obligations of Australia from those of Indonesia without having to decide the latter as a ‘prior’ question. It will be perceived that the handling of these criteria remains a delicate matter in the great majority of cases, though here the Court’s position seems to have rested on more solid ground than that of this eminent Polish judge.



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dence is desirable given the growing interdependence of legal interests and of the developing multilateralism characteristic of the modern world. Having identified the limits to the material field in which the Monetary Gold rule is to be applied, as indicated in the Nauru case (‘very subject-matter, prior/simultaneous’), it remains to give closer consideration to the field of personal application. It is a given and accepted fact that only States can appear before the Court in contentious cases. That, however, does not mean that the interests of third parties other than States cannot be the subject of a dispute. It might happen, for example, that the legal position of an international organisation with legal personality needs to be determined as a preliminary matter; or the same might be the case as regards a dispute between one of the parties and an international organisation; or as regards a dispute between a third State and an international organisation; or as regards the legal position of any other subject of international law, perhaps even a dispute to which it is a party. Does the Monetary Gold rule apply in such situations? In two cases, the answer is clear. First, if a dispute between a third State on the one hand, and an international organisation or some other subject of international law on the other, is the necessary prior issue, then obviously the rule applies, because the Court would necessarily have to take a position as to the rights and obligations of the third State. In these circumstances the rule applies in its original sense. Conversely, if the exercise of jurisdiction presupposes a determination of a legal position affecting the United Nations as such (independent of the rights and obligations of its Member States), for example, as to the scope of its privileges and immunities, the Court can always exercise its jurisdiction.1693 As the principal judicial organ of the UN, operating from within the organisation, despite its judicial independence, and as an integral part of the UN’s institutional structure,1694 the Court cannot consider the UN a ‘third party’. Furthermore, the UN is not a sovereign entity whose legal interests must be protected in the same way as a State’s. And finally, there is the fact that the application of the Monetary Gold rule also rests on the idea that the liberty of the third State whether or not to participate in the proceedings (participating either by becoming a party or by exercising its right to intervene) must be preserved. Other subjects of international law do not have these rights and choices, since they do not have the right to participate in contentious proceedings before the Court (Article 34, § 1 of the Statute). What, then, is the position as regards all the other situations, that is, as regards international organisations other than the UN and for other subjects of international law? The Monetary Gold rule rests on respect for the principle of consent to the Court’s jurisdiction. It therefore concerns only sovereign States. They alone can participate in contentious cases. It is therefore only in this context that the rule has, until now, been applied. On the one hand, one might argue that the rule is designed to protect the autonomy of any third party, which is not obliged to consent to its rights and obligations being the subject of a decision by a court of justice before which it has not appeared and cannot appear. The growing interdependence of legal interests, and the need not to prune the Court’s jurisdiction excessively when it is already sufficiently limited by the principle of consent, ought to tilt the balance in the direction of the former of the two interpretations. The third subject remains protected by Article 59 of the Statute. Not being sovereign, it has no additional rights. It must, however, be put into a position to make observations to the Court and to make its   See also Tomuschat, ‘Article 36’, above n 1661, 604.   Art 7, § 1 and Chapter XIV of the Charter.

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position known on the point in dispute. Also, the Court has the right, in extreme cases where its making a decision would breach basic principles of justice, to decline to exercise its jurisdiction, relying for these purposes on the concept of the plaint’s general admissibility (judicial integrity). Legally, this seems a sufficient safety valve. It should be otherwise, so that the Monetary Gold rule somehow comes into play, only if and when, hidden closely behind the legal position of the non-State third party, there lies the legal position of a third State. In such a case, a way would be found to lift or pierce the veil. Obviously the question raises difficulties as to how far this idea should be taken. To date it has not excited any real interest amongst authoritative commentators.

c)  Inadmissibility of Applications affecting the Legal Interests of Third Parties? It can happen that a State argues that the interests of third parties will be affected, as a ground not for the Court’s refusing to exercise jurisdiction, but of inadmissibility. This happened, for example, in the case of the Land and maritime boundary between Cameroon and Nigeria (Preliminary Objections, 1998).1695 Nigeria argued that the Court must declare the application inadmissible because the requested maritime delimitation in the Gulf of Guinea put in issue the interests of five coastal States between which there was no existing agreement. The Court rejected this objection, declaring that, in the circumstances, it was not of an exclusively preliminary nature and ought to be examined at the merits stage.1696 At the merits stage, the Court then did as it ordinarily does in order to protect the rights of third States (see section (d) below). It did not accept that there was an overall inadmissibility preventing it from deciding the issue – similar, in effect, to a refusal to exercise jurisdiction. One has to approve of this approach to the problem, which preserves, to the maximum extent practical, the Court’s ability to decide the disputes that come before it. In truth, this intermediate category of inadmissibility on account of the interests of third parties is not of any real utility. Either the rights and obligations of the third party are so 1695   ICJ Reports 1998, 322 et seq., § 112 et seq. The argument was squarely about inadmissibility, as is demonstrated by § 112. 1696   Ibid, 324, § 116: ‘What the Court has to examine under the eighth preliminary objection is whether prolongation of the maritime boundary beyond point G would involve rights and interests of third States and whether that would prevent it from proceeding to such prolongation. The Court notes that the geographical location of the territories of the other States bordering the Gulf of Guinea, and in particular Equatorial Guinea and São Tomé and Príncipe, demonstrates that it is evident that the prolongation of the maritime boundary between the Parties seaward beyond point G will eventually run into maritime zones where the rights and interests of Cameroon and Nigeria will overlap those of third States. It thus appears that rights and interests of third States will become involved if the Court accedes to Cameroon’s request. The Court recalls that it has affirmed “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” (East Timor (Portugal v Australia), judgment, ICJ Reports 1995, p 101, para 26). However, it stated in the same case 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” (ibid, 104, para 34). . . . The Court cannot therefore, in the present case, give a decision on the eighth preliminary objection as a preliminary matter. In order to determine where a prolonged maritime boundary beyond point G would run, where and to what extent it would meet possible claims of other States, and how its judgment would affect the rights and interests of these States, the Court would of necessity have to deal with the merits of Cameroon’s request. 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.’



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preponderant that the Court must refuse to exercise its jurisdiction, or they are not, in which case it is enough to take their existence into account when crafting a decision on the merits. From the technical point of view, moreover, the presence of third party legal positions does not generally give rise to an admissibility problem (that is, a defect in the claim), but only to a problem with the Court’s jurisdiction (that is, a lack of consent). In the great majority of cases, therefore, it is doubtful whether the problem should be classified as an admissibility issue.

d)  Specific Duty to take account of the Rights and Obligations of Third Parties: Jurisprudence on Boundary Delimitations It is in the rich jurisprudence on land and maritime boundary delimitation that the problem we are considering here has been of considerable importance and that the Court has set out, and progressively refined, the applicable legal principles.1697 In this context, the Court has always refused to accept the oft-advanced argument that it must simply abstain from exercising its jurisdiction because the interests of the third State would be the ‘very subject-matter’ of the dispute. Thus, in the case of the Land, island and maritime dispute (El Salvador v Honduras, Nicaraguan request to intervene, 1990), the Court said that the determination of the boundary and of title to islands in the Gulf of Fonseca would ‘evidently affect an interest of a legal nature of Nicaragua; but even so that interest would not be the “very subject-matter of the decision” in the way that the interests of Albania were in the case concerning Monetary Gold Removed from Rome in 1943’.1698 In this way the Court was already applying the logic of the Nauru case (simultaneous effects of the Court’s judgment on third parties, no logical priority of one question over another) in the present geographical context. This context was characterised by the existence of a condominium or a community of coastal States, very similar to the legal solidarity of the three States administering the territory of Nauru. This case also shows the Court refusing to apply the rule of the Monetary Gold case in the context of highly interdependent legal interests, that is, of a condominium or community of interests. The Court must then, a fortiori reject the idea of applying the rule in other geographical contexts in which the third States’ interests are less intimately linked to those of the principal parties. Certainly, in the El Salvador v Honduras case cited above, Nicaragua was allowed to intervene under Article 62 of the Statute. Consequently, Nicaragua was not strictly speaking an entirely ‘third’ State, even though it did not intervene as a party to the proceedings, but only in an accessory capacity. The Court’s reasoning, as cited above, clearly shows that it was not Nicaragua’s intervention or non-intervention that were decisive in the eyes of the Court, but rather the fact that the judgment sought by the principal parties did not necessitate the Court’s taking a logically prior decision as to the rights of Nicaragua. Following this line of argument, it can be seen that there will be hardly any case of land or maritime boundary delimitation in which the Monetary Gold rule could fall to be applied. When two or more parties to a case ask the Court to fix their boundary, the Court will not be forced first to fix the boundary of a third State. That would amount to concerning itself 1697   For a strongly synthesising view, see Tomuschat, ‘Article 36’, above n 1661, 604–605; H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’ in BYIL, vol 65 (1995) 19 et seq. 1698   ICJ Reports 1990, 122, § 73.

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with the rights and obligations of a non-party, an aliud, to neglecting the task entrusted to it, and to exceeding its powers. The only problem which arises is at what geographical point, according to the circumstances, the process of delimitation must be interrupted so as not to encroach on areas in which other States may have prior rights. That, however, is not a Monetary Gold-type problem, but an issue which in fact is internal to the exercise of the Court’s material jurisdiction to delimit the zones in dispute. It is only in highly exceptional circumstances that one can imagine the Monetary Gold rule being applied to the delimitation process. No such situation has yet arisen. It could arise if, for example, the line of delimitation between the parties could, in consequence of an applicable treaty, be constructed only with the participation of a third State to which the treaty in question had given that important element of influence over the delimitation process, as a safeguard for its interests. If, in such a case, the third State were to refuse to participate in the case, the Court might have to surrender the exercise of its jurisdiction, out of respect for the treaty provision. Respect for the legal position of the third State might in such a case be in effect a precondition for the delimitation between the parties to the case. Having said that, it does seem unlikely that the situation will ever arise. Maritime boundaries. In delimiting maritime boundaries, the general rule is that the Court abstains from drawing the line inside areas in respect of which third States might claim rights. The Court has always endeavoured to define the relevant zones in such a way as not to encroach on the rights of third States. On occasion it has done so in quite a radical way, showing itself prepared, if necessary, to considerably reduce the length of the line it draws. So, for example, in the Continental shelf case (Libya v Malta, 1985),1699 the Court strictly limited the area covered by its judgment to the frontal projections of the two States’ coasts, which resulted in a kind of trapezium with its summit to the Maltese side. The entire zone in which Italy claimed an interest – in an intervention under Article 62, which, unfortunately, the Court did not accept1700 – was purely and simply excluded from the principal judgment. Some of the judges, albeit a minority of their number, said, not without reason, that in effect Italy had obtained just as complete a protection for its legal position as if it had been allowed to intervene and that in addition Italy had succeeded in proving its claims,1701 while concomitantly, the principal parties, Libya and Malta, were being punished for refusing the Italian intervention. No doubt the fact that the Italian claims were not manifestly unreasonable1702 encouraged the Court to take such a rigid position. Had these been purely arbitrary claims, designed mainly to create difficulties for the parties to the case when exercising their rights, they would doubtless have been ignored or at least treated with markedly less respect. Likewise, in a whole series of other cases, the Court has limited the area it actually delimited, in such a way as not to encroach on areas in which third States had claims. The results have in principle been the same as in Libya v Malta, but the limitations have been less radical than the considerable shortening of the line that had already resulted in that particular   ICJ Reports 1985, 24 et seq. §§ 20 et seq.   ICJ Reports 1984, 3 et seq. The Court attached perfectly unjustified importance to the consent of the parties to the intervention under Article 62 of the Statute that being an autonomous procedure based directly on the Statute. A third State whose interests are affected can apply to intervene on an accessory (non-party) basis as a subjective right based directly on Article 62 of the Statute, and the principal parties are not justified in opposing this. 1701   For example, the Dissenting Opinion of Judge Schwebel, ICJ Reports 1985, 173. 1702   Judgment, ibid, 28, § 23. 1699 1700



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case from the shortness of the Maltese coastline. In the other cases, the relevant zone was sufficiently large to make it possible to avoid such an unbalanced result. So, for example, in the case on the Land and maritime boundary between Cameroon and Nigeria (merits, 2002), the Court refused to draw the line of delimitation beyond a certain point at which the rights of Equatorial Guinea and São Tomé e Príncipe might have been affected.1703 The Court thus goes so far as to give actual pre-eminence to the rights of third States in the areas concerned. It recognises that the protection of Article 59 of the Statute would be insufficient against the indirect effects of the judgment, and declares that consequently it will not decide the questions submitted to it to the extent that they might affect the rights of third States.1704 The result is that third State rights restrict the area delimited as between the principal parties. The Court exercises its jurisdiction, but it limits its geographical scope. This jurisprudence, a ‘partially abstentionist’ one, has also been followed by arbitral tribunals.1705 In some other cases, the Court has confined itself to indicating in generic terms how the boundary agreed inter partes would project towards the areas where third States have potential rights, for example, by using an arrow (in the Continental shelf case between Tunisia and Libya, 1982).1706 It has also been said that the determination of the prolongation of the boundary ‘is a matter falling outside the jurisdiction of the Court in the present case, as it will depend on the delimitation to be agreed with third States’.1707 In another, similar case, the Territorial and maritime dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras, merits, 2007), the Court simply refrained from deciding the exact end-point of the maritime boundary, since it was not sure precisely where third party rights came into play.1708 In the sketch map included in the judgment, the   ICJ Reports 2002, 448, § 307.   Ibid, 421, § 238: ‘The jurisdiction of the Court is founded on the consent of the parties. The Court cannot therefore decide on legal rights of third parties not parties to the proceedings. In the present case there are States other than the parties to the proceedings whose rights might be affected, namely Equatorial Guinea and São Tomé and Prícipe. Those rights cannot be determined by decision of the Court unless Equatorial Guinea and São Tomé and Príncipe 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. São Tomé and Príncipe has chosen not to intervene on any basis. The Court considers that, in 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 São Tomé and Príncipe from the effects – even if only indirect – of a judgment affecting their rights. The jurisprudence cited by Cameroon does not prove otherwise. In its decision in the case concerning the Continental Shelf (Tunisie v Libyan Arab Jamahiriya), the Court did not deal with the rights of third States; what was principally at issue there was the question of proportionality of coastline lengths in relation to the process of delimitation between the parties (ICJ Reports 1982, p 91, para 130). 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 São Tomé and Príncipe. Nor does the Court accept Cameroon’s contention that the reasoning in the Boundary dispute (Burkina Faso v Republic of Mali) (IC J Reports 1986, p 554) and the Territorial dispute (Libyan Arab Jamahiriya v Chad) (ICJ Reports 1994, p 6) in regard to land boundaries is necessary transposable to those concerning maritime boundaries. These are two distinct areas of the law, to which different factors and considerations apply. Moreover, in relation to the specific issue of the tripoint, the Court notes that both Parties agree that it should not fix one. It is indeed not entitled to do so. In determining any line, the Court must take account of this. 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 São Tomé and Príncipe. 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 limits on its jurisdiction that such presence imposes.’ 1705   See, eg the Maritime delimitation case (Eritrea v Yemen, 1999), RIAA, vol XXII, 366, § 136, and 372, § 164. 1706   On the rights of third States, see ICJ Reports 1982, 64–65; for the sketch map and arrow, see ibid, 76. 1707   Ibid, 94, no 3. 1708   Only the rights of Jamaica seem capable of being affected by this line, not those of Colombia, the latter obviously not extending that far north. 1703 1704

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line is shown projecting to seaward, but it does not end in an arrow (not that this is a decisive detail). The boundary extends beyond the eighty-second meridian, without prejudicing the rights of third States; but it stops 200 nautical miles from the baselines. Beyond that are the high seas, subject however to Article 76 of the UN Convention on the Law of the Sea of 1982 (§ 319). As noted, the Court abstained from indicating the precise end-point on the boundary (§ 319).1709 Finally, it should be noted that, in some other cases the Court has been able to delimit the zones in question in areas where there was no third State (Gulf of Maine, 1984);1710 or in areas so defined that third party rights did not a priori seem to be affected, the third parties concerned making no claims on these areas and not being legally in a position to do so (see the Jan Mayen case, 1993, in relation to Iceland).1711 To sum up, in maritime delimitation cases, the Court accords a maximum degree of deference to the rights of third States, by giving them priority over the interests of the parties to the proceedings, in the sense of refusing to draw delimitation lines in areas affecting their rights. It does not, however, refuse to exercise the remainder of its jurisdiction, delimiting the boundary in the areas not affected by third party rights. In a way, one might almost say that the Monetary Gold principle is transformed in such cases, the gold being turned into small change. Instead of placing a complete block on the exercise of the Court’s jurisdiction, the Court in these cases merely limited the exercise of its material jurisdiction to certain areas. The Court does not examine the validity of third party claims, and indeed has no jurisdiction to do so. It would nevertheless be wrong to imagine that, even for the limited purposes we are considering, the Court would recognise fantastic third party claims. It is within its rights to disregard them if it thinks there is no legal justification for them, even if that view is summa prima facie. Claims that constitute an abuse to put forward cannot be taken into consideration – the principle of good faith and the prohibition against abuse of rights both prevent it. Finally, there is also the point that, if all the States in the relevant region are agreed on the application of a rule such as equidistance, encroachment on the rights of third States is technically easier to avoid because all lines of demarcation in the region are geometrically constructed. The Court can know which areas belong to which States, and if need be, it can draw for illustration the necessary plurilateral equidistance lines. However, even here, not every element of uncertainty is eliminated because one has still to define the relevant baselines, and there can be changing ‘special circumstances’ that require pure equidistance to be either abandoned or modified. Land boundaries. When it comes to land boundaries, the Court has not faced the same problems. This is because, unlike maritime boundaries, where usually the delimitation line beyond the territorial sea has simply not been drawn at all, terrestrial frontiers are, at least in outline, delimited and known. The Court knows the start and finish points between which it is to determine the boundary between two States. The most well-known problem relates to the delimitation of tripoints.1712 A tripoint is usually the end point of the delimitation, at the point where the boundary between the two States involved in the case abuts the territory of a third State which is not a party to the proceedings. If the boundary in the 1709   § 319: ‘The Court may accordingly, without specifying a precise end-point, delimit the maritime boundary and state that it extends beyond the 82nd meridian without affecting third-State rights.’ 1710   ICJ Reports 1984, 246 et seq. 1711   ICJ Reports 1993, 38 et seq., especially 44 et seq. 1712   Depending on the number of States concerned, it is obviously possible to have a quadripoint, quintipoint etc. However, such situations have never come before the Court.



LIMITATION OF THE COURT’S JURISDICTION 581

area of the tripoint is clearly established, there is no problem. The third State does not have the right to ask that the boundary between the two disputing States should meet its territory at point x rather than point y. And, a fortiori, its legal interests are not affected to the point that the Court cannot fully exercise the jurisdiction conferred on it by the parties. The situation can be more difficult if the position of the frontier is unknown, or not at all certain, in the area of the tripoint. Such cases bear a closer resemblance to uncertainties in the law of maritime delimitation. However, in this field the Court has not followed its own maritime jurisprudence. The tripoint question has arisen in three cases decided by the Court. The first, which remains the locus classicus, was the Frontier dispute (Burkina Faso v Mali, 1986). Mali had argued that the Chamber could not determine the entire length of the common boundary, because it ended at a tripoint with Niger. Mali argued that, in the absence of Niger, which was not a party, the Chamber did not have jurisdiction to draw the line that far. The Chamber of the Court rejected that argument. It said, first of all, that Niger had made no claim in respect of the areas it was asked to delimit; then, that the boundary ended at the tripoint; and finally that Article 59 of the Statute was a sufficient protection for Niger as regarded any surplus (that is, that Niger could continue to claim rights in the area delimited by the Court).1713 It should also be remembered that the parties could have freely agreed their boundary as far as the point where it intersected the boundary of the third State. What the parties could do by agreement, the Court could do in their stead, because it was only a substitute for direct agreement between them.1714 The Chamber also made it clear that it was not a matter of determining the position of a tripoint with legally binding force, an exercise which would have required the consent of all three States concerned, but only of ruling on how far the common boundary of the two parties to the proceedings extended.1715 It goes without saying that, from this perspective, the jurisdiction duly conferred on the Court by the parties to the case must prevail over reservations that the third State does not have the right to stipulate for. It should be added that the parts of the boundary near the Niger border were not clearly determined. Niger had not made claims on the relevant area. If subsequently it were to do so, and if the claims were justified, a marginal adjustment of the tripoint by agreement would be a possibility, since the Court’s judgment expressly reserved Niger’s rights. This jurisprudence was followed in subsequent cases, such as the Territorial dispute (Libya v Chad, 1994),1716 in which there was one tripoint with Niger and another with   ICJ Reports 1986, 576–80, § 44 et seq.   Ibid, 577, § 46: ‘The Chamber also considers that its jurisdiction is not restricted simply because the endpoint of the frontier lies on the frontier of a third State not a party to the proceedings. The rights of the neighbouring State, Niger, are in any event safeguarded by the operation of Article 59 of the Statute de the Court, which provides that “The decision of the Court has no binding force except between the parties and in respect of that particular case”. The Parties could at any time have concluded an agreement for the delimitation of their frontier, according to whatever perception they might have had of it, and an agreement of this kind, although legally binding upon them by virtue of the principle pacta sunt servanda, would not be opposable to Niger. A judicial decision, which ‘is simply an alternative to the direct and friendly settlement’ of the dispute between the parties (PCIJ, Series A, No 22 p 13), merely substitutes for the resolution stemming directly from their shared intention, the solution arrived at by a court under the mandate which they have given it. In both instances, the solution only has legal and binding effect as between the States which have accepted it, either directly or as a consequence of having accepted the court’s jurisdiction to decide the case.’ 1715   Ibid, 579, § 49. 1716   ICJ Reports 1994, 33, § 63: ‘It is clear that the eastern end-point of the frontier will lie on the meridian 24° east, which is here the boundary of the Sudan. To the west, the Court is not asked to determine the tripoint LibyaNiger-Cchad; Chad in its submissions merely asks the Court to declare the course of the frontier “as far as the 1713 1714

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Sudan. It was the same in the case of the Land and maritime boundary between Cameroon and Nigeria (Preliminary Objections, 1998), with regard to a tripoint situated in Lake Chad.1717 In both these cases, the boundaries with the third States were already established. The ratio decidendi of the 1986 case could thus be applied on an a fortiori basis. This jurisprudence, which once again is favourable to the maintenance of the Court’s jurisdiction, is entirely to be approved. The boundary between the two States runs into, and stops at, the frontier (whether that frontier is determined or not) with the third State, which, in addition, is not bound by the Court’s judgment. This is sufficient to ensure that its rights will not be unlawfully affected. On the other hand, it is not a matter of deciding where the tripoint is (that is, the trilateral boundary) in an autonomous and legally binding manner. According to the Court’s reasoning, the interests of the third State are in no way the ‘very subject-matter’ of its decision. The bilateral boundary between the parties to the proceedings will end somewhere, at the third State’s frontier. If the Court were deciding the trilateral boundary, it would be making a decision directly respecting the rights of the third State. The Monetary Gold principle prohibits this unless that State consents. In short, the Court has shown itself to be less restrictive (that is, less deferential) with regard to obstacles to the exercise of its jurisdiction in the field of terrestrial delimitation compared with maritime. One of the reasons is no doubt the fact that in most cases terrestrial boundaries have been better established and better ‘known’. Also, the possible sites for the exact situation of a terrestrial tripoint are normally confined to quite small areas, and it is therefore more reasonable to suppose that Article 59 of the Statute will be a sufficient protection for the third State, to which the tripoint is not opposable (see the 1986 case). In cases on maritime delimitation, the encroachment would usually have related to large areas. Also, the terrestrial boundary in any given area derives from the doctrine of uti possidetis juris, or from some other predetermined treaty provision. The legal rules applicable to the determination are thus known. The situation as regards maritime delimitation is different, since the methods are more varied, as a function of the changing wills of the parties. In extending its jurisdiction and activities in this field, the Court would be more likely fifteenth degree east of Greenwich”. In any event the Court’s decision in this respect, as in the Frontier Dispute case, will . . . not be opposable to Niger as regards the course of that country’s frontiers (ICJ Reports 1986, p 580, para. 50).’ 1717   ICJ Reports 1998, 311–13, § 79–83. At § 79 (312) the text reads: ‘The Court observes that the submissions presented to it by Cameroon refer to the frontier between Cameroon and Nigeria and to that frontier alone. These submissions do not refer to the frontier between Cameroon and the Republic of Chad either as contained in the Additional Application of Cameroon or as formulated in the Memorial. Certainly, the request to “specify definitively the frontier between Cameroon and the Federal Republic of Nigeria from Lake Chad to the sea” (para 17 (f) of the Additional Application) may affect the tripoint, i.e. the point where the frontiers of Cameroon, Nigeria and Chad meet. However the request to specify the frontier between Cameroon and Nigeria from Lake Chad to the sea does not imply that the tripoint could be moved away from the line constituting the Cameroon-Chad boundary. Neither Cameroon nor Nigeria contests the current course of that boundary in the centre of Lake Chad as it is described in the “technical document on the demarcation of the . . . boundaries” mentioned in paragraph 65 above. Incidents between Nigeria and Chad in the Lake, as referred to by Nigeria, concern Nigeria and Chad but not Cameroon or its boundary with Chad. Any redefinition of the point where the boundary between Nigeria and Cameroon meets the Chad-Cameroon frontier could in the circumstances only lead to a moving of the tripoint along the line of the frontier in the Lake between Chad and Cameroon. Thus, the legal interests of Chad as a third State not party to the case do not constitute the very subject-matter of the judgment to be rendered on the merits of Cameroon’s Application; and therefore, the absence of Chad does not prevent the Court from proceeding to a specification of the border between Cameroon and Nigeria in the Lake.’ The Court also insisted on the fact that its reasoning was not binding on the third State: ‘Whether the location of the tripoint in Lake Chad has actually to be changed from its present position will follow from the judgment on the merits of Cameroon’s Application. Such a change would have no consequence for Chad (p 313, § 81).’



CONCURRENT TITLES OF JURISDICTION 583

to impose on third States not only maritime boundaries but also methods of delimitation. Considerations of this type explain the differences in the Court’s attitude to maritime and terrestrial delimitations. However, the distinction between the relevant areas to be delimited should not be supposed to be too cut and dried: hence, for example, maritime delimitation of territorial waters bears a stronger resemblance to terrestrial delimitation. It is also possible that, in a maritime delimitation further to seaward, the boundary with third States will already have been delimited. The relevant circumstances vary from case to case. However, the general rule is as follows: the smaller the creative input from the Court and the size of the areas in which third States have significant interests, the readier the Court is to exercise the jurisdiction conferred on it by the parties, in respect of the area as far as the boundary of the third State (or of the areas claimed by it) and vice versa.

10.  CONCURRENT TITLES OF JURISDICTION1718

Sometimes the Court has no jurisdiction over the merits because there is no applicable title of jurisdiction. Conversely, however, it can happen that the Court is faced with several titles of jurisdiction that, whether actually or potentially, apply concurrently. The situation of this kind that most frequently occurs in practice is when the Court has jurisdiction on the basis of both optional declarations and compromissory or jurisdiction clauses in treaties. We now turn our attention to the legal relationships between such concurrent titles of jurisdiction. The general principle applicable in such situations is that each title is autonomous and ranks equally with the others. They can be cumulated with a view to deciding the scope of the Court’s overall jurisdiction in the case. This rule – the implications of which we will shortly consider further – is, however, subject to two exceptions. First, it is possible for a title of jurisdiction to state expressly that it remains subordinate to another one, and that it will apply only on a subsidiary basis. It can also state that it is subject to the reservations in another title. In such a case, the State in question has created a hierarchy governing the various bases of jurisdiction applicable to it. It is entitled to do that since there is nothing legally to prevent it. The State can accept the Court’s jurisdiction either completely or in a more limited way, on the basis that, if you are entitled to do more, you can always do less. Second, the forum prorogatum remains automatically subject to the non-existence of a perfected title of jurisdiction. It will be remembered that the forum prorogatum presupposes the existence of some defect in the main title, creeping (so to speak) into the gaps and fissures left by a special agreement, a compromissory or jurisdictional clause, or an optional declaration. In all other cases, the forum prorogatum is superfluous. In other words, the forum prorogatum is, in itself, a subsidiary title of jurisdiction. Its remarkable flexibility enables it to come into play at any time so as to ‘save’ the jurisdiction, or at least some shred of it, when otherwise it would be lacking. Where there are several concurrent titles of jurisdiction, they do not cramp or limit each other’s effects: on the contrary, they complement and reinforce each other on a cumulative basis. The Court’s field of jurisdiction therefore corresponds to the sum of the titles of 1718   See H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’ in BYIL Part Ten, vol 70, (1999) 11 et seq.; and Rosenne, above n 1661, 952 et seq. See also R Szafarz, The Compulsory Jurisdiction of the International Court of Justice (Dordrecht/Boston/London, 1993) 33.

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jurisdiction applicable and invoked in the particular case. Each of them is capable of completing and breathing fresh life into every other one. In this way, the field to which a compromissory clause applies in conferring a jurisdiction confined to the interpretation or application of a treaty, might, for example, be enlarged by optional declarations enabling the Court to take cognisance, in the same case, of international law in its entirety. In such a case, it will be possible to avoid the difficult problem that arises where, for example, the subject-matter jurisdiction under a compromissory clause is excessively limited and fragmented. Supplemental titles of jurisdiction are not, however, necessarily applicable automatically, or of the Court’s own volition. The party wishing the jurisdiction to be enlarged can, in its own interests, invoke them before the Court. Each party can thus try to maximise the Court’s jurisdiction in light of its own needs and in light of its claims, by invoking the titles of jurisdiction it thinks helpful to its strategy, doing so either in the alternative or cumulatively. The scope of the Court’s jurisdiction will be determined by the titles of jurisdiction invoked. This principle affords the widest possible access to the Court, in the process giving further concrete effect to the oft-repeated maxim boni judicis est ampliare jurisdictionem. This principle that titles of jurisdiction are autonomous, cumulative, and equal in value, was first stated by the PCIJ in the case on the Electricity Company of Sofia and Bulgaria (Preliminary Objections, 1939). Two concurrent titles of jurisdiction had been invoked, namely optional declarations and a 1931 Treaty on conciliation, arbitration and judicial settlement. The two States that were parties to the proceedings had never envisaged that either of these titles would restrict the scope of the other. They had argued on the basis of the two titles of jurisdiction treated cumulatively, but then Belgium had a partial change of mind, which appears to have been confused and unconvincing.1719 This made it all the easier for the Court to conclude that: [T]he multiplicity of agreements concluded accepting the compulsory jurisdiction is evidence that the contracting Parties intended to open up new ways of access to the Court rather than to close old ways or to allow them to cancel each other out with the ultimate result that no jurisdiction would remain . . . the treaty cannot be adduced to prevent those [optional] declarations from exercising their effects and disputes from thus being submitted to the Court.1720

In other words, possible defects in the treaty clause did not ‘contaminate’ the Court’s optional clause jurisdiction. The two titles of jurisdiction were independent of each other, and, in this case, were treated as alternatives. Since that case, the Court has often returned to this principle, for example, in the case of the Territorial and maritime dispute (Nicaragua v Colombia, Preliminary Objections, 2007). The question arose in relation to certain islands. On this point, the Court had been obliged to refuse jurisdiction on the basis of the 1948 Pact of Bogotá. But could it, on a residual basis, found its jurisdiction on the parties’ optional declarations? The Court took advantage of the opportunity to reaffirm its doctrine.1721 Jurisdiction under the Pact did indeed not eliminate jurisdiction under the optional declarations. The Pact took precedence as a lex specialis, but it did not exclude other titles of jurisdiction (§ 133). The appli  PCIJ, Series A/B, no 77, 75.   Ibid, 76. 1721   See §§ 133–37. The key phrase is in § 136: ‘In the light of the above, the Court considers that the provisions of the Pact of Bogotá and the declarations made under the optional clause represent two distinct bases of the Court’s jurisdiction which are not mutually exclusive.’  1719 1720



CONCURRENT TITLES OF JURISDICTION 585

cable legal principle is that titles of jurisdiction are independent of each other. The multiplicity of commitments to the Court’s jurisdiction was testimony to the parties’ wish to open new lines of access to the Court, not to close old ones off, or to neutralise or restrict them (the Court referred to the Electricity Company of Sofia and Bulgaria, 1939, PCIJ, series A/B, no 77, 76). Consequently, reservations in one title of jurisdiction could not be transposed into another one. Similarly, an optional declaration deposited at the Registry of the Court is unnecessary to the functioning of Article 31 of the Pact of Bogotá, which contains its own arrangements for jurisdiction (§§ 135–136). In consequence, the restrictions applicable under Article 6 of the Pact – which exclude questions settled bilaterally, by judgment or by treaty – do not apply to jurisdiction under optional declarations (§ 137). The argument that a title of jurisdiction resulting from optional declarations has a higher value in the hierarchy than one deriving from a treaty, must be rejected. The argument rests on the proposition that optional declarations are part of the system of the Statute and Charter, and that they therefore benefit from the application of Article 103 of the Charter when considered in relation to any other international agreement. France made this argument in the Nuclear Tests cases in 1974, in an endeavour to obtain priority for the optional declarations over the head of jurisdiction under the General Arbitral Act. The argument is misconceived from a legal perspective because it is based on a false premise. In fact, both jurisdiction under the optional clause and jurisdiction under treaties have their roots in the Statute, at paragraphs 1 and 2 of Article 36. Treaties containing jurisdiction clauses are not therefore ‘any other international agreement’ within the meaning of Article 103 of the Charter. And in fact, optional declarations are not part of the Statute or the Charter either, but are autonomous unilateral undertakings based on those texts, exactly like treaties containing compromissory or jurisdiction clauses.1722 The principle that titles of jurisdiction are mutually independent, cumulative and equal in value, carries with it six additional consequences. First, it is not possible to transpose reservations in respect of one title of jurisdiction to another title unless there is an express stipulation making it possible.1723 It would, therefore, be impossible to argue that reservations in an optional declaration apply equally in the context of a compromissory or jurisdiction clause, or indeed vice versa. The titles of jurisdiction remain independent of each other, and in relation to each, the admissibility and other issues have to be assessed separately. When a title of jurisdiction is invoked, either the party doing so or its opponent (by way of reciprocity) can invoke the reservations attaching to it. This also applies as regards the various modalities for making reservations: they can be formulated at any time in relation to optional declarations, because the latter may be modified unilaterally (subject only to the giving of reasonable notice); but in 1722   See the very sound Dissenting Opinion jointly expressed by Judges Onyeama, Dillard, Jiménez de Aréchaga and Waldock, ICJ Reports 1974, 347, § 78. 1723   See the case on Armed boundary and transboundary activities (Nicaragua v Honduras, Jurisdiction and admissibility), ICJ Reports 1988, 82 et seq., especially at 85, § 36; and the Territorial and maritime dispute (Nicaragua v Colombia, Preliminary Objections), ICJ Reports 2007-II, 873, § 134, 137. The question had already arisen in the Nuclear Tests cases (1974), where France had argued that the reservations in the French optional declaration should prevail over other those in the General Arbitral Act of 1928. The Court did not have to deal with this point, but the French argument was nevertheless rejected by some of the judges: Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Waldock, ICJ Reports 1974, 346 et seq.; Dissenting Opinion of Judge G Barwick, ibid, 416 et seq. The problem had already come up in the case on the Appeal concerning the jurisdiction of the OACI Council, ICJ Reports 1972, 53, 60, India trying unsuccessfully to avail itself of a reservation in the optional declaration and to transfer it to the treaty containing the applicable compromissory clause. See also the Dissenting Opinion of Judge Basdevant in the Norwegian loans case, ICJ Reports 1957, 75–76.

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relation to treaties, reservations must be made not later than the moment of ratification or adherence to the treaty, unless accepted by all the other parties.1724 If it were permissible to invoke reservations in respect of optional declarations in the different context of compromissory or jurisdiction clauses in treaties, it would be too easy to get round the conditions applicable to the making of reservations in treaties – and thus to take illegitimate advantage of the other side’s good faith. This would be tantamount to a violation of treaty law. It would, moreover, amount to interpreting these clauses as containing an implicit renvoi to the optional declarations. Their autonomous character would thus be denied. In addition, a condition pregnant with consequences and as to which there is no trace whatever in the texts of the clauses, would be imported into them. Also, it is quite common for a treaty itself to indicate which reservations are admissible.1725 That is simply incompatible with the very idea of such a further renvoi, unless expressly stated. Second, the rule lex posterior derogat legi priori does not apply.1726 In any event, titles of jurisdiction remain in existence until either modified or terminated. It cannot therefore be argued that a more restrictive subsequent optional declaration is evidence of the State’s will to submit to the Court’s jurisdiction in a more limited way, so that a prior and more widely-worded compromissory clause must be considered to have undergone a kind of derogation (or vice versa). As to this question, the Court applies a presumption that the multiplicity of titles of jurisdiction reflects States’ willingness to open up new avenues to the Court door, not to close off older ones or to enable one title to cancel out the next. In this sense too, each title of jurisdiction is independent of the others. Here again we are witnessing the (highly justified) application of the principle boni judicis est ampliare jurisdictionem (or est preservare jurisdictionem). Third, a compromissory or jurisdictional clause in a treaty does not amount to a lex specialis enjoying priority over optional declarations, nor indeed vice versa..1727 The several titles of jurisdiction rank equally, subject only to the case of a forum prorogatum. It is enough to remember that all these titles derive from a treaty, the Statute of the Court, Article 36, paragraphs 1 and 2, and that the Statute places them on an equal footing. It is true that a special agreement can constitute a lex specialis as compared with compromissory or jurisdictinal clauses, or with optional declarations, but a special agreement does not do so per se. Everything depends on the attitude of the parties. If they notify the special agreement and proceed before the Court solely on the basis of it, even when they are also bound by optional declarations, then they are demonstrating their wish to come to Court solely on the basis of the special agreement. The Court will not of its own volition invoke any other title of jurisdiction. Usually, in these cases the Court’s subject-matter jurisdiction cannot be enlarged by other heads, since a special agreement will normally already enable the Court to apply all relevant rules of international law. If that were not to be the position, if the special agreement allowed only a partial application of the relevant rules of international law, and if a party unhappy about that were timeously to invoke applicable optional declarations, the Court could indeed enlarge its jurisdiction on that basis. There would be a problem about that only if the parties to the special agreement had included in it a provision expressly agreeing not to bring in any additional head of jurisdiction. In that case, one of the parties would be breaking the agreement. The Court would obviously not be bound   This aspect is noted also in the Dissenting Opinion of Judge G Barwick, ICJ Reports 1974, 417.   As, for example, Art 39 of the General Arbitral Act of 1928. 1726   cf PCIJ, Series A/B, no 77, 76, in the Electricity Company case. 1727   See also the passage referred to in the preceeding footnote. 1724 1725



CONCURRENT TITLES OF JURISDICTION 587

by the agreement since it is from the Court’s perspective res inter alios acta. Nevertheless, it might hesitate, as an organ of international law, to give effect to so flagrant a violation of the pacta sunt servanda rule, committed in respect of an agreement which Article 38 paragraph 1(a) of the Statute obliged the Court to apply. Finally, it is also possible to imagine the parties to a bilateral agreement modifying, or providing for the modification of, the effects of their respective optional declarations in a particular case, such agreement taking effect inter partes.1728 Here too, it is difficult to see how the Court could fail to give effect to such an agreement freely entered into, unless of course it were incompatible with the Statute. Nor could it be argued that the modification failed to comply with the due forms for modifying an optional declaration, since no modification would be involved. A normal modification would necessarily be valid generally for the future, and would apply erga omnes. That is not the position in the case we are now considering where all that happens is that, for the purposes of one particular case, the optional declarations are sidelined or subjected to a derogation. Having said all that, it is also worth noting that most treaties have for a long time provided rather the opposite, that is, that the treaty regime does not prejudice other bases of jurisdiction, notably optional declarations.1729 In a whole series of cases, the Court has applied more than one title of jurisdiction, using them in parallel for various aspects of the case. An example is the case on Military and paramilitary activities in and against Nicaragua (1984–86), with its optional declarations and the compromissory clause in the 1956 Treaty of Friendship, Commerce and Navigation.1730 The optional declarations could have been sufficient to give the Court jurisdiction in relation to the Treaty. But the Court relied on the compromissory clause, which was invoked by Nicaragua. In the Court’s view, it was more natural to give it direct effect than to exercise jurisdiction in relation to the Treaty through the indirect means of Article 36, paragraph 2 of the Statute. For the part of the dispute that related to the Treaty, the Court’s preference was to apply the compromissory clause. This represented a reasonable decision to prefer the more ‘special’ of the titles of jurisdiction. Doing so involved no legal derogation from the other, more general, title. So this was not an application of the maxim ‘lex specialis derogat legi generali’. The Court made a free choice, in light of a reasonable interpretation, and in line with the applicant’s argument. The Court was not bound by a rigid principle requiring it to apply the lex specialis. Indeed that principle, enshrined in the maxim, was inapplicable. Fourth, if two (or more) heads of jurisdiction, being equal in scope, are invoked by a party, the Court is free to choose between them. Naturally, the Court would fgirst have to analyse meticulously whether they were truly equal, which would mean checking not only their subject-matter (or material) scope, but also whether different reservations were applicable to them, or whether there was some other reason for them to be applied differentially. ‘Perfect equivalence’ is particularly likely to occur in cases where one title of jurisdiction refers to another in such a way as to align their applicability. That is the position under Article XXXI of the 1948 Bogotá Treaty on the settlement of disputes which, to fix subject-matter jurisdiction, refers to Article 36, paragraph 2 of the Statute of the Court. In the case on Armed boundary and transboundary actions (Nicaragua v Honduras, Jurisdiction and admissibility, 1988), the Court was thus easily able to choose Article XXXI 1728  See the message from the Swiss Federal Council published in Feuille fédérale, vol I (1921) 380–81 (Bundesblatt 1921, vol I, 321). 1729   cf Hudson, above n 1662, 474. 1730   See particularly, ICJ Reports 1984, 397 et seq., 426 et seq.

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of the Treaty as the basis of its jurisdiction, since it afforded the same scope as the optional clause regime.1731 In cases such as this, where the titles of jurisdiction are aligned, it may indeed be difficult to distinguish clearly between them.1732 Fifth, if in a particular case a plurality of heads of jurisdiction apply in a concrete way, the Court is free to choose the order in which it examines them with a view to determining their scope.1733 Also, if the Court concludes that there are in existence several titles invoked conferring the same concrete degree of jurisdiction, then the Court is free to choose between them. If the titles are not equal in scope, but are all applicable in parallel, the Court can apply the widest in scope.1734 The field of jurisdiction is thus ascertained by cumulating the applicable titles. If one comprises the same content as all the rest, and goes beyond them, then, both logically and in practice, it takes priority logically by inclusion, practically because this affords a certain procedural economy. If each title enables the exercise of jurisdiction in certain fields not completely covered by the others, they are applicable simultaneously, conferring their sum total of jurisdiction on the Court. Each time, the Court must indicate the title of jurisdiction on which it is basing itself for the purpose of deciding the merits of a particular question, because it is for the Court, given that jurisdiction has to be conferred upon it by the parties, to establish that jurisdiction clearly. If there is a plurality of titles of jurisdiction, each of them subject to relatively specific reservations, the question of their application, whether cumulatively or in the alternative, can be a complex one. An example of this is to be found in the Borchgrave case (1937), which – from this point of view – unfortunately was ended by discontinuance. In that case, there were four potential titles of jurisdiction that could have applied, each time as a function of the regime for the particular title: the 1928 General Arbitral Act; the 1927 Treaty on Settlement of Disputes between the parties; the parties’ optional declarations; and a special agreement (which did not prevent the parties’ invoking other titles before the Court).1735 Sixth, one needs to be mindful of the fact that one consequence of the principle of mutual independence is that the existence of a compromissory clause or other title of jurisdiction does not limit the right of an international organisation to seek an advisory opinion from the Court, assuming of course that the organisation in question duly enjoys that right. In the case on Reservations to the Convention against genocide (1951), it was emphasised that the existence of a compromissory clause in Article IX of the Convention did not prevent the General Assembly from seeking an advisory opinion on questions covered in the treaty.1736 The compromissory clause was not, legally, the only way of seising the Court on questions relating to the treaty. The principle of the mutual independence of titles of   ICJ Reports 1988, 90, § 48.   Ibid, 82–85. 1733   The Court exercised such a free right in the Armed actions case of 1988 and it was referring to that at § 133 (872–73 of the Reports) in the Territorial and maritime case (Nicaragua v Colombia, Preliminary Objections, 2007): ‘The Court recalls that in the Armed Actions case it stated that, “. . . [s]ince in relations between the States parties to the Pact of Bogotá, that Pact is governing, the Court will first examine the question whether it has jurisdiction under Article XXXI of the Pact” (Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, ICJ Reports 1988, p 82, para 27; emphasis added). However, this cannot be interpreted in any way other than that the Court, faced with the two titles of jurisdiction invoked, could not deal with them simultaneously and decided to proceed from the particular to the more general, without thereby implying that the Pact of Bogotá prevailed over and excluded the second title of jurisdiction, namely the optional clause declarations.’ 1734   Subject, as we have just seen (Nicaragua case, 1984–1986, at (iii) above), to maintaining a title which was in some respect more ‘special’, like the compromissory clause in the Friendship Treaty of 1956. 1735   cf Hudson, above n 1662, 475–76. 1736   ICJ Reports 1951, 19–20. 1731 1732



‘TRANSITIONAL’ JURISDICTION 589

jurisdiction and access routes to the Court also applies in this respect to advisory proceedings. To sum up, it is for parties themselves to choose the titles of jurisdiction they intend to rely on. The Court, for its part, insists on the independence and equality of titles, in particular refusing to allow restrictions on its jurisdiction in one title to affect its jurisdiction under another. Quite the reverse, titles can be cumulated so as to enlarge the Court’s overall jurisdiction. Also, the Court has the right to act quite flexibly in selecting one title of jurisdiction rather than another, if both give it the same measure of jurisdiction. Where there is a considerable plurality of titles, as in the Borchgrave case cited above, it can become necessary for the Court to analyse the various heads of its jurisdiction in depth, before deciding which ones to base itself on when dealing with each particular substantive issue.

11.  ‘TRANSITIONAL’ JURISDICTION UNDER ARTICLE 36, PARAGRAPH 5, AND ARTICLE 37 OF THE STATUTE1737

a)  General Considerations There was a danger that, in passing from the old PCIJ to the new ICJ, a number of old titles of jurisdiction would be annulled. That would have been most unfortunate. Optional declarations or compromissory/jurisdictional clauses referring to the PCIJ could not simply be treated as per se legally equivalent to titles of ICJ jurisdiction. There was indeed no ‘universal succession’ from the PCIJ to the present jurisdiction. Legally speaking, therefore, the ICJ was a new and autonomous court of justice.1738 References to the jurisdiction of the old PCIJ could not, therefore, automatically come into play as bases for the new Court’s jurisdiction. Essentially, there were two possible ways of transferring the old court’s assemblage of jurisdictions to the new one. One possibility was to review and revise all the old clauses and treaties, in each case replacing the reference to the PCIJ with the ICJ. This would have been extremely time-consuming and burdensome. It might also have become complicated if, for example, certain States declined to ratify the necessary treaty amendments or simply remained inert. The other solution was to insert a general clause into the Statute, effecting the change by providing that references to the PCIJ in older titles of jurisdiction should now be read and construed as referring to the ICJ. This was a more elegant and economical solution, which is why it was eventually chosen. The draftsmen of the ICJ Statute achieved this objective by means of two provisions. Article 36, paragraph 5 of the Statute is concerned with optional declarations, and Article 37 of the Statute with jurisdictional provisions in treaties. Article 36, paragraph 5 reads as follows: Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be 1737   On this problem, see Tomuschat ‘Article 36’, above n 1661, 641–42; B Simma and D Richemond, ‘Article 37’, in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 659 et seq. (with bibliography); Thirlway, above n 1660, 72 et seq.; Rosenne, above n 1661, 677 et seq., 745 et seq.; Dubisson, above n 1663, 156–57, 177 et seq. 1738   See above ch II section 2.

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acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.1739

Article 37 reads: Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.1740

These two provisions, tightly interconnected as they are, provide for the transition from the PCIJ to the ICJ. The transition was not necessarily going to be a momentary matter; in fact it has proved to be a long-lasting affair. So long as there continue to be pre-war treaties referring disputes to the PCIJ, or optional declarations of indefinite duration originally made under the PCIJ regime and not since renewed, a State can invoke them before the ICJ, and the transitional provisions will then apply. This is still the case today and will be so for an unforeseeable time in the future. The transitional provisions do not constitute an autonomous title of jurisdiction. They cannot be invoked on a free-standing basis so as to give the Court jurisdiction. A State invoking them needs to produce a formal title of jurisdiction dating from the pre-war period, and then to invoke Article 36, paragraph 5 or Article 37. If the transitional provisions are not invoked by the State, the Court can and must do so motu proprio. In subject-matter (material) terms, these two provisions show the desire for as perfect and smooth a continuity as possible in the transition from the PCIJ to the ICJ. Legally, they are made necessary by the recognition of the fact that the two courts are not identical, that is, by the absence of a universal succession from the old one to the new one. In teleological terms, they rest on the desire to bypass that problem and to use the treaty mechanism to reinstate the ideal of unity between the two courts. The objective of both provisions is thus to ensure that the transition results in the fewest possible losses of and alterations to titles if jurisdiction. The provisions must therefore be interpreted in this spirit, which is a more important guide to their drafting even than the actual words used. Few of the countless rules and provisions of international law so heavily reflect their underlying purpose and object, to the point where, in a sense, one should look first to the underlying normative objective, and only then to the normative wordings. It is unlikely that nowadays any particularly difficult problems will arise in relation to these transitional provisions, not only because the provisions themselves are now so old, but also because, since they were adopted, the ICJ has done much to define the relevant law in a sensible way. Also, although there are still a whole series of pre-war treaties containing compromissory clauses applicable under Article 37, nowadays there are only a rare few remaining optional declarations that could be invoked before the Court under Article 36, paragraph 5, namely those of Luxembourg and of six Latin American States, including Nicaragua and Uruguay. All these optional declarations are based on terms and situations 1739   The corresponding French text reads: ‘Les déclarations faites en application de l’Article 36 du Statut de la Cour permanente de Justice internationale pour une durée qui n’est pas encore expirée seront considérées, dans les rapports entre parties au présent Statut, comme comportant acceptation de la juridiction obligatoire de la Cour internationale de Justice pour la durée restant à courir d’après ces déclarations et conformément à leurs termes.’ 1740   The corresponding French text reads: ‘Lorsqu’un traité ou une convention en vigueur prévoit le renvoi à une juridiction que devait instituer la Société des Nations ou à la Cour permanente de Justice internationale, la Cour internationale de Justice constituera cette juridiction entre les parties au présent Statut.’



‘TRANSITIONAL’ JURISDICTION 591

that are nowadays legally clear. So it is possible to say that the application of Article 36, paragraph 5, is unlikely to be a source of interesting future jurisprudence. In this respect the transition period is over, leaving in its wake a lively, subtle and rather angular body of jurisprudence. At first sight it is impossible not to be surprised that the application of these two provisions should have given rise to difficult legal questions, and that the Court, in applying them, seems to have been less than sure-footed. Overall, and especially in the context of Article 36, paragraph 5, the Court, between the key case at the end of the 1950s and the Nicaragua case of the 1980s, has moved from a more restrictive and textual view to a more extensive and teleological one. There can be no doubting that the more liberal view of the 1980s better reflects the draftsmen’s original intentions. As already noted, the intention and purpose underlying these rules counts for more than the more fortuitous elements of the drafting and the meanings that commentators sometimes detect hidden in the interstices of the texts. From another perspective, the jurisprudence we are about to analyse is a fine example of rich and subtle judicial reasoning, evoking not only admiration but even a measure of aesthetic pleasure in those (invariably jurists) who are in a position to appreciate it fully.

b)  Article 36, paragraph 5 The normative content of this provision was clarified in three leading cases between 1959 and 1984. The jurisprudence on its twin provision, Article 37, also had an influence on the interpretation of Article 36, paragraph 5, since the two provisions share, each in ordine suo, the same raison d’être and the same ratio legis. i) In the case on the Aerial incident of 27 July 1955 (Israel v Bulgaria, Preliminary Objections, 1959),1741 Bulgaria, cited by Israel before the Court, raised a Preliminary Objection based on the field of application of Article 36, paragraph 5. Bulgaria claimed that Article 36, paragraph 5 did not apply to the Bulgarian optional declaration of 1921, which, it said, had ceased to be in force as from the moment the PCIJ was dissolved in 1946. It was thus not in force, as required by Article 36, paragraph 5 (‘and which are still in force’), at the time Bulgaria became a Member of the United Nations and consequently a party to the Statute, in 1955. The Court took the view that the transitional régime under Article 36, paragraph 5 was aimed at, and applied only to, States which were original Members of the UN, and not to those subsequently admitted as Members.1742 The Court’s reasoning was complex, beginning by recognising that the wording of the provision did not, in itself, resolve the problem. The Court then stated that the principle of the transfer clearly did apply to States that were signatories to the Charter/Statute, since, at that time, they knew the positions as regarded their optional declarations and knew what they were undertaking to transfer. The same, however, could not be said of States admitted to membership 1741   On this case see: LC Caflisch, ‘The Recent Judgment of the International Court of Justice in the Case Concerning the Aerial Incident of July 27 1955, and the Interpretation of Article 36(5) of the Statute of the Court’ (1960) 54 AJIL 8 et seq.; G Conac, ‘L’affaire relative à l’incident aérien du 27 juillet 1955 entre Israël and la Bulgarie devant la ICJ’ (1960) 64 RGDIP, 711 et seq.; JP Cot, ‘L’affaire relative à l’incident aérien du 27 juillet 1955’ (1959) 5 AFDI 291 et seq. See also L Gross, ‘Bulgaria Invokes the Connally Amendment’ (1962) 56 AJIL 357 et seq. 1742   ICJ Reports 1959, 136 et seq.

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subsequently. For them, the disappearance of the PCIJ and adherence to the ICJ were not two concomitant facts. Therefore, Article 36, paragraph 5 was, for them, res inter alios acta, at a time when they were not yet parties to the Statute. Prior to their admission to the UN, the provision could not affect them, and in particular it could not maintain in force their old optional declarations vis-à-vis the PCIJ. After they were admitted to the UN, it could thus not have the effect of reinstating a declaration which had lapsed with the disappearance from the scene of the PCIJ. The aim of Article 36, paragraph 5 was only a limited one, namely to regulate the transitional situation for those States which, parties to the PCIJ system, were engaging with the new ICJ system at the time the Charter was adopted. For States adhering to the new system later, there simply was no transitional situation at all. In the Court’s view, the travaux préparatoires, in so far as they dealt with the subject, confirmed the Court’s reading of the text. And for the Court it was true that, in the preparatory committees that did the drafting, this restrictive reading of the provision, limiting its effect to the States that were actual signatories of the Charter, was not disputed. The same restrictive view can also be found in the reports delivered at the preparatory stage. Also, the principle that the Court’s jurisdiction requires consent led to the same conclusion: to argue that a non-signatory of the Charter had consented to the transition to the ICJ, by the simple fact of being admitted to the United Nations, amounted to turning its request for membership into an express declaration under Article 36, paragraph 2 of the Statute. It followed that Article 36, paragraph 5 could not have had any effect at the time Bulgaria was admitted to the United Nations. The Bulgarian optional declaration of 1921 was no longer in force, because the PCIJ had been dissolved. In 1955 there was nothing to transfer. It would have been necessary to revive the old declaration first, but Article 36, paragraph 5 neither provided for this nor intended it. The Court therefore decided, by 12 votes to four, that it had no jurisdiction over the merits. A joint Dissenting Opinion of Judges H Lauterpacht, Wellington Koo and P Spender put the contrary view with magisterial force and clarity.1743 Their arguments were just as complex and nuanced as the majority view. Their position was based on the objective and purpose of the provisions, and enriched with arguments for equal status among all Members of the United Nations, whatever date they joined. The dissenting judges began by arguing that the Court had not so much interpreted Article 36, paragraph 5, as amended it, by adding two conditions that did not appear in the text: first the declaring State must have participated in the San Francisco Conference, and must have been a signatory of the Charter; and second it must have become a party to the ICJ Statute prior to the dissolution of the PCIJ. Contrary to the majority view, the expressions ‘which are still in force’ or ‘pour une durée qui n’est pas encore expirée’ referred not to the dissolution of the PCIJ but to the duration of the period during which the optional declaration in itself remained in force. The majority interpretation was incompatible both with the text of the provision and with its object and purpose, which were to ensure that, so far as possible, there was continuity between the two jurisdictions, and that as few as possible of the existing acceptances of the PCIJ’s jurisdiction lapsed and were ‘lost’. The main thing shown by the travaux préparatoires was the primacy of this concern to preserve continuity. The text of Article 36, paragraph 5 was clear, and made no distinction between signatories and non-signatories. On the contrary, both the Charter and the Statute applied equally to all Members of the United Nations. They were all on a footing of equality as regarded the continuity of titles of juris  Ibid, 156 et seq.

1743



‘TRANSITIONAL’ JURISDICTION 593

diction. Absent any contrary provision, the principle that Members had equal rights and obligations remained a fundamental one. So, as regards non-signatories, the effects of Article 36, paragraph 5 were simply postponed until the moment of their admission. This view was confirmed by the travaux préparatoires.1744 And in fact, if the majority’s interpretation were truly the right one, it would lead to an inconsistency with Article 37 of the Statute. There could be no doubting the fact that the treaties it contemplated had survived the dissolution of the PCIJ. The expressions ‘in force’ or ‘durée non expirée’ had the same meanings in both these provisions. Consequently, if a State became a party to the Statute at a time when its declaration had not yet expired, it should be accepted that the transitional provisions did thereupon come into operation. The minority judges further emphasised the principal object and purpose of the provision in the following terms: ‘The governing principle underlying paragraph 5 is that of the automatic succession of the International Court of Justice in respect of the engagements undertaken by reference to the Statute of the Permanent Court’.1745 In short, for the Court (that is, the majority), the old declarations lapsed when the PCIJ was dissolved. The only way of saving them was to become a signatory of the Charter as from that moment, so that the transitional provisions thereupon came into play under Article 36, paragraph 5. In all other cases, the declaration lapsed and there could be no continuity. For the minority, on the other hand, Article 36, paragraph 5 applied to every party to the Statute, whatever date it gave its adherence. The provision so worked as to transfer the old declaration to the new Court if the old declaration was still in force in terms of the duration contemplated in its own terms. The only thing that was actually impossible was to revive an old declaration that had already expired by the time the declaring State became a party to the ICJ Statute. It is easy to see that the minority opinion was much the closer of the two to the object and purpose of continuity that underlay the adoption of Article 36, paragraph 5. The majority argument was, in truth, specious and misconceived in almost every particular. The assertion that the text was unclear was a dubious one, yet that assertion led the majority straight off in the direction of a restrictive interpretation, by bringing in the distinction between signatory and non-signatory States that was so contrary to the general objective of continuity. To so interpret Article 36, paragraph 5, without any support from the text itself, as to transform it into a special provision for Charter signatories only, rather than leaving it to apply to all parties to the Statute, was remarkable in itself, making this the only provision in the entire Statute that is thus restricted ratione personarum. The majority view, that the dissolution of the PCIJ was the critical date for the application of Article 36, paragraph 5 when, manifestly, the draftsmen did not wish that to be the decisive date, was equally remarkable. The only critical date it is reasonable to identify is the expiration of the declaration itself. The Court also stated that the travaux préparatoires ‘confirmed’ its reading of the text.1746 But, when one looks more closely, one sees that this ‘confirmation’ amounted to very little. First, a restrictive reading of Article 36, paragraph 5 of the Statute (restricting it to signatories of the Charter), by the Australian delegate, was not specifically challenged in the drafting committees.1747 This, however, was hardly a convincing point, since it is usual for such conferences to pass in silence a whole host of isolated expressions   Ibid, 179 et seq.   Ibid, 168. 1746   Ibid, 140–41. 1747   Ibid, 141. 1744 1745

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of opinion, without troubling to refute each and every one of them specifically. In fact, the Court itself instanced various statements in which delegates expressed general positions that can be interpreted in several different ways.1748 The majority judges were in fact so conscious of the weakness of their argument from the travaux that the majority judgment immediately followed up with a highly significant argument: ‘Finally, if any doubt remained’,1749 it would, according to the majority judgment of the Court, be resolved by the context within the wording of the provision. This amounted to saying that the Court was well aware that doubt would, indeed, be left in the mind of the reader. Be that as it may, in these circumstances the travaux were being hijacked, in a way that was both furtive and to some extent ‘ideological’ in support of the result the majority wanted to arrive at; whereas, in reality, they rather undermined the Court’s view. The sleight of hand consisted of using travaux which, overall, were unfavourable to the Court’s argument, as if, here and there, they supported it, and for the rest were not clearly unfavourable. One can only regret this error by the Court (no other word is possible): perhaps it can be explained as an expedient adopted to enable the Court to avoid deciding the substantive issues of a case that was a delicate one in the cold war context. It is astonishing that highly aware authors have, even quite recently, praised a decision which was so gravely, and indeed obviously, wrong.1750 ii)  The Court returned to Article 36, paragraph 5 in the case of the Temple of Preah Vihear (Preliminary Objections, 1961).1751 Thailand had accepted the jurisdiction of the PCIJ in a declaration dating from 1929. The declaration was initially for 10 years, but was renewed in 1940 and again in 1950. Thailand argued that the decision in the Aerial incident of 1959 (which, for the reasons we have seen, was frankly a bad one), showed that in fact there had been no basis for the 1950 renewal. Thailand had not been a founding member of the UN in 1945; it had become a member in December 1946, by which time the PCIJ had already been dissolved. Consequently, Thailand’s argument ran, no jurisdiction could have been transferred to the ICJ from the PCIJ. In this case, the Court began by distinguishing the 1959 judgment on the Aerial incident. The Court stressed that Article 36, paragraph 5 did not apply where there was a new, voluntary and express act on the part of the declaring State, such as Thailand’s act in 1950 recognising the Court’s jurisdiction, which at that date could only have meant the ICJ, since the PCIJ no longer existed. The applicable law was not formalistic as regarded the manner in which States expressed their will to accept the Court’s jurisdiction by an optional declaration. The Court concluded: To sum up, when a country has evinced as clearly as Thailand did in 1950, and indeed by its consistent attitude over many years, an intention to submit to the compulsory jurisdiction of what constituted at the time the principal international tribunal, the Court could not accept the plea that this intention had been defeated and nullified by some defect not involving any flaw in the consent given . . .1752

This was a unanimous decision, and left no room for doubt. If Thailand’s argument had been accepted, it would have amounted to allowing that State to contradict its own act, to 1748   Indeed, the dissenting judges gave a diametrically opposite reading to the travaux, a reading which seems altogether better conceived: Collective Dissenting Opinion of Judges H Lauterpacht, Wellington Koo and P Spender, ibid, 179 et seq. 1749   Ibid, 142. 1750   See, eg Tomuschat, ‘Article 36’, above n 1661, 641. 1751  ICJ Reports 1961, 17 et seq. On this case, see: JP Cot, ‘Affaire du Temple de Préah Vihéar’ (1961) 7 AFDI, 229 et seq. 1752   ICJ Reports 1961, 34.



‘TRANSITIONAL’ JURISDICTION 595

breach the legitimate expectation and trust of other States, and to profit from the abuse of its rights constituted by its denial of the manifest meaning of the 1950 document. iii)  In the case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility, 1984),1753 the Court, faced with a problem that was still a new one in relation to the two precedents of 1959 and 1961, liquidated its unfortunate inheritance from 1959 in a definitive way, in the process adopting almost all of the dissenting minority opinion in the 1959 case. Already in the interim, in the Barcelona Traction case, which will be analysed in light of Article 37 of the Statute, the Court had reorientated itself in relation to the 1959 ‘accident’. In 1984, the Court began by noting that Nicaragua had sent an optional declaration to the League of Nations in 1929, subject, however, to subsequent ratification. The declaration entered into force in that year, the date it was received by the League’s Secretary-General, since no particular formalities were required. However, the declaration was still not binding at that time, because the instrument of ratification had still to be received. Nicaragua could have delivered one at any time. There were reports that the instrument was in fact sent during the war, but lost at sea in the Atlantic.1754 The declaration was not valid for any specific time, and was thus indefinite in duration, unless and until withdrawn by Nicaragua. It was, as already noted, valid, but not binding; to become binding, it required a further unilateral act by Nicaragua, namely ratification. In the meantime, it had a certain status and a potential effect. But could that potential effect be maintained temporally by the effects of Article 36, paragraph 5?1755 In other words, was Article 36, paragraph 5 capable of transferring to the new Court only perfected declarations that were unexpired, or did it also apply to unperfected ones, preserving their particular effects too? The Court rightly opted for the latter interpretation. It began by distinguishing the present case from the Aerial Incident case of 1959:1756 in that case the question had related to a perfected optional declaration, whereas now the Court was considering a defective one; in that case the State concerned had become a party to the Statute only long after the dissolution of the PCIJ, whereas that was not the case now. The Court then straight away turned in the direction of a liberal interpretation, just as in 1959 it had set out towards a restrictive one. It now decided that a binding optional declaration in due and proper form was not necessary to the application of Article 36, paragraph 5 because the text contained no such restriction and the travaux préparatoires showed that it had not been suggested. In addition, there was the fact that the French delegation had proposed to translate the English expression ‘still in force’ by ‘pour une durée qui n’est pas encore expirée’ (literally, for a duration which has yet to expire), which seemed to indicate a wish to give the phrase a wider meaning. The Court followed up with the decisive teleological argument, that the object 1753  See ICJ Reports 1984, 403 et seq. See in this regard, among others: C Lang, L’affaire Nicaragua/Etats-Unis devant la Cour internationale de Justice (Paris, 1990) 55 et seq. See also HW Briggs, ‘Nicaragua v United States: Jurisdiction and Admissibility’ (1985) 79 AJIL 374. The Court’s analysis is supported and approved in the very meticulous study by DW Greig, ‘Nicaragua and the United States: Confrontation Over the Jurisdiction of the International Court’ in BYIL, vol 62 (1991) 123 et seq. 1754   ICJ Reports 1984, 399–400. 1755   An insufficiently aware observer might well have asked why it was so important to deal with this potential effect. Would it not be enough for Nicaragua to lodge and ratify a new optional declaration? But in the meantime, the USA had withdrawn its optional declaration. There would therefore have been the difficulty of knowing whether the Court’s jurisdiction could have continued until the deposit of the fresh declaration. For that to have been the case, it would have been necessary to impose a notice period needing to elapse before the withdrawal took effect. One can see why Nicaragua wanted to avoid these issues. 1756   Judge Ago thought the Court had decided the matter too quickly: Independent Opinion of Judge Ago ICJ Reports 1984, 525.

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and purpose of Article 36, paragraph 5, the essential concern of the Statute’s draftsmen, had been to maintain the greatest possible degree of continuity between the PCIJ and the ICJ (§ 32). Anything tending towards a restrictive interpretation contrary to that general objective would have needed to be expressly indicated in the text, which in fact said nothing of the kind (§ 34). Therefore, the object and purpose indicated that a wider interpretation was the right one, wide enough to cover the partial effects of an unperfected declaration. The Court also noted that this was how the relevant international bodies had interpreted Nicaragua’s position, as the ICJ’s Yearbooks showed. They mentioned Nicaragua as a State bound by an optional declaration. They were not authoritative in themselves, but they nevertheless supported the Court’s interpretation. Besides, Nicaragua had never protested against being classified as a State that had subscribed to the optional clause. Its silence in the face of these consistent public statements was equivalent to acquiescence (§ 39). Finally, there was the fact that no other State had protested against Nicaragua’s being listed as a State bound by the system of the optional clause (§ 40). Certain judges disagreed. For the German Judge Mosler, Article 36, paragraph 5 applied only to perfected declarations that were in force.1757 To reconcile the French and English texts, he thought the stricter of the two should be followed, because only that way could there be common ground between the two versions. The 1929 declaration, being not yet in force, could not be transferred to the ICJ. Judge Ago likewise dissented.1758 In his view, the optional declaration could have no legal effect unless and until ratified. Also, the Court had not, in his view, in interpreting the English and French texts of the Statute, attempted to reconcile them, as required by Article 33 of the 1969 Vienna Convention on the Law of Treaties. On the contrary, it had given priority to the French text. In any event, Article 36, paragraph 5 could not be interpreted as providing for the continuation of declarations which had never had any legal effect under the PCIJ Statute. Nor could that have been the draftsmen’s intention. What they wished to do was to preserve the acquis, the jurisdictional rights that had been acquired, but that meant truly acquired, thus applying to optional declarations that produced legal effects. Judge Jennings shared this view.1759 The Court’s interpretation had in his view created a new obligation where none had previously existed. The Court had not ‘transferred’ to itself a legal obligation that actually existed. Judge Jennings added to the points made by Judges Mosler and Ago, saying that the Court’s decision in the 1959 Aerial Incident case applied in the present case on an a fortiori basis. If, for a State which did not sign the Charter at the time, a perfected obligation came to an end with the dissolution of the PCIJ, then a fortiori an optional declaration which had never actually created a legal obligation could not be carried over to the ICJ. Finally, Judge Schwebel made the same argument, but with a greater wealth of analytical detail.1760 The Court’s decision on this point was thus far from unanimous. We have already indicated that we do not agree with these criticisms. To say that it is impossible to transfer a declaration that has not had a ‘legal effect’ is to put the question in an inappropriate way, and in fact begs the question. It was obvious that Nicaragua’s declaration did not have the ordinary legal effect of a declaration, because it had not been ratified. The question was whether an effect that was potential, and thus for the time being only a minor one – the right to perfect the declaration by simple ratfication – could itself be   Ibid, 462 et seq.   Ibid, 518–25. 1759   Ibid, 536–39. 1760   Ibid, 569 et seq. 1757 1758



‘TRANSITIONAL’ JURISDICTION 597

transferred. The draftsmen had clearly not actually addressed their minds to this relatively unusual scenario. The way to resolve the question was to focus on the object and purpose of the provision in question, that is, to treat the new Court as identical to the old one as regards jurisdiction and to accept ‘all’ the old legal positions into the context of the new Court. It is also misleading to claim that the Court thus created a new obligation, which manifestly it did not. All the Court did was to transfer the potential effect, the Anwartschaft, that was already in existence. Nor is it in our view convincing to invoke Article 33 of the Vienna Convention on the Law of Treaties. This provision – which anyway is not entirely satisfactory – should not be interpreted as imposing a formalistic, artificial and perfectly equidistant interpretation of the respective texts, even if this might lead to a result bordering on the absurd, or contradict the draftsmen’s intentions. If the text, in one language, gives what is clearly better expression to the legislator’s will and to the object and purpose of the provision, it should be given preference. The interpretation of a rule is first and foremost an exercise in establishing some normative truth, not a diplomatic balancing act. In short, in our view the minority judges displayed an excessively rigid attitude. It took insufficient account of the particular facts of the case, in which, in substance, Article 36, paragraph 5 was applied by analogy to a situation that could not have been foreseen. Looking back on this unusual jurisprudential zigzag, one can only marvel at the way reality presents questions for the Court to resolve. Such questions far surpass what the legislators foresaw and provided for. In 1959 that Court had to decide whether Article 36, paragraph 5 applied to States that had not been uninterrupted parties to the Court’s Statute, the dissolution of the PCIJ having (arguably) abrogated their optional declarations. In 1961, the Court had to consider the legal significance and value of the renewal of an optional declaration in favour of the old PCIJ, at a time when it had already been dissolved, and when the declaring State was already a party to the Statute. And then in 1984, the Court was presented with the most colourful question of all, whether the partial legal effect resulting from a declaration minus quam perfecta was transferred to the new Court by analogy, under Article 36, paragraph 5 in the same way as a perfected declaration would have done. Under what was, in teleological terms, the summum principium inspiration for Article 36, paragraph 5, that is, the concern to preserve and, so far as possible, to transfer to the ICJ, the legal positions previously in place in relation to the PCIJ, so as to avoid a break in legal continuity, the Court ought, on each of these three occasions, to have held that it had jurisdiction. It did so in 1961 and in 1984, with arguments which at first were unattackable (1961) and then robust (1984); but it failed to do so in 1959. Probably the better view is that the 1959 precedent has been repudiated by the subsequent jurisprudence. It is on any account unlikely that the question will resurface in the future. From the perspective of the unrivalled opportunities for the display of legal erudition presented by Article 35, paragraph 6 – but from that perspective alone – one can only regret this.

c)  Article 37 Article 371761 deals with compromissory and jurisdictional clauses in treaties made prior to 1945 that refer cases to the PCIJ. Some of these are jurisdiction clauses in treaties on the 1761   As a matter of anecdotal interest, the draftsmen were able to insert this Article 37 into the Statute without a general renumbering of the Articles because there had already been an Article 37 in the PCIJ Statute, which read

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peaceful resolution of disputes, such as the 1928 General Arbitral Act and the numerous bilateral treaties of this kind. Others are contained in compromissory clauses in treaties made for purposes of many other kinds. Many such treaties are still in force today.1762 It is, therefore, hardly surprising that Article 37, unlike Article 36, paragraph 5, has been cited in the Court’s jurisprudence on frequent occasions: in fact, 15 of them.1763 Recently, for example, Article 37 was cited in the cases on the Legality of the use of force (1999–2004) between Serbia and Montenegro on the one hand, and Belgium and the Netherlands on the other. If the applicant invokes both an old title of jurisdiction in conjunction with Article 37, and a new title of jurisdiction such as optional declarations under the regime of the ICJ itself, then obviously the ICJ is free to base itself on the latter. This is the position because it either ensures that the Court has a jurisdiction of wider scope (optional declarations v compromissory clause) or because there is sometimes room for doubt as to the extent to which the old treaty remains in force (this applies particularly to the 1928 General Act).1764 It is practical reasons of this kind, rather than a deliberate wish to cut short the inheritance from the League of Nations and the PCIJ (which anyway would be out of place and unjustified), that have been decisive in determining the Court’s attitude. The interpretation of Article 37 raises two questions that are fairly intimately connected. First: what does it mean when it refers to treaties or conventions that are ‘in force’ or ‘en vigueur’? Second: what is the exact relationship between Article 37 and Article 36, paragraph 5 of the Statute – is it legally identical (mutatis mutandis) or is it actually a different regime? (1)  ‘In force’ As to the first question, and indeed by implication to the second one, the most important precedent is the Barcelona Traction case (Preliminary Objections, 1964).1765 In a judgment as tightly argued as in the Aerial incident case, the Court refuted, in the context of Article 37, the essential heart of its reasoning in relation to Article 36, paragraph 5. It thus created an artificial barrier between the two provisions. This, however, does not cause us to modify the view that the Court’s reasoning was legally sound in 1964, whereas the 1959 reasoning had not been. To some extent, the 1964 decision opened up in the long run a way back towards a harmonious relationship between the two provisions of the Statute, and this was reflected in the decision of 1984 in the Nicaragua case. In 1964, Spain produced an arguas follows: ‘When a treaty or convention in force provides for the reference of a matter to a tribunal to be instituted by the League of Nations, the Court will be such tribunal.’ This concerned the transitional period prior to the establishment of the PCIJ, and was a response to the fact that various peace treaties and dispute resolution treaties had already made a general reference of disputes to the jurisdiction that was to be created by the League of Nations. What was needed was an express provision that these references now operated in favour of the PCIJ: cf Hudson, above n 1662, 193–94, 408–10; AP Fachiri, The Permanent Court of International Justice: its constitution, procedure and work, 2nd edn, (London, 1932) 74. The new Art 37 was conveniently slotted into the ICJ Statute in substitution for the former PCIJ text. 1762   To review these treaties, one needs to work through Series E of the PCIJ’s publications. It is also necessary to work out to what extent the treaties there mentioned are still in force today. 1763   cf Simma and Richemond, ‘Article 37’, above n 1737, 662–63. 1764   See, eg the Temple of Préah Vihéar (Preliminary Objections), ICJ Reports 1961, 17 et seq. On the Court’s restrained attitude as regards the 1928 General Act, see also JG Merrills, ‘The International Court of Justice and the General Act of 1928’ (1980) 39 Cambridge Law Journal 137 et seq. The Court’s position has been unvarying throughout the time that this author has been writing. 1765   ICJ Reports 1964, 26 et seq. As to this case, see particularly J Charpentier, ‘Affaire de la Barcelona Traction’ (1964) 10 AFDI, 327 et seq.; JV Louis, ‘L’arrêt du 24 juillet 1964’ (1965) 1 RBDI 253 et seq.



‘TRANSITIONAL’ JURISDICTION 599

ment that was on all fours with the 1959 decision. It argued that the jurisdiction clause had lapsed on the dissolution of the PCIJ, in April 1946, since at that time Spain was neither a member of the United Nations nor a party to the new Statute, so that Article 37 could not apply to it. Spain was in fact admitted to the UN only in 1955. The Court began by drawing a distinction from its previous decision. The Aerial incident judgment had concerned only Article 36, paragraph 5, and even then, only in a rather unusual situation. It had not concerned Article 37. The two provisions were different. Article 36, paragraph 5 applied to unilateral declarations, whereas Article 37 concerned treaties. Also, in 1959 there had been particular reasons to decide in favour of Bulgaria, and those reasons did not apply in the present case. The Court also noted that any decision concerning Article 37 would necessarily affect a large number of treaties that were still in force. In short, the Court was already beginning to distinguish, and to distance itself very clearly from, the 1959 decision.1766 The Court combined this with the well-worn teleological argument: the purpose of Article 37 had obviously been to prevent the disappearance of the PCIJ and the creation of the ICJ from resulting in the compromissory/jurisdictional clauses in older treaties becoming inoperative. The method chosen was to safeguard them by an automatic renvoi to the new Court. Given this aim, the draftsmen were reluctant to accept that certain jurisdiction clauses, affecting States that were not original members of the UN, would lapse while others, affecting original members, would continue to apply. The text of Article 37 based the Court’s jurisdiction exclusively on three conditions: (1) the existence of a treaty in force; (2) the existence of a renvoi to the PCIJ; and (3) a dispute between States that were parties to the Statute. The expression ‘in force’ referred to the treaty itself, not to the jurisdiction clause that the PCIJ’s dissolution would cause to lapse: And precisely because it was the whole object of Article 37 to prevent extinction resulting from the particular cause which the disappearance of the Permanent Court would represent, it cannot be admitted that this extinction should in fact proceed to follow from this very event itself.1767

Any other interpretation would fly in the face of the draftsmen’s intention to safeguard the continuity which was the underlying objective of the provision. The date of ratification or adherence to the Statute was thus irrelevant. It is not surprising that the text of Article 37 makes no reference to it. If it were accepted that the dissolution of the PCIJ was the critical date, it would almost entirely prevent Article 37 from doing its job. Indeed, since in June 1945 it was not known when the PCIJ would be dissolved and when the Charter would come into force, a situation could easily have arisen in which a great number, even a majority, of compromissory and jurisdictional clauses would have lapsed. The purpose of Article 37 was difficult to reconcile with so radical a differentiation of its legal effects, depending on the date the State in question became a UN Member. It is plain to see that the Court now adopted, almost in their entirety, the arguments advanced in 1959 by the three minority judges. The 1962 decision was therefore the start of a period of dichotomy between Article 36, paragraph 5 and Article 37. The effect of this jurisprudence was that all that needed to be ‘in force’ was the treaty in the overall sense. The dissolution of the PCIJ was not a relevant event. The question whether a treaty is still in force can, nevertheless, be a difficult one. In the first place, it concerns the treaty’s objective continuity vis-à-vis all the parties. In addition, it presupposes, at a subjective level, that 1766   This break in the jurisprudence was noted regretfully by some judges: eg in the Declaration of Judge Spiropoulos, ICJ Reports 1964, 48. 1767   Ibid, 34.

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none of the parties to the dispute has withdrawn from the treaty. If, for whatever reason, the treaty has been extinguished and has therefore ceased to have legal effects then in principle the jurisdiction clause also lapses and will not be transferred to the ICJ. Does the principle that the clause is severable from the rest of the treaty, as discussed above, also apply in the context of Article 37? The severability doctrine is concerned with disputes between States as to the extinction of the treaty featuring the compromissory or jurisdictional clause. In such a case, it is impossible to argue that the alleged extinction of the treaty also means the extinction of the clause, so that the Court is consequently deprived of jurisdiction. On the contrary, such clauses are included with a view to their coming into play in precisely such circumstances. It would be contrary to the intention and purpose of such a clause to sterilise its effects precisely in one of the situations in which it might be called into operation.1768 If, therefore, the dispute concerns the current validity of an old treaty containing the jurisdiction clause, that clause can be treated separately from the rest of the treaty and can operate as the basis of the Court’s jurisdiction, working in conjunction with Article 37 of the Statute, which transfers jurisdiction from the PCIJ to the ICJ. The applicability of this doctrine of severability to Article 37 needs to be properly understood. To the extent that the parties’ dispute does not at least also bear on the extinction of the old treaty containing the jurisdiction clause, the severability doctrine does not apply. If the dispute relates to both the interpretation and application of the treaty and to its continuing validity, the Court can, under the severability principle, only deal with the second of these elements. If it decides that the treaty is still in force as between the parties, it can then also take cognisance of the first element; but if, on the other hand, it decides that the treaty is no longer in force between the parties, the proceedings end at that point. Another question is whether the Court can raise, motu proprio, a question as to the continuity of the treaty which the applicant or the parties are invoking as the basis of jurisdiction. The answer is that the Court has incidental jurisdiction to decide whether the titles of jurisdiction invoked are or are not applicable in particular proceedings. That jurisdiction arises under Article 36, paragraph 6 of the Statute, which provides the Court with ‘jurisdiction as to jurisdiction’; it arises also under the maxim jura novit curia. On the other hand, the Court is not normally obliged to raise this question proprio motu if none of the parties disputes its jurisdiction (forum quasi-prorogatum). What is the critical date for deciding whether the treaty is still ‘in force’? The Court has rightly said that it is the date when the case is brought to the Court (the seising of the Court).1769 That is the date at which the title of jurisdiction must exist. If it is then no longer in force, the Court does not have jurisdiction; conversely, if it subsequently ceases to be in force, the principle of forum perpetuation (perpetuatio fori) applies and jurisdiction is upheld. (2)  Relationship to Article 36, paragraph 5 As to the second question, the relationship between Article 36, paragraph 5 and Article 37 of the Statute, the most important points are, as has often been noted, that they serve the 1768   It is doubtful whether a State should be permitted to escape its jurisdictional obligations by simply claiming unilaterally that the treaty has ended, eg because of an alleged substantial violation that has never been objectively confirmed to have occurred. 1769   Case on the Legality of the use of force (Serbia and Montenegro v Belgium, Preliminary Objections), ICJ Reports 2004-I, 319, § 101 and 327, § 125.



JURISDICTION AS TO JURISDICTION 601

same objective and that they were drafted for the same underlying purpose.1770 It has been concluded that they should therefore be given a unitary interpretation, and that the Court’s interpretations of 1959 and 1962, in separating the two, were unfortunate. This view is surely correct, on the basis that the two decisions are to be aligned on the basis of 1962. The Court came to this valuable conclusion in 1984, in the Nicaragua case. The shared purpose underlying the two provisions, leading to the principle of the most complete transference of these situations from the jurisdiction of the PCIJ to the ICJ, as if there had been no break between the two, is far more important than a few technical and textual differences between the two provisions. Thus, Article 36, paragraph 5, concerned with unilateral acts to which States sometimes apply time limits, must address optional declarations whose period of validity is not yet expired, that is, ‘which are still in force’; Article 37, which is concerned with treaties, instruments that are not normally limited in point of time, does not contain such a phrase. But these are only relatively minor differences due to the fact that the factual situations are not entirely identical. They do not involve legal differences relating to important aspects of the two provisions.

12.  JURISDICTION AS TO JURISDICTION1771

In the course of the centuries since the Peace of Westphalia (1648), international practice has, little by little, developed the legal lines along which international tribunals should function. In order to be effective, such tribunals needed to be invested with incidental jurisdiction to decide for themselves whether they have jurisdiction, doing so either motu proprio or alternatively if their substantive jurisdiction was challenged. This ‘jurisdiction as to jurisdiction’ (‘compétence de la compétence’/Kompetenz-Kompetenz) means that the body in question is invested with the power to decide for itself whether it has jurisdiction over the case before it, or whether it has jurisdiction to take any other procedural step such as ordering Provisional Measures. For a long time, this principle was debatable, and indeed it was lacking in the ad hoc arbitrations of the eighteenth and nineteenth centuries. In consequence, the joint commissions on dispute resolution of that period were simply joint 1770   cf Simma and Richemond, ‘Article 37’, above n 1737, 668–69. See also the Individual Opinion of Judge Tanaka, Barcelona Traction case (Preliminary Objections), ICJ Reports 1964, 65 et seq. 1771   On this principle, see C Tomuschat, ‘Article 36’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 643 et seq.; H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’ in BYIL Part Ten, vol 70 (1999), 2 et seq.; S Rosenne, The Law and Practice of the International Court, 1920–2005, vol II, 3rd edn (Leiden, 1997) 846 et seq.; M Dubisson, La Cour internationale de Justice (Paris, 1964) 102–104; M Bos, ‘Les conditions du procès en droit international public’ in Bibliotheca Visseriana, vol XIX (1957) 271–74; G Berlia, ‘La jurisprudence des tribunaux internationaux en ce qui concerne leur compétence’ CCHAIL, vol 88, 1955-II, 105 et seq.; GG Fitzmaurice, The Law and Procedure of the International Court of Justice, vol II (Cambridge, 1986) 451 et seq.; U Iaccarino, Della c. d. competenza sulla competenza dei tribunali internazionali (Naples, 1962); P Lamberti Zanardi, ‘Forme nuove di competenza della Corte internazionale di giustizia e potere della Corte di aprire d’ufficio un procedimento sulla competenza’ (1975) 14 Comunicazioni e studi, 439 et seq.; V Starace, La competenza della Corte internazionale di giustizia in materia contenziosa (Naples, 1970) 251 et seq.; IF Shihata, The Power of the International Court to Determine its Own Jurisdiction, Compétence de la compétence (The Hague, 1965); E Wyler, ‘La détermination par la Cour de sa propre compétence’ in C Apostolidis (ed), Les arrêts de la Cour internationale de Justice (Dijon, 2005) 21 et seq. On the PCIJ period, See MO Hudson, The Permanent Court of International Justice, 1920–1924. A Treatise (New York, 1943) 416 et seq., 464–65. See also generally, C Rousseau, Droit international public, vol V (Paris, 1983) 323 et seq.

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bodies mandated by the two sides,1772 or even just special conferences between them. They were not true tribunals. Their powers were weak; they depended for every jurisdictional act on the joint goodwill of the parties. As a result, the proceedings could be effective only if the parties retained their wish to engage in arbitration right through to the merits phase. The wish was made apparent by the lack of any objection to jurisdiction. If there was in fact an objection, it decisively put a stop to the resolution of the dispute by the body in question. That ‘solution’ reflected the preponderant weight of sovereign particularism that was so evident in the nineteenth century. The international environment of the day was hostile to any abandonment of a State’s right to be the final decision-maker. The balance between safeguarding State sovereignty and the efficacy of international procedure was tilted strongly in favour of sovereignty.1773 But this implied various inconvenient results as inevitably as a ditch implies humidity. The first inconvenient result was that either side could, by a very simple unilateral act, block the arbitration at any moment up to the giving of the substantive award, thus taking back with the left hand what it seemed to have granted with the right when it signed the arbitration treaty. The consequence was that such treaties hardly amounted to real obligations. The ordinary principle of pacta sunt servanda was not truly applicable. These practices also flew in the face of the obligation to cooperate in good faith in the common enterprise of implementing the treaty. The resolution of the dispute, which the parties had wished to make possible, might be indefinitely prevented. At the end of the day, therefore, ‘jurisdiction as to jurisdiction’ is obviously an essential element for the appropriate functioning of the tribunal, which otherwise will not be able to carry out its mission. In short, at that period arbitration remained a simple expedient, firmly yoked to the mandate conferred by each of the parties on the tribunal. As the international community became more organised and began to perceive a collective interest in the settlement of disputes, it had to make arrangements robust enough to enable arbitrators and judges to carry out their missions. Jurisdiction as to jurisdiction was the most elementary of these arrangements. It eliminated the most obvious obstacle to the ordinary functioning of a tribunal or court. Managing without it seems just about possible in occasional arbitrations but is really unthinkable for a permanent institutional court representing a form of public justice.1774 So it is easy to see why the right of parties to decide the jurisdictional position for themselves was eliminated and replaced by the jurisdiction as to jurisdiction provided for in Articles 47 (1899) and 73 (1907) of Hague Convention I on the peaceful settlement of disputes. It has been said, and with good reason, that this principle constitutes ‘the essential characteristic of every judicial body’.1775 In the ultimate analysis, if the principle does not apply, the judge cannot really decide anything. He remains the docile puppet of the parties and cannot resolve their disputes in the objective manner one naturally contemplates when considering his role.   See, eg A Rivier, Principes du droit des gens, vol II (Paris, 1869) 174.   In other words, between the authority of the arbitral tribunal on the one hand, and the preservation of State rights and interests on the other, the balance was clearly tilted in favour of the latter. 1774   The Court put the point well in the Nottebohm case (Preliminary Objection), ICJ Reports 1953, 119: ‘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.’ 1775   Dubisson, above n 1771, 103 (our translation). 1772 1773



JURISDICTION AS TO JURISDICTION 603

Certainly, one does find that from the early days of modern arbitration, there were some arbitrators who claimed jurisdiction to decide whether they had jurisdiction.1776 But some took the contrary view.1777 Until the end of the nineteenth century, the question was subject to a significant degree of legal uncertainty. The turning point came with the Alabama case (1872). In its Memorial in that case, the United States demanded reparations not only for direct loss, but also for indirect loss. That met with a lively reaction in the United Kingdom which opposed this unexpected extension of the claim; the UK therefore challenged the tribunal’s jurisdiction to take cognisance of the indirect loss claim. The tribunal indicated on 17 June 1872 that it had examined that claim and found it to have an insufficient foundation in international law. The parties accepted that decision, which involved the arbitrator’s affirming his jurisdiction over the jurisdiction question.1778 Thereafter this became general practice, so that it became possible to consider it a rule of customary international law, or even a rule inherent in the judicial function. For the International Court of Justice, the power to decide whether it has jurisdiction derives from the express provisions of Article 36, paragraph 6 of the Statute, which reads: ‘In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.’ The Court has often reaffirmed this principle. The locus classicus was the Nottebohm case (Preliminary Objections, 1953). The government of Guatemala sought to limit the scope of Article 36, paragraph 6 to the question whether the claim fell within one of the four headings in Article 36, paragraph 2 of the Statute. The Court rejected any idea of such a limitation on its ‘jurisdiction as to jurisdiction’. It pointed out that Article 36, paragraph 6 was drafted in the widest terms and that it reflected a principle of general international law.1779 Even if Article 36, paragraph 6 had not been included in the Statute, the Court would still have had the same power, and this for two reasons. First, the rule would apply as matter of general international law. Second, it would apply to the Court as an organ of the United Nations, because the general rule, accepted since the San Francisco Conference, is that each organ of the UN is the judge of its own competence or jurisdiction. Article 36, paragraph 6 is thus essentially merely declarative of general international law and of the special law of the United Nations. It is in no way new or constitutive. 1780 The fact that it was written down and embodied in the Statute may, however, give it a legally constitutive effect in view of the imperative nature taken on by the ‘jurisdiction as to jurisdiction’ rule within the law of the ICJ (see below). Article 36, paragraph 6 of the Statute concerns an ‘incidental’ jurisdiction, that is, a power necessary or appropriate to the Court in discharging its primary function, and to the proper administration of justice. That incidental jurisdiction is engrafted into the Court’s principal competence. Also, the Court’s ‘jurisdiction as to jurisdiction’ applies to all the 1776   At the time of the arbitration commissions under the Jay Treaties of 1794, at the birth of modern arbitration, some of them claimed the right to decide whether they had jurisdiction: see, eg the positions adopted in the Bandsey and Sally cases. cf JB Moore, History and Digest of the International Arbitrations to which the United States has been a Party, vol III (Washington, 1898) 2290, 2306, Opinions of Commissioner Gore. 1777   Iaccarino, above n 1173, 35. 1778   See N Politis, La justice internationale (Paris, 1924) 45–46. See also Shihata, The Power of the International Court, above n 1773, 17 et seq. 1779   ICJ Reports 1953, 119. See also the case on the Arbitral award of 31 July 1989, ICJ Reports 1991, 69, § 46. In the case of the Land, island and maritime frontier dispute (El Salvador v Honduras), ICJ Reports 1992, 600, § 402, the Chamber stated that every court had the power to decide on its own jurisdiction. 1780   cf UNCIO, vol XIII, 633 et seq., 653 et seq., Committee IV/2.

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Court’s other competences and powers, whether principal or incidental. In other words, Article 36, paragraph 6 applies to any challenge to the Court’s right to rule on the merits, even if both sides were to object and on the same ground. But it also applies to the numerous incidental powers of the Court under its Statute, for example, the powers to indicate provisional measures of protection (Article 41), to interpret its own judgments (Article 60), to revise its judgments (Article 61), or to allow a third State to intervene (Articles 62–63). In the ultimate resort, it is always for the Court to decide whether the conditions for the application of such incidental powers and competences are satisfied. The parties express their views – they propose. The Court states it own view – it disposes. The same goes for questions relating to the validity of seisin, or to the admissibility of the claim, or for other challenges arising from the application of this or that particular provision of the Statute or the Rules. Consequently, one can say that the Court’s ‘jurisdiction as to jurisdiction’ is an element of its second-degree jurisdiction, which allows it, in the last resort, to decide any question arising in the course of the proceedings and necessarily linked to them. It is for the Court to decide all questions or challenges as to the provisions of the Statute or the Rules. These are issues of the Court’s ‘competence’ (jurisdiction) in the broad sense of the term, a judicial competence being defined as a power to act sanctioned by law. Consequently any power to act that is sanctioned by the Statute or the Rules – and the Court’s power to act arises exclusively from these texts – is referable to a com­ petence of the Court, in this broad sense of the expression. The Court is thus always competent to determine whether the conditions for it to act are satisfied, whatever the action may be. One can thus see that the expression ‘jurisdiction’ is used in a different sense in paragraph 6 of Article 36 compared with paragraphs 1 to 5. The latter are concerned with consensual jurisdiction, that is, with the Court’s power to decide the merits of a dispute ratione consensus. That is the classic question concerning titles of jurisdiction. By contrast, paragraph 6 concerns a wider jurisdiction, that is, the right to decide, in the last resort, all questions necessitating a decision on a provision of the Statute or the Rules. The principle of the ‘jurisdiction as to jurisdiction’ is not simply applied to such questions by way of analogy. It applies directly and ex jure, by virtue of a wider interpretation of the word ‘jurisdiction’. In permanent tribunals such as the ICJ, the principle of ‘jurisdiction over jurisdiction’ thus has a meaning which is clearly wider than it has when applied to ad hoc arbitration tribunals. It means that the Court is the sole and final arbiter of the meaning of its constitutive texts, the Statute and the Rules. Their objective character is thus emphasised. For this purpose a traditional formulation has been used, but at the same time it is given a new sense that reflects the particular environment of a permanent court of justice, which is the principal judicial organ of the United Nations. Can the Court raise an issue, relating to its jurisdiction, on a motu proprio basis? The question has already been considered, so that at this point one need only refer back to the earlier passages.1781 It will be remembered that the Court must, of its own volition, raise questions relating to the seisin of the Court, to personal and material jurisdiction, and to the general admissibility of an application, but that it will not normally spontaneously raise questions relating to the consensual jurisdiction, if necessary leaving them to the forum prorogatum mechanism. The text of Article 36, paragraph 6 does not deal with this question of proprio motu action by the Court. In view of the clear wording of this provision, that: ‘In the event of a dispute as to whether the Court has jurisdiction, the matter shall be   See above, section 3.

1781



JURISDICTION AS TO JURISDICTION 605

settled by the decision of the Court’, it is impossible to argue that the Court could never raise such a question on its own initiative. Article 36, paragraph 6 relates directly only to cases where the jurisdiction is in dispute. But autonomous rules of the law of the Court allow the latter to raise, of its own volition, certain questions relating to its proper functioning. The Court has an inherent power in this regard, a power which it has many times affirmed and applied in its jurisprudence. These powers can thus be perceived as legal capacities arising from unwritten rules, distinct from Article 36, paragraph 6; alternatively, it is possible to take the view that the rule there stated has been enlarged so as to cover cases in which the Court of its own volition verifies the available foundations for its actions; as yet another option, one might say that if there are doubts within the Court itself as to the basis of its action, such doubts themselves constitute a form of ‘dispute’, the Court being thus able to challenge, on its own, this or that aspect of a case in order to verify whether its own action is well founded under the Statute and the Rules. Can there be a derogation from Article 36, paragraph 6 by contrary agreement between the parties?1782 Is it ‘dispositive’ in the sense that the principle of ‘jurisdiction over jurisdiction’ is valid only unless and until the parties agree to eliminate it as regards a particular case? Or is it in fact, a matter of imperative law which parties cannot set aside by agreement? If, in the nineteenth century, parties could give arbitrators the power to determine their own jurisdictions, why should one not say that, under modern conditions, parties have at least the same right to take away from arbitrators and judges this power that they possess under customary law or treaty? In light of the analysis provided at the outset of this chapter, it is easy to see why that is unacceptable, at all events as regards the ICJ. However you look at it, Article 36, paragraph 6 is imperative law for the parties, and in no way yields to any contrary agreement. The Court, if faced with such an agreement, would have to refuse to apply it. An attempt to derogate from Article 36, paragraph 6 might not necessarily be made by way of a bilateral legal act such as an agreement between the parties. It could also be made in a unilateral legal act. ‘Automatic reservations’ are the most important example and have already been discussed in detail.1783 The exact significance of the imperative law on this matter does, however, need to be properly understood. At the ICJ (and before certain other institutional international tribunals), there are two aspects to the provisions’ imperative character, whereas before other bodies, especially arbitral tribunals, there may be only one. Indeed, it is often possible for parties to give another legal or quasilegal body power to decide a dispute relating to the jurisdiction of a given tribunal, doing so either at a primary hearing (the argument being that the jurisdiction is somehow prejudicial) or on appeal. It was doubtless this power that the Court had in mind when, in the Nottebohm case (Preliminary Objection, 1953) it said: ‘Since the Alabama case, it has been generally recognized, following the earlier precedents, that, in the absence of any provision to the contrary, an international tribunal has the right to judge as to its own jurisdiction . . . ’.1784 But in any event, and that is the second aspect, parties cannot reserve to themselves the ‘jurisdiction as to jurisdiction’ when they are dealing with a judicial body. That would be to give each of them, unilaterally, the power to block the case that was under way, so setting at nought their prior agreement to submit to the jurisdiction. If, on the other hand, the parties reserved the right, by agreement between them, to draw appropriate   See especially the presentation in Shihata, The Power of the International Court, above n 1771, 47 et seq.   Section 1(h) Above. 1784   ICJ Reports 1953, 119 (italics added). 1782 1783

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consequences as to the tribunal’s lack of jurisdiction, it would be a matter of simply recognising their right to jointly withdraw the case. Article 36, paragraph 6 and its imperative character, have bolted the door of the ICJ’s ‘jurisdiction as to jurisdiction’ both against any attempt to reserve the right to the parties, and against the possibility of conferring it on some other body. In this sense, the imperative law of the Statute has a dual effect.1785 Here, then, the Court is holding onto a measure of the imperatoria majestas given to it by its character as the principal legal organ of the United Nations under Article 92 of the Charter.

13.  THE PRINCIPLE OF THE FORUM PERPETUUM OR PERPETUATIO FORI

Under the principle of the perpetuation of the forum, the jurisdiction of a tribunal is not assessed until the moment when it is first seised of the case. If the tribunal has jurisdiction at that critical moment of seisin, it will retain that jurisdiction until the case ends, and even, if the circumstances require it, thereafter, particularly for the purposes of procedures for the interpretation and revision of its judgment, or for a reopening of the case for some extraordinary reason, as happened in the Franco-Australian Nuclear Tests case in 1995.1786 If, therefore, the title of jurisdiction expires after the Court has been seised of the case, the Court will nevertheless retain all its principal and ancillary powers, so that it can decide the merits. ‘Once competent, competent all the way through’: hence the idea of the perpetuation of the forum, the perpetuatio fori. The principle directly serves the proper administration of justice, the need to preserve the judicial mission, and the economy of the judicial process. It ensures the continuity of the Court’s judicial work and makes it independent of the various vicissitudes that a title of competence can undergo. A single critical date replaces innumerable other ones, with the fluctuations of jurisdiction that they would impose on the judicial exercise. As a result of the principle, justice can be administered more smoothly. The principle also preserves the judges’ jurisdiction so that they can discharge their ‘general interest’ mission to resolve disputes. Here again: boni judicis est conservare jurisdictionem. The principle also means that one party cannot unilaterally deprive the Court’s jurisdiction of effect by choosing at any time to annul the title of jurisdiction on which it is based, claiming, perhaps, to do so with immediate effect as regards proceedings that are already under way.1787 If this kind of thing were allowed, the Court’s jurisdiction could never be compulsory. Each party, and particularly the respondent, would be able, until the very end of the case, to withdraw from it simply by terminating the title of jurisdiction. All that would be left would be a kind of prorogated jurisdiction that the respondent would have to maintain until the end of the case so as to allow the judges to exercise it. The effect would be the same as the effect of a subjective reservation as to the Court’s jurisdiction: each side would, at every stage, have the last word in the matter. Consequently, Article 36, paragraph 6 of the Statute would, to   For further details on the imperative law of the Statute, see above ch III, section 1(b).   ICJ Reports 1995, 288 et seq. 1787   Moreover, if withdrawal from a title of jurisdiction were not possible until the expiry of a reasonable notice period, then a fortiori the alteration of a title of jurisdiction after the Court is seised of the case could not have an immediate effect on the proceedings. Under the forum perpetuum principal, the position is taken further: such an alteration has no effect whatever on the proceedings that are already under way. 1785 1786



FORUM PERPETUUM OR PERPETUATIO FORI 607

say the least, be de facto elbowed aside. This would also amount to a derogation from one of the Court’s fundamental powers, allowing parties to obtain, by indirect means, something which is not permitted by direct ones. The Court would be practically relegated to the role of a simple agent of the parties, the door to unilateralism standing wide open. The Court would be at the mercy of each party; it would diminish into being their simple mandatory. In reality, it would be impossible for any effective procedure to be followed: the Court’s jurisdiction would be a will o’ the wisp. Moreover, trials, as well as being uncertain affairs, would be complicated by the fact that changing titles of jurisdiction would oblige the Court to keep coming back to the related questions. Changes in titles of jurisdiction could oblige one side to recommence its case on the basis of a new title, the old one having ceased to be valid. This would hardly assist the economy of the process. It should also be noted that the principle of the forum perpetuum has two roots, one in justice and the other in equity. In the first place, it ensures the application of the pacta sunt servanda rule to the agreement to submit to the Court’s jurisdiction. Secondly, the passing of time during the proceedings, not imputable to the applicant, must not be allowed to operate to its disadvantage. Without the forum perpetuum, the applicant would risk being adversely affected by the alteration of the titles of jurisdiction, and the longer the proceedings, the worse the risk. The respondent might prolong the proceedings in order to blow hot and cold by changes to the jurisdiction on an à la carte basis. The Court’s procedural law would be giving free rein to acts of manipulation and bad faith. Respondents would have an advantage over applicants, and the equality of parties before the Court would be rendered illusory. What is the legal basis of the forum perpetuum? The concept was known to Roman Law, consolidated in the jus commune of the Middle Ages and then taken over into municipal systems of law. Since, however, there is no direct provision for it in the Statute or Rules of the Court, its origins in the law of the ICJ are purely jurisprudential. It was recognised in two leading cases and then reaffirmed in the Nicaragua case and subsequently in Lockerbie. Initially, in the Nottebohm case (Preliminary Objection, 1953), the Court was faced with an optional declaration which expired after the Court was seised of the case. Guatemala argued that therefore the Court’s jurisdiction had lapsed on the day of expiry. The Court rejected this argument, reaffirming that ‘an extrinsic fact such as the subsequent lapse of the Declaration . . . cannot deprive the Court of the jurisdiction already established’.1788 In the Right of passage case (Preliminary Objections, 1957), the Court stated the rule even more clearly: It is a rule of law generally accepted, as well as one acted upon in the past by the Court, that, once the Court has been validly seised of a dispute, unilateral action by the respondent State in terminating its declaration, in whole or in part, cannot divest the Court of jurisdiction.1789

Subsequently the Court repeated this rule in the case on Military and paramilitary activities in and against Nicaragua in 1984 (Jurisdiction and admissibility)1790 and in 1986 (merits).1791 It is thus a principle of international dispute resolution that rests on solidly established foundations. The principle of the forum perpetuum fixes the critical date for deciding whether the Court has jurisdiction. However, its sole purpose is to so arrange things that the expiry or   ICJ Reports 1953, 122–23, the phrase cited being at 123.   ICJ Reports 1957, 142. 1790   ICJ Reports 1984, 416, § 54. 1791   ICJ Reports 1986, 28–29, § 36. 1788 1789

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restriction of the title of jurisdiction after the Court is seised will not cause the Court to be divested of the jurisdiction it has acquired. It does not mean that the jurisdiction cannot be altered by means recognised in the Statute and the Rules. So, for example, it is always accepted that a case can be completely terminated by discontinuance, the Court’s concrete jurisdiction being thus annulled. The Court’s jurisdiction can also be increased or reduced, by a forum prorogatum or by the applicant’s (or even the parties jointly) abandoning one of the claims. The forum perpetuum principle thus in no way imposes a freeze on the Court’s jurisdiction at the moment the case is brought before it. The jurisdiction remains in potential flux, but can be modified only by one of the recognised methods. In short, the jurisdiction cannot be altered or adjusted except in light of procedural steps taken within the proceedings, not by acts affecting the title of jurisdiction outside the proceedings. The forum perpetuum principle is concerned only with titles of jurisdiction in the narrow sense, that is, the consensual jurisdiction of jurisdictional or compromissory clauses, optional declarations or the forum prorogatum. It does not touch on questions relating to the Court’s personal or subject-matter jurisdiction, nor on the general admissibility of claims. Thus, if a party to proceedings before the Court were to cease during the case to be a State, the case itself would be considered to be devoid of any further object. In no circumstances can the Court give judgment in relation to an entity which is not a State (which would, moreover, have ipso facto ceased even to be a party to the Court’s Statute). Similarly, if the subject of the dispute evolves during the proceedings in such a way that it is no longer a legal dispute or based on international law, the Court could not continue to hear the case because an objective condition of the process would now be lacking. These ‘constitutional’ questions cannot be affected by the forum perpetuum principle. The integrity of the judicial function is so intimately connected to them, that the Court must take them into account, motu proprio, at whatever stage they may come to light. Can the UN Security Council suspend the working of a title of jurisdiction under Chapter VII of the Charter, or even directly under Article 25 of the Charter? On this point, a distinction has to be made according to the timing of the Council’s decision. Until the Court is seised, the Council can, if the need arises and it considers it necessary in the interests of safeguarding or re-establishing the peace, order certain States, or one of them, not to seise the Court. So far, this has never happened, and indeed such a decision could only be made in exceptional circumstances and under restrictive conditions.1792 On the other hand, if the Court is already seised of a dispute, and the Council’s binding decision is made only subsequently, it will conflict with the forum perpetuum principle. Must the principle then give way to the Council decision? Let us start the analysis by noting that Article 103 of the Charter does not help us with this point. It provides for the primacy of obligations under the Charter over any obligation resulting from another international agreement. But the Statute is an integral part of the Charter (Article 92).1793 It is therefore not ‘another’ international agreement, so as to be subject to the primacy of the Charter. The question arose in practice in the Lockerbie cases (1992–98). Libya had seised the Court of a dispute with the United States of America and the United Kingdom, about the extradition of two of its citizens accused by the two English-speaking States of having participated in the attack on the PANAM flight which crashed over the Scottish town of Lockerbie. Libya claimed not to be   This question will be addressed below, section 27.   ‘The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.’ 1792 1793



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bound to extradite the pair. It argued on the basis of the principle ‘aut dedere aut judicare’ in the 1971 Montreal Convention on the Safety of Civil Aviation, claiming that it preferred to try the pair itself rather than extradite them. In light of this, the USA and the UK persuaded the Security Council to adopt a legally binding resolution ordering Libya to extradite them (Resolution 748, 1992). In the context of the 1998 judgment on jurisdiction and admissibility, the USA and UK argued, amongst other things, that the Council Resolution had deprived the Court of its jurisdiction, even making the application inadmissible. The Court refused to accept this line of argument. It took the view that its jurisdiction could not, and should not, be decided at any time other than the critical date, that is, the date the proceedings were initiated, and thus applied the forum perpetuum principle. It reasoned that the relevant Security Council Resolutions were adopted only after Libya had deposited its application, and that a subsequent event after the Court was seised could not affect a jurisdiction that was already established: Security Council Resolutions 748 (1992) and 883 (1993) were in fact adopted after the filing of the Application on 3 March 1992. In accordance with its established jurisprudence, if the Court had jurisdiction on that date, it continues to do so; the subsequent coming into existence of the abovementioned resolutions cannot affect its jurisdiction once established.1794

This jurisprudence, the principle of which one has to approve, has three results. First, on the forum perpetuum principle itself, the Court was showing that it was of general application. It was concerned not only with alterations to the substance of a title of jurisdiction in itself, for example, by denunciation or expiry either in whole or in part, but also with the suspension of the title by the legal act of third parties, such as a Security Council resolution. It was not obvious that the forum perpetuum principle ought to apply in this novel context, but the Court said very clearly that it should be applicable. That extends the applicability of the principle. Second, the Court imposed a limit on the powers of the Security Council, whose binding resolutions have priority over other international obligations. The Council has the right to interfere with the rights of parties. The Court set a clear limit to this where it concerned the Statute, and thus the Court’s own judicial functioning. Although the Court cannot stop the Council’s altering the substantive legal situation, that is, the parties’ substantive rights and obligations, it has at least preserved intact both its judicial integrity and the due administration of justice. Third, the effect of this jurisprudence may be that the Court retains its jurisdiction unaltered but that the substantive issues in dispute are transformed to the point where the claim no longer has any real object. It is in this field that the Council could take its revenge. In fact, by virtue of Article 103 of the Charter, the Council’s binding resolution profoundly altered the rights and duties of the parties. Nowhere is there any provision that the Court can oppose such a new situation, arising, as it does, under the law of the Charter. It is, of course, impossible to imagine the Court incidentally reviewing the legality of Security Council decisions. This question is a difficult one and requires separate examination.1795 It is therefore possible to suppose that the Court is, in these circumstances, in a position to salvage only a phantom jurisdiction, while in substance the respective rights of the parties will have been profoundly altered. And so, in the Lockerbie case, the Court was obliged to recognise, albeit still on a provisional basis, in its 1992 Order indicating provisional   ICJ Reports 1998,129, § 37.   See below, section 26.

1794 1795

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measures of protection,1796 that Council Resolution 748 took priority over the Montreal Convention, and that therefore the rights of Libya under that Convention had been derogated from. Given that the Court was not prepared at that stage to review the legality of acts of the Security Council, the case before it was bound to be deprived of its very object. Both the Respondent States and the minority judges naturally took note of this fact:1797 what was the point of affirming the ‘perpetual’ nature of the jurisdiction if the jurisdiction’s subject matter could be freely nullified? The Court retained the power to hand down its own decision, certainly, but its judgment on the merits could not be more than an empty gesture, giving expression to the Council’s decisions. This was and is, indeed, a delicate problem. From the judicial–legal perspective, the only really satisfactory response would be for the Court to be recognised as having the power, even if a very limited one, to review the legality of the Council’s acts. Apart from that, the situation simply called for the Council to show a sense of its political and legal responsibilities. As an organ of the United Nations, it is bound by Article 2, paragraph 2 of the Charter, the principle of good faith. As a matter of institutional practice, that principle implies a duty on the part of UN organs to take account of the positions of fellow-organs, and to show mutual respect (Organtreue). The Council ought then to take into account the fact that the Court has been seised of a case and ought not to interfere with the exercise of the judicial function any more than is absolutely necessitated by the overriding objective of maintaining and re-establishing international peace. An obligation of this kind can never be an entirely sanctionable lex perfecta. There is no substitute for a mentality that is considerate, careful and attentive. The Lockerbie case was neither a good nor a reassuring example of that mentality. Can the parties, by agreement, renounce the principle of the forum perpetuum? Is that principle derogable by this means, as certain commentators have claimed?1798 The better view is that an agreement between the parties for the purpose of preventing the Court from applying the principle would not bind the Court. The underlying reasons for the existence of the principle, as explained at the beginning of this chapter, relate to the due administration of justice and to judicial integrity. The forum perpetuum therefore cannot be derogable because it is not in the category that affects only the ‘private’ interests of the parties to the case. An agreement between the parties, as described, might also be interpreted – in favorem validitatis – as a reminder of their right to withdraw the proceedings at any time, either by agreement between them, or by the applicant unilaterally. Perhaps one can go so far as to accept that, by such an agreement, the applicant is agreeing to discontinue the proceedings 1796   ICJ Reports 1992, 15, §§ 39–41, where the Court stated that the legal situation of the parties had profoundly changed following the adoption of Resolution 748, the obligations arising from the latter having priority over those arising from the 1971 Convention, by virtue of Art 103 of the Charter. 1797   As to the Court’s arguments when faced with the pleas of the Respondent States, see ICJ Reports 1998, 26 et seq., §§ 46 et seq. and 131 et seq., §§ 45 et seq. Essentially, the Court took the view that the question was inextricably linked to the merits, so that it amounted to a ‘defence on the merits’ to be decided at the merits phase. As to the views of the minority judges, see in particular, the Dissenting Opinion of Judge Schwebel, ibid, 68 et seq., and that of Judge Jennings, ibid, 108–109, which emphasised the danger that this jurisprudence might enable a State to delay or frustrate the action of the Security Council for the maintenance of peace. That argument seems to be at least rather singular. For the Court’s reasoning to apply, the Court would have to have been seised before any binding action by the Security Council. Also, in the Lockerbie case, it was more the Security Council which was seeking to delay or frustrate the work of the Court, rather than vice versa. The position of the two Anglophone judges was designed above all to preserve the freedom of action of a Security Council dominated by the Powers of which they were citizens, and not the international rule of law of which the Court is the guardian. It is understandable but regrettable. It nevertheless remains true that the argument about the case’s ‘mootness’ – independently of the application of the forum perpetuum principle – does present a genuine problem. 1798   See G Morelli, Studi sul processo internazionale (Milan, 1963) 88.



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if the respondent, even after the Court is seised, expresses the wish to discontinue. What we then have is an agreement inter partes to bring the case to an end. That is a matter exclusively affecting the parties themselves, and concerning the exercise of their rights in relation to the case. They would, however, have to comply with the procedural law of the Court as to discontinuance. The mentioned agreement would not be binding on the Court and will not concern it directly. Moreover, it is highly uncertain whether the Court would be obliged to sanction it under Article 38, paragraph 1(a) because a right on the part of the respondent to end the proceedings whenever it wants would be contrary to the spirit of the Statute and to the principle of the forum perpetuum. If the applicant freely agrees, it is exercising its own rights. If it does not, it will not be for the Court to give its sanction to an agreement which, at bottom, confers a unilateral right of discontinuance on the respondent, contrary to the Rules on discontinuance.

14.  PROVISIONAL MEASURES OF PROTECTION1799

a)  General aspects When a tribunal is seised of a case the question arises as to what extent it will be necessary to protect the substantive rights of the applicant pendente lite, that is while the case is under 1799   There is an abundant literature on provisional measures of protection. For the PCIJ, see the synthesis of Hudson, above n 1771, 424 et seq., and also E Dumbauld, Provisional Measures of Protection in International Controversies (The Hague, 1932); P Guggenheim, Les mesures provisoires de procédure internationale et leur influence sur le développement du droit des gens (Paris, 1931); P Guggenheim, ‘Les mesures conservatoires dans la procédure arbitrale et judiciaire’ CCHAIL, vol 40, 1932-II, 645 et seq.; HG Niemeyer, Einstweilige Verfügungen des Weltgerichtshofs, ihr Wesen und ihre Grenzen (Leipzig, 1932); A Pütz, Der Erlass von einstweiligen Verfügungen durch den Ständigen Internationalen Gerichtshof (Mayence, 1939); H Rolin, ‘Force obligatoire des ordonnances de la Cour permanente de justice internationale en matière de mesures conservatrices’ in Essays E Mahaim, vol II (Paris, 1935) 280 et seq.; G Venturini, ‘Le misure cautelari nel diritto internazionale’ (1938) 119 Archivio giuridico Filippo Serafini 40 et seq., 152 et seq. For the ICJ, see M Abad Castelos, El Tribunal Internacional de Justicia y la protección cautelar de los derechos de los Estados (Seville, 2002); G Barile, ‘Osservazioni sulla indicazione di misure cautelari nei procedimenti davanti alla Corte internazionale di Giustizia’ (1952) IV Comunicazioni e Studi, 145 et seq.; PHF Bekker, ‘Provisional Measures in the Recent Practice of the ICJ’ (2005) 7 International Law Forum (Journal of the International Law Association) 24 et seq.; R Bernhardt (ed), Provisional Measures Indicated by International Courts (Berlin, 1994); A Cocâtre-Zilgien, ‘Les mesures conservatoires en droit international’ (1955) 11 Revue égyptienne de droit international 73 et seq.; A Cocâtre-Zilgien, ‘Les mesures conservatoires décidées par le juge ou par l’arbitre international’ (1966) 70 RGDIP5 et seq.; CH Crockett, ‘The Effects of Provisional Measures of Protection in the ICJ’ (1977) 7 California Western International Law Journal 348 et seq.; L Daniele, Le misure cautelari nel processo dinenzi alla Corte internazionale di Giustizia (Milan, 1993); C Dominicé, ‘La compétence prima facie de la Cour internationale de Justice aux fins d’indication de mesures conservatoires’ in Essays S Oda, vol I (The Hague/London/New York, 2002) 383 et seq.; TO Elias, ‘The International Court of Justice and the Indication of Provisional Measures of Protection’ in G Amado Memorial Lecture (United Nations, Geneva, 1978); TO Elias, The International Court of Justice and some Contemporary Problems (The Hague/Boston/London, 1983) 67 et seq.; JB Elkind, Interim Protection – A Functional Approach (The Hague/Boston/London, 1981); A El Ashaal, ‘NonCompliance with the Provisional Measures of the ICJ’, (1978) 34 Revue égyptienne de droit international, 313 et seq.; A El Ouali, Effets juridiques de la sentence internationale (Paris, 1984) 92 et seq.; MS Gemalmaz, Provisional Measures of Protection in International Law: 1907–2010 (Istanbul, 2011); PJ Goldsworthy, ‘Provisional Measures of Protection in the ICJ’ (1974) 68 AJIL 258 et seq.; DW Greig, ‘The Balancing of Interests and the Granting of Interim Protection by the International Court’ in Australian Yearbook of International Law, vol 11 (1991) 108 et seq.; E Hambro, ‘The Binding Character of the Provisional Measures of Protection Indicated by the ICJ’ in Essays H Wehberg (Frankfurt-am-Main, 1956) 152 et seq.; R Kolb, ‘Note on New International Case-Law concerning the Binding Character of Provisional Measures’ (2005) 74 Nordic Journal of International Law, 117 et seq.; VS Mani, ‘Provisional Measures of Protection: Article 41 of the ICJ Statute and Article 94 of the United Nations Charter’

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way, until the tribunal’s binding judgment finally governs the parties’ rights and obligations. From the moment judgment is given, the respondent ceases to be in a position to do anything further contrary to the rights of the applicant as set out in the judgment. Quite the reverse, it is under a positive obligation to execute the judgment. Inherent in that obligation, a fortiori, is the negative obligation not to alter or destroy the subject matter of these rights. But, while the case is still pending, this positive obligation under a judgment does not yet exist, and therefore the inherent negative obligation is not provided for either.1800 It is obvious that this state of affairs can lead to serious problems. Every dispute has a subject, and there are related rights and obligations. Once a court is seised of a dispute, the respondent may very well be unhappy about being brought before the court. He might be tempted to alter the subject of the dispute, or even to destroy it. Once that happens, it may not be possible to execute the judgment as envisaged, in the case of the ICJ, in the Court’s Statute, the subject matter having been profoundly altered or even destroyed.1801 The sim(1970) 10 Indian Journal of International Law, 359 et seq.; M Manouvel, ‘Métamorphose de l’Article 41 du Statut de la ICJ’ (2002) 106 RGDIP, 103 et seq.; M Mendelson, ‘Provisional Measures of Protection in Cases of Contested Jurisdiction’ in BYIL, vol 46 (1972–73) 259 et seq.; JG Merrills, ‘Provisional Measures of Protection and the Substantive Jurisdiction of the ICJ’ (1977) 36 Cambridge Law Journal 86 et seq.; JG Merrills, ‘Provisional Measures of Protection in the Recent Jurisprudence of the ICJ’ (1995) 44 ICLQ 90 et seq.; S Oda, ‘The International Court of Justice Viewed from the Bench (1976–1993)’ CCHAIL, vol 244, 1993-VII, 63 et seq.; K Oellers-Frahm, Die einstweilige Anordnung in der internationalen Gerichtsbarkeit (Berlin/Heidelberg/New York, 1975); K Oellers-Frahm, ‘Provisional Measures of Protection’ (1995) II EPIL 1027 et seq.; BH Oxman, ‘Jurisdiction and the Power to Indicate Provisional Measures’ in L Damrosch (ed), International Court of Justice at a Crossroads (New York, 1987) 323 et seq.; P Pescatore, ‘Les mesures conservatoires and les référés’ in Société française de droit international, Colloque de Lyon (1986), La juridiction internationale permanente, (Paris, 1987) 315 et seq.; P Palchetti, ‘L’indicazione di misure cautelari da parte della Corte internazionale di Giustizia in situazioni di estrema urgenza’ (1999) 82 RDI 719 et seq.; P Palchetti, ‘The Power of the ICJ to Indicate Provisional Measures to Prevent the Aggravation of a Dispute’ (2008) 21 Leiden Journal of International Law, 623 et seq.; S Rosenne, Provisional Measures in International Law: the International Court of Justice and the International Tribunal for the Law of the Sea (Oxford, 2005); SA Salkiewicz, Les mesures conservatoires dans la procédure des deux cours de La Haye, Mémoire IUHEI (Geneva, 1989); J Sztucki, Provisional Measures in the Hague Court (Deventer, 1983); G Tesauro, ‘Le misure cautelari della Corte internazionale di giustizia’ in Essays G Morelli (Milan, 1975) 873 et seq.; H Thirlway, ‘The Indication of Provisional Measures by the ICJ’ in Benhardt, op. cit. supra, 1 et seq.; NM Toraldo-Serra, Le misure provvisorie internazionali: ricerca storico-giuridica (Rome, 1973); A Tzanakopoulos, ‘Provisional Measures Indicated by International Courts: Emergence of the General Principle of International Law’ (2004) 57 RHDI 53 et seq.; NJ Udombana, ‘Provisional Measures: A Comparative Study of Selected International Judicial Institutions’ (2003) 43 Indian Journal of International Law 479 et seq.; P Weckel, ‘Les mesures conservatoires devant les juridictions internationales de caractère universel’ in G Cohen-Jonathan and JF Flauss (eds), Mesures conservatoires and droits fondamentaux (Brussels, 2005); Rosenne, The Law and Practice of the International Court, vol III, above n 1771, 1419 et seq.; Thirlway, above n 1771, 77 et seq.; Dubisson, above n 1771, 223 et seq. For a synthesis, see K Oellers-Frahm, ‘Article 41’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 923 et seq. See also Starace, above n 1771, 259 et seq. For provisional measures in municipal law, see, eg on Swiss law, SV Berti, Die vorsorglichen Massnahmen im Zivil-, Verwaltungs- und Strafverfahren (Basle, 1997). 1800   In Roman law proceedings, parties were obliged, after the litis contestatio, to provide guarantees (satisdationes) as to their conduct during the proceedings and after judgment. In some cases (action in rem in their own name), the defendant had to give three undertakings: (1) to execute the judgment (de re iudicata); (2) to perform all the duties of a defendant in this type of case (de re defendenda); and (3) to abstain from doing any harm, which included the obligation not to do any irreparable prejudice to the subject-matter of the dispute (de dolo malo). cf G Pugliese, Istituzioni di diritto romano (Padua, 1986) 348. 1801   There is a very strong analogy here with Art 18 of the 1969 Vienna Convention on the Law of Treaties, which endeavours to protect the essential contents of a treaty, between its signature and its entry into force, against acts tending to take away the purpose and objective of the treaty, so that, once in force, it could no longer be properly carried into effect. In both cases, moreover, this interim protection can be interrupted if, in relation to the Convention, a signatory State indicates to the others that it is not going to ratify, and, in the case of the ICJ, if the Applicant State discontinues the case. And, in both cases, what is at stake is essentially a matter of good faith. See R Kolb, La bonne foi en droit international public (Paris, 2000) 182 et seq., 599 et seq.



PROVISIONAL MEASURES OF PROTECTION 613

plest example of this situation is a dispute about a person who has been condemned to death. If one imagines the tribunal forming the view that the sentence was procedurally arbitrary, or that a fresh trial should be ordered, that judgment would be senseless and devoid of any purpose if the condemned person had, in the meantime, been executed. There is obviously a need to ensure the effective protection of the applicant’s rights, so that the proceedings are not turned, by such means, into little more than empty gestures, and also so as to preserve the binding character of the final judgment. This need makes it essential to have in place a mechanism that will ensure, pendente lite, that the subject matter of the dispute is preserved in such a state that the execution of the final judgment, if it goes in favour of the applicant, is not deprived of its proper effect. That is the purpose of provisional measures (mesures conservatoires; misure cautelari; medidas provisionales; einstweilige Anordnungen). They are, as the name implies, measures of a provisional nature adopted by a tribunal at some stage between being seised of the case and delivering its final judgment. Their purpose is to enjoin the respondent not to do certain acts which might gravely affect or alienate the subject matter of the dispute.1802 Article 41, paragraph 1 of the ICJ Statute provides as follows: ‘The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures that ought to be taken to preserve the respective rights of either party’; and paragraph 2 adds: ‘Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.’ Articles 73 to 78 lay down the procedure for provisional measures. Provisional measures pose some difficult legal problems. For example: 1) The subject in dispute might be altered not only by deliberate acts of bad faith, but also by the passing of time and a wide range of events. Up to what point should a Respondent State be saddled with the obligation to adopt positive measures for the preservation of the subject in dispute? They could easily become excessively onerous. Must the Court then refuse all positive obligations of this kind and stick solely to the obligation to abstain (subject to a reservation in respect of positive acts of bad faith which indirectly result in an alteration to the subject matter of the dispute)? 2) In addition, will the Court have jurisdiction to indicate such measures? Given their often urgent nature and the need to indicate them at the start of the proceedings, the Court will not yet have had the opportunity to satisfy itself fully as to its jurisdiction over the merits. But if it were permissible to start a case without any real basis of jurisdiction and at once to seek provisional measures of preservation, possibly covering a very wide range, the potential for abuses and nuisance would be very considerable indeed. The respondent, which by definition would be a sovereign State, would find itself provisionally prohibited from a whole range of acts and behaviour, when the Court in reality did not even have jurisdiction over the applicant’s claims. It is therefore necessary to carefully balance the urgency of provisional measures against a summary examination of the titles of jurisdiction, and of the Court’s jurisdiction as to the merits at least, for example, requiring the applicant to prove prima facie subject-matter jurisdiction. 1802   According to the definition of J Salmon (ed), Dictionnaire de droit international public (Brussels, 2001) 698: ‘A. Urgent measure for the purpose, while awaiting the settlement of disputed rights, to safeguard a right or a thing’; ‘C. In the course of legal proceedings, a measure taken by the tribunal in order to avoid the possibility that, during the proceedings prior to the decision on the merits, the rights that are in issue will be compromised.’ (our translation)

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3) It is also necessary to reach an understanding as to the precise objective of the provisional measures. Is the objective only to preserve the applicant’s rights against acts which tend to deprive them of all effect when the judgment is given (the minimal version of provisional measures)? Or is there an additional purpose, namely to facilitate the proceedings by adopting measures calibrated to that end (the amplified version)? 4) Finally, how does one balance the respective rights of the parties when the provisional measures are being indicated by the Court in a ‘delicate’ context? If, for example, the dispute relates to the construction of a great bridge (the Great Belt case, 1991) or of large-scale factories (case of Pulp mills on the River Uruguay, 2010), and if the proceedings look likely to last a long time, can the Court simply issue a provisional prohibition against construction, thus considerably limiting the respondent’s freedom of action and potentially causing it major economic loss? If the Court were to act in this way, would States still be inclined to accept the Court’s jurisdiction when it carried with it weighty potentialities of this kind? Conversely, if the Court did not indicate such measures, would it not be allowing the situation to be de facto prejudiced or even prejudged? How could the Court subsequently, if it decided that the construction work would be unlawful, order in its judgment on the merits that the construction work should now be completely dismantled and demolished, potentially causing equally major economic loss? Will not the Court, in such cases tend to bend before fait accomplis, and award only reparations? Conversely, if it indicates provisional measures, will it not tend thereby to also indicate that it prima facie considers the works as being unlawful? These are among the serious legal and practical problems posed by provisional measures.

b)  Historical Aspects1803 Until the beginning of the twentieth century, the peaceful settlement of disputes was not, from the legal perspective, a well-developed subject. It was rather diplomacy, treaties and war that were the decisive mechanisms. Also, almost until the creation of the PCIJ, international justice had still to be institutionalised; all that had been previously available was ad hoc arbitration. For these reasons, the distance between ‘judge’ and ‘parties’ was fairly minimal. Arbitrators were the agents of the parties, who nominated them and conferred upon them such powers as they had. There was no compulsory jurisdiction. Parties engaged in litigation only if both sides wished to use it as the means of resolving a particular dispute. In a context such as that, there was scarcely any need to make provision for provisional measures that would preserve parties’ rights. Parties had every incentive to act in such a way as to give sense to the procedures, since the latter were in all respects agreed upon between them. Unsurprisingly, therefore, we find no provisions relating to Provisional Measures even in the Hague Conventions of 1899 and 1907 on the resolution of disputes by arbitration. Perhaps it is equally unsurprising that we find the first provision on Provisional Measures in Article 18 of the 1907 Convention establishing the Central American Court of Justice, which was the first permanent and institutional international tribunal. Subsequently, provisions on Provisional Measures were included in certain of the 1803   In Roman trials, the interdicta and sometimes the stipulationes praetoriae fulfilled functions which included those of Provisional Measures. cf Pugliese, above n 1800, 369 et seq.



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Bryan Treaties of the years between 1910 and 1919, concerned with international commissions of enquiry.1804 Article 41 of the Statute was the result of a proposal by the Brazilian jurist R Fernandes.1805 He suggested to the consultative Committee of Jurists charged with drafting the Statute the inclusion of a provision on binding Provisional Measures to be reinforced by sanctions. The Committee did not consider it profitable to engage in prolonged debate on the binding character of such measures. It emphasised that the Court did not have power itself to proceed to the execution of its own decisions, and that therefore the sanctions proposed by Fernandes went beyond what was possible in the Statute. For the same reason, the term ‘order’ was dropped from the wording. In the English text, the expression used was ‘suggest the Provisional Measures’ and the rather different formulation in the French text used the words ‘indiquer des mesures conservatoires’. The Sub-commission appointed by the Third Commission of the first Assembly of the League of Nations, with the task of revising the Committee of Jurists’ text, aligned the English text on the French one, replacing the word ‘suggest’ with the word ‘indicate’. It also eliminated the words ‘measures which should be taken’ and replaced them with ‘measures which ought to be taken’, supposedly in line with the French text which read ‘mesures [qui] doivent être prises’. The result was a text that, although firmer, still did not clearly resolve the question as to the obligatory nature of Provisional Measures. Taken overall, the way the drafts evolved rather militates against the measures being binding. But that concerns only the views and intentions of the draftsmen of 1920. Also, there is some room to wonder whether sometimes the (non-)binding character of the measures was confused with their (non-)executory character. In the end, the Sub-Commission deleted the words ‘acts already committed or about to be committed’. There was no need to enter into the nature of the dispute in order to affirm the Court’s right to indicate Provisional Measures. Also, there was the fact that a dispute can relate to an omission as well as to an act. In 1945, the text of Article 41 was left unamended, apart from the substitution in paragraph 2 of a reference to the Security Council in lieu of the former reference to the Council of the League of Nations. The Court has very frequently been presented with applications for the indication of Provisional Measures.1806 The PCIJ received six, and by the end of 2009 the ICJ had received about 40. They seem to be used as part of the applicant’s litigation strategy, with a view to obtaining a moral and legal ‘victory’ by putting pressure on the Respondent State. Either the latter complies with the Court’s order so that the applicant gets what it wants, or it fails to comply and is then left in an uncomfortable position, the Court having the power to draw adverse consequences from its defiant attitude. It has by now become almost the rule for a unilateral application against a State to be accompanied, immediately or shortly afterwards, by a request for the indication of Provisional Measures. It will be helpful to analyse first the legal context in which the Court exercises its power to make such Orders and also their effects, and then examine a number of particular questions. 1804   On these precursors of the Court’s provisional measures, cf Oellers-Frahm, ‘Article 41’,above n 1799, 925. For an in-depth study of these precursors, see Gemalmaz, Provisional Measures, above n 1799, 3 et seq. 1805   On these travaux préparatoires, cf the succinct view offered by Oellers-Frahm, ibid, 926 and the references there cited. See also Gemalmaz, Provisional Measures, above n 1799, 18 et seq. 1806   A list of all these cases is to be found under the heading ‘Provisional Measures’ in the ICJ Yearbook, in a footnote. For a list of the cases between 1947 and 2005, cf Oellers-Frahm, ‘Article 41’above n 1799, 963–66. The latter includes the PCIJ which received six such requests. For a commentary on the requests, cf Hudson, above n 1771, 428–30.

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c)  The Purpose of Provisional Measures The purpose of Provisional Measures is both to enable the Court to preserve the value of its judicial functions and to ‘preserve the respective rights of the parties, pending the decision of the Court’.1807 Corresponding to this dual function are the dual powers to indicate Provisional Measures proprio motu, and to do so in response to a party’s request. On the one hand we have the objective interest in the effective functioning of the system and the proper administration of justice and, on the other, the subjective interests of parties seeking the protection of their rights pendente lite. The Court is the guardian of the objective interest, as a matter of judicial integrity. The subjective interests of parties are not so much matters of general interest as questions relating to the particular interests of the States concerned. However, the distinction between the two categories is not as simple as it might at first sight seem. The parties, like the Court, have an interest in the proper administration of justice. The Court, for its part, must seek to preserve the parties’ essential rights against attitudes affecting the capacity of its judgment to have the necessary executory effects. Although there is a difference of emphasis here, the two aspects are in truth interwoven. Provisional Measures are, so to speak, fed from two teats, but the substance of the milk is similar, though not identical. The objective aspect turns essentially on the ‘non-­aggravation of the dispute’ and the subjective one on the ‘preservation of the parties’ rights’, especially those of the applicant. Non-aggravation of the dispute. In the Court’s jurisprudence, the objective aspect concerns the concept of ‘non-aggravation of the dispute’.1808 The principal reason for establishing a court of justice is to make provision for the peaceful resolution of disputes, that is, to reduce tensions and channel disputes towards a rational mode of settlement. This objective would obviously be undermined if the very efficacy of the final judgment were endangered, the parties, unable to request Provisional Measures for their own protection, being freely permitted to aggravate their dispute and drain the sense out of the rights that are being litigated about. Seising the Court would then be a purely formal event, the parties’ hearts and spirits not being truly invested in the judicial proceedings. Obviously the Court cannot supply the spirit if it is lacking. It must, however, have power to try to calm the situation and to preserve the case’s utility, because a deterioration in relations between the parties is not always the result of deliberate bad faith (about which the Court can do little), but is often the result of an unfortunate chain of circumstances. To this end, therefore, the Court, as the principal judicial organ of the United Nations, invested with an important function in relation to dispute resolution,1809 must have inherent power to indicate Provisional Measures, independently of the parties’ right to ask for them in light of their own objectives. Article 41 of the Statute is drafted sufficiently widely to enable the indication of Provisional Measures proprio motu. It provides that: ‘The Court shall have the power to   Case on the Denunciation of the Sino-Belgian Treaty of 2 November 1865, PCIJ, Series A, no 8, 6.   Oellers-Frahm, ‘Article 41’above n 1799, 931; Sztucki, Provisional Measures in the Hague Court: An Attempt at a Scrutiny, above n 1799, 74 et seq.; Oda, ‘The International Court of Justice Viewed from the Bench’, above n 1799, 72–73; P Palchetti, ‘The Power of the International Court of Justice to Indicate Provisional Measures to Prevent the Aggravation of a Dispute’ (2008) 21 Leiden Journal of International Law 623 et seq. See also Art 18 of the 1907 Convention establishing the Central-American Court of Justice. 1809   This is a collective interest of the international community: see Art 2, § 3, and Chapter VI of the Charter, as also General Assembly Resolution 2625 of 1970. 1807 1808



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indicate, if it considers that circumstances so require, any Provisional Measures which ought to be taken to preserve the respective rights of either party.’ The words ‘if it considers that circumstances so require’ refer to the Court’s power to form an appreciation of the situation; they thus open the way to the exercise of an autonomous competence. On the other hand, Article 41 of the Statute does say that it concerns Provisional Measures to ‘preserve the respective rights of either party’. It is therefore uncertain whether the power we are now considering can be attached, as regards its object, to the power expressed in Article 41. Indeed, what we are considering here is an inherent power of the Court, resulting directly from its judicial functions and not a power incidental to the Court’s jurisdiction over parties’ substantive rights and obligations.1810 The difference is mirrored in its different objective, the protection of judicial integrity, as opposed to the protection of parties’ rights. Legally, it is possible to attach these proprio motu measures for the protection of judicial integrity to Article 41, by a wide interpretation going beyond the express words used and emphasising the fact that the wide interpretation still remains within the typology of Provisional Measures. Alternatively, it is possible to treat measures of this kind as an inherent power of the Court arising from its need to have all the implied powers necessary for the proper exercise of its legal functions, that is, the preservation of its integrity and the integrity of its final judgments. In that case, the emphasis is on the different objective behind such measures compared with the objective behind parties’ own unilateral requests for Provisional Measures. The Court has chosen to attach such measures to Article 41 of the Statute.1811 By doing so it can shelter behind an express provision of the texts, instead of postulating an inherent power. This jurisprudential choice gives rise to no particular legal problems, provided one recognises that, in the last resort, what is concerned here is a right that the Court exercises not principally in order to preserve parties’ rights, but primarily to preserve the essence of its own public interest rights, powers and duties. The PCIJ had already opened the way to the motu proprio indication of Provisional Measures in order to avoid disputes growing more serious. In the case on the Legal status of South-East Greenland (1932), the Court had envisaged that it might be permissible for it to adopt such measures motu proprio ‘for the sole purpose of preventing regrettable events and unfortunate incidents’,1812 adding, however, that there was no need in the circumstances to decide this question. It was, however, prepared to recall that the parties were already bound not to aggravate the dispute by virtue of Article 33, paragraph 3 of the 1928 General Arbitral Act, to which both sides were parties, and that the application of that provision was subject to the compulsory jurisdiction of the Court.1813 In the Electricity Company of Sofia and Bulgaria case (1939), the Court, while recalling that Article 61, paragraph 4 of the then Rules entitled it to indicate Provisional Measures other than those requested by the parties, said that the latter were obliged, under a universally accepted principle, to ‘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 extend or aggravate the dispute’.1814 On this interpretation, the seising of the Court and indication of such measures result in a fairly major modification to the parties’ 1810   cf H Thirlway, ‘The Indication of Provisional Measures by the ICJ?’ in Bernhardt, above n 1799, 14–15; Sztucki, Provisional Measures in the Hague Court: An Attempt at a Scrutiny, above n 1799, 74 et seq., 127 et seq. 1811   Case of the Land maritime boundary between Cameroon and Nigeria, ICJ Reports 1996-I, 22–23, § 41. 1812   PCIJ, Series A/B, no 48, 284. 1813   Ibid, 288–89. 1814   PCIJ, Series A/B, no 79, 199.

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legal positions. They now become subject to quite sweeping obligations as to their conduct, implying that they are under a duty to adopt a whole series of positive measures to preserve the subject matter of the dispute against any kind of ‘aggravation’. The Court did not indicate what measures were required. Potentially, any act or omission in the face of events or any acts which might lead to an aggravation of the dispute, and a fortiori any actually having that effect, would constitute breaches of the Court’s Order. This means the imposition of a considerable burden on the States that are parties to the case, all the more onerous if one accepts that the measures indicated by the Court are legally binding. Given the amplitude and considerable scope of such measures, the ICJ for a long time abstained from exercising this power. The cold war background was hardly conducive to it. Instead, the ICJ preferred to focus its Provisional Measures on the concept of ‘irreparable prejudice’ (as to which see further below). In a number of cases, the Court faced a very tense situation between the parties. Subsequently, it was faced with sporadic and more intense military operations that were taking place pendente lite. It seemed particularly difficult to pass over these facts in silence given that they were so utterly incompatible with the judicial process. The use of force is not only the complete opposite of peaceful dispute resolution, but risks so poisoning relations between the parties as to make peaceful resolution a vain hope. What is more, the prohibition by Article 2, paragraph 4 of the UN Charter against the use of force is one of the fundamental norms of modern international law. It was very difficult to imagine the Court being entirely silent when faced with such a violation pendente lite. The substantive issues before the Court in these cases were territorial claims, and not directly the issue of use of force. For this reason, it was not possible for the Court to confine itself to the protection of the parties’ rights as determined by the issues in the case. There was also, and indeed above all, the need to contribute to the maintenance of peace, and to prevent any significant aggravation of the dispute. These are main aims of the UN Charter and the Court is the principal judicial organ of the UN. In such situations, the Court is often in part duplicating and reinforcing the efforts of the Security Council to keep the peace. Little by little, this jurisprudence was extended to other questions, such as respect for international humanitarian law. The Court acted in such a way in the highly sensitive Nuclear Tests case (1973), where the relationship between the parties was a tense one. The Court received a request from Australia and New Zealand designed to have it prohibit, provisionally, any atmospheric test which might lead to fallout over the territories of Australia and New Zealand. The Court added sponte sua a measure obliging the States concerned to ‘ensure that no action is taken which might aggravate or extent the dispute’ or which ‘might prejudice the rights of the other Party in respect of the carrying out of whatever decision the Court may render in the case’.1815 A similar precedent was set in the case of the Diplomatic and consular personnel of the United States of America at Teheran (1979)1816 and before that, as early as the AngloIranian Oil Co case (1951).1817 Subsequently, in the Territorial dispute (Burkina Faso v Mali, 1986), the Chamber of the Court recalled that it ‘possesses [independently of the parties’ claims and requests] 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’;1818 that this power ought particularly to be   ICJ Reports 1973, 106, 142.   ICJ Reports 1979, 21, § 47, B. 1817   ICJ Reports 1951, 93, no 2. 1818   ICJ Reports 1986, 9, § 18. 1815 1816



PROVISIONAL MEASURES OF PROTECTION 619

exercised when there is recourse to force;1819 and the Court indicated measures accordingly.1820 In the case on the Land and maritime boundary between Cameroon and Nigeria (1996), the Court confirmed this attitude.1821 It followed suit in the case on Armed activities in the territory of the Congo (2000).1822 In that case, the Provisional Measures indicated by the Court required the parties to respect, amongst other things, fundamental human rights and international humanitarian law, in the area of conflict. The Court went so far as to require the parties to take all steps necessary to ensure such respect.1823 The tendency of Provisional Measures as regards the aggravation of disputes is thus progressively drawing away from the subject of the dispute (and the associated issues concerned with the proper administration of justice), in the direction of a kind of ‘public interest’ mission to protect and safeguard the fundamental norms of general international law. Just as one has to approve the Court’s autonomous indications of Provisional Measures in order to preserve judicial integrity and its competence to thus protect this integrity, one has also to recognise that such measures are increasingly remote from, and tenuous in their connections with, the substantive issues in dispute. This naturally gives rise to various legitimate questions which unfortunately cannot be explored in depth in the present context.1824 It has been said that in this regard the Court has, since the turning point in 1990/1991, been getting farther away from the subjects in dispute and more and more exercising the typical prerogatives of the Security Council.1825 It has also been said that such measures are of limited practical value given the precarious situations in which the Court indicates them. They usually need the active support of the Security Council. It is not possible to provide a general analysis at this point of everything that might come under the heading of ‘non-aggravation’ of a particular concrete dispute. There is a good analogy here with the duty under general international law to preserve the subject matter of a treaty or the practical utility of a negotiation.1826 The Court itself can give concrete expression to the requirement of non-aggravation by issuing specific injunctions to the parties, whether binding ones or merely by way of recommendation. These requirements can extend from respect for specifically identified norms of general international law to the creation of a surveillance commission. In legal terms, therefore, one must conclude that, in this field, the Court has a discretionary power. Given that at this stage in a set of proceedings, the Court’s jurisdiction as to the merits has yet to be thoroughly examined; that the measures indicated can significantly constrain the sovereign freedom of action of the States concerned; and that States should not, except for good reason, be given reasons to withdraw from titles of jurisdiction; nevertheless the Court is well advised to fully exercise its   Ibid, 9, § 19.   Ibid, 11–12. 1821   ICJ Reports 1996-I, 22–23, § 41: ‘Considering that, independently of the requests for the indication of provisional measures submitted by the Parties to preserve specific rights, the Court 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.’ See also the case on the Application of the Convention on the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Yugoslavia), ICJ Reports 1993, 23–24, 349–50. 1822   ICJ Reports 2000, 128, § 44. 1823   ICJ Reports 2000, 129, § 47, no 3. 1824   See Thirlway, above n 1771, 110–11. 1825   This distancing from the subject of a dispute over which the Court has jurisdiction has been criticised by J Sztucki, ‘Case Concerning the Land and Maritime Boundary (Cameroon v Nigeria): Provisional Measures’ (1997) 10 Leiden Journal of International Law 357–58. 1826   See the detailed analysis in Kolb, La bonne foi en droit international public, above n 1801, 182 et seq., 278 et seq., 586 et seq., with references to the literature and practice. 1819 1820

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powers to preserve the subject matter of disputes and to ensure the proper administration of justice, but not to go significantly beyond what is strictly necessary to achieve these objectives. The Court’s independence in the matter of indicating Provisional Measures proprio motu is enshrined in the Rules.1827 Article 75, paragraph 1 provides that: The Court may at any time decide to examine motu proprio 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;

and paragraph 2: When a request for Provisional Measures has been made, the Court may indicate measures that are in whole or in part other than those requested, or that ought to be taken or complied with by the party which has itself made the request.

The Court has often indicated different or supplemental measures to those actually requested by the parties, and examples are to be found in the cases on Fisheries Jurisdiction (1972),1828 Nuclear tests (1973),1829 United States diplomatic and consular staff in Tehran (1979),1830 the Boundary dispute case (1986)1831 and the Land and maritime boundary case (1996).1832 One interesting precedent is the Anglo-Iranian Oil case (1951),1833 in which not only did the Court not follow the applicant’s request, but it recommended the establishment of a surveillance commission to oversee the exploitation of the company’s resources inside Iran. The measures indicated by the Court of its own volition were unusually precise in the context of the Court’s jurisprudence. Preservation of the parties’ rights. Such Provisional Measures are designed to preserve the parties’ rights pending the final decision, so that the substance of such rights is not reduced to nothing or deprived of any useful value. Were it not for such Provisional Measures, the final judgment might become pointless, there being no real possibility of its being executed in any meaningful way.1834 Here, applicants are seeking to link the measures to their substantive rights. The need for such measures will be very obvious if the absence of such protection might deprive the whole suit of its practical effects. Article 41, paragraph 1 of the Statute expresses this conception of protection in the words ‘Provisional Measures . . . to preserve the respective rights of either party’1835 (italics added). The Statute uses this reciprocal formulation in application of the principle that the parties are equal before the Court.1836 However, in the present context, there is a practical limit to the scope of that principle. Usually, it is the applicant alone that seeks Provisional Measures and it is quite usual for the Court to indicate measures in line with the applicant’s request. Unless the respondent has likewise sought Provisional Measures, the Court is not under any obliga1827   cf Oellers-Frahm, ‘Article 41’, above n 1799, 931–32; Thirlway, above n 1771, 107 et seq.; G Guyomar, Commentaire du Règlement de la Cour internationale de Justice, adopté le 17 avril 1978: Interprétation et pratique, 2nd edn (Paris, 1983) 486 et seq. 1828   ICJ Reports 1972, 12 et seq., 30 et seq. 1829   ICJ Reports 1973, 99 et seq., 135 et seq. 1830   ICJ Reports 1979, 7 et seq. 1831   ICJ Reports 1986, 3 et seq. 1832   ICJ Reports 1996-I, 13 et seq. 1833   ICJ Reports 1951, 94, no 5, the constitution of the commission being left to agreement between the parties. 1834   cf Oellers-Frahm, ‘Article 41’,above n 1799, 930–31. 1835   In the French text: ‘les droits de chacun’. 1836   See Greig, above n 1799, 108 et seq.



PROVISIONAL MEASURES OF PROTECTION 621

tion to also indicate measures in the respondent’s favour. The principle of equality is sufficiently provided for by the fact that both sides have an equal right to ask for such measures. One has to admit, however, that unless the respondent puts forward counterclaims on the substantive issues, accompanied by a request for Provisional Measures associated with such counterclaims,1837 its request for Provisional Measures will not usually have a sufficiently clear underlying objective to satisfy the conditions for the Court to take action in its favour. Nevertheless, the Court is often able to temper the relative inequality between the parties, where only one side is seeking Provisional Measures protective of its substantive rights, by indicating measures proprio motu, in particular those enjoining both sides not to do anything to aggravate the dispute, and those that apply to both sides, such as, for example, the creation of a control commission. The disputed rights are protected against actions working ‘irreparable prejudice’ (see below section (d)). Irreparable prejudice as a concept does not relate to the rights as legal positions. The latter, in giving rise to normative obligations, cannot per se be prejudiced by a unilateral action. A simple material fact cannot alter a norm if it is not recognised by the law as a fact which works a legal alteration. Rather, irreparable prejudice relates to the substance of the right. Every right is engrafted onto a subject in the real world. If that subject is destroyed, or gravely altered, the right can no longer be properly exercised. In the alternative, it will be excessively burdensome to reinstate the legal status quo ante so as to permit the exercise of the right. In such cases, if the judgment were to go in the applicant’s favour, it would be largely ineffectual, given that its subject would effectively have been rendered sterile. Thus, if, for example, a State’s substantive claim is that certain natural resources must not be ruined by some major type of pollution, it would be possible, in the absence of Provisional Measures, for the resources to have been irreparably damaged, or even to have completely disappeared, by the time of the judgment, as a result of the continuing effects of polluting agents being pumped out on a massive scale. If the substantive right to the benefit of these resources is not, as a right, affected by the actual pollution, the de facto right to the benefit of the resources certainly can be very seriously affected. Provisional Measures are designed to preserve the factual situation necessary to the meaningful exercise of the disputed rights. As can be seen, this ‘subjective’ aspect of Provisional Measures serves two interests: the interests of parties in preserving their rights (especially the interests of the applicant); and the interest of the Court in preserving the practical utility of proceedings before it and in making sure that the final decision will not have become illusory in its effects. In other words, to an utilitas singulorum there is added an utilitas publica.

d)  Material Conditions for the Indication of Provisional Measures Certain conditions have to be satisfied before the Court can indicate Provisional Measures. This is so because such measures sometimes have a significant effect in limiting the freedom of action of a party to the case. The need for restrictions is all the more obvious since the parties are sovereign States. – Condition 1: the Court must be seised of a dispute. Provisional Measures are a purely incidental procedure, engrafted onto a substantive case. They cannot, therefore, be sought   See the Genocide Convention case (Bosnia-Herzegovina v Yugoslavia), ICJ Reports 1993, 3 et seq., 325 et seq.

1837

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outside the context of a case that is pending before the Court. The text of Article 41, paragraph 2 of the Statute seems to confirm this, in the words ‘Pending the final decision’ and ‘parties’. These words make sense only if Provisional Measures are available only once the Court has been seised. From that point on, the parties are awaiting a definitive decision and there truly are ‘parties’ to the proceedings. Also, if it is a matter of preserving parties’ rights, this can only be done during the course of proceedings. The Court does not have power to provide for the protection of rights of every description outside the context of proceedings before it. The contrary interpretation would result in the use of Provisional Measures to institute a kind of universal jurisdiction. The question was raised for the first time in the case on the Legal status of the territory of South-East Greenland (1932), but at that time the Court gave it no very clear answer.1838 Since that case, such measures have been asked and ordered only vis-à-vis parties to cases. The question has thus been given a clear answer by the consistent practice of the Court. Whether Provisional Measures can also be indicated in advisory proceedings will be considered below. – Condition 2: the Court must have ‘prima facie’ jurisdiction over the merits of the dispute.1839 If, from the outset, both sides accept that the Court has jurisdiction over the merits (and if no problems of personal or material jurisdiction arise), there is then no problem as to its incidental jurisdiction under Article 41. The Court may, without further ado, indicate Provisional Measures. If, however, the Court’s jurisdiction is disputed, the question presents itself in a rather different light. This generally happens when a unilateral application is made on the basis of the compulsory jurisdiction, the applicant affirming that jurisdiction to exist and the respondent denying it. It should also be noted that Provisional Measures are requested with particular frequency in such cases, either because the applicant fears that the respondent, not content to see the Court seised of the case, might develop ‘hostile’ designs, or because it wishes to push to the limit the advantages in terms of litigation strategy that can be derived from Provisional Measures of this type. The provisional recognition of rights can be claimed as an immediate victory, or can throw onto the respondent the opprobrium of refusing to comply with them. In such cases, the respondent will often be disputing the Court’s jurisdiction. Given that Provisional Measures are an incidental procedure, in principle they can be ordered only if the Court has jurisdiction over the merits.1840 Without jurisdiction, the Court can do 1838   PCIJ, Series A/B, no 48, 283–84: ‘Whereas it is in principle arguable that such a power on the part of the Court exists only in respect of a dispute already submitted to it; but as the Court is not now called upon to decide this question concerning the interpretation of its powers, since there has already been regularly submitted to it’. 1839   See the succinct comments in Oellers-Frahm, ‘Article 41’, above n 1799, 934–37; Thirlway, above n 1771, 78 et seq.; Gemalmaz, Provisional Measures, above n 1799, 155 et seq. 1840   Certain judges have taken the view that Provisional Measures can, and must, be indicated by the Court as an inherent power, based directly on Art 41 of the Statute, itself interpreted as an autonomous provision and not as one providing for an incidental procedure. In other words, the Court’s power to indicate Provisional Measures would not depend on its jurisdiction over the merits, but solely on its inherent power under Art 41 of the Statute, the Court being in a position to exercise that power if, in its view, the ‘circumstances so require’. However it is not disputed that the prospect of having jurisdiction over the merits continues to be a highly relevant circumstances when the Court is deciding whether the circumstances do in fact require the indication of Provisional Measures. cf the Independent Opinion of Judge E Jiménez de Aréchaga, in the case on the Aegean Sea continental shelf, ICJ Reports 1976, 15–16. The Court has taken the view that the circumstances never do require the indication of Provisional Measures unless the Court has at least a semblance of jurisdiction. The Court has thus given concrete application to the words ‘circumstances so require’ in Art 41 by laying down a general doctrine going beyond any particular case. The need to carefully balance competing interests, as discussed at the beginning of this chapter, seems to justify the Court’s approach.



PROVISIONAL MEASURES OF PROTECTION 623

nothing, not even indicate Provisional Measures. At this point, however, a second element comes into play. Provisional Measures under Article 41 are an urgent matter. The preservation of the real value of the possible substantive rights of parties calls for rapid action. If they have to wait for the Court to carry out a full examination of a jurisdiction issue, which can be an extremely complex matter, this would mean a long wait without any protection. The risk of a true denial of justice if and when, at a later stage, the Court’s jurisdiction is finally established would exist. These two conflicting interests – not to act without first establishing jurisdiction versus the urgent nature of measures requiring immediate action – need to be carefully balanced. The only possible way to do this was to neither require the maximum (the positive establishment of jurisdiction), nor to permit the minimum (to allow the indication of measures without any kind of demonstration of the Court’s jurisdiction). An intermediate position was necessary. If the Court’s jurisdiction had to be fully demonstrated, Provisional Measures would be almost useless. If no kind of demonstration were required at all, the situation would be ripe for abusive applications by States that had no basis on which to show that the Court had jurisdiction, with a view at least to inflicting on their opponents the temporary nuisance of Provisional Measures and obliging them to deal with the Court. The PCIJ never had to concern itself with this problem, since Provisional Measures were never requested in a case where its jurisdiction was in dispute (except precisely where the jurisdiction question had already been ruled upon1841). The ICJ itself first had occasion to focus on this question in the Anglo-Iranian Oil case (1951). There, the Court laid down the broad lines of the ‘prima facie competence test’.1842 In reality, that test has two limbs, one negative, namely the absence of ‘manifest want of jurisdiction’, the other positive, namely a balance of probability that the Court does have jurisdiction. This dual test reflects the summary nature of the decision which needs to be taken in urgent procedures of this kind. The Court has to make up its mind swiftly, often at a very preliminary stage of the proceedings, before it has been able to acquire an in-depth knowledge of the case. It has, therefore, to act on what, at first sight (prima facie), seems to it to be the most likely view. The indepth analysis comes later. If, at that later stage, it were to appear that the Court does not after all have jurisdiction, the Provisional Measures already indicated would cease ipso facto and ipso jure to be applicable, as shown by the Anglo-Iranian Oil case. The above requirement, as outlined in the 1951 Anglo-Iranian Oil case, has been followed ever since, despite a certain amount of retouching of the actual phraseology used by the Court. In 1951 the Court put the point as follows: ‘[I]t cannot be accepted a priori that a claim based on such a complaint falls completely outside the scope of international jurisdiction’, that is, the Court’s jurisdiction.1843 This was still a rather imprecise formulation. In the words ‘falls completely outside the scope of international jurisdiction’, the Court was apparently suggesting that the question’s international character was more decisive than the concrete titles of jurisdiction. But that is not so. The most modern and precise formulation is to be found in various cases, including in the Fisheries Jurisdiction case (1972): ‘Whereas the above-cited provision in an instrument emanating from both parties to the dispute appears, prima facie, to afford a possible basis on which the jurisdiction of the 1841   Case of the Electricity Company of Sofia and Bulgaria (1939): judgment on Preliminary Objection 4 April 1939; Order on Provisional Measures 5 December 1939. cf PCIJ, Series A/B, nos 77 and 79. 1842   ICJ Reports 1951, 93. 1843   ICJ Reports 1951, 93.

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Court might be founded.’1844 The Court has sometimes decided that it manifestly has no prima facie jurisdiction, and has therefore refused Provisional Measures.1845 In its jurisprudence, the Court has almost invariably begun by analysing its jurisdiction on a prima facie basis. Except in one case,1846 it has never, until 2010, refused Provisional Measures on the ground that some other condition for issuing them has not been satisfied. In reality, jurisdiction takes priority over other questions. However, the order of things can be adjusted if the economy of the process requires it. This would be the situation in the improbable event that not only jurisdiction over the merits, but even prima facie jurisdiction, were, for some reason, an excessively complicated question, but the application could easily be rejected on some other ground. In the case where the Court rejected a request for Provisional Measures without examining the question of prima facie jurisdiction, it did so because the applicant was asking that the measures be deferred. The Court was able to agree, because it took the view that the element of urgency, required for the indication of Provisional Measures, was manifestly lacking in the circumstances of the case.1847 The Court therefore normally looks into the question of its prima facie jurisdiction (no obvious lack of jurisdiction, and jurisdiction existing on balance of probabilities). Does the Court have also to consider prima facie admissibility? There can be no doubt that the Court needs to give full consideration – not just prima facie consideration – to the general admissibility of the request for Provisional Measures, since this goes to the integrity of the judicial function. What, then, about special admissibility, protecting the interests of the parties? In the case on the Land and maritime boundary between Cameroon and Nigeria (1996), the Court held that prima facie admissibility was established, without going so far as to say that it must always be established before Provisional Measures can be indicated.1848 Leading commentators have suggested that, in any event, the Court must refrain from indicating interim measures if there is a real and substantial possibility that the request may be inadmissible.1849 From the point of view of the balancing of interests (see above), it is not essential to know whether the Court is risking bringing the proceedings to an end by taking the view that it lacks jurisdiction, or that the request is inadmissible. Either way, the case will cease, and Provisional Measures might be an excessive constraint on the liberty of the party or parties affected by them. Ubi eadem ratio, idem jus. What is more, as we have already seen, the distinction between the grounds of want of jurisdiction and inadmissibility can, in some circumstances, be a particularly tenuous one. That is another reason to extend the prima facie test to the admissibility question as well. From another perspective, however, one might say that arguments as to inadmissibility are generally of a less intensely preliminary nature than those going to jurisdiction. They are very varied, and are intimately connected with the merits. The old practice of ‘joining to the merits’, and nowadays the declaration that an objection is not, in the circumstances of the case, exclusively prelimi  ICJ Reports 1972, 16, § 17 and 34, § 18.   Case on Armed activities in the territory of the Congo (new Application, DRC v Rwanda): ICJ Reports 2002, 249, § 89. 1846   Case on the Trial of Pakistani prisoners of war, ICJ Reports 1973, 330, § 14. 1847   Ibid. The priority of jurisdiction was the subject of a reservation at § 16. 1848   ICJ Reports 1996-I, 21, § 33: ‘Whereas without ruling on 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, it considers that, in this case, the consolidated Application of Cameroon does not appear prima facie to be inadmissible in the light of the preliminary objections raised by Nigeria.’ 1849   Thirlway, above n 1771, 86. 1844 1845



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nary in nature, are eloquent testimony to this difficulty. For these reasons, the evaluation of arguments as to special inadmissibility is often very difficult at such an early stage of the proceedings as the indication of Provisional Measures. This might militate against the extension of the prima facie test to objections as to admissibility. The answer might simply be that, in situations where the legal answer is unclear, there is manifestly no prima facie inadmissibility, and so the Court can indicate Provisional Measures. One might also distinguish between objections to admissibility on a peremptory basis and those that are merely timing questions. The latter may concern only a relatively transitory period of the case, possibly making it valuable to indicate Provisional Measures even before the probable resumption of the case, so that the subject matter of the proceedings is preserved. The proceedings ought in such a case to be suspended rather than terminated, since termination would put an end both to the measures and to their utility. To sum up, the Court can be required to refuse Provisional Measures on the basis that there is prima facie inadmissibility only in those rather infrequent cases where the prima facie inadmissibility is well demonstrated. Since the grounds for special inadmissibility are many and various, often depending on the free choice of a party as to whether or not to raise them, the Court cannot be expected to elaborate them or even to speculate on their possible existence. Either the question is a live one, whether objectively or subjectively, because a party has raised the point, in which case the Court can refuse the measures; or it is not, in which case the Court will indicate the measures unless some other condition for doing so is unfulfilled. – Condition 3: a sufficient nexus between the measures required and the substantive rights of the parties.1850 The Provisional Measures requested by parties must be designed to preserve the rights invoked in the substantive claim, that is, those that are to be the subject of the final judgment. One cannot seek the protection of rights other than those that are the subject of the main dispute. Indeed, it is the capacity of the judgment to rule correctly and efficaciously on these rights, and the ability to execute the judgment properly, that the Provisional Measures are designed to protect. As the PCIJ stated in the case on Polish agrarian reform and the German minority (1933): ‘[S]uch measures should have the effect of protecting the rights forming the subject of the dispute submitted to the Court’.1851 This functional and causal aspect also limits the scope of the Provisional Measures that the Court may indicate proprio motu. ‘Not to aggravate the dispute’ and to protect the procedure against external challenges are two elements that are sufficiently connected to the very subject matter of the dispute. At the same time, given their rather wider aim, measures indicated by the Court of its own volition can be slightly further removed from the subject matter of the dispute than measures to protect disputed substantive rights. On the one hand, it is possible to protect concrete rights that are in dispute; on the other, it is necessary to protect the Court’s procedure itself, since damage to the procedure will unfailingly, albeit indirectly, affect the parties’ substantive rights too. Measures in the former category directly protect such rights; measures in the latter category protect all rights relating to the proceedings, of whatsoever nature, the purpose of the measures being to safeguard the proper conduct of the proceedings themselves. The Court needs to take care that its inherent power to indicate Provisional Measures remains sufficiently connected to the needs of the Court’s procedure and does not degenerate, for example, into a general police power 1850  See the comments and synthesis in Oellers-Frahm, ‘Article 41’,above n 1799, 938–39; Thirlway, above n 1771, 87 et seq.; Gemalmaz, Provisional Measures, above n 1799, 258 et seq. 1851   PCIJ, Series A/B, no 58, 177.

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designed to ensure the maintenance of peace or the settlement of disputes.1852 Recent jurisprudence, already referred to above, has somewhat stretched these connections. The Court is not, at this stage of a case, concerned with whether the substantive rights exist or are well founded. For example, if the dispute concerns the suspension or extinction of a right and it is not prima facie manifest whether the suspension or extinction is justified, the Court can, and if necessary must, indicate Provisional Measures. It will refuse only if these rights are manifestly non-existent, for in such a case it will lack prima facie jurisdiction over the subject matter of the dispute. If the alleged rights do seem to exist but, for one reason or another, cannot be exercised, there will normally be no place for adopting Provisional Measures to preserve their substance. Indeed, rights cannot be adversely affected by material acts and therefore do not need protection by the Court.1853 The protection is for the substance of the right, the matter to which the concrete exercise of the right relates. But, in the hypothesis we are considering, it is precisely this concrete exercise which is prevented. This happens, for example, if the exercise of a treaty right is suspended sine die by collective security measures decided upon by the Security Council and taking priority under Article 103 of the Charter. For this reason, the Court refused to indicate Provisional Measures in the Lockerbie cases (1992).1854 Such measures under the treaty law which was the subject of the proceedings would have damaged the efficacy of the Security Council’s binding resolution. This was so because the Court’s Order, in so far as binding, would also have enjoyed the protection of Article 103 of the Charter, and to the extent not binding, would at the very least have created a degree of contrariety between injunctions of two of the United Nations’ main bodies. The Court takes the view that it must not interfere with the Security Council’s powers on the maintenance of the peace. Might it be otherwise if the Court thought the Security Council was intervening in an illegitimate way in a case before the Court? That is not a legal impossibility but, in the perspective of judicial policy, is surely unlikely to happen. The measures parties request are, however, not always adequately aligned with the substantive rights in dispute. In the case on the Polish agrarian reform and the German minority (1933), the Court refused the Provisional Measures that were requested, on the basis that they ‘would result in a general suspension of the agrarian reform in so far as concerns Polish nationals of German race, and cannot therefore be regarded as solely designed to protect the subject of the dispute and the actual object of the principal claim’.1855 The fundamental German complaint was that Polish citizens of German origin were being subjected to discrimination in the process of agrarian reform. The German government had asked for interim measures going beyond non-discrimination, for example, requiring Poland not to register other members of the German minority on their expropriation lists, and not to expropriate members of the German minority who were already on the lists. There was a link, in the broad sense of the term, with the claims before the Court, but the Court thought them too tenuous. The violation of a substantive right was in the discrimination, not in the illegality of the expropriation itself. A similar situation arose in the case 1852   Individual Opinion of Judge Jiménez de Aréchaga, case on the Continental shelf in the Aegean Sea, ICJ Reports 1976, 16: ‘The Court’s specific power under Article 41 of the Statute is directed to the preservation of rights ‘sub judice’ and does not consist in a police power over the maintenance of international peace nor in a general competence to make recommendations relating to peaceful settlement of disputes.’ 1853   It is not impossible that the Court might indicate Provisional Measures for the time when such rights’ applicability revives. It is therefore necessary that this particular objective of the measures be clearly indicated. 1854   ICJ Reports 1992, 15, §§ 39–40 and 126–27, §§ 42–43. 1855   PCIJ, Series A/B, no 58, 178.



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on the Arbitral award of 31 July 1989 (1990). Guinea-Bissau asked that Senegal abstain, in the disputed area, from any act or action of whatsoever nature, while the proceedings were pending, until the Court’s final decision.1856 But the question before the Court was not about the delimitation of the areas in question, which had already been decided by the arbitral tribunal. It was a new dispute, limited to the validity or nullity of the arbitral award. The Court drew the consequences by refusing Provisional Measures, on the basis that ‘the alleged rights sought to be made the subject of provisional measures are not the subject of the proceedings before the Court on the merits of the case’.1857 In some other cases, where the Court has been impressed by the extreme urgency and true object of the principal claim, the Court has allowed a certain extension of the link between the measures requested and the substantive issues in 7dispute in the proceedings. In the cases of Breard,1858 LaGrand1859 and then Avena,1860 the subject of the principal claim was a violation of the 1963 Vienna Convention on Consular Relations, by the US ‘authorities failure to inform foreign nationals being prosecuted for serious crimes of their right to contact their countries’ consular representatives. The States concerned complained of this violation of their citizens’ and of their own rights, asking the Court to indicate, as an interim measure, that the death penalty should not be carried out against their citizens. Otherwise, they argued, full reparation would be impossible. It is not certain that this request was entirely well founded in law. The dispute related only to the violation of the 1963 Vienna Convention. The carrying out of the death sentences was the political subject of the dispute, but not its legal subject. That said, the Court had the right to indicate Provisional Measures, not for simple humanitarian reasons (as to which it had no power), but under the heading of ‘non-aggravation of the dispute’, that is, as a measure indicated proprio motu. To go beyond that consideration, it would be necessary for the Court to get into a detailed analysis of the Provisional Measures indirectly ‘necessary’ to the preservation of the subject of the dispute. Such measures could be considered reasonable on the basis of judicial reasoning that is in all respects analogous to the implicit powers of an international organisation. Finally, there is also the Pulp mills case (2007),1861 in which the Court had to examine the relationship between some of the measures requested and the substantive rights that were in issue in the case. As can be seen, the question gives rise to certain difficulties, which the Court resolves on a case-by-case basis. Going beyond the analogy with implicit powers, it is difficult to formulate a general and precise rule as to the degree of closeness between the measures requested and the subject of the dispute, simply because the situations of fact and law are so very variable. The only thing that can reasonably be asserted is that the measures requested by the parties must be directly designed to safeguard the substantive rights in dispute, or else must be designed by the Court, motu proprio, with a view to protecting the proceedings against significant damage or prejudice in consequence of the aggravation of the dispute. The Court has more latitude under the second limb than under the first. Although the causality or link must be direct under the first limb, it can be indirect under the second one.   ICJ Reports 1990, 65, § 3.   Ibid, 70, § 26. 1858   ICJ Reports 1998, 248 et seq. 1859   ICJ Reports 1999-I, 9 et seq. 1860   ICJ Reports 2003, 77 et seq. 1861   ICJ Reports 2007-I, 10–11, §§ 27–30. 1856 1857

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– Condition 4: a risk of ‘irreparable prejudice’ to the substance of the rights invoked in the proceedings.1862 In its jurisprudence, the ICJ has developed a key condition for the indication of Provisional Measures, namely that the prejudice that a party’s rights might suffer in the absence of Provisional Measures must on any reasonable view be such as to lead to ‘irreparable prejudice’ to the applicant. This means that the prejudice is not capable of being repaired or that merely financial reparation would be inadequate. The Court gave a particularly memorable indication as to this criterion in the Anglo-Iranian Oil1863 and Interhandel cases,1864 and has consistently insisted on it from the Fisheries Jurisdiction cases,1865 through cases including cases on Trials of Pakistani prisoners of war,1866 Nuclear tests,1867 Aegean Sea continental shelf,1868 United States diplomatic and consular staff at Tehran,1869 Military and paramilitary activities in and against Nicaragua,1870 Boundary dispute (Burkina Faso v Mali),1871 Arbitral award of 31 July 1989 (Guinea-Bissau v Senegal),1872 Passage through the Great Belt,1873 Lockerbie,1874 Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Yugoslavia),1875 Land and maritime boundary between Cameroon and Nigeria,1876 Vienna Convention on consular relations (Paraguay v United States of America),1877 LaGrand,1878 and Armed activities in the territory of the Congo.1879 A classic formulation was delivered in the Genocide case (1993), ‘Whereas the power of the Court to indicate provisional measures under Article 41 of the Statute has as its object to preserve the respective rights of the parties pending the decision of the Court, and presupposes that irreparable prejudice shall not be caused to rights which are the subject of dispute in judicial proceedings.’1880 However, the Court no longer applies this criterion as regards measures adopted by it proprio motu: these can be indicated ‘autonomously’ in order to prevent the ‘aggravation or extension of the dispute’.1881 1862   See the succinct views in Oellers-Frahm, ‘Article 41’,above n 1799, 939–40; Thirlway, above n 1771, 91 et seq. For a more detailed analysis, see the literature on Provisional Measures cited in the bibliography, especially Sztucki, Interim Measures in the Hague Court (Kluwer, 1983), 104 et seq.; and Gemalmaz, Provisional Measures, above n 1799, 223 et seq. 1863   ICJ Reports 1951, 93. 1864   ICJ Reports 1957, 112. 1865   ICJ Reports 1972, 16–17, 34–35. 1866   ICJ Reports 1973, 330. 1867   ICJ Reports 1973, 103 et seq., 139 et seq. cf the commentaries of H Falsafi, L’affaire des essais nucléaires devantla Cour internationale de Justice, (thesis, Neuchâtel University, 1978) 39 et seq.; JP Cot, ‘Demandes en indication de mesures conservatoires’ (1973) 19 AFDI 252 et seq. On the position of the French government, cf G de Lacharrière, ‘Commentaires sur la position juridique de la France à l’égard de la licéité de ses expériences nucléaires’ (1973) 19 AFDI 235 et seq. 1868   ICJ Reports 1976, 9, 11 et seq. 1869   ICJ Reports 1979, 19–20. 1870   ICJ Reports 1984, 180 et seq. cf MF Labouz, ‘Affaire des activités militaires et paramilitaires au Nicaragua et contre celui-ci, Ordonnance en indication de mesures conservatoires’ (1984) 30 AFDI 340 et seq.; LA Sicilianos, ‘Les mesures conservatoires dans l’affaire des activités militaires and paramilitaires au Nicaragua et contre celui-ci’ (1984) 37 RHDI 209 et seq. 1871   ICJ Reports 1986, 8 et seq. 1872   ICJ Reports 1990, 69–70. 1873   ICJ Reports 1991, 16 et seq. 1874   ICJ Reports 1992, 14–15. 1875   ICJ Reports 1993, 19 et seq.; and ICJ Reports 1993, 346 et seq. 1876   ICJ Reports 1996, 21–23. 1877   ICJ Reports 1998, § 35 et seq. 1878   ICJ Reports 1999-I, 15. 1879   ICJ Reports 2000, 127–28. 1880   ICJ Reports 1993, 19, § 34 (italics added). 1881   Case on Armed activities in the territory of the Congo, ICJ Reports 2000, 127–28, especially § 44.



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It is not necessarily an easy matter to decide what constitutes ‘irreparable prejudice’ in a given case. The dominant criterion remains to preserve the ‘executability’ of the Court’s eventual final judgment. This is a matter both of safeguarding the rights of the parties and of protecting the due and proper administration of justice. Even minimal hindrance to executability can, and must, if it is of sufficient gravity, be countered by preventive action in the form of Provisional Measures. The first-order importance of this criterion arises from the functional and incidental character of Provisional Measures: the aim is to preserve substantive rights in all situations where the final judgment would not otherwise ensure full and complete (or at least adequate) reparation. Also, the Court will adopt such measures whenever it thinks that the prejudice to the applicant’s rights is intolerable because of the gravity of the resulting consequences, and that it would be inadequate for the Court to allow it to occur pendente lite.1882 On this point, the Court’s jurisprudence has evolved. In the days of the PCIJ, the irreparability of the prejudice was sometimes defined according to a very strict legal criterion that gave it a greatly restricted field of application. The Court did not think in terms of Provisional Measures unless the irreparable prejudice was of a legal nature. Following the formula used in the case on Denunciation of the Sino-Belgian treaty of 2 November 1865 (1927), the prejudice consisted in this, that the effects of acts and facts contrary to substantive rights ‘could not be made good simply by the payment of an indemnity or by compensation or restitution in some other material form’.1883 But, in the great majority of cases – if not all of them from the narrowest legal perspective – such reparation, by the payment of an equivalent, does remain possible. It would follow that requests for interim measures must always be refused. Understandably, the PCIJ did not stick rigorously to this jurisprudence. In the very same year, it required that a sum of money be paid over on a provisional basis, ‘seeing that, unless payment be immediate, the amount of the damage and the compensation would considerably increase, and seeing that the prejudice caused by a further delay would be actually be irreparable’.1884 There is no doubt that the Court thought that in that case the loss would be excessive and, in that sense, irreparable. A certain backsliding was noticeable here. Also, some years later, the PCIJ widened its concept of irreparable loss to include prejudicial facts. In the case on the Legal status of South-East Greenland (1932), the Court used the formula that the prejudice must be ‘irreparable in fact or in law’.1885 This new line, which was later followed by the ICJ, opened the way to the assessment of irreparable prejudice in light of all the circumstances of the case, and in particular of concrete expectations as to the gravity of the situation that would arise if Provisional Measures were not indicated. Where it is a matter of facts independent of the will of the parties, the Court has to take account of how probable it is that events will occur contrary to the parties’ substantive rights, and of the most probable consequences of such events. If, on the other hand, the question concerns facts that depend on the wills of the parties, it will be necessary to examine the particular relationship between the parties, the undertakings given, and the tension or harmony between them, since these factors will be decisive in giving form to the probabilities of various facts’ actually occurring and as to the assessment of the consequences that can be expected. Obviously, if the damaging acts or facts have already occurred, the   Oellers-Frahm, ‘Article 41’, above n 1799, 940.   PCIJ, Series A, no 8, 7. 1884   Case on the Factory at Chorzów (1927), Series A, no 12, 6. 1885   PCIJ, Series A/B, no 48, 284. 1882 1883

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Court can confine itself to an examination of their effects on the disputed rights, and to the indication of Provisional Measures of a positive nature so as to oblige the State in question to re-establish the status quo ante, to the extent that this is possible. From an early stage, the PCIJ had accepted that Provisional Measures could, in an appropriate case, involve positive obligations to take steps rather than negative ones to abstain from steps. In the Factory at Chorzów case (1927), the Court said that: ‘The origin of the provisions of Article 41 of the Statute shows that not only an omission by the Parties but also a definite act was considered as the subject of a measure of protection.’1886 – Condition 5: urgency.1887 It is inappropriate to indicate Provisional Measures unless there is some urgency about it, that is, if otherwise the substance of the disputed rights would, or very probably might, suffer irreparable prejudice. If that is not the position, then Provisional Measures are not justified. The Court is exercising a power which can be described as in a sense inordinate, in that it consists of indicating, in advance, certain obligations, which may well be onerous ones, to be complied with by a sovereign State, moreover doing this at a time when the Court is not yet certain either that it has jurisdiction, or that the claim is well founded. For these reasons, a restrictive interpretation is required. The Court must indicate Provisional Measures whenever it is necessary to do so; but it must refrain from doing so where it is unnecessary. If the measures are not urgent, they cannot be legally necessary. An Applicant State still has the right to re-present its request later in the proceedings, as and when the factual situation changes and becomes urgent. Balanced in this way, the law is able to achieve its objective of minimal damage. It respects sovereign freedom of action unless and until there is some valid reason to restrict it. Incidentally, it is of no importance in law that the situation making it necessary to give protection to the disputed rights may have already been in existence for some time. What is essential is to assess the urgency at the time when the request for Provisional Measures is presented to the Court. The urgency is most obvious in cases where a person is likely to suffer capital punishment while a case concerning him is still pending at the ICJ. One thinks here of the cases, cited above, of Breard, Avena and LaGrand. In the last of these cases, the situation was truly dramatic. The request for Provisional Measures to stop the execution of the convicted person (a German citizen) was received by the Court on 2 March 1999; the execution was scheduled for the next day. The Court was obliged to indicate Provisional Measures through the action of the President (after consulting the judges by telephone), there being no time for public hearings.1888 This was obviously a case of extreme urgency. Conversely, the Court has more than once refused to indicate Provisional Measures on the basis that the case was not urgent. In the Trial of Pakistani prisoners of war case (1973), the government of Pakistan, having asked for Provisional Measures, requested the Court to defer them while direct negotiations took place with India. The Court concluded that it ‘no longer has before it a request for interim measures which is to be treated as a matter of urgency’.1889 It therefore refrained from indicating the measures initially requested. Legally, one could analyse this situation as either a sort of withdrawal, or at least the suspension, of   PCIJ, Series A, no 12, 6.   Oellers-Frahm, ‘Article 41’, above n 1799, 940–42. See also Gemalmaz, Provisional Measures, above n 1799, 223 et seq. 1888   ICJ Reports 1999, 14, § 21. 1889   ICJ Reports 1973, 330, § 14. 1886 1887



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the request for Provisional Measures. In the Great Belt case (1991), the Court took the view that there was no urgency about indicating Provisional Measures concerning the construction of a bridge, given that obstacles to the passage of the Belt, the subject of the applicant’s plaint, would not take concrete shape until 1994, by which date the Court hoped to have decided the merits.1890 The actions or events prejudicial to the substance of the disputed rights must be expected to occur before the prospective date of the judgment on the merits, in order to give urgency to the Provisional Measures requested. In the case on the Arrest warrant of 11 April 2000 (2000), the Court again refused to indicate Provisional Measures because of a lack of urgency, on the basis that Mr Yerodia, named in the arrest warrant, was no longer Minister of Foreign Affairs at the time of the Court’s decision on the application for Provisional Measures. Consequently, he was travelling much less and it seemed less urgent to provisionally annul the arrest warrant requested by the DRC.1891 In other words, the DRC could always renew its request for interim measures – perhaps including the suspension of the arrest warrant rather than its annulment – if and when Mr. Yerodia had to contemplate a journey which would expose him to the risk of arrest. Finally, in the Pulp mills case (2007), the Court took the view, in the context of the construction of factories and of claimed Argentine barrages blocking the stream between the two States, that an imminent risk of irreparable prejudice had not been made out.1892 In this sense there was again no urgency. Various factors particular to the circumstances of the particular case are relevant to the assessment of urgency. The decision is more contextual, and more a matter of appreciation, than might at first sight seem to be the case. Any guarantees the respondent is able to give are obviously important; so are the general and special relations between the two disputing States, whether peaceful and happy or tense and mistrustful. The same goes for the pursuit (or non-pursuit) of other parallel procedures for resolving the dispute, whether diplomatic or institutional, especially the existence or otherwise of other provisional measures arising from such other procedures, and also whether or not such other measures are binding. In short, the Court has to assess the whole context, and form an appreciation of it. It is not in the abstract, but very much in the concrete context, that the urgency of the situation has to be judged. The urgency factor means that requests for Provisional Measures take priority over other hearings. The Court deals with them very swiftly. Article 74, paragraph 1 provides as follows: ‘A request for the indication of Provisional Measures shall have priority over all other cases.’ Article 74 paragraph 2 adds: ‘The Court, if it is not sitting when the request is made, shall be convened forthwith for the purpose of proceeding to a decision on the request as a matter of urgency.’ Article 54, paragraph 2 reflects the same idea: ‘When fixing the date for, or postponing, the opening of the oral proceedings the Court shall have regard to the priority required by Article 74 of these Rules and to any other special circumstances, including the urgency of a particular case.’ Provisional Measures procedure is more flexible than procedure in main hearings. In cases of extreme urgency, as in LaGrand (see above), the Court can dispense with an oral hearing, on the basis of Article 75, paragraph 1: ‘The Court 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   ICJ Reports 1991, 18, § 27.   ICJ Reports 2000, 201, § 72. 1892   ICJ Reports 2007-I, 13, § 42: ‘Whereas, moreover, it has not been shown that were there such risk of prejudice to the rights claimed by Uruguay in this case, it is imminent.’ 1890 1891

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by any or all of the parties.’ The expression ‘at any time’ gives it the right to act immediately and sponte sua. This provision also seems to indicate that the parties can renounce the requirement for an oral hearing. If the Court can of its own volition examine the question of Provisional Measures without an oral hearing, then, a fortiori, it ought to be possible for the parties to reach an agreement to the same effect, referring the question of adopting Provisional Measures to the Court. This will be most likely to happen if the case is urgent and the respondent is being cooperative. One should also remember that the Rules allow oral hearings to be bypassed if speed and flexibility are more important, as evidenced by Article 92, paragraph 3 relating to Chambers of the Court: ‘Oral proceedings shall take place unless the parties agree to dispense with them, and the Chamber consents.’ There is no reason why this ratio legis should not be applied, by analogy, in the field of Provisional Measures. But such agreements between the parties will, of course, be very unusual. – Condition 6: a certain expectation of success on the merits?1893 In order for the Court to indicate Provisional Measures, must the applicant establish to the satisfaction of the Court – or must the Court itself be satisfied – that the Court probably has jurisdiction over the merits? Does it suffice to establish prima facie jurisdiction, or must the Court also be satisfied, likewise prima facie, that the substantive application has a sufficient and reasonable chance of succeeding? If a case comes to the Court, one which the Court considers it probably has jurisdiction over, but where it has also to admit that the claim is manifestly illfounded, must (or can) the Court indicate Provisional Measures constrictive of the respondent’s freedom of action, when it is very unlikely (perhaps almost unthinkable) that the applicant can succeed on the merits? If prima facie jurisdiction is required, it could also be reasonable to require that the rights invoked are not manifestly unfounded or inapplicable in the circumstances of the case.1894 However, we have only a little jurisprudence on this point. The complexity of international cases is generally so considerable that it is usually difficult to say that an application is manifestly ill-founded. What is more, the Court does not like to go down that route. It would, after all, have to indicate in advance that in all probability it is going to dismiss the substantive claim. This would give the impression that it had already made up its mind, and was no longer sufficiently neutral. The diplomatic aspect of the Court’s activities and the necessary tact to be used with the sovereign States that are before it, make it desirable for the Court to behave with great circumspection in this regard. Consequently, it is necessary for the Court to refuse Provisional Measures on this ground only in cases where the absence of any proper basis for the claim is absolutely obvious. This was the position of the Serbian claims against the NATO States following the attack on Kosovo in the cases on the Legality of the use of force. Serbia and Montenegro claimed that the NATO bombardments were contrary to the 1948 Genocide Convention. They alighted on this argument because the Convention was the only basis for establishing the Court’s jurisdiction, under the compromissory clause in Article IX. Legally, however, it was obvious that the conditions for establishing the crime of genocide were lacking, if only because the specific intention to destroy all or part of a protected group was manifestly missing. The Court therefore refused, on this basis, to order the measures requested of it.1895 On proper analysis, that conclusion can be seen to have been based as much on the   Oellers-Frahm, ‘Article 41’, above n 1799, 938.   In this sense, see Oellers-Frahm, ibid, and the Independent Opinion of Judge Shahabuddeen, in the Great Belt case, ICJ Reports 1991, 36. 1895   See, eg ICJ Reports 1999-I, 138, §§ 40–41. 1893 1894



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absence of prima facie jurisdiction (the Genocide Convention being inapplicable) as on the absence of any substantive basis (no genocide was committed). It is therefore unsurprising that the Court prefers to insist on the absence of prima facie jurisdiction, as it did in paragraph 41 of its 1999 Order. This certainly leaves room for the development of clearer jurisprudence on this condition relating to the chances of success on the merits, which remains a somewhat dormant question in the jurisprudence. e)  Procedure for the Indication of Provisional Measures1896 The procedure is governed by Articles 73 to78. There are several procedural aspects that call for brief analysis. Any party to a case before the Court can ask it to indicate Provisional Measures. Article 73, paragraph 1 provides as follows: ‘A written request for the indication of Provisional Measures 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.’ This means that such measures can be requested not only by the applicant, but also by the respondent, for example in the context of a counterclaim. In respect of its request for Provisional Measures, such a respondent becomes, for these purposes, the applicant. It is normal for Provisional Measures to be particularly demanded in cases where the jurisdiction is compulsory and the case is begun unilaterally. In such cases, it is more likely that the respondent may be tempted to do some harm or prejudice to the subject of the dispute. However, in formal terms, it is equally possible to ask for Provisional Measures in a case begun on a non-compulsory basis, for example, under a special agreement. This happened, for example, in the case of the Frontier dispute (Burkina Faso v Mali, 1986), in which, after the Court had been seised by special agreement, both sides asked the Court to indicate such measures.1897 Also, it should be remembered that, under Article 38, paragraph 5 a case brought before the Court on the basis that the other side’s consent to jurisdiction is being requested (the forum prorogatum) is not thereby yet begun, and is not entered on the Court’s list until the other side’s consent has been given. It follows that requests for Provisional Measures cannot be presented to the Court until then. This seems to make sense, since otherwise it would be too easy to use the Court on an abusive basis, as a means to bring pressure and make propaganda against the opposing State. Under paragraph 1, the request must be ‘written’. The PCIJ rules contained no such condition. Oral requests were thus possible in those days, although in practice all requests to the PCIJ were in writing. The Rules impose no temporal time limit for such requests. They can be made at any time between the seising of the Court and the final judgment. However, if a party were to ask for Provisional Measures at a very late stage, it is likely that the Court would find that, if there is no real urgency, it is inappropriate to indicate them. Final judgment is about to be given, and this will provide for definitive measures rather than provisional ones. Also, if a party delays excessively in seeking such measures, it thereby at least imperils, if not actually harms, the due and proper administration of justice and, on this basis, the Court might refuse to consider the request.1898 1896   See the short account in Oellers-Frahm, ‘Article 41’, above n 1799, 943 et seq.; Guyomar, above n 1827, 468 et seq.; Gemalmaz, Provisional Measures, above n 1799, 267 et seq. 1897   ICJ Reports 1986, 3 et seq. 1898   See the LaGrand case, ICJ Reports 1999-I, 14, § 19.

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The request must provide certain information. Article 73, paragraph 2 reads: ‘The request shall specify the reasons therefor, the possible consequences if it is not granted, and the measures requested. A certified copy shall forthwith be transmitted by the Registrar to the other party.’ Notification to third parties is carried out under the same rules as apply to the notification of new cases. So, for example, the Security Council and the UN Member States are all notified, which nowadays means, in practice, almost all the States in the world.1899 The Court can further request the parties to provide any clarification necessary so that, in exercising its protective functions, it has full knowledge of the issues. Article 78 reads: ‘The Court may request information from the parties on any matter connected with the implementation of any Provisional Measures it has indicated.’ The Court made such a request in 1972 regarding the regulation and control of catches in the area concerned in the Fisheries Jurisdiction cases.1900 Under Article 74, paragraph 1: ‘A request for the indication of Provisional Measures shall have priority over all other cases.’ It is an urgent procedure – since a State is claiming that there is a threat of irreparable prejudice to it – and therefore deserves to be heard ahead of all other matters. This subject has already been considered in the subsection on urgency as a condition for the indication of Provisional Measures. It also follows that, as provided in Article 74, paragraph 2: ‘The Court, if it is not sitting when the request is made, shall be convened forthwith for the purpose of proceeding to a decision on the request as a matter of urgency.’ The urgency may be such as to necessitate the President of the Court’s calling upon the parties to act, or abstain from acting, in certain ways, as a kind of preliminary provisional measure. Article 74, paragraph 4 provides in this regard that: ‘Pending the meeting of the Court, the President may 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.’ The expression ‘call upon’ (in the French version ‘inviter’) does not connote the idea that such ‘preliminary provisional measures’ have legally binding force. It is for the Court to decide on the appropriate Provisional Measures, as provided in Article 41 of the Statute. In situations of extreme urgency, can the President of the Court who is obliged to sit at The Hague, or in his absence the Vice-President, indicate Provisional Measures on their own authority? In the early days of the PCIJ, this was possible.1901 The President of the Court indicated Provisional Measures in the case on the Denunciation of the Sino-Belgian treaty (1927), under Article 57 of the 1922 Rules.1902 However, since this power was incompatible with Article 41 of the Statute, it was revoked in the 1931 Rules. In the Prince of Pless case (1933),1903 it did, however, become apparent that, in cases of extreme urgency, the President did need power to take action on his own. In that case the President successfully exercised such a power without there being any text he could rely upon as authority to do so. As a result, the Rules were amended again. Finally, in the 1978 Rules, a new formula was adopted. It allows the President simply to ‘suggest’ measures. In cases of extreme urgency, such as the LaGrand case (1999), cited above, in which the death penalty was to be exacted a day after the request for Provisional Measures, the President will have 1899   Article 77: ‘Any measures indicated by the Court under Articles 73 and 75 of these Rules, and any decision taken by the Court under Article 76, paragraph 1 of these Rules, shall forthwith be communicated to the SecretaryGeneral of the United Nations for transmission to the Security Council in pursuance of Article 41, paragraph 2, of the Statute.’ 1900   ICJ Reports 1972, 18, § 1(f) and 35, § 1(f). 1901   cf Hudson, above n 1771, 427–28. 1902   PCIJ, Series A, no 8, 6 et seq. 1903   PCIJ, Series A/B, no 54, 150 et seq. and Series C, no 70, 430.



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short time to consult the Court – if necessary by telephone – so that an Order can be issued immediately, without an oral hearing. The refusal of a request for Provisional Measures does not mean that the requesting party cannot subsequently present a fresh request. Provisional Measures address urgent situations that are usually in constant flux, sometimes changing with extreme rapidity. For this reason, a party is allowed to make a fresh request which must, of course, be adapted to the new circumstances (since otherwise it will be faced with a res judicata argument). Rule 75, paragraph 3 provides as follows: ‘The rejection of a request for the indication of provisional measures shall not prevent the party which made it from making a fresh request in the same case based on new facts.’ The Rule clearly stresses the need to raise ‘new facts’. The negative implication here is that the Order originally refusing Provisional Measures is a res judicata. A party which has previously had its request for Provisional Measures refused does sometimes make a second request. There have not been many applications of this kind. One was made in the case on Military and paramilitary activities in and against Nicaragua (1986)1904 (fresh application after the original one had been refused); and in the case on the Application of the Convention for the prevention and punishment of the crime of génocide (Bosnia-Herzegovina v Yugoslavia, 1993) (a case in which additional requests were made after a first set of Provisional Measures had already been indicated).1905 The only real restriction on this undisputed right to ask for further measures relates to the abuse of process by repeated and manifestly ill-founded requests. But in any event, a litigation strategy of that kind would be ill-advised. It is not in a party’s interest to annoy the Court and present itself in an unfavourable light. Also, the Court can always refuse to consider a request it considers purely abusive or vexatious. The legal basis for that power rests on the prohibition of abuse of procedure, derived from the material principles prohibiting the abuse of law and the abuse of good faith. These are principles of general international law, applicable before the Court, and are also enshrined in the UN Charter (Article 2, § 2), applicable to all UN organs including the ICJ. Rule 76, paragraph 1 provides that: ‘At the request of a party, the Court may, at any time before the final judgment in the case, revoke or modify any decision concerning provisional measures, if, in its opinion, some change in the situation justifies such revocation or modification.’ Paragraph 2 provides that: ‘Any application by a party proposing such revocation or modification shall specify the change in the situation considered to be relevant.’ Finally, paragraph 3 adds that: ‘Before taking any decision under paragraph 1 of this Article, the Court shall afford the parties an opportunity of presenting their observations on the subject.’1906 The parties by agreement, or the applicant, can ask the Court to suspend or revoke Provisional Measures, for example, with a view to direct negotiations between them. This happened in the case on the Denunciation of the Sino-Belgian treaty (1927), the Court having accepted a request to that end by the claimant.1907 Under these texts, the Court cannot of its own volition modify the Provisional Measures requested by a party. Rule 76, paragraph 1 does indeed presuppose the ‘request of a party’. If, however, measures have either lapsed or no longer serve the purposes for which they were designed, and if no party takes the initiative to have them amended, the Court might use the principle of the proper administration of justice to adjust them proprio motu. In addition, it goes without   ICJ Reports 1986, 144, § 287, Nicaragua not pursuing its second request.   ICJ Reports 1993, 349, § 59. 1906   See, eg the Fisheries Jurisdiction cases, ICJ Reports 1973, 303, §§ 2–3 and 314, §§ 2–3. 1907   PCIJ, Series A, no 8, 11. 1904 1905

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saying that the Court can itself modify any and all measures it has indicated motu proprio. However, it should not do so if there are no good reasons. A decision by which the Court declares that it has no jurisdiction or that the claim is inadmissible, eo ipso abrogates any outstanding provisional measures which will thenceforth have no valid object. Normally the judgment will say so. If the Court were to overlook the point, one would have to consider that the abrogation, although not expressed, is nevertheless implicit under the general principles of procedure. Incidental procedures are always extinguished with the ending of the main case. Ad hoc judges can participate in provisional measures proceedings, but the Court is competent even without them. The question turns essentially on the degree of urgency.1908 If there is time for them to nominate ad hoc judges, the States concerned can exercise their right to do so; if not, not. Is it then possible to palliate the problem by nominating provisional or special ad hoc judges, to participate only in the Provisional Measures proceedings, until the States concerned nominate ad hoc judges for the main proceedings? Until now, there has been no such provision in the Rules. It is nevertheless possible that an ad hoc judge who has participated in the Provisional Measures proceedings might retire at the end of that phase, paving the way for the nomination of a replacement ad hoc judge. In any event, the Court can indicate Provisional Measures even if ad hoc judges are not sitting.1909 A party’s failure to appear before the Court does not prevent the latter from indicating Provisional Measures. Since Article 53 of the Statute provides that the Court is not prevented, by such a failure to appear, from pronouncing on the merits, then a fortiori the Court must be able to pronounce on Provisional Measures. The Court does not, however, refer in this regard to Article 53, which is concerned solely with the principal procedure. One reason is that, unlike the situation under Article 53, where the Court must careful satisfy itself as to its jurisdiction, in this case it need decide only whether it has prima facie jurisdiction. The Court provided a summary of the applicable law in the Fisheries Jurisdiction cases (1972): ‘Whereas . . . 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’.1910 However, one may say that Article 53 is applied by some sort of analogy albeit with some modifications. Provisional Measures are indicated by means of an Order, not a Judgment. This reflects their provisional nature, the fact that they are incidental matters, and the fact that, for a long time, it was uncertain whether they were legally binding. Also, a judgment could not be adopted proprio motu by the Court, whereas such a power to act ex officio does exist in relation to Provisional Measures.1911 It must be said that neither the Statute nor the Rules contain a provision requiring the making of an Order rather than the giving of a Judgment. The form of the Bench’s pronouncement is thus purely jurisprudential in origin. So, in a particular case, there is nothing insurmountable to stop the Court making a Judgment out of it, especially since it has been indicated that Provisional Measures are legally binding. The giving of a Judgment might have consequences for the jurisdiction of the Security   See the case on the Legal status of South-East Greenland (1933), PCIJ, Series A/B, no 48, 280.   See the case on the Factory at Chorzów (1927), PCIJ, Series A, no 12, 10. 1910   ICJ Reports 1972, 15, § 11 and 32, § 11. See also the case on the Continental shelf in the Aegean Sea, ICJ Reports 1976, 6, § 13–14 and the case on United States diplomatic and consular staff at Tehran, ICJ Reports 1979, 13, § 13. 1911   See PCIJ, Series E, no 7, 293 (English language text), 283 (French language text), the power only exists after hearing the parties. 1908 1909



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Council, under Article 94, paragraph 2 of the Charter, to take steps to enforce the Provisional Measures indicated by the Court. It must be noted, however, that so far, the Court has never issued an actual Judgment on Provisional Measures. The content of Provisional Measures is not subject to the principle ne eat judex ultra petita partium (that the Court must stay within the terms of the parties’ claims). Given that the Court is free to indicate Provisional Measures proprio motu, the petitum (that which the parties request of the Court) does not represent the outer limit of what the Court can decide. Rule 75, paragraph 2, already cited above, therefore provides that: When a request for provisional measures has been made, the Court may indicate measures that are in whole or in part other than those requested, or that ought to be taken or complied with by the party which has itself made the request.

Sometimes the Court stays within the parameters of the parties’ requests;1912 sometimes, however, it goes further, indicating additional ones, particularly as regards the nonaggravation of the dispute.1913 The Court possesses a fairly wide merging of appreciation, given that a significant part of its Provisional Measures are indicated by it motu proprio. Here, then, there is room for the development of a judicial policy. Provisional Measures are deemed neither to anticipate nor to prejudice the merits phase.1914 Since the old Prince of Pless case (1933), the Court unfailingly repeats a ritual formula in this respect: Whereas . . . the present Order must in no way prejudge either the question of the Court’s jurisdiction to adjudicate upon the German Government’s Application instituting proceedings . . . or that of the admissibility of that Application.1915

This formula was enlarged in the Nuclear Tests cases (1973) so as to read: Whereas the 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 admissibility of the Application, or relating to the merits themselves.1916

In an additional formula, the Court also insists that the Provisional Measures must not and do not anticipate its judgment.1917 Obviously, the Court is not bound by the views it takes in the Provisional Measures Order, if only because its pronouncements in the Order are made only on the basis of a prima facie view of the case. It is entirely possible for the Court to decline to exercise jurisdiction, or to form the view that the alleged substantive rights do not exist or do not mean what parties say they mean. At the same time, parties can glean from the Court’s reaction to requests for Provisional Measures certain implicit indications of how the Court sees the case. If, for example, the Provisional Measures are designed to prevent the construction of certain allegedly pollutive industrial plant in breach of obligations of international law; if the Court refuses to indicate measures designed to freeze the construction; if, at the date of the final judgment, the plant will be finished and in service; and if it is unlikely that the Court will order the complete dismantling of the plant given the   See, eg the Anglo-Iranian Oil case, ICJ Reports 1951, 93–94, concerning anti-British propaganda.   See, eg the case on United States diplomatic and consular staff in Tehran, ICJ Reports 1979, 12, 21, § 12, 47. 1914   Oellers-Frahm, ‘Article 41’, above n 1799, 932–33. See also Sztucki, Interim, above n 1862, 93 et seq. 1915   PCIJ, Series A/B, no 54, 153. 1916   ICJ Reports 1973, 105, § 33 and 142, § 34. See also, eg the case of the United States diplomatic and consular staff in Tehran, ICJ Reports 1979, 20, § 45, where the Court evoked only the merits. 1917   See, eg the Fisheries cases, ICJ Reports 1972, 16, §§ 21 and 34, § 22. 1912 1913

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considerable impact that would result; in such a case it is possible to suppose, even at the preliminary stage of Provisional Measures, that the Court does not consider the construction to be contrary to substantive (rather than procedural) obligations of international law.1918 So, if the Provisional Measures do not, as a matter of law, prejudge the merits, the same cannot altogether be said as regards the facts. Sometimes the Provisional Measures requested are in substance identical to the substantive claims in the case, for example, requests for the cessation of nuclear testing, for the freeing of hostages, the freezing of a death sentence and so on. Such requests can perfectly properly be made as requests for Provisional Measures, if they are necessary to preserve the subject matter of the dispute from irreparable damage. Obviously, the carrying out of a death sentence places a considerable restriction on the Court’s options in its final judgment, restitutio in integrum (a return to the previous status quo) having thereby been made impossible. Equally, it is obvious that nuclear testing can cause irreparable radiation damage of precisely the kind the Applicant States may be substantively seeking to prevent through the principal proceedings. Even so, such Provisional Measures do not anticipate the merits decision – they remain truly provisional. Equally, it is not decisive that the Provisional Measures sought are materially different from the substantive claims made in the case. The single decisive point is that the request is a provisional one made to protect the situation as regards the substantive dispute. If that decisive element is lacking, the request is not truly provisional, and the Court must refuse it. Thus, in the case of the Factory at Chorzów (1927), the PCIJ considered the German request that the Court direct the Polish government to make a provisional payment to Germany of 30 million reichsmarks could not be granted: Considering that the request of the German Government cannot be regarded as relating to the indication of interim measures of protection, but as designed to obtain an interim judgment in favour of a part of the claim formulated in the Application mentioned above.1919

f)  Effects of Provisional Measures1920 The great and vexed question about Provisional Measures has been, at least until 2001, whether they were legally binding on the parties.1921 For many years, leading commentators were divided on this question, and at the same time the Court avoided giving it a straight answer. State practice, however, did not indicate that such measures were held in high respect. Throughout, the whole question was bathed in a mysterious and disquieting halflight, provoking such a strange sense of nervous expectation that the only true comparison is with the feelings aroused at certain artistic moments: by, for example, the opening bars of Beethoven’s Ninth Symphony. 1918   This was the position in the case of the Pulp factories on the Uruguay River, ICJ Reports 2006 (Provisional Measures) and 2010 (merits). 1919   PCIJ, Series A, no 12, 10. 1920   For a succinct analysis, see Oellers-Frahm, ‘Article 41’, above n 1799, 953 et seq. More detailed observations drawn from leading commentators are included in that text. In general, see also Gemalmaz, Provisional Measures, above n 1799, 579 et seq. 1921   Oellers-Frahm, ‘Article 41’, above n 1799, 953; K Oellers-Frahm, Die einstweilige Anordnung in der internationalen Gerichtsbarkeit (Berlin/Heidelberg/New York, 1975) 109; L Delbez, Les principes généraux du contentieux international (Paris, 1962) 118.



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The travaux préparatoires on the Statute show that this deep ambiguity was present even then.1922 On the one hand, the word ‘indicate’ (the French text reads ‘indiquer’), used instead of the more usual word ‘order’, seems to place emphasis on an intention that the measures should not be binding on the parties. The word ‘indicate’ was borrowed from older treaties between the USA and China, and the USA and France. It was used so as to avoid upsetting the susceptibilities of States. In 1920, people were more restrained than they are now about the idea of limiting States’ sovereign powers. Ambiguous formulae, leaving all possibilities open, were often welcome in those days. In addition, it was, of course, realised that in any event the Court had no power to enforce its judgments – even though that realisation was not really relevant, the same point applying just as much to substantive decisions as to orders on Provisional Measures. The binding nature of Provisional Measures orders should really not be confused with the modalities for enforcing them. Be that as it may, that fallacious argument did have a certain influence on the adoption of the word ‘indicate’. Paragraph 2 of the English language text of Article 41 of the Statute also includes the expression ‘measures suggested’, likewise connoting the lack of a binding obligation. The original draft, however, was in French, and it did not contain any equivalent term, simply referring to the ‘indication’ of such measures. On the other hand, the words ‘ought to be taken/doivent être prises’ seem markedly more like the language of obligation. But even there, the text was far from clear. The draftsmen do not seem to have placed any great weight – at any rate not any very exact weight – on these expressions. The one point that is certain is that these travaux préparatoires do not give us any clear answers, and that, far from doing so, they are equivocal. It is often said that they are unfavourable to the idea that Provisional Measures are binding, on the basis not only of what was actually said and done during the drafting, but also that such an important limitation upon States’ sovereign rights would have needed clear language. But that is not a decisive argument. Indeed, nothing obliges the Court, in following its own procedural law, to conform to views expressed in 1920, and not to adapt the law to modern conditions. The interpretation of the institutional law of which the law of the Court is a part pays more attention to objective and evolutive modalities of interpretation than to historical and subjective ones.1923 Given that, for such a long time, the question remained in great doubt, leading commentators had recourse to conceptions that were so ingenious as to justify our giving some space to them in the present manual, even though the Court has since affirmed that Provisional Measures are (or at least can be) legally binding. On the one hand, the old thinking had sketched out various concepts as to the correlative effects (sometimes relatively minor in nature) that Provisional Measures should have in the absence of a fully obligatory character.1924 In this way, the old thinking did not necessarily concede that the measures were simply recommendations. But it spelled out those minor legal effects on the basis that it had accepted, as a hypothetical or real premise, that there was such an absence of binding force. On the other hand, another set of commentators produced a series of arguments to the effect that Provisional Measures were indeed legally binding. 1922   For a detailed analysis, cf Sztucki, Interim, above n 1862, 263 et seq.; L Daniele, Le misure cautelari nel processo dinanzi alla Corte internazionale di giustizia (Milan, 1993) 141 et seq. 1923   cf G Ress, ‘The Interpretation of the Charter’ in B Simma, The Charter of the United Nations – A Commentary, 2nd edn, vol I (Oxford, 2002) 13 et seq. 1924   See the remarks of Judges Fromageot, Hurst and Rolin-Jaequemyns, PCIJ, Series D, no 2, Add 2, 183–84; and Sztucki, Interim, above n 1862, 293.

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The minor legal effects. In the first instance, some commentators put forward the idea of a specific constraint, which in truth did not confine the effect of Provisional Measures to a non-binding set of indications. A State subjected to such measures, it was claimed, would not be under any legal obligation to comply with them, but might nevertheless, if it failed to do so, find itself subjected by the Court to certain procedural sanctions.1925 Other commentators amplified the scope of such ‘constraint’ by arguing that a State which failed to comply with Provisional Measures would be exposed to counter-measures by the opposing party.1926 In his course on the ICJ at the Hague Academy of International Law, Judge Oda brought up the idea of an obligation that was deferred or conditional. The measures themselves would carry no formal imposed duty to comply, but ‘if the later judgment on the merits is rendered in favour of the applicant State, the respondent State may be made responsible for any action taken in defiance of the Provisional Measures’.1927 To the extent that sanctions are provided for, the legal system no longer leaves the parties with the right to make their own free appreciation of what course of conduct to adopt. The measures require the State or States concerned to comply with what, properly speaking, should then be termed an injunction. Responsibility gives rise to the obligation. It is thus impossible to speak of reprisals, as Sztucki does,1928 while yet retaining the optional character of preliminary measures, for the purpose of reprisals is to respond to unlawful acts that have already occurred. If the non-execution of the Provisional Measures is not an unlawful act, then cadit quaestio: no reprisal would be admissible, though there might nevertheless be ‘retaliation’ of some other kind. Conversely, an example of a legal effect that is truly subsidiary or accessory, or in other words does not indirectly have a bearing on the obligatoriness of the Provisional Measures, is provided by the arbitration case concerning the Air services agreement (USA v France, 1978). Can one consider that counter-measures remain lawful as between the parties even after the Court is seised of the case? That depends on whether Provisional Measures are adopted: To the extent that the tribunal has the necessary means to achieve the objectives justifying the counter-measures, it must be admitted that the right of the Parties to initiate such measures disappears. In other words, the power of a tribunal to decide on Provisional Measures of protection . . . leads to the disappearance of the power to initiate counter-measures1929

The legal effect in such case is a corollary matter, to the extent that the indication of Provisional Measures, whatever their own legal value, modifies the parties’ legal situations. The power to take counter-measures thus becomes a function of the (non-)indication of (binding, or perhaps even non-binding) Provisional Measures.

1925   H Lauterpacht, The Development of International Law by the International Court (London, 1958) 253–54. MH Mendelson, ‘Provisional Measures of Protection and the Use of Force by States’ in A Cassese (ed), The Current Legal Regulation of the Use of Force (Dordrecht/Boston/London, 1986) 347. Dumbauld, Provisional Measures of Protection in International Controversies, above n 1799, 173. Contra, Sztucki, Interim, above n 1862, 262. See also L Daniele, ‘L’apport de la deuxième ordonnance de la ICJ sur les mesures conservatoires dans l’affaire BosnieHerzégovine contre Yougoslavie (Serbie and Monténégro)’ (1994) 98 RGDIP 947. 1926  Sztucki, Interim, above n 1862, 299 et seq. A Pütz, Der Erlass von einstweiligen Verfügungen durch den Ständigen Internationalen Gerichtshof (Mainz, 1939) 42. 1927   S Oda, ‘The International Court of Justice Viewed from the Bench (1976–1993)’ CCHAIL, vol 244, 1993VII, 75. 1928  Sztucki, Interim, above n 1862, 299 et seq. 1929   ILR, vol 54, 340–41 or RSA, vol XVIII, 445–46. cf also Art 5 of the IIL Resolution of 1934: IDI [IIl], 1873– 1956, Tableau général des résolutions (Basle, 1957) 169.



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Arguments for binding force. The main argument for binding force was the need to preserve the final subject matter of the decision the Court was to take, and thus to preserve the value of the entire proceedings. Provisional Measures are, above all other considerations, designed to preserve the subject of the proceedings from irreparable prejudice. This teleological argument was developed with finesse and precision by the UK representative at the Security Council, Sir Gladwyn Jebb. He was concerned about the consequences of Iran’s failure to comply with the Provisional Measures indicated by the Court in the AngloIranian Oil case (1951). He put the point as follows: The whole object of Provisional Measures . . . is to preserve the respective rights of the parties pending the final decision; in other words, to prevent a situation from being created in which the final decision would be rendered inoperative or impossible of execution because of some step taken by one of the parties in the meantime with the object of frustrating that decision. Now it is established that a final judgment of the Court is binding on the parties; that, indeed, is expressly stated by Articles 59 and 60 of the Statute and Article 94, paragraph 1, of the Charter. But, clearly, there would be no point in making the final [judgment] binding if one of the parties could frustrate that decision in advance by actions which would render the final judgment nugatory. It is, therefore, a necessary consequence, we suggest, of the bindingness of the final decision that the Provisional Measures intended to preserve its efficacy should equally be binding.1930

This line of argument has received considerable support from among leading commenta­ tors;1931 others, however, have challenged it.1932 Those seeking to refute it have claimed that there is no necessary symmetry between the final judgment on the one hand and Provisional Measures on the other, or in other words that a failure to comply with Provisional Measures, or their lack of binding force, will not necessarily render the final judgment in some way illusory. It was also argued that other jurisdictions, such as the European Court of Human Rights, did not have the power to order Provisional Measures.1933 But if we focus on the jurisprudence of the ICJ, it does appear that the Court (unlike some other tribunals) indicates Provisional Measures only for the gravest reasons – specifically relating to the risk of prejudice that may be irreparable. That is one of the formal conditions for the indication of such measures at the request of a party. As Judge Weeramantry has said, the teleological construction takes on its full form when one looks at the gravity of causes for which the provisional measures jurisdiction of the Court is used – prevention of irreparable prejudice or injury; of action in a manner so as to render the final judgment nugatory; of destruction of the subject-matter; and of aggravation of the dispute1934

Measured in this balance, the symmetry between the efficacy of the final judgment and the Provisional Measures exists by definition. L Daniele has devoted a carefully crafted passage to this subject, and the point could not have been better made:   Security Council, Official Records, 6th Year, 559th Meeting (1951) 20, § 94.   cf eg GG Fitzmaurice, ‘The Law and Procedure of the ICJ (1951‑1954): Questions of Jurisdiction, Compandence and Procedure’ in BYIL, vol 34 (1958) 122; Dubisson, above n 1771, 229; A El Ouali, Effets juridiques de la sentence internationale (Paris, 1984) 98–99; E Hambro, ‘The Binding Character of the Provisional Measures of Protection Indicated by the ICJ’ in Essays H Wehberg (Frankfurt-am-Main, 1956) 167; MO Hudson, ‘The Thirtieth Year of the World Court’ (1952) 46 AJIL 22–23; Individual Opinion of Judge Weeramantry, ICJ Reports 1993, 379. 1932   cf Sztucki, Interim, above n 1862, 263, 287. 1933   Ibid, 263. 1934   Independent Opinion of Judge Weeramantry, ICJ Reports 1993, 379. 1930 1931

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There is no doubt that this objective [the protection of the parties’ rights] would be entirely frustrated if the obligatory character of the Court’s measures were denied and the parties were left complete freedom of action. If this happened, the parties, by their conduct, might completely destroy, while the case is pending, the very subject-matter of the disputed rights and thus prevent them, once recognised in the final judgment, from being reinstated . . . (our translation).1935

The application of Article 94 of the Charter might itself be rendered illusory: A party, by its own action pendente lite, might make the final judgment no longer possible to execute, thus failing properly to comply with the obligation, provided for in Article 94(1) of the United Nations Charter, to comply with the Court’s decision. (our translation)1936

It follows that ‘the teleological link between the decision, which is indubitably binding, and the provisional measures cannot be doubted, and it seems logically to follow that even Provisional Measures are binding and obligatory for the parties’ (our translation).1937 An obligation to preserve the object and purpose of a joint action is typically an obligation of good faith.1938 Since this is recognised, as regards pre-treaty negotiations, under customary law and Article 18 of the 1969 Vienna Convention on the law of treaties, a fortiori it must apply in the context of legal proceedings.1939 That is also L Daniele’s view: After all, one can also invoke, in support of the arguments presented here, the principle of good faith . . . From the moment a State agrees . . . to recognise the Court’s jurisdiction to resolve disputes in which the State is involved, the principle of good faith requires that State also to assume certain accessory but necessary obligations so as to enable the Court to fully discharge its mission . . . (our translation)1940

In this sense, the binding force of Provisional Measures rests on the general principle of good faith. 1935   ‘Non v’è dubbio che tale scopo sarebbe del tutto frustrato qualora si negasse il carattere obbligatorio delle indicazioni della Corte e si lasciasse alle Parti completa libertà d’azione. Se così fosse, le Parti, con il loro comportamento, potrebbero addirittura distruggere, nelle more del giudizio, l’oggetto stesso dei diritti controversi e così impedire che tali diritti, una volta riconosciuti dalla sentenza finale, vengano reintegrati’: Daniele, Le misure cautelari, above n 1922, 150. 1936   ‘Una Parte, attraverso la propria azione pendente lite, potrebbe rendere non più eseguibile la stessa sentenza finale, con ciò venendo meno all’obbligo previsto dall’articolo 94.1 della Carta delle Nazioni Unite, di conformarsi alla decisione della Corte’: ibid, 150. 1937   ‘Il legame finalistico fra la sentenza, sulla cui obbligatorietà non vi sono dubbi, e le misure cautelari sembra logicamente imporre che anche queste ultime siano obbligatorie per le Parti’: ibid, 150. P Pescatore, ‘Les mesures conservatoires and les référés’ in Société française de droit international, Colloque de Lyon (1986), La juridiction internationale permanente (Paris, 1987) 350 expresses the same idea in more laconic style, saying that provisional measures must be obligatory because that is the condition necessary for them to fulfil their function. 1938  K Oellers-Frahm, Die einstweilige Anordnung in der internationalen Gerichtsbarkeit, above n 1921, 110 envisages the possibility of deducing directly, from a general principle of law requiring the parties to abstain from any act designed to or having the effect of depriving existing procedures of their objective and purpose, the obligation to comply with Provisional Measures indicated by the Court. 1939   To make an explicit link with good faith, Switzerland expressed itself as follows in the Interhandel case (1959): ‘The Federal Council is convinced that the Government of the United States of America will . . . uphold the principles of the law of nations, whereby good faith demands that all action be avoided during the course of procedure which might prejudice the execution of the decisions of an arbitration court . . . Therefore, in the sense of these principles of good faith, as laid down in numerous arbitration treaties, and which underlie the authority of the International Court of Justice to take appropriate precautionary measures . . .’ (Annexe no 13 to the Application, ICJ, Pleadings, oral arguments and documents (1959) 45. cf also, ibid, 69, 74). 1940  ‘Infine, a conforto della tesi qui sostenuta, può invocarsi anche il principio della buona fede . . . Nel momento in cui uno Stato accetta . . . di riconoscere la competenza della Corte a risolvere controversie in cui esso è coinvolto, il principio della buona fede comporta che questo Stato assuma anche alcuni impegni accessori, ma necessari a permettere che la Corte possa svolgere pienamente la sua missione.’: Daniele, Le misure cautelari, above n 1922, 152.



PROVISIONAL MEASURES OF PROTECTION 643

There were various other, subordinate arguments in favour of binding force: 1) Some commentators based their arguments on the fact that Provisional Measures are indicated by an Order of the Court.1941 A similar line of argument was based on the wording of Article 94, paragraph 1 of the UN Charter, providing that every Member of the United Nations undertakes to comply with the ‘decisions’ of the Court, whereas Article 94, paragraph 2, dealing with the measures that the Security Council can adopt in cases of non-compliance, is confined to ‘judgments’; it was inferred that binding force attached not only to judgments, but also, given the terminology of Article 94, paragraph 1 to Orders indicating Provisional Measures.1942 2) Some commentators argued from the fact that Provisional Measures must be notified to the relevant political organs – now to the Security Council1943 – which is not the case for judgments on the merits.1944 This argument was prayed in aid of the idea that Provisional Measures are legally binding. But it is equally possible that what was intended was simply to keep the Security Council informed of any measures that might be less sure of receiving publicity than a judgment would be. 3) It was also argued that the binding character of Provisional Measures resulted from a general principle recognised by civilised nations and transposed into international law.1945 This argument depended on the degree of comparability between international and municipal jurisdictions. 4) A rather similar approach involved the argument that the power to indicate Provisional Measures was inherent in any tribunal deciding the law.1946 On this basis, a denial of the measures’ binding force amounted to saying that instead of deciding, the Court was issuing a mere advice or recommendation. But the Court is a fully-fledged jurisdiction; Article 92 of the Charter states that it is the principle legal organ of the UN. The function of a judicial organ in contentious matters is not to give advice that is purely optional for the parties, but to hand down binding decisions. It was impossible to suppose, in the absence of any clear provision to that effect, that it was intended to make an exception to that principle, particularly in so narrowly jurisdictional a field as the indication of Provisional Measures. This led L Daniele to conclude that: ‘It would be contrary to all logic to suppose that it was intended, in this context, to introduce into the proceedings an incidental phase of a merely consultative or exhortatory nature’ (our translation).1947 5) E Hambro put forward an a fortiori argument.1948 He argued that the Orders issued by the Court on such relatively minor questions as the forms of pleading and the time limits for it are indubitably executory in character, under Article 48 of the Statute. 1941   TO Elias, ‘The International Court of Justice and the Indication of Provisional Measures of Protection’ in G Amado Memorial Lecture, United Nations (Geneva, 1978) 11. 1942   cf Hambro, above n 1931, 168–69; Individual Opinion of Judge Weeramantry, ICJ Reports 1993, 383–84. On this question, cf Sztucki, Interim, above n 1862, 285–86; Daniele, Le misure cautelari, above n 1922, 165 et seq. 1943   Art 41, § 2 of the Statute. 1944   G Scelle, ‘Règles générales du droit de la paix’ CCHAIL, vol 46, 1933-IV, 589. cf also Sztucki, Interim, above n 1862, 288. 1945   cf JB Elkind, Interim Protection: A Functional Approach (The Hague, 1981) 162; Hambro, above n 1931, 168; Individual Opinion of Judge Weeramantry, ICJ Reports 1993, 377–79. 1946   Individual Opinion of Judge Weeramantry, ICJ Reports 1993, 376. 1947   ‘Sarebbe contrario ad ogni logica pensare che si sia voluto inserire in questo ambito una fase incidentale a carattere meramente consultivo o esortativo’: Daniele, Le misure cautelari, above n 1922, 150–51. cf also Hambro, above n 1931, 164–65; and G Perrin, ‘Les mesures conservatoires dans les affaires relatives à la compétence en matière de pêcheries’ (1973) 77 RGDIP 34. 1948   Hambro, above n 1931, 170. Individual Opinion of Judge Weeramantry, ICJ Reports 1993, 382–83.

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Consequently, much more significant Orders indicating Provisional Measures must a fortiori have the same character. However, one can argue this the other way, namely that although one may readily grant binding force to Orders on minor and procedural questions, this is not the case when it comes to Orders disposing, even on a provisional basis, of the parties’ substantive rights and thus impinging directly on their sovereignty. On this question, then, as to whether Provisional Measures are binding, there was a profound divergence in the views of authoritative commentators. Against their binding nature were ranged Anzilotti,1949 Schücking,1950 Guggenheim,1951 Venturini,1952 Cocâtre-Zilgien,1953 Malintoppi,1954 Toraldo-Serra,1955 Sztucki,1956 Thirlway,1957 Hammarskjöld,1958 Cot1959 and probably Cahier.1960 Those in favour of the binding nature included Schindler,1961 Beckett,1962 Rolin,1963 Niemeyer,1964 Dumbauld,1965 Hudson,1966 Elias,1967 Fitzmaurice,1968 Hambro,1969 Rosenne,1970 Oellers-Frahm,1971 Dubisson,1972 Carretero Perez,1973 Goldsworthy,1974 Crockett,1975

  PCIJ, Series D, no 2, Add 2, 182–83.   Ibid, 183, 199. 1951   P Guggenheim, Les mesures provisoires de procédure internationale et leur influence sur le développement du droit des gens (Paris, 1931) 54. P Guggenheim, ‘Les mesures conservatoires dans la procédure arbitrale et judiciaire’ CCHAIL, vol 49, 1932-II, 678. 1952   G Venturini, ‘Le misure cautelari nel diritto internazionale’ (1938) 119 Archivio giuridico Filippo Serafini 179 et seq. 1953   A Cocâtre-Zilgien, ‘Les mesures conservatoires en droit international’ (1955) 11 Revue égyptienne de droit international 107. A Cocâtre-Zilgien, ‘Les mesures conservatoires décidées par le juge ou par l’arbitre international’ (1966) 70 RGDIP 45–46. 1954   A Malintoppi, Le raccomandazioni internazionali (Milan, 1958) 284–85. 1955   NM Toraldo-Serra, Le misure provvisorie internazionali (Rome, 1973) 83 et seq. 1956   J Sztucki, Provisional Measures in the Hague Court: An Attempt at a Scrutiny, (Deventer, 1983) 287 et seq. 1957   H Thirlway, ‘Indication of Provisional Measures by the ICJ’,, above n 1810, 29 et seq. 1958   A Hammarskjøld, in Ann IDI, vol 31 (1934) 674. 1959   JP Cot, La bonne foi en droit international public, Cours de l’Institut de Hautes Etudes internationales (Paris, 1968/1969) 24–25. 1960   P Cahier, ‘Cours général : Changements et continuité du droit international’ CCHAIL, vol 195, 1985-VI, 354: ‘[The word “indicate”] does not seem to contain an element of obligation.’ 1961   D Schindler, ‘Les progrès de l’arbitrage obligatoire’ CCHAIL, vol 25, 1928-V, 349–50. 1962   E Beckett, ‘Les questions d’intérêt général au point de vue juridique dans la jurisprudence de la PCIJ’ CCHAIL, vol 50, 1934-IV, 286. 1963   H Rolin, ‘Force obligatoire des ordonnances de la Cour permanente de Justice internationale en matière de mesures conservatoires’ in Essays E Mahaim, vol II (Paris, 1935) 295 et seq. 1964  HG Niemeyer, Einstweilige Verfügungen des Weltgerichtshofs – Ihr Wesen und ihre Grenzen, Frankfurter Abhandlungen zum modernen Völkerrecht, vol 28 (Leipzig, 1932) 35. 1965  Dumbauld, Provisional Measures of Protection in International Controversies, above n 1799, 173 et seq. 1966   Hudson, above n 1771, 425–26. In the 1934 edition (415), the author still held the contrary view. 1967   TO Elias, ‘The International Court of Justice and the Indication of Provisional Measures of Protection’, G Amado Memorial Lecture, United Nations (Geneva, 1978) 11. 1968   Fitzmaurice, above n 1931, 122. 1969   Hambro, above n 1931, 152 et seq. 1970   S Rosenne, The Law and Practice of the International Court, 2nd edn (Dordrecht/Boston/Lancaster, 1985) 125. 1971  Oellers-Frahm, Die einstweilige Anordnung in der internationalen Gerichtsbarkeit, above n 1921, 109 et seq. 1972   Dubisson, above n 1771, 228–29. 1973  A Carrandero Perez, ‘Las medidas cautelares en el proceso internacional’ (1958/59) 32 Anales de la Universidad de Valencia 49. 1974   PJ Goldsworthy, ‘Provisional Measures of Protection in the ICJ’ (1974) 68 AJIL, 274–75. 1975   CH Crockett, ‘The Effects of Provisional Measures of Protection in the ICJ’ (1977) 7 California Western International Law Journal 351, 355, 357. 1949 1950



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Tunçel,1976 Mani,1977 Nantwi,1978 Elkind,1979 Jessup,1980 El Ouali,1981 Pescatore,1982 Schachter,1983 Stone,1984 Cavaré,1985 Haver,1986 Thierry,1987 Schwarzenberger,1988 Henkin,1989 Daniele,1990 Weeramantry1991 and Ajibola.1992 In its jurisprudence prior to 2001, the Court hesitated to take a clear position on the point. Its general if timid tendency, however, was in the direction of giving Provisional Measures binding force. The judgment of 2001, in which their binding nature was affirmed, had been long in preparation. For its detractors, it was like gathering clouds announcing the coming of a storm; for its admirers like a rosy sunset foreshadowing a fine day to come. One of the intermediate links in the chain leading to this decision of 2001 is to be found in the two Orders relating to Provisional Measures in the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Yugoslavia, 1993). Bosnia had requested new Provisional Measures1993 after obtaining an Order that already gave it such protection.1994 The Court rejected the new request. This rejection was closely connected to the non-execution of the measures already indicated. The Court added that the measures already indicated must immediately be complied with, and that there was no need for new ones.1995 The Court had never previously come so close to an explicit affirmation of the obligatory character of Provisional Measures. As L Daniele notes, ‘if the Court is endeavouring to find the means to sanction non-execution by the parties of the measures it has indicated to them, it is because the Court itself is convinced that the measures have binding force’.1996 This was also the opinion of Judge Weeramantry.1997 The order was even more peremptory in the case on the Vienna Convention on consular relations (Paraguay v USA, Provisional Measures, 1998). The Court’s order twice used the formula ‘the United States should [in the French text doivent/must] . . .’.1998 This, 1976   E Tunçel, Exécution des décisions de la Cour internationale de Justice selon la Charte des Nations Unies (Neuchâtel, 1960) 51. 1977   VS Mani, ‘Provisional Measures of Protection: Article 41 of the ICJ Statute and Article 94 of the United Nations Charter’ (1970) 10 Indian Journal of International Law 362–63. 1978   EK Nantwi, The Enforcement of International Judicial Decisions and Arbitral Awards in Public International Law (Leiden, 1966) 153. 1979  Elkind, Interim Protection, above n 1945, 162. 1980   P Jessup, in Elkind, ibid, xiii. 1981   El Ouali, above n 1931, 98–99. 1982   Pescatore, ‘Les mesures conservatoires et les référés’, above n 1937, 350. 1983   O Schachter, ‘International Law in Theory and Practice’ CCHAIL, vol 178, 1982-V, 223. 1984   J Stone, Legal Controls of International Conflict (London, 1954) 132. 1985   L Cavaré, ‘Les sanctions dans le cadre de l’Organisation des Nations Unies’ CCHAIL, vol 80, 1952-I, 269. 1986   P Haver, ‘The Status of Provisional Measures of the International Court of Justice after the Iranian Hostages Crisis’ (1981) 11 California Western International Law Journal526. 1987   H Thierry, ‘L’évolution du droit international’ CCHAIL, vol 222, 1990-III, 94. 1988   G Schwarzenberger, International Law – As Applied by International Courts and Tribunals, vol IV (London, 1986) 552. 1989   L Henkin, ‘Provisional Measures, United States Treaty Obligations, and the States’ (1998) 92 AJIL, 679–81. 1990  Daniele, Le misure cautelari, above n 1922, 137 et seq., especially 149–53, on good faith. 1991   Individual Opinion of Judge Weeramantry, ICJ Reports 1993, 374 et seq. 1992   Individual Opinion of Judge Ajibola, ibid, 406. 1993   As also counter-requested by Yugoslavia. 1994   ICJ Reports 1993, 3 et seq. 1995   ICJ Reports 1993, 325 et seq. 1996   Daniele, ‘L’apport de la deuxième ordonnance’ above n 1925, 947. 1997   Individual Opinion of Judge Weeramantry, ICJ Reports 1993, 374 et seq. 1998   ICJ Reports 1998, 258, § 41: ‘The United States should [in the French text doivent] take all measures to ensure that Angel Francisco Breard is not executed pending . . . and should [doivent] inform the Court of all the measures taken in implementation of this Order.’ (italics added)

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particularly the French version, is plainly the language of obligation, and indeed it is difficult to imagine a clearer indication than the French text provides that the obligation is legally binding.1999 In the LaGrand case (2001), the Court finally said explicitly that Provisional Measures indicated under Article 41 were legally binding. Having found that there was a discrepancy between the English and French language versions of the Statute, the Court thought it necessary, as suggested by Article 33 of the Vienna Convention on the Law of Treaties, to attempt to reconcile the two texts, in particular by taking account of the object and purpose of the provision in question. The relevant paragraphs of the judgment merit citation in extenso.2000 102. The object and purpose of the Statute is to enable the Court to fulfil 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. 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. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article. 103. 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 1999   The USA did not comply with the Order – Mr Breard was executed shortly thereafter. Problems of constitutional law seem to have been decisive here. The Federal Government had demanded that the execution be postponed out of respect for the Court’s Order. On this case, see the contributions in (1998) 92 AJIL 666 et seq. 2000   ICJ Reports 2001, 502 et seq. On this decision of the Court, cf especially Oellers-Frahm, ‘Article 41’above n 1799, 956–58; PY Ben Hammadi, ‘La question du caractère obligatoire des mesures conservatoires devant la Cour internationale de Justice – l’arrêt LaGrand du 27 juin 2001’ (2001) 114 Revue québecoise de droit international, 53 et seq.; K Oellers-Frahm, ‘Die Entscheidung des IGH im Fall LaGrand – Eine Stärkung der internationalen Gerichtsbarkeit und der Rolle des Individuums im Völkerrecht’ (2001) 28 Europäische Grundrechte Zeitschrift, 265 et seq.; C Tams/M Mennecke, ‘The LaGrand Case’ (2002) 51 ICLQ 449 et seq.; JA Frowein, ‘Provisional Measures by the International Court of Justice – The LaGrand Case’ (2002) 62 ZaöRV 55 et seq.; M Manouvel, ‘Métamorphose de Article 41 du Statut de la ICJ’ (2002) 106 RGDIP 103 et seq.; J Kammerhofer, ‘The Binding Nature of Provisional Measures of the International Court of Justice: the ‘Settlement’ of the Issue in the LaGrand Case’ (2003) 16 Leiden Journal of International Law 67 et seq.; Thirlway, above n 1771, 111 et seq.; Gemalmaz, Provisional Measures, above n 1799, 595 et seq. See also R Kolb, ‘Note on New International Case-Law Concerning the Binding Character of Provisional Measures’ (2005) 74 Nordic Journal of International Law 117 et seq. Two years later, the European Court had likewise moved its jurisprudence towards giving Provisional Measures binding force, in the case of Mamatkulov v Turkey. As to that case, see K Oellers-Frahm, ‘Verbindlichkeit einstweiliger Massnahmen: Der EMGR vollzieht – endlich – die erforderliche Wende in seiner Rechtsprechung’ (2003) 30 Europäische Grundrechte Zeitschrift 689 et seq.; GS Landsas, ‘International Human Rights and the Binding Force of Provisional Measures’ (2003) 5 European Human Rights Law Review 527 et seq.; H Tigroudja, ‘La force obligatoire des mesures provisoires indiquées par la Cour européenne des droits de l’homme’ (2003) 107 RGDIP 601 et seq. Already in 2000, the UN Committee on Human Rights under Covenant II of 1966 had affirmed the power to indicate binding Provisional Measures, which was the more remarkable given that the Committee’s final opinions are not in themselves binding: see the case of Piandiong et al v the Philippines (Communication No 869/1999, 15 June 1999, Doc CCPR/C/70/D/869/1999, § 5.1–5.4). The trend towards binding obligation is thus a general one.



PROVISIONAL MEASURES OF PROTECTION 647

any kind to be taken which might aggravate or extend the dispute’ (Electricity Company of Sofia and Bulgaria, Order of 5 December 1939. PCI 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 (see Nuclear Tests (Australia v France), Interim Protection, Order of 22 June 1973, ICJ Reports 1973, p 106. . . . 104. Given the conclusions reached by the Court above in interpreting the text of Article 41 of the Statute in the light of its object and purpose, it does not consider it necessary to resort to the preparatory work to determine the meaning of that Article. The Court would nevertheless point out that the preparatory work of the Statute does not preclude the conclusion that Orders under Article 41 have binding force.

The Court thus adopted the substance of the teleological argument already considered above: the proceedings could be rendered illusory if it were permissible for parties to commit acts irreparably prejudicial to the substantive rights in issue during the period while the proceedings are pending. This general line of argument has its echoes in other tribunals and quasi-judicial bodies which have stated that their Provisional Measures have binding force in the absence of an explicit textual provision on the point. In the case of the ICJ, there was also a reason of judicial policy pointing in this direction. The Court was, of course, aware that tribunals existed such as the International Tribunal for the Law of the Sea, at Hamburg, the latter having an express power under the UN Convention of 1982 on the Law of the Sea to indicate binding Provisional Measures.2001 The Court could reasonably have been anxious about being placed at a disadvantage and so losing part of its ‘clientèle’, since parties might have chosen their forum in light of the advantage of being immediately able to request binding Provisional Measures. By stating explicitly that it had that power under its Statute, the Court was able to avoid this danger. The Court stated in general terms that ‘the’ Provisional Measures indicated by it under Article 41 of the Statute are binding. It made no distinction between measures indicated to avoid irreparable prejudice, where the teleological argument has place in its fullest extent, and other measures such as those designed to avoid the aggravation of the dispute, in which respect the argument is less persuasive. The scope of the Court’s powers was thus increased beyond what was strictly necessary to ensure the preservation of the value of proceedings before it. By 2001 the ‘international community’ was thus a world away from the 1920 Lotus case. However, it does not follow that the Court must necessarily indicate binding Provisional Measures. It remains possible for the Court to indicate conservatory measures that are no more than simple recommendations, which may or may not involve real pressure on the parties. If you can do more, then by implication you can also do less: if you can give orders, you can also issue recommendations. The legal presumption since the 2001 judgment is, however, that Provisional Measures are legally binding. If the Court intends otherwise, it will be essential for it to say so clearly. In the LaGrand case, the Court’s jurisdiction was not disputed. However, the Court nowhere suggested in its judgment that the obligatory character of the Provisional Measures was connected to that fact. So it would be strange to argue that Provisional Measures are binding only when the Court’s jurisdiction is undisputed, and indeed would deprive the Court’s teleological reasoning of its practical effects. Indeed, if to dispute the jurisdiction, even by artificial arguments, were sufficient to avoid binding Provisional Measures, respondents would always have to hand a very simple mechanism for avoiding binding Provisional   Art 280, § 6 of the 1982 UN Convention on the Law of the Sea.

2001

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Measures and thus depriving the procedure of its efficacy. Even before the Judgment of 2001, parties could always, acting by agreement, request the Court to indicate binding measures. If the respondent’s acquiescence were, in effect, required before measures could be binding, this would amount to a return to the pre-2001 position. That would be completely contrary to the objectivist logic of the LaGrand decision. Although most leading commentators welcomed the new jurisprudence of 2001, there were some who disagreed with it, to a greater or lesser extent. There was, for example, the chain of argument that is usually brought out whenever the Court takes a line that is not entirely submissive to the sovereign States before it. It is to the effect that States disaffected by what they saw as an accretion to the Court’s powers would respond by withdrawing their acceptances of its jurisdiction.2002 As on so many other occasions, this argument was not borne out by the event. By 2012, the number of optional declarations had not significantly changed. In fact it was virtually the same. Possibly one might argue that the decision of 2001 dissuaded certain States that were not yet parties to the system from making declarations, but that can only be an unverifiable speculation. If indeed it were the case, it would have been better, anyway, to keep out of the system States which might have agreed to participate in it only on the basis that they could deprive it of its sense by remaining free to do irreparable prejudice to the substantive rights invoked against them. Such experience as this author has had of acting as counsel to States shows that, in general, they are far from being concerned by detailed questions of this kind when deciding whether or not to make an optional declaration. Another line of thinking holds that the Court’s interpretation was mistakenly based on the object and purpose of Article 41, that is, anchored in the objective efficacy of the process.2003 According to this view, the Court ought to have been more deferential to the wishes of the States that drafted the Statute, and to the object and purpose of Article 41 as perceived back in 1920. This line of thinking is buttressed by the argument that the subsequent practice of States clearly shows the absence of any belief in the binding character of Provisional Measures, so that the Court’s decision of 2001 amounted to a modification of the applicable law by an act of ‘naked judicial legislation’. This led the particular author concerned to write, in lapidary terms, that: The LaGrand case, with its ruling that Provisional Measures create a binding obligation, will perhaps be hailed as a progressive step in the system of international judicial jurisdiction. On the contrary, it is submitted that it could well prove to have been a disaster for that system.2004

This amounts to saying that it is a simple and easy matter to choose between the efficacy of the Court’s procedures and deference to State sovereignty. For present purposes we can perhaps confine ourselves to noting that such a ‘disaster’ has, once again, failed to materialise, and that the interpretation of a text such as the Statute cannot be frozen forever in the petrified lens of the year 1920; that the travaux préparatoires are in truth much less clear than has been suggested; and that the subsequent practice of States broadly speaking reflected only the dominant view of the time, that Provisional Measures were not binding, or at least that the question was sufficiently doubtful that States could feel themselves at   Manouvel, above n 2000, 135.   Thirlway, above n 1771, 77–78, 111 et seq. 2004   Ibid, 126. For a diametrically opposite (and in our view much more convincing) view, see K Oellers-Frahm, ‘Die Entscheidung des IGH im Fall LaGrand – Eine Stärkung der internationalen Gerichtsbarkeit und der Rolle des Individuums im Völkerrecht’ (2001) 28 Europäische Grundrechte Zeitschrift 265 et seq. 2002 2003



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liberty not to comply. In our view, therefore, this whole critique amounts to little more than prejudice of a highly dubious kind. What, then, are the legal consequences of the fact that Provisional Measures (or, strictly speaking certain Provisional Measures) are legally binding? The most immediate consequence is that a failure to comply constitutes an internationally unlawful act. Given the existence of a general duty not to aggravate the situation while the case is pending, States do not have the right to take counter-measures (that is, reprisals) pendente lite, in reaction against violations of Provisional Measures indicated by the Court. One of the conditions for the adoption of counter-measures, namely necessity, is lacking here. ‘Anarchic’ counter-measures are a right of last resort (ultima ratio),2005 in situations where there is no other means of responding. But here, the Court itself can react to any non-compliance with its Order, and take it into account in its final judgment. Unless a State presents it with particular pleas in this regard, the Court might give it simple satisfaction – by finding that there had been a breach or violation – in the sense of Article 37 of the Articles on State responsibility (2001). This is particularly likely if the State breaching the Provisional Measures Order also loses on the merits, and a fortiori if the Provisional Measures were on the same subject as the substantive issues (such as cessation of nuclear tests, the freeing of hostages and so on). The ne ultra petita principle must not, however, be used to set limits to the Court’s power to react to breaches of its Orders indicating Provisional Measures. Such breaches not only violate the subjective rights of the opposing party (and also of all States parties to the Statute erga omnes), but are also an outrage upon the Court’s authority. The Court therefore has to have power to order such binding measures of reparation as it considers necessary in the circumstances of the case. From the legal point of view, it would even have the right to require reparation to be made to the Court itself. Until now, however, the Court has never made a separate Order consequential upon the breach of a Provisional Measure. No doubt this is because it has not wanted to add to its allegedly presumptuous decision of 2001 an additional layer of pretension to judicial authority. There are good reasons for the Court to behave with such prudence, but it should not be carried so far as to make the binding character of Provisional Measures effectively illusory. In the case on Armed activities in the territory of the Congo (DRC v Uganda, 2005), the Court was faced, for the first time since 2001, with a judgment on the merits that was concerned with violations of Provisional Measures it had previously indicated. The DRC expressly claimed that Uganda had breached the Court’s Order on Provisional Measures. The Court reaffirmed that Provisional Measures Orders were legally binding (§ 263). But from 2000 to 2003, that is, between the date of the Order and the withdrawal of Uganda’s troops, that country had failed to comply. It had thereby incurred legal responsibility (§ 264). The Court confined itself to a finding to that effect, without ordering reparation to be made or any other action to be taken (§ 345, no 7). A question could have arisen as to the protection of Uganda’s legitimate expectations (but were they in fact legitimate?): at the time the Provisional Measures Order was made in 2000, it had not been established that the Court’s Provisional Measures were binding. The question of legitimate trust, and thus of good faith, was relevant at least for the period between the Orders of 2000 and 2001. A powerful collection of leading commentators thought at the time that Provisional Measures were not binding and the question was on any view a debatable one. In those   See Art 52, § 3(b) of the Arts on States responsibility for internationally illegal acts (2001).

2005

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circumstances, would it have been right to punish Uganda for having endorsed the view that they were not binding? Possibly it would, if one postulates that in such cases responsibility is strict, as indeed the Court seems to do. But of course since 2001 such a view has no longer been tenable. In the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Serbia and Montenegro, merits, 2007), the question of failure to comply with Provisional Measures came up again. The binding character of Provisional Measures had been affirmed by the Court in 2001, that is, after the indication of Provisional Measures in the Genocide case, back in 1993. However, that made no legal difference, since in its 2001 judgment the Court confined itself – according to its own words – to endeavouring to attribute to the provisions of the Statute the meaning and scope they had always had (§ 452). Broadly speaking, Serbia had failed to comply with the preventive obligations indicated in 1993. The question of reparations for such a violation was bound up with the same question resulting from the violation of Article I of the 1948 Convention, and the Court dealt with it in that context (§ 458). The Court once again opted for a simple form of ‘satisfaction’. It took the view that even a symbolic indemnity to Bosnia for violating the Provisional Measures was not required, since the violation was the same as the violation of the 1948 Convention. The Court therefore confined itself to a separate declaration, in its judgment, that the respondent had breached its duty to comply with the Provisional Measures (§ 469). One notes in this regard that the Court confined itself here to the relatively eirenic plane of giving ‘satisfaction’ to Bosnia’s claims, without imposing any heavier penalty. One may well ask whether this approach is sufficient to inculcate a sense of respect for Provisional Measures. The case of the Pulp mills on the River Uruguay (2006) shows that the decision that Provisional Measures are binding on the parties to a case may well have contributed to the Court’s developing a more restrictive approach towards indicating them in the first place. Knowing that Provisional Measures are binding, and that they may give rise to claims of responsibility for violations, which in turn may make cases more complicated than they already are, the Court was a little less forthright about indicating them. It felt constrained to seek reassurance by paying greater attention to the substantive issues: if it thinks the substantive claim ill-founded, it will avoid the complication of indicating Provisional Measures; if, on the other hand, it thinks the substantive claim likely to prove justified, it can afford to be a little less restrained. The binding nature of Provisional Measures – welcome in itself – is thus a modifying element in the parallelogram of forces to be taken into account in the law of Provisional Measures.

g)  Provisional Measures in Advisory Opinion Cases2006 The PCIJ had contemplated the possibility of making provision in its Rules for the indication of Provisional Measures in advisory as well as contentious cases. Its draft Rule 57, paragraph 1 of 1936 provided that: ‘A request for the indication of interim measures of protection may be filed at any time during the contentious or advisory proceedings to 2006   See Oellers-Frahm, ‘Article 41’, above n 1799, 951–52; Thirlway, above n 1771, 126–28; Sztucki, Interim, above n 1862, 136 et seq.; Gemalmaz, Provisional Measures, above n 1799, 377 et seq.



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which it relates’ (our translation of the original French).2007 The fact that this provision was not adopted in relation to advisory opinion cases reflects less a wish to reject such measures in this context, than a refusal to state, in every specific Article on contentious proceedings, the extent to which it was also applicable to advisory cases. The Court preferred to adhere to the general principle, a more flexible and more economical approach, under which the procedure in advisory cases was to follow as closely as possible, by analogy, the rules applicable to contentious cases.2008 The present Rules likewise contain no specific rule as regards Provisional Measures in advisory proceedings. In practice, the question has arisen only once, in the case on the Applicability of the obligation to arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (1988). The subject of the advisory opinion related to the closing of the Palestinian representative office at the United Nations, by virtue of the host State’s (USA’s) antiterrorism legislation. The UN rightly argued that this step was contrary to the Headquarters Agreement between the UN and the USA. A request for an advisory opinion was lodged with the Court, by means of Resolution 42/229B of the General Assembly. The Resolution indicated the urgency of the question and the need to take immediate steps to begin procedures for settling the dispute. Given these facts, and the danger that the PLO office would be closed, the Court vaguely suggested a possibility of indicating Provisional Measures, but in the absence of any formal request for such measures, decided not to pursue the point.2009 The Court did at least suggest that, if it had been seised of a request for Provisional Measures by the body requesting the advisory opinion, it would have been in a position to respond positively. Leading commentators have advanced the following arguments against the existence of a right to indicate Provisional Measures in advisory proceedings. First, it has been argued that Provisional Measures must be concerned with the protection of the ‘rights’ of either party (the English language text) or of each (chacun) of them (the French text). But, in advisory proceedings, there are no parties’ rights to be protected because there are no ‘parties’. Second, advisory proceedings lead to an opinion not to a binding judgment. Also, it is unnecessary to make provision for Provisional Measures of protection, since there is nothing to ‘protect’. It would be extremely strange to order binding Provisional Measures in order to ensure the ‘executability’ of a decision which is to be only advisory. Neither of the two arguments against the power to indicate Provisional Measures in advisory proceedings is decisive. As to the first argument, the lack of formal ‘parties’ in a position to request Provisional Measures does not affect the fact that there are nevertheless, on the one hand, a requesting body capable of applying for Provisional Measures and, on the other, the Court itself, which has the capacity to indicate measures motu proprio under its inherent powers. As to the second objection, it might indeed seem strange to indicate binding measures in an advisory proceeding not destined to lead to a binding decision. But this overlooks the point that the Court’s Provisional Measures need not necessarily be binding in character. The Court can confine itself to recommending appropriate Provisional Measures with regard to the subject matter of the proceedings, or with a view to avoiding any aggravation of the situation. Furthermore, if, in such a case, there is no binding judgment whose ‘executability’ Provisional Measures would be designed to preserve and protect, the Court’s advisory opinion will nevertheless encompass a legal   PCIJ, Series D, no 2, Add 3, 801, 875.   Art 82 of the 1936 Rules. 2009   ICJ Reports 1988, 4. 2007 2008

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recommendation. It is perfectly possible to seek to protect the subject matter of that recommendation against the (deliberate) creation of a situation in which the Court’s advice would no longer be of any practical utility. All proceedings before the Court have an object and purpose. The protection of that object and purpose is always a question that can arise, whether in contentious or in advisory proceedings. Finally, there is the point that Provisional Measures are issued not only to ensure that the Court’s eventual judgment will still, when it comes, have a minimal degree of ‘actuality’, but also to avoid the aggravation of the dispute or situation during the course of the intervening period. One might add that this question will present itself in different ways, depending on the type of advisory opinion that is being requested. Some such opinions relate to abstract or general questions, such as, for example, the case on the Legality of the use of nuclear weapons (1996).2010 Others relate, in a mediated way, to current disputes between States or other bodies; this was a commonplace at the PCIJ and is still frequently the case at the ICJ, as shown by opinions on such cases as the Peace Treaties (1950),2011 Western Sahara (1975)2012 or Construction of a wall (2004).2013 Obviously, the question is not put in the same manner in these two different types of case. Provisional Measures may be more urgently needed in the second type of case than in the first. The Court undoubtedly has the inherent power to indicate such measures. It is the master of its own procedure, and can take any step necessary to safeguard the practical value and utility of its proceedings. For present purposes, one need say no more than that, until now, the Court has not felt the need to exercise this power. One might conclude that it is a less urgent issue in advisory proceedings, and therefore a dormant question, at least for the time being.

h)  The Role of the Security Council in the Context of Provisional Measures2014 The question of the relationship between the Court and the Security Council comprises, as regards Provisional Measures, two aspects: first, the situation following the seising of both Court and Council in parallel; second, the duty to notify Provisional Measures to the Council, and its powers to take action in respect of them. Concurrent seisin of Court and Security Council. Where both the Court and the Security Council are seised in parallel, it is possible that both may contemplate the indication of Provisional Measures. The Court can take this step under Article 41 of the Statute; the Security Council can do so under Article 40 of the Charter. The Council can also directly exercise its power to adopt binding resolutions under Chapter VII and/or Article 25 of the Charter. First question: if the Security Council has already indicated binding measures, can or should the Court indicate further measures? One should note that the pre-existence of a Security Council Resolution might prove to be a decisive argument for saying that the ‘circumstances’ envisaged by Article 41 of the Statute do not necessitate the indication of further measures. The Court might take the view that the conditions as to urgency or irrep  ICJ Reports 1996-I, 226 et seq.   ICJ Reports 1950, 65 et seq. 2012   ICJ Reports 1975, 12 et seq. 2013   ICJ Reports 2004-I, 136 et seq. 2014   See Oellers-Frahm, ‘Article 41’, above n 1799, 959–62; and Gemalmaz, Provisional Measures, above n 1799, 427 et seq. 2010 2011



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arable prejudice are not satisfied in the particular case in question. In that case it would, in effect, be saying that, for the time being, the Security Council’s own measures are sufficient, and must be complied with. Alternatively, the Court might take the view that the Security Council measures were insufficient. This view could be the result of the different objectives being pursued by the two bodies (in one case maintenance and re-establishment of the peace, in the other, the resolution of the dispute) or of the different purposes of their respective procedures. In this case, the Court might indicate measures additional to those indicated by the Council. The Court’s measures would apply solely to the case before it. That being so, the Court would have to take account of the impact of its own measures on those of the Council, given that the law of the UN recognises the principle of mutual respect between the UN’s principal organs (the Organtreue principle, deriving from the broader principle of good faith under Article 2, § 2 of the Charter). Each principal organ is under the obligation to take account of the other, and to do its best not to undermine its statutory action. This also works in reverse, when the Court is seised first. It is a matter of regret that the Council was not sufficiently concerned about this when dealing with the Lockerbie case. One notes that, until the present time, the Court has never considered that the seising of the Security Council, and action by it, made it superfluous for the Court to take action of its own under Article 41.2015 The Court’s conclusions do not reflect any kind of empire-building wish on its part to mark the independence of the Court’s sphere of action. Rather, they have tended to recognise the fact that the two bodies’ respective procedures, one political, the other legal, are not identical, either in objective or in method. Second question: can either the Court or the Council adopt measures that derogate from those indicated by the other body? And in the event of conflict between the respective obligations arising from their measures, what is the legal position? Until now, this question has come up only in relation to the Lockerbie case (1992–98). Even that case shed little light on the matter, given that the proceedings before the Court were discontinued. Legally, each of these principal organs of the UN is independent of the other, and neither is subordinate to the other. This means that each can adopt measures, and take decisions, from its own particular perspective, its independence uncompromised by its duty to take account of the action of the other body, and to respect that action so far as it is possible to do so. What, then, would happen if the two bodies were actually to impose contradictory obligations on a Member State? First of all, it would be necessary to try to resolve (or at least reduce) the contradiction by an interpretation of the measures, designed, so far as possible, to harmonise them. It would be quite wrong to assume that the two organs had both wished to undermine the activity of the other or make the other’s activity more difficult. If that does not eliminate the contradiction, then of course, the question becomes more difficult. Article 103 of the Charter provides no solution: the Statute is an integral part of the Charter,2016 and therefore the priority of Article 103 does not apply as between the Charter (in the narrow sense) and the Statute. Absent any answer in the practices or texts of the UN, various other solutions might be explored. First, it is possible to say that, on a teleological reading of the Charter, action by the Council for the purpose of maintaining or reestablishing the peace (though perhaps not in other contexts) must take priority over the action of the Court. The cornerstone of the Charter is the maintenance of peace: that is its 2015   See, eg the case on Armed activities in the territory of the Congo (DRC v Uganda), ICJ Reports 2000, 127–28, §§ 39 et seq. 2016   Art 92 of the Charter.

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supreme object and purpose,2017 overriding all others.2018 It confers upon the Security Council the most extensive powers in that regard, and endeavours to eliminate all legal obstacles to the exercise of those powers. The Council acts here as a matter of supreme urgency, and so its mission has priority. It also acts on the basis of a broad overview of the conflict, not of a view reduced to the terms of a purely legal dispute. Finally, and unlike the League of Nations Covenant, the orientation of the Charter is, plainly, more political than legal. All these factors would militate in favour of the Council and of giving priority to its activities under Chapter VII, in the event of a conflict with the powers of the Court under the Statute. Such a solution would in truth amount to the partial, temporary and surreptitious reintroduction of the idea of non-justiciable disputes, on the basis of the maxim ‘de maximis non curat lex’; and also some superiority of the Security Council over the Court. As a natural extension of this line of thinking, one catches fleeting glimpses of the idea that the Court’s activities ought to be capable of being suspended by the Council, if and when the latter is seised of a case and feels that it might be hampered by the activities of the Court. Although it is difficult to agree fully with arguments leading in that direction, it has nevertheless to be recognised that they do, at some levels, carry a real measure of persuasive force. Next, it is possible to argue that, when faced with two series of legally equivalent obligations in a situation where the law does not indicate which has priority, the State concerned would be free to choose between compliance with the Council’s measures, and those of the Court. The State would, as a necessary consequence, be automatically breaching the measures ordered by the other body. There are two possible consequences of this. Either the State incurs international liability for its ‘illegal’ acts (though it would probably be able to avoid the imputation of illegality, by pleading force majeure as a circumstance precluding wrongfulness), or alternatively it would be accepted right away that compliance with one of the two sets of measures automatically freed it from any obligation to comply with the other set (ad impossibile nemo tenetur). According to yet another point of view, it is impossible to give any State the freedom to choose the measures it will comply with. Such freedom might perhaps be permissible in minor matters, but not in matters of real moment, concerning the maintenance of international peace and the resolution of international disputes. In that case, it would be necessary to concede that a dysfunctional legal situation had arisen. Each set of measures would be holding the other in check, so that positive law would provide no answer to resolve the conflict. The two bodies whose measures conflicted ought, in such a case, to consult together, in order to find a viable solution. Theoretically, one could even imagine taking the point for an ultimate decision to the General Assembly, whose competence covers all questions relating to the powers of the United Nations.2019 But, in most cases, such a course might well be ill-advised, given the risk of the question’s getting bogged down in interminable and highly-politicised debates. It is difficult to choose between these points of view. Probably, if the situation were ever actually to arise, the legal and political attitudes adopted would depend on the concrete circumstances in which the two bodies’ relationship came to be affected by such a difference. Legally, the surer response seems, at least for the time being, to lie in some combination of the second and third approaches. Provisionally, the State affected would be free to   See the Preamble and Art 1 of the Charter.   M Bedjaoui, ‘Article 1, Commentaire général’ in JP Cot, A Pellet and M Forteau (eds), La Charte des Nations Unies, Commentaire Article par Article, 3rd edn, vol I (Paris, 2005) 314. 2019   Art 10 of the Charter. 2017 2018



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choose which measures to comply with, and the two UN organs would have to consult together to find a solution. Admittedly, it is difficult to see a conflict as likely to occur in relation to measures relating to the essential aspects of a dispute. If the Council orders a ceasefire, for example, under Article 40 of the Charter, then obviously the Court is not going to indicate measures under Article 41 of the Statute that require the parties to keep on fighting while the case is pending! Notification to, and action by, the Security Council. Article 41, paragraph 2 of the Statute provides that: ‘Pending the final decision, notice of the [provisional] measures suggested shall forthwith be given to the parties and to the Security Council.’ Article 77 adds: Any measures indicated by the Court under Articles 73 and 75 of these Rules, and any decision taken by the Court under Article 76, paragraph 1, of these Rules, shall forthwith be communicated to the Secretary-General of the United Nations for transmission to the Security Council in pursuance of Article 41, paragraph 2 of the Statute.

Both measures requested by the parties (Article 73), and those indicated by the Court proprio motu (Article 75), must be communicated to the Security Council. The Council is informed because the Court’s Order may affect its own activities. For example, it may require the State concerned to comply with the Court’s Order, doing so either under Chapter VI, or Chapter VII. This was done in the case on the United States diplomatic and consular staff at Tehran (1979),2020 in the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Yugoslavia, 1993)2021 and then in the case of the Land and maritime boundary (Cameroon v Nigeria, 1996).2022 It is equally possible for the State benefitting from the measures to bring them to the attention of the Security Council, with a request for action to ensure compliance by the respondent. This happened in the Anglo-Iranian Oil case (1951). On that occasion, the Council suspended its action, both because of the situation’s political sensitivity and because it was not obvious that the Court in fact had jurisdiction over the merits. Indeed, the Court subsequently decided it had no jurisdiction, thus depriving the Provisional Measures question of continuing current significance.2023 Finally, there is the question whether the Security Council could take action under Article 94, paragraph 2 of the Charter, in order to enforce an Order indicating Provisional Measures. This provision reads as follows: 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.

The Council will be able to take such action only if the Order embodies binding Provisional Measures. As we have seen, the Court stated, in the LaGrand case (cited above), that Provisional Measures can be legally binding. However, there is nothing to stop the Court, if so minded, from indicating Provisional Measures purely as recommendations. Such recommendations can be based on ordinary conditions, or can go beyond them: for example, the Court might indicate, by way of a simple recommendation, measures going beyond the   Resolution 461 of 1979.   Resolution 819 of 1993. 2022   Doc NU, S/1996/391 of 29 May 1996. 2023   See Rosenne, The Law and Practice of the International Court vol I, above n 1771, 260–65. 2020 2021

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simple prevention of irreparable prejudice or aggravation of the dispute. Such measures, remaining no more than suggestions, could not be the subject of enforced execution by the respondent. On the other hand, when the Provisional Measures are legally binding, can the Security Council then base itself on Article 94, paragraph 2 of the Charter, and proceed to take steps to enforce the Order? Two main and interrelated arguments have been deployed against that proposition.2024 The first is that Article 94, paragraph 2 deliberately uses the word ‘judgment’ (in French, ‘arrêt’), whereas Provisional Measures are indicated in the form of an Order. The second is that the choice of the word ‘judgment’ shows that the draftsmen of the Charter wanted to confine the role of the Security Council, in relation to execution, to final judgments of the Court. Neither of these arguments is really convincing. As to the first one, the Court is perfectly entitled to embody Provisional Measures in a full Judgment if it thinks appropriate to do so. If, until now, it has always chosen to use the form of an Order, that is for the reasons we have already mentioned, and has nothing to do with Article 94 of the Charter. It would be wrong to attach consequences under Article 94 to a contingent choice made by the Court for other reasons. It is not the formal word ‘order’ or ‘judgment’ which should be taken as decisive. As to the second argument, it reflects the idea that judicial pronouncements that are not ‘decisions’ (arrêts) are not binding, and that those few that, exceptionally, are binding are concerned with questions relating purely to the Court’s internal procedures and not such as to need external execution. It is surely right to bear in mind that, back in 1945, most commentators thought an Order indicating Provisional Measures was not legally binding. In those days, therefore, there was no apparent reason to use an expression other than ‘judgment’ in Article 94, paragraph 2 of the Charter, since a ‘judgment’ was the only type of pronouncement that was then contemplated to require execution. But, since then, the legal position has changed. Orders indicating Provisional Measures must ordinarily be treated as binding. Therefore the Security Council is free to re-interpret Article 94, paragraph 2 in light of the Court’s recent jurisprudence. It can take steps to enforce binding Provisional Measures indicated by the Court. It is one thing to conclude that the Council has the power to act. But is it under a positive duty to do so? This is more doubtful. If the Court asks or suggests the Council to take action, the Council may do, but the Court cannot force it to do so, since the Council retains its own discretionary powers (‘if it deems necessary’ in the words of Article 94, § 2). If the approach to the Security Council comes from one of the parties, the Council needs to consult the Court. If it took action without first doing that, the Council might interfere with the Court’s own activities. The Court might prefer the Council to leave it provisionally to the Court to manage the issue of compliance with the Provisional Measures. The Court does have certain tools at its command, and can, for example, draw the necessary conclusions and consequences from non-compliance when it comes to give judgment on the merits. On the other hand, action by the Security Council might perhaps aggravate the dispute and make it even more bitter than before. The duty to consult is not spelled out in the texts, because questions of this kind were not posed by the circumstances of 1945. The duty derives from the principle mentioned above – requiring mutual respect (Organtreue) to be shown between the various principal organs of the UN. The principle itself derives from Article 2, paragraph 2 of the Charter, and is, incidentally, also a general principle of federative law.   Oellers-Frahm, ‘Article 41’, above n 1799, 961.

2024



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i)  ‘Positive’ or ‘Negative’ Derogation from the Power under Article 41 of the Statute? It is possible for a treaty that makes provision for the ICJ to have jurisdiction, to indicate specifically that the Court may issue Provisional Measures. If that is all the treaty text says on the subject, the clause in question will be legally unnecessary, in that it will add nothing to what is already provided for in Article 41 of the Statute, and will add nothing to the Court’s powers. But what if the treaty terms give the Court powers to indicate Provisional Measures that are framed in different terms from Article 41 of the Statute? There are two ways in which this situation might arise, and they require separate legal analyses. The first possibility is that the parties go beyond the limits laid down in the Statute, that is, that they confer upon the Court the power to indicate Provisional Measures, in the particular proceedings contemplated by the treaty, when, say, there is no urgent need for them, or even if the effects of the Provisional Measures are wider than contemplated in the Statute, for example, going beyond the substantive rights at issue in the proceedings. In such a case, the parties are giving the Court additional powers. If this is, in a sense, ‘derogation’ from the Statute, it is positive, and hence indeed no derogation at all in the legal sense of the term. The second possibility is that the treaty seeks to further restrict, for the purposes of the proceedings contemplated by the treaty, the powers of the Court, under the Statute, to indicate Provisional Measures. In its extreme form, this approach could result in a clause purporting to deny the Court any power at all to indicate Provisional Measures. Alternatively, the clause could provide that the parties will not recognise that any Provisional Measures indicated by the Court are legally binding, and that they will be treated by the parties as simple recommendations. One can also envisage a treaty providing that there can be no Provisional Measures unless and until the Court first issues a definite ruling on its substantive jurisdiction over the case, so that, in effect, the parties refuse to accept Provisional Measures indicated on the basis of a merely prima facie jurisdiction. This second possibility (or set of possibilities) does indeed involve a real derogation from the Statute, a derogation of a ‘negative’ character. So far, these possibilities have been largely academic. From the legal perspective, there is nothing to stop the Court exercising powers specially conferred upon it by a legal instrument, provided that those powers are compatible with the Statute. In such a case, the Court’s jurisdiction would be based on the treaty provisions (that is, obligations arising from the relationship between Court and parties) taken in conjunction with the inherent powers the Court claims the right to exercise, even though they are not directly provided for in the Court’s constitutive texts. The latter texts would then amount to a permissive basis for the action by the Court. Obviously the Court is not obliged to exercise these special powers; it can refuse to do so. The parties can bind themselves to each other by agreement; but such agreements are not binding on third parties. If the Court were obliged to conclude, either generally or in the context of a particular case, that the exercise of such supplemental powers was ill-advised as a matter of the good and proper administration of justice – if, for example, the exercise might initiate a tendency towards ‘à la carte’ procedures that would damage the Court’s judicial functioning as an institutional body – this would be sufficient to justify a refusal to exercise the supplemental powers, either wholly or in part. Similarly, if the Court considered that the powers in question, although not contrary to an express provision of its Statute or of its Rules, were contrary to their spirit, it would be obliged to refuse to exercise them, either wholly or in part. In such circumstances the Court might either refuse to exercise its inherent power to accept the

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‘invitation’ of the parties, or it might simply insist that their agreement is not binding upon it; or it might declare their application inadmissible, as a matter of general admissibility. The situation is different if there is a derogation in the true (‘negative’) sense of the term. In such a case the parties are seeking to deprive the Court of powers it enjoys by virtue of its Statute and Rules, and/or that it has developed in its jurisprudence. Not only would the exercise of specially conferred powers risk resulting in a broken-up and à la carte functioning of the Provisional Measures jurisdiction, but here the parties are also seeking to deprive the Court of at least some of the powers that exist to ensure its proper functioning and the due administration of justice. The law on Provisional Measures is, in a way, the ‘necessary minimum’ required to safeguard the rights of parties pendente lite, and to ensure that the Court itself can in practice conduct its sub judice proceedings without their being prejudiced by grave damage to the subject matter of disputes before it. In other words, it is the efficacy of the Court’s procedure, and ultimately the Court’s prestige, that are at stake. The public interest in the proper functioning of the system is as much affected as the subjective legal positions of the parties. Thus, a derogation from the rules applicable to Provisional Measures under the Statute, the Rules and the jurisprudence of the Court is incompatible with the law of the Statute. Not only is the Court not obliged to apply such special rules; it is under a positive obligation to refuse to do so.

15. COUNTERCLAIMS2025

a)  Concept and General Aspects A counterclaim is defined as an ‘incidental claim in which a party to a case seeks, in addition to the dismissal of the claim made against it, satisfaction from its opponent in respect of a claim connected to that opponent’s claim’.2026 Some of the key elements of this legal 2025   See S Yee, ‘Article 40’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 907 et seq.; G Guyomar, Commentaire du Règlement de la Cour internationale de Justice, adopté le 17 avril 1978: Interprétation et pratique, 2nd edn (Paris, 1983) 518 et seq.; M Dubisson, La Cour internationale de Justice (Paris, 1964) 235–36; IF Shihata, The Power of the International Court to Determine its Own Jurisdiction, Compétence de la compétence (The Hague, 1965) 262–64; S Rosenne, The Law and Practice of the International Court, 1920–2005, vol III, 3rd edn (Leiden, 1997), 1272–77; H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’ in BYIL, Part Twelve, vol 72 (2001), 174 et seq. See also, A Miaja de la Muela, ‘La reconvención ante el Tribunal internacional de justicia’ (1975) 8 Bolandín Mexicano de Derecho Comparado 737 et seq.; M Arcari, ‘Domande riconvenzionali nel processo di fronte alla Corte internazionale di giustizia’ (1998) 81 RDI 1042 et seq.; Y Nouvel, ‘La recevabilité des demandes reconventionnelles devant la Cour internationale de Justice à la lumière de deux ordonnances récentes’ (1998) 44 AFDI 324 et seq.; F Salerno, ‘La demande reconventionnelle dans la procédure de la Cour internationale de Justice’ (1999) 103 RGDIP 329 et seq.; H Thirlway, ‘Counterclaims before the International Court of Justice: the Genocide Convention and Oil Platforms Decisions’ (1999) 12 Leiden Journal of International Law 197 et seq.; L Savadogo, ‘La renaissance de la procédure des demandes reconventionnelles’ (1999) 32 RBDI 237 et seq.; S Rosenne, ‘Counter-Claims in the International Court of Justice Revisited’ in Essays JM Ruda (The Hague, 2000) 457 et seq.; F Rigaux, ‘Les demandes reconventionnelles devant la Cour internationale de Justice’ in Essays S Oda, vol II (The Hague, 2002) 935 et seq.; G Distefano, ‘La demande reconventionnelle au fil des textes régissant le fonctionnement de la Cour de La Haye et de sa jurisprudence’ (2008) 18 RSDIE 45 et seq. On the PCIJ, see D Anzilotti, ‘La demande reconventionnelle en procédure internationale’ (1930) 57 JDI 857 et seq.; R Genêt, ‘Les demandes reconventionnelles et la procédure de la CPJI’ (1938) 19 RDILC 145 et seq.; MO Hudson, The Permanent Court of International Justice, 1920–1924. A Treatise (New York, 1943) 430. 2026   J Salmon (ed), Dictionnaire de droit international public (Brussels, 2001) 316 (our translation).



COUNTERCLAIMS 659

mechanism are thrown into sharp relief by this quite precise definition. First, a counterclaim is essentially (but not wholly) an incidental proceeding. It is, so to speak, engrafted onto existing proceedings. In other words, it is not an independent proceeding, and is thus dependent upon the fate of the principal claim. If the principal claimant discontinues its proceedings, satisfying the requisite conditions for so doing, the counterclaim is automatically extinguished, although it does remain open to the counterclaiming State to renew its application in separate proceedings of its own. That, however, will be possible only if the title of jurisdiction continues to be available to it. Second, a counterclaim is not necessarily just a simple ‘reflex-action’ against the principal claim. It is more than just a request that the principal claim be dismissed, which indeed is implicit in an ordinary defence. A counterclaim goes further – for example, either in seeking to totally eliminate the principal demand through the mechanism of compensation, or by mounting a positive counter-attack on the claimant, claiming a greater amount of compensation than the principal claim; or alternatively it may claim a lesser compensation. In the first case, the counterclaiming State is seeking to balance the game so as to reach a zero sum: if the principal claimant is seeking an indemnity of one million, the counterclaim will be for the same amount. In the second and third cases, the counterclaimant seeks more (two million) or less (half a million) than the principal claim. In relation to the claimant’s concrete claims, the counterclaim is thus independent. Third, a counterclaim is connected to the subject of the principal claim. It is not here an independent claim in its subject matter, but it is independent in what it seeks from the Court, for example, by way of monetary compensation (see above). On the contrary, it is subordinate or accessory in this respect, to the claims advanced by the claimant itself; this is another way of putting the point that a counterclaim is an incidental proceeding. The counterclaim is admissible only because it is based on the same complex of fact and law. If it were not, the respondent would have to present its claims via a completely separate case. If, in that case, it were subsequently to appear that the two claims were so closely connected that it would make sense to treat them in unity, the Court has power to join them together and treat them as a single case. This requirement of a ‘direct connection’ to which we shall return is, so to speak, the spinal column of counterclaim law and practice. The requirement makes it possible to distinguish between claims which are truly ‘incidental’ and those that are separate, requiring separate proceedings. The Court has summarised these essential features of counterclaims as follows: Whereas it is established that a counter-claim has a dual character in relation to the claim of the other party; whereas 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, whereas at the same time, it is linked to the principal claim, in so far as, formulated as a ‘counter’ claim, it reacts to it; whereas the thrust of a counter-claim is thus to widen the original subject-matter of the dispute 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 whereas, in this respect, the counter-claim is distinguishable from a claim on the merits.2027

From the perspective of the fundamental principles informing the Court’s procedure, counterclaims require a careful balance to be struck between several of these principles. On 2027  Case on the Application of the Convention for the prevention and punishment of the crime of genocide, (Counterclaims), ICJ Reports 1997, 256, § 27.

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the one hand, a counterclaim as an incidental proceeding seeks to serve the economy of the legal process, the proper administration of justice and the equality of parties. Where the parties’ respective claims are connected, that is, when they arise from the same factual or legal nexus, it is useful to be able to put them together so that the dispute can be considered in all its aspects.2028 Integrated proceedings, as opposed to two separate sets of them, make possible appreciable procedural economies. At the same time, they enable justice to be better administered. The Court is then in a position to consider the issues in the round. It can structure the way it addresses itself to the law to reflect that overall view, instead of taking a piecemeal approach; it is thus more likely to avoid ill-articulated judgments, let alone contradictory ones, relating to the same subject matter. The Court thereby enhances its reputation for impartiality, by hearing both sides’ claims in a visibly balanced way. Finally, the procedure also leads to greater equality between the parties. By allowing the respondent to raise its counter-complaints in the same case, in close and very evident connection with the principal claim, the procedure cuts at the root of any desire for unilaterality and any impression of unfairness. These considerations might well be considered to justify a relatively liberal interpretation of the ‘direct connection’ requirement, on the view that the more the respondent’s own claims are given a hearing in the principal proceedings, the better. However, the principles of the due administration of justice and of equality between parties also militate, for different reasons, against an excessive extension of the right to bring counterclaims. On the one hand, the respondent might endeavour, in a manner constituting an abuse, to confuse or otherwise undermine the applicant’s own claims by making excessive and ill-founded counterclaims. The less strictly the direct connection requirement is interpreted, the more possible such manipulative tactics become. Even if that were not so, any counterclaim will have a tendency to alter the tone of the proceedings, complicating the judicial debate and slowing everything down. The applicant is entitled to have justice done to its claims without excessive delays. In addition, equality between parties can be reduced. A counterclaim, which takes on many of the attributes of a principal claim in its own right, may be presented at quite a late stage. The current Rules allow it to be put forward in the Respondent’s Counter-memorial. To allow the respondent that much time no doubt makes sense if the direct connection criterion is applied fairly strictly, because in that case one remains within the same nexus of facts and law.2029 If, however, the criterion were more loosely applied, a respondent would be able to introduce ‘truly new’ claims at this very advanced stage. In order to ensure equality between the parties the Court would then have to allow further written pleadings, slowing the proceedings down. Far from realising a procedural economy, it would have done the reverse, prolonging the proceedings to a perhaps considerable degree. In short, the direct connection criterion is the essential pivot enabling the Court to reconcile the various applicable principles, enabling it to make the necessary separation between what can be included in existing proceedings, and what cannot and must be left to a fresh set of proceedings.

2028  Case on the Application of the Convention for the prevention and punishment of the crime of genocide (Counterclaims), ICJ Reports 1997, 257, § 30. 2029   Nevertheless, the respondent making a counterclaim is normally able to rehearse its position on the counterclaim twice, once in its Counter-Memorial and a second time in the Rejoinder (French ‘duplique’) in which it responds to the defence to its counterclaim, whereas the claimant can respond to the counterclaim only once, in its Reply. cf the Individual Opinion of Judge Oda, in the Platforms case, ICJ Reports 1998, 216, § 10. See below.



COUNTERCLAIMS 661

Counterclaims are general features of court procedures, not unique to international cases. For that reason, analogies with municipal proceedings are drawn with particular frequency. The topic has also been developed by the Court’s own jurisprudence. There is no reference to counterclaims in the Statute itself, but there are succinct references in the Rules, which have been modified over the years, largely to reflect developments in the Court’s jurisprudence. Not being answerable in this regard to any mandatory provision of its Statute, the Court enjoys a wide margin of flexibility in this field. As ad hoc Judge Sir Elihu Lauterpacht put the point with great precision: [T]he Court enjoys a significant measure of discretion. It is not controlled by the letter of Article 80 of its Rules. It should be recalled that, in contrast with many of the Rules of the Court, Article 80 does not have its source in any obligatory provision of the Court’s Statute. In Article 80 the Court is not laying down a procedure for the implementation of its statutory duty; it is only exercising the general power conferred on it by Article 30 of the Statute to ‘frame Rules for carrying out its functions’. The Court . . . has framed certain rules. But it is not rigidly or perpetually bound by these Rules. It is free, and indeed obliged, to apply them reasonably and to adjust their application to the circumstances of the case before it.2030

In this regard one should emphasise that the Court’s jurisprudence on counterclaims continues to evolve, sometimes fluctuating, and that consequently it is not possible, at present to provide a finished sketch of the law on this subject. One reason is doubtless to be found in the fact that, since the turn of the millennium, the practice of making counterclaims has increased. The principal text governing counterclaims is to be found in Article 80, which was revised in the year 2000, the amendment coming into force on 1 February 2001. The Article reads as follows: 1. The Court may entertain a counter-claim only if it comes within the jurisdiction of the Court and is directly connected with the subject-matter of the claim of the other party. 2. A counter-claim shall be made in the Counter-Memorial and shall appear as part of the submissions contained therein. The right of the other party to present its views in writing on the counter-claim, 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. 3. Where an objection is raised concerning the application of paragraph 1 or whenever the Court deems necessary, the Court shall take a decision thereon after hearing the parties.2031

The amendment to the text reflected difficulties and criticisms to which the Court felt obliged to respond, especially at the time of the Genocide (1997) and Platforms (1998) cases.2032 The amendment to paragraph 1 was designed to strengthen the conditions regarding 2030   Case on the Application of the Convention for the prevention and punishment of the crime of genocide (BosniaHerzegovina v Yugoslavia), ICJ Reports 1997, 284, § 18. 2031   The 1978 version read as follows: ‘1. A counter-claim may be presented provided that it is directly connected with the subject-matter of the claim of the other party and that it comes within the jurisdiction of the Court. 2. A counter-claim shall be made in the Counter-Memorial of the party presenting it, and shall appear as part of the submissions of that party. 3. 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.’ As to these provisions, see Guyomar, above n 2025, 518 et seq. On the revision see, Yee, ‘Article 40’, above n 2025, 909. 2032   On this question, see S Torres Bernardez, ‘La modification des Articles du Règlement de la Cour internationale de Justice relatifs aux exceptions préliminaires et aux demandes reconventionnelles’ (2003) 49 AFDI 207 et seq.

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jurisdiction and ‘direct connection’ mentioned in the text. The former version had simply said that parties could present counterclaims if the conditions were satisfied, whereas the new one is addressed to the Court itself, enjoining it to entertain counterclaims only of these conditions are satisfied. The order of the two conditions is reversed, so that it now follows the general principle that jurisdiction always comes first, even before direct connection. The words ‘The Court may entertain . . . only if’ eliminate all discretion, in the sense that the conditions are mandatory. The amendments to paragraph 2 were made in order to strengthen equality between parties by adding the words ‘The right of the other party to present its views in writing on the counter-claim, 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.’ This inserts an extra written pleading into the proceedings, eliminating the imbalance, and re-establishing equality between parties. The amendments to paragraph 3 were designed to reinforce the Court’s role and capacity to act proprio motu. If, previously, that power applied only to the direct connection issue, it now applies, in concrete application of Article 36, paragraph 6 of the Statute, to all questions relating to counterclaims. It allows the Court to hold full Preliminary Objections proceedings, if necessary, and to exercise oversight and control on a motu proprio basis. The applicant’s right to raise an ‘objection’ is now explicitly mentioned, which it was not in the 1978 text. However, the Court gives no indication of what it means by ‘directly connected’, obviously wishing to maintain sufficient elbow room given that factual and legal situations can come up in complicated and circumstantial ways that may be quite unforeseeable. This is a field in which the jurisprudence has not yet worked its capillary action on the law sufficiently thoroughly to allow the concept to be at least partially codified. For a long time, counterclaims were seldom raised in proceedings before the Court. There were only three such cases in the time of the PCIJ, namely the Factory at Chorzów (1928),2033 Diversion of water from the Meuse (1937),2034 and the Panevezys-Saldutiskis Railway (1939) cases.2035 In the last of these three, the counterclaim was not autonomous in relation to a Preliminary Objection. The reason the counterclaim was not in the event substantively considered by the Court, was that ultimately, the Preliminary Objection was upheld, and this made it unnecessary to go into the counterclaim. At the ICJ, counterclaims have been made in the following cases: before 1957, Right of asylum (1950)2036 and Nationals of the United States of America in Morocco (1952);2037 since 1957, in separate Orders, in the Genocide case (1997),2038 the Platforms case (1998),2039 the Land and maritime boundary between Cameroon and Nigeria (1999),2040 the case on Armed activities in the territory of the Congo (2001),2041 and the Jurisdiction immunities of the State case (Germany v Italy, 2010).2042   PCIJ, Series A, no 17, 37–38, 63–64.   PCIJ, Series A/B, no 70, 28, 32. 2035   PCIJ, Series A/B, no 76, 7–9 and Series E, no 15, 114–15 (English language version), 108–109 (French language version). 2036   ICJ Reports 1950, 280, 288. 2037   ICJ Reports 1952, 181, 203 et seq. 2038   ICJ Reports 1997, 243 et seq. 2039   ICJ Reports 1998, 190 et seq. 2040   ICJ Reports 1999, 983 et seq. 2041   ICJ Reports 2001, 660 et seq. 2042   Order of 6 July 2010. 2033 2034



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b)  Conditions for the Acceptance of a Counterclaim The introduction and admissibility of a counterclaim are essentially connected to the following three conditions. First, a condition as to form: the counterclaim must be presented in the Counter-memorial, or at least no later than in it. Doubtless the Court would not be very formalistic if the counterclaim were in a separate document, provided it was lodged no later than the Counter-memorial. Second, the counterclaim must be ‘within the jurisdiction of the Court’ (Article 80, § 1) and must be admissible. Third, the counterclaim must be ‘directly connected with the subject-matter of the claim of the other party’ (Article 80, § 1). The triad of conditions is thus as follows: timing – jurisdiction – direct connection. At this point we should give further consideration to the second and third aspects. Jurisdiction and admissibility. Under Article 80, paragraph 1, the counterclaim must ‘come within the jurisdiction of the Court’. Here, the first question is whether the Court’s jurisdiction over the counterclaim presupposes a separate title of jurisdiction as to the counterclaim, to be put forward by the counterclaiming State, or whether it arises directly from the Court’s jurisdiction over the principal claim under the title of jurisdiction invoked by the applicant. Under the old version of the Rules, it had been argued that the Court’s jurisdiction over counterclaims flowed directly from its principal jurisdiction and Article 80.2043 Consequently, counterclaiming States would not face the onus of persuading the Court that it had a separate jurisdiction, provided only that the subject of the counterclaim was directly connected to the subject of the principal claim.2044 This argument applied the principle accessorium sequitur principale: jurisdiction over the incidental proceedings flowed automatically from jurisdiction over the principal ones. But that reading of the Rules as they then stood, is not possible for the current text of Article 80. It would deprive the present words ‘within the jurisdiction of the Court’ of all effet utile if the principal jurisdiction were invariably sufficient. Quite apart from that point, the Court’s practice has likewise gone against the old view mentioned above, since in its recent cases the Court has always given separate consideration to the question of its jurisdiction over the counterclaim. Whatever one’s sympathy for the old view, formerly represented by E Hambro, it fails to recognise that counterclaims are not purely and exclusively incidental proceedings like Provisional Measures, but, on the contrary, also have some autonomous aspects. Indeed, the respondent may counterclaim for more than just the dismissal of the principal claim or compensation in respect of it. A counterclaim can, so to speak, take the offensive and in that case, there is no way of avoiding the conclusion that the Court’s jurisdiction will specifically have to be established. The general rule is that, in every case, the Court must satisfy itself as to its jurisdiction. That is easy where the counterclaim is entirely incidental, confined to defending the principal claim (sometimes rather like a Preliminary Objection); it will sometimes require an additional effort, however, to satisfy the Court of its jurisdiction over counterclaims which in the above sense, ‘take the offensive’. Quite apart from these considerations, it is accepted that the presentation of a counterclaim does not presuppose   At that time, Rule 63 of 1946.   See E Hambro, ‘Some Observations on the Compulsory Jurisdiction of the International Court of Justice’ in BYIL, vol 25 (1948) 155 and E Hambro, ‘The Jurisdiction of the International Court of Justice’ CCHAIL, vol 76, 1950-I, 152. 2043 2044

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the specific consent of the defendant to its being included in the proceedings. The counterclaiming State only has to base its counterclaim on a title of jurisdiction.2045 A second question bears on the right to make a counterclaim in the context of a joint principal claim, especially in ‘optional jurisdiction’ cases that have been brought by special agreement. It has been argued that a counterclaim is possible only where the claim is brought by a unilateral application2046 and not in special agreement cases.2047 In fact, however, the problematical cases are all those in which the initiation of proceedings is a joint and not unilateral one.2048 It is easy to understand that where a party begins a case unilaterally, the other party has the right to riposte with a counterclaim. This simply follows the logic of a relationship characterised by a sequence of unilateral acts, an eye for an eye, measure for measure, claim and counterclaim. Where proceedings are brought jointly, however, there is right from the outset, no applicant and no respondent. There is no obvious basis for disturbing the balance that has been founded on the momentary community of interest of the parties to the case. There is something excessive and inappropriate about a legal analysis of the claims of the two sides, in a case begun by a special agreement which will often expressly contemplate and make provision for their respective cases,2049 analysing them as if they were claims and counterclaims. The reality, rather, is that there are two series of principal claims to be resolved in the same proceedings. Whenever it is possible, following a joint request, opening up a ‘common space’, to see each claim, whatever its origin, as part of the principal proceedings, it is both unnecessary and unwelcome to get involved in a counterclaim procedure with all its procedural complications and the resulting compartmentalisation of the case. But what if one party to such a case wishes expressly to make a ‘counterclaim’ which is not provided for either in the special agreement or in a joint application to the Court? Here, the question is not really about the admission of the counterclaim. Rather, it is for the State in question to seek to enlarge the Court’s jurisdiction via the forum prorogatum mechanism, or by an amendment to the special agreement, or even to present the Court with a fresh application on an autonomous jurisdictional basis. In short, the Court’s jurisdiction over a counterclaim presupposes, as an objective condition, that the principal claim is presented by a unilateral application, establishing the relative procedural positions of applicant and respondent. The next question is whether the counterclaim must necessarily be based on the same title of jurisdiction as the principal claim, or whether it can be based on any other valid title of jurisdiction, subject only to the requirement of a subsisting ‘direct connection’ of fact and law as regards the subject of the original claim. This question has given rise to some controversy. The text of Rule 80, paragraph 1 does not require that the title of jurisdiction should be the same: the only requirement it posits is that the counterclaim come ‘within the jurisdiction of the Court’. It is also possible to take the view that the requirement of a direct connection is enough to bring the counterclaim into a close material relationship   Dubisson, above n 2025, 152.   cf eg Yee, ‘Article 40’, above n 2025, 908, for the PCIJ Rules. 2047   Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’, above n 2025, 175. In this connection it should be remembered that a special agreement can be notified to the Court unilaterally, but even then the proceedings are based on the absence of a claimant–respondent situation and the application is still considered to be a joint one. 2048   If two States jointly bring a case to the Court on the basis of a compromissory clause, it will treated legally as if they have begun the case by a special agreement engrafted onto the clause. There will be an autonomous agreement between the parties to seise the Court (a special agreement) and the reference to the compromissory clause will serve to delimit the Court’s subject-matter jurisdiction. 2049   See the Gabcikovo-Nagymaros case, ICJ Reports 1997, 11–12. 2045 2046



COUNTERCLAIMS 665

with the principal claim. It would then be superfluous to require, in addition to the direct connection, that the formal title of jurisdiction must always be the same as the one relied on by the principal applicant. A whole series of judges and commentators have thus concluded that the counterclaim can be based on any valid title of jurisdiction.2050 Others, however, disagree,2051 taking the view that a reasonable interpretation of the ‘direct connection’ provision requires a connection both of fact and law, the latter made manifest in the same title of jurisdiction. Otherwise, they say, the Court’s conception of a counterclaim becomes a kind of rather formless cross-claim, whose limits would tend to be too widely drawn. Further, in the law of then ICJ, perched (so to speak) on an optional jurisdiction, there would be a very close connection between the title (or titles) of jurisdiction on the one hand, and, on the other, the material law applied by the Court. To allow different titles of jurisdiction would be to permit alterations in the unity of the applicable law, enhancing the autonomy of the counterclaim in a wholly excessive way. In such a case, the would-be counterclaimant should instead be required to bring a new case.2052 The Court’s current jurisprudence has yet to throw any light on these matters. However, in earlier times, the PCIJ opted for the first interpretation, in the case on the Factory at Chorzów, in 1928.2053 The original title of jurisdiction in that case was the compromissory clause in the 1922 Geneva Convention on Upper Silesia. The Polish counterclaim related to Article 256 of the Treaty of Versailles, and Poland cited no specific title of jurisdiction for it. The Court based its jurisdiction on the forum prorogatum and passed straight on to consider the direct connection issue. What can be said on this question? It would seem excessively formalistic to exclude any title of jurisdiction except the one governing the principal claims. The idea that the Court should decide, in a single set of proceedings, all the elements of a common legal and factual complex ought to prevail over the character of a title of jurisdiction which, taken on its own, does not dispose of the question of ‘unity of subject-matter’. It is indeed possible to use a separate title of jurisdiction to enlarge the scope of the issues, just as it is possible to use one for purely technical reasons, without enlarging the scope of the issues. This would be the position, for example, if the title of jurisdiction invoked by the applicant had expired and this fact gave rise to legal uncertainties, or if it were, as a result of limitations or reservations, imperfectly reciprocal. The Court needs to be particularly attentive to the reasons which cause a counterclaiming State to rely on another title of jurisdiction, and in particular to the need to safeguard the direct connection with the subject of the principal dispute. For example, if the applicant bases the Court’s jurisdiction over its claim on the compromissory clause in Article IX of the 1948 Genocide Convention, and if the respondent raises counterclaims that likewise relate to genocidal acts committed in the same context, but on the basis of a declaration under the optional clause (because, for example, Article IX was subject to a reservation, excluding the Court’s jurisdiction, which had not been raised when the primary jurisdiction was established) it would be difficult to see why the Court should exclude the counterclaim for want of jurisdiction. Obviously, the problem might be resolved by saying that the only critical date for the title of jurisdiction is the date the Court 2050   In this sense see, eg Yee, ‘Article 40’, above n 2025, 911; Individual Opinion of Judge Higgins, Platforms case, ICJ Reports 1998, 218. See also, Miaja de la Muela, above n 2025, 746–51. 2051   In this sense see, eg Distefano, above n 2025, 62. 2052   Another possibility might be the forum prorogatum, the principal applicant accepting this enlargement so as to cover the issues arising under the counterclaim. Contra, Anzilotti, above n 2025, 869. 2053   PCIJ, Series A, no 17, 35–38.

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is seised, the Court’s jurisdiction over the counterclaim referring solely to that date (the principle of the forum perpetuum). There is no substantive difference: the counterclaim is indeed sufficiently connected to the principal claim both in relation to the law (substantively, the acts of genocide) and in relation to the facts (the same armed conflict, for example). If, in our case, the counterclaiming State has recourse to the declaration under the optional clause for the purpose of enlarging the issues beyond the Genocide Convention, for example into crimes against humanity, can that be accepted? In our view this is not a question of jurisdiction but rather of whether there is a ‘direct connection’ as regards the substantive law. The Court has jurisdiction over this claim if the optional declarations of the applicant and the respondent apply, which is a supposition we did make. This is proved by the fact that the subject of the counterclaim could at any time be brought as a separate principal case. The real issue here is whether it can be admitted as a counterclaim, and that depends essentially on the ‘direct connection’ question. It does seem that the major interest in the matter is that of the principal applicant in not having to be subjected to the disadvantage posed by unforeseeable counterclaims, so that the ‘counterclaim must be situated within the material field of the title of jurisdiction invoked by the principal Claimant’ (italics added).2054 If that is the position, the issues may be presented as a counterclaim; if it is not, then it will be necessary to seise the Court in a new case. In the ultimate analysis, the criterion cannot be a formal one, that is, whether the title of jurisdiction is the same, because, taken by itself, that criterion says nothing about the real connexity of claim and counterclaim. Nevertheless, the fact is that where the titles of jurisdiction are formally distinct from each other, there is a heightened danger that there will be no corresponding ‘material field’ covering both, and the Court will then have to consider the question with particular care. If the primary claim is based on a forum prorogatum in the sense of Article 38, paragraph 5 as, for example, in the case on Certain questions concerning judicial assistance in criminal matters (Djibouti v France, 2008), can a counterclaim be automatically engrafted onto the proceedings, or is the consent of the claimant required, as a matter of reciprocity? In other words, can an agreement to have a given subject be determined ad hoc by the Court open the way to an enlargement of the subject matter (an enlargement not specifically consented to) by way of a counterclaim? The question arises because the forum prorogatum is a title of jurisdiction that is, at one and the same time, extraordinary, exceptional and highly circumscribed. The Court very strictly controls the material scope of the questions to which the State accepting its jurisdiction has allowed it to take cognisance.2055 There is, however, no valid reason to refuse to entertain the counterclaim. The Court’s jurisdiction derives from the principal basis of jurisdiction (the forum prorogatum) and from Article 80 of the Statute. The fact that the respondent to the principal claim, having agreed to defend the case before the Court via the forum prorogatum mechanism, enjoys the right to present its own counterclaim, in no way goes beyond the scope of its own consent, because it is consenting to this extension of the jurisdiction by the very fact of pleading the counterclaim. As for the principal claimant, which is the respondent to the counterclaim, it has taken the benefit of the forum prorogatum for the purposes of the principal claim and must then bear the corresponding burden of a counterclaim permitted by the Rules: qui habet commoda, ferre debet onera (he who takes the benefit must also submit to the burdens). It would,   Salerno, above n 2025, 367 (our translation).   See the case of Djibouti v France (ICJ, 2008) cited above, at §§ 65 et seq.

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moreover, be strange to exclude the counterclaim to the original respondent’s detriment only in cases where the title of jurisdiction is the forum prorogatum, when after all, the respondent will, ex hypothesi, have given the most signal proof of its goodwill and cooperative attitude.2056 It would amount to prejudicing those respondents who least deserve it. However, even in such cases, the Court will still have to take care when deciding whether the counterclaim is sufficiently connected to the primary claim, a fortiori given that the scope of forum prorogatum consent is often very narrow. This is a different question from the one analysed above with regard to the case on the Factory at Chorzów (1928). Here it is a question of deciding whether a principal claim brought on the basis of the forum prorogatum can give rise to a counterclaim, whereas in that case the question was whether a counterclaim going beyond the principal title of jurisdiction could be admitted on the basis of the forum prorogatum. What is the critical date for deciding whether the Court has jurisdiction over a counterclaim? Is it the date the main proceedings began, the counterclaim being essentially only an incidental matter engrafted upon it (retroactivity)? Or is it the date the counterclaim is brought, the latter having a certain degree of autonomy so that it must be considered in its own terms? This is closely connected to the forum perpetuum question, because, at first sight, the question has no practical consequences unless the title of jurisdiction on which the parties rely has undergone some alterations between the time the main proceedings began and the introduction of the counterclaim. This is the case if, for example, the title of jurisdiction has expired in the meantime. Obviously the question comes up in the above terms only if the title of jurisdiction on which the two applications are based is the same. If the principal claimant relies on a compromissory clause and the respondent counterclaims on the basis of the forum prorogatum, or of a declaration under the optional clause, there must necessarily be different critical dates. In that case, each claim must be based on a valid title of jurisdiction at the moment the claim is brought to the Court. Jurisdiction over the primary claim under a particular title will not be decisive for jurisdiction over a counterclaim based on some other title. If this were otherwise, it would mean that the party bringing the counterclaim need not base itself on any title of jurisdiction, the question having already been resolved by the admission of the principal title. That interpretation, as we have already noted, is contrary to Rule 80, paragraph 1 and to the practice of the Court. In the more frequently encountered situation where there is the same title of jurisdiction, it is appropriate to apply the forum perpetuum principle, so that the title invoked for the principal claim continues to work its effects on all incidental matters, until the case comes to an end. This applies to all incidental features, including Provisional Measures. The primary arguments favouring this approach are the economy of the process and equality between the parties. As to the former, modern procedural law and practice have a tendency to extend the field that may be covered by counterclaims, with a view to resolving the totality of complex disputes through a single set of proceedings. It would be prejudicial to force a respondent, desiring to bring a counterclaim closely bound up with the principal claim and governed by the same title of jurisdiction, to find another title (if indeed any other were available) and to begin a new set of proceedings, artificially dividing a 2056   Such an attitude might indeed push a respondent into refusing the forum prorogatum and requiring a special agreement in order to safeguard its counterclaim, either for reasons of prestige and equality (as to which States are particularly sensitive) or simply as a matter of sound litigation strategy, since it may be impossible to know, at the outset, whether or not one will wish to mount a counterclaim. It would be unfortunate if respondents were pushed in the direction of this kind of increased formalism.

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connected set of claims into separate parcels. As to equality between the parties, one needs to consider the effects of allowing a principal claimant to formulate its claim on the basis of an available title of jurisdiction, and to continue to benefit therefrom as regards all incidental matters other than counterclaims (which by definition are not in its interests), and at the same time refusing to allow the respondent to counterclaim, in the same proceedings, in relation to connected matters (which will often be the only aspect in which the respondent, for its part, has any interest). This amounts to perpetuating, for formalistic reasons that are in no way compelling, an apparent inequality between the parties. A better solution is to take one’s inspiration from the fundamental principle of the equality of parties, which, without exaggeration, may be described as the real motor of judicial proceedings. In this regard, there is no need to make a distinction between different types of counterclaims, that is, between negative (denial of the principal claim or compensation for it) and positive (‘offensive’ claims going materially beyond the principal applicant’s claims). In this respect, one might be tempted to argue that the former are purely incidental in nature, to the point of justifying the application to them of the principle of the perpetual projection of the initial title of jurisdiction, whereas the latter are partially autonomous in character, so that it is necessary to show, at the time they are made, that there is a valid basis of jurisdiction over them. But that argument would be mistaken, because it confuses the Court’s jurisdiction with the concrete claims of the counterclaimant. Jurisdiction is fixed from the outset, on the basis that the title of jurisdiction is identical. It must be so, for the fundamental reasons stated above. The actual type of claims and arguments to be made by the counterclaimant is then a matter for its own discretion, subject to the connexity criterion. The only legitimate question is whether the principal claimant may, in its turn, respond with a further claim, itself ‘offensive’ in the above sense, that counters the counterclaim itself. That question will be considered in the subsection on procedure. At this point, one final question needs to be raised: if the Court has to decide whether it has jurisdiction over a counterclaim, must it also decide on the counterclaim’s admissibility? If the respondent to the counterclaim raises Preliminary Objections to jurisdiction over it or to its admissibility, will the Court then initiate a separate phase of the proceedings, as it would do if the claim in question were the principal claim? 1) As to the first limb of this question, Article 80 gives no express indication either way. One might be tempted to interpret the fact that the Rule does not oblige the Court to consider admissibility as meaning that there is no need to decide such an objection. Doubtless the Court would have to reserve any question of ‘general’ admissibility, because it raises questions relating to the Court’s judicial integrity that the judges are obliged to consider motu proprio. But Article 80 of the Rules of 2000 does at least provide some indication as to the admissibility of objections by the parties themselves. Such objections might naturally be concerned with admissibility, so that the Court will be obliged to entertain them. Article 80, paragraph 3 provides as follows: ‘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.’ Finally, the Court has shown in its practice that it will consider challenges as to admissibility. 2) Thus, and here we are moving to the question’s second limb, the Court has rightly permitted the application to counterclaims, mutatis mutandis, of the principles of Article 79 relating to primary proceedings.2057 At the end of the day, a counterclaim is, after all,   I Brownlie, Principles of Public International Law, 6th edn (Oxford, 2003) 483.

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largely a reflex to the principal claim. It is subject to the same rules, and so it is appropriate to emphasise that the two are fundamentally identical. Equality between parties militates in the same sense. The Court’s recent practice shows that it embodies such issues of admissibility (including jurisdiction) in separate orders. In the old cases, the Court decided arguments on counterclaims at the merits stage: Factory at Chorzów (1928), Diversion of water from the Meuse (1937), Right of asylum (1950) and Nationals of the United States of America in Morocco (1952), all cited above. More recently, as already said, the Court has decided these questions by separate Orders.2058 The recourse to an order rather than a judgment emphasises the incidental and procedural aspect of counterclaims. If complex issues of jurisdiction and/or admissibility came up, the issuing of a judgment could be envisaged. Article 80, paragraph 3 of the Rules of Court only require that the Court ‘decide’ on the matter, without binding it to a specific form. In the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Yugoslavia, 1997),2059 Bosnia-Herzegovina disputed that the Yugoslav claims were covered by Article 80, paragraph 1 and the Court rejected the Bosnian objections. In the Platforms case (1998),2060 the Court again faced true Preliminary Objections by Iran to the USA’s counterclaim. One objection was to jurisdiction, the other to admissibility (connexity). The Court rejected both, and declared the claim admissible, the question of jurisdiction thus being treated as an aspect of admissibility. The Court proceeded in the same way in the case on the Jurisdictional immunities of States (Germany v Italy, 2010) when addressing the German argument that it had no jurisdiction ratione temporis. In that case, the Court accepted the German objection, and declared the counterclaim inadmissible for want of jurisdiction.2061 It will be noted that, in the Court’s jurisprudence, the expression ‘admissibility’ has a wider sense in relation to counterclaims than to principal claims, since it covers all possible objections, including objections to jurisdiction. This difference arises from the fact that the Court’s jurisdiction is not in issue here in the same way as it might be in relation to a primary claim. The Court does not claim that it has no jurisdiction over the issue as such; it rules only that the issue does not fall within the jurisdictional sphere delimited by the principal claim. The absence of jurisdiction is thus attributable more to the subject of the principal claim than to the Court’s wider capacity to rule on such subjects. In other words, according to this view, the problem relates more to admissibility than to jurisdiction. This relative confusion between jurisdiction and admissibility is, however, unsatisfactory. The Court should instead be declaring that it has no substantive jurisdiction over the counterclaim as formulated. The question of its jurisdiction is logically prior to its admissibility and remains distinct from it, even in relation to counterclaims. It seems likely that the refinement of the Provisional Measures procedure relative to counterclaims will progressively lead the Court to a better and more exact categorisation of the relevant legal concepts. The Court, when making Orders, either specific ones (on counterclaims) or more general ones (on case management, notably about the documents to be submitted by the parties), is therefore quite forthcoming in saying how it is dealing with counterclaims. It declares them specifically admissible, even when there has been no objection in that 2058   On this question, see also S Torres Bernardez, ‘Article 48’ in A Zimmermann, C Tomuschat and K OellersFrahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 1091–92. 2059   ICJ Reports 1997, 251 et seq., §§ 6 et seq. 2060   ICJ Reports 1998, 203 et seq., §§ 32 et seq. 2061   At §§ 18 et seq., 32–33.

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regard.2062 There is no doubt that this practice reflects the increased importance of counterclaims since the 1990s. They have effectively changed, from being a secondary but substantive issue (a defence on the merits), into a full-blown procedural mechanism. There is nothing to prevent the Court’s issuing a separate specific Order for every counterclaim coming before it, or even a mention in a general Order. As regards procedural matters, and those concerning the proper administration of justice, the Court enjoys a sufficient margin of appreciation to enable it not to issue a specific Order, and instead to deal with a counterclaim only in its substantive judgment, at least in cases where there is no dispute as to jurisdiction over, or as to the admissibility of, the counterclaim.2063 Finally, it is worth stressing that, so far, questions as to the ‘admissibility’ of counterclaims have essentially been confined to disputes about jurisdiction and connexity under Rule 80, paragraph 1.2064 However, there is nothing to stop a State from raising other challenges to admissibility, as States do in relation to principal proceedings, whether it be on the grounds of delay, litispendence, failure to exhaust internal remedies, estoppel and so on. However, such objections must always relate to the subject of the counterclaim. Depending on how many objections there are, and how important they seem, the Court, after seeking written documentation about them from the parties, may decide to deal with them in a separate Order (or in some cases Judgment) relating to the preliminary objections to the counterclaims as incidental proceedings. Direct connection. The condition that there must be a ‘direct connection’ in fact and in law, is undoubtedly the critical criterion applicable to counterclaims, effectively the spinal column that makes them viable. Absent such a direct connection, there is no counterclaim but only the possibility of a new and independent set of proceedings. As a general matter, the direct connection requirement serves as a reminder that a counterclaim is reactive that is, a way of reacting to the principal claim, and that consequently it enjoys only a limited degree of autonomy. It belongs in the same context as the principal claim, extending the scope of the case and the argumentation to be advanced on both sides, but it does not modify the principal claim. The touchword must be that it extends the proceedings without changing their direction. When it comes to comparing the ‘connection’ required, similar to (but distinct from) that required for third party intervention, or for the consolidation of sets of proceedings, 2062   See the case of the Land and maritime boundary (Cameroon v Nigeria), ICJ Reports 1999-II, 983 et seq., 985–86. 2063   The contrary has been claimed, first and foremost because the Court has to establish the limits of its jurisdiction (jurisdiction questions must be resolved objectively) and then because counterclaims can affect the legitimate interests of third States, impelling them to intervene in the proceeding, which presupposes notification of the Order on admissibility: Salerno, above n 2025, 371. It is true that these are factors generally favourable to the making of a separate Order. That has, moreover, been the practice of the Court since 1997. However, the Court is not under any obligation to examine every question of jurisdiction motu proprio, as shown by the fact that it does not itself raise issues of consensual jurisdiction, and, by not doing so, leaves open the path to the forum prorogatum. Also, notification to third States does not presuppose a separate Order, since the counterclaim may be notified in the application containing it. If, however, oral counterclaims were admissible, it would be necessary to make a formal Order before a counterclaim could be notified. 2064   With the sole exception of the argument of Bosnia-Herzegovina in the Genocide case cited above, to the effect that there was insufficient connection with the Yugoslav counterclaim since the obligations in issue were absolute in nature and not synallagmatic (absence of reciprocity), so that the acts of one party could not have a legal influence on those of the other party (ICJ Reports 1997, 252–53, § 12). The Court rejected this argument, on the basis that it was a matter on another plane (the merits) from the issue of direct connection in the sense of the law on counterclaims (ibid, 258, § 35). Legally, the Bosnian argument should be analysed as going to inadmissibility.



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the general tendency has been to enlarge the connexity requirement, and to make it more flexible. The point was to give the Court a great deal of latitude when it comes to deciding on specific cases.2065 So far, the Court, when exercising this quasi-discretionary power, has been concerned primarily with leaving it largely intact, that is, avoiding setting out precise and decisive criteria on the basis of which it will decide whether any particular connection is or is not sufficient. There have been two fundamental reasons for this approach. First, the range of factual and legal situations that can arise is too wide and varied for it to be possible to lock the decision-making process into a set of rigid or predetermined formulae. Doubtless the Court wants to preserve a sufficient margin of appreciation to deal appropriately with the unforeseeable situations that may arise in the future. Also, the Court’s power is emblematic of the fact that the law on the subject is still developing, so that it is simply impossible to be too precise, given the stage it has reached to date. Second, the answer to the direct connection question does not depend solely, or even perhaps preponderantly, on criteria of causality, or on connections and the interweaving of nexuses of facts and law. Another first-order consideration is the need to balance the principles of predictable and speedy procedure (for the benefit of the principal claimant) against the economy of the process and the proper administration of justice (taking an overall view of the totality of the case). It is impossible to give a clear advance indication of the criteria applicable to such a balancing exercise between objective and subjective elements of the procedure. It can be carried out only in the concrete circumstances of particular cases. Overall, the Court’s jurisprudence has tended to enlarge the scope available to counterclaims by not being too strict about the direct connection requirement. In this regard the Court is in line with the modern tendencies of municipal legal systems.2066 Speaking in general terms, the connection must exist ‘both in fact and law’:2067 under the recent jurisprudence this is to be assessed in relation to ‘facts of the same nature’, that is, to the requirement that the claim is ‘part of the same factual complex’ and, from the point of view of the law, that the ‘parties pursue the same legal aim’.2068 In the Right of asylum case (1950),2069 Colombia sought the recognition of its right to give asylum in an embassy, whereas Peru counterclaimed that Colombia had violated the law applicable to the grant of asylum. As the basis for its counterclaim, Peru pleaded certain facts that were not contained or envisaged in the Colombian Application. The Court rejected the argument about want of direct connection, finding, on the contrary, that the two claims fell within the same 2065   Although, in the case on the Factory at Chorzów in 1928 the Court had used the expression ‘legal connection’, the draftsmen of the 1936 Rules sought to restrict the scope of counterclaims by inserting the criterion of ‘direct connection’. The aim was to emphasise, according to the conception then dominant in France, that a couterclaim was no more than a defence and claim for compensation. cf Genêt, above n 2025, 166; Salerno, above n 2025, 336. In its own first post-war cases, however, the ICJ gave a liberal interpretation to this concept of direct connection. On this ‘discretionary’ power of the Court, cf Salerno, above n 2025, 360 et seq.; Yee, ‘Article 40’, above n 2025, 917. The Court has emphasised this power throughout its jurisprudence, eg in the Platforms case, ICJ Reports 1998, 204–205, § 37: ‘Whereas the Rules of Court do not define what is meant by “directly connected”; whereas 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; and whereas, as a general rule, the degree of connection between the claims must be assessed both in fact and law . . .’. See also the case on the Application of the Convention for the prevention and punishment of the crime of genocide (Bosnie-Herzegovina v Yugoslavia), ICJ Reports 1997, 258, § 33. 2066   Salerno, above n 2025, 338. 2067   Platforms case, ICJ Reports 1998, 205, § 37; case on the Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Yugoslavia), ICJ Reports 1997, 258, § 33. 2068   Platforms case, ICJ Reports 1998, 205, § 38; and case on the Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Yugoslavia), ICJ Reports 1997, 258, §§ 34–35. 2069   ICJ Reports 1950, 281.

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factual complex (although the Court did not yet use that expression), namely the protection conferred by the grant of the asylum at stake. The legal connection was provided by the fact that the two claims both concerned the legality of the grant of asylum to Sr Haya de la Torre. In the Platforms case, the Court decided that these conditions were satisfied. As far as the facts were concerned, all the events in question were alleged to have occurred in the Persian Gulf in the course of the same period of time (destruction of platforms on one side, destruction of vessels on the other). The facts were not identical, but they occurred in the same geographical area and at the same period of time. As far as the law was concerned, the connection resulted from the fact that the parties were pursuing the same question, since both claimed that international responsibility was engaged by virtue of the alleged violations of a treaty of 1955. In the Genocide case too, the Court held that the criteria were satisfied. The facts were reputed to have occurred in the same territory and during the same armed conflict. Also, the legal objective was identical, both sides wishing to establish international responsibility for violations of the Genocide Convention. The connection here was that the parties claimed that there was responsibility for reciprocal facts (alleged to be genocidal) occurring in the same territory during an armed conflict. However, the specific concrete acts complained of were not, of course, the same. All they had in common was that they were committed in the same area and were of the same type. At this point we need to examine these requirements of legal and factual connexity a little more closely. 1) ‘Connectedness of the law’ means, fundamentally, that the parties have the ‘same legal objective’,2070 for example, to ascertain the lawfulness or otherwise of certain acts, or to decide about the international responsibility of the States concerned. It is also necessary for the acts, assessed from this legal perspective, to fall within a single underlying corpus of law, for example, the law of asylum, diplomatic law, environmental law, or the law applicable under some Convention (such as the Genocide Convention, or the 1955 Friendship Treaty). But the legal source does not have to be identical. It is possible to base a claim on customary law rather than on a convention, or vice versa. What the Court requires does not cease to be the ‘same legal objective’ even if the consideration can be carried out from various legal angles and via diverse legal sources. In addition, the parties’ arguments must be of the same type (for example, international responsibility), or in such a relationship that one set of arguments is the necessary precondition for the Court to form an appreciation of the opposing party’s arguments (for example, claim as to the legality of a particular measure – international responsibility deriving from the measure). As we have already seen, the ‘connection of law’ requirement does not make it necessary for the counterclaimant to rely on the same title of jurisdiction as the principal claimant. But reliance on a different title might appear to indicate that the counterclaimant is trying to get round the direct connection requirement. If the counterclaim is confined to seeking the rejection of the principal claim, for example, by claiming that what the counterclaimant did was a lawful counter-measure, the Court can accept that there is connectedness in law, but treat this argument as really being a defence to the merits. In that case, it will not, if it rejects the principal claimant’s relevant assertions, have to deal with the counterclaim. 2) ‘Connectedness of the facts’ primarily means that all the facts pleaded are part of ‘the same factual complex’. This means that the counterclaimant can not only put a new gloss on the facts alleged by the principal claimant, but can also plead new facts in the   This is a teleological concept that could be given quite a broad interpretation.

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context of an ‘offensive’ counterclaim. Such facts will be taken into consideration by the Court if they form part of the same dispute, that is, if the Court considers that they are sufficiently connected. The Court will be satisfied if they are reciprocal to the principal claim (a direct response, a counter-measure, direct causation) or if they have occurred in the same geographical theatre and during the same political events (such as civil war, armed attacks in the Persian Gulf, crisis over the granting of asylum in an embassy). The factual connection must be examined not in isolation, but in light of the fact that materially identical legal questions arise and that the legal objective is the same. As we have noted, the Court has recently increased the relative liberalism of its approach to the decision whether facts are sufficiently connected. It does not require that the counterclaimant rely on the same facts as the principal claimant when arguing its opposing claims. On the contrary, it allows counterclaimants to present new facts, thereby in a sense enlarging the legal dispute so that it better reflects the totality of the overall dispute between the parties. This approach in the jurisprudence has been approved by some2071 but condemned by others.2072 The criticism is that it excessively blurs the line between counterclaims and new principal claims with the concomitant risk that the Court is then saddled with inflated cases that slow the administration of justice and finally end up by putting States off the whole idea of using the ICJ because the outcome of doing so is too unpredictable. There is certainly some justification for these criticisms. Although the somewhat broader approach does seem justified, in that it enables the totality of a dispute to be dealt with in a single proceeding, rather than burdening all concerned with separate proceedings on ‘new’ claims, the Court must exercise its margin of appreciation with great care. The Court needs to take care not to blur the boundaries of factual connectedness excessively, because that distinction is fundamental in the distinction of the domain of the principal claim and that of the counterclaim.

c)  Procedural Aspects Under Rule 80, paragraph 2, a counterclaim ‘shall be made in the Counter-Memorial and shall appear as part of the submissions contained therein’. If there is an objection, ‘or whenever the Court deems necessary’ (§ 3), the Court is to take its decision after hearing the parties. This is an application of the principle set out in Article 36, paragraph 6 of the Statute, that is, jurisdiction over jurisdiction. That principle does not apply to the principal jurisdiction alone: it also applies to all incidental jurisdiction, to principal and incidental admissibility, and to all procedural questions that the Court itself can decide under Article 30 of the Statute. If the arguments in the particular case as to want of jurisdiction and inadmissibility are relatively few in number and of limited complexity, then the Court can dispose of them in a single Order. However, if it feels it is a more useful way forward, the Court is free to ask for written documentation on any aspect of jurisdiction or admissibility, and to decide it in a separate Order. This might happen if an argument seemed noticeably more complex than usual, or if, in a particular set of concrete circumstances it is 2071   cf Salerno, above n 2025, 333 et seq. See also Yee, ‘Article 40’, above n 2025, 913, emphasising the need for flexibility. 2072   cf Distefano, above n 2025, 53 et seq., and the dissenting judgments he cites.

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expected that the decision on a given point might cause the party concerned to withdraw its other objections. It should always be remembered that the Court has control over its own procedure within the limits of what is allowed by the Statute and the Rules. The requirement for the counterclaim to be presented in the Counter-Memorial only excludes its being presented later, and does not exclude its being presented earlier. It would, therefore, have been better worded ‘must be made not later than the Counter-Memorial’. This rule as to the maximum time allowed derives from the principles of equality between the parties and the proper administration of justice. It leaves sufficient time for the applicant, as respondent to the counterclaim, to take its position in relation thereto. But that is not the only question posed by paragraph 2. Can the counterclaim be made orally or does the reference to the Counter-Memorial mean that it must be in writing? In other words, is the reference to the Counter-Memorial a stipulation that is exclusively temporal in nature (time for the counterclaim) or does it also extend to the form (written)? It would, of course, be somewhat strange and extravagant for a party not to go to the trouble of putting its counterclaim in writing,2073 and a counterclaim made during the oral phase would certainly be out of time.2074 Another question is whether a party can reserve the right, in its CounterMemorial, to make a counterclaim at some still later date. The Court has never had to take a position on that question.2075 The principle must be that such a right is inconsistent with the Rules, and that the reservation in question therefore cannot confer additional rights on the party making it. However, the Court does have the ‘sovereign’ power to make its own assessment of the reasons for the delay. It could allow a late counterclaim if it considers that there were good reasons for the lateness, and that it would be helpful to hear the subject matter in the same case rather than to risk there being a fresh set of proceedings. In such a case, however, the Court must be careful about equality between parties and the proper administration of justice. In particular, it will be obliged to allow the applicant, as respondent to the counterclaim, to produce sufficient documentation, and to be given sufficient time to do so, so as to ensure that it is not disadvantaged. The admission of late counterclaims will obviously be an exceptional matter, and a matter of restrictive interpretation. Otherwise, cadit regula . . . – the rules would lose much of their force. In order to ensure equality between the parties, the Court accepts that the principal applicant, faced with a counterclaim in the Respondent’s Counter-Memorial, has the right to present its views in a further written pleading.2076 Rule 80, paragraph 2 provides that: ‘The right of the other party to present its views in writing on the counter-claim, in an additional pleading, shall be preserved’. This is a kind of Counter-Memorial (Reply) to the Counter-Memorial, limited to the questions in the counterclaim. Cameroon, Iran, the DRC and Germany had this right in, respectively, the cases on the Land and maritime boundary,2077 Platforms,2078 Armed activities2079 and Jurisdictional immunities ;2080 in the Genocide case, Yugoslavia withdrew its counterclaim.2081   However, the Rules do not exclude it, and therefore such a claim ought not to be treated as invalid.   See the Dissenting Opinion of Judge Read in the Right of asylum case, ICJ Reports 1950, 331. 2075   See, however, the Platforms case, ICJ Reports 1998, 193, 197, 202, § 5, 15, 27. 2076   Torres Bernardez, ‘Article 48’, above n 2058, 1092. 2077   ICJ Reports 1999-II, 986 (no paragraphs). 2078   ICJ Reports 1998, 206, § 45. 2079   ICJ Reports 2001, 681–82, § 50. 2080   Judgment of 6 July 2010, §§ 4–5. Italy was, however, able to respond to the German arguments in a document entitled ‘Preliminary Objections’. 2081   ICJ Reports 2001, 573. 2073 2074



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Until now, the Court has been able to limit argument on counterclaims to written pleadings, oral argument being avoided.2082 Rule 80, paragraph 3 provides only for the parties to be consulted, without setting out the modalities for doing so ‘after hearing the parties’. The holding of an oral hearing thus rests with the discretion of the Court.2083 The President will consult the parties on this point under Rule 31.2084 He will also take into account the complexity of the questions raised. If the applicant as respondent to the counterclaim, raises numerous Preliminary Objections or objections that are quite complex, the Court may feel it necessary to arrange oral hearings in order that it can be fully possessed of all the elements that may assist it to give the parties a sufficient opportunity to express their arguments and views and help it to reach its decision. Such a procedure will be similar to the procedure for Preliminary Objections in the principal proceedings. It is not unknown for a party to raise a subsidiary counterclaim, that is, a claim which the Court need examine only if accepts or rejects another claim. There was an example of this in the case of the Panevezys-Saldutiskis Railway (1939), in which the Lithuanian government presented a counterclaim if ‘the Court should hold that the legal personality of the former First Russian Company persists in the Esimene company and should recognize that the latter is entitled to reparation’.2085 In such a case, the Court will examine the subsidiary counterclaim only if the situation in question actually occurs. Equally, the Court can defer the examination of a counterclaim until it decides to entertain the principal claim to which it relates. This is particularly the case as regards counterclaims of a defensive or compensatory nature. Can there be a counterclaim against another counterclaim? From a certain point of view it would not be illogical to allow this, to the extent that the first counterclaim might have an ‘offensive’ scope and enlarge the field of debate in the case. Why should the principal claimant not respond with a new counterclaim? However, the Rules make no provision for this possibility, which is implicitly excluded by the fact that the counterclaim must be presented not later than the Counter-Memorial in the principal proceedings.2086 There are also substantive reasons against it. If it were possible to stack counterclaim upon counterclaim, the result might be an infinite progression in which each side responded to the other by a further counter-attack. Obviously, one needs to set some limit to such extensions of the proceedings which otherwise would become unmanageable and would be indefinitely prolonged. However, there is nothing to stop the principal claimant, unable to make a counterclaim in response to a counterclaim by the respondent, from bringing a new case before the Court, claiming the substance of what might otherwise have been its own further counterclaim. In that case, the Court might even consider it right, given that the issues are very

  Torres Bernardez, ‘Article 48’, above n 2025, 1092.   One should note, nevertheless, that some leading commentators have argued that the oral procedures ought to be extended to the admissibility of counterclaims: cf eg Arcari, above n 2025, 1059. The Court must at least justify its decision: cf Salerno, above n 2025, 373. The Court has indeed done so: see the case on the Application of the Convention for the prevention and punishment of the crime of genocide, ICJ Reports 1997, 256, § 25; the Platforms case, ICJ Reports 1998, 199–200, § 21; and the Jurisdictional immunities case (2010), § 7. 2084   ‘In every case submitted to the Court, the President shall ascertain the views of the parties with regard to questions of procedure. For this purpose he shall summon the agents of the parties to meet him as soon as possible after their appointment, and whenever necessary thereafter.’ 2085   PCIJ, Series A/B, no 76, 7. 2086   This also means that a party cannot reserve the right to present a counterclaim at a later stage since that would be incompatible with the Rules. 2082 2083

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much the same, to join the new proceedings to the existing ones, under Rule 47.2087 By this means, the applicant might be able to obtain the substance of what it seeks. Above all, it is incumbent on parties not to behave in such a way as to complicate the Court’s task in a manner that fails to show the Court adequate respect. The Court might impose some sanctions against an abuse of the procedure, or might refuse the joinder of different cases, if it thought that the existing proceedings were being excessively delayed by such new claims. Finally, it might sometimes be possible for the applicant to place some of the additional claims it contemplates within the original procedure, the Court being possibly in a position to avoid considering them inadmissible or out of proper time.

d)  Compatibility with the Statute of the Rules and Judicial Practice Leading commentators have raised the question of the extent to which Rule 80 and the Court’s practice are compatible with the Statute.2088 The Rules and the practice must obviously be in conformity with the Statute, and the Court cannot countenance ultra vires acts. First of all, it needs to be remembered that the Statute says nothing about counterclaims. This allows the Court a certain margin of manoeuvre right from the outset. It has, however, been thought that Rule 80 might conflict with Article 40 of the Statute, which reads: ‘Cases are brought before the Court, as the case may be, either by the notification of the special agreement or by a written application addressed to the Registrar . . .’. But under Rule 80, paragraph 2, a counterclaim, although it relates to the substance of the dispute, is presented in the Counter-Memorial. Does this Rule illicitly seek to derogate from Article 40 of the Statute? It seems not. Article 40 is concerned only with the principal procedure, and does not contemplate procedures which are at least partially incidental, such as Provisional Measures or counterclaims. This is clear from the text: ‘Cases are brought before the Court . . .’ (italics added). Given that Article 40 does not cover the matter, the Court is free to regulate it according to need.2089 It has also been argued that there is a potential incompatibility between this provision and Articles 62 to 63 of the Statute, relating to the rights of third States to intervene in the proceedings. This presupposes that third States are notified of cases before the Court. Rule 80 does not expressly provide for this, but nor does it prohibit it, since its provisions are not exhaustive. The Court has regularly notified the Orders it makes as to counterclaims to States having the right to appear before it. There is therefore no incompatibility with the Statute. The Statute requires a certain degree of notification in order to preserve the rights of third States and that is what the Court does.

2087   ‘The Court may at any time direct that the proceedings in two or more cases be joined. It may also direct that the written or oral proceedings, including the calling of witnesses, be in common, or the Court may, without effecting any formal joined, direct common action in any of these respects.’ 2088   See Yee, ‘Article 40’, above n 2025, 914–15. 2089   Yee, ‘Article 40’, above n 2025, 914 suggests that the Statute’s silence cannot be interpreted as a licence. But the point here is that the Statute is not accidental, but deliberate. Art 40 of the Statute does not regulate this question and does not aim to regulate other ones. Not every silence in the Statute is to be interpreted as a licence, but some are.



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16.  DEFAULT PROCEDURE2090

a)  General Features Article 53 of the Statute provides that: 1. Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim. 2. The Court must, before doing so, 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.2091

The Rules say nothing further on the question. For clearer indications, therefore, one needs to turn to the practice of the Court. Article 53 plays a significant part in the general economy of the Statute and of the Court’s functioning. The point of a court of justice is to ensure the efficacious and objective resolution of disputes. This is even more fundamentally the point of an institutionalised court that is the ‘principal judicial organ of the United Nations’.2092 The Court is the judicial arm of a vast international community, charged with the peaceful settlement of disputes as a mission of collective interest. Such a Court is designed to enable the international community to keep the peace, and maintain proper order by settling legal disputes, other modalities being needful as regards political disputes. On the other hand, such a Court must allow States that are parties to the system the benefit of relative certainty that, when the court has jurisdiction over a dispute, they will be able to turn to it and obtain justice. Both of these 2090   In this respect, see H von Mangoldt and A Zimmermann, ‘Article 53’ in A Zimmermann, C Tomuschat and K Oellers-Frahm,1141 et seq.; Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’, above n 2025, 157 et seq.; Rosenne, The Law and Practice of the International Court vol III (1997) 1401 et seq.; G Guyomar, Le défaut des parties à un différend devant les juridictions internationales (Paris, 1960); PM Eisemann, ‘Les effets de la non-comparution devant la Cour internationale de Justice’ (1973) 19 AFDI 351 et seq.; GG Fitzmaurice, ‘The Problem of the “Non-Appearing” Defendant Government’ in BYIL, vol 51 (1980) 89 et seq.; H Mosler, ‘Nichtteilnahme einer Partei am Verfahren vor dem Internationalen Gerichtshof ’ in Essays HJ Schlochauer (Berlin, 1981) 439 et seq.; JB Elkind, Non-Appearance before the International Court of Justice (Dordrecht/Lancaster, 1984); H Thirlway, Non-Appearance Before the International Court of Justice (Cambridge, 1985); G Arangio-Ruiz, ‘Notes on Non-Appearance before the International Court of Justice’ in Essays R Ago, vol III (The Hague, 1987) 3 et seq.; JI Charney, ‘Disputes Implicating the Institutional Credibility of the Court: Problems of Non-Appearance, Non-Participation, and Non-Performance’ in LF Damrosch (ed), The International Court of Justice at Crossroads (New York, 1987) 288 et seq.; JB Elkind, ‘The Duty to Appear Before the International Court of Justice’ (1988) 37 ICLQ 674 et seq.; G Arangio-Ruiz, ‘Non-Appearance before the International Court of Justice’ Ann IDI, vol 64 (1991-I) 193 et seq., 280 et seq.; SA Alexandrov, ‘Non-Appearance before the International Court of Justice’ (1995) 33 Columbia Journal of Transnational Law 41 et seq.; A Zanobetti Pagnetti, La non comparizione davanti alla Corte internazionale di Giustizia (Milan, 1996); AA El-Wafa, ‘La non comparution devant la Cour internationale de Justice’ (2000) 56 Revue égyptienne de droit international 1 et seq. 2091   For the travaux préparatoires on this provision, see the brief exposition of von Mangoldt and Zimmermann, ‘Article 53’ above n 2090, 1144 et seq. 2092   In nineteenth-century arbitrations where the arbitrator was strictly the joint creature of the parties, default by one of them definitively blocked the proceedings if it occurred prior to the moment the tribunal was constituted. There was no provision that a third person could nominate national arbitrators, nor was it always provided that a party might unilaterally seise the arbitrators (the need for them to be seised conjointly). The tribunal could indeed deal with the default of a party once it had been constituted but this was heavy going. Some agreements of the period contained clauses allowing judgment to be given in the absence of a party, provided the tribunal had been constituted, ie if one of the parties failed to defend its case. See H La Fontaine, Pasicrisie internationale (Berne, 1902) 372 (the 1855 Croft case).

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elements create legitimate expectations of an important kind which cannot be allowed to be deliberately frustrated. Within this framework of collective and individual interests, involving a variety of reciprocal rights and obligations, States, if they wish to do so, assume various obligations by ratifying the Statute and creating titles of jurisdiction. By accepting the Court’s jurisdiction, whether in advance or on an ad hoc basis, such States not only ‘submit’ to the jurisdiction, but promise to cooperate with the procedure in such a way as to make sense of it. It would be pointless to give the Court jurisdiction with one hand, and then with the other, allow parties to prevent its proper functioning when the time comes for them to honour their undertakings. By failing to appear, or by defaulting, a State could, a posteriori, imperil the proper functioning of the Court’s procedure. It might, for example, block progress in the case; it will endanger the proper administration of justice because the Court will not be in possession of all the elements necessary to decide the case that it normally obtains through its adversarial procedure; it will therefore find it difficult to respect the fundamental principle of equality between parties; and finally, a judgment given in default inevitably gives rise to a feeling that there is a fundamental defect in the judgment, and that the Court is somehow a problematical institution; all of which damages the Court’s prestige. In these circumstances, it was essential for the Statute to make provision for default by a party. This served two purposes. First, it was a guarantee that defaults would not bring the proceedings to a stalemate. This guarantee was essential so that respondents were not presented with an easy way of preventing any adverse judgment, which would effectively have nullified the value of their agreeing to give the Court jurisdiction in the first place. Second, it was necessary to ensure that the procedure was fair, that the jurisdiction question was very carefully scrutinised, that there was a meticulous examination of the law and the facts, and that none of these elements could be blocked by the absence of a party, or by its failing to present its case. These are the reasons for paragraphs 1 and 2 of Article 53. They safeguard three different sets of interests to the maximum possible degree: the applicant’s interest, in obtaining a judgment without the respondent being able to prevent it by not participating in the proceedings; the respondent’s interest, in having the judgment placed on sufficiently solid foundations even in its absence; and the Court’s own interest, and that of the international community it represents, in having its prestige suffer as little as possible from such defaults, and in seeing to it that the proper administration of justice remains equal to its task. Legally, the specific effects of Article 53 of the Statute are likewise threefold. First, the purpose of these provisions is to provide that, in the event of default by one party, the ordinary contentious procedure will continue, to the extent not modified by the provisions of Article 53 itself. Such modifications are found only in paragraph 2 of the Article. This means, amongst other things, that the Court’s judgment will be binding on the parties under Article 59 of the Statute and can be executed by virtue of Article 94, paragraph 2 of the Charter, just like any other substantive judgment. The non-appearing State remains a party to the proceedings, and remains subject to all the obligations incumbent on parties. Also, the words ‘the other party may call upon the Court to decide in favour of its claim’ (§ 1) are a reference to the ordinary procedure by which the Court decides cases. The Court could not proceed in any other way unless Article 53 (or possibly the Rules) were to so provide. In the first place, then, Article 53 is a provision referring the matter to the Court’s ordinary procedures, thus guaranteeing, in the event of default, as normal a functioning of the Court as is possible.



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Second, Article 53, paragraph 2 is concerned with ensuring that, even when the decision is given in default, it is worthy to be called a ‘judgment’. Article 53, paragraph 2 requires the Court to make a particular effort to palliate, so far as it is possible to do so, the inherent weaknesses of a default situation. The Statute requires that the Court must satisfy itself as to its jurisdiction, and that the applicant’s claims are well founded in fact and in law. The absence of the respondent is not permitted to enable the applicant to complacently make demands for more than it might have claimed in the presence of the respondent, counting on its opponent’s absence to obtain judgment for exorbitant claims. If that were allowed, there would be an even greater risk that the judgment would not be executed, the defaulting party being furnished with a good ground of opposition to it. Also, the Court’s prestige would be impaired, because it would give the impression of administering summary justice and of exceeding its powers. These impressions would unquestionably have an adverse effect on its overall image and reputation. Certainly, the effort that the Court is obliged to make, itself performing certain tasks which normally are the responsibility of the respondent, can leave the respondent in a position which is, in one respect or another, more favourable than the applicant’s, thus enabling the respondent to profit from its own wrongdoing. However, in this context, a higher interest even than the proper administration of justice prevails over the strict equality of the parties and the principle of not allowing States to profit from their wrongdoing. Third, Article 53 regulates default, in the sense of permitting (without actually requiring) that no direct sanction be pronounced against the defaulting party for its refusal to appear. The refusal to appear is indeed the violation of a legal duty, since the State in question is failing to honour the obligations it assumed via the title of jurisdiction. If two States have reached a Special Agreement, or have notified optional declarations by which they submit to the Court, the failure by one of them to participate in the consequent proceedings represents a direct violation of their ‘agreement to arbitrate’ (as it used to be), or of their submission to the Court, as we must put it nowadays. Obviously, the acceptance of obligations is not confined to the conferring of jurisdiction, as if that were all. It also carries with it all the positive obligations necessary to give practical sense to the submission to the jurisdiction, and in particular, the obligation not to block the procedure by a failure to participate. This is very clear in arbitration cases, where the failure to concur in constituting the tribunal by nominating arbitrators constitutes a direct breach of the agreement. A tribunal, if it has been constituted and is in a position to function, can therefore be requested to impose sanctions for the breach. It can declare itself competent in that regard, for the breach affects it directly. However, it has been thought, since the days of the International Prize Court (1907), that the imposition of a direct sanction for non-­ appearance is ill-adapted to cases between sovereign States as parties. In any event, such sanctions might have little practical effect if the defaulting State continued to refuse all contact with the Court. It might, therefore, be better not to pronounce any sanction at all, rather than make vain and illusory Orders in that regard. Article 53 of the Statute allows this course to be adopted. In regulating the effects of non-appearance and not imposing sanctions in respect of it, the Court can limit itself to giving effect to the Article, and leaving it at that. Technically, Article 53 does not exclude the Court’s pronouncing a sanction. To argue the contrary, one would have to show that the Article’s provisions regarding nonappearance are exhaustive, but that is not the case. In reality, the power to pronounce sanctions derives from the Court’s general powers as guardian of the Statute and of its own procedure. Thus the Court can also pronounce motu proprio on a breach of the duty to

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carry out Provisional Measures, even though there is no mention of that power in the Statute. However, the Court has so far abstained from doing so, and this is probably wise. Its jurisprudence transforms a perfected obligation (to submit to the Court, the obligation deriving from the title of jurisdiction) into a partially imperfect obligation, one which, in the particular context of a case, lacks any specific sanction. In this way and in this precise context, Article 53 thus has a certain tendency to soften the hard edges of the legal obligation. In reality, however, it is not that the actual undertaking to submit to the Court is softened as such, but that the consequences of breach are softened, in the particular situation of default. However, some sanctions are inherent in the legal regime for default, and we will return to them later. For these reasons, we have, up to this point, been considering only ‘direct’ or ‘specific’ sanctions. It was very rare for the PCIJ to be faced with a default, and the defaults it did encounter were not very clear ones. In the case on the Denunciation of the Sino-Belgian Treaty of 2 November 1865 (1926), China abstained from participating in the Provisional Measures proceedings, merely acknowledging receipt of the documents sent to it by the Court. Negotiations between the parties finally led to the proceedings being discontinued.2093 In the case on the Electricity Company of Sofia and Bulgaria (1940), the PCIJ reminded the Bulgarian government that it could not, by abstaining from presenting a rejoinder or duplique), hold up the proceedings;2094 what did in fact hold them up was the outbreak of war. The ICJ has been faced with failures to appear in each of the following cases,2095 in which one of the parties failed to participate in at least one phase of the proceedings: Corfu Channel (assessment of the amount of reparations),2096 Anglo-Iranian Oil. (Provisional Measures),2097 Nottebohm (Preliminary Objection),2098 Fisheries Jurisdiction (all phases),2099 Nuclear Tests (Provisional Measures and second phase),2100 Trials of Pakistani prisoners of war (Provisional Measures),2101 Continental shelf in the Aegean Sea (Provisional Measures and jurisdiction),2102 United States diplomatic and consular staff at Tehran (Provisional Measures and merits),2103 Military and paramilitary activities in and against Nicaragua (merits),2104 and Maritime delimitation and territorial questions between Qatar and Bahrain (jurisdiction and admissibility).2105 In most of these cases, the default was only partial, affecting one particular phase of the proceedings. In some cases, the Court declined jurisdiction after the first phase, so that there was no possibility of default in a merits phase. Most of the full-blooded defaults occurred in the 1970s and 1980s, which were decades during which the ICJ, and indeed international justice itself, were in crisis. That period now seems to be over, although a return to the practice of non-appearance remains a latent possibility. But for the time being, at least, non-appearance is, happily, in decline.   See PCIJ, Series A, no 8, 3 et seq. and Series A, nos 18/19, 5–7.   PCIJ, Series A/B, no 80, 8–9. 2095   ICJ Yearbook, 2006–2007, no 61, 209, note 2. 2096   ICJ Reports 1949, 244 et seq. 2097   ICJ Reports 1951, 89 et seq. 2098   ICJ Reports 1953, 111 et seq. 2099   ICJ Reports 1972, 12 et seq., 30 et seq.; ICJ Reports 1973, 3 et seq., 49 et seq., 302 et seq., 313 et seq.; ICJ Reports 1974, 3 et seq., 175 et seq. 2100   ICJ Reports 1973, 99 et seq., 135 et seq.; ICJ Reports 1974, 253 et seq., 457 et seq. 2101   ICJ Reports 1973, 328 et seq. 2102   ICJ Reports 1976, 3 et seq.; ICJ Reports 1978, 3 et seq. 2103   ICJ Reports 1979, 7 et seq.; ICJ Reports 1980, 3 et seq. 2104   ICJ Reports 1986, 14 et seq. 2105   ICJ Reports 1994, 112 et seq.; ICJ Reports 1995, 6 et seq. 2093 2094



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Obviously the most serious defaults do not reside in refusals to participate in Provisional Measures proceedings or in failures to present documents required for the purposes of particular cases. States are, after all, free not to oppose Provisional Measures, and not to exercise their right to lodge a particular pleadings and documents. But a refusal to participate in the phase on jurisdiction and admissibility, and even more, in the merits phase, gives rise to real and sometimes grave problems for the administration of justice. Amongst the cases listed above, the most serious consequences were in the two separate cases on Fisheries Jurisdiction (UK and Federal Republic of Germany v Iceland), Nuclear tests, Diplomatic and consular staff and Nicaragua. Two of the relevant respondents were great powers, another a small power whose vital fishery resources were affected, and the last was a State that was going through the most tortuous period of its theocratic and revolutionary regime. It should also be noted that a failure to appear usually occurs when there is an issue about the Court’s compulsory (as opposed to its optional) jurisdiction. When consent to the jurisdiction is given in advance, it is more likely that, when faced with an unilateral and perhaps unexpected application to the Court, the respondent’s willingness to submit, previously declared in the abstract, will begins to waver, the respondent endeavouring to evade the jurisdiction it had previously promised to accept. This risk is more limited where the jurisdiction is an optional one because, in such cases, the States concerned have only recently agreed to have recourse to the Court. If they had not wished the Court to decide their dispute, they would not have entered into an agreement in that regard. The expression of their wishes is too recent for there to be much risk of default or much inclination to do so. Where the dispute is a delicate one, it is therefore often better to take soundings with the other State and to try to make a Special Agreement rather than to have recourse to an available title of compulsory jurisdiction. It will be otherwise, however, if it is a matter of causing political embarrassment to the adverse party, or if the primary concern is to avoid provoking the adverse party into withdrawing from the title of jurisdiction on which the intending claimant intends to base its claim. Finally, it should be noted that the cases in which a party defaults comprehensively, refusing to participate in any way whatsoever, are the ones in which a refusal to execute the definitive judgment is most to be expected. That was the position in the cases of the United States diplomatic and consular staff and of Nicaragua, whereas in the Fisheries Jurisdiction and Nuclear tests cases, the judgments were not of such nature as to upset the defaulting Respondent States to an excessive degree. Overall, then, the Court’s record in matters of nonappearance remains highly creditable. Four cases of overall default in approximately 90 years of jurisprudence, and out of a total of 120 cases, is an entirely acceptable proportion. Quite a number of municipal tribunals would be more than satisfied with such a record.

b)  Field of, and Conditions for, the Application of Article 53 What are the personal and material fields of application of Article 53 of the Statute? The personal field of application of Article 53 covers those cases in which ‘one of the parties does not appear’. The expression ‘one of’ is neutral as to which side defaults.2106 Most often, of course, it will be the respondent, which is the more likely of the two to wish to   Mosler, above n 2090, 447.

2106

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avoid having to plead its case at a bar to which it considers itself to have been inappropriately summoned, to answer a claim against it. It could, however, be the applicant that refuses to appear before the Court in a given phase of the proceedings, perhaps in reaction to a decision it finds upsetting. In the English language text of Article 53, the phrase ‘Whenever one of the parties does not appear before the Court, or fails to defend its case,’ cannot be interpreted as meaning that the Statute contemplates only respondents as potential defaulters. The words ‘fails to defend its case’, and especially the word ‘defend’, do not refer to the procedural positions of claimant and defendant/respondent, but simply to the need to make one’s case. The applicant, like the respondent, ‘defends’ his position, by arguing his case. If the claimant does not participate in the proceedings at any given stage, the respondent’s rights must be protected in the same way as if the boot were on the other foot. It must be remembered that, once the proceedings are begun, it is not only the applicant that may have an interest in a judgment: the same is true of the respondent. These facts are reflected in Rule 89, paragraph 2. It allows the respondent to oppose discontinuance at any time after it has taken a step in the proceedings, in which event the case continues, even against the applicant’s wishes.2107 It is easy to see that, in such circumstances, the applicant might be tempted not to appear. Until now, however, only respondents have failed to appear. The words ‘one of the parties’ in Article 53 paragraph 1 of the Statute, exclude the possibility of applying the Article to the circumstances that would arise if both sides refused to appear in a particular phase, or even generally. In those circumstances, the Court would not be facing the problem to which Article 53 is directed, namely that of protecting the rights of the party that wishes the proceedings to continue while the other plays no part. Rather, the problem would be a distinct one, as to whether the two parties did or did not, wish the case to continue. The Court would have to consider this question in light of a kind of de facto discontinuance, and to sound out the parties in order to discover their intentions. The proceedings would then either continue (perhaps applying Article 53 if one side resumes its cooperation with the Court, while the other continues to hold aloof) or would, in the alternative, come to an end, the two parties indicating to the Court their wish to discontinue the case. In the hypothesis that, for a long time, the Court received no communication from either side, it would first of all suspend the case. At the end of a certain time (the duration would depend on the circumstances), the Court would declare the case closed, in default of any procedural steps being taken to keep it live. In those circumstances the parties’ wish to discontinue would simply have to be presumed. The President would order the case to be deleted from the Court’s list. This has never in fact happened, and is in truth highly unlikely ever to happen. But at all events, the parties do not have the subjective right to keep the Court fictively seised of a case in respect of which they themselves are failing to honour both their legal obligations and the most elementary requirements of courtesy, and in the process gumming up the Court’s list indefinitely with a case that is dormant. Under Article 53, ‘the other party [that is, the non-defaulting one] may call upon the Court to decide in favour of its claim’. The State concerned can invoke Article 53 for its own benefit, and ask the Court to continue the case despite the other side’s failure to appear. Normally that is what States do.2108 The legal question that arises is whether the Court might, proprio motu, continue the case under the provisions of Article 53, even if the non-defaulting party does not in fact invoke the Article for its own benefit. Is that party’s   See above, section 2.   See von Mangoldt and Zimmermann, ‘Article 53’, above n 2090, 1165.

2107 2108



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calling on the Court a condition of the default procedure? Is it a right reserved to the nondefaulting party that is free to choose so that the Court itself cannot continue the case, because to do so would be to give judgment ultra petita? It is easy to see the reasons that might cause a non-defaulting party to walk away from the proceedings. It might, for example, take the view that any judgment it might obtain would hardly be likely to be executed, and that it was therefore not, in these circumstances, worth the trouble of pressing on with the case. Alternatively, however, is it perhaps that the provisions of Article 53 represent the fundamental principles of the Court’s functioning, under which the collective interest of the community of States parties to the Statute trumps the private interest of the nondefaulting party, giving the Court the right to take action of its own volition?2109 The question is not difficult to resolve. The default of a respondent might cause an applicant to discontinue the case. If the applicant does not choose to do that and continues to take procedural steps, it must be considered to be acting consistently with the application of Article 53, and the Court can, motu proprio, take action in light of that. If the defaulting party is the applicant itself, and the respondent does not expressly invoke Article 53, here again the Court can, and must, apply the Article. In effect, the proceedings continue, and the Court can then act only on the basis of the provisions for non-appearance. In substance, there is no need for a party to invoke Article 53 explicitly. It is applied whenever the proceedings continue notwithstanding the non-appearance of a party. It must, however, be recognised that a party’s simple abstention from submitting a pleading does not in itself necessitate recourse to Article 53. In such circumstances, the ordinary procedure continues, since a State is not obliged to defend its position by a particular document, whether Counter-Memorial, Reply, Rejoinder or whatever. Article 53 thus comes into play only when it is indispensable to the continuation of the proceedings. In order to decide whether such a necessity has arisen, one needs to consider Article 53, paragraph 2 which provides that Article 53 comes into play in the context of the Court satisfying itself that it has jurisdiction, and as to the factual and legal bases of the claim. When the Court has to make an additional effort going beyond what it has to do under the ordinary procedure, to verify these matters, Article 53 gives it the legal basis for so doing independently of whether the Article has been expressly invoked by the non-defaulting party. The material field of application of Article 53 first and foremost concerns the merits phase, but also the jurisdiction and admissibility phase and all incidental procedures.2110 Non-appearance can occur as early as the initial procedural phases, notably the Provisional Measures phase. At the other end of the temporal spectrum, it can occur in a postadjudication procedure, such as under Article 60 of the Statute (interpretation of the   In this sense, see Alexandrov, above n 2090, 41, 53.   Von Mangoldt and Zimmermann, ‘Article 53’, above n 2090, 1144. That is also the jurisprudence of the Court. The Court has mentioned and applied Art 53 of the Statute as early as the jurisdiction and admissibility phase: see, eg the Fisheries Jurisdiction cases, ICJ Reports 1973, 7–8, § 12 and 54, § 13. The Court has never so far made explicit mention of Art 53 in Provisional Measures proceedings, given that the cooperation of the defaulting party is not necessary for the Court to give a ruling in such proceedings to the same degree as in later phases. In individual and Dissenting Opinions, a certain number of the Court’s judges have, however, specifically invoked Art 53 (see, eg the Dissenting Opinions of Judges Padilla Nervo, Pandrén and Gros in the Fisheries Jurisdiction cases, ICJ Reports 1972, 26 and 42; ICJ Reports 1973, 306 et seq., 317 et seq., 310 et seq. and 318 et seq.). The Court itself has stated, in various cases, at the Provisional Measures stage, that ‘the non-appearance of one of the parties cannot by itself constitute an obstacle to the indication of provisional measures’ (Fisheries jurisdiction cases, ICJ Reports 1972, 15, § 11; case on the Continental shelf in the Aegean Sea, ICJ Reports 1976, 6, § 13; and the case of the Diplomatic and consular staff of the US in Tehran, ICJ Reports 1979, 13, § 13). One can take the view that here the Court is applying a general principle applicable to the process, or alternatively that it is applying Art 53 of the Statute in the ‘light’ manner appropriate to Provisional Measures. 2109 2110

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judgment) or Article 61 (revision of the judgment). It goes without saying that the provisions of Article 53, paragraph 2 must be adapted mutatis mutandis to the procedural exercise concerned. Thus, at the Provisional Measures phase, it will be necessary to consider only the Court’s prima facie jurisdiction, and not its jurisdiction secunda facie. Since, at that stage of the proceedings the need for the defaulting party’s cooperation is reduced to a minimum, in truth being largely nominal, the Court can dispense with any very structured application of Article 53. It will be sufficient to remind all concerned that the default of the other party cannot affect the continuance of the Provisional Measures procedure. That is the course the Court habitually takes.2111 In maintaining its request for Provisional Measures, the non-defaulting party asks the Court to give a decision in favour of its contentions notwithstanding the absence of its opponent. In formal terms, therefore, Article 53 applies. On analysis, Article 53 covers all situations in which the Court, because of one side’s default, has to do more, of its own volition, than is required by the ordinary procedure, in order to verify its jurisdiction, establish the relevant facts and decide the applicable law. As and when such additional efforts are required of the Court, Article 53 comes into play. Where there is default, such additional efforts must be made by the Court at every stage of the case. It is therefore incorrect to conceptualise default as referable simply to absence from the merits phase,2112 even though in that situation, Article 53 applies to its fullest and thus most visible effect. If one argues that Article 53 applies formally only at the merits stage, one has nevertheless to extend its application, by analogy, to incidental proceedings and in substance, one thus reaches the same result by a different route. To sum up, then, we can say that Article 53 applies to all the procedural phases, but that the modalities for its application vary: it will apply in a very fleeting, ‘light-touch’ manner at the Provisional Measures phase, and much more heavily and insistently at the merits stage. In the intermediate stages, it gradually gains in scope and importance. The presence and incidence of Article 53 is thus a kind of crescendo as the case progresses.   See preceding footnote.   See the observations of Thirlway, Non-Appearance Before the ICJ, above n 2090, 34–35. In the view of P Lamberti Zanardi, ‘Forme nuove di contestazione della compandenza della Corte internazionale di Giustizia e potere della Corte di aprire d’ufficio un procedimento sulla compandenza’ in Comunicazioni e studi, vol XIV (Milan, 1975) 461, Art 53 cannot be applied in the jurisdiction and admissibility phase, because the object there is to decide the Court’s jurisdiction, not to judge between the arguments of the parties. Art 53 cannot, in this view, apply until the Court has decided it has jurisdiction; but here, the very object of the jurisdiction and admissibility procedure is to decide just that question. This objection does not appear to be well founded. If the Court’s task is indeed to determine jurisdiction, that does not prevent the default of a party being interpreted until this point as meaning that the Court might automatically declare itself to have jurisdiction, eg via the forum prorogatum mechanism. Quite the reverse. The Court has of its own volition raised and examined certain arguments that might deny it jurisdiction. In doing so it is carrying out acts that follow the sense of Art 53, § 2, acts which cannot be explained other than by the fact that a party is defaulting. This implies that the provision is being applied. The argument of L Favoreu, ‘Les affaires de la compétence en matière de pêcheries’ (1974) 20 AFDI 258, is that, the ICJ’s jurisdiction being purely consensual, it is impossible to speak of ‘default’ until that jurisdiction is established. This would mean that, until the end of the jurisdiction and admissibility proceedings, it would technically be impossible to speak of ‘default’ at all. But this objection is no better than the previous one and must be rejected for the same reasons. It is based on the erroneous idea that a State party to the Statute is not subject to any obligation to the Court until the latter establishes its jurisdiction. That is obviously incorrect, because seising the Court, in itself, immediately produces a whole series of procedural and substantive legal effects (eg the good faith obligation and the obligation not, mala fide, to destroy the subject matter of the dispute) that bind the parties even prior to the Court’s decision on jurisdiction. Also, to establish that jurisdiction and ensure the adequate functioning of justice, the Court will usually need the cooperation of the parties in the case from the moment it is seised. This collection of obligations derives from the Statute and the Rules. Art 53 of the Statute, ie the default procedure, can and must apply when the situation requires it. 2111 2112



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c)  Particular Obligations under Article 53, Paragraph 2 of the Statute It will be remembered that Article 53, paragraph 2 reads: The Court must, before doing so [deciding in favour of the non-defaulting party’s claim], 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.

There are thus two requirements, namely that the Court has jurisdiction, and that the claims are well founded in fact and law. It is up to the Court, of its own volition to make the additional effort required to achieve these ends.2113 It will not have, or at least not have much, benefit from an adversarial debate between the parties, because the defaulting party is not performing, or at least not performing fully, in that debate. As already noted, this provision of the Statute excludes the eo ipso application of sanctions against the defaulting party. One such special sanction might have been that the arguments of the non-defaulting party were automatically considered to prevail if the defaulting party did not challenge them by participating in the proceedings in a regular manner.2114 Technically, such a sanction would be possible. But the draftsmen of the Statute rejected the idea, not only because the parties here are sovereign States, but also because the Court’s judgments are destined to be executed and stand as precedents for the future. It would therefore be wrong to dispense with the elementary requirements of justice, particularly with the satisfaction of the ‘wellfounded’ condition. The Court cannot hand out ‘discount-justice’. Each judgment it gives affects its prestige, and it is important that all the judicial acts of a court should be properly respected. For these reasons, the Court needs to make the additional efforts mentioned above, in order to ensure that the case of the non-defaulting party, if it is to triumph, is at least true and justified, which the Court is obliged to verify by the provisions of Article 53, paragraph 2. The Court cannot simply shelter behind a purely formal procedural rule to the effect that, if there is no proper challenge under the ordinary rules of procedure, judgment follows automatically in favour of the opposing party. On the other hand, the question arises as to the extent to which the Court ought to substitute itself for the defaulting party in order to fill in for it in its absence. Must the Court think up all the possible objections to jurisdiction that the defaulting party might have raised? Does it have to research all the sources of law, however particular, that the defaulting party might have claimed to invoke? Does it have to make diligent enquiries with a view to establishing all the pertinent facts? If so, there would be both technical and substantive problems. From the technical perspective, the Court is not endowed with the means to carry out such tasks. No party has the right to demand them of the Court. From the substantive point of view, it is doubtful whether the defaulting party, having distanced itself from its procedural duties, can take advantage of its absence, so as to expect the Court to show greater zeal than the defaulting State itself, in advancing arguments, both factual and legal, that are potentially relevant. In a way, a ‘maximal service’ of that kind could even encourage States not to appear, since they would effectively be provided with the 2113   Cases on Fisheries jurisdiction, ICJ Reports 1973, 7–8, §12, 54, § 13; Continental shelf in the Aegean Sea, ICJ Reports 1978, 7–8, § 15; United States diplomatic and consular staff at Tehran, ICJ Reports 1980, 24, § 45. 2114   Case on Military and paramilitary activities in and against Nicaragua (merits), ICJ Reports 1986, 24, § 28: ‘There is, however, no question of a judgment automatically in favour of the party appearing, since the Court is required, as mentioned above, to “satisfy itself ” that the party’s claim is well founded in fact and law.’

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equivalent of the most complete and all-embracing services of first class attorneys, at much smaller cost, if not free of charge. It would be strange to incite States to contemplate defaulting on that basis, by sending out such misleading signals. For this reason, the Court has insisted, ever since the first important default, in the Corfu Channel case (reparations, 1949), that: While Article 53 obliges the Court to consider the submissions of the party which appears, it does not compel the Court to examine their 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.2115

The Court’s objective must be, once again, a careful balancing of on the one hand, the proper administration of justice, and on the other, the practical obstacles and indeed the effort not to give undue advantage to the defaulting over the non-defaulting party. The Court must begin by satisfying itself as to its jurisdiction. Jurisdiction being largely a question of law, as to which the adage jura novit curia applies, default by one party does not, on this point, have the troublesome consequences that it does have when it comes to establishing the facts. The Court is in a position to assess the value of the titles of jurisdiction relied on by the Applicant State, and to bring to mind the most obvious objections that might be raised against them. The text of Article 53, paragraph 2 is slightly imprecise in referring solely to consensual and material jurisdiction under Articles 36 and 37 of the Statute. It goes without saying – and was therefore considered unnecessary to mention – that the Court must also pronounce, of its own volition, on the existence of its jurisdiction under Articles 34 and 35 of the Statute (relating to personal jurisdiction). Given that, under these provisions, it is always for the Court, of its own volition, to examine the question of personal jurisdiction and not only in cases of default, it was possible to make no specific mention of this in Article 53. It will be remembered that the Court is not normally under any obligation to examine the consensual jurisdiction of its own volition: if there is no challenge to it, then jurisdiction is automatically established via the forum prorogatum. However, the position is different where there is a default by one of the parties, precisely because of the provisions of Article 53, paragraph 2. In this situation, the silence of the Respondent State cannot be automatically interpreted as acquiescence in the Court’s having jurisdiction. The provision refers merely to ‘jurisdiction’. However, it is accepted that the Court must also address itself to problems of admissibility.2116 Such issues – except as regards general admissibility – are not normally raised by the Court motu proprio. But the Court does have to raise them when one party is in default. The critical question is how far the Court has to go in devising possible arguments as to want of jurisdiction, and, even more so, in imagining the potentially much more varied arguments against admissibility. Taking into account the principles mentioned above, it is not reasonable to require the Court to do more than 2115   ICJ Reports 1949, 248. These limits were restated in the case on the United States diplomatic and consular staff at Tehran, ICJ Reports 1980, 9, § 11. 2116   von Mangoldt and Zimmermann, ‘Article 53’, above n 2090, 1160. The Court’s jurisprudence cited by these commentators confirms this view. The Court examined the question whether the application had not been deprived of its object (Nuclear tests case, ICJ Reports 1974, 271–72, § 58–59, 477, § 61–62); whether parallel negotiations between the parties are a ground of ‘dilatory’ inadmissibility (the case on the Continental shelf in the Aegean Sea, ICJ Reports 1978, 11 et seq,. §§ 27 et seq.); or whether the parallel seisin of the Security Council and the Court, and the creation of a UN fact-finding commission for the settlement of the dispute, would affect the admissibility of the application (the case on the United States diplomatic and consular staff at Tehran, ICJ Reports 1980, 20–21, § 39, the Court expressis verbis raising the question of admissibility: ibid, 18, § 33 and 20, § 39).



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raise the more credible and obvious arguments against jurisdiction and admissibility. Often, the defaulting party sends its main arguments to the Court through some official channel. In such a case, the Court takes them into account.2117 It is also normal for the applicant itself to mention certain possible objections, only to argue that they are illfounded. The Court is under no obligation to go beyond such obvious arguments and those arguments that are in effect raised, unless, when examining the case, it comes upon further aspects which appear to it to be sufficiently important that they should be decided in the judgment. Anyway, the Court is obliged to declare itself competent (and the claim admissible) in accordance with the ordinary standard for a judgment on jurisdiction and admissibility, that is, secunda facie, having examined all aspects of the case, and not just prima facie, as it does at the Provisional Measures stage. Nor should there be any question of a ‘light’ examination, as when the Court is considering whether to take judicial cognisance of a certain fact. The Court does not decide summarily. The exercise is ‘light’ only in the sense that the Court is not obliged to imagine, or dream up, grounds of want of jurisdiction or of inadmissibility other than those that are obviously relevant, that is, such grounds as any expert international lawyer familiar with the law of the Court would consider credible and would raise. The Court, as already said, in standing in for the defaulting party, does not have to raise distant or improbable objections, far less the kind that are sometimes raised out of a superabundance of caution or to engineer delay. The underlying inspiration must be to raise all those questions – but only those questions – upon which the judgment’s credibility will depend, those that appear sufficiently important that it might be thought, if the Court does not consider them, that, if they had been considered, they might have affected the judgment. The judgment will be balanced between giving undue advantage to the defaulting party and giving it too little benefit, to the point where there might be an appearance of bias. Next, the Court must satisfy itself that the arguments of the non-defaulting party are well-founded in law. The default of one of the parties cannot be allowed to affect the degree of certainty necessary as to the applicable law, if only because the Court’s decision will still be a jurisdictional act by the Court, in the full sense of the term. As the Court stated in the case on Military and paramilitary activities in and against Nicaragua (merits, 1986): 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.2118 (italics added)

Unlike the facts, where the onus is on the parties to prove the facts upon which they rely (onus probandi incumbit actori), the law is, so to speak, the Court’s home ground (jura novit curia; da mihi facta, dabo tibi jus).2119 For this reason, the absence of a party does not have the same effect here as it does in the factual field. The Court itself has several times made this point. In the cases on Fisheries Jurisdiction (merits, 1974), it stated that: The Court, 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   On this question see below, section (d).   ICJ Reports 1986, 24, § 29. 2119   This principle has been progressively established in the course of the process by which professionalised justice has been substituted for private arbitration. cf A Stoelzel, Die Entwicklung der gelehrten Rechtsprechung, vol II (Berlin, 1910) 79. 2117 2118

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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 on any of the parties, for the law lies within the judicial knowledge of the Court.2120

The Court returned to the point in the Nicaragua case (cited above): 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 arguments of the parties before it . . . so that the absence of one party has less impact.2121

As we shall see in the chapter on the jura novit curia principle, the Court is required to be familiar only with general international law. It cannot be deemed to be familiar with all the particular rules of law that parties may have established as between themselves, whether through written or oral bilateral agreements, binding unilateral acts, or subjective legal positions resulting from estoppel, from acquiescence, from prescription, or from some other legal principle of a similar nature. From the point of view of judicial procedure, the latter are often treated as facts: it is for the parties to bring them to the Court’s knowledge and attention. Where one side is in default, it will normally be the other, usually the applicant, which sets out a clear statement of all the particular norms on which it bases its case. It will thereby provide the Court with all the supporting evidence necessary (indeed, indispensable) for the Court to conclude that its case is legally well-founded. In respect of such sources of particular international law, the default of a party can thus have a more troublesome effect than in respect of general international law. Finally, the Court has to satisfy itself that the non-defaulting party’s claim is well-founded in fact. It is in this field of fact that default has its most serious effects. The facts must be established by the parties to the satisfaction of the Court. Normally, the evidence crystallises in the process of adversarial pleading. The adversarial principle is an essential safeguard for the proper administration of justice, the credibility of the Court, and the Court’s justice. In cases before the ICJ, this process is dealt with as a matter of formal verification through the documents submitted in evidence, since the Court itself does not normally have the means to carry out its own investigation of the facts. This means that judgments depend essentially on the factual evidence submitted by the parties: these are the facts on which the judgment will be based. For this reason, the Court will not, in this respect, take steps to palliate the effects of a party’s absence. There are inevitable consequences for the outcome of the proceedings. As the Court said in the Corfu Channel case (reparations, 1949), it does not have the means to verify all the factual details and the Statute does not require it to do so.2122 Here, then, the defaulting party is at an obvious disadvantage. If we are not talking about a sanction in the proper sense of the expression, the fact remains that we are dealing with unfavourable consequences resulting from a disputable choice. Conversely, the Court cannot simply be satisfied with the idea that it is ignorant of the facts and just throw the responsibility for this onto the defaulting party, because the Statute requires that the Court satisfy itself that the claimant’s factual allegations are well founded. Consequently, as the Court stressed in the Nuclear tests cases (1974), in relation to facts that had supervened since the Court was seised of the case, it is ‘especially incumbent upon   ICJ Reports 1974, 9, § 17 and 181, § 18.   ICJ Reports 1986, 24, § 29. 2122   ICJ Reports 1949, 248. 2120 2121



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the Court to satisfy itself that it is in possession of all the available facts’.2123 The Court must make all reasonable endeavours to satisfy itself as to the facts, either by asking for further information from the claimant, or by using its own sources of information. To this end, the Court used experts to assess the applicant’s claim for loss and damage;2124 the Court also relied on facts that were in the public domain, such as could be gleaned from official declarations, UN reports, the international press and so on.2125 The most difficult aspect is to know what weight the Court should accord to unofficial communications from the defaulting party.2126 In each case of default, the party refusing to appear arranged to deliver to the Court – whether by telegram, aide-mémoire or some other out-of-the-ordinary means – its views on the case. Despite the fact that they are often quite brief, such communications do give the Court some picture of the defaulting State’s point of view and sometimes of the arguments it relies on.2127 The Court normally takes these communications into account, despite the fact that they are delivered by procedurally irregular means. In doing so, the Court is basing itself on Article 53 of the Statute, requiring it to do all it can to satisfy itself as to the facts and the law.2128 This practice has been challenged.2129 It is said to put the defaulting party in a more favourable position than it would have enjoyed had it been present, which would not only be unjust, but would give rise to a most undesirable incentive. The advantage is that the defaulting party is not subject to the relevant requirements, particularly of the Rules, as to the presentation of arguments, in particular those relating to form, time limits and the opportunity to reply. In this matter, the Court is in a most embarrassing dilemma. On the one hand, it must try to obtain the best possible knowledge of the facts, whatever the sources, so that its decision is based on the most solid foundations possible. Otherwise, it would be giving an illfounded judgment, which might not be respected and might damage its prestige as a court of justice. We should not forget that, under the Statute, it is not possible for the defaulting party subsequently to bring (and appear in) a new case,2130 which is yet another reason why the highest standards are required of a default judgment. On the other hand, the Court must do all it can to avoid undermining the principle of equality between parties by giving excessive advantages to the defaulting side. Equally, it must not allow defaulters to derive excessive benefit from their defaults, which are wrongful. Up to now, the Court has leaned more towards the first consideration, which is understandable. Nevertheless, it does need to remain extremely vigilant with regard to the second one, even though nowadays there are fewer cases of default than used to be the case. How can the Court square this circle? It is impossible to lay out here all the possible approaches the Court might adopt in a multiplicity of different cases. It would, for example, be possible for the Court to refuse to take   ICJ Reports 1974, 263, § 31 and 468, § 32.   Corfu Channel case, ICJ Reports 1949, 124. In the end the experts expressed the view that the loss suffered by the UK was greater than the UK itself had argued, a fine example of moderation and veracity, or if you prefer, reasonableness. 2125   Case of the United States diplomatic and consular staff in Tehran, ICJ Reports 1980, 9–10, §§ 12–13. 2126   See von Mangoldt and Zimmermann, ‘Article 53’, above n 2090, 1163–64. 2127   This was the position in the case on the Continental shelf in the Aegean Sea, in which the defaulting party, Turkey, was able to rely on a reservation to the applicable treaty on dispute resolution: ICJ Reports 1978, 20, § 47. 2128   See, eg the case of the Continental shelf in the Aegean sea, ICJ Reports 1978, 20, § 47; and the case on United States diplomatic and consular staff in Tehran, ICJ Reports 1980, 18, § 33. 2129   See the arguments in Thirlway, Non-Appearance Before the ICJ, above n 2090, 137 et seq.; Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’, above n 2025, 168–70; Fitzmaurice, ‘The Problem of the “Non-Appearing” Defendant Government’, above n 2090, 116–18; Eisemann, above n 2090, 363–64. 2130   See immediately below, section (d). 2123 2124

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account of communications received very late, applying, by analogy, the various relevant provisions of the Rules (especially Rule 56). Or it might (and generally will), as another example, refuse to treat the defaulting party’s arguments as Preliminary Objections giving rise to a separate phase of the proceeedings, instead effectively ‘joining them to the merits’.

d)  Particular Aspects We must now examine a series of isolated questions that arise when a party defaults in appearing. First, one needs to emphasise that the Court’s judgment rendered after a default has the force of res judicata, both in terms of subject matter, and as a matter of form. It is therefore final and unappealable, just like any other judgment. The defaulting party cannot ask that the case be reopened, and to be given the benefit of proceedings in presentia.2131 Such a right does exist in a whole series of municipal legal systems, especially in relation to criminal proceedings; but it does not exist before the ICJ. As the Court put the point in the case on Military and paramilitary activities in and against Nicaragua (merits, 1986), after reaffirming that a party defaulting at a particular stage can nevertheless be present at subsequent stages: ‘It goes without saying, however, that in the phase of the proceedings devoted to reparation, neither Party may call in question such findings in the present Judgment as have become res judicata.’2132 Obviously the defaulting party, like any other party, retains the right to request revision of the judgment, in the sense of Article 61 of the Statute, in the very restrictive circumstances there provided for. In particular, this can be requested because of facts found to have been unknown both to the Court, and to the party seeking revision at the time of the original proceedings. It will, therefore, not be possible to argue for a revision on the basis that a fact was unknown to the Court because of the non-appearance of the party which might, and should, have made it known. To a certain extent, the defaulting party has here to accept the disadvantages flowing from its unfortunate procedural decision not to appear. Despite the ‘light’ factual treatment of a default judgment, largely untested through the sieve of adversarial examination, the judgement has the full force of a res judicata. That is an inevitable consequence as soon as the proceedings start to move forward towards a binding judgment in the teeth of a default. But there is also a certain ‘punitive’ element here, albeit the punishment of the defaulting party is delivered sub rosa. Second, a party which defaults partially, at one stage or other of the proceedings, can nevertheless appear at other stages, and loses neither the right nor the opportunity to do so. There is thus no sanction in the form of the denial of the right to future participation. A sanction of that kind would not be very constructive, since the Court must really hope for the opposite, that the defaulting State will repent of its attitude, or at least will declare itself willing to resume participating in the proceedings. The Court made a clear decision of this kind in the case on Military and paramilitary activities in and against Nicaragua (merits, 1986):

2131  The travaux préparatoires relating to the Statute are very clear in this regard: see Mangoldt and Zimmermann, ‘Article 53’, above n 2090, 1150. 2132   ICJ Reports 1986, 143, § 284.



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Nor should it be overlooked that, while the United States has chosen not to appear or participate in the present phase of the proceedings, Article 53 of the Statute does not debar it from appearing to present its arguments on the question of reparation if it so wishes.2133

This is highly satisfactory jurisprudence. Third, the question arises whether the parties to the Statute, having created titles of jurisdiction, are under a legal obligation (in the most narrow sense of the term) to appear before the Court. If so, their refusal to appear would be equivalent to a formal breach of their obligations. Most of the leading commentators argue that there is no such legal obligation.2134 On the contrary, Article 53 of the Statute is witness to the fact that default is foreseen, and provided for, in the Court’s procedural law. No particular sanction is provided for against cases of non-appearance. Although the refusal to appear is not exactly a ‘friendly’ act,2135 and indeed is probably not ‘correct’, at least it is not contrary to law. However, some commentators do not consider this ‘licence not to appear’ as a right, on the basis that this would give it too much legitimacy. They simply call it a ‘faculty’ or ‘possibility’ for States which are prepared to take the consequences.2136 It has thus been said that the Statute does not confer upon parties a ‘right’ not to appear, although non-appearance cannot, in light of the text constituting the ICJ, be considered actually unlawful.2137 Certain commentators consider that although a refusal to appear is in itself lawful, it is contrary at least to the spirit of the Charter, the Statute and the undertakings given in the title of jurisdiction.2138 There are, however, some authors for whom the failure to appear is a violation of the obligations of a State which is a party to the Statute and has accepted the Court’s jurisdiction.2139 Such States are indeed subject to the Court’s jurisdiction, which implies, in order that the whole system can function in a reasonable way, that is, that they have undertaken to participate in the Court’s procedure (the obligation to cooperate with the Court2140). Finally, there are those who insist that appearance before the Court is neither a duty nor a right, but rather should be seen as a burden (onus), comparable to the burden of proof. Discharging this burden is a de facto condition for enjoying certain advantages in the proceedings and for exploiting one’s position to the full.2141 So the question has, for a long time now, excited lively debate. By ratifying or adhering to the Statute, and assuming legal obligations as regards the Court’s jurisdiction, a State accepts not only obligations with no practical effects, but also all the positive obligations inherent in the sensible functioning of the Court, and in the proper unfolding of the procedures to which it has, after all, deliberately submitted. It cannot recognise the Court’s jurisdiction with one hand, only to withdraw with the other from   ICJ Reports 1986, 143, § 284.   See, eg von Mangoldt and Zimmermann, ‘Article 53’, above n 2090, 1164, 1169; Thirlway, Non-Appearance Before the ICJ, above n 2090, 64 et seq.; Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’, above n 2025, 161–65; Dissenting Opinion of Judge Gros, Nuclear tests cases, ICJ Reports 1973, 118 and 153. See also, eg, amongst many others, the observations of Paul de Visscher, in: IIL (IDI) Yearbook, vol 64-II (1991) 373. 2135   Eisemann, above n 2090, 375, who thinks it discourteous but lawful. 2136   See, eg P de Visscher, IIL (IDI) Yearbook, vol 64-II (1991) 373; Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’, above n 2025, 162. 2137   Zanoberti Pagnetti, op. cit., 50–51. 2138   Mosler, above n 2090, 442. 2139   Fitzmaurice, ‘The Problem of the “Non-Appearing” Defendant Government’, above n 2090, 106 et seq. 2140   This obliugation to cooperate with the Court is emphasised in Art 2 of the 1992 IIL (IDI) Resolution on non-appearance before the International Court of Justice. See, www.idi-iil.org or IIL (IDI) Yearbook, vol 64-II (1991) 366. 2141   E Jiménez de Aréchaga, in IIL (IDI) Yearbook, vol 64-I (1991) 273. 2133 2134

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the ordinary procedures that are designed to give practical effect to that recognition. The principle of the proper administration of justice, which is objective in nature, militates in the same sense. States are not entitled to give in their soi-disant submission to the Court and then, when the moment comes to fulfil their obligations, withdraw and thus wrongfoot the due and proper administration of justice by the effects of their absence, and through the inevitable knock-on effects on the proper balance between the opposing parties. The fact that the Statute contains no explicit rule or sanction on this point is not decisive, because the obligation is implicit in the titles of jurisdiction, and in the duties deriving from them. Also, the Court itself has emphasised that the parties to a treaty can directly breach its object and purpose without necessarily contravening the express words of the text.2142 In our case, Article 53 of the Statute has, up to now, been interpreted as transforming this duty to appear into an obligatio imperfecta: legal sanctions for non-appearance are excluded. It is an elementary legal conclusion that the absence of a specific sanction does not affect the legal obligation to which such a sanction would relate.2143 It is thus wrong to conclude that there is no subsisting obligation to appear. It is simply that the ‘legislator’, and the Court through its practice, have taken the view that it is better, given other considerations of legal policy, at least to defer sanctions against the defaulting State, because they would have little practical effect and would further increase the ill-feeling. They would also further alienate the defaulting party from the Court, whereas what is really required is to give it reasons to come back at a later stage in the proceedings. And finally, there is the point that that they would confirm the defaulting State in its hostility to the Court, perhaps causing it to fiercely resist the execution of the judgment, and/or causing it to annul or withdraw the titles of jurisdiction under which it has accepted the Court’s jurisdiction. There can be no doubting the fact that these are strong reasons for not pronouncing specific sanctions for default, and for handling defaults in a more diplomatic way. The ‘imperfection’ of the obligation brings it superficially closer to an option or a privilege. But there is this difference, that the ICJ is not in a neutral position as regards non-appearance. Nonappearance is unwelcome to the Court, because it disturbs the procedure. The Court does indeed place the defaulting State in a position which in some respects can be relatively unfavourable vis-à-vis the appearing State.2144 The way the imperfect obligation is constructed thus reflects the needs of the system and of the Court’s procedural law more than it resembles an option. The latter carries the inappropriate connotation that the law is indifferent as to whether it is exercised, and that the right is a matter of free choice by the party concerned. Fourth, leading commentators have often insisted on the point, emphasised above, that the defaulting State cannot or should not be ‘punished’ (sanctioned) for its default.2145 Nevertheless, it is useful to give thought to the unfavourable consequences of not appear  Case on Military and paramilitary activities in and against Nicaragua (merits), ICJ Reports 1986, 135 et seq.   Although the existence of legal sanctions automatically gives the character of legal obligations to required types of behaviour, the absence of such sanctions does not downgrade behavioural requirements into nonobligations. The legislator can provide for fully legal rights or obligations and yet, for reasons of judicial policy, not provide for sanctions. The situation of a debt after the expiry of the contractual period during which it can be the subject of a legal execution proves the point: the debt continues due and, if it is indeed repaid, cannot be claimed a second time or claimed back; but it can no longer be the subject of a legal execution – ie sanctions are no longer available for non-payment. The debt continues to give rise to a debtor–creditor relationship, but the sanction is eliminated when the time limit for execution is past. 2144   See immediately above and below, under the heading ‘Fourth’. 2145   See, eg von Mangoldt and Zimmermann, ‘Article 53’, above n 2090, 1165. 2142 2143



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ing. These consequences are a mixture of fact and law. Legally, they are not sanctions in the true sense of the term, since they are not provided for as a means of lending force to the principal obligation – that is, the obligation to appear before the Court. However, there is no heresy in seeing the effects as ‘quasi-sanctions’, or at least as unfavourable effects attaching to failure to discharge what has been called the burden of appearing, the onus comparendi. In the first place, the defaulting State loses the benefit of competing fully in the struggle to establish the law, and above all else, the facts. In particular, it loses the significant protection of the adversarial principle.2146 Whatever the ways in which it may informally interact with the Court, it can never enjoy the position of a party properly participating in the proceedings. And secondly, in such cases the Court satisfies itself by giving them a somewhat ‘lighter’ treatment, since, as it has indicated, it is simply not in a position to investigate the facts in detail. In this way, the defaulting State loses the possibility of putting a different version of the facts, while the hurdle that the applicant has to surmount is somewhat lower than it would otherwise have been. Third, if there is an undertaking to seise the Court, for example a special agreement to that effect, and if that undertaking is breached by non-appearance, then the defaulting State will have to answer for the breach of the treaty, quite apart from, and in addition to, any failure in respect of the Court’s own procedural rules, perhaps, indeed, in a further set of proceedings before the Court.2147 Fourth, the Statute does not make provision for a defaulting State to demand a fresh trial in presentia. Quite the reverse, the default judgment will remain definitive and binding. The Statute does not follow the same procedures as apply in a number of municipal systems, where it is accepted that, in certain circumstances, a defaulting party can ask for a new trial. Here, too, there is an element of disapprobation. It becomes palpable if, thanks to the default, a material fact is unknown to Court. The subsequent discovery or disclosure of that fact will not be a ground for an application for revision of the judgment, even if the fact is decisive, because the conditions for applying Article 61 of the Statute will not be satisfied if the fact was known to the defaulting party at the time judgment was given. Fifth, an ad hoc judge, present in the preceding stages, does not lose the right to sit if the party that nominated him refuses to appear at a given stage of the proceedings. This was established in the Corfu Channel case (reparations, 1949),2148 when the judge who had been nominated by Albania continued to participate in the proceedings. Sixth, there is no scope for default procedures in advisory opinion cases, because in that context there are no ‘parties’. If the opinion sought relates to a live dispute between States, and one or more of them refuse to cooperate with the Court and to provide it with necessary information, the Court will have to make its own assessment of whether it has the information essential for the exercise of its judicial function. If it decides it does not, it can refuse to give the opinion, as a matter of exercising what it erroneously calls its ‘discretionary power’ to respond or not to respond, to the request for an advisory opinion.2149

  Case on Military and paramilitary activities in and against Nicaragua (merits), ICJ Reports 1986, 25, § 30.   On this question, see Thirlway, Non-Appearance Before the ICJ, above n 2090, 72 et seq. 2148   ICJ Reports 1949, 244 et seq. 2149   On this question, cf von Mangoldt and Zimmermann, ‘Article 53’, above n 2090, 1167–68. 2146 2147

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17.  INTERVENTION BY THIRD STATES2150

a)  General Features It is possible for third States to intervene in proceedings before the Court.2151 As the expression ‘intervention’ indicates, this is an incidental procedure engrafted onto a set of principal proceedings. Such intervention by an ‘outside’ interest is allowed by the general principles of legal procedure where the third State possesses an ‘interest of a legal nature’ in the subject of the principal proceedings. The relativity of the res judicata principle referred 2150  Amongst general studies of intervention before the ICJ, see C Chinkin, ‘Article 62’ and ‘Article 63’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 1331 et seq. and 1367 et seq.; S Rosenne, The Law and Practice of the International Court, 1920–2005, vol III, 3rd edn (Leiden, 1997) 1481 et seq.; H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’ in BYIL, Part Thirteen, vol 74 (2003) 23 et seq.; G Guyomar, Commentaire du Règlement de la Cour internationale de Justice, adopté le 17 avril 1978: Interprétation et pratique, 2nd edn (Paris, 1983) 525 et seq.; M Dubisson, La Cour internationale de Justice (Paris, 1964) 236–38; For the PCIJ, MO Hudson, The Permanent Court of International Justice, 1920–1924. A Treatise (New York, 1943) 419 et seq.; M Farag, L’intervention devant la Cour permanente de Justice internationale (Paris, 1927); W Friede, ‘Die Intervention im Verfahren vor dem StIGH’ (1932) 3 ZaöRV 1 et seq. See also, B Smyrniadis, ‘L’intervention devant la Cour internationale de Justice’ (1953) 9 Revue égyptienne de droit international 28 et seq.; J Milther, ‘Intervention in Proceedings before the ICJ’ in L Gross, The Future of the International Court of Justice, vol II (New York, 1976) 550 et seq.; P Jessup, ‘Intervention in the International Court’ (1981) 75 AJIL 903 et seq.; T Licari, ‘Intervention under Article 62 of the Statute of the ICJ’ (1982) 8 Brooklyn Journal of International Law 267 et seq.; E Jiménez de Aréchaga, ‘Intervention under Article 62 of the Statute of the ICJ’ in Essays H Mosler (Berlin and other places, 1983) 453 et seq.; TO Elias, ‘The Limits of the Right of Intervention in a Case before the ICJ’, ibid, 159 et seq.; S Oda, ‘Intervention in the ICJ, Articles 62 and 63 of the Statute’, ibid, 629 et seq.; G Cellamare, ‘Intervento in causa davanti alla Corte internazionale di Giustizia e “lien juridictionelle” tra interveniente e parti originarie del processo’ (1983) 66 RDI 291 et seq.; W Fritzemeyer, Die Intervention vor dem Internationalen Gerichtshof (Baden-Baden, 1984); G Sperduti, ‘L’intervention dans le procès international’ (1984) 30 AFDI, 273 et seq.; G Sperduti, ‘L’intervention de l’etat tiers dans le procès international: une orientation nouvelthe’ (1985) 31 AFDI 286 et seq.; J Merrills, ‘Intervention in the International Court’ (1985) 101 Law Quarterly Review 11 et seq.; A Davì, L’intervento davanti alla Corte internazionale di Giustizia (Naples, 1984); C Chinkin, ‘Third Party Intervention before the International Court of Justice’ (1986) 80 AJIL 495 et seq.; G Cellamare, Le forme di intervento nel processo dinanzi alla Corte internazionale di Giustizia (Bari, 1991); DW Greig, ‘Third Party Rights and Intervention before the International Court’ (1992) 32 Virginia Journal of International Law, 285 et seq.; C Chinkin, Third Parties in International Law (Oxford/New York, 1993) 147 et seq.; S Rosenne, Intervention in the International Court of Justice (Dordrecht, Boston, London, 1993); RS MacDonald and V Hughes, ‘Intervention before the International Court of Justice’ (1993) 5 African Journal of International and Comparative Law 1 et seq.; S Torres Bernardez, ‘L’intervention dans la procédure de la Cour internationale de Justice’ (1995) 256 CCHAIL193 et seq.; JM Ruda, ‘Intervention before the International Court of Justice’ in Essays RY Jennings (Cambridge, 1996) 487 et seq.; E Doussis, ‘Intérêt juridique et intervention devant la Cour internationale de Justice’ (2001) 105 RGDIP 55 et seq. See also: C Di Paolo, Effetti delle sentenze della Corte internazionale di Giustizia nei confronti di Stati estranei al giudizio e intervento nel processo (Naples, 1997). For Article 63 in particular, see: E Hambro, ‘Intervention under Article 63 of the Statute of the ICJ’, (1975) 14 Comunicazioni e studi 387 et seq.; G Cellamare, ‘In tema di intervento ai sensi del’articolo 63 del Statuto della Corte internazionale di Giustizia’ (1985) 68 RDI 817 et seq.; J Sztucki, ‘Intervention under Article 63 of the ICJ Statute in the Phase of Preliminary Proceedings: The Salvadorean Incident’ (1985) 79 AJIL 1005 et seq.; A Lally, Contribution à l’étude de l’article 63 du Statut de la Cour internationale de Justice, (PhD, Geneva, 2012). 2151   Hence the following definitions of intervention. In J Salmon (ed), Dictionnaire de droit international public (Brussels, 2001) 612: ‘A procedural step by which a legal person seeks to participate in an arbitral award or court judgement in proceedings between two other legal persons that are parties to it.’ Torres Bernardez, above n 2150, 223 defines it as follows: ‘Procedural device the object and purpose of which are to facilitate the participation of a third party (the intervener) in legal proceeedings in a given case between other persons (the parties), either with a view to the protection of the intervener’s own interests, or to safeguard the general principles of justice and judicial efficacy protected by the legal system concerned, or for some other combination of these reasons.’ (our translations)



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to in Article 59 of the Statute gives third parties only post festum protection against the direct effects of the Court’s judgment. When it comes to the protection of the legitimate interests of a third State, it is doubly insufficient. First, a third State may need to intervene for preventive purposes to make known its own position, and perhaps its rights too. Intervention enables it to influence, even if only to a limited extent, the judgment on the principal issues, while the ‘relativity’ of the res judicata does little or nothing more than ensure that the judgment is not formally ‘executory’ against the third State, since it is not addressed to that State. Secondly, the Court’s judgments invariably have factual and even legal effects on third States. A judgment alights on a particular interpretation, which, as a practical matter, will usually then be followed as a precedent; sometimes it also develops international law. In this regard, Article 59 affords no protection to a third party. Intervention, by contrast, enables the third party to influence the proceedings by making its views known in relation to certain situations particularly connected to the subject of the principal dispute. There are two possible purposes of an intervention and in consequence there are ‘general’ interventions and ‘special’ ones. A general intervention is concerned with a ‘legal interest’ of the third State not further specified. As the jurisprudence develops, it sets limits to the nature of such an interest and lends greater precision to it. The limits will be relatively wide if the jurisprudence seeks to multilateralise the process by which justice is administered, but relatively narrow if the concern is to maintain the primarily bilateral nature of the principal case. The purpose of ‘special’ intervention is the interpretation of a multilateral convention. If the object of the principal dispute concerns the interpretation of such a text, so that the Court will be giving an authoritative ruling as to its meaning, then, obviously, the other treaty parties have a general legal interest in participating in the proceedings, so as to make their arguments known as to the correct interpretation of the provisions in question. It is possible to enhance the judgment’s harmonising influence by providing that the interpretation in the judgment will be binding on such intervening States. In the case of the Court, these two types of intervention, the general and the special, are governed by Articles 62 and 63 of the Statute.2152 Article 62 reads as follows: 1. Should a State consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene. 2. It shall be for the Court to decide upon this request.

Article 63 provides that: 1. 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. 2. Every State so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it.

In public international law, the special form is the older of these two forms of intervention. The intervener’s legal interest is here particularly obvious. It was only natural that this situation was the first to attract attention, being one in which it was easier to envisage sacrificing the exclusivity of the confrontation between the sovereign principal parties to the dispute. It took a certain courage to break into this exclusivity when the uniform 2152   On the travaux préparatoires for these provisions, see among others, Chinkin, ‘Article 62’ and “Article 63”, above note 2150, 1333–34, 1371–72; Torres Bernardez, above n 2150, 237 et seq.; Davì, above n 2150, 91 et seq., a very broad overview.

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interpretation of a multilateral text by the parties to that text, was not the issue, when only more diffuse and less tangible third-party legal interests were affected and this development did not come until later. Thus, in the course of the nineteenth-century international movement towards arbitration, the substance of what is now Article 63 was already a feature. Article 16 of the draft code of arbitration procedure adopted by the IIL in 1875, and Articles 56 and 84 of Hague Conventions I of 1899 and 1907, show the same ideas at work. In the light of this, it is hardly surprising that the first intervention at the PCIJ ultimately became an intervention under Article 63 rather than Article 62 (the Wimbledon, 1923),2153 because the procedure was familiar and the path already well trodden. General intervention, on the other hand, did not become a regular feature of international law until the adoption of the PCIJ’s Statute (Article 62, cited above):2154 such intervention was indeed manifestly ill-suited to ad hoc arbitration procedures. In addition, prior to 1920, international solidarity was markedly weaker than respect for national sovereignty. An arbitrator is essentially the agent or organ of the parties. He is appointed to serve their needs, not to concern himself with third States and their interests. He owes the latter no duty at all. By contrast, institutionalised justice always stands for a far broader international community whether global or regional. It has not only to decide parties’ disputes, but must also administer justice. As the organ of the international community of States, the Court must concern itself with justice for that community. In this context, the interests of third States, who are members of the community have obviously to be seen in a very different light. In this context it is permissible to break open the private relationship between the principal parties to a case, allowing procedural intervention by a third State. Nor is it surprising that in the years prior to 1973 such a new procedure did not give rise to important jurisprudence, given that for a long time third States had abstained from involving themselves in disputes to which they were not parties. The texts of the Statute and the Rules (especially prior to 1978) also contributed to this state of affairs. The conditions for intervention and its consequences were not clearly defined.2155 There was a great degree of uncertainty about almost all the important questions, and although this made them a fertile field of debate, it also, almost certainly, inhibited State action. The most important and most frequently debated of these questions was whether intervention should be considered a truly incidental procedure, the third party not becoming a party to the case but simply a participant with the right to express its views, or whether intervention amounted to an enlargement of the principal case, the third State becoming a party, and potentially adding new and supplemental aspects to the case. This question was in turn tied up with the jurisdictional linkage issue. Since the Court’s jurisdiction is consensual, it seemed impossible to allow a State to become a party to the principal proceedings without being able to justify it by a valid title of jurisdiction opposable to the two (or more) principal parties. It was, therefore, natural for this conception of intervention to suggest the possible requirement of a jurisdictional link. But if in fact there was such a link, then the value of such interventions would be altogether too limited, given that a third State could always, in those circumstances, begin a case of its own against the parties   PCIJ, Series A, no 1, 11–13. See Torres Bernardez, above n 2150, 389–90.   See Chinkin, ‘Article 62’, above n 2150, 1333. 2155   Numerous commentators still emphasise the uncertainties and ambiguities in the legal regime for intervention. See, eg Rosenne, Intervention in the International Court of Justice Intervention in the ICJ, above n 2150, 190. It was also argued that Article 62 amounted to a blank cheque that the Court was free to fill out according to its own practice, laying down the modalities of action and their effects: Thirlway, above n 2150, 30–31. See also the case of the Continental shelf (Libya v Malta) ICJ Reports 1984, 28, § 46. 2153 2154



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to the existing case, leaving the Court free to order the consolidation of the two cases. These thickets of uncertainty had to be set against the weight of old-established habit. The advocates of the jurisdictional link could argue that the principal parties, as sovereign States, were under no obligation to accept unless they consented specifically, the intervention of a third State into their case. This attitude was a continuation of the old conception of the Court as a kind of arbitral body mandated by the parties. Their opponents argued that intervention was a true incidental procedure; that the intervener did not become a party to the case, but participated solely to explain its arguments and its legal interests; and that there was no need for consent to such a minor participation, since the provisions of the Statute provided a sufficient basis for it. It would, they argued, be strange to require the same titles of jurisdiction from a non-party intervener as would have been required had the third State brought a new case of its own. Consent, they argued, should be required solely to permit participation as a party, whereas intervention, in the narrow sense of the term, was governed not by Article 36 of the Statute, but by Articles 62 and 63 alone. The questions remained unanswered for a long time. Another important element of uncertainty, which has still not been entirely resolved, is the question of the status of the intervener as regards the judgment finally handed down by the Court. To what extent is the third party bound by it? It will not, as such, be executory for the third State. But, in an appropriate situation, can the interesting points of law decided be cited against it? Article 63 expressly provides for this. On the other hand, Article 62 is silent on the point. Finally, there is the question to what extent the intervener can exercise rights analogous to those of the parties, for example, the right to participate in other incidental proceedings. The 1920 Committee of Jurists, and subsequently the PCIJ itself in administrative session, had shed little light on questions of these kinds. Procedural intervention was still a novel and rather mysterious device, and the thinking about it was very diverse and generally rather diffident, making it difficult to envisage codifying the conditions for it, and its effects, in any very precise way. It was therefore as a matter of deliberate choice that the development of this legal mechanism was left to the judges, to be developed from case to case as a matter of judicial practice,2156 in the hope that a true doctrine of intervention would gradually emerge from concrete practical experience.2157 That, indeed, is what has happened in the years since 1973, but not without a long period of hesitant experimentation. In the 1970s and 1980s the ICJ did not succeed in devising a satisfactory doctrine on intervention. In those years, its face was turned too much towards the past, especially towards the received idea that the third State ought not to be allowed to participate in the proceedings unless the principal parties agreed. With its decision of 1990 in the case of the Land, island and maritime frontier dispute (El Salvador v Honduras, 1990),2158 a doctrine of intervention in the true sense of the term, at last began to take shape, the Court doing its utmost to lay down a host of details on the subject. The truth is, therefore, that the law and practice of intervention is slowly evolving and being consolidated, rather as gathering 2156   This case-by-case evolution is to be explained by the difficulty of pulling together a coherent body of rules and by the rather disparate nature of the law in this field: cf the Independent Opinion of Judge Weeramantry in the case on Sovereignty over Pulau Ligitan and Pulau Sipadan, ICJ Reports 2001, 630. 2157   As to the choice made by the Committee of Jurists and of the Court, see the case of the Continental shelf (Tunisia v Libya), ICJ Reports 1981, 14, § 23. See also Chinkin, ‘Article 62’, above n 2150, 1345. 2158   As to this important Judgment, see MG Kohen, ‘La requête à fin d’intervention du Nicaragua dans l’affaire du différend terrestre, insulaire et maritime (El Salvador / Honduras): l’ordonnance de la Cour du 28 février 1990 et l’arrêt de la Chambre du 13 septembre 1990’ (1990) 36 AFDI 341 et seq.; Torres Bernardez, above n 2150, 385 et seq.

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clouds eventually precipitate rain. There is little about it that is firm and certain: it is all a matter of process, escape routes and progressive development.2159 The process is far from complete, even now. Certainly, a great deal of law and practice has been firmed up, but there are quite a number of grey areas outstanding. Eventually we will reach a stage where we can go beyond the rules laid down in 1978 and envisage a more complete codification of the subject in the body of the Rules. Although one can letigimately say that intervention is more important in international law than in municipal law, because of the absence of a compulsory jurisdiction that would permit every State to bring any legal dispute before the Court, nevertheless up to the 1970s there were, as we have seen, a number of factors that tended to inhibit interventions. First, States, even when they perceived a certain legal interest of their own to be in issue, had little propensity to get involved in other countries’ disputes – the traditions of sovereign rights and consensualism were too strong for that. The procedural uncertainties mentioned above were an additional element restraining them. Second, the Court for a long time subscribed to a jurisprudence that inhibited intervention. It was more concerned to protect the ‘privacy’ of the principal parties against outside interference than to facilitate the access of third States to cases before it. From the perspective of the administration of justice, it preferred to avoid any complications and delays to the principal proceedings that might result from the appearance of new participants on the scene, rather than welcoming their participation on the basis that it gave the Court a more rounded and global overview of the case in addition to the opportunity to take account of third-party legal interests. This might have been seen as an opportunity to place the Court’s judicial activity within a wider politico-legal context, in the process increasing its effectiveness, and more fully discharging, in a wider context (ratione personae), its mission of resolving disputes. The Court’s jurisprudence of the 1980s, to which we shall return below, was invariably developed in a restrictive fashion that gave little encouragement to fresh interventions. The decisive break with the past came in 1990, in the case of the Land, island and maritime frontier dispute (cited above). It was only at that point that intervention as a non-party finally descended from a long period of gestation in the fuzzy clouds of the upper atmosphere where, until then, it had been confined. In a sense, it was only then that general intervention under Article 62 began to be a true and autonomous institution. Article 62 was thus trailing Article 63 by something more than half a century. Since then, that gulf between them has largely been bridged. Distinction between general and special intervention. General and special interventions are in a whole series of ways derived from common origins but in other ways are distinct from each other. Amongst the features common to both types of intervention the following are particularly noteworthy.2160 First, intervention is a way of putting forward arguments as to one’s own legal interests or in other words, is a means of self-protection. Second, intervention is an incidental procedure, engrafted onto a principal case, so that its very existence depends on the latter.2161 If the principal proceedings end in a decision that the Court has   This aspect is well covered in the collected courses of Torres Bernardez, above n 2150.   Torres Bernardez, above n 2150, 260 et seq. 2161   In the Haya de la Torre case, the Court said that: ‘[E]very 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.’ (ICJ Reports 1951, 76). In the case of the Land, island and maritime frontier dispute, the Court added: ‘[T]he Rule of law that “every intervention is incidental to the proceedings in a case” . . . applies equally whether the intervention is based on Article 62 or Article 63 of the Statute’ (ICJ Reports 1990, 4). 2159 2160



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no jurisdiction, or that the claim is inadmissible, or if they are discontinued, the thirdparty intervention, not being an autonomous proceeding, likewise lapses. The Nuclear Tests cases clearly showed this in the case of Fiji’s intervention.2162 A true intervention within the meaning of the Statute does not constitute the start of a fresh principal case. This means that the intervention does not, in principle, enlarge the subject of the principal dispute, but, on the contrary, the latter defines the framework and context.2163 Third, intervention is voluntary. It is undertaken at the free initiative of the third State. The Court cannot direct a State to intervene, no State being under any obligation to do so.2164 In the Nauru case (1992), the Court therefore said that ‘the Court may not compel a State to appear before it, even by way of intervention’;2165 and already in the case on the Continental shelf (Libya v Malta, 1984), the Court had affirmed that: ‘In 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 a party . . .’.2166 It goes without saying that the Court can suggest intervention, or even invite a State to participate in the proceedings, although it is difficult to see how the Court could be very insistent about it. The Court can also regret that a State has not chosen to intervene when such participation would have been open to it. The Court can also take note that a State has not chosen to intervene.2167 Fourth, general and special interventions share a procedure that is almost exactly the same.2168 Articles 81 to 86 of the Court’s Rules of 1978 apply equally to all interventions under the Statute, that is, under Articles 62 and 63. The differences, for example as to the latest moment for announcing one’s intervention, are relatively minor. Also, under both Article 62 and Article 63, States can intervene on the same conditions as those under which they might become parties. They must, therefore, be States in the sense of international law (Article 34, § 1 of the Statute), and States parties to the Statute or otherwise entitled to appear before the Court (Article 35 of the Statute). For present purposes, it suffices to cross-refer to the passages where these matters are addressed.2169 There are, however, certain substantive differences between general and special interventions.2170 They will be most evident from the separate analysis of each type, so that at this stage only the main points need be noted. First, the purposes of the two types of intervention are different: a general purpose (the protection of an unspecified legal interest) on the one hand, and a special one (interpretation of a multilateral convention) on the other.2171   ICJ Reports 1974, 531–33, 536–38.   As the Court put it in the case on the Continental shelf (Libya v Malta): ‘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’. (ICJ Reports 1984, 23, § 37). 2164   Arts 62 and 63 are clear on this point: ‘Should a State consider that . . . it may submit a request to the Court . . .’ (Article 62); ‘Every State [concerned] has the right to intervene in the proceedings; but if it uses this right . . .’ The Court does not have any inherent right to require a State to participate in the case, for such a power goes beyond its procedures and cannot be accepted to exist, since it would derogate both from national sovereignty and from the principle of consent, and is not provided for in the Statute. See Hudson, above n 2150, 422; Chinkin, ‘Article 62’, above n 2150, 1337. 2165   ICJ Reports 1992, 260, § 53. See also the case of the Land, island and maritime frontier dispute, ICJ Reports 1990, 135, § 99. 2166   ICJ Reports 1984, 25, § 40. 2167   See, eg the Monetary gold case, ICJ Reports 1954, 32; the case of the Land, lake and maritime boundary (Cameroon v Nigeria), ICJ Reports 2002, 421, § 238. 2168  Rosenne, Intervention in the ICJ, above n 2150, 72. 2169  Above. 2170   See the succinct observations of Chinkin, ‘Article 62’, above n 2150, 1372–74. 2171   The PCIJ insisted on this difference in the Wimbledon case (1923), Series A, no 1, 12: ‘The Statute of the Permanent Court of International Justice provides for two sets of circumstances and two different forms in which 2162 2163

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Article 63 is thus designed for a more precise purpose than Article 62. It is concerned to ensure the greatest possible degree of uniformity in the interpretation of multilateral treaties, and to avoid divergent interpretations of their texts giving rise to disputes about the application of such treaties. This is particularly important in the context of conventions designed primarily for the purpose of harmonising the applicable law, but it is also of significant value for all other multilateral conventions. By this means the Court helps not only to forestall the birth of new disputes, but also to contribute to the harmonious development of international law. One may notice, however, that States very rarely intervene on such a basis, and that in any event there is no obligation to intervene. Hence, the general purpose of uniformity in interpretation is only marginally enhanced by the device of Article 63. Second, and in consequence, intervention under Article 63 is facilitated by the fact that the legal interest the third State has to establish is inherent in its being a party to the multilateral convention concerned, so that there is no need to demonstrate it specially. Third, special intervention under Article 63 is as of right, paragraph 2 providing, in effect, that every State which is a party to the treaty ‘has the right to intervene’. In this context, therefore, intervention constitutes a subjective right of the third State. On the other hand, under Article 62, it is for the Court to decide whether it considers the legal interests claimed by the third State sufficient to justify intervention. Fourth, the interpretation in the Court’s judgment then becomes binding upon (opposable to) the third State, as provided in the same paragraph 2. Article 63, paragraph 2 in effect provides that the final judgment is binding on the third State not as a legal act per se, but as regards certain elements of it, namely the interpretation of the multilateral treaty or convention concerned. In all these respects, Article 63 provides for a more precisely codified mode of intervention than Article 62. The intervention is welcome and has binding effects within the special framework of Article 63. By contrast, intervention under Article 62 remains a relatively under-defined and rather uncertain matter. It is not difficult to see why the jurisprudence has been more fluid, and has developed in a less linear fashion, in relation to Article 62 than to Article 63. Extra-Statutory interventions? A further, if relatively peripheral, question is as follows. The Statute provides for two forms of intervention, under Article 62 and Article 63. We can call these ‘Statutory’ interventions. But can States intervene on extra-Statutory bases as well, that is, on bases not provided for in the Statute?2172 It is clear from the practices of systems of municipal law that a whole series of types of intervention can be conceived.2173 Can States, then, agree between themselves that as regards their particular case before the ICJ, third States, whether named or otherwise, are to enjoy an enlarged right of intervention, as intervention is possible on the part of States which are not from the outset concerned in a suit brought before it. The first of these forms of intervention is that dealt with in Article 62 of the Statute and Articles 58 and 59 of the Rules of Court [of 1922]; it is based on an interest of a legal nature advanced by the intervening party, and the Court should only admit such intervention if, its opinion, the existence of this interest is sufficiently demonstrated. On the other hand, when 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 and, should it make use of the right thus accorded, the construction given of the judgment of the Court will be equally binding upon it as upon the original applicant parties.’ See also the case on the Continental shelf (Tunisia v Libya), ICJ Reports 1981, 13 et seq. 2172   See especially Torres Bernardez, above n 2150, 248 et seq. 2173   See, eg WJ Habscheid, ‘Les conditions de l’intervention volontaire dans un procès civil. Etude de théorie générale de la procedure et de droit comparé en vue de l’interprétation de l’article 62 du Statut de la CJI, 1981’ in ICJ, Memorials. Oral arguments and Documents, case of the Continental shelf (Tunisia v Libya), vol III, 459 et seq. See also Davì, above n 2150, 115 et seq.



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specified in the agreement (by way of rights stipulated for in favour of a third party or an agreement that includes that third party)? It is clear that there is no direct effect here on the non-derogeability of the Statute. Indeed, the parties to a particular agreement of this kind are not derogating from Article 62 or Article 63, which are left unaltered and potentially applicable to the case. What they really do is to confer special supplemental powers upon the Court, and the legal basis for those powers is to be found not in the Statute but in the special agreement. That agreement falls to be applied by the Court under Article 38, paragraph 1(a) of the Statute, as a particular right applicable to the parties. Instead of a ‘derogation’, it is really a case of an ‘ad-rogation’; nothing is cut away, but something is added; instead of being negative, the ‘derogation’ is positive, which makes it no derogation at all in the true sense of the term. So far, no such agreement has been applicable before the Court. In fact, interventions, of whatever nature, have been fairly unusual even in the forms provided for in the Statute. The best legal answer to the question posed above is that the Court can give effect to such an agreement to the extent that it is compatible with the Statute and the Rules. In this connection, it should be remembered that an agreement between the parties is not binding on the Court, which is a third party to it: pacta tertios non vinculant. The Court can exercise its powers only on the basis of its Statute and Rules. However, it both has inherent powers and, in so far as concerns its procedures, enjoys significant autonomy (Article 30, § 1 of the Statute), so that, if it so wishes, it can take such special agreements into account, both as international law applicable between the parties, and as procedural proposals representing the wishes of the parties. There is no reason to reject such an agreement a priori – the Court would have to have a proper reason to do so. As already noted, to the extent (if any) that the Court considers such agreements compatible with the Statute and the Rules, it can give effect to them. When they are incompatible in part only, a question can arise whether that part can be severed from the remainder, under the criteria laid down in Article 44, paragraph 3 of the 1969 Vienna Convention on the Law of Treaties.2174 In particular, it is necessary that the remainder can still ‘work’ within the Court’s procedure as objectively laid down in the Statute and the Rules. Finally, it should be emphasised that if there came to be a multiplicity of such requests, it might be that the Court would think it right to refuse to accept any more, for fear of atomising its procedure into a kind of kaleidoscope of particular case-by-case situations. It would be incompatible with the Court’s judicial (that is, nonarbitral) function to allow it to be excessively formalised on a kind of à la carte basis, and there would be a serious danger of complicating its procedural law to the point where a major degree of legal uncertainty would arise; that would be particularly prejudicial as regards procedure. A second question about extra-Statutory intervention is this: to what extent can Article 62 be used as a basis for a third party to become an actual party to the proceedings? In such circumstances, it is not a ‘true intervention’ because it is more than incidental and not only the parties, but the object and purpose of the principal proceedings, are altered. Article 62 and Article 63 of the Statute, however, define ‘true’ forms of intervention, as incidental proceedings with the same unaltered parties and object. The importance of sovereignty and consensualism in the law of the Court have caused certain judges and commentators since 1920 to see intervention as a legal mechanism enabling third parties to become 2174   As to this provision, see M Bedjaoui and T Theidgens, ‘Article 44’ in O Corten and P Klein (eds), Les Conventions de Vienne sur le droit des traités, Commentaire Article par Article, vol II (Brussels, 2006) 1652 et seq.; ME Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden/Boston, 2009) 565–68.

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parties to the proceedings only if there is a sufficient jurisdictional link.2175 To allow a third State to intervene in the case without the consent of the principal parties has seemed to such commentators very difficult to reconcile with these principles. The Court itself has continued, until very recent times, to use the expression ‘intervention as a non-party’,2176 almost suggesting that there can be intervention ‘as a party’. A State might indeed contemplate inserting itself as a full party into a case between other parties, by invoking a valid jurisdictional link between itself and the principal parties, and grafting its request to intervene onto the pre-existing case, without starting a new one. That would be a case of intervention as a principal (and as a party), not an intervention on an accessory basis (as a non-party participant). It is not obvious that the Court would allow such an intervention on a non-accessory basis. Such an intervention is not a recognised mechanism under the Rules for introducing new cases. It would alter the substance of proceedings that were already afoot, without there being any provision for it in the texts. And it presupposes that the decision as to joinder of the proceedings would be taken, not by the Court, but by the intervening State.2177 Probably the Court would allow the intervention only if the intervener invoked a valid title of jurisdiction (a jurisdictional link), and either the principal parties accepted the enlargement of the case sought by the intervener2178 or at least the Court considered that the conditions for the joinder of cases under Rule 47 were materially satisfied. It is difficult to take a definitive position on this problem because it has yet to occur in the practical experience of the Court. Might this kind of intervention be considered to fall under Article 62 of the Statute, if the latter is given a wider interpretation? Views vary on this. Either one interprets Article 62 sufficiently widely to cover interventions both on a principal and on an accessory basis, given that the text governs only the latter and that the former could be covered only by analogy, as a case of direct ‘intervention’ without the ‘detour’ involved in starting a fresh set of proceedings; or one confines Article 62 to true interventions, that is, on an accessory basis, this reflecting the text and its purpose. The most legally correct way forward seems to be to limit the application of Article 62 (and Article 63) to accessory or true interventions.2179 That, however, would not necessarily make non-accessory intervention incompatible with the Statute, but it would then be an extra-Statutory mechanism. Its admissibility depends on a close reading of the Statute and the Rules in order to determine to what extent it is compatible with them. The only thing one can say here on that subject, is – as we have seen – that this compatibility does seem to be clearly established in cases where the principal parties do not object to the third State’s participation as a party, or if the Court considers the new case is of such a nature as to justify the joinder of the two sets of proceedings. This would be the position if, for example, the third State were seeking not to enlarge the subject of the dispute but to involve itself in such a way that the eventual judgment would be fully binding as between it and the other parties. Such circumstances are unlikely to arise in the near future. It is also possible, of course, for a third State that is in a position to rely on a valid title of jurisdiction to avoid all the pitfalls mentioned above by simply   See, eg Hudson, above n 2150, 421.   See, eg the case of the Land, lake and maritime boundary between Cameroon and Nigeria, ICJ Reports 2002, 421, § 238: ‘as a non-party intervener only’. 2177   Rule 47 clearly states that ‘The Court may . . .’; not that the parties in place of the Court may. . . . 2178   For some authors. such acceptance ad hoc is a necessity; the title of jurisdiction is insufficient: cf Thirlway, above n 2150, 46. 2179   Ibid, 46. 2175 2176



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bringing a fresh set of proceedings.2180 The Court can then, if appropriate, join the two cases.

b)  Intervention under Article 62 of the Statute Until now, requests for general intervention under Article 62 of the Statute have been relatively rare. They have usually occurred in the context of land and maritime boundary delimitation cases, especially maritime ones, in which the interweaving of legal interests is particularly marked as a result of overlapping geographical areas. No case of general intervention was allowed in the days of the PCIJ, and up to the present, the ICJ has allowed only three. In all, 10 requests have been made, in the following cases: the Wimbledon (1923),2181 the Nuclear tests cases (1973–74),2182 the Continental shelf (Tunisia v Libya, 1981),2183 the Continental shelf (Libya v Malta, 1984),2184 the Land, island and maritime frontier dispute (El Salvador v Honduras, 1990),2185 the case on the 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 case (New Zealand France, 1995),2186 the case of the Land and maritime boundary between Cameroon and Nigeria (1999),2187 the case on Sovereignty over Pulau Ligitan and Pulau Sipadan (2001),2188 the case on Territorial and Maritime Dispute (Nicaragua v Colombia, 2011)2189 and the case on Jurisdictional Immunites (Germany v Italy, 2011).2190 Only the requests of Nicaragua in 1990, Equatorial Guinea in 1999 and Greece in 2011 were allowed by the Court. In the other cases decided after the jurisprudential change of direction in 1990, the Court has either had to refuse jurisdiction, there being no further point in the incidental procedure (the 1995 case), or it has taken the view that the would-be intervener did not justify a sufficient legal interest for its request to be allowed (for example, the 2001 case). Until 1990, there had never been a case in which a request for general intervention was allowed. The Court’s old jurisprudence, which was not yet based on the legal aspects of true intervention as an incidental procedure, oscillated between opposing (and in truth senseless) requirements, which made intervention virtually impossible.2191 On the one hand, the Court refused to allow third parties to intervene if they were not prepared to stake their own rights and obligations, and wished only to raise general interests or to inform the Court of their views and positions (as in Continental shelf). The Court took the view that such interventions, giving third parties benefits but imposing on them no corresponding   Ibid, 38.   Poland’s request to intervene: PCIJ, Series A, no 1, 11 et seq. 2182   Fiji’s request to intervene: ICJ Reports 1973, 320 et seq., 324 et seq. and ICJ Reports 1974, 530 et seq., 535 et seq. 2183   Malta’s request to intervene: ICJ Reports 1981, 3 et seq. 2184   Italy’s request to intervene: ICJ Reports 1984, 3 et seq. 2185   Nicaragua’s request to intervene: ICJ Reports 1990, 3 et seq., 92 et seq. 2186   Request to intervene by Australia, the Solomon Islands, the Federated States of Micronesia, the Marshall Islands and the Samoan Islands: ICJ Reports 1995, 288 et seq., 306, § 67. 2187   Request to intervene by Equatorial Guinea: ICJ Reports 1999-II, 1029 et seq. 2188   Request to intervene by the Philippines: ICJ Reports 2001, 575 et seq. 2189   Press Communiqué s nos 2011/16 and 17. 2190   Greece requested to intervene in the case between Germany and Italy on Jursidictional immunities: Greek Application of 13 January 2011, F 3230/2/AS 25. The Court allowed the intervention by an Order of 4 July 2011. 2191   See Thirlway, above n 2150, 57; Chinkin, ‘Article 62’, above n 2150, 1348. 2180 2181

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burdens, could not be admitted. On the other hand, if the third party was willing to hazard its own rights and obligations and to be bound by the Court’s decision, the Court took the view that this would enlarge the scope of the case, and could not be allowed without the special ad hoc consent of the principal parties (Libya v Malta). These requirements thus left little room for interventions to be allowed. They were possible only by consent of the principal parties, and thus came closer to resembling intervention as a party (that is, as a principal), in which case they could not be considered interventions at all, in the true sense. It was only with the case of the Land, island and maritime frontier dispute (El Salvador v Honduras, 1990),2192 that the Court finally rejected these fundamentally erroneous interpretations and identified intervention as an accessory procedure. Since then, intervention has enjoyed a certain currency, albeit one that remains relatively restricted. Article 62 of the Statute provides for an important material condition, albeit one of a fairly vague nature (an ‘interest of a legal nature’) and a formal condition that is, by contrast, fairly precise (namely the requirement for an application) for a general intervention to be allowed. At the same time, the Article proclaims, at paragraph 2, that it is for the Court to decide. The relatively sketchy material condition, taken in conjunction with the Court’s power to decide in accordance with its own assessment, to some extent runs counter to Article 63 which provides that the third State has a right to intervene. This state of affairs has led to an element of uncertainty as to the scope of Article 62. Does the Court have any ‘discretion’ about allowing general intervention, whereas special intervention is an automatic right? Is there a conflict between the right to make a request which the Court has a wide latitude to decide, and a right to intervene that the Court must automatically give effect to? None of the elements in these equations are very solid. The Court neither has a discretionary power under Article 62, nor is constrained by an automatic application of Article 63 requests. In the context of Article 62, the absence of a discretionary power is apparent at two levels. First, the Court would not, motu proprio, raise the question about the interest of a legal nature and the manner in which the Court’s decision might affect that interest. The burden of proving these matters rests with the intervener. The existence of an interest of a legal nature is thus treated by the Court’s procedure as essentially a question of fact, not of law. The Chamber of the Court put the point as follows in the case on the Land, island and maritime frontier dispute (El Salvador v Honduras, 1990): ‘it is for the State seeking to intervene to show that its interests might be affected by a [decision]’.2193 Second, the Court itself rejected any idea that it had a discretionary power, which in any event sits ill with the functions of a court of justice. In the case of the Continental shelf (Tunisia v Libya), the Court said: The Court observes that under 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 any general discretion to accept or reject a request 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.2194   ICJ Reports 1990, 92 et seq.   ICJ Reports 1990, 123, § 74. At 118, § 61: ‘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.’ 2194   ICJ Reports 1981, 12, § 17. 2192 2193



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This means that legally, the Court has to assess whether a legal interest of the intervener might be sufficiently affected by the decision on the merits so that the intervention should be permitted. Such an assessment is a fairly open exercise, given that the Statute does not give any precise meanings to these expressions. However, the Court must do the job in the way that is most readily compatible with the economy of the Statute, subject to consistently applying the jurisprudential principles it develops. It is thus not a question of the Court’s having the right to accept or reject interventions according to its ‘good pleasure’. Intervention is, subject to certain conditions, a matter of right, that is, the right of the intervener, and not simply a privilege which the Court is somehow free either to confer or withhold.2195 The argument for maintaining on that issue a difference between Article 62 which does not say that the third State intervenes as of right, and Article 63 which does, cannot be accepted. One cannot argue that the draftsmen of the Statute would have defined the right to intervene in Article 62 in the same way they did in Article 63 if they had wished to confer such a right of intervention, then concluding that general intervention must be discretionary or quasi-discretionary. The travaux préparatoires show that there was a proposal to allow intervention under Article 62 solely if the Court ‘saw fit’ (that is, as a matter of discretion)2196 and that the proposal was turned down. The draftsmen thus clearly rejected the idea that the Court should have discretion. Although they did not go so far as to insert into Article 62 the words ‘each party shall have the right to intervene’ or some equivalent phrase, the reason they did not do so was simply because the conditions for general intervention remained highly uncertain in 1920, and because the ‘interest of a legal nature’ needed, in those circumstances, to be assessed by the Court. Not every such interest would suffice. There would have to be criteria for distinguishing the sufficient from the insufficient. This situation made it unwise to use the expression ‘right to intervene’ because it would have tended to minimise the Court’s role of assessing the matter and its capacity to develop such concepts through its jurisprudence. Today, it is possible to say that third States do enjoy a right to intervene under Article 62 of the Statute, subject, of course, to the fact that the right has to arise within the limits of an ‘interest of a legal nature’ as determined by the Court’s jurisprudence. There is no doubt, for example, that a State wishing to intervene in a legal situation equivalent to the one in El Salvador v Honduras (1990), in which the intervention was permitted, would be exercising a right that the Court could not deny. The fact that Rule 81 (referring to Article 62 of the Statute) uses the word ‘application’ (in French ‘requête’) and that Rule 82 (referring to Article 63 of the Statute) uses the expression ‘right’ (‘droit’) does not invalidate what has been said above. These expressions again reflect the greater margin of appreciation enjoyed by the Court as regards the question of a sufficient interest of a legal nature. This greater margin was to diminish over time, as a more developed body of jurisprudence laid down what was required for a sufficient legal interest to exist. In parallel with these developments, the ‘right’ of intervention under Article 62 was to be gradually consolidated.

2195   Contra, GG Fitzmaurice, ‘The Law and Procedure of the ICJ (1951‑1954): Questions of Jurisdiction, Competence and Procedure’ in BYIL, vol 34 (1958) 127. For Chinkin, ‘Article 62’, above n 2150, 1335, it remains unclear whether the Court must allow the intervention if the conditions are satisfied, or whether it possesses a discretionary power to refuse to allow it. 2196   PCIJ, Consultative Committee of Jurists, Procès-verbaux of the meetings of the Committee, 16 June 24 July 1920 (The Hague, 1920) 593.

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Conditions for an intervention. The key question for bringing Article 62 into play is to determine the ‘interest of a legal nature’ which must exist before the third State can intervene.2197 The fact that Article 62, paragraph 1 is drafted in subjective terms, the third State having simply to ‘consider that’ an interest of a legal nature belonging to it, may be affected, has no impact on the substance of the matter. The subjective formulation is the result of the fact that the Statute is dealing here with a third State’s application. The third State can make the application only if it considers that it has interests of a legal nature that are in issue; otherwise its application would have no point at all. In addition, one is likely to be at a relatively early stage in the principal proceedings, so that the issues may as yet be only partially crystallised, and the manner in which the Court will decide the case may not yet be known. At this point, then, it is enough for the intervener to consider that its legally protected interests might be affected. According to the terms of Article 62, the intervention is engrafted upon a ‘dispute’ (French version, ‘différend’) or a case. Intervention is, in truth, an incidental procedure engrafted onto a case of which the Court is already seised; it is not engrafted onto the actual dispute underlying the case. Until now, the Court’s jurisprudence has not indicated with any sufficient precision the nature of the ‘interest of a legal nature’ that is required. The text of the Statute, however, enables one to draw the following conclusions. 1) In the first place, the interest must be legal, or of a legal nature, which is in truth the same thing. The word ‘legal’ excludes interventions for reasons other than the legal consequences of the Court’s judgment for the intervener, thus excluding, for example, interventions for political, sociological, economic or factual reasons. Such ‘interests’, which are both numerous and varied, do not justify participation in the principal case. The rule seems sound. Proceedings before the Court follow legal rules, and the Court’s decisions are legal in nature. So third parties must not be allowed to intervene unless they too are operating, right from the outset, on the legal plane. There is, moreover, nothing to stop a third State with relevant economic or political interests from making its position known to the Court via whatever channels it considers most appropriate. But in any event, such interests do not merit or justify the State’s intervening as a participant in the proceedings. However, once such extra-legal interests are combined with at least one legal one, intervention becomes a possibility. It is no way necessary for the interests in question to be exclusively legal ones. The legal system does not exist in a weightless vacuum, but on the contrary operates on situations of political, economic, social and other kinds. 2) Second, the expression ‘interest of a legal nature’ goes beyond legal rights (‘subjective rights’). It is therefore not necessary for the would-be intervener to claim the existence of what are strictly to be defined as ‘rights’, whether of rights belonging to it or of rights that are legally protected in the sense of ‘do . . .’, ‘don’t . . .’ or ‘allow . . .’ – in the sense of a facere, an omittere or a pati, or indeed of a facultas or an obligatio agendi. There are, indeed, a whole series of other legally relevant interests: for example, claims as to the existence of a right, public potestates (for example, the right to legislate), official functions (‘duty-rights’ of collective interest), statutes or legal situations (for example, in municipal law, married as opposed to celibate status), legal possibilities or faculties (for example, the abstract possibility of acquiring rights), legal expectations (for example, 2197   See among others, Torres Bernardez, above n 2150, 286 et seq.; Thirlway, above n 2150, 53 et seq.; Chinkin, ‘Article 62’, above n 2150, 1346 et seq.; Fritzemeyer, above n 2150, 112 et seq.



INTERVENTION BY THIRD STATES 707

the right under internal law to receive an inheritance), and so on. International law on procedural intervention has not yet reached the point of differentiating, as municipal law does, between all these facets of legal phenomena. It is, nevertheless, certainly the case that the Statute allows for such differentiation through its thoroughly generic expression ‘interest of a legal nature’. Moreover, it is the legal interests of the intervening State that must be in issue, not those of some other State. Otherwise, the intervener would not have the right to intervene. However, the intervener’s rights can be ones that flow from the interdependence between its own legal situation and those of other States. This could happen if, for example, the two States in the cause were connected by treaty, or because the exercise by the intervening State of a right or a faculty was legally influenced by the legal situation of another State. In this field, there is considerable scope for new thinking and reflection. Until now, the Court’s jurisprudence has shed little light on these questions. 3) Third, the legal interest in issue does not need be direct (it can be indirect), substantial (though it must be sufficient), or specific (it can be general). It must, however, be current and cannot be exclusively hypothetical or future; and it must be concrete (directly affecting the intervening State). The balance is a complex one. The Court also requires that the application should be sufficiently precise and circumscribed for the Court to be able to decide on it: an excessively vague application will be rejected. In the case of the Land, island and maritime frontier dispute (El Salvador v Honduras, 1990), the Court considered the question whether the Nicaraguan application was sufficiently precise. It took the view that, as regards certain geographical areas, it was.2198 One must conclude, a contrario, that the Court would reject in limine litis any insufficiently precise application, as it did in respect of certain aspects of that case. Would-be intervening States are, therefore, well advised to include in their applications all the relevant material available to them as to the interest of a legal nature that they are seeking to protect. 4) Can the legal interest of the third State be the very subject of the dispute, in the sense that it must be decided first, before the Court will be in a position to decide the dispute between the principal parties (the Monetary gold principle)? The question that immediately arises is whether the intervention – and thus the agreement of the third State to participate in the proceedings – clears away this obstacle to the pursuit of the principal claim. That is certainly the position as regards intervention as a principal. By becoming a party to the case, the third State ceases to be a third party, so that the question ceases to arise, cadit quaestio. The problem is more difficult, however, in cases of true intervention, that is, of intervention on an accessory basis. Here, the intervening State becomes a participant but not a party, and the Court’s judgment will not be binding upon it as it will on the parties. Nevertheless, as regards procedure, this State is no longer truly a ‘third’. The most rational view is that the answer to the question depends on the intervener’s wishes. If it participates in the case without opposing its continuance, even when its own interests are the very subject matter of the original issue, the Court can decide the main dispute; but if, on the other hand, its participation is with a view to arguing that the Court should not take cognisance of the dispute, because it touches essentially, and as a prior matter, on the intervener’s rights, the Court will be 2198   ICJ Reports 1990, 112, § 45. As to certain aspects, the Court thought, however, that the alleged interest was too vague: ibid, 124, § 76.

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obliged, if it accepts that argument, to decline to decide the substantive issues in question. However, there remains the problem that, in principle, an intervention must not be used to raise ‘Preliminary Objections’ to the main proceedings, and that here the attitude of the third State is not dissimilar to that of an ordinary party raising Preliminary Objections. An alternative response, legally less attractive and effectively challenging the real wish of the intervening State would be to say that any participation as an intervener automatically eliminates the Monetary gold obstacle, whatever the intervener’s concrete objective. The result would be that a third State ought never to participate in the case if it does not want to lose the protection of the Monetary gold principle. The conception that an intervention whose objective is not to oppose the Court’s deciding the principal issues sweeps away the obstacle posed by want of the third party’s consent, seems implicit in the Court’s reasoning in the Monetary gold case (1954). The Court focused on the parties’ argument that Albania might have participated in the case as an intervener.2199 That presupposed that such participation would have enabled the Court to decide the dispute. The Court recognised that Albania had in effect chosen not to intervene. It did not express disapproval of the argument that, had Albania intervened, the Court might have exercised its jurisdiction. In the case of the Land, island and maritime frontier dispute (El Salvador v Honduras, 1990), Nicaragua argued that the dispute could not be decided by the Chamber unless the latter accepted its intervention, given that, in its view, the very subject matter of the case concerned Nicaragua’s own rights. This argument again rested on the idea that intervention eliminated the Monetary gold problem. The Chamber, however, rejected the underlying Nicaraguan argument, taking the view that Nicaragua clearly had a legal interest in the case, but that the interest was not the ‘very subject-matter’ of the dispute. The Chamber also allowed that, if Nicaragua’s legal interests had truly been the ‘very object’ it would have been able to intervene in any event, since a legal interest falling within in that category a fortiori falls within the provisions of Article 62.2200 5) Fifth, the legal interest has to be ‘sufficient’ to justify the intervention. Since the available texts shed little light on this question, the best available source is the Court’s own jurisprudence. Analysis of the Court’s practice does show, however, that the concept has yet to be worked through and defined in an adequate way. The jurisprudence will need to be better developed before one will be able to form a very exact idea of what is and what is not, ‘sufficient’ for these purposes. Here then, as in related areas, the concept of general intervention is still to be seen as a work in progress. The Court’s jurisprudence does, however, already show that not every interest of a legal nature will be sufficient to permit participation. Otherwise the Court would have to allow all the applications for general intervention made in the years since 1990. (a) Under Article 62, paragraph 1 an interest of a legal nature must be one ‘which may be affected’, meaning an effect concerning the intervening State. In principle, therefore, the interest needs to concern the intervening State’s own interests. The intervener cannot use the intervention to protect the interests of some other State or party. It would be different if the intervener were acting as the representative of another State or party, for example, under a treaty between the intervener and   ICJ Reports 1954, 32.   ICJ Reports 1990, 114 et seq., §§ 52 et seq.

2199 2200



INTERVENTION BY THIRD STATES 709

some other State. There will also be cases in which the interests of the intervener and some other State will be connected by treaty. The intervener will argue in its own interests, resulting from the treaty, even though they are shared by another State. It has been said that a State cannot, by intervention, seek to defend de lege lata an erga omnes interest, bringing a kind of actio popularis.2201 However, in relation to the collective obligations of members of the international community, each State is considered to have a legal interest in seeing to it that such erga omnes norms are complied with. An interest of a legal nature therefore also exists for the intervening State. If it wants to intervene as a principal, then it must produce a title of jurisdiction; if all it wants is to intervene on an accessory basis, however, a legal interest suffices, and it has one. (b) The jurisprudence shows the Court’s judicial policy until now to have been fairly demanding and restrictive as regards the necessary interest. It is regrettable that, in this way, the Court has greatly restricted the effects of the fairly generous wording of the Statute. Intervention has been allowed in the case of a condominium (community of interest over a space):2202 it is obviously difficult to argue that the legal interests of a joint owner are not affected by a decision as between other joint owners! A sufficient legal interest was also held to exist in a maritime delimitation case: because of the concave geography of the Gulf of Guinea coastline, the rights of a third State were susceptible of being affected, to the point where the Court concluded it might be prevented from deciding on the delimitation beyond a certain point in the absence of Equatorial Guinea (the Monetary gold principle). When Equatorial Guinea asked to intervene, its application was welcomed.2203 Finally, the Court considered that when judgments of a municipal tribunal of the intervener stand to be interpreted and considered in the principal proceedings, and where nationals of the intervening State have an direct interest in the recognition or not of the exequatur for these judgments in the municipal legal system of one of the parties to the proceedings, the legal interest has been established and must be deemed sufficient (Jurisdictional Immunites case). The three interventions so far allowed thus related to a condominium case; to a case in which the third party interests were part of the ‘very subject-matter’ of the dispute; and to a case where the fate of judgements of the municipal tribunals of the intervener was at stake. At bottom, this line of jurisprudence often demands more than just an ‘interest of a legal nature’. It requires either the existence of a joint right, or of a right in respect of which a decision is a necessary preliminary to the resolution of the principal dispute. Only in the Jurisdictional Immunities case the Court was prepared to go somewhat further in the direction of a simple ‘legal interest’. These strict requirements were comprehensible when true intervention was not clearly distinguished from intervention as a principal, and when it was a matter of restricting interventions in order to protect the sovereign rights of the principal parties. The requirements are no longer so readily justified in more modern conditions, in relation to what is now classified as accessory intervention, given the Court’s acceptance that it is not inappropriate for an intervention to be motivated by the wish to ‘inform’ the judges of the nature of the third State’s   Fritzemeyer, above n 2150, 117.   Land, island and maritime frontier dispute (El Salvador v Honduras), ICJ Reports 1990, 121, § 72. 2203   Land, lake and maritime boundary dispute (Cameroon v Nigeria), ICJ Reports 1999-II, 1030 et seq. 2201 2202

710  CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES

rights.2204 It seems that the Court is anxious about the potential for disturbing and delaying the time schedule of the principal proceedings if it were to accept too readily third-party intervention. The Court’s restrictive attitude can equally be gauged from the negative perspective of interventions it has refused to allow since 1990, that year having been a turning point as regards intervention on an accessory basis.2205 In the case of the Land, island and maritime frontier dispute El Salvador v Honduras, 1990),2206 the Chamber, continuing the jurisprudence of the Continental shelf case (Tunisia v Libya, 1981),2207 held that Nicaragua did not have a legal interest, affected by the decision, in the delimitation of the waters of the Gulf of Fonseca, even though Nicaragua was a direct coastal State (except as regarded the status of the waters as a condominium); it also held that Nicaragua did not have an interest of a legal nature in the application of the rules of general international law to the delimitation of those waters and of the waters beyond the Gulf and to seaward.2208 In disagreement with the Court’s decision, it has been argued that if States have an established legal interest under a multilateral treaty to which they are parties (Article 63), then they must also have an interest in the manner in which the general rules of international law are interpreted and applied, particularly in situations that directly concern them.2209 The response to this has been to argue that if that were so, it would be difficult to conceive of any case in which third States could not intervene. Is there, then, a valid reason for not allowing third States to inform the Court of arguments relating to interpretation and to the facts that seem to them to be of importance in relation to the Court’s dealing with a question in respect of which they do possess interests of a legal nature? Did the draftsmen of the Statute intend to exclude such third State participation for the purpose of encouraging the proper application of international law? If such an intervention is allowed, the case is not slowed down to any significant degree, since the Court could receive only the materials delivered to it in writing. Also, the Court remains free to disregard inadmissible or irrelevant material.2210 Quite apart from that, can it really be said that Nicaragua did not have a sufficient legal interest in the principles and rules of delimitation applicable in a condominium area, which were bound to have a direct effect on its own maritime boundaries with the coastal States of the region? Subsequently, in the case on Sovereignty over Pulau Ligitan and Pulau Sipadan (2001), with only Judge Oda voting against, the Court decided that an ‘interest of a 2204   Land, island and maritime frontier dispute (El Salvador v Honduras), ICJ Reports 1990, 130, § 90; Land, lake and maritime boundary dispute (Cameroon v Nigeria), ICJ Reports 1999-II, 1034, § 14; Sovereignty over Pulau Ligitan and Pulau Sipadan, ICJ Reports 2001, 606, § 88. 2205   The oldest jurisprudence will not be cited here, since its influence is very limited. It was in 1990, in the Judgment in El Salvador v Honduras, that the Court (through a Chamber) freed intervention on an accessory basis from the limbo in which it had previously languished. The subsequent jurisprudence is thus not directly comparable with what went before. 2206   ICJ Reports 1990, 123 et seq., §§ 74 et seq. 2207   ICJ Reports 1981, 19, § 33. 2208   ICJ Reports 1990, 124, § 76 and 126, § 82. 2209   See Thirlway, above n 2150, 59. 2210   It is true that the opposing party would have to study these additional documents and if necessary to respond to them. However, it should be emphasised that third States have not, so far, shown a propensity to intervene except when serious problems might ensue. Also, it would suffice for the Court to limit the intervention to the interpretation of general international law, in cases where the third States are more directly affected by the interpretation of the norms in question than the generality of States of the international community.



INTERVENTION BY THIRD STATES 711

legal nature’ consisting of the power to influence the reasoning or interpretation of the Court, which might have consequences for another dispute of the same type, was insufficient to justify intervention.2211 Here, it was possible to reach the view that the interest in question was insufficiently concrete or current; one could also say that it did not bear directly on the subject of the principal dispute and was thus not purely accessory in nature. In Judge Oda’s view,2212 the Philippines’ claim to North Borneo (very close to the two disputed islands) did, in any event, bring into play a legal interest sufficiently relevant that the Philippines could pursue at least one of the recognised objects of intervention, namely to inform the Court about their position and arguments. The necessary legal interest appeared to exist because the arguments on State succession and on certain other titles invoked by the principal parties, were also relevant to the situation of North Borneo. The only matter in doubt was the extent to which the Filipino interest was affected, or might be affected, by the present decision of the Court. To sum up, the Court’s jurisprudence takes its inspiration, at least for the time being, from a fear of opening up cases to excessively wide-ranging interventions, thereby complicating, and slowing down, procedures that are already quite complicated enough. The legal interests at issue, and the degree to which they are affected, or may be affected, have to be particularly intense before the Court allows the intervention. Until now, it has allowed mainly cases of joint rights in which the legal interest forms the ‘very subject-matter’ of the principal dispute (or at least its quasi subject matter), under the Monetary gold principle. Thus there is some prolongation of the old tradition that thought more in terms of intervention as a principal, than of accessory intervention, as to which the Court is particularly sensitive to the danger of upsetting the balance between the parties by allowing a third State to enter the lists. On the other hand, once intervention is perceived as a procedure which is both purely incidental and accessory, and once it is accepted that there can be an intervention for the simple purpose of informing the Court, there ceases to be any comprehensible reason for the Court to be so slow to allow it. The catchphrase ought surely to be this, that the more the intervener wants to participate as a full party, the greater the legal interest needed to justify it; and, vice versa, the more willing the intervener is to be given only an accessory role, the slenderer the legal interest needed to justify its intervention. It would, therefore, be necessary for the Court to develop tests for various kinds of interests of a legal nature, as a function of the precise objects of, and modalities for, intervention. Since the objects and modalities vary, the tests applicable to legal interests must vary with them. The idea that there can be a single test of universal application seems unduly restrictive and consequently mistaken, as a matter of legal analysis. 6) Sixth, the ‘sufficient’ legal interest must be capable of being affected by the dispute of which the Court is already seised, and, in particular, by the judgment the Court may ultimately deliver on the merits. This is not one of the easier criteria to refine. It is a fairly general requirement. In the end, it is either satisfied, or fails to be satisfied, by the gradually emerging tangle of particular facts and circumstances. The following considerations apply. 2211   ICJ Reports 2001, 595 et seq., §§ 44 et seq. and particularly 604, § 83: ‘The wish of a State to forestall interpretations by the Court that might be inconsistent with responses it might wish to make, in another claim, to instruments that are not themselves sources of the title it claims, is simply too remote for purposes of Article 62.’ 2212   Ibid, 618 et seq.

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(a) It is clearly the case that the legal interest does not have to be actually affected, provided that it might be affected (‘Should a State consider that it has an interest of a legal nature which may be affected . . .’). At the time of the application to intervene, it is often impossible to say with any certainty whether the Court’s judgment will affect the intervener’s legal interests. That depends on the as-yet-undelivered judgment on the merits, whether the Court accepts or rejects certain arguments, on the shape of the Court’s own reasoning and so on – in other words, on a number of factors which, at the start of the procedure, are still variables. It is, therefore, enough if the effects are possible (the ‘possibility test’). (b) The legal interest of the intervener may be affected not only by the operative parts of the judgment, but also by the essential reasons supporting them. The Frenchlanguage text of Article 62, paragraph 1 is more widely worded than the English in this regard. It simply says that the interest must be in issue (en cause) in the case, whereas the English text refers to an interest which ‘may be affected by the decision’ of the Court. In the case on Sovereignty over Pulau Ligitan and Pulau Sipadan (2001), the Court threw light on this aspect: Given that a broader reading is the one that 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 dispositive alone of a judgment. It may also relate to the reasons which constitute the necessary steps to the dispositif.2213

Does this mean that the interest can consist of the positioning of legal principles and rules within the Court’s reasoning? Or that the requirement as regards affecting the interests of the intervener would not then be fulfilled? So long as the Court refuses to treat an intervener’s legal interest in the interpretation and application of general international law as sufficient to justify intervention (see above), the necessary consequence will be that the Court will be equally unable to consider that its reasoning on the international norm ‘affects’ the would-be intervener. If the Court were to reverse its jurisprudence on the first point, one must suppose that the condition as to ‘effects’ would also be modified. In that case, the Court would recognise these aspects of general international law as having an erga omnes character in the narrow sense of that term (independently of what are technically called erga omnes obligations),2214 because every State has an interest in the legal interpretation of the norms that are binding upon it. As has already been suggested, the Court could, in this respect, develop some restrictive criteria if it feared that the number of States seeking to intervene would be too numerous and would slow down proceedings. The Court could, for example, require some connection to be shown between the would-be intervener and the interpretation and application of the relevant norm of general international law, going beyond the ordinary interest of any State in the interpretation and application of that norm. (c) The argument that the third State’s legal interest cannot be legally affected since the Court’s judgment has only a relative impact on it and is not binding on it in law   ICJ Reports 2001, 596, § 47.   See H Thierry, ‘L’évolution du droit international, Cours général de droit international public’ CCHAIL, vol 222, 1990-III, 48 et seq. 2213 2214



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(Article 59 of the Statute) does not truly hold water.2215 The Court clarifies and develops international law with a degree of authority unrivalled by any other international court or tribunal. States pay close attention to the Court’s legal reasoning, which normally has a good chance of being followed as an exposition of positive international law. However much such precedents are technically seen as only de facto effects of the Court’s judgments and not as legally imperative ones, the fact remains that they do have powerful effects that are directly connected with the application of the law and consequently affect States’ legal interests. On this basis, the third State possesses an ‘interest of a legal nature’ whenever the Court’s reasoning is directly bound up with a legal situation which is a concern of that State and is connected to the subject of the principal proceedings. It should be noted, incidentally, that the contrary interpretation would deprive Article 62 of all practical effect. If Article 59 already ensured that the interests of third States could never be impacted by relevant effects of the Court’s decision, there would be no remaining scope for the application of Article 62: it would be a dead letter. It is not to be supposed that the draftsmen of the Statute could have intended such an absurd result. The object of Article 59 is exclusively to ensure that third States are legally protected against the executory effects of the decision; the object of Article 62, by contrast, is to enable third States to put their views the Court, so that it is possessed of all the documents relevant to the particular legal situation it is examining.2216 Judge Jennings commented, with great justification and clarity, on this problem of the relationship between Articles 59 and 62, in the following words: But the slightest acquaintance with the jurisprudence of this Court shows that Article 59 does by no manner of means exclude the force of persuasive precedent. So the idea that Article 59 is protective of third States’ interests in this sense at least is illusory;2217

and subsequently: [T]he judgment will be with a view to a bilateral boundary agreement between Libya and Malta. If the result is an agreement which trespasses upon Italian continental shelf, yet is apparently backed by the powerful sanction of the Court’s judgment, does the Court really believe that Italy will find an adequate remedy in reciting the words of Article 59?2218

and as to the useful effects argument: [T]he complete answer to the argument that Italy is sufficiently protected by Article 59 is simply that Article 62 is just as much part of the Court’s Statute as Article 59 . . . [which] provides that a third State’s rights can never be affected by a judgment, [and] this must mean that a third State’s rights can never be affected in the sense of Article 62. To interpret one Article of the Statute in such a way as to deprive another Article in the same section of the Statute of all meaning, cannot be right.2219 2215   See on this question, Chinkin, ‘Article 62’, above n 2150, 1363–64; Thirlway, above n 2150, 48 et seq. See the Dissenting Opinion of Judge Jennings, in the case of the Continental shelf (Libya v Malta), ICJ Reports 1984, 157 et seq.; and the Dissenting Opinion of Judge Oda, ibid, 102 et seq. 2216   See the Dissenting Opinion of Judge Sette-Camara, case of the Continental shelf (Libya v Malta), ICJ Reports 1984, 87, § 81; see also, Thirlway, above n 2150, 52. 2217   ICJ Reports 1984, 157, § 27. 2218   Ibid, 158, § 29. 2219   Ibid, 159–60, § 34. See also the Dissenting Opinion of Judge Schwebel, ibid, 134, §§ 9–10; and the Dissenting Opinion of Judge Sette-Camara, ibid, 87, § 81.

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The effect of the Court’s judgments as precedents, as distinct from their executory effects, is still an interest of a legal nature (and is not only a factual matter), and as such can be a sufficient basis for intervention. Such a judgment can indeed ‘affect’ the intervener’s legal interests. The Court has now recognised this, saying that Article 59, taken alone, does not give adequate protection for example, to condominium interests2220 or to the delimitation of maritime areas where there are several interested coastal States.2221 (d) If the principal parties admit that the legal interests of the third State are affected, so that there is a kind of agreement between the parties and the would-be intervener that the latter ought to be allowed to participate in the proceedings, the Court should go against that agreement only in exceptional circumstances.2222 Certainly, the Court retains the mastery over the application of its Statute and of the conditions of that application. An agreement between parties cannot be allowed to encroach on the Court’s power freely to assess legal situations for itself, in order to judge how they relate to the norms of the Statute. That is generally accepted to be an inherent power of the Court, and this is specifically indicated, in relation to the Court’s jurisdiction, by Article 36, paragraph 6 of the Statute. At the same time, if the Court had no objective reason to go against the agreed wishes of the parties, it would have to accept them, since a negative attitude on the Court’s part would do nothing for the peaceful settlement of disputes. So, in the case on the Land and maritime boundary (Cameroon v Nigeria, 1999), the Court took note of an agreement between the principal parties that an intervention by Equatorial Guinea should be allowed.2223 This enabled it to deal more briefly with the legal requirements for allowing the intervention. A question could also have arisen as to whether acquiescence or estoppel might have made it unnecessary for the intervener to show that certain conditions for intervention were satisfied. In the case on the Land, island and maritime frontier dispute (El Salvador v Honduras, 1990), Nicaragua made the subsidiary point that there was no need for it to prove the existence of the legal interest required under Article 62, given that El Salvador and Honduras had made assertions equivalent to recognition that Nicaragua had such interests, so that they were thereby prevented from disputing the point, on the basis of something equivalent to an equitable estoppel.2224 In light of the facts of the case, the Chamber of the Court rejected this argument, taking the view that the conditions for an estoppel had not been satisfied.2225 It might therefore seem that the Chamber was implicitly accepting the principle of the applicability of the estoppel concept in this context, even though they did not think an estoppel had been made out in the present case. That attitude, however, can be justified only in those particular cases where the third State obviously does have an interest of a legal nature. It seems to have little to recommend it when considered from a more general point of view. Estoppel fixes the applicable law only as regards the legal relationship of the parties. It cannot determine whether a situation conforms to the   Case of the Land, island and maritime dispute (El Salvador v Honduras), ICJ Reports 1990, 122, § 73.   Case of the Land and maritime boundary dispute (Cameroon v Nigeria), ICJ Reports 2002, 421, § 238. 2222   Thirlway, above n 2150, 67. 2223   ICJ Reports 1999-II, 1034, § 12. 2224   ICJ Reports 1990, 118, § 63. 2225   Ibid, 118–19, § 63. 2220 2221



INTERVENTION BY THIRD STATES 715

objective requirements of the Statute, of which the Court is the sole guardian. In short, the Court should not disturb the agreement of the parties if it is solidly established, unless it is plain that the requirements of Article 62 are not unsatisfied. The same goes for an estoppel if it clearly has arisen. However, in both cases, agreement and estoppel (or any other similar argument, such as normative acquiescence2226), one might easily slide into a form of extra-statutory intervention rather than remaining within the type of intervention contemplated by Article 62. In relation to that Article, it is for the Court to satisfy itself that the conditions laid down in the Article are satisfied. On the other hand, the Court might be more flexible about admitting extra-statutory interventions, provided they are not actually contrary to the Statute. 7) Seventh, the object of an accessory intervention by virtue of Article 62 must be connected to the subject of the principal claim.2227 Only thus will the intervention remain an incidental procedure engrafted onto the principal proceedings. That, moreover, is the reason why Article 81, paragraph 2(b) of the Rules requires that the intervener specify in its application the ‘precise object of the intervention’. This requirement of a connection was emphasised in the Haya de la Torre case (1951): [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.2228

The Court then examined the question whether Cuba’s request as regards intervention (ex Article 63) did indeed concern the interpretation of the Havana Convention of 1928 on right of asylum.2229 The Court returned to this a little more indirectly in the case on the Sovereignty over Pulau Ligitan and Pulau Sipadan (2001).2230 It insisted on the fact that the Philippines, seeking to intervene, ‘may not introduce a new case’ and must, on the contrary, show how their own claims to sovereignty over relevant areas (the interest of a legal nature) might be affected by the Court’s reasoning when it came to give judgment in the case.2231 The Court concluded that the Philippines had not succeeded in showing such a linkage of effect.2232 In substance, the object of the Filipino intervention tended to enlarge the dispute into other geographical areas not directly linked to the object of the principal claim, without sufficiently establishing a connection to the object of the principal claim. Requests to intervene can be rejected because of an insufficient legal interest; but another reason for rejection can be an insufficient connection to the subject matter of the principal dispute. Sometimes the sufficiency of the connections is assessed by means of a direct comparison of the two subject matters (as in the Haya de la Torre case) and sometimes it is more by reference to the criterion of how and to what extent interests are affected (as in the Pulau case).   As to this notion, see R Kolb, La bonne foi en droit international public (Paris, 2000) 339 et seq.   The object of intervention as a principal must likewise be connected to the object of the principal claims. This is similar to the position regarding counterclaims. Absent such a connection, the third State must start a new case and cannot ‘intervene’ in, and enlarge the scope of, a case that has already begun. The most that can be accepted are limited extensions directly connected with the principal claims. This is so because intervention, whether on a principal or accessory basis, is always an incidental procedure, not an autonomous one. 2228   ICJ Reports 1951, 76. 2229   Ibid, 77. 2230   ICJ Reports 2001, 596 et seq., §§ 48 et seq. 2231   Ibid, 598, § 60. 2232   Ibid, 603, § 82. 2226 2227

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Object of the intervention. Article 62 of the Statute does not specify the object of an intervention, or in other words does not state what objectives justify a third State’s intervention in a case brought to the Court by other States. The identification of the intervention’s object on the one hand makes it possible to better identify the relationship between the positions of the principal parties and the intervener (can the latter make common cause with a principal party?) and, on the other hand, makes it easier to distinguish between intervention on a principal and on an accessory basis. It was in an endeavour to reach a progressive clarification of the bases of intervention that Article 81, paragraph 2(b) of the 1978 Rules introduced the requirement that the would-be intervener must state the ‘precise object of the intervention’. The Court has taken this a step further, saying that, in applying that Rule, it ‘is bound to consider . . . the object of the Application and the way in which that object corresponds to what is contemplated by the Statute’.2233 The Court will first examine whether the object is indicated with sufficient clarity as required by the Rules (‘the precise object’). It will refuse objects that are too vague but will take into account the fact that the would-be intervener is not in possession of all the documentation, and that it can be difficult for it, given the stage the case has reached so far, to have any complete picture of the rights and interests that might be affected by the Court’s decision. If the object is not stated with sufficient precision, the request may be rejected in limine litis. Such rejection is not a total bar, however, since the third State can try again, with a further request, within the time limits laid down in Rule 81, paragraph 1. That Rule provides that even a late application can, in exceptional circumstances be allowed, and perhaps the reformulation of an initially inadequate request might be considered to be such a circumstance. Until now, the Court has been able to consider a particular request to lack to some degree the necessary precision with regard to the object of the intervention, but without deciding that the request was inadmissible.2234 The Court’s jurisprudence shows that there are essentially two acceptable objects for a general intervention. First, the object of preserving, protecting and safeguarding legal rights or interests (in a broader sense than just protecting the third State from any executory effect of the decision, which in any event is already excluded by Article 59 of the Statute); second, the object of informing the Court of the nature and scope of the legal rights or interests of the third State. Both these objects have been accepted by the Court.2235 In negative terms, an intervention must not be ‘to appreciate more fully the indispensable role of the Honourable Court in comprehensive conflict prevention’ a vague formula used by the Philippines in the Pulau case, and one which provides no clue as to the connection with the intervention. The Court rightly rejected ‘the relevance [of this object] under the Statute and Rules’.2236 Next, the intervention’s object must not be the exercise of a right as principal, for example to request the revision of a decision.2237 Quite apart from the fact that the revision of a judgment can be sought only by a party to a case, and not by an intervener on an accessory basis, such an application lacks the necessary connection between the object of the principal proceedings and the object put forward by the would-be inter  Land, island and maritime frontier dispute (El Salvador v Honduras), ICJ Reports 1990, 128, § 85.   See, eg the case on Land, island and maritime frontier dispute (El Salvador v Honduras), ICJ Reports 1990, 112, § 45. 2235   See the Land, island and maritime frontier dispute (El Salvador v Honduras), ICJ Reports 1990, 128 et seq., §§ 86 et seq.; the Land and maritime boundary dispute (Cameroon v Nigeria), ICJ Reports 1999-II, 1032 et seq., §§ 4 et seq.; Sovereignty over Pulau Ligitan and Pulau Sipadan, ICJ Reports 2001, 604 et seq., §§ 84 et seq. 2236   Sovereignty over Pulau Ligitan and Pulau Sipadan, ICJ Reports 2001, 606, § 90. 2237   Haya de la Torre case, ICJ Reports 1951, 76–77. 2233 2234



INTERVENTION BY THIRD STATES 717

vener. The same would go for the possible raising of Preliminary Objections.2238 The right to raise them is reserved to the principal parties alone. Assuredly, an intervener can ask to be allowed to present its own arguments on a preliminary objection raised by one of the principal parties, although, at this stage of the proceedings, it may well find it difficult to demonstrate an effect on a legal interest.2239 But it is not permissible for a third State to try to involve itself in the principal proceedings as if it were a party. It will be otherwise only if the intervener is seeking to persuade the Court that it must not exercise its jurisdiction because of the Monetary gold principle. If the intervener confines itself to presenting, like a preliminary objection, arguments in that sense, the Court cannot take the view that this is an object that does not comply with the Rules. That is because the third State is not, in this situation, unjustifiably claiming a right that is the preserve of the principal parties. Rather, it is claiming a right of its own, namely the right not to be made, without its consent, the subject of proceedings in which its own rights will lie at the heart of the judicial debate. An intervener need not necessarily rely on legal interests that are exclusive to it. It can seek to intervene in favour of a principal party, and to present arguments tending to reinforce that party’s legal position. That is what happened in the Wimbledon case (1923),2240 in which Poland asked to intervene (finally under Article 63) in order to advance arguments supporting the cases of the four principal parties jointly proceeding against Germany. It happened again when Fiji endeavoured to intervene in support of Australia and New Zealand in the Nuclear tests cases (1973);2241 and again when El Salvador sought to intervene (under Article 63) in the Nicaragua case (1984), to argue, in support of the USA, that the Court had no jurisdiction, and that the case was inadmissible;2242 it also happened in relation to Greece’s intervention in the Jurisdictional immunities case (2012).2243 If a jurisdictional title exists, there is nothing to stop the intervener making common cause with a principal party to itself becoming a full party for that purpose. Alternatively, it may confine itself to a more moderate participation, through intervention. Title of jurisdiction (jurisdictional link).2244 We have already noted that an old and vexed question has now been resolved, in the sense that a title of jurisdiction does not have to be produced unless the third State is intervening as a principal, that is, for the purpose of becoming a party to the case. A title of jurisdiction does not have to be produced where the third State intervenes on an accessory basis, simply to participate, but not as a party. An autonomous jurisdictional justification is unnecessary unless the third State is to be a party to the case and claims to exercise the rights, or to be subject to the duties, of a party. For simple participation as a non-party, the incidental jurisdiction provided by Article 62 of the Statute suffices. Legally, it would be astonishing if a State’s capacity to present its arguments and protect its interests were to be subject to the same conditions as applied to its becoming a full party to the proceedings. In the ultimate analysis, the question could have arisen only in a period when considerable unresolved uncertainties remained as to the true nature and extent of general intervention as an institution.   cf Torres Bernardez, above n 2150, 280 et seq.   Intervention of El Salvador in the Nicaragua case (1984), cf Torres Bernardez, above n 2150, 392 et seq. 2240   PCIJ, Series A, no 1, 9–10. 2241   ICJ Reports 1973, 320 et seq., 324 et seq. 2242   ICJ Reports 1984, 215–17. 2243   See its oral arguments on the website of the ICJ at www.icj-cij.org. 2244   See, eg Torres Bernardez, above n 2150, 295 et seq.; Chinkin, ‘Article 62’, above n 2150, 1356–59; Fritzemeyer, above n 2150, 90 et seq. In the unacceptable sense of a general requirement for a title of jurisdiction, see Davì, above n 2150, 194 et seq. 2238 2239

718  CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES

In 1990, in the case of the Land, island and maritime frontier dispute (El Salvador v Honduras), the Chamber settled this point definitively. Its jurisprudence has since been confirmed by the full Court, putting it beyond all doubt. The Chamber began by clearly distinguishing the nature of accessory intervention, since the answer to the larger question depended on that preliminary step. In this connection, the Chamber said: 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.2245

The Chamber could conclude that: It thus follows 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.2246

Certainly, Rule 81, paragraph 2(c) requires the intervening State to indicate ‘any basis of jurisdiction which is claimed to exist as between the State applying to intervene and the parties to the case’. In its decision of 1990, the Chamber took the view, perhaps slightly complacently, that this formulation confirmed that a jurisdictional link is not a condition for intervention on an accessory basis: 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 of compétence qui . . . existerait’) shows that a valid link of jurisdiction is not treated as a sine qua non for intervention.2247

But the opposite conclusion was also possible. What, in fact, does this provision really mean? First of all, it is a matter of supplying the Court with all relevant information. One cannot exclude the possibility that an accessory intervention will be reinterpreted in the course of the procedure, becoming, at least in part, an intervention as principal. The Court is thus placed from the outset, in possession of all the information it may need. Second, the provision was adopted in 1978, at a time when true intervention had yet to be clearly defined, and when there was still a debate going on about the need for a jurisdictional link. Thus, at that time, the rule enabled all eventualities to be managed appropriately. It should not be understood as the expression of a firm and fixed will to require a jurisdictional link; but probably it should neither be taken as evidence to the contrary, since it ventured above all to leave open that question.

  ICJ Reports 1990, 133–34, § 97.   Ibid, 135, § 100. This approach was confirmed in the case of the Land and maritime boundary dispute (Cameroon v Nigeria), ICJ Reports 1999-II, 1034–35, § 15; and the case of Sovereignty over Pulau Ligitan and Pulau Sipadan, ICJ Reports 2001, 588–89, §§ 35–36. 2247   ICJ Reports 1990, 135, § 100. 2245 2246



INTERVENTION BY THIRD STATES 719

Legal status of the intervening State.2248 In cases of so-called intervention as a principal, the intervening State becomes a party to the proceedings, with all the rights and obligations of a party. In true interventions, that is, on an accessory basis, the intervening State does not become a party to the principal case, and does not have the corresponding rights. It is a simple participant in the case, whose rights and duties are specifically provided for (or should be developed) in the law on intervention. In the Land, island and maritime frontier dispute (El Salvador v Honduras, 1990), the Chamber emphasised this difference in the words of its peremptory statement that 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.2249

Given that the texts are neither detailed nor exhaustive in the way they deal with the legal status of intervening States, so that there are lacunae and areas of uncertainty, it is for the Court’s jurisprudence to progressively remedy these deficiencies. In other words, it is impossible to find, in the existing law, all the answers to the question of the legal status of non-party participants. So it remains necessary to have recourse to the general principles of law and the fundamental principles of procedure (proper administration of justice, equality between parties, and so on) in order to supply these deficiencies. It is nevertheless possible to indicate a whole series of effects of accessory intervention that have, to a greater or lesser degree, already been taken care of. First, the intervening State has the right to participate in the proceedings: it receives copies of the relevant procedural and other documents; it has the right to be heard, in writing and orally; and the principal parties can respond to its arguments in writing. Article 85 lays down the modalities: 1.  If an application for permission to intervene under Article 62 of the Statute is granted, the intervening State shall be supplied with copies of the pleadings and documents annexed and shall be entitled to submit a written statement within a time-limit to be fixed by the Court. A further time-limit shall be fixed within which the parties may, if they so desire, furnish their written observations on that statement prior to the oral proceedings. If the Court is not sitting, these time-limits shall be fixed by the President. 2. The time-limits fixed according to the preceding paragraph shall, so far as possible, coincide with those already fixed for the pleadings in the case. 3. The intervening State shall be entitled, in the course of the oral proceedings, to submit its observations with respect to the subject-matter of the intervention.2250

One notes, particularly, that paragraph 3 entitles the intervening State to be heard only on the ‘subject-matter of the intervention’ and not more generally on the principal dispute,2251 which will probably have several facets that are no concern of the intervener. Thus, in the 2248   See especially, Chinkin, ‘Article 62’, above n 2150, 1359 et seq.; Thirlway, above n 2150, 69 et seq.; Torres Bernardez, above n 2150, 404 et seq.; Fritzemeyer, above n 2150, 132 et seq. 2249   ICJ Reports 1990, 135–36, § 102. 2250   For what is now a fairly old commentary, see Guyomar, above n 2150, 550–53. This provision was, for example, applied by the Chamber in the El Salvador v Honduras case: ICJ Reports 1990, 136, § 102. 2251   Land, island and maritime frontier dispute (El Salvador v Honduras, 1990), ICJ Reports 1990, 116, § 58: ‘If a State can satisfy the Court that it has an interest of a legal nature that may be affected by a decision in the case, it may be permitted to intervene in respect of that interest. But that does not mean that the State is then also permitted to make excursions into other aspects of the case.’

720  CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES

El Salvador v Honduras case,2252 Nicaragua was not able to present arguments on the interpretation of the special agreement conferring jurisdiction on the Court, because that question had no direct link to the subject matter of the intervention and therefore remained a res inter alios acta. The right to be heard, and to interact with the parties, is thus materially limited. Here, once again, the criteria as to connectedness come into play. Second, if this rather paradoxical formula is accepted, a certain element of uncertainty nevertheless remains as to the effect on the intervener of the Court’s decision. Will it be bound by the judgment, and if so, to what extent? The uncertainty is increased by the negative analogy with Article 63 of the Statute. There, it is expressly provided that ‘the construction given by the judgment will be equally binding upon it’, that is, upon the intervener. Article 62 of the Statute is, by contrast, silent on this point. A possible conclusion from this silence has been that the Court’s judgment must have no effect on an accessory intervener, and that the latter is definitively confined to providing information to the Court. In reality, however, a positive analogy with Article 63 is required: intervention under Article 63 being only a sub-category of general intervention, a fortiori the Court’s decision must have effects for accessory interveners in the context of general interventions. The reason why the Statute is not more explicit about the legal effects of this form of intervention relates to the fact that, in 1920, such effects were unclear, since in those days there was still a considerable confusion between intervention as a party and intervention as a non-party. On this basis, it is not difficult to conclude that the draftsmen wanted to leave it to the Court to define the effects of its judgments, as a concomitant to its definition of the very mechanism of intervention itself. The accessory nature of true intervention gives the exact measure in which the judgment ought to be binding on the intervener: the latter is bound by the Court’s decision as regards the subject matter of its intervention, that is, by the contents of the Court’s decision in so far as it relates to that subject matter.2253 It would be useful if, with a view to avoiding further difficulties, the Court were in future to specifically indicate such contents in the operative part of its judgment. On the other hand, the Court’s judgment, as an overall juridical act, is not binding on the intervener. The latter is not a party, only a participant; as far as the intervener is concerned there is thus no formal res judicata.2254 Given that until the present time, interveners have above all been concerned to protect their rights by providing information that the Court can take account of, and that, until now, the Court has always, when giving judgment on the merits, adjusted the judgment to take account of these thirdparty rights, it has never been possible to test the executory effects of those parts of judgments that relate to the subject-matter of interventions. In a way, these effects are already included in the Court’s judgments vis-à-vis the parties, so that nothing remains to be executed separately as regards the third State. If the Court were obliged to conclude that the intervener’s claims were unfounded – for example, an intervener’s claims to certain geographical areas – then obviously the intervener would not be able to successfully advance claims to such ‘rights’; that would be the de jure position before the Court (as regards the binding effect of the decision) and de facto before other international organs (the indirect effects of the Court’s decision).   ICJ Reports 1990, 136, § 103.   The majority of leading commentators take this view: see, eg Chinkin, ‘Article 62’, above n 2150, 1361; Torres Bernardez, above n 2150, 430–31. Contra, Thirlway, above n 2150, 73 (only to inform the Court). 2254   Land, island and maritime frontier dispute (El Salvador v Honduras), ICJ Report, 1992, 609–10, §§ 421 and 423. 2252 2253



INTERVENTION BY THIRD STATES 721

Legally, a trilateral or multilateral relationship arises between the principal parties and the intervener, as regards the limited object of the intervention itself. In consequence, the third State, but also the principal parties, may request the execution of the contents of the judgment in so far as they relate to the subject of the intervention. Article 94, paragraph 2 of the Charter, on execution of the Court’s judgments, if necessary, would have to be applied by analogy. It would be by analogy, because the provision formally applies only to the ‘parties to the dispute’, among whom the intervener does not number. Third, the question has arisen whether a State intervening on an accessory basis can nominate an ad hoc judge. Until now, no such judges have been nominated, either because the intervener has not asked,2255 or because the request has been rejected by the Court.2256 The Court will decide whether to allow the intervention, and will decide the merits, while composed in the ordinary way (or in the form of a Chamber chosen by the principal parties). The right to nominate an ad hoc judge is incidental to the status of a party, and interveners are not parties. If they were allowed to nominate ad hoc judges, they would be exercising the right of a party, which would be excessive and out of proportion to their real status. In addition, major practical problems would arise. If there were several interveners in a case, there would have to be several ad hoc judges, unless they interveners made common cause. That would unbalance the composition of the Bench. If there were successive applications to intervene, the Court’s composition would be constantly changing. The new judges would have missed the earlier phases of the procedure, and their role would thereby to some extent be diminished. The disequilibrium would be even greater if it were a Chamber case. The interveners could, in such a case, quite easily wield an excessive influence, detrimental to the autonomous wishes of the principal parties. It is true that one might consider providing that an ad hoc judge could be nominated only for the purposes of the decision whether to allow the intervention. Thereafter, if the intervention were allowed, the Court would retain its ordinary composition when dealing with the merits phase. However, this would conflict with the text of the Statute (Article 31, §§ 2–4), which provides for ad hoc judges only in cases where participation in the case is qua party. The practical problems would remain, however. The Court is thus wise to avoid these difficult issues and to take the view that, as intervention is an incidental procedure, the ordinary Bench should decide whether to allow it. Where the application is to intervene on a principal basis, that is, as a party to the case, the position will, however, be different. Fourth, the intervening State is not automatically entitled to participate in all the incidental or special procedures provided for in the Statute. It can intervene in counterclaim proceedings under the same conditions as it can in the principal claims. Nor is there anything to prevent it, provided it can show an interest of a legal nature (which will not be easy), from participating at the provisional measures and Preliminary Objections stages. It cannot withdraw from the case, but obviously it can at any time withdraw its request to intervene (even without the agreement of the principal parties). Intervention is also possible in the context of Articles 60 and 61 of the Statute, on interpretation and revision of the judgment. The Court can then avoid opening a new procedure for the purpose of determining whether the third party has an interest of a legal nature, if that question has already been decided in the principal proceedings which have led to the judgment now in question. But it must also be possible to intervene only at this phase of the proceedings, after the   Haya de la Torre, ICJ Reports 1951, 71 et seq.   Continental shelf (Tunisia v Libya), ICJ Reports 1981, 6, § 8.

2255 2256

722  CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES

judgment on the merits, even if no request was made to intervene at an earlier stage. It cannot be decisive of that question merely to observe that there has been delay. If there are new proceedings, time runs afresh. In any event, under Rule 81, paragraph 1, the Court can always, ‘in exceptional circumstances’, entertain a late application, and participation at this post-adjudicative stage might well be an exceptional circumstance. Finally, it should be noted that the intervener itself cannot request interpretation or revision of the judgment, since the right to do so is reserved to the parties under Articles 60 and 61, paragraph 1 of the Statute. However, once the contents of the judgment are binding on the intervener as regards the subject matter of its intervention, any party, and also the intervener itself, has to be allowed to seek interpretation or revision of that part of the judgment, by analogy with the provisions of Articles 60 and 61. Procedural aspects. In the present context, it is impossible to present the reader with a comprehensively detailed account of the procedure for intervention under Article 62. However, we can address some of the more salient aspects. First, there is the question of time. The incidental nature of intervention makes it relatively easy to deal with the question of when an application for permission to intervene first becomes a possibility. The first possible moment is when the principal application is made to begin the case, or, as the case may be, when the special agreement is notified to the Court, seising it of the dispute. When is the last possible moment? Rule 81, paragraph 1 answers as a matter of principle, but simultaneously tempers the answer with flexibility. The application to intervene must, under the Rules, ‘be filed as soon as possible, and not later than the closure of the written proceedings’. However, in exceptional circumstances, the Court may admit an application ‘submitted at a later stage’. The general rule has two limbs to it: the would-be intervener is invited to apply ‘as soon as possible’; that is the main requirement. But, to this generic invitation, a time limit applies as a matter of principle, namely the ‘closure of the written proceedings’. This rule is, in turn, rendered more flexible in ‘exceptional circumstances’. In other words, the fixed time limit is qualified at both ends, becoming a somewhat relative matter: the intervening State is invited not to delay until the end of the written procedure; and even if it misses that deadline has the possibility, in exceptional circumstances, of applying later. The expression ‘exceptional’ connotes the idea of strict interpretation. However, the Court has not, so far, indicated how it would exercise the interpretive margin allowed to it by the Rule. Situations have already been postulated in which the Court might exercise this power, for instance in the context of an ex novo intervention in proceedings under Articles 60 or 61 of the Statute. In this regard it will be noted that, by comparison with other incidental proceedings, an application for intervention can be made up to quite an advanced stage, that is, the end of the written phase (Rule 81, § 1), whereas Preliminary Objections and counterclaims are limited to the period prior to delivery of the Counter-Memorial (Rules 79, § 1 and 80, § 2). Conversely, provisional measures can, for entirely logical reasons, be requested, as a matter of urgency, at any stage while the Court is seised of the case, right up until the final judgment (Rule 73, § 1). Obviously, a request to intervene ought not to be made too late, because it might delay the progress of the principal proceedings. At the same time, the possibility of making such an application even after the Counter-Memorial has been delivered indicates the Court’s wish to be able to enlarge the time available, and this may in turn have some bearing on the interpretation of the ‘exceptional circumstances’ provision in a sense that is not overly restrictive. Article 58 of the 1922 Rules (and Article 64, § 1 of the 1946 Rules), which were retained for a long period, surviving other revisions, also militate in the



INTERVENTION BY THIRD STATES 723

same direction, since they allowed intervention ‘not later than the opening of the oral proceedings’, that is, marginally later than the current Rule. A certain amount of time could elapse between the closure of the written proceeding, which happens automatically with the delivery of the last written document, and the opening of the oral procedure, which is fixed by the Court (Article 54, § 1 of the 1978 Rules). It would seem that the Court might allow applications made late if the applicant’s delay is not culpable or negligent. The ‘exceptional’ criterion might be interpreted as meaning ‘in the event of a delay that is justified or justifiable’. An excessively rigorous approach to this question would be inappropriate, since the Court does have a certain interest in extending the legal argument to the third State, and in giving what would then be legally a more ‘saturated’ judgment. At the same time, however, excessive laxity might encourage States to intervene too late, thus slowing down or otherwise unduly damaging the pending principal case. The practice shows that until now the major difficulty has consisted in determining when the written phase has closed. In principle, the moment arises, under Rule 54, paragraph 1, upon the expiry of the time limit for the final procedural document. However, a special agreement between the parties can provide for additional documents to be exchanged, so that, for a time at least, the date on which the written phase ends may be undetermined, as one waits to see whether the parties wish to deliver such additional documents.2257 The problem arose, for example, in the case on Sovereignty over Pulau Ligitan and Pulau Sipadan (2001).2258 In their special agreement, the parties had agreed on the possibility of delivering a ‘supplemental series of written documents’ if they jointly so requested, or if the Court so decided at the request of one of the parties. As a result, although delivery of the third series of written pleadings was effected on 2 March 2001, it was still not possible to say at that stage whether the written phase was over, since a fourth round could still have been requested. Such uncertainties as to the closing of the written phase do not, however, have any consequences as regards the time limit for requests to intervene. Until the written phase is actually ended, an application to intervene may be made. The extra time resulting from the uncertainty is thus beneficial to any State wishing to apply to intervene. Second, the question has been much debated as to what extent the documentation relating to the case should be accessible to the intervener. On the one hand, the principal parties may wish to keep their documents confidential, especially in the early stages of the case. On the other hand, the intervener will argue that it needs to know what is in the documents, in order to be in a position to assess whether any of its legal interests might be affected, and so that it can correctly formulate its application to intervene. The Rules distinguish situations where the Court has already granted permission to intervene (in which case access to the documents is made available) from those where the Court has still to decide (in which case access to the documents is possible only with the agreement of the principal parties). Rule 85, paragraph 1, provides that: If an application to intervene under Article 62 of the Statute is granted, the intervening State shall be supplied with copies of the pleadings and documents annexed and shall be entitled to submit a written statement within a time-limit to be fixed by the Court.

  Case of the Land, island and maritime frontier dispute (El Salvador v Honduras), ICJ Reports 1990, 98, § 12.   ICJ Reports 2001, 586, §§ 24–25.

2257 2258

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Rule 53, paragraph 1 provides that: 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.

The expression ‘after ascertaining the views of the parties’ is rather a poor indication that, in reality, the Court’s jurisprudence requires their consent. Thus the requests of Malta, Italy and the Philippines were all rejected once the Court had satisfied itself that the principal parties refused their consent. Until the Court declares the application to intervene admissible, the State seeking to intervene does not have the status of a participant, and cannot have access to the documents as of right: it can, however, be allowed by the consent of the principal parties. In practice, this means that States seeking to intervene and not having access to the precise information available in the documents, can have some difficulty satisfying the requirements of Rule 81, paragraph 2, especially items (a) (the requirement to indicate the interest of a legal nature which the State seeking to intervene considers may be affected); and (b) (the requirement to indicate the precise object of the intervention). This practice of the Court has received lively criticism from certain judges.2259 In their view, the intervening State is placed in an unduly difficult position, given that any imprecision in formulating the application to intervene may cause it to be rejected, whilst at the same time the means to be more precise are refused to that State and, in addition, the ‘participants’ (or potential participants) are not on an equal footing. One school of thought thinks that these difficulties have been exaggerated,2260 recalling that it is enough for the third State to claim that a legal interest belonging to it ‘might’ be affected. The subject of the actual dispute will, on this view, be sufficiently explained in the application initiating the case. Also, the jurisprudence shows, according to those holding this view, that the Court is not too demanding as to the degree of precision required, as shown in the case of the Frontier dispute (1990).2261 So long as the procedural rules on this point remain unchanged, the only equitable solution is for the Court not to require a greater degree of precision in the application to intervene than the Applicant State is reasonably able to provide, given the information at its disposal. The Court has to be reasonably flexible in applying the maxim that no-one can be expected to do the impossible (ad impossibilia nemo tenetur). Third, there is no valid reason to exclude, on an a priori basis, allowing a third State to intervene at or after the Preliminary Objections stage.2262 It is, however, difficult to think of a legal interest that might be specifically affected during that phase of a case and be detached from legal interests relating to the merits. The latter, however, are not in issue at this early stage. It is, for example, possible to take the view that, if an on-going type of reservation to a declaration under the optional clause is in issue in a particular case, a third State which has made a declaration accompanied by the same type of reservation possesses a legal interest in intervening on the question of that reservation’s interpretation. The same might be the position in the context of Preliminary Objections of the same type, for example, in rela2259   See especially, the Dissenting Opinion of Judge Schwebel in the case of the Continental shelf (Tunisia v Libya), ICJ Reports 1981, 35; and the Dissenting Opinion of Judge Oda, case on Sovereignty over Pulau Ligitan and Pulau Sipadan, ICJ Reports 2001, 618–20. 2260   Torres Bernardez, above n 2150, 326. 2261   ICJ Reports 1990, 112, § 45. 2262   cf Thirlway, above n 2150, 68–69.



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tion to the Monetary gold principle (itself, of course, directly concerning the interests of third parties), or in relation to the nationality of claims or the non-exhaustion of internal remedies and so on. As regards such issues, third States need to monitor the Court’s caseload carefully, because it is not the Court’s practice to notify all States entitled to appear before it whenever Preliminary Objections are raised in one of the Court’s various cases. As already noted, there is nothing to stop the intervening State’s presenting arguments that support the arguments of a principal party which has raised Preliminary Objections. However, a State wishing to intervene does have to prove that it also possesses an interest of a judicial nature of its own. It cannot raise Preliminary Objections of its own, since it is not a party. If the concealed (but true) purpose of the intervention is in reality the raising of such Objections, then the Court must, having in the process of interpretation recognised it to be the case, refuse to allow the intervention, on the ground that it has no valid object. Until now, contrary to the situation prevailing under Article 63, no State has sought to intervene solely at the Preliminary Objections phase, or starting the intervention at that phase. In the Nuclear tests cases (1973), it is true, Fiji did request to intervene in the dispute even before the Court’s decision on its jurisdiction in the principal case. The Court deferred its decision on the intervention until after it had decided that jurisdiction question.2263 It was able to do so because Fiji had not asked to intervene specifically in relation to a possible Preliminary Objections phase, which anyway might never have occurred. Fourth, the burden of proving that the conditions for intervention are satisfied, and in particular the existence of an interest of a legal nature, rests with the would-be intervener. As the Court explained in the 1990 case of the Land, island and maritime frontier dispute (El Salvador v Honduras), ‘it is for a State seeking to intervene to demonstrate convincingly what it asserts, and thus to bear the burden of proof’.2264 The Court did not agree with Judge Oda,2265 in whose view the limited documentation available to a State seeking to intervene meant that there ought to be a lighter burden of proof, so that the State was not, for example, obliged to prove an interest of a legal nature. Fifth, there is the question of what modalities the Court selects for deciding on an application to intervene. If the Court’s jurisdiction is disputed (in the case of an intervention on a principal basis) or if the admissibility of the application is in doubt (in the case of either principal or accessory intervention), will the Court decide such ‘preliminary objections’ in separate proceedings, as provided in Rule 79 (here applied by analogy)? The answer must vary according to the situation. In the case of an intervention on a principal basis, where the intervening State becomes a party to the case, the general provisions of Rule 79 can be applied. A preliminary phase on the ‘preliminary objections’ may then be ordered by the Court. However, in this case the objections must be made within the available time limit for an intervention, namely before the end of the written phase. By contrast, the time limit for true Preliminary Objections between the principal parties, is the Counter-Memorial. The Court also has the possibility of dealing with such objections in its judgment on the merits of the intervention. If it did so, the judgment could not take the form of an Order. The essential principles by which the Court must be guided are the economy of the procedural process and the proper administration of justice. If the objections seem to be weighty ones, and to be complicated as regards the facts and/or the law, it may be appropriate to   ICJ Reports 1973, 321, 325.   ICJ Reports 1990, 117, § 61. 2265   Case on Sovereignty over Pulau Ligitan and Pulau Sipadan, ICJ Reports 2001, 620, § 17. 2263 2264

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order a separate phase, devoted exclusively to these objections, even though it may lead to a procedural delay. In the converse situation, the Court can deal with all the issues in its substantive decision. Since no attempt to intervene on a principal basis has ever been made, one can only speculate as to how the Court would deal with it, given its extensive powers over procedural matters (Article 30 of the Statute). On the other hand, when it comes to intervention on an accessory basis, the Court has, so far, always dealt with the arguments in a single judgment, without opening a separate incidental procedure on ‘preliminary objections’ to the intervention, and suspending the principal proceedings for the time being. It must be said that the admissibility arguments so far put forward by existing participants have not been so complex as to make a separate phase seem necessary.2266 Concerned States have taken positions on the third States’ right to intervene. This has been sufficient to enable the Court to make its decision. Parties can present their observations on the application to intervene in writing, and, if need be, in oral argument. Rule 83, paragraph 1 provides as follows: Certified copies of the application for permission to intervene under Article 62 of the Statute, or of the declaration of intervention under Article 63 of the Statute, shall be communicated forthwith to 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.

Rule 84, paragraph 2 adds: If, within the time-limit fixed under Article 83 of these Rules, an objection is filed to an application 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.

For practical reasons, the Court will usually be obliged, when there is an objection, to hold an oral phase. It can equally decide to have such a phase whenever it thinks it needs supplemental information, if, for example, the admissibility of the application raises delicate issues of fact and/or law. There have been various objections2267 to the Court’s allowing applications to intervene:2268 the fact that the application was made late;2269 its lack of precision;2270 the absence of a link between the object of the application and the subject of the principal dispute (absence of the requisite interest of a legal nature);2271 estoppels;2272 2266   In that case, an argument as to consensual jurisdiction does not arise, since it is unnecessary to show a jurisdictional link. An argument may arise, however, as to jurisdiction under Arts 34 and 35 of the Statute, combined with Art 62. The intervener must be a State, as required by Art 62, § 1 of the Statute; Art 34, § 1 is thus made applicable to the intervener. Art 35, § 1 ‘opens’ the Court to States that are parties to the Statute, subject to the exceptions under § 2. Every State participating in proceedings before the Court – even as an intervener – must thus be a party to the Statute or admitted to appear before the Court. Obviously it would be possible to argue that Art 62, § 1 forms a lex specialis in relation to Art 35, §§ 1 and 2, and in itself requires only the presence of a State, not necessarily of a State which is a party to the Statute or otherwise permitted to appear before the Court in contentious cases. But Art 35, §§ 1 and 2, apply generally, ie to all contentious proceedings. Art 62, § 1 does not, therefore, need to repeat a condition already applicable under the general rules: this is a matter of the economy of the drafting. cf A Zimmermann, ‘Article 35’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 574. 2267   We should distinguish them from ‘Preliminary Objections’ in the full formal sense of that term, made in due and proper form. 2268   Torres Bernardez, above n 2150, 338. 2269   See, eg the case on the Continental shelf (Libya v Malta), ICJ Reports 1984, 8, § 10. 2270   Land, island and maritime frontier dispute (El Salvador v Honduras), ICJ Reports 1990, 107–108, §§ 35–38 and 111–12, § 45. 2271   Case on Sovereignty over Pulau Ligitan and Pulau Sipadan, ICJ Reports 2001, 603–604, §§ 81–83. 2272   Land, island and maritime frontier dispute (El Salvador v Honduras), ICJ Reports 1990, 118–19, § 63.



INTERVENTION BY THIRD STATES 727

the absence of prior negotiations;2273 the Monetary gold principle2274 and so on. This shows that all kinds of ‘preliminary objections’, whether formal or informal, can be raised against an application to intervene. There is no numerus clausus. The parties can devise their objections case by case, according to the particular circumstances of the proceedings. It must be noted, however, that certain objections which are typical of principal proceedings are not available as such in relation to interventions. Thus the intervening State is not obliged to prove its separate locus standi, since that is a supposition juris et de jure under Articles 62 and 63 of the Statute when the conditions for those provisions are satisfied, that is, when the applicant establishes that it has an interest of a legal nature that is in issue.2275 It is certainly possible to say that the necessary interest entitling a State to take action is also required in this field, in the form of an ‘interest of a legal nature’. However, one must at least recognise that here this is a special kind of interest, defined by the particular law relating to intervention. Since intervention is an incidental procedure, a request to intervene must be ruled upon by the organ seised of the principal case, whether it be the full Court or a Chamber.2276 This means that the same judges that hear the principal case also hear the accessory proceedings. A Chamber which is hearing the merits will also hear the incidental proceedings. This flows from the principle of the proper administration of justice. The Bench hearing the merits is best placed to assess the ‘interest of a legal nature’ and other necessary conditions for an intervention, since it is seised of the totality of the dispute onto which the intervention is engrafted.2277 It is true that questions of principle can be raised for example, as to the composition of the Chamber, and the plenary Court might seem better placed to decide questions of this kind. There is nothing to stop an interested State from having recourse to the full Court by an application in proper form, starting a new case. It can thereby explain to the Court why, in its view, the Chamber is not the right impartial body to make an equitable decision about the point of principle it raises. The Court could, in such a case, make its decision in those new proceedings, but if it does depart from the principle that the judges of the principal issue should also decide accessory issues, must nevertheless do so only in an extremely restrictive way, avoiding any de facto disavowal of the Chamber, and any discouragement of future recourse to the Chamber procedure. Questions concerning the composition of the Bench, including questions relating to the recusal of particular judges, can perfectly well be decided by the Chamber, in coordination with the President, who keeps all the judges of the Court informed and takes soundings among them. Moreover, it is only for great questions of principle, such as if the Chamber were to contemplate a departure from some well-established jurisprudence of the Court, that the matter should 2273   The Court has rightly shown a very restrictive attitude in this regard: ‘The Chamber does not consider that there is any requirement for the definition of a dispute in prior negotiations before an application can be made for permission to intervene . . . the function of 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 . . . It would therefore be inappropriate to require, as a condition of intervention, the existence of such a dispute, defined by prior negotiations.’ Case of the Land, island and maritime frontier dispute (El Salvador v Honduras), ICJ Reports 1990, 113–14, § 51. 2274   Case of the Continental shelf (Libya v Malta), ICJ Reports 1984, 20, § 31. However, once the third State is permitted to intervene, the Monetary gold obstacle is removed. This was pleaded by Nicaragua in the 1990 case of the Land, island and maritime frontier dispute (El Salvador v Honduras), arguing that the Court could not decide the case in its absence because of the Monetary gold principle, so that its intervention was a necessity in order that the Court could exercise its jurisdiction fully: ICJ Reports 1990, 114, § 52. 2275   Torres Bernardez, above n 2150, 321–22. 2276   Case of the Land, island and maritime frontier dispute (El Salvador v Honduras), ICJ Reports 1990, 4. 2277   Ibid, 5.

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be referred to the full Court, either at the request of a party (though parties will hardly be aware that, in the secrecy of its deliberations, the Chamber contemplates a break with past jurisprudence) or by the Chamber itself, which is, after all, a subsidiary organ of the full Court. The Court gives high priority to decisions on intervention. Rule 84, paragraph 1 provides as follows: The Court shall decide whether an application to intervene under Article 62 of the Statute should be granted, and whether an intervention under Article 63 of the Statute is admissible, as a matter of priority unless in view of the circumstances of the case the Court shall otherwise determine.

The Court does thus retain a certain margin of appreciation on a case by case basis. Fifth, the Court’s judgment on an intervention is a judicial act which can, according to the case, be clothed in the forms of an Order or a Judgment. Where there is a dispute as to the admissibility of the intervention, a Judgment is required, and it has the force of res judicata. In a case such as Fiji’s intervention, as to which the decision was deferred until after the judgment on jurisdiction in the primary proceedings, an Order suffices, since that it all that is needed to guide and direct the proceedings. The position is the same if the application to intervene is inadmissible because of some manifest failure or inadequacy, for example, the lack of a properly defined object or a failure to comply with time limits. The Court’s pronouncement in the principal proceedings, on the legal interests that the intervener invokes, will be binding on (opposable to) the intervener. An accessory intervener is not bound by the totality of the judgment, because it is not a party to the case. Nevertheless, that part of the Court’s pronouncements that deals, or is connected, with the object of the intervention will be legally binding on the intervener.2278 We have already considered the arguments for this.2279 (1) the very purpose of intervention is to put rights and interests into play. The intervening State cannot take the benefits without bearing any of the burdens: commodum habere, incommodum eludere. It cannot intervene solely to inform the Court of its rights and so to protect them, without incurring any consequent obligation. The quid pro quo imposed on it is to put its rights into play, and, in that regard, the Court’s judgment will bind all parties and participants. In this triangular (or, as the case may be, pluri-angular) context, the effect of the judgment thus goes beyond the parties themselves. (2) Article 63, paragraph 2 of the Statute stipulates that the Court’s interpretation of multilateral conventions is binding on the interveners. It would be astonishing if special interventions (a sub-category of general interventions) were binding on third States intervening, while general interventions (the wider category, of which special interventions are a subset) were in no way binding. The contrary is required: a legal effect must a fortiori arise from general intervention, given that the interest of a legal nature required by Article 62 is a more demanding requirement than simple participation in a multilateral convention as contemplated by Article 63. The silence of Article 62 does not militate against this conclusion, for the reasons already explained in the passage referred to above. The Court will be wise if, whenever necessary in the future, it specifically states, in the operative parts of its judgments, the precise consequences of its judgment for the intervening State. Two particular problems: advisory opinions and judgments in equity. In the context of advisory opinions, there is no need to allow interventions. The technical reason is that in such   Torres Bernardez, above n 2150, 430–31; contra, Thirlway, above n 2150, 73.   For detailed argumentation, see above, under ‘Legal status of the intervening State’, second point.

2278 2279



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cases there are no ‘parties’; the substantive reason is that no binding judgment is delivered, and that any State which is a party to the Statute is, in any event, free to present its arguments and views to the Court. In the days of the PCIJ, attempts were made to intervene in advisory proceedings.2280 In the case on the Acquisition of Polish nationality (1923),2281 Romania sought to intervene. The President of the Court informed Romania that Articles 62 and 63 were not applicable to the advisory procedure, but that Romania could present its arguments in the context of the applicable procedural law. That remains the position today and there is no reason to change it. In a certain sense, a kind of ‘intervention’, limited to informing the Court, is always possible in such cases. In addition, there are none of the restrictions and conditions posed by Articles 62 and 63 of the Statute. If two or more States are in contention before the Court and Article 38, paragraph 2 of the Statute is applicable so that the judgment is to be given in equity, is intervention still a possibility?2282 On the one hand, it has sometimes been thought that there is no place for intervention in such proceedings.2283 The Court’s judgment will be based on extra-legal considerations and on the idea of modifying the law applicable as between the parties, and it is therefore difficult to see how ‘interests of a legal nature’, belonging to the third State, could actually be affected. However, the expression ‘interests of a legal nature’ does deliberately spread its net wider than the word ‘rights’. Also, the modification of a right as between the parties can have effects on third parties, as is obvious, for example, as between parties to a treaty. And finally, it is far from obvious that the Court’s judgment will indeed involve only modification of the law. The actual equity of the situation will more often rest on the narrow interaction between the application of certain rights, and the modification (or softening) of other ones. From another perspective, it has been argued that intervention ought to be possible if the principal parties consent to it and the intervener can at least show an equitable interest.2284 However, there seems no reason for accessory intervention to depend upon agreement between the principal parties. So long as the intervention retains its accessory character, the Statute allows it without distinguishing between the bases of jurisdiction or the tasks entrusted to the Court. The legally correct answer is that a third State has the right to intervene unilaterally if it can show an interest of a legal nature in the resolution of the dispute. Given that in such cases the Court will apply, inter alia, extra-legal norms, it can, if the case requires it to do so, interpret that interest of a legal nature in a relatively flexible way, in the sense of a ‘legal/equitable’ interest. The Court will, however, be concerned not to open the gates too widely and too readily to third parties, so as not to give further discouragement to States considering seeking judgments ex æquo et bono in relation to what are often highly sensitive issues. The effects of the Court’s judgment on the third State must, mutatis mutandis, be the same as set out above. To date, no case has ever been brought under Article 38, paragraph 2 of the Statute, and consequently there has been no related application to intervene. A possible reform. In the preceding sections, it has more than once been stressed that the Court shows some unease with, and indeed some reluctance to admit requests to intervene on the basis of, Article 62. The main reason for this course is certainly that such incidental   cf Hudson, above n 2150, 423–24.   PCIJ, Series B, no 7. 2282   See Fritzemeyer, above n 2150, 122. 2283   W Friede, ‘Die Intervention im Verfahren vor dem Ständigen Internationalen Gerichtshof ’ (1932) 3 ZaöRV 26. 2284   Fritzemeyer, above n 2150, 122. 2280 2281

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proceedings, which may occur in a quite late phase of the proceedings, disturb the course of the pending case: additional time limits have to be set, further arguments have to be heard, supplemental interlocutory decisions have to be rendered, further days need to be inserted into the schedule for oral hearings and so on. The procedure at the ICJ is already notably long and burdensome; there is therefore a legitimate concern not to add further complications. If the Court’s jurisprudence becomes too lenient on the conditions for intervention, the dangers mentioned are multiplied: there will not be only one intervener, but the risk is that there will be many. When one takes into account the time constraints under which the Court is now working, the reluctance depicted in the preceding passages becomes all the more understandable. In this regard, one change in the Rules of Court could be of some help. Article 85, paragraph 3 of the Rules grants the intervening State the right to present oral observations. There would be no loss for the Court to suppress that right, turning it into a mere faculty at the appreciation of the Court. The intervener does not become a party to the proceedings; its participation is merely accessory. This is sufficient for justifying that such an intervening State could submit only written observations, so that the Court is informed about the legal interests it wants to claim. The Court would not thereby lose any important information, and at the same time the ‘nuisance’ of an intervention could be limited to some additional pieces to read and a decision on the permission or not to intervene.

c)  Intervention under Article 63 of the Statute Article 63 of the Statute provides as follows: 1. Whenever the construction of a convention to which states other than those in the case are parties is in question, the Registrar shall notify all such States forthwith. 2. Every state so notified has the right to intervene in the proceedings, but if it uses this right, the construction given by the judgment will be equally binding upon it.

The ‘interest of a legal nature’ of a third State, which is a party to a multilateral convention being judicially interpreted, is particularly apparent. It is therefore understandable that this form of intervention, both limited and unchallengeable, is the kind that has longest been recognised.2285 It can be found, in the context of arbitration procedures, as early as Articles 56 and 84 of Hague Conventions I of 1899 and 1907 on the Peaceful Resolution of Disputes. Applications under Article 63 have been made four times since the founding of the PCIJ, in the cases of the Wimbledon (1923), Poland,2286 Haya de la Torre (1951), Cuba,2287 Military and paramilitary activities in and against Nicaragua (1984), El Salvador,2288 and Application for the examination of the situation under paragraph 63 of the Court’s judgment of 20 December 1974 in the Nuclear tests cases (New-Zealand v France, 1995), the Solomon Islands, Micronesia, the Marshall Islands and the Samoan Islands.2289 So far, only the Cuban 2285   As to the travaux préparatoires on Art 63, see the concise comments of Chinkin, ‘Article 63’, above n 2150, 1371–72. See also Fritzemeyer, above n 2150, 63 et seq. 2286   PCIJ, Series A, no 1, 1 et seq. 2287   ICJ Reports 1951, 76–77. 2288   ICJ Reports 1984, 215–17. 2289   ICJ Reports 1995, 306, § 67.



INTERVENTION BY THIRD STATES 731

application of 1951 has been allowed, and even then for a more limited purpose than Cuba originally proposed. To sum up, this way of ensuring a certain degree of unity in the interpretation of international conventions has so far been little used. This is another sign that States tend to intervene only in relation to questions that affect them in a very direct way. It should be noted that an intervention before the Court can be on a mixed basis, that is, can in some respects fall under Article 63, and in others under Article 62. In this way, a State can make two interventions in one case. On the one hand, it can present its arguments about the interpretation of a multilateral convention, and on the other can seek to protect an interest of a legal nature. In a case such as this, the State can base itself cumulatively on both the relevant provisions of the Statute, and also seek to bring the whole intervention under Article 62 by arguing that the accessory follows the principal. It will then be interpreting Article 62 as imposing the obligation to respect the Court’s decision as to the correct interpretation of the convention.2290 Object of intervention under Article 63. The object of Article 63 is not only to make possible, but positively to promote, a relative unity in the law on multilateral conventions, thereby contributing to the more harmonious development of international law in this field. Indirectly, the objective is to reduce the frequency of disputes between States about the application of such conventions. Intervention under Article 63 can indeed make a contribution to greater legal certainty as to these multilateral conventions, thereby making such multilateral regimes more attractive. The nineteenth century was already witnessing a series of conventions, many of them relating to private international law, whose principal objective was to unify the law in particular fields. This unification presupposed that the treaty parties would give a unitary interpretation to the provisions of the convention in question. Otherwise the objective would not be achieved, and the body of law which it was hoped to render uniform would turn out to be thin, interpretations multiplying like the hydra. In conformity with this objective, which was considered not only highly legitimate but also rather urgent, it seemed to the draftsmen of the Statute to be a justifiable step to give separate treatment to the codification of third party intervention, so as to achieve greater interpretational uniformity. One reason that such codification may have seemed desirable was that ample indicators of such rights to intervene could already be found in pre-existing conventions. General intervention under Article 62 might seem doubtful in an international community which was steeped not only in contemporary international law, but also in the principle of sovereignty. In effect, that principle was extended, in a quite natural way, into the exclusivity of the procedural relationship between principal parties consenting to the Court’s jurisdiction. This explains why the draftsmen of the Statute to some extent left general intervention in the limbo of Article 62, while nevertheless codifying special intervention in the almost luxuriant detail of Article 63. It should incidentally be recalled that under Article 35 of the Statute, intervention is open to any State entitled to appear before the Court, and not just to States that are parties to the Statute. Thus a party to such a multilateral convention not being a party to the Statute could intervene under the conditions of Article 35. 2290   Unless it tries to argue exactly the contrary, attempting to escape the binding effects explicitly provided for in Art 63. In our view, this argument would fail, because Art 62 contains an equivalent obligation to that provided for in Art 63.

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Particularities and requirements of special intervention under Article 63. First, intervention under Article 63 is achieved via a ‘declaration of intervention’ and not via an application to intervene as under Article 62. Rule 82, paragraph 1 provides as follows: 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, signed in the manner provided for in Article 38, paragraph 3, of these Rules.

This is more than a simple lexical difference. Intervention under Article 62 is often, but wrongly, called ‘discretionary’. The intervening State does not have a perfected (or subjective) right to participate in the proceedings. It must first indicate its interest of a legal nature. The Court has then to decide whether the interest is sufficient. In assessing that question, the Court enjoys a certain margin of appreciation. By contrast, intervention under Article 63 is the subjective right of the intervening State. The Court is obliged to allow it if the procedural requirements are satisfied. Here, the interest of a legal nature is automatically and unchallengeably presumed by the Rule itself. It arises from the simple fact that the intervener is a party to the multilateral convention in question. Article 63 of the Statute therefore provides that the third State ‘has the right to intervene in the proceedings’. It has sometimes been concluded that the Court has to behave automatically. If the would-be intervener makes the declaration, the Court must accept it and allow the intervention. In reality, however, the Court must still examine the admissibility of the declaration. It does not have to check the existence of an interest of a legal nature (which is conclusively presumed), but it will verify the other conditions of admissibility mentioned in the context of Article 62. And here it has also to carry out some checks as to the multilateral convention, in particular, whether its interpretation is an issue and whether the intervener is truly a party to it. The expressions ‘declaration’ and ‘application’ thus respectively denote a right to intervene on the one hand, and, on the other and a mere right to request to be allowed to intervene following a decision of the Court. The former is virtually unconditional, precise conditions being laid down as to the circumstances in which it applies; the second is conditional, because it is subject to the (as yet not fully normalised) requirement of an ‘interest of a legal nature’. Possibly the difference will one day diminish or even disappear completely, so that intervention under Article 62 will also become a matter of a perfected right. That will be the outcome if the Court eventually categorises the various ‘interests of a legal nature’ that can give rise to a general intervention. At that point, it would be possible to say that if the third State can claim such an interest, general intervention will be open to it as a matter of right. Second, ratione materiae, the intervention must concern the ‘construction of a convention to which states other than those in the case are parties’ (Article 63, § 1). This provision raises a whole series of difficult questions, not all of which can be analysed here. The first point is this, that the convention in question certainly must be either plurilateral (between various parties) or multilateral (a great number of parties). The text must be binding, and it must bind more than two parties – which, in the circumstances, means more than two States. Under the law of treaties, the word ‘convention’ is generally used to denote multilateral or plurilateral treaties.2291 The text of paragraph 1 excludes bilateral treaties, even if 2291   The text of § 1 refers to ‘states other than those concerned in the case’ being parties to the convention. This formulation is thus almost pleonastic in relation to the expression ‘convention’, used in its technical sense.



INTERVENTION BY THIRD STATES 733

they are standardised in such way that the interpretation of one treaty could be relevant for the interpretation of others. This restriction is explained by the object of intervention under Article 63. That objective is to ensure some uniform interpretation as between the treaty parties. Where a bilateral treaty is in issue, it will be legally applicable (and the Court can interpret it) if the two parties to the treaty are parties in the case. If that is the position, the principal proceedings will suffice to ensure a unitary interpretation that is binding on the parties. No Article 63-type intervention can be envisaged if no other State is a party to the treaty. However, as regards typical bilateral treaties, for example investment treaties, a third State with an interest in the interpretation of the treaty can seek to intervene under Article 62 of the Statute, if it is able to prove that it has an interest of a legal nature. What is meant by the ‘construction’ of a convention? In brief, one can say that construction concerns both the intellectual exercise, and also the exercise of will, needed to ascertain the true meaning of a provision. The Dictionnaire de droit international public defines interpretation as the ‘intellectual operation to establish the meaning of one or more expressions, or that of the provisions of a legal instrument, especially of a treaty or a custom’.2292 Interpretation is thus an operation distinct from the application of the treaty. The latter presupposes that the parties have understood its meaning, and consists of substantive acts which give effect to the rights and obligations acquired and incurred. According to this classic theory, interpretation is logically and temporally prior to application. The former establishes the meaning and content of the norm, and the latter gives effect to the conclusions by concerning itself with the practical features of implementation. It must be noted, however, that the two concepts are, in reality, very closely connected, often being given effect in a single action since interpretation is often implicit in an act of application. There is a further concept to be considered here, expressed in the French term ‘qualification juridique’, which is perhaps best translated as ‘legal categorisation’. The expression is used in several different senses. Sometimes it simply means an interpretation the criteria for which are not predetermined, the interpreter having a discretionary power in the matter. An example is to be found in the situation of the Security Council when it decides that a situation should be categorised as a ‘threat to the peace’ under Article 39 of the Charter. Legal categorisation can also be seen as the act of ‘subsuming’;2293 or as the reverse of induction, starting with a singular fact and positioning it within a general legal category.2294 In any event, that seems to be accepted as a particular kind of interpretation.2295 Legal categorisation is then the act by which facts are assimilated to norms for the purpose of an exercise in ‘subsuming’. The process is at one and the same time deductive and inductive, amounting to a particular mode of interpretation. The whole business of legal categorisation is covered by the word ‘construction’ in Article 63 of the Statute, but obviously the most important element is interpretation in the classic sense. The aim is to fix upon and define a unitary meaning for the provisions of the convention text. If, however, the   J Salmon (ed), Dictionnaire de droit international public above n 2151, 603 (our translation).   See again ibid, 915: ‘[Reasoning] consisting of fitting an element (such as an established fact or a Rule of law) into a legal category that conditions the application of the legal regime corresponding to the category’ (our translation). In this way, the exercise is a ‘subsuming’ one. 2294   G Abi-Saab, ‘“Interpretation” et “auto-interpretation”: Quelques réflexions quant à leur rôle dans la formation et la résolution du différend international’ in Essays R Bernhardt (Berlin, 1995) 9–10. For example, a particular silence might be categorised as acquiescence; a particular declaration might be categorised as the renunciation of a right, etc. 2295   cf J Salmon, ‘Quelques observations quant à la qualification en droit international public’ in C Perelman and P Foriers (eds), La motivation des décisions de justice (Brussels, 1978) 326. 2292 2293

734  CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES

intervening State is seeking something else under the more or less artificial cover of interpretation, for example, the revision of a previous judgment, the Court, having come to that conclusion as to the true object of the declaration of intervention will have to declare it inadmissible, or reject it, according to the case. This situation arose in part in the Haya de la Torre case (1951). The Court proceeded by restricting the scope of the intervention to an appropriate degree, rejecting anything going beyond that.2296 It is not necessary for the convention in question to be the principal subject in dispute. It is enough that its interpretation may be in issue, without knowing at a given stage whether the Court will really address the question. This is so even if the textual question is raised in a merely incidental way.2297 In that case, the crucial point is the notification of the fact by the Court, to potentially interested States so that they can consider whether to intervene. The only matter in respect of which it is possible to intervene is a ‘convention’, meaning a treaty between States. A concerted but non-conventional legal document does not give rise to the possibility of intervention. The same goes for simple contracts between States.2298 Also, a treaty not registered under Article 102, paragraph 1 of the Charter may not be invoked before the Court, precisely because it is an organ of the United Nations (Article 102, § 2 of the Charter).2299 Treaties between States and other subjects of international law can be invoked, provided that all the participants to the proceedings that are parties to such treaties are States. There can be more difficult cases. What happens, for instance, as regards optional declarations accepting the compulsory jurisdiction under Article 36, paragraph 2 of the Statute? These are unilateral legal acts executed under a convention. The convention context can be perceived as a series of interrelated bilateral legal relationships, all placed within an overarching multilateral arrangement. Is there such a strong element of solidarity, between the States bound by a declaration under the optional clause, that it is possible to allow third2296   ICJ Reports 1951, 77. ‘On this point the Court observes that Memorandum attached to the declaration of intervention of the Government of Cuba is devoted almost entirely to a discussion of the questions which the Judgment of November 20th 1950, had already decided with the authority of res judicata, and that, to that extent, it does not satisfy the conditions of a genuine intervention. However, at the public hearing of May 15th, 1951, the Agent of the Government of Cuba stated, that the intervention was based on the fact that the Court was required to interpret a new aspect of the Havana Convention, an aspect which the Court had not been called on to consider in its Judgment of 20th November 1950. Reduced in this way, and operating within these limits, the intervention of the Government of Cuba conformed to the conditions of Article 63 of the Statute’. 2297   Although the PCIJ was able to consider Art 63 applicable to the interpretation of a convention that prima facie was decisive for resolving the dispute, that does not imply, a contrario, that the interpretation of a convention that is prima facie less decisive is not covered. The more so since it can be difficult to know which convention will be the decisive one in a given case, where everything may depend on the argumentational route selected by the Court. See the case on Appeals against certain judgments of the Hungarian-Czechoslovak MAT, PCIJ, Series E, no 9, 176; Chinkin, ‘Article 63’, above n 2150, 1379. It has, however, been argued that the interpretation of the convention must not be a purely marginal question for the decision in the case: Fritzemeyer, above n 2150, 157. However, Art 63 does not contain any such limitation. In practice it would be difficult to apply, given that some delicate distinctions would have to be drawn. It is probable, however, that third States would seek to intervene à propos of the interpretation, even of a marginal text, in the course of the Court’s reasoning. If, one day, the propensities of third States to intervene in this way were to become excessive, it would still be possible for the Court to develop a condition of admissibility in limine litis, so as to exclude excessive interventions. This it would do in the interests of not prolonging principal cases unduly, weighing them down with excessive arguments as to conventions which cases before the Court place in issue in too marginal a way. 2298   See, eg C Theben, ‘La théorie du contrat d’Etat et l’évolution du droit international des investissements’ CCHAIL, vol 302 (2003) 197 et seq., and the numerous references there provided. 2299   As to this provision, see JP Jacqué, ‘Article 102’ in JP Cot, A Pellet and M Forteau (eds), La Charte des Nations Unies, Commentaire Article par Article, 3rd edn, vol II (Paris, 2005) 2117 et seq.; U Knapp and E Martens, ‘Article 102’ in B Simma (ed), The Charter of the United Nations, A Commentary, 2nd edn, vol I (Oxford, 2002) 1277 et seq.



INTERVENTION BY THIRD STATES 735

party intervention, as between the parties to the case, of this or that aspect of a declaration? Although, technically, it is possible to apply Article 63 to this situation by way of analogy, it is surely unlikely that the Court would allow such formally unilateral acts to be treated as if they were multilateral conventions. Intervention under Article 62 does, however, remain a possibility. It would have to be allowed if the third State established that it had an interest of a legal nature in the interpretation of the particular declarations in question. Alternatively, one might argue that such declarations are so closely connected to the Statute and in particular to Article 36, paragraph 2 that it would be possible for the third State to intervene under Article 63. This would be so because, indirectly, it would be a matter of interpreting the Statute itself. (This reasoning does, however, presuppose that an intervention for the interpretation of the Statute could be admissible, which is a question requiring further examination, and in principle, one eliciting a negative answer.) Formally, however, the optional declaration remains separate from the Statute under which it is made. Consequently, if the general conditions for the validity of optional declarations ought to be seen as a matter belonging to the interpretation of the Statute, the specific content of each declaration should not be imputed in this way to the Statute itself. Is it necessary for the ‘convention’ in question to be actually in force? If one party says it is not in force, while the other says the opposite, and all the parties and participants in the case have ratified it, Article 63 applies. This might, for example, be the position in relation to the General Arbitral Act of 1928. If the treaty has been ratified by the participating States, but is not yet in force, the objective of Article 63 very clearly militates in favour of its being applicable. The sense of the relevant provisions of the convention is then laid bare with binding effects inter partes, even before a possible dispute may flare up at the moment the treaty enters into force. Conversely, if the convention is not applicable under its own provisions, but is invoked solely as a matter of international customary law, then Article 63 will be inapplicable, because the Court will be applying the customary law, not the treaty itself. A general intervention under Article 62 obviously remains possible in such a case, if the necessary conditions are satisfied. What, however, if the intervening State, although a signatory to the convention, has yet to ratify it? The text of Article 63, paragraph 1 of the Statute contains the phrase ‘convention to which states other than those concerned in the case are parties’;2300 but in the French text it speaks of ‘participating’ States. A signatory is a participant in the treaty. It accepts certain obligations relating to the treaty, whether procedural or relating to the object and purpose of the treaty (Article 18 of the 1969 Vienna Convention on the Law of Treaties). The ‘prophylactic’ effect of intervention under Article 63 here too militates in favour of allowing the intervention, in accordance with the rather broad wording of Article 63, paragraph 1. If a treaty contains stipulations in favour of third parties, or imposes obligations on third States that the latter have accepted under the modalities provided for in Articles 35 and 36 of the Vienna Convention, then do such collateral agreements, connecting them to the convention, open up the possibility of their intervening? A teleological interpretation militates here too, in favour of taking a broad view. The intervening State is not a party to the treaty, but it is a participant in it, via clauses which directly confer rights and impose obligations upon it. In relation to those clauses, the intervening State is on the same footing as a party to the treaty. Intervention under Article 63 ought therefore to be open to it, provided the convention is a multilateral one 2300   The English and French texts differ slightly in the terminology used, but to the extent there is any significance in the differences relating to the use of the word ‘parties’, the French text is to be preferred since it was the original.

736  CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES

and that the intervention is solely for the interpretation of the provisions affecting the third State. Whether there can be an intervention relating to the interpretation of titles of jurisdiction, or to the Statute and/or Rules of the Court, is a fairly thorny question. It has to be distinguished from the quite closely related question whether a State can intervene even as early as the Preliminary Objections phase. This last question ought, in principle, to be answered in the affirmative, subject to this: that the intervening State is able to claim an interest of a legal nature (Article 62) or the interpretation of a convention (Article 63), relevant at this particular phase. If the intervening State claims that it has legal interests or that there are questions as to the interpretation of a convention relating to the merits, and always supposing that the question of jurisdiction has been decided, then, logically, the Court will defer the intervention to the second phase. It did this, and rightly so, in the case on Military and paramilitary activities in and against Nicaragua (1984), declaring the Salvadorean intervention inadmissible at the preliminary stage, while stating, by way of reminder, that El Salvador could present a fresh declaration of intervention at the merits phase (which it was not in fact to do).2301 If, on the other hand, El Salvador had claimed the interpretation of a relevant convention in priority to everything else, or exclusively for the Preliminary Objections phase, the intervention would have to have been allowed. In the preliminary phase, it is almost inevitable that the texts to be interpreted will relate to titles of jurisdiction and sometimes to issues of admissibility. In the latter context, it is easy to imagine the legal interests of a third State being involved. Such an interest would exist if, for example, the question of exhaustion of prior negotiations as provided for in a multilateral convention were to be an issue. However, there has been some controversy as to the extent to which a third State can intervene in a case in order to make observations on the interpretation of the Statute and/or the Rules, or on the interpretation of a compromissory clause in a convention. As regards the Statute and the Rules, such an intervention could be a useful means for the Court to obtain the views of a third State. But it would hardly make much sense as regards another essential aspect of Article 63: that the Court’s interpretation is binding on the intervener. Indeed, contrary to the position as regards all the other texts, the Court is in sole charge of the interpretation of the Statute and the Rules. Even if the third State were not formally bound by the Court’s pronouncements on them qua Article 63-intervention, the Court’s interpretation would effectively be compulsory for the intervener whenever at some future date it found itself before the Court. Some commentators have taken the view that there is no reason why a third State should not be able to intervene under Article 63 of the Statute to argue points of jurisdiction and admissibility in respect of a case, to the extent that those aspects presuppose the interpretation of a multilateral convention.2302 Others think that one ought at least to exclude the Statute and the Rules, given that the contrary view is difficult to reconcile with the object and purpose of this form of intervention.2303 They stress that States do not in truth submit to the Court disputes relating to the Statute and the Rules; they submit substantive issues. Besides, the opposing view would amount in practice to allowing every State to intervene in the case that has the right to appear before the Court, which means virtually all the States in the world. Such commentators consider it doubtful whether the draftsmen of the Statute   ICJ Reports 1984, 216 and 425, § 74.   Thirlway, above n 2150, 29; Chinkin, ‘Article 63’, above n 2150, 1376. 2303   Torres Bernardez, above n 2150, 309–12. 2301 2302



INTERVENTION BY THIRD STATES 737

really wished to open up the Court so widely to third-State intervention. They also stress the inflation and practical problems such a course would produce. In this respect, one must begin with what is generally accepted, namely that an intervention is possible in relation to each title of jurisdiction in a multilateral convention, for example, a compromissory clause. Under one perspective, there seems to be no reason to exclude the Statute and the Rules a priori and for all situations. Third States may have a considerable interest in the interpretation of the particular convention constituted by the Statute itself. Likewise, the practical argument could be seen as not as decisive as it might at first sight seem to be. It is highly improbable that a large number of States would intervene, and there are several reasons for that. In the first place, until now, third States have shown a remarkable inertia as regards cases which do not affect them in a direct way. Since 1922 there have been only four interventions under Article 63, and none of them specifically concerned the Statute or the Rules.2304 Next, third States will seldom be aware that the Court wishes to address itself to this or that aspect of the Statute or the Rules. They would have to keep closely in touch with the Court’s caseload, in order to realise the question concerned might come up. Also, they probably do not find it a very attractive proposition to contemplate being formally bound by the Court’s interpretation of the Statute and/or Rules. It might hamper them if they should wish to argue the relevant points the other way in a future case in which they might be a party before the Court, and this might prevent the Court from subsequently modifying its position if it felt it might otherwise be appropriate to do so. In other words, they may well calculate that they might lose more than they gained. Finally, the chance of hearing the arguments of third States on the interpretation of the Statute and/or the Rules is not necessarily something the Court would see in a negative light. It might find it helpful when considering all the relevant aspects and arguments. This is true mainly for issues of great general interest, for example, the interpretation of Article 36 of the Statute in order to decide if so-called self-judging reservations in optional declarations are admissible or not. The ultimate position to be taken on this question is that of not allowing Article 63 interventions for the interpretation of the Statute and Rules. There is here no point in seeking a ‘uniform’ interpretation to which other States parties to the multilateral convention should be bound. The Court is the sole master of the Statute/Rules; it can always interpret them and the States appearing before it are in any event bound by its interpretation. A slightly different position could be taken in some marginal cases: some particularly important interpretations of the Statute, as the one on self-judging reservations mentioned above, could induce States to participate in the proceedings. In such cases, however, intervention should take place under Article 62 of the Statute, not under Article 63. It is a matter of ‘legal interest’, not one of a ‘multilaterally binding interpretation of a multilateral convention’. Procedural aspects. Generally speaking, the 1978 Rules have almost completely harmonised and made uniform the procedure for the two types of intervention under Articles 62 and 63. There remain a few slight differences, due to the fact that the objects of and modalities for the two types of intervention are not identical. But these are minor matters. Here we are considering only the salient and specific procedural aspects of Article 63. On questions 2304   El Salvador had vaguely mentioned Art 36 of the Statute in 1984, but without providing further detail. cf Torres Bernardez, above n 2150, 396.

738  CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES

common to both forms of intervention, the reader should refer to the section on Article 62.2305 Timing. The declaration of intervention must be filed as soon as possible and in any event, prior to the opening of the oral phase. As in the case of Article 62, in exceptional circumstances the Court can overlook lateness. Rule 82, paragraph 1 provides that: ‘Such a declaration shall be filed as soon as possible, and not 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.’ One notes that here the words ‘opening of the oral proceedings’ have replaced the words ‘close of the written proceedings’ used in Rule 81 in relation to intervention under Article 62. The slight slippage in the time, enabling the filing to be later under Article 63, is explained by the fact that the Court has to carry out a more detailed analysis of the interest of a legal nature and of its effect on the admissibility of an application under Article 62. In Article 63, by contrast, that interest is presumed, which lightens the Court’s load.2306 One may well wonder whether the difference was (or is) really necessary. Contents of the declaration. Rule 82, paragraph 2 provides that the declaration of intervention under Article 63 of the Statute must contain various elements: The declaration shall state the name of an agent. It shall specify the case and the convention to which it relates, and shall contain: (a)  particulars of the basis on which the declarant State considers itself a party to the convention; (b) identification of the particular provisions of the convention the construction of which it considers to be in question; (c) a statement of the construction of those provisions for which it contends; (d) a list of the documents in support, which documents shall be attached.

Obviously, if there are no attached documents, there need be no list. Certain States have filed somewhat vague declarations, initially containing hardly any indications as to the precise provisions whose construction is said to be in issue. These States have subsequently had to give the details with greater precision to prevent the Court rejecting their declarations in limine litis.2307 As usual, the Court is not very formalistic as regards defects in applications initiating cases, and in declarations of intervention. It allows the States concerned to subsequently palliate or cure the formal defects. It will be noted that in this case the Rules do not require the declaring State to indicate a jurisdictional link to the principal parties. This is because, by 1978, it had come to be accepted that intervention under Article 63 never presupposes the existence of such a link. Thus, in 1951, Cuba’s intervention was allowed in the Haya de la Torre case, despite the fact that Cuba indicated no basis of jurisdiction which would have allowed it to begin a new case against the two principal parties. A question has been raised as to whether the third State would have to be allowed to intervene under Article 63 in a case where the clause giving the Court jurisdiction was subject to a reservation to the jurisdiction made by the intervening State itself.2308 There is, in fact, no valid reason to reject such an intervention, since the reservation would relate to the Court’s  See above.   Torres Bernardez, above n 2150, 322–23. 2307   This was the case of El Salvador in the Nicaragua case in 1984: cf Chinkin, ‘Article 63’, above n 2150, 1384. 2308  Rosenne, Intervention in the ICJ, above n 2150, 75. 2305 2306



INTERVENTION BY THIRD STATES 739

jurisdiction over the State as a principal, not as an intervener. The third State does not become a party to the proceedings. The reservation relates only to the Court’s jurisdiction over principals, not to its jurisdiction as regards interveners. Notification to the convention parties. Intervention under Article 63 presupposes that the third States that are parties to the plurilateral or multilateral convention will have been informed of the situation entitling them to intervene. Article 63, paragraph 1 of the Statute requires such notification, providing that ‘the Registrar shall notify all such states forthwith’. The 1978 Rules contain the related Rule, Rule 43 as amended on 29 September 2005 which reads: 1. Whenever 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. 2. Whenever the construction of a convention to which a public international organization is a party may be in question, the Court shall consider whether the Registrar shall so notify the public international organization concerned. Every public international organization notified by the Registrar may submit its observations on the particular provisions of the convention the construction of which is in question in the case. 3. If a public international organization sees fit to furnish its observations under paragraph 2 of this Article, the procedure to be followed shall be that provided for in Article 69, paragraph 2 of these Rules.

The intervention of the Court and its President in the instructions to be given to the Registrar arises from the fact that notification is more than a simple administrative matter. It can, in some cases, have politico-legal implications: is a particular State a party to the particular convention in question? Is a particular entity a State within the meaning of international law? And so on. It has been argued that Rule 43, paragraph 1 conflicts with Article 63, paragraph 1 of the Statute, making it a partial nullity, on the ground that the Statute reserves the notification obligation to the Registrar.2309 That opinion is, however, misconceived. The Rules neither modify nor abrogate anything in the (legally ‘superior’) Statute. It is always the Registrar who effects the notification. The Rules simply interpose the Court as an organ cooperating with the Registrar in order to direct his activity in this regard. The Statute does not say that the Registrar has exclusive competence as regards notification. All it says is that it is for the Registrar to effect the notification, and that provision continues to be honoured. The requirement that the Registrar must give the notice ‘forthwith’ imposes on the Court an equal obligation to be swift. This obligation has been interpreted in various ways. In the case on Pakistani prisoners of war (1973),2310 one judge took the view that the notification should not be effected until after the Court had had the opportunity to consider a request for provisional measures. The reason was that every notification to (and participation by) a third State at the provisional measures stage carries the risk of delaying the case and endangering rights of the applicant that are in urgent danger of irreparable damage. The Court has followed this general approach in its jurisprudence, effecting the notification either during or after the provisional measures proceedings.2311 This is not, however, a  Rosenne, Intervention in the ICJ, above n 2150, 37.   Dissenting opinion of Judge Patrén, ICJ Reports 1973, 334–35. 2311   Case of Lockerbie, ICJ Reports 1992, 8, § 14, 119, § 15; case of Breard, ICJ Reports 1998, 253, § 15; LeGrand case, ICJ Reports 2001, 470, § 4. On the other hand, in some cases the notification has been effected even before the provisional measures hearings: Legality of the use of force, ICJ Reports 1999-I, 124 et seq. 2309 2310

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desirable way to proceed. Legally, it would be more correct to uncouple the question of notification from the provisional measures stage, at which the interpretation of the disputed convention is not a concern of the Court. Even if a jurisdiction clause in such a convention will need to be interpreted, at this stage the Court’s interpretation will only be a prima facie one, and will not be binding, either on the Court itself, or on interveners (as opposed to the position under Article 63, § 2 with regard to interventions). Also, intervening States almost never do seek to intervene under Article 63 in the very early stages of a case. Normally they intervene for the purposes of the merits phase, or, if earlier, at the Preliminary Objections stage. It would also be possible for the Court simply to exclude an intervention during the provisional measures phase, on the basis of the urgency of the latter and the provisional character of the Court’s decision at that stage. In short, notification should be effected forthwith, and not be coupled to any question concerning provisional measures. In principle, notification should be carried out automatically, and should be made to all the parties to the multilateral convention in issue. A question can nevertheless arise as to whether or not a particular State is such a party. There can also be oversights, or the communication from the Registrar can be lost in transit. In such cases, Rule 82, paragraph 3 reserves the rights of affected third States. It reads: ‘Such a declaration may be filed by a State that 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.’ In addition, it would be appropriate if, where because of non-notification there is a delay in filing the declaration of intervention, the Court were to Rule that ‘exceptional circumstances’ had arisen under paragraph 1, so that such blameless would-be interveners are not prejudiced. It might be different if the third State had, by other means, become aware of the situation and had initially chosen to take no action. In that case, the delay would not be justifiable, but would be negligent, and it would not be a case in which it was needful to protect the third State by extending the time-period. It is equally possible that the Court might consider, at a given stage, that a particular multilateral convention is not truly in issue in the case, or even that it is inapplicable. It might also wish to avoid notifiying all the States parties to it of the possibility of their intervening. The latter might, however, take a different view from the Court, and wish, by intervening, to preserve their position should it be relevant to do so, even perhaps presenting arguments contrary to the Court’s own opinions. Their intervention on that basis is indeed a possibility. It can also happen that the Court reminds third States of the possibility of intervention, even while taking the view that, at a particular moment, the requirements of Article 63 are not satisfied. The Court stated the position in the following terms in the Free Zones case (1932): On the other hand, States Parties to the Treaty of Versailles were not specially notified under Article 63 of the Statute, which was considered as inapplicable in this case; but their attention was drawn to the right which they no doubt possessed to inform the Court, should they wish to intervene in accordance with the said Article, in which case it would rest with the Court to decide.2312

Access to documentation. For third party intervention to make any sense, the third State needs access to the documents in the case. The law (and the problems) are the same in this regard as under Article 62. Rule 86 provides as follows:   PCIJ, Series A/B, no 46, 100.

2312



INTERVENTION BY THIRD STATES 741

1. If an intervention under Article 63 of the Statute is admitted, the intervening State shall be furnished with copies of the pleadings and documents annexed, and shall be entitled, within a time-limit to be fixed by the Court, or by the President if the Court is not sitting, to submit its written observations on the subject-matter of the intervention. 2. These observations shall be communicated to the parties and to any other State admitted to intervene. The intervening State shall be entitled, in the course of the oral proceedings, to submit its observations with respect to the subject-matter of the intervention.

Effect of the judgement. In this regard, it is enough to repeat that the Court’s interpretation of the plurilateral or multilateral convention, as contained in the judgment, is ‘equally binding’ on the intervener (Article 63, § 2). However, this provision covers only interpretation that is concerned with the subject of the intervention. The whole judgment as such does not have the force of res judicata, either as regards form or substance, so as to bind the intervener. Only the Court’s pronouncements on the interpretation of the convention are binding on the intervening third State. This means that the meaning of the norm, as thus interpreted, is objectively determined and fixed for all States that participate in the case. The resulting opposability applies not only to the operative part of the judgment (the dispositif ) but also to the supporting reasoning. From another perspective, for the parties to the case, the Court’s decision is binding only ‘in respect of that particular case’ (Article 59 of the Statute). It is true that the Court’s interpretation will, no doubt, de facto be binding on them in a larger sense, since no State whether a party or not, can easily adopt an interpretation that contradicts the Court’s. Legally, however, the Court’s pronouncement would seem to be binding on the parties only for the purposes of the particular case. On the other hand, under Article 63, paragraph 2, the intervening State seems to be bound more generally. Article 59 does not apply to it, because it is not a party to the case. Article 63, paragraph 2, provides that ‘the construction given by the judgment2313 will be equally binding upon it’. This provision says nothing to limit the binding effect to the particular case. Nevertheless, it would be possible to interpret the word ‘equally’ as a cross-reference intra legem to Article 59, so as to harmonise the legal positions of participants with those of the parties. On this view, Article 63, paragraph 2 would, by implication, mean that a party is bound in the same way as a participant, that is, ‘equally’; or, conversely, that participants are bound in the same way as parties. In the latter case, the obligation will be levelled downward. It may indeed seem range, even paradoxical, that a participant should be more strongly bound than a party. It is, however, also possible to consider Article 59 as applying only to the decision of the Court, that is, only to the operative part (dispositif), and not to the interpretation contained in the reasoning. The interpretation of the convention would then be binding on the parties exclusively by way of an a fortiori argument on the basis of Article 63, paragraph 2: if participants are bound, then, a fortiori, so must be the parties. Also, the object and purpose of Article 63, to provide for an interpretation of multilateral conventions that is as uniform as possible, militates in the same direction. That object and purpose can be achieved only if parties and participants are bound to the interpretation (although nonintervening third States that are parties to the convention will not in any event be legally 2313   The French expression used is sentence, which is mistaken, since French reserves this word for arbitral tribunals. The Court makes orders and gives judgments. In Italian, the expression sentenza can mean either an arbitral award or the decision of a court of justice. The slightly aberrant wording of the French version of the Statute bears the marks of the time it was drafted (1920): in those days, the distinction between arbitration and institutional justice was less clear-cut than it has since become.

742  CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES

bound by it). Article 63 would then be the only sedes materiae of the legal obligation, Article 59 being beside the point. From yet another perspective, the above comments are open to doubt: is it possible to accept that the principal parties would not be bound by the interpretation if no third State intervened under Article 63, but that third-State intervention makes them bound? Can a third State really alter the legal position of the parties, adding to their legal obligations? Would the principal parties then have at least to be entitled to object to the third State’s intervention? Alternatively, it would be possible to argue that the analogy with Article 63, paragraph 2, is abstract and automatic: the parties are bound just as an intervener would be, even in cases where there is no intervention. One cannot say that these questions have as yet been clarified in an adequate way. The Court’s jurisprudence throws no real light on them, and moreover is little concerned, as a general rule, to indicate the consequences of its pronouncements. Given the purpose and object of Article 63, it seems obvious that a third State which intervenes must be bound by the Court’s interpretation, not only in the specific concrete case concerned, but also going beyond it, even erga omnes partes that are parties to the plurilateral or multilateral convention concerned.2314 Otherwise, Article 63 would largely fail in its effects. The other question, as to the extent to which the parties are bound, is an extremely difficult one. De lege lata, Article 59 would apply to them, on a basis confining not only the decision itself, but also the effects of the interpretation, to the particular case.2315 The parties would then be in a better position than other participants, and the idea of promoting a uniform legal interpretation would be partially set back and/or distorted. Nevertheless, this view is perhaps not quite as heretical as might at first sight appear. After all, the third State deliberately chooses to tie itself to the Court’s interpretation, by exercising its rights under Article 63. That is not the work of the principal parties. If one accepts this classic solution, then one must, at least, allow that the principal parties can freely, and by simple unilateral declaration, each separately subject itself to an obligation equivalent to the participant’s, namely to be bound by the Court’s interpretation. It would have to be possible for such declarations to be requested by the intervener and suggested by the Court. If, on the one hand, one is willing to accept a more robust and more teleological solution, one could argue that the purpose of Article 63 of the Statute requires the Court’s interpretation to be binding, beyond the particular case, on all participants in the case, and thus also on the principal parties. However, there is no obviously solid legal basis for that solution. Perhaps the best line of argument would be that Article 59 concerns only the ‘decision’ and not specifically the ‘construction of the convention’; that this latter question is governed solely by Article 63; and that Article 63 ought therefore to apply to the parties by (reinforced) analogy. This would also ensure a reciprocity of obligations under the plurilateral or multilateral convention, participants in the proceedings being bound by the interpretation visà-vis the parties, but also vice versa and to the same extent. It would doubtless be valuable to clarify the law on this point. A revision of the Statute is, however, unlikely and nor is an amendment of the Rules along these lines. The only 2314   See also Fritzemeyer, above n 2150, 166. This state of affairs may obviously be troubling from the perspective of reciprocity under the treaty, one party being bound by an interpretation that is not binding on another party. This might discourage requests to intervene under Art 63. It must be added, however, that a State party to the convention that is not bound by the Court’s pronouncement will nevertheless be in great difficulty if, subsequently, it tries to insist on an interpretation which the Court has disavowed. 2315   Again see Fritzemeyer, above n 2150, 167.



THE POWER TO PRONOUNCE A NON LIQUET 743

remaining option is to clarify the point via the Court’s jurisprudence. It is not possible to say whether the Court will prove sufficiently courageous to give judicial consideration to (or even impose) the so-called ‘teleological’ view discussed above, even though, in itself, it obviously represents the best solution to the problem. Opinion is divided, however, on whether the solution could be adopted without a revision of the Statute (possibly the Statute might even be revised tacitly, by the subsequent practice of States). In fact, however, there seems to be nothing decisive to prevent it. The Court retains a certain margin of flexibility and creativity as regards the intervention mechanism which is still somewhat fluid and in a state of ongoing development.

18.  THE POWER TO PRONOUNCE A NON LIQUET 2316

A non liquet 2317 is defined as follows in the 2001 edition of the Dictionnaire de droit international public: Impossibility on the part of a judge or arbitrator to rule on the merits of a case, caused by the fact that the information as to the facts, or the basis under the law currently applicable as between the parties, are insufficient to enable the judge or arbitrator to take a decision, or because what is sought of the judge or arbitrator appears to him to go beyond his judicial function.2318

Independently of cases on general admissibility in relation to the judicial function, which it is dubious to treat as non liquet cases, the question relates to situations in which the Court is unable to make a substantive decision because it does not have the necessary elements that would enable it to do so. One needs to distinguish carefully, in this regard, between the factual and legal aspects of the problem. Leading commentators have not always made this distinction perfectly clear, and the result has been a certain confusion between non liquet situations and situations not truly in that category. The facts. It is rarely impossible to give judgment because of a lack of relevant factual information. All systems of judicial procedure do, after all, have rules as to the burden of proof. It can of course happen – and frequently does – that the debate before the court does not 2316  H Lauterpacht, The Function of Law in the International Community (Oxford, 1933) 105 et seq.; H Lauterpacht, ‘Some Observations on the Prohibition of “Non Liquet” and the Completeness of the Law’ in Essays in Honor of JHW Verzijl (The Hague, 1958) 196 et seq.; L Siorat, Le problème des lacunes en droit international (Paris, 1959) 205 et seq.; I Tammelo, ‘On the Logical Openness of Legal Orders’ (1959) 8 American Journal of Comparative Law, 187 et seq.; J Stone, ‘Non Liquet and the Function of Law in the International Community’ in BYIL, vol 35 (1959) 124 et seq.; J Salmon, ‘Quelques observations sur les lacunes du droit international public’ (1967) 3 RBDI, 440 et seq.; J Stone, ‘Non Liquet and the Judicial Function’ in C Perelman (ed), Le problème des lacunes en droit (Brussels, 1968) 305 et seq.; GG Fitzmaurice, ‘The Problem of Non Liquet: Prolegomena to a Restatement’ in Essays C Rousseau (Paris, 1974) 89 et seq.; I Tammelo, ‘Logical Aspects on the Non-Liquet Controversy in International Law’ (1974) 5 Rechtstheorie 1 et seq.; U Fastenrath, Lücken im Völkerrecht (Berlin, 1991) 272 et seq.; P Weil, ‘ “The Court Cannot Conclude Definitively” . . . Non Liquet Revisited’ in Essays in Honor of L Henkin (The Hague, Boston, London, 1997) 105 et seq.; J Salmon, ‘Le problème des lacunes à la lumière de l’avis ‘Licéité de la menace ou de l’emploi d’armes nucléaires’ rendu le 8 juillet 1996 par la Cour internationale de Justice’ in Essays in Honor of N Valticos (Paris, 1999) 197 et seq.; H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’ in BYIL, Part One, vol 60, (1989) 77 et seq. cf also the Desgranges v ILO case (1953), ILR, vol 20, 530. And as to lacunae in international law, see also A Bleckmann, Grundprobleme und Methoden des Völkerrechts (Freiburg-im-Breisgau/Munich, 1982) 198 et seq, I Stribis, La manifestation des lacunes en droit international (Athens, 2009). 2317   The expression comes from the word ‘liqueo’, to be liquid, pure or clear. 2318   J Salmon (ed), Dictionnaire de droit international public (Brussels, 2001) 747 (our translation).

744  CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES

shed any certain light on the relevant facts necessary to be decided. An irreducible kernel of doubt may remain about certain issues of fact. Such situations arise directly from the very nature of factual issues, concerned, as they are, with events and positions relating to external material realities in their temporal contexts. It can be extremely difficult to reconstruct them subsequently unless, of course, one has been able to observe them at the time or can perceive them through relevant evidence. If legitimate doubts about obscure facts were allowed to prevent judges from deciding cases, justice, with its role of pacifying situations of various kinds, simply could not be done. Courts would have often to refuse to make decisions, leaving the dispute unresolved and the parties at loggerheads. But the role of the court or other tribunal is to eliminate the dispute, even if its not truly able to eliminate the doubt.2319 That is why judicial procedures put the burden and risk of insufficient evidence of fact onto the shoulders of one side or the other, whether it be the claimant or the respondent. The ICJ’s procedure is a type of ‘private law’ proceedings,2320 with a claimant and a respondent confronting each other on a ‘level playing field’, and the burden and risk as to the facts is split between them. As a matter of principle, and save where the burden of proof is reversed, each side bears the burden of proving its own claims. If the respondent asserts a particular fact, for example by way of objection, it bears the burden of proving it. In a sense, then, both sides are ‘plaintiffs’ and have to establish certain facts, not so much as a function of their respective general sides in the case, as in respect of each concrete argument (thus reus [=defendentis] in exceptione actor est). The obligation to establish a fact to the Court’s satisfaction involves the party in question bearing the risk of failing to do so. The Court itself is under no obligation itself to enquire into the accuracy or veracity of factual allegations. If the party with the burden of proof fails to establish a fact, it will lose as regards the judicial result it claims ought to follow from that fact. There are also some situations in which both sides are under an obligation to work together to establish one or more facts. This situation must not, however, be confused with the burden of proof. Even in situations where such an obligation to cooperate does exist, one of the two sides bears the ultimate risk that the factual evidence will be insufficient. In concrete terms, these realities mean that the court will not have to pronounce a non liquet merely because the factual position remains in doubt. It can decide on the merits, on the basis that the continuing doubt makes it necessary to reject the relevant claims of the party asserting the fact in question. Does this mean, then, that a non liquet never arises in relation to a question of fact? Theoretically, it is possible to imagine cases in which the Court might reject a claim because of a non liquet with regard to the facts. However, such cases are in practice unlikely to arise, and it is therefore unsurprising that the Court’s precedents shed no light on the question. One can, for example, imagine a case in which the parties jointly submit a territorial and boundary dispute to the Court without giving it all the factual information needed to establish geographical locations and other relevant circumstances. If the parties did not comply with the Court’s requests for information on these matters, the Court might (be obliged to) refuse to give a ruling, on the basis that it lacks certain indispensable information that would make it possible to make a solemn decision with all the force of res judicata. In such a case, the Court could not simply confine itself to dismissing the application on the ground that its basis is insufficient, because the   In the very justified words of K Engisch, Einführung in das juristische Denken, 3rd edn (Stuttgart, 1964) 61.   See below.

2319 2320



THE POWER TO PRONOUNCE A NON LIQUET 745

request is ex hypothesi a joint one, so that the parties cannot be pigeon-holed as applicant and respondent. However, it is very rare for there to be a possibility of a non liquet arising from insufficient evidence of fact. Judicial techniques have sought to emancipate judges from that trap by inventing rules on the burden of proof. The law. The main role of the non liquet therefore relates to lacunae of law rather than of fact. It is not possible to embark at this point on the highly complex question of the existence of ‘lacunae in the law’, and on a discourse as to the exact meaning of that expression.2321 Although this question is, from a theoretical standpoint, an exceptionally difficult one, views on it remaining to a considerable extent conditioned by the general views of the particular commentator as to the nature of the legal phenomenon, from a practical perspective, things are altogether less complicated. First, one must, as a matter of principle, avoid treating the absence of rules in a particular source of law as a lacuna in the sense we are considering here. If a convention contains no rule where in principle there ought to be one, say because of an oversight by the parties, it is still possible for them to palliate this shortcoming by adopting a rule for the purposes and duration of court proceedings; the Court itself can also have recourse to other sources of international law, especially to customary law. The applicable sources are mutually reinforcing, the sequencing of them being designed precisely to lead to an integrated and coherent legal structure by eliminating bothersome unplugged gaps. The position is different when the parties have deliberately chosen to limit the court’s work to one particular source, eliminating recourse by the judge, either simultaneously or on a subsidiary basis, to other sources of law. One can, for example, imagine the Court being asked to decide a boundary case exclusively as a function of particular treaties, when the texts can no longer be found or contain no relevant rules of boundary delimitation. In such a case, it would be for the parties to find ways to correct their mistake. If they failed to do so, the Court could not decide the case. It is not that the Court is unable to identify applicable rules from within the totality of the law, for there are customary law rules that apply. The problem would be that the parties had limited the applicable law to a particular text, one which unfortunately contained no relevant rules. The Court’s inability to have recourse to other sources of law would then, so to speak, ‘open up a lacuna’. A lacuna, then, can also be created by the parties: the more they restrict the applicable law, the greater that particular risk. Secondly, the presence or absence of a lacuna depends largely on the view taken of the law and of the judicial role. International law is so rich in sources, rules and virtualities, that unless one has a superannuated and dried-up positivist conception of it, it offers unsuspected resources for responding to legal questions.2322 Taken together, the general principles of law,2323 the use of analogies, the propensity to develop new rules by interpretation, and the possibility of judgments ex aequo et bono by agreement of the parties, give 2321   On this subject, see the works of Siorat and of Fastenrath, above n 2316. See also R Kolb, ‘La règle résiduelle de la liberté en droit international public (“tout ce qui n’est pas interdit est permis”)’ (2001) 34 RBDI 100 et seq. And see also, I Stribis, La manifestation des lacunes en droit international (Athens, 2009). 2322   As to the theoretical conceptions of international law, see A Truyol y Serra and R Kolb, Doctrines sur le fondement du droit des gens (Paris, 2007). 2323   As to which the 1920 Committee of Jurists drafting the PCIJ Statute was able to state that it had retained them essentially to make a non liquet less likely, given that they were additional to the applicable treaty and customary law rules enabling those concerned to draw on the extensive legal practice and learning to be found in systems of municipal law. See PCIJ, Consultative Committee of Jurists, Minutes of the Committee’s Meetings, 16 June–24 July 1920 (The Hague, 1920) 296, 318.

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judges and arbitrators a rich palette of arguments and other means by which to use the law to maximum advantage. Third, the non liquet can be pushed back into virtual insignificance if one postulates that in every case, the judge has a duty to make a decision or, to be more precise, that a judge cannot refuse to decide a case merely because the applicable law is obscure. This rule receives classic treatment in the famous Article 4 of the French Code of Civil Law;2324 it is applied fairly frequently in various systems of municipal law, under the maxim interest rei publicae, ut sit finis litium.2325 The rule has also been postulated by a series of commentators on international law, sometimes without much analysis,2326 and sometimes as a general principle of law considered to apply by analogy with municipal systems.2327 Other commentators continue to think that a non liquet remains possible, at least in extremis, because it is not prohibited in international law, and because it derives from the need to preserve the Court’s judicial character.2328 This latter idea doubtless rests on more secure foundations (one need only think of the boundary treaty case mentioned above). Nevertheless, it is only in an very exceptional case that the Court could take this line, and only if faced with a true impossibility from a legal, even from a material, perspective. In practice, such situations do not arise. One also needs to guard against confusing a ‘deliberate silence’ with a lacuna. Lacunae exist only where there is both no applicable legal rule, and also no possibility of deciding as a matter of law. On the other hand, a deliberate silence indicates only that the legislator did not choose to specify the particular fact to be qualified by the rule being legislated for, because he did not wish the legal effect of the norm to apply to that fact.2329 The legislator has thought about it and, by implication, has given it a negative response: the fact in question cannot be argued to give rise to the legal effects being legislated for. Say, for example, that the legislator forbids the use of tandems and tricycles in town because they are thought dangerous to those concerned and to traffic generally. As a matter of interpretation, it is possible to conclude, by negative implication, that the ordinary use of a one-person bicycle is not forbidden. The legislator certainly has not said so expressly, and has chosen to continue allowing this very ordinary vehicle because it does not give rise to the same safety problems as tandems and tricycles. As a matter of economical drafting, the law does not say this expressly, because it is unnecessary. By prohibiting only A, the law implicitly allows B. The essential consequence of all such deliberate silences is that no lacuna is created. The texts do in fact answer the question, albeit the answer is implied and not express. There is no need, in such cases, for an exercise of filling gaps. However, the question whether the text’s silence is deliberate is a matter of interpretation, and it is not always easy to decide. Lacunae also need to be distinguished from questions that are unregulated by law because the legislator wishes to leave them to the free choice of the persons concerned. 2324   ‘A judge who refuses to take a decision, on the pretext of the silence, the obscurity or the insufficiency of the law, can be pursued for culpable denial of justice.’ 2325   See the Codex Justinianus, 7, 52, 2 (Caracalla), 3, 1, 16 (Justinian). 2326   M Dubisson, La Cour internationale de Justice (Paris, 1964) 108. 2327  See H Lauterpacht, The Function of Law in the International Community, above n 2316, 105 et seq.; Lauterpacht, ‘Some Observations on the Prohibition of “Non Liquet” and the Completeness of the Law’, above n 2316, 196 et seq. 2328  A Pellet, ‘Article 38’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 704–705. 2329   Consequently, by positively indicating that cases/facts ‘c1’, c2’, ‘c3’, ‘c4’, etc will give rise to legal consequence ‘n’, and omitting case/fact ‘c0’, the legislator intends to exclude the idea that case/fact ‘c0’ will give rise to the same legal effects as cases/facts ‘c1’ to ‘c4’, ie to legal consequence ‘n’. In short, this is an a contrario or ‘negative pregnant’ argument.



THE POWER TO PRONOUNCE A NON LIQUET 747

Such non-legal ‘gaps’ do not give rise to the problems associated with lacunae because a legal decision is not only possible, it is desirable; here we are in the residual area in which activities that are not prohibited are allowed. It should be emphasised that this rule applies only because the legislator wishes to leave the matters in question to the free will of subjects-of-law, in international law the will of States. Unlike a deliberate silence which by implication gives rise to a fixed norm, here, the freedom of each State is not subjected to a norm at all, but is left to other aspects of the life of the international community. For example, the general lines of a State’s foreign policy are a matter for it, and for it alone; the ‘international legislator’ abstains from any legal regulation of the question, because this is a field which has to be left to the free appreciation of each State. If the Court were asked to condemn a particular State for, say, an excessively pro-western foreign policy, without there being a question of its breaching any particular treaty, the Court would not be facing a lacuna, given the absence of legal rules on questions of this type, but rather would be considering a field of activity which has been deliberately and knowingly left to individual States. The Court would have to reject the request, because the State in question would be acting in a domain in which its freedom of action is preserved, and without breaching international law. The State would not actually be acting ‘in conformity’ with international law because no rule of international law would govern its policy or attitude; but nor would it be acting ‘contrary’ to international law, because the latter concedes to it full liberty of action, deliberately abstaining from regulating the question. If the absence of such regulation were not deliberate and voluntary, there might have been a prima facie case of a lacuna. If so, it would be possible for the Court to cover the case by applying general principles, analogies, interpretations and so on. It has been argued that a non liquet (or even a lacuna2330) is a material impossibility. According to this view, the Court can always dismiss a claim that is insufficiently founded in law, and the act of dismissing it will unquestionably represent a legal decision.2331 But the dismissal of a claim in this way is possible only if it is formulated as the unilateral claim of an applicant against a respondent. If the request to the Court is the direct consequence of a special agreement (for example, if the Court is jointly requested by the two sides to delimit a boundary), it will not be possible to dismiss the claim to the detriment of one party and the benefit of the other. A lacuna might then exist and the Court would be unable to respond to it by dismissing an application. In these circumstances, the only option for the Court would be, if the circumstances justified it, to declare a non liquet. That would carry the implication that the applicable law did not answer the case, that is, that there was a lacuna;2332 and that that situation could not be resolved by dismissing the request to the Court as insufficiently founded in law, given that the request was a joint one. This is the 2330   The absence of a rule always implies freedom of action: H Kelsen, ‘Théorie du droit international public’ CCHAIL, vol 84, 1953-III, 121–22; H Kelsen, General Theory of Law and State (Cambridge, Massachusetts, 1949) 146–49; H Kelsen and R Tucker, Principles of International Law, 2nd edn (New York, 1966) 438–40; P Guggenheim, ‘Principes de droit international public’ CCHAIL, vol 80, 1952-I, 64; G Schwarzenberger, A Manual of International Law, 5th edn (London, 1967) 245; G Hoffmann, ‘Die Grenzen rechtlicher Streiterledigung im Völkerrecht’ in Berichte der deutschen Gesellschaft für Völkerrecht, vol 9 (Karlsruhe, 1969) 29; R Quadri, Diritto internazionale pubblico, 5th edn (Naples, 1968) 212–13; G Balladore Pallieri, Diritto internazionale pubblico, 3rd edn (Milan, 1941) 336. 2331   See PCIJ, Consultative Committee of Jurists, Minutes if the meetings of the Committee. 16 June–24 July 1920 above n 2323, 319. 2332   The parties have limited the applicable sources in such a way that no rule of law can be identified; or no general solution can be found, either in the main sources, or in general principles, nor in analogies, nor by broad interpretation etc. In reality, what this means is that the judge does not want to develop the law, because the question is a controversial one and/or is in the hands of a legislative body at the time the decision is to be made.

748  CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES

paradigm non liquet for insufficient legal basis. The Court can certainly try to avoid it by inviting the parties to supply it with the missing law or to grant it the power to decide ex aequo et bono. Non liquet as jus cogens? Can the parties themselves agree to exclude the possibility of a non liquet in a given case? Would such an agreement bind the Court? Must the Court apply the agreement under Article 38, paragraph 1(a) of the Statute? It is probably necessary to make a distinction in this regard between unilateral application cases and Special Agreement ones. In the former, the parties can ask the Court to decide in any event, and whatever the particular situation. The Court can and must decide, as necessary, on jurisdiction and admissibility, and then accept or reject the application. In such a case, agreement between the parties adds nothing to the law the Court has to apply, the Court being already under an obligation to decide the application it is seised of. If the agreement adds nothing to the law of the Statute, it is not prohibited. Since the agreement is not a derogation from the Statute (the Court’s constitutive instrument), this is not a situation in which ‘statutory’ jus cogens comes into play. In the latter case, however, that of a special agreement and thus a joint matter, the situation is different one. The parties cannot, indeed, oblige the Court to decide a case in relation to which they do not provide enough evidence to make the legal position clear. Nor can they oblige the Court to decide the case under Article 38, paragraph 1 of the Statute, if the Court can find no applicable law. Given that we are now considering cases brought under Special Agreements, in which consequently there will technically be neither an applicant nor a respondent (except as regards specific requests that the parties respectively put forward in their individual names), the Court cannot simply reject the overall claim. To the extent that it can be seised by virtue of the Special Agreement and that the latter eliminates the procedural positions of applicant and respondent, which would enable the Court to end the case with a ruling against the State with the weaker case, it might seem essential to leave the Court the right to pronounce a non liquet. An exception does have to be made where the parties are agreed on a judgment in equity under paragraph 2 of Article 38. Until now, however, the Court has not exercised such a power, and it would in any event be a great mistake for it to do so lightly. It must be recognised, however, that in the last resort the possibility of pronouncing a non liquet is necessary within these narrow limits. This is not to be regretted. In its contentious practice, the Court has never had to pronounce a non liquet. This shows the extent to which the Court has been ready to contribute to the development of international law which, particularly at the time the Court was first created in 1920, contained major uncertainties and lacunae. Sometimes, the predominant view of leading commentators has been that the Court has come close to a non liquet.2333 For example, in the case of the Haya de la Torre (1951), the Court recalled that there were no rules of international law governing the way in which asylum granted in an embassy, must be brought to an end. In formal terms, this was not a non liquet, but rather a case of the Court recognising the freedom of States to proceed in that regard as they thought fit. This was the position even if the absence of any legal rule might result in a troublesome situation involving conflict and a stand-off. These dangers might tempt one to affirm that an international legal norm ought to exist in this area, that consequently there was indeed, from that perspective, a lacuna, and that the Court, in failing to develop the law on the subject, was   H Lauterpacht, The Development of International Law of the International Court (London, 1958) 145.

2333



THE POWER TO PRONOUNCE A NON LIQUET 749

verging on a non liquet. The view of that eminent jurist, Sir Hersch Lauterpacht, can be explained and justified in this way. Also, the Court has experienced various situations in which it might have had recourse to a non liquet but did not do so, each time preferring to develop the relevant international law by sagacious doses of additional normative provision. Thus in the North Sea continental shelf cases (1969), the Court was faced with the then relatively new phenomenon of opposite and adjacent continental shelf delimitation. It took the view that the equidistance rule was applicable neither by treaty (Germany had not ratified the relevant convention) nor by customary law (in the absence of a sufficiently uniform State practice and opinio juris). Also, according to the Court, no precise rule of customary law had grown up to govern delimitations of this kind. The Court might have stopped there and, for the rest, simply pronounced a non liquet: there was no law to apply; the law needed to be created; its creation was not for the Court but for the legislator. But the Court did not do this. As is well known, the Court turned to the very general concept of equity, as found in the old Truman Proclamation on shelf delimitation, since repeated in various contexts. Starting from this very general precept, the Court developed a corpus of principles and rules which were to become ever more finely calibrated by its developing jurisprudence. In short, it can be said that the Court does not favour the non liquet concept, and will have recourse to it only if there are extreme circumstances which give it little other choice. It has been argued that the non liquet problem can arise only in the course of the Court’s contentious activities, and that conceptually it is unthinkable in the context of the Court’s advisory work. This view is supported by the argument that the non liquet presupposes a duty to deliver a decision, which in such circumstances is impossible, and in any event also requires the Court to be engaged in a ‘normative activity’, which would not be the case if the Court were simply expressing opinions.2334 Put that way, the argument is misconceived. First of all, the Court applies international law in its consultative capacity just as it does in contentious cases, and the procedure is indeed aligned on its contentious procedure. The consequence is that any lacuna in the international law will manifest itself in the same way. Second, it is entirely possible for the Court not to decide a given question for want of clarity in the law. The fact that the proceedings are advisory ones is beside the point. A famous example is provided by the advisory opinion in the case on the Legality of the threat or use of nuclear weapons (UN General Assembly 1996). Faced with the delicate question of deciding whether the use of a nuclear weapon was internationally unlawful even in the extreme event of legitimate defence for the survival of the State, taking account of the policy of nuclear deterrence but also of the legal rules on armed conflict and other branches of international law, the Court’s view may be summarised by saying that it did not know what the exact law was, in other words that the law was unclear. By seven votes against seven, with the casting vote of the President deciding the issue, the Court declared that: However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.2335

  Dubisson, above n 2326, 108.   ICJ Reports 1996-I, 266, § 105, (2)(E).

2334 2335

750  CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES

This statement is in the same category as a non liquet:2336 the law was not clear. The absence of clarity was made more apparent by the fact that the Court had been asked to provide an abstract exposé of the law, which is the kind of request that crops up from time to time in the context of its advisory function. If the Court had been dealing with a concrete dispute, it would probably have been able to reduce the legal problem to manageable proportions by tying it to certain clearly established facts. It would then have been able to make a decision one way or the other, if necessary perhaps by dismissing the application. It is debatable whether the Court ought, when the law or the facts are unclear, to refuse to give an advisory opinion: the question is explained below. In the present author’s view, the Court does not have a discretion to refuse a request for an advisory opinion.2337 That does not mean that the Court cannot refuse to respond to such a request, whether generally or on a specific point. It simply means that, in doing so, the power the Court would be exercising would not be a matter of ‘discretion’ in the sense of a subjective feeling as to what is and is not, in the circumstances, appropriate, but rather that the Court would be recognising that it was obliged to refuse an answer – obliged by the need to preserve its judicial integrity, over which the Court alone stands guard (that is, a question of the general admissibility of the request). If the law cannot be decided despite attempts to do so by deploying all available sources and techniques; if the necessary facts on which to found an advice of judicial character are not available to the Court; then the Court will have to refuse any response. Whether this is a case of a non liquet, or an exercise of the power (or duty) to not respond if the Court’s general admissibility is at stake, is a question of classification. In view of the purely residual character of non liquet, a technique of last resort, it would be rather the latter. Moreover, in the Court’s contentious procedures, these two elements are clearly separate, often even from the temporal point of view – first, the Preliminary Objections proceedings, then the merits phase. This separation does exist in advisory proceedings too, but it is less clear-cut, since the two elements are to be found in the same jurisdictional pronouncement. The non liquet is not truly a technique in limine litis vel consiliis, enabling a judge to refuse from the outset to rule on the application. Rather, the way the concept is to be applied flows from analysis of the substantive issues in the case, and is decided at that level. In any given case, the point we are considering will therefore be a matter of refusing to respond to a question because of a want of general admissibility, even though the reason for the refusal flows materially from a non liquet. It will also be remembered that the Court can reformulate a question put to it, if it thinks that it has not been formulated with sufficient exactitude in light of the questioner’s true wishes.2338 The Court can also suggest that the requesting body modify the question – making this suggestion in anticipation of a non liquet and with a view to avoiding one. In short, although an element of uncertainty may remain as to the extent to which the non liquet concept is formally applicable in advisory proceedings, given that the Court can in certain circumstances legitimately refuse to respond to the question, and that its refusal can encompass situations typical of a non liquet, there is nevertheless no doubting the fact that, in substantive terms, the problem of a lack of clarity in the facts and/or the law can 2336   See the articles of Salmon and Weil, above n 2316. See also D Bodansky, ‘Non Liquet and the Incompleteness of International Law’ in L Boisson de Chazournes and P Sands (eds), International Law, the International Court of Justice and Nuclear Weapons (Cambridge, 1999) 153 et seq.; H Thirlway, ‘The Nuclear Weapons Advisory Opinions: The Declarations and Separate and Dissenting Opinions’, ibid, 410 et seq. 2337   See below. 2338   See, eg the opinion on the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, ICJ Reports 1980, 88, § 35.



JUDGMENTS AND ORDERS BY CONSENT 751

arise in advisory proceedings as in others. The Court must then refuse to respond, either as a matter of general inadmissibility or because it cannot identify any applicable norm in relation to the matter (non liquet). In the latter case, it will sometimes go beyond its normal mission of judging cases if it ventured to creating or developing the relevant law, especially at the often very general and abstract level at which the question is put to it in advisory cases. It is indeed easier to develop the law in a frugal way, through obiter dicta, prudent care and attention to minutiae, to whatever extent is required for the purpose of examining and answering the precise circumstances of concrete cases.2339 The legislative scope of a judicial pronouncement is considerably increased if it is necessary to develop the law at the level of a general question such as the legality of the threat to use, or use of, nuclear weapons. Paradoxically, therefore, it is in advisory opinion cases, where there is room for doubt about the formal use of a non liquet, that the concept may have its only practical application, whether this is openly avowed or not. Happily the concept is a relatively shadowy one, little commented upon except by the most expert jurists. This relative evanescence of the non liquet is evidence that what the Court is administering for the benefit of the international community is indeed a sufficiently complete corpus of law for most purposes. When the law reveals its limitations, the Court is capable of interpreting its own functions in such a way as to contribute to the development of the law by creative and innovative reasoning, rather than stopping short when it faces a difficult problem, throwing up its hands and thereby in a sense freezing rather than remedying, the inadequacies of the existing law. It is only in marginal cases that the concept of non liquet will weigh on the Court’s decision.

19.  JUDGMENTS AND ORDERS BY CONSENT

A consent judgment is a ‘jurisdictional decision by which the judging body embodies in the decision an agreement between the parties as to the solution to their dispute’.2340 Consent orders and judgments are a feature of various municipal systems of private law. The ultimate objective of a court in private law proceedings is to resolve disputes. Resolution is easier to reach, and more durable, when it is achieved by agreement. If it is possible to avoid investing public resources and time in taking court cases right through to their normal conclusion, bringing them to an end by an understanding between the parties, that is obviously welcome. Alternative means of resolution, such as conciliation and out of court settlement, have thus often been favoured. At the same time, it has been made possible for parties to combine the advantages of a judgement (making the outcome a matter of res judicata) with those of a direct settlement by agreement (with its concomitant blessings of flexibility and consent). Subject to certain conditions, therefore, a direct agreement between the parties can be embodied in a court decree and thus obtain the force of a judgment. There was no reason for the ICJ to refuse to do likewise. Indeed, the Court has even more reason to do so since it constantly insists that a judgment is a simple substitute for 2339   Which has not stopped the Court from frequently developing the law in the course of advisory proceedings, as shown by, for example, the cases on Reparation for injuries (1949), Genocide (1951) and Certain expenses (1962). See below, ch VIII. 2340  Salmon, Dictionnaire de droit international public, above n 2318, 622–23, (our translation).

752  CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES

direct and friendly settlement between the parties. The reason that, until now, neither the PCIJ nor the ICJ have made such an order, is that they have never been asked to do so by the parties. As early as 1930, the Court recognised that it could issue decisions by consent, embodying agreements between the parties. In one of its Orders in the Free Zones cases (1930), with reference to the economic conditions governing the zones, it carefully stated that ‘there seems nothing to prevent the Court from embodying in its judgment an agreement previously concluded between the parties; as a “judgement by consent”, although not expressly provided for by the Statute, is consistent with the spirit of that instrument’.2341 The formula used by the Court was, so to speak, placed in the margin of the text, and expressed in negative terms: there was nothing to prevent such a judgement (it was not prohibited, and therefore was probably allowed); there was no express provision for it, but it was consistent with the spirit of the Court’s activities, which militated in its favour. Nowadays the question is governed by Article 88, paragraph 2 of the 1978 Rules, in the subsection on discontinuance. The provision reads: 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.2342

If the parties come to terms, the dispute is resolved; the case will be discontinued; this is where the ‘judgment by consent’ comes in. It is the subject of an Order, because the Court is no longer deciding the case by a judicial act. Quite the reverse, the Court is recognising the agreement between the parties, and refers to it in terms, reinforcing its status by incorporating it into the Order. However, it is also possible for the parties to reach agreement only on certain aspects of the dispute, while leaving others to be decided by the Court. In such a case, there will be no discontinuance. Can the parties ask the Court to endorse their partial agreement by an Order? There seems no reason why not, by analogy with Rule 88, Article 2, even though one is then outside the context of complete discontinuance. In such a situation, there is at least a partial ‘discontinuance’ of the parts of the dispute that have been settled. The legal rationale for allowing the parties to enshrine their agreement in an Order of the Court remains the same. The fact that the Order will not work a complete discontinuance is hardly a decisive consideration: a different form of Order would just have to be used. In short, the Rules envisage only a full settlement and complete discontinuance, not that either can be done on a partial basis. However, the reasons favouring the former also militate in favour of the latter. Besides, if you can do more, you can also do less: if it is possible to embody a complete amicable settlement in an Order of the Court, it must be possible to do the same for a partial settlement, thus disposing of the relevant elements of the case. The Court has the necessary procedural powers to respond to this analogous situation – see Article 30 of its Statute. The Court could also insert a paragraph in its merits judgment, reflecting the agreement of the parties on the settled points. The effect of such an insertion would be much the same than the adoption of a separate Order. The Court can also, if it thinks it necessary, incorpo2341   PCIJ, Series A, no 24, 14. See also the positions adopted in PCIJ, Series D, no 2, 154; Series D, no 2 (Add.), 168–71; Series E, no 3, 200. 2342   See G Guyomar, Commentaire du Règlement de la Cour internationale de Justice, adopté le 17 avril 1978: Interprétation et pratique, 2nd edn (Paris, 1983) 562 et seq.



JUDGMENTS AND ORDERS BY CONSENT 753

rate the agreement into a full Judgment. The form of an Order, provided for in Rule 88, is determined mainly by the fact that the incorporation of the agreement is linked to discontinuance, and for the latter purpose an Order is used. However, the Court is always free to decide that an Order is not the appropriate form in the circumstances of the case, for example, because the agreement between the parties still leaves some aspects of the case unresolved, or because it would be useful to confer the superior status of a full Judgment on it, with the concomitant possibility of its being executed as provided for in Article 94, paragraph 2 of the Charter. The Court’s control over its own procedure, as provided for in Article 30 of the Statute, and as interpreted by its own practice and the predominant opinion of leading commentators, gives it a remarkable degree of flexibility as regards its field of possible procedural action. An ‘Order’ is not normally executable in the same way as a Judgment is, given that it generally relates to the management of the legal process rather than being a pronouncement on the merits. However, there is nothing absolute about this, as indeed is demonstrated by the Court’s provisional measures Orders in the LeGrand case (2001), which were declared to be binding on the parties.2343 The argument that, in our case, the Court is no longer deciding a dispute because it has already been settled by the parties, so that there is no need for a judicial act (a judgment), likewise does not dispose of the question. In substantive terms, the provisions of the agreement constitute the resolution of the dispute. If the Court considers that they are in conformity with its own views on the question, or if it wants, in response to the request of either or both the parties, to reinforce the status of their agreement by conferring on it, in addition to the force of the maxim pactum est servandum, the executory force of a Judgment of the Court, there is nothing to stop it incorporating the agreement into a Judgment. The formal condition enabling the Court to incorporate the parties’ direct agreement in an Order (or, exceptionally, in a Judgment) is that the parties to the case are all agreed that the Court do so. Under Rule 88, § 2, there may be a consent Order if the parties ‘so desire’, meaning that either they jointly make the request, or one asks and the other consents. It is not certain that simple normative acquiescence2344 would suffice, since there is probably no legal obligation to react to such a request. Such a duty to react, putting into play the principle that silence gives assent (qui tacet consentire videtur) might, if necessary, be inferred from the obligations of cooperation and mutual respect resulting from the common participation of the parties in legal proceedings before the Court. However, the text of the Rules seems rather to indicate that the parties’ desire must be expressed, on both sides, in a positive manner, not just negatively. That is, therefore, probably the correct legal view. Given the way the Rule is worded, the silence of one party cannot give rise to a legitimate expectation, which is the basis of the rule on normative acquiescence. If the parties want their settlement incorporated into the Court’s Order, they must notify it of their agreement on that point. The position will be different if the parties, having reached an agreement, wish only to discontinue the case. In those circumstances it will suffice for them to indicate their wish to discontinue: there is no need to deliver the terms of their agreement to the Court. Its practice in this regard is very clear.2345

  ICJ Reports 2001, 501 et seq., §§ 98 et seq.   This means a prolonged silence in the face of the other side’s proposal: qui tacet consentire videtur. . . . 2345   Since the days of the PCIJ: case of the Factory at Chorzów (1929), Series A, no 19, 13; Castellorizo case (1933), Series A/B, no 51, 6; Losinger (1936), Series A/B, no 69, 101; Borchgrave (1938), Series A/B, no 73, 5. See also Guyomar, above n 2342, 566–68. 2343 2344

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The Court cannot incorporate an agreement between the parties into either an Order or a Judgment, unless certain substantive conditions are satisfied. After all, by inserting the agreement into its Order or Judgment, the Court is effectively adopting it, giving it all the force of the Court’s authority and making it executable, if need be, according to the special modalities for the implementation of the Court’s decisions. The incorporation of a doubtful agreement into an Order or Judgment would be damaging to the Court’s prestige and a stain on its jurisprudence. The Court does have a margin of appreciation as to whether or not to incorporate the agreement into its pronouncement. Rule 88, paragraph 2 provides that the Court ‘may’ do so, not that it must. The word ‘may’ is taken by most commentators to indicate that the Court has a discretionary power. Although that would be acceptable in the case of an administrative body, it is doubtful that a Court of justice could possess a margin of discretion as a matter of simple convenience, so that in that respect it would be able to make judicial policy more or less freely. Legally, the better view is to link the word ‘may’ to the Court’s duty to safeguard its own judicial integrity. If there is no reason not to incorporate the agreement into its pronouncement, the Court has no legal basis for declining to do so. If, on the other hand, the preservation of its judicial integrity militates against a consent Order, the Court will be under no obligation to make one. The word ‘may’ must therefore be read as a short and elegant way of saying that the Court is not obliged to comply with the parties’ wishes, and that there may be reasons of judicial integrity, of which the Court is the sole guardian, not to comply, if to do so is not really compatible with the Court’s functions. Here the Court does possess a clear margin of appreciation, since the situations it may have to deal with are many, and frequently complex. In particular, the Court will be obliged to refuse in the following circumstances. First, the parties cannot be allowed to impose conditions on the validity of the Court’s pronouncement, for example by subjecting it to their subsequent approval or ratification.2346 Second, the contents of the decision must conform to the jus cogens of general international law. Third, the agreement must be in conformity with the Statute and the Rules of the Court. Fourth, the contents of the agreement must not depart too far from the view of international law supported and promoted by the Court. The Court is under no obligation to enshrine in one of its pronouncements an agreement between the parties made on a legal basis that is excessively out of kilter with the Court’s own philosophy. Also, the parties are legally obliged to register their agreement under Article 102 of the Charter before the Court can incorporate it in an Order or Judgment. If unregistered, the agreement cannot be invoked before any UN organ. So the Court must satisfy itself that the parties have at least submitted the agreement to the UN Secretariat. Is the Court’s order or judgment executory? Does Article 94, paragraph 2 of the Charter apply to it? Given that the content of a direct agreement between the parties is formally being made the subject of a pronouncement by the Court on the merits of the dispute (whether by way of Order or Judgment), there is no reason why the ordinary rules should not apply. It will be remembered that even an Order, when it incorporates a substantive obligation (as for example, under provisional measures) can be executory in nature. A pronouncement such as we are now considering, directly on the merits, has therefore to be capable of being executed in accordance with the normal mechanisms for executing the Court’s judgements. For this reason it is important for the Court to satisfy itself as to the terms of the agreement, before it incorporates them into its pronouncement.   Case on the Free Zones, PCIJ, Series A/B, no 46, 161.

2346



DECLARATORY JUDGMENTS 755

20.  DECLARATORY JUDGMENTS2347

A declaratory judgment may be defined as follows: ‘A jurisdictional decision interpreting a point of law independently of the concrete consequences of that interpretation in the circumstances of the particular case.’2348 Such a decision is binding but not executory. By it, the Court clarifies, with binding effect on the parties to the case, the meaning of certain legal norms (the interpretative aspect), the significance of certain facts in relation to the applicable law (this aspect being concerned with categorising relevant matters, identifying breaches of the law, and subsuming), the legal scope and bearing of a given situation (for example, the competence or jurisdiction of a given body in light of a subsequent practice; the existence of a norm of customary law and so on) or the rights and obligations of the parties involved in a particular legal relationship, without however, going so far as to order performance or implementation in the particular circumstances that have arisen. The Court’s declaration is thus a relatively abstract one; the Court reaches legal conclusions but then stops short of drawing the further conclusions that are appropriate to the particular circumstances, leaving that to the parties. In a way, one can consider this an only partial exercise of the Court’s jurisdiction: it does involve identifying and ruling on the law (the Italian language pinpoints this exercise best, in the expression accertamento del diritto), but the Court then abstains from ordering the parties to carry out the consequential acts required to give effect to that ruling (the Rechtsfolgen – here it is German that most exactly pinpoints the concept). The essence of a declaratory judgment is thus to ascertain and identify the law, without imposing on any of the parties any specific obligation to commit any act or to cease or omit any action, that is, without any particular sanction flowing from the ascertainment of the law.2349 In short, by seeking a declaratory judgment rather than ordering the doing (or avoidance) of certain specific acts, the applicant is calling on the Court to pronounce, with the force of res judicata, on the legal situation or relationship as between the parties to the dispute. Subsequently, it is for the parties themselves to work out how the judgment should in practice be implemented. The judgment determines the framework, an obligation of result, without determining the means by which that result is to be achieved. A declaratory judgment is always based on the work both of the Court and the parties: the Court intervenes only on one aspect, to clarify the law; its pronouncement in that regard is then used by the parties to resolve the dispute. The declaratory judgment is thus, of necessity, only one element of a putative settlement of the dispute. The parties cannot ask the Court for a declaratory judgment with no such practical implications, because, in that event, the Court’s work would be pointless. The Court would refuse their request, since the case would then simply be an advisory opinion case, the judgment having no practical or binding effect. That is not a possibility in the context of the Court’s contentious procedures between States. 2347   See Lauterpacht, The Development of International Law, above n 2333, 250–52; S Rosenne, The Law and Practice of the International Court, 1920–2005, 3rd edn, vol III, (Leiden, 1997) 1636–37; EM Borchard, ‘Declaratory Judgment in International Law’ (1935) 29 AJIL 488 et seq.; EM Borchard, Declaratory Judgments, 2nd edn (Cleveland, 1941); G Morelli, ‘La théorie générale du procès international’ CCHAIL, vol 61, 1937-III, 332 et seq.; N Scandamis, Le jugement déclaratoire entre Etats (Paris, 1975). Declaratory judgments are also in frequent use in the English-speaking legal systems: cf HK Woolf and J Woolf, The Declaratory Judgment, 3rd edn (London, 2002). 2348  Salmon, Dictionnaire de droit international public, above n 2318, 623 (our translation). 2349   P Guggenheim put the issues very well in his Traité de droit international, vol II (Geneva, 1954) 163.

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A declaratory judgment can provide parties who desire to reach agreement with an additional instrument for settling their dispute. It sometimes happens that the only point they cannot agree on is the interpretation of a norm, and that in all other respects they can resolve everything by negotiation. They may, in such circumstances, wish to retain all the advantages of direct negotiation, with the possibility of making, in light of their particular situation, more flexible adjustments to their respective rights and obligations than a judge could, and using the Court as a kind of partial substitute for direct agreement, asking it to resolve the outstanding issue of interpretation. On other occasions, a particular field of law (sometimes a new one) may have yet to give rise to a sufficient body of clear rules, still containing too many elements of uncertainty, of a kind that in turn generates disputes. The parties may well decide that they have an interest in asking the Court to clarify the law, so that they can better understand their respective positions. Also, States which cannot seek an advisory opinion from the Court can nevertheless apply for declaratory judgments, with a view to achieving broadly similar results. A State cannot bring a one-party case before the Court, in the way an authorised organ can unilaterally request an advisory opinion. But if a point of law needs to be clarified in the context of a dispute between two or more States, then they can obtain, so to speak for their ‘private’ use, a declaratory judgment, which in a sense is a kind of advisory opinion, although it does, admittedly, have the force of res judicata and is thus binding on them. From the perspective of the Court and of the international legal community, there may be plenty of interesting material in a declaratory judgment. It is a device particularly well suited to international law, because it makes possible the clarification and development of the norms of a legal system which suffers, more than any other, from uncertainties, variable geometry, exceptions, complexities, grey areas and sometimes sheer lacunae as well. No doubt we should regret the fact that States have not made greater use of this mechanism for clarifying their rights and obligations. It would simultaneously have given the Court further opportunities to clarify and develop ‘objective’ international law. The Court delivers a declaratory judgment if the parties jointly request one, or if the applicant makes a unilateral request indicating the subject matter of the dispute. Can the Court also of its own volition refuse to rule on executory rights, and confine itself simply to declaring the applicable law? It is normally accepted that, generally speaking, the Court can decide infra petita. It will do so if either of the parties’ cases is insufficiently based in fact and/or law to allow a full determination; it also happens if the Court is prevented by the Monetary gold principle relating to third States from exercising its jurisdiction over the entirety of the case that it is seised of. However, those situations are not, for present purposes, relevant. Indeed, where the parties’ claims are not adequately founded in fact or in law, the Court cannot turn a request for an executory judgment into a declaratory judgment case. All it can (and must) do, is to award less than was initially requested of it. Instead of doing what the law does not allow, the Court must simply do less, remaining in the same category. Where the Monetary gold principle applies, it applies as much to the abstract determination of the parties’ rights and obligations (which would necessitate a prior decision on the rights and duties of the affected third party), as it does to executory pronouncements on those same rights and obligations. A third State which does not consent is not obliged to allow the Court to decide on its rights and obligations, not even in a purely declaratory judgment.2350 Indeed, if the Court were to do so, the third State’s legal 2350   See the case on the Continental shelf in the Aegean Sea, ICJ Reports 1978, 16–17, § 39, where the Court recognised that any declaration as to the legal status of the General Act might affect other States.



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position would have been decided just as much as if the judgment had been an executory one. The judgment is always, as regards the third State, res inter alios acta, and thus, as regards that State, not a directly binding and executory matter of res judicata. The third State therefore benefits from the protection of the Monetary gold principle in relation to the abstract determination by the Court of its legal position. This is prohibited by the Court’s procedural law unless the third State consents. If the Court decides that it can usefully deliver only a declaratory judgment because in the particular case there is no way it can render an executory one (for example, because it has only very limited subject-matter jurisdiction, or because the parties have reserved to themselves, in advance, the right not to execute whatever judgment the Court may give), the only way out will be for the Court to suggest giving a declaratory judgment,2351 then waiting to see what view the parties take of that suggestion. If they accept it, the Court will have the competence to deliver a declaratory judgment; if not, not. The declaratory character of a judgment is determined by its operative part, in French the dispositif. The fact that the reasoning may contain descriptive, historical or preliminary elements does not alter the nature of the judgment. Thus, in the Gabcikovo-Nagymaros case (1997), part of the Court’s decision (in the section giving reasons) was ‘declaratory’ in nature: The Court observes that the part of its judgment which answers the questions in Article 2, paragraph 1 of the Special Agreement has a declaratory character. It deals with the past conduct of the parties and determines the lawfulness or unlawfulness of that conduct between 1989 and 1992, as well as its effects on the existence of the Treaty. (italics in the original)2352

The Court thought it helpful to address itself to this question because it shed more light for the parties on their legal relationship as regarded the subject of the case, and on their obligations for the future. In the latter respect, the Court’s decision was executory, although the statement of its reasons (not the dispositif  ) did contain declaratory elements. But this was in no sense a declaratory judgment, since the ‘declaratory’ part was contained in the reasons. In practice, the Court does not often issue declaratory judgments. However, there have been various instructive examples. In the case on Interpretation of Paragraph 4 of the Annex to Article 179 of the Treaty of Neuilly (1924),2353 the Court accepted that abstract questions could form the subject of a judgment. In that case the Court, as requested, confined itself to interpreting the disputed norm so as to facilitate the resolution by arbitration of a dispute between Greece and Bulgaria. In the case on Certain German interests in Polish Upper Silesia (merits, 1926), the Court reaffirmed that: There seems to be no reason why States should not be able to ask the Court to give an abstract interpretation of a treaty; rather would it appear that this is one of the most important functions which it can fulfil . . . Article 59 of the Statute, which has been cited by Poland, does not exclude purely declaratory judgments. The object of this Article is simply to prevent legal principles accepted by the Court in a particular case from being binding on other States or in other disputes. It should also be noted that the possibility of a judgment having a purely declaratory effect has been foreseen in Article 63 of the Statute . . . [intervention to ensure the uniform interpretation of a multilateral convention].2354   As it might also propose a judgement ex aequo et bono under Art 38, § 2, of the Statute.   ICJ Reports 1997, 75, § 130. 2353   PCIJ, Series A, no 3, 4 et seq. 2354   PCIJ, Series A, no 7, 18–19. 2351 2352

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In the case on the Interpretation of Judgments nos 7 and 8 (Factory at Chorzów) (1927), the Court reaffirmed that a declaratory judgment was a possibility, saying that such a judgment is given ‘in order to state the law once and for all, with binding effect as between the parties, so that the legal situation, thus determined, cannot become the subject of fresh debate about the legal consequences flowing from it.’2355 The present Court likewise issues declaratory judgments. Perhaps the most famous is the one given in the North Sea continental shelf cases (1969). The parties did not wish the Court itself to delimit their respective continental shelves. All they wanted was for the Court to clarify the applicable customary law, which at that time was far from clear, so that they could make progress in their direct negotiations, which for the time being were stalled. The Court accordingly gave a judgment that was confined to the ‘principles and rules of international law . . . applicable to the delimitation as between the Parties of the [disputed] areas of the continental shelf ’.2356 The Court recognised that it could deliver declaratory judgments in the case of the Northern Cameroons (Preliminary Objections, 1963), distinguishing such cases from those in which the application no longer serves any practical purpose.2357 A declaratory judgment determines the parties’ future rights by reference to the applicable legal instruments remaining in force; if they are no longer in force, the judgment can have no future impact, and the dispute then has no justiciable object. How is the distinction drawn between declaratory judgments (which are possible) and veiled requests by States for advisory opinions (which are prohibited)?2358 Depending on the circumstances, there are two factors which can make the distinction a relatively fine one. First, an advisory opinion may be requested by an authorised organ on a live dispute between two States, in an endeavour to clarify the legal aspects for the information of the requesting body. In the words of de Visscher, such an opinion defines ‘the legal relationship between the parties’ without requiring them to take any step or execute the judgment2359 in any way.2360 The only difference here is in the qualification for acting ratione personae: the various organs and other bodies of the United Nations that are entitled to request advisory opinions on the one hand, and on the other, the States concerned in requests for declaratory judgments. Secondly, the distinction is also a fine one when States   PCIJ, Series A, no 13, 20.   These were the expressions used in the Special Agreement: ICJ Reports 1969, 6. For the operative part of the Court’s judgment, see ibid, 53–54, where it indicated the applicable principles and pointed out to the parties the matters they should take into account in their direct negotiations. 2357   ICJ Reports 1963, 37. 2358   On this problem see, eg H Lauterpacht, The Development of International Law, above n 2333, 250–52; Scandamis, above n 2347, 184; D Pratap, The Advisory Jurisdiction of the International Court (Oxford, 1972) 232– 34; KJ Keith, The Extent of the Advisory Jurisdiction of the International Court of Justice (Leiden, 1971) 18–21, 237–38; LM Goodrich, ‘The Nature of the Advisory Opinions of the Permanent Court of International Justice’ (1938) 32 AJIL 756–57; R Pinto, ‘L’organisation judiciaire internationale, la Cour internationale de Justice. Les décisions de la Cour’ Jurisclasseur de droit international, fasc 218, 7, no 39 (Paris, 1959); Case of the Continental shelf (Tunisia v Libya), ICJ Reports 1982, 40, § 29 and Dissenting Opinion of Judge Evensen, ibid, 279, the latter saying of the Special Agreement: ‘Of course the Court has not been asked to render an advisory opinion, as it could not be asked to do so, in the present contentious case between two States. Nor could it agree in any other way solely to give “guidance” to the parties to the present dispute which would lack the essential elements of a formal judgment . . .’ cf also the positions of France and New Zealand in the Secretary General’s Report, Official documents of the United Nations, A/8382 (1971), 104 and A/8382/Add 4, 4, and Ch de Visscher, Aspects récents du droit procedural de la Cour internationale de Justice (Paris, 1966) 191. 2359   Ch de Visscher, ‘Les avis consultatifs de la Cour permanente de Justice internationale’ CCHAIL, vol 26, 1929-I, 36. 2360   As to the Court’s jurisdiction to give an advisory opinion in relation to a live inter-State dispute, cf the case on the Interpretation of the Peace Treaties with Bulgaria, Hungary and Romania (First phase) ICJ Reports 1950, 71–72. 2355 2356



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agree in advance to treat the advisory opinion as binding upon them.2361 Even when they do not do that, the questions formulated by the parties in cases such as Certain German interests in Polish Upper Silesia,2362 Status of the territory of Memel,2363 the North Sea continental shelf  2364 and the Continental shelf (Tunisia/Libya)2365 show how fine the substantive distinction can be between an advisory opinion and a declaratory judgment. However, the difference of ratione personae entitlement remains. Legally, and apart from the personal entitlement, an advisory opinion is to be distinguished from a judgment essentially by the fact that the latter is res judicata (Article 59 of the Statute). The legal position as between the parties, as determined by the Court, is binding upon them, even though it remains for them to determine the modalities of implementation. An advisory opinion is quite different: the requesting body is not technically bound by the Court’s pronouncement. The central distinction between the two is thus that declaratory judgments are binding and amount to res judicata as regards the (abstract) matters with which they deal. The parties have obligations by virtue of the judgment, even though it requires of them no particular acts or abstentions from action. An advisory opinion, by contrast, gives the States concerned only a non-binding judicial pronouncement to work with. It puts them under no kind of obligation. To allow States to seek such advisory opinions would simply be incompatible with the Court’s functions in relation to contentious cases, to which it is confined in disputes among States. It has been argued that declaratory or abstract judgments, although useful in themselves, are not really consistent with the Court’s judicial function: ‘In such cases, the tribunal is not in possession of all the elements needed to produce a properly considered decision; the judgment thus fails to guarantee that all the practically possible interpretations have been properly considered.’2366 However, the disadvantages of such an ‘imperfect’ exercise of the judicial function are far outweighed by the advantages. In fact, the same problem arises in relation to advisory opinions, such as the Wall opinion of 2004),2367 but, so far, the Court has never faced insurmountable problems (with the exception perhaps of the PCIJ in the Eastern Carelia opinion), and nor has it had to give an opinion that was in some way 2361   MO Hudson, ‘The Effect of Advisory Opinions of the World Court’ (1948) 42 AJIL 631–32; D Negulesco, ‘L’évolution de la procédure des avis consultatifs de la Cour permanente de Justice internationale’ CCHAIL, vol 57, 1936-III, 84 et seq.; and Pratap,,above n 2358, 228–30. As to ‘binding’ advisory opinions, cf also R Ago, ‘Binding Advisory Opinions of the International Court of Justice’ (1991) 85 AJIL 439 et seq.; and G Bacot, ‘Réflexions sur les clauses qui rendent obligatoires les avis consultatifs de la Cour Permanente de Justice internationale de la Cour internationale de Justice’ (1980) 84 RGDIP 1027 et seq. 2362   PCIJ, Series A, no 6, 5–6. 2363   PCIJ, Series A/B, no 49, 296. For Judge Anzilotti, the abstract form of the questions put to the Court meant that the ‘application does not embody the essential features of a claim for legal redress and tends to force the Court to deviate from the fundamental rules governing the activities of a judicial body’ (ibid, 349). In his view, the application was inadmissible for want of any regular petitum and causa petendi (prayer for relief and basis of claim): ‘The Court could not answer the questions put in the application, because by so doing, it would be giving an advisory opinion for which the applicant Powers were not entitled to ask and which the Court was not entitled to give.’ (ibid, 350) The Court regretted the questions formulated ‘purely in abstracto, without any reference to the facts of the dispute which has arisen’ (ibid, 311). It added that the appropriate method for submitting the dispute to the Court, would have been to directly present arguments concerning the legality of the disputed acts (ibid, 311–12). In the end, the Court interpreted the questions put to it in light of the concrete arguments advanced in the course of the case (ibid, 312 et seq.). cf also Lauterpacht, The Development of International Law, above n 2333, 251–52. 2364   ICJ Reports 1969, 6. 2365   ICJ Reports 1982, 21. 2366   P Guggenheim, Traité de droit international, above n 2348, 165 (our translation). 2367   See, eg the Declaration of Judge Buergenthal, ICJ Reports 2004-I, 240–41. This argument has often been repeated in Israeli circles.

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defective. Similarly, in relation to contentious proceedings, the Court has to be entitled to refuse a declaratory opinion if, in the concrete circumstances of a particular case, it cannot give one without damage to the principle of its judicial integrity. The requirement of general admissibility applies just as much to requests for declaratory judgments as to any other case. It provides more than adequate protection against the dangers rightly identified by P Guggenheim. It is surprising that States have not made greater use of declaratory judgments to assist them in dealing with disputes. A declaratory judgment can make a partial contribution to resolving the dispute by clarifying relevant legal aspects, while still leaving the parties a considerable freedom of manoeuvre. One might have expected States to be delighted with this, but it must be recognised that they quite obviously prefer to keep the Court right out of disputes they feel are too delicate; or else, at the other extreme (when they feel the case is more suited to the Court’s intervention), they prefer to obtain a binding decision on all aspects, because they fear that otherwise a solution might not be reached at all.

21.  EFFECTS OF THE DECISION2368

a)  Definitions and Conceptual Features: The Force of res judicata, Binding Character of the Judgment and its Execution The main effects of a judgment of the Court are that it creates a res judicata, is binding on the parties, and may create executory rights in favour of a party (normally the applicant). The first two of these three elements are normative aspects: a secondary norm relating to the judicial resolution of disputes provides that the judgment, as a legal act, is binding on the parties, constituting a res judicata in a manner we will shortly consider more closely. The execution of a judgment is a factual matter: when a party has obtained a judgment in its favour, there are bodies and mechanisms that enable pressure to be brought to bear with a view to ensuring that the party’s rights, as recognised in the judgment, are satisfied. A separate section 24(b) will be devoted to the execution of the judgments and other binding pronouncements of the Court. More immediately, we will consider the questions of res judicata and the binding character of the judgment. 2368   See in this regard, MO Hudson, The Permanent Court of International Justice, 1920–1924. A Treatise (New York, 1943) 591–92; Dubisson, above n 2326, 246–47; Rosenne, The Law and Practice of the ICJ, above n 2347, 1627 et seq.; R Bernhardt, ‘Article 59’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 1231 et seq. See also, M Limburg, ‘L’autorité de la chose jugée des décisions des juridictions internationales’ CCHAIL, vol 30, 1929-V, 523 et seq.; Ch de Visscher, ‘La chose jugée devant la Cour internationale de Justice’ (1965) 1 RBDI 5 et seq.; A El Ouali, Effets juridiques de la sentence internationale (Paris, 1984); A Grisel, ‘Res judicata: l’autorité de la chose jugée en droit international’ in Essays in Honor of G Perrin (Lausanne, 1984) 139 et seq.; L Condorelli, ‘L’autorité des décisions des juridictions internationales permanentes’ in SFDI (ed), La juridiction internationale permanente, (Colloque de Lyon/Paris, 1987) 277 et seq.; J Salmon, ‘L’autorité des prononcés de la Cour internationale de la Haye’ in P Vassart (ed), Arguments d’autorité et arguments de raison en droit (Brussels, 1988) 21 et seq.; S Rosenne, ‘Article 59 of the Statute of the ICJ Revisited’ in Essays in Honor of E Jiménez de Aréchaga, vol II (Montevideo, 1994) 1129 et seq.; M Shahabuddeen, Precedent in the World Court (Cambridge, 1996); I Scobbie, ‘Res Judicata, Precedent and the International Court’ (1999) 20 Australian Yearbook of International Law, 299 et seq.; LNC Brant, L’autorité de la chose jugée en droit international public (Paris, 2003); C Schulte, Compliance with Decisions of the International Court of Justice (Oxford, 2004); LNC Brant, ‘L’autorité des Judgments de la Cour internationale de Justice’ in C Apostolidis (ed), Les Jugements de la Cour internationale de Justice (Dijon, 2005) 141 et seq.



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The main source of relevant law applicable to the ICJ is Article 59 of the Statute, which reads: ‘The decision of the Court has no binding force except between the parties and in respect of that particular case.’ One also needs to refer to Article 94, paragraph 1 of the UN Charter, which reads: ‘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;’;2369 and to Rule 94, paragraph 2 which reads: ‘The judgment shall be read at a public sitting of the Court and shall become binding on the parties on the day of the reading.’ Res judicata. How should one define the ‘res judicata’ concept? In what ways is it distinct from the binding force of the judgment? The distinction may be analysed in both the formal and the material (substantive) senses. In formal terms (formelle Rechtskraft) the force of res judicata indicates that it is no longer liable to be reversed, modified, or suspended as regards its executory effects, by any court.2370 So the decision is a definitive one. This narrow and formalistic sense of the res judicata doctrine arises either from the fact that there is no recourse to a court against the judgment, or from the fact that, if there is one, the right to it has not been exercised within the available time limit. Either way, the decision is now ‘definitive and unappealable’,2371 in the former case as from the moment judgment is given, and in the latter, as from the moment the time limit expires. Either way, therefore, it is technically a res judicata. In the substantive or material sense (materielle Rechtskraft), res judicata means that the contents of the definitive decision can no longer be reopened in subsequent proceedings between the same parties. The contents have been established pro veritate, as a matter of ‘truth’. Except for special procedures which may even then come into play, for example an application for the revision of the judgment, the judgment is now law as between the parties. Binding nature of the judgment. A distinction is to be made between res judicata under the judgment, whether formal or substantive, and the judgment’s compulsory or binding nature as between the parties. The authority of res judicata is concerned only with the nature of the decision itself, that is, with the fact that it is no longer susceptible to appeal, modification and so on, so that it has become law as between the parties. Its binding character is a matter of the obligations of the parties with respect to that judgment. In public international law – this ‘rough jurisprudence of nations’2372 – and particularly in relation to 2369   This disposition must be read in tandem with Art 59 of the Statute. It was considered so important at the time, that it was thought helpful to insert it into the Charter, in Chapter XIV (concerning the Court). It had to be repeated in the Statute, not only in view of its importance, but also because States could become parties to the Statute without being Members of the UN. As to Art 94 of the Charter, see especially H Mosther and K OellersFrahm, ‘Article 94’ in B Simma, The Charter of the United Nations – A Commentary, 2nd edn, vol II (Oxford, 2002) 1174 et seq.; A Pillepich, ‘Article 94’ in JP Cot, A Pellet and M Forteau (eds), La Charte des Nations Unies, Commentaire Article par Article, 3rd edn, vol II (Paris, 2005) 1987 et seq. 2370   According to Salmon, Dictionnaire de droit international public, above n 2318, 513, the force of res judicata (in the narrow formal sense) is as follows: ‘Characteristic of a judicial decision which is not, or is no longer, subject to a legal recourse which might suspend its execution, and thus becomes executor.’ (our translation) The German expression ‘Rechtskraft’ is more neutral and applies also to acts of the Executive. Some such decisions of the Executive are immediately executory, despite the fact that they do not yet have the formal authority of res judicata, and this is particularly the case in urgent situations. If there is a possibility of non-suspensive legal recourse, that will not stop the decision from having the force of res judicata. In such cases, the terminology used varies: some authors assert that these are cases of res judicata, others deny it. 2371   See, eg the Barcelona Traction case (Preliminary Objections), ICJ Reports 1964, 20, ‘question finally and definitively settled’. See also the prior case of the Société commerciale de Belgique (1939), PCIJ, Series A/B, no 78, 175, ‘definitive and binding’. 2372   Following the often cited expression of WE Hall, A Treatise on International Law, 8th edn (Oxford, 1924) 395, fn 2.

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the Court, both these aspects, the res judicata and the compulsory character, have tended to be fused together in a broad reading of Article 59 of the Statute. There is indeed little to prevent that happening. It is nevertheless right to insist on the fact that, legally, the three aspects of the judgment – formal res judicata, substantive res judicata and the binding character, are different from each other. In the law of the ICJ, the force of res judicata derives from the conjunction of Articles 59, 60 and 61, while the binding force of the judgment, as between the parties, is derived from Article 59 alone.2373 The execution of the judgment is governed by Article 94, paragraph 2 of the Charter. There are two reasons why one does not find any rule in the Statute as to the execution of judgments; one is substantive, the other formal. The substantive reason is that the execution of judgments is a concern, not of the Judiciary, but of the Executive. It is not for the Court to concern itself with the implementation of its decisions, and therefore there is no provision for it in the Statute or the Rules. The formal reason is that the execution of the Court’s judgment was already governed by another instrument (the League of Nations Covenant) at the time the PCIJ Statute was drafted.2374 The Committee of Jurists therefore decided that there was nothing that could be usefully added to Article 13, paragraph 4 (sentence 2) of the Covenant2375 (see now Article 94, § 2 of the UN Charter). Technically, this way of proceeding may have been questionable, since a State could be a party to the Statute of the Court without being a member of the League. The substantive reason, already indicated above, is, however, a perfectly adequate explanation. The need for, and value of, the rules considered above is really beyond debate. They have been recognised, from the outset, as essential elements of any arbitral or judicial process. That is why the legal concepts of ‘force of res judicata’ and ‘binding character of the award or judgment’ are general principles of law, structurally inseparable from judicial and arbitral procedures.2376 The rules on res judicata and on the judgment’s binding character ensure that the entire procedure has its irreducible minimum necessary effect. Its essential purpose is to resolve the dispute, and that is the parties’ objective too. It is also the objective of the international community, designed to keep the peace: expedit rei publicae, ut sit finis litium.2377 2373   In the view of Judge Anzilotti, Art 60 relates to res judicata itself, whereas Art 59 sets out the personal application and subject-matter scope of the res judicata: Dissenting Opinion of Judge Anzilotti, in the case on Interpretation of Judgments nos 7 and 8 (Factory at Chorzów) (1927), PCIJ, Series A, no 13, 23: ‘The first object of Article 60 being to ensure, by excluding every ordinary means of appeal against them, that the Court’s judgments shall possess the formal value of res judicata, it is evident that that Article is closely connected with Article 59, which determines the material limits of res judicata when stating that: “The decision of the Court has no binding force except between the parties and in respect of that particular case”: we have here the three traditional elements for identification, persona, petitum, causa petendi, for it is clear that “that particular case” covers both the object and the grounds of the claim.’ 2374   cf B Schenk von Stauffenberg, Statut et Règlement de la Cour permanente de Justice internationale – Eléments d’interpretation (Berlin, 1934) 421. 2375   The text reads as follows: ‘The Members of the League agree that they will carry out in full good faith any award or decision that may be rendered, and that they will not resort to war against a Member of the League which complies therewith. In 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.’ 2376   The various texts merely codify this principle which exists independently of them. See, eg Arts 81 and 84, § 1 of Hague Convention I of 1907 on the peaceful settlement of disputes. Art 1 provides that: ‘The [arbitral] award, duly pronounced and notified to the agents of the parties, settles the dispute definitively and without appeal.’ Art 84, § 1 provides that : ‘The Award is not binding except in the parties in dispute.’ See JB Scott, Les Conférences de la Paix de la Haye de 1899 et 1907 (Paris, 1927) 259–61. 2377   Meaning that it is a public interest that disputes should be brought to an end. See the Codex Justinianus, De iudiciis, III, 1, 16 (Justinian): ‘cum post litem contestatam neque appellere posse ante definitivam sententiam iam statuimus neque recusare posse, ne lites in infinitum extendantur’. See also De re iudicata, VII, 52, 2 (Caracalla); and II, 4, 10 (Philip).



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That objective could not be achieved if the court’s ruling were merely a suggestion, and could in consequence be constantly re-opened. The proceedings would be gutted of their inner sense and practical value. The above rules also serve the cardinal principle of legal certainty in general, and of certainty inter partes. The judgment is not only a matter of justice, but also of security, reflecting the eternal polarity and the eternal benefit, of the rule of law. The judge holds in his hand the scales of justice and wisdom; but also the sword of power, representing the authority of the decision-maker. Judicial procedures are essentially born of the conjunction of the two elements thus symbolised. The dispute is resolved, and the legal position made certain – the former necessitates the latter. The interest to be protected spawns the legal rule itself. Given that, in public international law, judicial and arbitral procedures are based on the consent of the parties, the obligation created by the judgment or award is also derived from the cardinal principle pacta sunt servanda. In addition to a general and objective principle concerned with the finality of the judgment, we thus have a subjective submission resulting from an act of will. The parties have submitted to the Court voluntarily; they have assumed all the obligations which necessarily result from that submission, including the duty to respect the decision they have requested, and which has been handed down by the Court. In contrast to the obligation to respect the judgment, the authority of res judicata derives solely from objective rules of international law, and not from the principle pacta sunt servanda.

b)  Legal Scope of Article 59 of the Statute Article 59 of the Statute comprises five legally essential elements, and these in turn involve certain other questions. The five key elements are: ‘decision’, ‘has no’ (negative formulation), ‘binding’, ‘parties’ and ‘in respect of that particular case’; ‘The decision of the Court has no binding force except between the parties and in respect of that particular case.’ (italics added) (1)  Negative Formulation: ‘ has no binding force except . . .’ The negative formulation of Article 59 – inherited from Article 84, paragraph 1 of Hague Convention I of 1907 on the peaceful settlement of disputes – is explained by the conjunction of three different intentions. First, the draftsmen wanted to emphasise that the Court’s judgment is legally binding only on the parties to the case, and a contrario, not on other States that are subject to the Statute. International justice is based on the principle of consent, itself deriving from the sovereignty of States. In the eyes of the draftsmen, it was therefore right to include a particularly explicit provision confining the effects of judgments to the parties who had given that consent. The negative formulation did the trick. Second, there was a concern to emphasise that the common-law doctrine of precedent (stare decisis) did not apply in international law.2378 Judgments confine themselves to doing justice between the parties in the particular case. Here, too, the negative formulation served its purpose particularly well. Third, the draftsmen were concerned to make it clear that the Court does not ‘legislate’, that is, that it is not the Court’s role to make law: sovereign States are particularly sensitive on that point. Although it is fair to say that all jurisprudence has a   As to such inapplicability, see Bernhardt, ‘Article 59’, above n 2368, 1244.

2378

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creative element as regards the law, and even though that element is particularly strong in a legal system containing so many uncertainties as international law, the draftsmen of the Statute wanted to reassure the States by restating this inherent limitation of the Court’s functions. Here yet again, the negative formulation was a helpful way of making the position clear. The three negative elements – no effect on non-parties, no doctrine of precedent, no legislation – led the draftsmen, in the most natural way, to a textual provision that was likewise negative. For these reasons, one can say that the purpose of Article 59 goes beyond positively establishing that the Court’s judgment is binding on the parties. At the same time it fulfils the fundamental purpose of setting limits to this binding character, confining it both to the parties and to the particular case. The attributive and privative functions are closely intertwined, the positive and negative sides effectively fused into a very dense formulation. (2)  Limited to the Parties: ‘between the parties . . .’. The Court’s judgment is binding on the parties to the case, and only on them (see also Article 63 of the Statute).2379 It is not binding on other participants in the proceedings, and, in particular, is not binding in parties that have intervened on an accessory (as opposed to principal) basis, under Article 62 or Article 63. As we have seen, only certain elements of the judgment will be opposable to the intervening State, and not the judgment as a whole. Since only States can be parties to cases before the Court (Article 34, § 1 of the Statute), only States can be formally bound by the resulting judgments. If the Court refers in its judgment to other entities, they will not be bound. Obviously it remains possible for a judgement or advisory opinion of the Court to bind individuals as a result of States’ internal law. The binding force of the judgment as regards them thus derives neither from international law nor from the Statute of the Court, but simply from the relevant norms of municipal law which deliberately bind the persons in question. It is also possible for international organisations, or others subject of international law, to freely agree to comply with a judgment or advisory opinion issued by the Court that concerns them in one way or another. In such cases, too, the judgment or opinion is not binding on them de jure, or under the law of the Statute, nor by agreement between the parties to the case, but by virtue of their collateral agreement/unilateral act, or, as the case may be, under the relevant provision of municipal law. The consent, in such cases, will often take the form of a unilateral legal act, such as acceptance or a promise. It is also necessary to distinguish the situation contemplated by Article 59 from that in which the Court’s pronouncement has certain effects erga omnes. The Court might, for example, decide the legal status of a particular territory. The State benefiting from this ruling will then, as legitimate sovereign over the territory concerned, establish control over it, in conformity with the sovereign rights it is now recognised to possess. Legitimate territorial rights as thus ‘created’ do have a kind of erga omnes effect. Third States, having no territorial claims on the area in question, have no right, or locus standi, either to challenge the ruling or even to ignore it. Here again, however, it is not the Court’s judgment itself that binds third States. Rather, it is the situation as regards objective possession of the territory. In yet another variant, the Court’s judgment may concern obligations owed erga omnes and/or norms of jus cogens. The principle that 2379   cf ibid, 1239–40. The Court has also been affirming this position in its jurisprudence since the case on Certain German interests in Polish Upper Silesia (1926), PCIJ, Series A, no 7, 19.



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the legal effects of the judgment are confined to the parties to the case is maintained in this case, as in all the others. If the Court thinks a particular obligation is owed erga omnes under modern public international law, its recognition of that will have indirect implications for third parties. This will be the position to the extent that the Court is pronouncing on the international law currently in force. In truth, no State can ignore such a legal pronouncement by the Court. If the Court is indicating the position as a matter of current positive law, that positive law binds all States. It would nevertheless be wrong to conclude that the Court’s judgment, as a judicial act, is itself legally binding on them as third parties. The Court’s functioning is one thing, the nature of a norm is quite another. The Court’s influence on third States in such cases is a matter of fact, not a matter of legal ‘obligatoriness’. The third States are perfectly entitled to challenge the Court’s exposé of international law. Finally, it should be noted that the limitation of the binding effect of the Court’s decision to the parties alone also implies, as a kind of a contrario argument (a negative pregnant), that even the Court itself is not bound by its own precedents.2380 There is no rule of stare decisis in international law. The Court can depart from its own precedents, though obviously it will not do so without good reason. In the great majority of cases, the Court will not override its existing jurisprudence, but will merely distinguish it, either because the legal environment has altered, or because the factual situation is a different one when analysed from the legal perspective. (3)  Confined to the particular case: ‘and in respect of that particular case’ The parties are bound by the judgment only as regards the particular case in question.2381 They are not bound by it in relation to other or future cases. This means that a State can lay before the Court legal arguments incompatible with a previous judgment of the Court in a case affecting that same State, in the same way as the State can do in relation to a previous judgment in a case to which it was not a party. Obviously, in doing so, the State risks a rebuff from the Court, which will usually prefer to follow its own precedents. Nevertheless, arguments against a precedent, presented to the Court in this way, will not be rejected in limine on the basis that they are inadmissible under Article 59. If the Court rejects them, as indeed it very often will, it will be simply on the basis that they are contrary to current international law. The fact that the binding force of a judgment is confined to the particular case has also (once more) the effect of excluding the common-law doctrine of precedent embodied in the rule of stare decisis. The reason for its exclusion is obvious. The concept of precedent rests on the idea that a judicial pronouncement is itself a source of objective law. This makes the judge a legislator – no doubt a relatively minor one, but still a significant one. Judges can have this role only in a political society which is ready to entrust to its judiciary the role of developing the law. This was the position in Rome, through the prætors,2382 and in England, where the task was (and is) entrusted to the judges,2383 that is,   Bernhardt, ‘Article 59’, above n 2368, 1240. See also below, point (3).   Bernhardt, ‘Article 59’, above n 2368, 1240–41. 2382   In this connection see, eg M Kaser, Römische Rechtsgeschichte, 2nd edn (Göttingen, 1982) 138 et seq.; and TRS Broughton, The Magistrates of the Roman Republic, 2 vols (New York, 1951, 1960, with supplements, republished in 1984–86). 2383   See the very interesting arguments of A Cavanna, Storia del diritto moderno in Europa, Le fonti e il pensiero giuridico, vol I (Milan, 1982) 479 et seq., 547 et seq., and, as to the doctrine of precedent as consolidated since the 18th century, 567 et seq. The work contains numerous bibliographical references to publications in the Englishspeaking world. 2380 2381

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in two societies characterised by a high degree of integration. But the international community is diametrically the opposite. Nowhere are conditions more unfavourable to the idea that either arbitrators appointed ad hoc, or judges appointed on an institutional basis, might lay claim to such a ‘legislative’ function, alongside, and concurrently with, the sovereign States of the international community. This is why there is no trace of a doctrine of precedent in the practice of the international community, and explains why the doctrine found no favour at the Hague Conferences of 1899 and 1907, or at the time the Statute was drafted. Technically, then, the parties are not bound by the Court’s pronouncement, except as regards the particular case before it. Article 59 confines itself to making the judgment binding as regards all the questions that are decided (the dispositif), and eliminates any element of creating law that goes beyond the obligation to implement the judgment. It is easy to object that this restrictive approach does not correspond to reality. The Court has developed the law considerably, even creating law in fields such as maritime delimitation.2384 This is less astonishing given that international law contains numerous uncertainties and lacunae. This state of affairs is not, however, necessarily inconsistent with the provisions of Article 59. If international law is being developed by the Court’s jurisprudence, it is because the Court’s view of it is particularly prestigious: people pay attention to it. The Court therefore has a greater opportunity that any other body for its judgments to be respected and followed by States and other international operators. There is no contradiction between the fact that the Court’s interpretation of the law, generally set out in the supporting argumentational parts of its judgments, enjoys such de facto authority. A more technical point is that it is not the Court’s role to develop international law by imposing it, de jure, on all the States of the world. The purpose of Article 59, then, is to act as a reminder that the Court’s legal interpretation and conclusions are not binding legally on all States, as new norms of general international law. Res judicata jus facit inter partes,2385 non erga tertios (res judicata alii non nocet). Third States thus remain free not to accept the Court’s interpretations. If a sufficient number do so, their negative reaction will leave the Court’s view unrepresentative, and it will not become the general international law on the particular subject. This will be so because it will have been shown that the Court was mistaken (a large part of the international community of States having indicated its opinio juris that the decision was wrong), or because the view of the law identified by the Court is thereafter modified by subsequent practice (a lex posterior abrogating the lex prior). The binding force of a judgment ‘in respect of that particular case’ can, however, extend a certain distance into the future, if, for example, a State demands guarantees that there will be no repetition of unlawful conduct, in accordance with Article 30 of the Articles on the International Responsibility of States (2001). In such a case, if the Court accepts that part of the claim, and includes it in the operative part of its judgment (the dispositif), the binding force of the judgment carries forward into the future. The State so bound is then placed under an obligation of indefinite duration not to repeat certain acts. Legally, that obligation is owed only to the State that had requested the order, even though in reality the State ordered not to repeat the action would, in hardly be likely to break the underlying legal 2384   R Kolb, Jurisprudence sur les délimitations maritimes selon l’équité (The Hague/London/New York, 2003). For a recent view, see DR Rothwell and T Stephens, The International Law of the Sea (Oxford/Portland, Oregon 2010) 383 et seq. 2385   Codex juris canonici, can 1642, § 2. As to the historical transmission of these rules into modern law, see G Pugliese, ‘L’héritage romain dans les règles et les notions modernes concernant la chose jugée’ in Acts of the Warsaw Colloquium in Le droit romain et sa réception en Europe (Warsaw, 1978) 161 et seq.



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norm as against other States. In the LaGrand case (2001), the Court had to consider the obligations of the USA if certain future events were to occur in breach of the norm of international law that was the subject of the dispute.2386 Moreover, if the Court interprets a bilateral convention in a particular way, that interpretation will not be binding on the same parties in another case. That is the position even if the case is between the same two parties.2387 However, as we have already said, it will naturally be very difficult for the Court to change its view of the law from one case to the next. In relation to multilateral conventions, the question gives rise to various problems if a third State intervenes under Article 63 of the Statute with a view to binding itself to a particular interpretation of the text. De lege lata, the question whether the principal parties will be bound for the future by the Court’s interpretation (as the intervener will be under Article 63) is a very difficult one. This question has already been analysed above, so that a cross reference is sufficient at this point.2388 (4)  The Court’s ‘decision’ Under Article 59, the Court’s decision is binding. This formulation gives rise to two questions. First, one has to ascertain the contents of the decision in the sense of the Article. Second, to decide which of the Court’s pronouncements amount to ‘decisions’. As to the contents,2389 it is accepted that only the operative part of the judgment is binding, that is, the dispositif. This is the part that sets out the rights and duties of the parties. The binding force does not attach to the reasoning and argument in the judgment, still less to the obiter dicta. Nor does it attach to any claims or arguments by the parties that have not been decided by the Court.2390 The scope of the judgment’s binding effect is thus heavily circumscribed. There is one accepted exception (albeit not a true exception) to confining binding force to the operative part of the judgment. The Court’s arguments and reasoning do have to be taken into account, and can, in a certain sense, themselves be binding, to the extent that they are essential to the sense and implementation of the operative part of the judgment.2391 As the PCIJ put it in its advisory opinion on the Polish postal service at Danzig (1925), ‘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’;2392 but, at the same time, ‘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’.2393 In consequence, only obiter dicta, strictly speaking, never need to be taken into account as regards the binding force contemplated by Article 59. As to the other arguments, they must and can assist in interpreting the operative part of the judgment. Although not binding in themselves, they   ICJ Reports 2001, 516, § 128, no 7.   Bernhardt, ‘Article 59’, above n 2368, 1240–41 considers that the Court’s pronouncement as to the interpretation of a convention (whether bilateral or multilateral) is legally binding on the parties. 2388   See above section 17(c). 2389   Bernhardt, ‘Article 59’, above n 2368, 1240, 1242. 2390   Bernhardt, ibid, 1240 gives a useful example: ‘If, for instance, the exact boundary between two States is controversial in respect of several and different sections, and the same legal reasoning for the solution of the disputes is indicated, but only the borderline in one section has been discussed before the Court and finally decided upon, neither the operative part of the judgment nor the reasoning is binding in respect of other border areas.’ 2391   Bernhardt, ibid, 1242; Hudson, above n 2368, 592; de Visscher, ‘La chose jugée’ 5–7. 2392   PCIJ, Series B, no 11, 29–30. 2393   Ibid, 30. 2386 2387

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are to be read in conjunction with the operative part, in order to explain and support it. In that sense, the exception is an unreal one: the stated reasons never themselves become binding; but they are valuable aids to the true understanding of the operative part of the decision. If a State argues that the Court has forgotten to include in the operative section of the judgment a part that is effectively operative, it has to seek interpretation of the judgment under Article 60 of the Statute. This allows the Court to remedy any possible error, if one has in fact been made. In such a case, an actual revision of the judgment is unnecessary. There will simply have been an error, which the Court can correct under the general rules for the correction of errors in international law texts.2394 As to the latter aspect – which parts of the judgment are covered by the expression ‘decision’ – one needs to apply a functional criterion. If a pronouncement of the Court contains obligations on the parties, Article 59 applies to it, and the actual form of the decision is irrelevant. It may be a Judgment, but it may also be an Order, for example as to a party’s legal costs (Rule 97), or an Order indicating binding provisional measures of protection. The word ‘decision’ in Article 59 simply means that the Court’s pronouncement contains obligations binding on the parties. (5)  The Moment when the Decision acquires Binding Force Rule 94, paragraph 2 states that the time as from which the decision is considered to be binding on the parties is ‘the day of the reading’ of the decision, meaning at a public hearing. Technically, it is then that the judgment is considered to have been pronounced, so that the parties are bound. This all-purpose provision has been in the Rules since 1922 (the then Article 64), and was designed to cut short any possible uncertainty, such as can arise in relation to internal judgments under municipal legislation.2395 (6)  Determination of the decision’s scope Under the general rule applicable to all obligations incurred by subjects of law, it is for the person bound to make its own interpretation of the meaning and scope of the obligation, so that it can comply. Such an interpretation must be carried out in good faith, not in the spirit of seeking to avoid the obligation by setting the letter against the spirit, but trying to 2394   See the practice in relation to Art 79 of the Vienna Convention on the Law of Treaties, R Kolb, ‘Article 79’ in O Corten and P Klein, The Vienna Conventions on the Law of Treaties, A Commentary, vol II (Oxford, 2011) 1770 et seq. This was expressly provided for in Art 75 of the 1922 Rules (as amended up to 1931): ‘The Court, or the President if the Court is not sitting, may correct any material error in an Order, Judgment or Advisory Opinion as a result of an accidental act or omission.’ This provision was later eliminated, since it was sometimes difficult to decide whether there had, or had not, been a material error. It was found preferable to leave the question to the general rules of international law. These allow for the possibility of correcting material errors, but the full Court has to be informed and to give its consent. The Court has accepted that it can correct errors. In the case on the Request for the revision and interpretation of the Judgment of 14 February 1982 in the case of the Continental shelf (Tunisia v Libya), ICJ Reports 1985, 198, § 10, it said this: ‘The Court does of course have power to correct, in one of its judgments, any mistakes which might be described as “erreurs matérielles”.’ It added that this power was not normally to be exercised by way of a Judgment, the contentious element being lacking; nevertheless, there was nothing to prevent the Court from doing so in proceedings for interpretation or revision, in which case a Judgment would be used to make the correction (above). In arbitration jurisprudence likewise, this power has been affirmed to be implicit in the arbitral function: case of the Continental shelf of the Mer d’Iroise, RIAA 1977, vol XVIII, 370, § 36. On the whole question of the correction by the Court of material errors, see A Zimmermann and R Geiss, ‘Article 61’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 1305–307. 2395   cf Guyomar, above n 2342, 595.



EFFECTS OF THE DECISION 769

understand and comply, without, however, necessarily having to lose sight of one’s own interests. If a party has serious doubts as to the meaning and scope of its obligations under the Court’s judgment, then it can seek interpretation under Article 60 of the Statute. If there is a dispute between the parties about the implementation of the judgment, they can either resolve it by discussion between themselves, or they can jointly request the Court for an interpretation under Article 60. Since, up to a point, the parties themselves have the right to come to an agreement modifying their respective obligations under a judgment of the Court (the winning State can always waive execution of orders in its favour), direct resolution of the dispute remains open to them via a bilateral agreement representing the parties’ views, without recourse to the Court. If you can waive the execution of the judgment, then equally you can agree to a compromise on the subject; if you can do more, you can do less. Nevertheless, non-execution of the Court’s decision can give rise to problems, and these will be considered in more detail, below, at point 8. (7)  The Sole Exceptions to res judicata: Articles 60 and 61 The force of res judicata arises from Articles 59 to 61 of the Statute, read together.2396 Interpretation of the judgment under Article 60 of the Statute is not a true exception to the Rule. Interpretation is supposed to discover and clarify the contents of the judgment, not to modify or alter them. True enough, in reality interpretation often slips imperceptibly into a modification of the law, when, in stating the content of the judgment on a potentially obscure point, the Court adds an element of its own judgment. However, the revision of a judgment under the next Article (Article 61) of the Statute is a true exception to the res judicata rule. It enables the Court to eliminate parts of a judgment that are considered erroneous in view of new facts that have since come to light. Naturally, the requirements of legal certainty and that judgments should be definitive, make it necessary to define this exception narrowly. The central point is that the only way that a single party can unilaterally free itself from the obligation to execute the judgment, is to seek its revision.2397 The argument that the judgment is automatically null and void is not available, even if a party argues that the judgment is contrary to a norm of jus cogens.2398 This has always been the effect of institutionalising the administration of justice. It then becomes unthinkable that a party could itself proclaim, in a unilateral manner that is essentially anarchic and contrary to the rule of law, that such and such a judgment is considered by it to be null and void. If that were allowed, it would provide an ever-available escape route, and would give wholly excessive rein to the ‘sovereignty’ of each party whilst making the institutionalisation of justice into something of a very unfunny joke. When ordinary recourse to a court is available to them, parties cannot be allowed to plead automatic nullity, which is a right that 2396   The Court has also found them to flow from Art 60 of the Statute, stating that the judgment, once handed down, is definitive and unappealable (res judicata in the formal sense of the term): cf the Corfu Channel case, ICJ Reports 1949, 248; and the case on Military activities in and against Nicaragua (merits), ICJ Reports 1986, 24, § 27. 2397   cf Bernhardt, ‘Article 59’, above n 2368, 1245. 2398   It might be objected that the ‘revision’ of judgments under Art 61 of the Statute is concerned with the discovery of new facts, not with the verification of the judgment’s conformity to the norms of jus cogens. Recourse to interpretation does, however, remain a possibility. If the Court were obliged to accept the argument that there had been a breach of a norm of jus cogens under general international law, its judgment would automatically be a nullity by analogy with Art 53 of the Vienna Convention on the Law of Treaties. The essential thing is that the Court itself decides whether there has been such a violation. It may seem odd that the Court itself is, in this sense, judge in its own cause. But when you get to the ultimate level of judicial decision-making, that is inevitable. Better, in any event, that the Court decide the question rather than have a party deciding it for itself.

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should be available only in an urgent case where there is no other recourse. On the other hand, the argument for the (automatic) nullity of arbitral awards to some extent continues, since arbitration is not an institutionalised form of justice. One way of containing the centrifugal force of that line of argument would be to allow the ICJ to be seised of cases concerning the validity of arbitral awards, brought to the ICJ as new cases on its list. The Court would then be exercising a kind of appellate or supervisory jurisdiction. Finally, for ICJ judgments, the two or more parties to the case might also be permitted jointly to seek revision of the judgment. But of course, if they are agreed about how to modify the judgment, they can do so by simple subsequent agreement. This possibility might obviously lead to a conflict with the obligation under Article 59 of the Statute, and this will be discussed further below, at point 8. (8)  Imperative Character of Article 59 of the Statute Can parties agree to derogate from Article 59 of the Statute? Can they agree to divest the judgment of its binding character as regards themselves? If parties could do this, it would obviously amount to recognising that they have the right to ask the Court for an advisory opinion. But that right has been consistently refused them, by the draftsmen of the Statute and by the Court itself.2399 If States were allowed to request advisory opinions, there would be consequences for the Court. Its prestige would suffer, since its pronouncements would not be implemented. Confusion between its contentious and pseudo-advisory functions would furthermore give rise to numerous problems. For example, States might be tempted to sound out the Court on an advisory basis before beginning properly contentious cases. They would, in effect, be seeking a kind of res judicata de facto, the fruit of the precursive advice. And the Court would risk being inundated with requests for opinions. States would naturally be tempted to try to cloak themselves in the Court’s remaining prestige by obtaining an authoritative legal analysis of situations in which they had an interest. Now, since the law of the ICJ is firmly based on the idea that States cannot request advisory opinions, it automatically follows that Article 59 must be an imperative norm binding on parties. They cannot derogate from it. The Court’s substantive pronouncements on contentious issues are always binding. This is an indissoluble element of a contentious procedure before a court of justice: it decides disputes; what it does not do is to suggest solutions and leave them to the free wishes of the parties. To give the Court an advisory jurisdiction for the direct benefit of States, going beyond the ordinary characteristics and indeed concept of a court of justice, the Statute, as the Court’s constitutive instrument, would have needed to make very clear provision to that effect (as it does in relation to the advisory procedure for non-States). Absent any such provision, it is impossible to read such a power into the Statute. The extent to which the parties can take certain liberties as regards the execution of the judgment itself gives rise to some complex problems. The questions that arise, and the associated nuances, are numerous. Can the parties ask the Court to give a judgment if its validity or executory force is in some way to be subordinated to their subsequent acceptance of it? We have just seen that this cannot be allowed. But there are other questions too. Can the parties agree to renegotiate the judgment, or certain aspects of its operative sections? Can they do that ex post facto, and, if so, within what limits? To what extent can the   For details, see R Kolb, Théorie du ius cogens international (Paris, 2001) 305 et seq.

2399



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parties ask the Court to confine itself to general conclusions and principles, leaving them to negotiate on the basis of the judgment in order to give effect to such a limited judgment? After the Court has given judgment, what scope remains for direct negotiation, the royal road to the solution of international disputes? Do Article 59 of the Statute and Article 94, paragraph 1 of the Charter limit the parties’ powers in such negotiations? Can the parties ask the Court to re-judge a case it has already decided with the force of res judicata ratione personae and ratione materiae? These are numerous questions. First, one must take into account the fact that it is not usual for the international Court itself to fix the modalities for the execution of its judgments. Quite the contrary, the Court does not consider itself competent to indicate such modalities, which is a task that goes beyond its judicial function and encroaches on the sovereign liberty of the parties.2400 So States are not only free, but are actually under a duty, to decide, either unilaterally (in the case of a State which the judgment decides is under an obligation), or by agreement between them, on the precise manner in which they intend to liquidate their dispute, but in a manner which properly respects the judgment the Court has given. The judgment may in fact leave them quite a large margin of appreciation, particularly if it is a declaratory judgment. The parties, who are still the domini negotii, when they come to grips with the modalities for implementing the decision (which at least one of them will actively have sought by initiating the proceedings) can give expression to their wishes in a wide variety of different ways. They can enter into technical agreements as to the execution of the judgment, for example, by setting up boundary demarcation commissions. But they can also go further. The leading commentators all consider that a party which has obtained a judgment in its favour can renounce its rights, especially its right to have the judgment executed.2401 That is a general principal of private law (which is based on the autonomy of the individual), and of international law (which is based on the sovereign autonomy of States). If a State that has won its case can renounce the benefit, giving up its rights under the judgment, it can a fortiori enter into an agreement with the other party establishing a new legal regime between them. This seems consistent with the nature of an international judgment, which in theory is essentially declaratory, and not creative of international law: it simply recognises and illuminates the pre-existing legal situation as between the parties,2402 and 2400   cf eg Dubisson, above n 2326, 255. See in this regard the case of Haya de la Torre, ICJ Reports 1951, 79, 83 and the case of the Northern Cameroons (Preliminary Objections), ICJ Reports 1963, 37–38: ‘[T]he Court 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.’ 2401   cf eg Dubisson, above n 2326, 255; S Rosenne, The Law and Practice of the International Court, 2nd edn (Dordrecht/Boston/Lancaster, 1985) 128–29; S Rosenne, ‘L’exécution et la mise en vigueur des décisions de la Cour internationale of Justice’ (1953) 57 RGDIP 548; MO Hudson, La Cour permanente de Justice internationale (Paris, 1936) 493; E Tunçel, L’exécution des décisions de la Cour internationale de Justice selon la Charte des Nations Unies, (thesis, Neuchâtel, 1960) 123. The situation of the party to which an obligation is owed is different from that of the party owing it (cf Dubisson, Rosenne cited at the beginning of this fn). The former is the dominus negotii and has the power to dispose of its rights. This lends particular precision to H Thirlway’s observation: ‘Clearly, neither party can unilaterally choose to act otherwise than in accordance with the judgment, but it must be open to the parties to compromise their rights, and indeed to set aside the judgment altogether if such be their common wish.’ (Thirlway, above n 2316, 103). 2402   Thus, according to Thirlway, above n 2316, 103, ‘[the] nature of an international judicial act would suggest that the law as declared by the Court is binding on the parties to the same extent after the judgment as it was before’. Hence the right of the parties to dispose of the resulting rights. But their legal situation has nevertheless altered in one respect: the existence of the Court’s judgement. One cannot therefore say that there is a perfect identity between the status quo ante and the status quo post; that would be to postulate that the judgment had never been made. The real question is what effect the existence of the judgment has on the parties’ freedom of action.

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does not actually create it. It would in any event be strange if parties to cases were obliged to forfeit the right to reach agreement on their respective legal positions just because at a particular stage they had requested the Court to define or identify the law – as a ‘substitute’ for direct agreement between them. Commentators also invariably say something along the following lines: ‘even after the judgment has been handed down, the parties of course remain free to dispose of their rights, and can enter into negotiations for an agreement which will obviate the need to implement the judgment’.2403 The same thing has been said, in a more pointed way, as follows: ‘By way of an inter se-agreement, individual parties may of part from a judgment between themselves as they see fit.’2404 The judgment merely confers upon the successful party the right to have it executed, not an obligation to have it executed. A party benefiting from a judgment that recognises its rights is entitled to assess where its own interests lie. It must be emphasised that the parties cannot enter into agreement that alters the validity of the judgment, far less its content. The only subject of a modifying agreement is the existing legal situation between the parties: that is the subject of the judgment, but is not the judgment itself, which remains a separate matter. Second, parties are not entitled to subordinate the validity of the judgment to a subsequent agreement between them, or to modify the Court’s findings of law or the operative part of the judgment. In the Free Zones case (1929–32), Article 2, paragraph 2 of the Special Agreement stipulated that if the judgment were to provide for the importation of goods free of duty or at reduced tariff rates, that aspect of the dispositif would be subject to the assent of both sides.2405 The Court avoided taking a definitive position on the precise meaning of this provision, but nevertheless made clear its view that a condition requiring subsequent agreement between the parties before the judgment could be valid would be contrary to the Statute: Whereas it is certainly incompatible with the character of the judgments rendered by the Court and with the binding force attached to them by Articles 59 and 63, paragraph 2, of its Statute, for the Court to render a judgment which either of the parties may render inoperative . . .2406

When the parties held to their position,2407 the Court made the position even clearer in its judgment on the merits. It substituted for the over-generalised expression ‘render inoperative’, the more precise phrase that it ‘was dependent for its validity on the subsequent approval of the Parties’: Such a condition, if the consent is to be subsequent to the judgment, cannot be reconciled with Articles 59 and 60 of the Statute of the Court, which provide that the judgment is binding and final. . . . [For the Court] it would be incompatible with its Statute, and with its position as a

  Hudson, above n 2368, 493–94, (italics added, our translation).  G Schwarzenberger, International Law – As Applied by International Courts and Tribunals, vol IV, International Judicial Law (London, 1986) 699. The author also says: ‘Provided that the parties to the constituent instruments relating to any adjudication act in unison, they may overrule wholly or in part any award or judgment by a subsequent inter se agreement . . . As domini negotii they are jointly free to please themselves.’ See also P Paone, ‘Considerazioni sull’esecuzione delle sentenze della Corte internazionale di Giustizia’ in Essays in Honor of G Morelli (Milan, 1975) 628–29; C Volcan, ‘L’exécution des décisions de la Cour internationale de Justice d’après la Charte des Nations Unies’ (1947) 51 RGDIP 192–93; E Tunçel, L’exécution des décisions de la Cour internationale de Justice, above n 2401, 123; WM Reisman, Nullity and Revision, the Review and Enforcement of International Judgments and Awards (New Haven/London, 1971) 580; Thirlway, above n 2316, 103–104. 2405   Free Zones case (Order, 1930), PCIJ, Series A, no 24, 13. 2406   Ibid, 14 (italics added). 2407   PCIJ, Series A/B, no 46, 160–61. 2403 2404



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Court of Justice, to give a judgment which would be dependent for its validity on the subsequent approval of the Parties.2408

This, then, was not a situation in which the parties were exercising their right to renegotiate their substantive rights or to agree to renounce the right to execute the judgment. The agreement they made was intended to take effect upstream, on the actual formal validity of the Court’s judgment. This interference with the Court’s judgment, if permissible, would have made the binding force of the judgment depend on subsequent agreement between the parties. The question resurfaced 50 years later in the Continental shelf case (Tunisia v Libya,1982). The parties had requested the Court to determine the principles and rules applicable to the delimitation of their continental shelves, and also to clarify the practical method for the parties’ experts application of such principles and rules.2409 The Court was therefore not being asked to complete the actual delimitation exercise. The parties would have to negotiate after the delivery of the judgment, in order to decide how to give practical effect to the principles, rules and methods fixed upon by the Court. There was a disagreement between the parties, in the course of pleading the case, as to the scope of the respective responsibilities of the Court and the parties. Tunisia argued that the Court was requested to specify in precise terms the manner in which the principles and rules should be applied, leaving it to the parties only to carry out the technical work of actual demarcation.2410 In Libya’s view, however, the Court’s task was only to give guidance to the parties, the guidance then being the basis for the parties’ subsequent negotiation.2411 This formula, which appeared to subject the Court’s judgment to subsequent confirmation by the parties, provoked several questions from Judge Gros in the course of the oral hearings.2412 The Libyan answers were confined to the text of the Special Agreement, and avoided mention of the provisions of the Statute or the Charter as to the binding force of the Court’s judgments.2413 The Court resolved the problem of interpreting the Special Agreement in such a way as to make it conform to the law governing the Court’s functioning. It began by rejecting the Libyan expression ‘guidance’: the Court’s task was not to give an advisory opinion but to decide the dispute by a legally binding judgment.2414 Reading Articles 2 and 3 of the Special Agreement together, it appeared that the Parties recognised their obligation to comply with 2408   Ibid, 161, (italics added). Dissenting Opinion of Judge Negulesco, ibid, 192 (‘this is incompatible with the character of the Court’s Judgments’). See as to this aspect the Free Zones cases, G Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour internationale (Paris, 1967) 160–61; M Mabrouk, Les exceptions de procédure devant les juridictions internationales (Paris, 1966) 203–204; R Giuffrida, La ricevibilità generale nella giurisprudenza della Corte internazionale di Giustizia (Milan, 1995) 44 et seq.; Rosenne, The Law and Practice of the International Court, 2nd edn, above n 2401, 620; Reisman, Nullity and Revision, above n 2404, 579–80. This jurisprudence was approvingly cited by other judges of the Court 50 years later: Independent Opinion of Judge Jiménez de Aréchaga, case of the Continental shelf (Tunisia v Libya), ICJ Reports 1982, 102 (‘It would certainly be incompatible with the Statute of the Court and with the Court’s position as a Court of Justice to accept an interpretation of the special agreement leading to a judgment which would not advance the settlement of the dispute and which would be dependent for its application on the subsequent agreement of the Parties’); Dissenting Opinion of Judge Gros, ibid, 145; cf also the Dissenting Opinion of Judge Evensen, ibid, 279–80. 2409   ICJ Reports 1982, 23 (Art 1 of the Special Agreement). 2410   Ibid, 39, § 27. 2411   Ibid, 39, § 28 and 40, § 30. Libyan Counter-Memorial, ICJ, Memorials. Oral arguments and Documents, vol II, 302 et seq., Declaration by Mr El Maghur (Libya), ibid, vol V, 4 et seq. argument by Sir Francis Vallat (Libya), ibid, 49–50; argument by Mr Highet (Libya), ibid, 214 et seq. 2412   Memorials. Oral arguments and Documents, ibid, vol V, 244. 2413   Ibid, 501. For the Tunisian response, ibid, 349. See also ICJ Reports 1982, 143–44. 2414   ICJ Reports 1982, 40, § 29.

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the Court’s judgment.2415 Subsequent negotiations by experts could not, therefore, be about questions already decided by the Court, but must be confined to the technical questions left open by the judgment.2416 Faced with a Special Agreement containing provisions of this kind, the Court’s tendency, then, is to reduce it all to a problem of interpretation. It endeavours to bottle up the parties in a judicially acceptable interpretation of their Special Agreement, shorn of the refractory elements inconsistent with the Statute (that is, an interpretation in favorem validitatis).2417 If we try to put together a synthesis of the Free Zones and Continental shelf jurisprudence, two essential principles that emerge very clearly: (1) the parties cannot subordinate the validity of all or part of a judgment of the Court to their subsequent approval (Free Zones); and (2)in negotiation on the implementation of the Court’s judgment, the parties cannot deny or modify its findings of law or any of the operative provisions. If it were otherwise, it would be equivalent to subjecting the Court’s judgment to the subsequent consent of the parties (Continental shelf). Although parties do have the right to renounce the implementation of the Court’s judgment, and to come to some other arrangement as to the substance of their dispute, they cannot, either in executing the judgment or outside that aspect, claim to modify the legal findings in the judgment itself. The judgment, as a judicial act, must therefore be distinguished from the disputed issues to which it relates. The judgment itself is beyond the parties’ control, but the disputed issues are not, and can be resolved by the parties in any way they wish, provided it is consistent with peremptory general international law. Third, if the parties, before the judgment is given, indicate that they will not necessarily execute it, the Court might refuse to render it (as a matter of general admissibility). As Judge Gros said, the Court would then have to consider refusing to exercise its jurisdiction, because of the requirement of judicial integrity: It has been argued that two States can always agree by treaty to modify their legal situation, and that the judgment could not make an exception to this rule. This is a somewhat simplistic view of   Ibid, 40, § 30.   Ibid, 40, § 30. cf also the Dissenting Opinion of Judge Evensen, ibid, 280. 2417   The French Judge Gros refused to go with the majority on this point. He approached it from the perspective of Libya’s allegations, to which he opposed those of Tunisia. It was not so much the Special Agreement which contained unlawful provisions, as the unilateral Libyan interpretation of them. This different starting point was confirmed, for Judge Gros, by the Libyan answers to his questions during the oral phase: Dissenting Opinion of Judge Gros, case of the Continental shelf (Tunisia v Libya), ICJ Reports 1982, 143–44. He interpreted the positions adopted by Libya – referable to the Special Agreement rather than to the Statute or the Charter – in reference to the binding force of the Judgement – as asserting a claim to be entitled to confirm the Judgment in subsequent negotiations between the parties (ibid, 144–45). On that question he said: ‘The point is, that by taking up such a position, contradicted by Tunisia, Libya was interpreting the Special Agreement as if that instrument were capable of amending the rules of the Charter and Statute, and that is something which goes to the heart of the Court’s judicial role. It has been argued that two States can always agree by treaty to modify their legal situation, and that the judgment could not make an exception to this rule. This is a somewhat simplistic view of things when what the situation calls for is a decision whether the Court, being thus warned of the intentions of a party, can keep silent in the face of such an opinion. The question was whether, before the judgment which the Parties asked the Court to deliver and which must be binding on them, the Special Agreement could have reserved for them the right wholly or partly to modify the Court’s judicial act. That is an unacceptable notion for the Court, which does not give States opinions but declares to them, with binding force, what it holds to be the law applicable to the dispute submitted to it. And, having been warned that one of the States felt able to disregard this, while the other State took the opposite position, the Court ought to have asked itself whether it might not thereby be prevented from properly exercising its judicial function.’ (ibid, 145). He therefore reached the conclusion that the Court ought to have clearly rejected the Libyan argument, and that nothing substantive remained negotiable between the parties. 2415 2416



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things when what the situation calls for is a decision whether the Court, being thus warned of the intentions of a party, can keep silent in the face of such an opinion . . . And, having been warned that one of the States felt able to disregard this, while the other State took the opposite position, the Court ought to have asked itself whether it might not thereby be prevented from properly exercising its judicial function.2418

This argument is, as correctly perceived by Judge Gros, applicable by analogy in Special Agreement cases:2419 it rests on the fact that the Court cannot give advisory opinions to States. To this view, it might be objected that it is excessively formalistic, and that if the parties are free to do things after the judgment has been given, there is no reason why, until that date, they should be obliged to keep their intentions secret; that the result (stemming from the parties’ inalienable right not to execute the judgment if they agree otherwise on the merits of the dispute) is the same, and the limitation therefore a fiction; and that it is still better, even in such cases, for the Court to have shed light on the point of law than for it not to have done so. This line of argument, despite its attractions for the advocates of ‘healthy realism’, and which they doubtless consider eminently practical, cannot be accepted. It conflicts with the fundamental conditions for the exercise of the judicial function. In this respect, the two situations ex ante and ex post are not analogous. The sense and direction of the Court’s activity is, in the former case, radically transformed, but not in the latter. Instead of deciding a contentious case, its activity becomes a consultative one. A prohibited act does not become lawful simply because there is a lawful way of achieving much the same result. Sometimes the law prohibits certain methods (Wegverbot) whilst allowing others, and especially without proscribing the actual result (Zielverbot). Even the realisation of a legal act can have a different influence depending on when it occurs: the rule ‘mala fides/ dolus superveniens non nocet’ exemplifies this.2420 To sum up, then: (1) An imperative rule of law prohibits parties from subjecting the validity of the judgment to their consent, and from modifying ex post facto either the findings of law, or the operative parts of the judgment. (2) The Court cannot deliver its judgment if the parties have previously declared their intention not to implement it, or that they may not be implementing it. This is the position even if that intention is ascertained otherwise than by a direct declaration to the Court. (3) The parties do not lose the right to negotiate and agree on substantive issues even after judgment has been given. A party bene­fiting from the judgment can always renounce its right to the implementation of the judgment. This is a different situation from the preceding ones. It does not concern (or purport to concern) the formal validity of the judgment, but only whether it is convenient to implement it. The latter remains the prerogative of the parties, especially of the party benefiting from the rights recognised by the judgment.

2418   Dissenting Opinion of Judge Gros, case of the Continental shelf (Tunisia v Libya), ICJ Reports 1982, 145. In the Free Zones case the only problem was the subsequent consent of the parties, which they said was necessary for the judgment to be binding: Order, 1930, PCIJ, Series A, no 24, 13–14; merits, 1932, PCIJ, Series A/B, no 46, 161. 2419   ICJ Reports 1982, 145. 2420   The influence of the maxim has been considerably eroded by canon law, which is inspired by rather different precepts. The absence of any peccatum is required in canon law throughout the legally relevant activities; cf the Decretal ‘Quoniam omne’ of Innocent III (1215). As to that question, see L Scavo Lombardo, Il concetto di buona fede nel diritto canonico (Rome, 1944) 1 et seq. (Roman law) 23 et seq., 49 et seq., 77 et seq. (canon law).

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22.  INTERPRETATION OF THE JUDGMENT2421

a)  General Features If a judgment of the Court contains real or supposed elements of obscurity, this can be an obstacle to the judgment’s implementation. The relevant texts provide that the parties can request the Court to clarify a judgment and provide an authoritative interpretation of it. Article 60 of the Statute reads: ‘The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.’ Although it might seem otherwise, this provision does not, in fact, provide the Court with a monopoly right of interpretation. Once a judgment has been given, it is for each party to interpret its meaning and scope, and in particular to ascertain the obligations that the judgment imposes on the parties. It is only when the parties disagree on the nature of these obligations that a ‘dispute’ will arise under Article 60, and that the Court will then, if so requested by one or both the parties, resolve that dispute by an authentic and authoritative interpretation. The interpretation will be embodied in a further judgement of the Court, and that further judgment will itself have the force of res judicata. For quite a long time, the Court received few requests for interpretation. In the time of the PCIJ, only two such requests were made: the case on the Interpretation of Judgment No 3 (Treaty of Neuilly, 1925);2422 and the case on Interpretation of Judgments Nos 7 and 8 (Factory at Chorzów, 1927).2423 At the ICJ, four such cases can be cited: the Request for interpretation of the Judgment of 20 November 1950 in the right of asylum case (1950);2424 the Application for revision and interpretation of the Judgment of 24 February 1982 in the case on the Continental shelf (Tunisia v Libya, 1985);2425 the Request for interpretation of the judgment of 11 June 1998 in the case of the Land and maritime boundary (Preliminary Objections, Nigeria v Cameroon, 1999);2426 and the Request for interpretation of the Judgment of 31 March 2001 in the Avena case (Order on provisional measures, 2008).2427 These cases evidence a certain procedural pattern. In the first PCIJ case, on the Treaty of Neuilly, Greece requested the interpretation in order to ascertain not only the scope of the 2421  See on this subject: Hudson, above n 2368, 590–91; A Zimmermann and T Thienel, ‘Article 60’, in A Zimmermann, C Tomuschat and Oellers-Frahm, (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 1275 et seq.; H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’ in BYIL, Part Thirteen, vol 74, (2003), 79 et seq.; Rosenne, The Law and Practice of the International Court, above n 2347, 1669 et seq.; LM Bentivoglio, ‘Sull’ interpretazione della sentenza internazionale’(1953) 5 Comunicazioni e studi, 269 et seq.; L Cavaré, ‘Le recours en interpretation et en appréciation de la légalité devant les tribunaux internationaux’ (1954) 15 ZaöRV 482 et seq.; S Rosenne, Interpretation, Revision and other Recourse from International Judgments and Awards (Leiden, 2007); A Zimmermann, ‘Interpretation of Judgments of the International Court of Justice under Article 60 of the Statute of the ICJ’ in Essays in Honor of HE Folz (Vienne/Graz, 2003) 407 et seq.; E Zoller, ‘Observations sur la révision et l’interprétation des sentences internationales’ (1978) 24 AFDI 327 et seq. Among the older contributions, see especially K Grzybowski, ‘Interpretation of Decisions of International Tribunals’ (1941) 35 AJIL 482 et seq. 2422   PCIJ, Series A, no 4. 2423   PCIJ, Series A, no 11. 2424   ICJ Reports 1950, 395 et seq. 2425   ICJ Reports 1985, 192 et seq. 2426   ICJ Reports 1999-I, 31 et seq. 2427   Order of 16 July 2008.



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clause interpreted by the Court in its judgment, but also its applicability. In fact the Court had decided only the first aspect, not the second, which was not in issue. It therefore rejected the Greek request as going beyond simple interpretation. In the second PCIJ case, on the Factory at Chorzów, the Court had decided that Poland had no right to delete the ‘Oberschlesische Gesellschaft’ from the Land Register and replace it with the Polish State as the new proprietor. Subsequently, the Court had also decided that Poland owed Germany compensation. Despite these judgments, Poland had successfully argued before its own tribunals that, in law, the company belonged to the State. Germany went back to the PCIJ, asking it to declare that the Polish interpretation of the Court’s judgments, allowing Poland to do as it had done in the Polish courts, was wrong. In the Right of asylum case, Colombia had presented a request with a view to ascertaining whether Sr Haya de la Torre ought finally to be surrendered to the Peruvian authorities. The Court took the view that there was no dispute between the parties on that question, and that anyway it went beyond the content of the judgment the Court was being requested to interpret. On this basis, the request was inadmissible. In the Tunisia v Libya case, the request related both to the rectification of the original judgment as to the line of maritime delimitation, and the interpretation of that judgment. In the case between Cameroon and Nigeria, the Court was faced, for the first time, with a request concerning a judgment on jurisdiction and admissibility. It confirmed that interpretation under Article 60 of the Statute might be sought in relation to such judgments too. Nigeria was seeking a more exact statement of the scope of the Court’s jurisdiction in relation to certain boundary incidents which Cameroon claimed ‘engaged Nigeria’s international responsibility’. In the Avena case, Mexico considered that the obligations of the USA under the earlier judgment of the Court were fundamentally to be understood as obligations of result (it being for the USA to choose the means to achieve that result), while the USA considered them to be fundamentally obligations as to means. Overall, the Court’s jurisprudence has thus tended to be fairly restrictive. The Court is aware that the authority of res judicata is bound to suffer if there are too many robust requests for interpretation or revision. A more ‘generous’ jurisprudence on this matter would encourage States to come back to the Court and re-open its judgments, either by undisguised applications for revision, or under the more insidious guise of requests for interpretation. The Court has been careful not to allow States to use requests for interpretation to slow the execution of judgments, or even subvert their definitive and unappealable character. In the Cameroon v Nigeria case it said: ‘[There is a] need to avoid impairing the finality, and delaying the implementation, of these judgments . . . The language and structure of Article 60 reflect the primacy of the principle of res judicata. That principle must be maintained.’2428 In this way, the Court indicated that, like revision, albeit in a lesser degree, interpretation is a sort of exception to the res judicata principle. The conditions for it need therefore to be interpreted strictly. The Court’s attitude here, coupled with an element of spontaneous restraint on the part of States themselves, has so far enabled the number of requests under Article 60 to remain fairly low. The recent recrudescence in applications for revision does, however, show the importance of continuing vigilance. In particular, it is important for the Court to take care that requests for interpretation are confined to the clarification of judgments and not turned, by stealth, into attempts at 2428   ICJ Reports 1999-I, 36, § 12. cf Thirlway, above n 2421, 79; Zimmermann and Thienel, ‘Article 60’, above n 2421, 1277.

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revision, since the two concepts are close cousins and, in practice, one can run rather too easily into the other. It is also necessary for the Court to deal with interpretation proceedings as rapidly as possible, and this implies according them a certain element of priority. It would also be useful if, when the case or decision was originally decided by a Chamber of the Court, the Chamber should, as nearly as possible, be of the same composition when it comes to the interpretation. When the full Court has heard and judged the original case, one normally finds that the Bench hearing the interpretation application consists, to a considerable degree, of the same judges as before. This saves time in refamiliarising the Court with the various points at issue in the case.

b)  Conditions for Interpretation Article 60 imposes various conditions on requests for interpretation. There must be a ‘dispute’ (between parties), as to the ‘meaning or scope of the judgment’, and one of the parties must have requested the interpretation. (1)  Seisin and Self-seisin First, it should be noted that the Court itself appears not to have the power to begin interpretation proceedings motu proprio. It is for the parties, not for the Court, to seise the Court of a dispute between them as to interpretation. The great principle of private law procedure applies here: no actor, no judge; nemo judex sine actore; nullo actore, nullus judex; or judex non communicat officium suum nisi imploratus. If the Court discovers an objective element of obscurity in one of its judgments, and considers that the need to maintain the Court’s prestige requires it to provide some clarification, is there any step it can take proprio motu to do so by an appropriate judicial act? Obviously, it cannot base any such act directly on Article 60 of the Statute. But can it invoke its inherent procedural powers under Article 30, paragraph 1 of the Statute, or its general inherent power to exercise its judicial functions? Can it impose on the parties a clarificatory judgment they have not actually sought? If they have given the original judgment a certain meaning, and in that regard have been in agreement between themselves, can a new judgment by the Court then impose on them some different meaning? But in truth, the question is not quite so simple as that. The answer depends on the precise way in which the element of obscurity arises. If a point in the operative part of the judgment (or contained in the related reasoning of the Court) seems at least to be ambiguous, while nevertheless the parties do not seek clarification of it, the Court must not exercise an inherent power by taking a new jurisdictional step, unless one of the parties so requests. On the other hand, if the Court’s point does seem actually to have been materially incorrect, as a consequence of inadvertence, forgetfulness or a lapsus calami, the Court has both the power and the duty to correct it. But, for that purpose, the Court does not need a judicial act, and it will suffice for it to take what is more of an administrative step, namely to deliver to the parties a minute setting out the correction. In practice, however, this question has yet to arise.



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(2)  Basis for the Court’s Jurisdiction Second, the Court can take action on the basis of the unilateral request of one of the parties that are subject to the judgment,2429 or alternatively, on the basis of a special agreement between them to submit the question for interpretation.2430 Given that interpretation proceedings are considered to be a new case, the basis on which the Court originally had jurisdiction is now actually irrelevant. It is thus perfectly possible for there to be a different basis of jurisdiction: the original case may have been based on the parties’ jointly seising the Court by special agreement, but the request for administration might then be a unilateral one; or vice versa. Rule 98, paragraph 1 provides that: In 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.

Rule 98, paragraph 2, adds that a unilateral request is always possible, as suggested by the words of Article 60: ‘upon the request of any party’. For a long time, this question gave rise to controversy.2431 At the Hague Conference of 1907, it was not accepted that a party might request interpretation of an arbitral award from the same tribunal, unless this was expressly allowed for in the arbitration agreement, or unless there was a further agreement to permit it. The fact that the original arbitral tribunal was normally functus officio was not a decisive argument against re-seising the tribunal unilaterally, because it was usually possible to reconstitute it. It was always necessary to do that anyway, if the agreement itself provided for possible unilateral requests for interpretation. When the PCIJ’s Rules were being drafted, the question remained fluid and uncertain. To admit the possibility of a unilateral request was also to admit that the Court’s jurisdiction to issue an interpretative judgment constituted a form of compulsory jurisdiction, whether or not the other party had consented to it. It was only with the 1926 Rules (Article 66, § 2), and in the subsequent practice of the Court, that this question was finally clarified, by the acceptance that consensualism had its limits. (3)  Incidental Jurisdiction Third, it follows from the above that the Court’s jurisdiction to issue interpretative judgments is derived directly from Article 60 of the Statute, and is an incidental one.2432 It is also possible to hold that the interpretative jurisdiction flows onward from the original jurisdiction to decide the principal case, that is, from the jurisdiction given by the parties to the Court in the original proceedings: accessorium sequitur principale. That jurisdiction is not definitively extinguished with the giving of the judgment on jurisdiction or the merits decision closing the case. It remains in existence, albeit ‘on ice’, available for any proceedings that may be brought for interpretation or revision. Given, however, that the Court treats 2429   This was the case, for example, in the cases (see above) on the Treaty of Neuilly (where Bulgaria did not challenge the Court’s jurisdiction) and the Right of asylum. The Court recognised, in the Tunisia v Libya case, that a unilateral request was sufficient: ICJ Reports 1985, 214–16, §§ 41 et seq. 2430   There is no precedent for this. 2431   Zimmermann and Thienel, ‘Article 60’, above n 2421, 1279, 1286–87. 2432   Ibid, 1288; Thirlway, above n 2421, 80: ‘The jurisdiction to interpret is of course a further example of the incidental jurisdiction of the Court, conferred by accession to the Statute, and thus not dependent on the ad hoc consent of the parties to a case.’ This is an excellent way of making the substantive point, except for the words ‘of course’, but does little to reflect the controversies of the past.

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requests for interpretation as entirely new cases, with their own roll numbers and their own respective compositions of the Bench, it is perhaps easier to see the basis of jurisdiction over the new case as residing directly in Article 60 of the Statute. In that case, it is an autonomous jurisdiction arising from the Statute. In reality, there is, legally, nothing to prevent the initial jurisdiction being taken (in conjunction with Article 60, considered as purely a declaratory point of reference) for the effective title of jurisdiction. The interpretation proceedings are accessory to, engrafted upon, the principal case. The fact that the Court must confine its activities in this field strictly within the limits of res judicata under the judgment to be interpreted, supports this view. The further fact that the matter is assigned a new number on the Court’s list, is hardly a decisive counter-argument. First of all, that is a purely administrative matter, and second, the same practice applies to other obviously incidental procedures, such as interventions under Article 62 or 63 of the Statute. At the end of the day there is no practical difference whatever between the two conceptions (jurisdiction derived directly from Article 60 as an autonomous basis, and derived from jurisdiction over the principal case). The best way to resolve the question is to accept that jurisdiction exists, in parallel, on these two overlapping and cumulative legal bases.2433 The essential point to be emphasised here, is that the Court always and automatically had jurisdiction if it is seised correctly. It then remains for the Court itself simply to examine the admissibility of the request in light of the material conditions laid down in Article 60. Given that the Court’s jurisdiction is either autonomous (under Article 60), or the continuation of the initial title of jurisdiction, the Court has jurisdiction even if that initial title – for example under an optional declaration – has expired or been terminated.2434 The Court always has jurisdiction to provide clarifications of its own judgments and so clear the way to their execution. The critical date for determining the existence of this jurisdiction is the one on which the Court was seised of the principal case. If the then title of jurisdiction was legally valid and applicable, any subsequent changes will not alter the Court’s jurisdiction, either as regards the principal proceedings or as regards incidental ones relating thereto. What we have here, is the application of the forum perpetuum principle. A question also arises as to whether an intervener under Article 62 or 63 of the Statute can request interpretation of the judgment under Article 60. The Article allows for requests only by a ‘party’, and that is perfectly logical, since only parties are bound by the judgment. The right to seek interpretation is available only with a view to the execution of the judgment, that is, to facilitate implementation, and overcome any obstacles that may hinder it. Consequently, only parties can seek interpretation, so that they understand what the judgment means when it comes to execution. In other words, since it is only the parties that have to execute the judgment, the underlying purpose of the intervention procedure fully justifies confining to the parties the right to seek interpretation. If the intervener participates as a party, that is, as a principal, logically it, too, is bound by the judgment, and can request interpretation, in its capacity as a party. But an intervener on an accessory basis is not a party, only a participant. What then?2435 The underlying purpose of a request for 2433   The Court, however, has opted for the simplest interpretation – that its jurisdiction is directly and solely based on Art 60 itself: Request for interpretation of the Judgment of 31 March 2004 in the Avena case, Order indicating provisional measures, 16 July 2008, § 44; and ibid, Judgment of 19 January 2009, § 15. 2434   Correctly dealt with in Zimmermann and Thienel, ‘Article 60’, above n 2421, 1287–88. 2435   See ibid, 1290; S Torres Bernardez, ‘L’intervention dans la procédure de la Cour internationale de Justice’ CCHAIL, vol 256, 1995, 437.



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interpretation, and the way in which the Statute is worded, certainly leave room for doubt as to whether such an intervener can request interpretation. We saw, in the chapter on intervention,2436 that an accessory intervener either may (Article 62 of the Statute), or must (in the case of Article 63), be bound by the part of the judgment in which the Court decides questions affecting that intervener. If a certain part of the judgment is opposable to that intervener, there is no reason to prevent the intervener seeking interpretation of that part, by analogy with the parties, so that it can be clear about its obligations. But that is as far as it goes – an accessory intervener has no right to seek interpretation of the remainder of the Judgment. Given these teleological and functional considerations, it is possible for the Court to allow an accessory intervener’s request for interpretation on a basis that is limited ratione materiae, even though the text of Article 60 seems to exclude this possibility. The Court can do this by arguing that, to the extent that the intervener is bound by the judgment, it has to be allowed a right to seek interpretation, analogously to the parties’ rights under Article 60, so as to make possible the implementation of that part of the judgment that affects the intervener. Ubi eadem ratio, idem jus. One has to recognise, however, that such a request will directly affect the interests of the principal parties. Given that the ‘interests of a legal nature’ of the parties and the intervener must be closely interconnected before an intervention will be permitted, it follows that a request by the intervener for interpretation will automatically affect the legal positions of the parties. This is obvious if the intervener is requesting further enlightenment as regards the interpretation of a multilateral convention under Article 63 of the Statute. If the Court provides such enlightenment, its clarificatory judgment will be binding, not only on the intervener, but also on the principal parties, even though they never requested it. One may well ask whether this is not a case of giving too much weight to third-party interests. All in all, however, it does seem that the Court would have to allow such a limited right of the intervener to seek interpretation of the parts of the original judgment that were opposable to it. Otherwise, some of the effects of the original judgment might be deprived of their full value, the intervener being sometimes left in real doubt as to what its obligations really are. That consequence would be unacceptable. (4)  Timing of the Request Fourth, the request for interpretation (whether unilateral or joint) can be made at any time,2437 with no starting or finishing date. In principle, therefore, a request remains a possibility for an indefinite period. However, the probability is that a dispute about the meaning or scope of a judgment will emerge relatively soon after the judgment is given.2438 Otherwise the parties would in effect be admitting that they had not implemented it for a long time, despite their duty to do so, or that a party was seeking, long afterwards, to undo the situation created by the original judgment, and by subsequent acts implementing it. The Court will not respond to a request under Article 60, if its true object is not to obtain interpretation of the judgment for the purposes of greater clarity in implementing it. A very tardy request could thus risk being seen as an abuse of the process and contrary to the  See above, section 17.   See Hudson, above n 2368, 590. 2438   That this is not always true is shown by the request for Interpretation of the Judgment of 15th June 1962 in the case of the Temple of Preah Vihear, as to which the Court indicated provisional measures in 2011: Press Communiqué no. 2011/22. 2436 2437

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principle of good faith. It will be designed as a gratuitous challenge to a long-standing arrangement to which the wise maxim ‘Let sleeping dogs lie’ should be applied. The Court would surely declare such a request inadmissible. Conversely, there can be cases where later events throw up problems in the implementation of the judgment, so that a genuine request for interpretation could follow, even after a long time period. Can one party or both jointly consult the Court on the manner in which its judgment has been implemented, to see whether the implementation corresponds to a correct interpretation of the judgment? There is, in fact, nothing to prevent this. But Article 60 would have to be satisfied, meaning, in particular, that there would have to be a ‘dispute’ as to interpretation, the sense or scope of the judgment not seeming sufficiently clear. So far, the Court’s practice shows that the time within which States have exercised the right to seek interpretation has normally been fairly brief. The shortest delay was a matter of hours (the Right of asylum case – see below), and the longest for some time, about two and a half years (Tunisia v Libya). With the Preah Vihear request for interpretation, there was for the first time the very long period of almost 50 years. Somewhere in the middle of the usual time periods, with about seven months, lies the Cameroon v Nigeria case. In the Right of asylum case, the request was made by Colombia on the very day the judgment was publicly read, some hours after the hearing. The Court declared the request inadmissible, because no dispute had (yet) arisen as to the meaning or scope of the judgment.2439 It is indeed difficult to imagine the requirement of a ‘dispute’ being satisfied in such a short time. Overall, then, although there is no starting date and no time limit for requesting interpretation, one can say that a certain minimum time is needed to satisfy the material conditions of Article 60, especially as to the existence of a dispute regarding the meaning or scope of the judgment. (5)  The ‘Dispute’ Fifth, Article 60 of the Statute requires the existence of a dispute between the parties as to the meaning or scope of the judgment. The English text uses the word ‘dispute’, perhaps connoting the idea that the definition of this concept, in relation to the interpretation of judgments, should be the same as for jurisdiction or admissibility questions. But the French text, using the word contestation, leaves some room for doubt about that. Did the draftsmen of the Statute wish to make a distinction between ‘dispute/contestation’ in Article 60 and the general term ‘dispute’, which in French is normally translated as ‘différend ’? Is Article 60 a lex specialis, derogating from the general terminology? The point can be argued both ways, one restrictively, the other expansively. On the one hand, it can be claimed that, in view of the underlying objective of the provision, the word ‘dispute’ in Article 60 should be interpreted more liberally than the general requirement of a dispute in the ordinary sense of the term for other purposes (which anyway is given a very wide interpretation by the Court). After all, any obscure element in the judgment, whether real or supposed, can slow down its implementation, or even bring it to a halt. A party looking for a pretext to avoid discharging its obligations can dig in behind the alleged ambiguity of the judgment, and refuse to implement it.2440 The Court ought not 2439   ICJ Reports 1950, 403: ‘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’. 2440   cf JC Witenberg, L’organisation judiciaire internationale. La procedure et la sentence internationale (Paris, 1937) 362; Zimmermann and Thienel, ‘Article 60’, above n 2421, 1297.



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to encourage such behaviour, even indirectly, and nor should it allow any real element of obscurity to continue, by imposing over-rigid admissibility conditions as regards the existence of a ‘dispute/contestation’. In reality, it is not so much the dispute that needs to be properly crystallised, as the fact that a party is identifying an obscure element in the judgment. On the other hand, it is arguable that the interpretation of the word ‘dispute/contestation’ in the context of Article 60 ought to be stricter than it is as a matter of general law. The argument runs that a tension exists between a request for interpretation and the duty to implement the judgment. A request for interpretation enables a party indirectly to reopen the res judicata, and to postpone the execution of the judgment. The Court ought not to allow this if the requesting party is the only one that claims there is an element of obscurity in the judgment: it should be established that this perception has an objective basis, and that can be established by the fact that the question concerned is the cause of a firmly crystallised dispute between the parties. The travaux préparatoires shed little light on this debate. It would seem that the initial draft of the proposed Statute provided for the possibility of recourse to the Court ‘in the event of uncertainty’. That expression was later replaced by the current formula, which substitutes the word ‘dispute/contestation’ for ‘uncertainty’.2441 It is not obvious that the modification was designed to strengthen the requirements for the request to be admissible. The Court’s jurisprudence shows that, in relation to requests for interpretation, it gives a slightly more flexible meaning to the expression ‘dispute/contestation’ than the already quite subtle meaning it gives to the concept of a dispute under general international law. In the case on the Interpretation of judgments nos 7 and 8 (Factory at Chorzów, 1927), the PCIJ was already insisting on the fact that the dispute does not need to be ‘manifested in a formal way’ and that it therefore suffices if 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’.2442 Also, Article 60 does not require that ‘the manifestation of the existence of the dispute in a specific manner, as for instance by diplomatic negotiations’,2443 even if that kind of manifestation might be desirable. In short, it must be possible to seise the Court of a request for interpretation ‘as soon as one of the Parties considered that there was a difference of opinion arising out of the interpretation and application’.2444 of the passages of the judgment that are in question. The present Court has followed the same line. In the case on the Request for interpretation of the judgment of 31 March 2004 in the Avena case (provisional measures, 2008),2445 it noted that the word ‘contestation’ in the French version of the Statute is somewhat more flexible than the term ‘dispute’ in English, and that the former expression was used advisedly by the PCIJ. The particular element of flexibility manifests itself, according to the Court, in the fact that the meaning of the word contestation is less formal than the meaning of the word ‘dispute/différend’. It suffices if there are opposed or divergent opinions as to the interpretation of the judgment. In the past, the Court had indicated that it was not enough for a party to find the judgment obscure on a particular   von Stauffenberg, above n 2373, 424.   PCIJ, Series A, no 13, 11. 2443   Ibid, 10. 2444   Ibid, 11. 2445   At § 54. The expression ‘difference of opinion’ was also used in the case of the Application for revision and interpretation of the Judgment of 24 February 1982 in the case of the Continental shelf (Tunisia v Libya), ICJ Reports 1985, 218, § 46, with a reference back to the PCIJ judgment cited above. 2441 2442

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point, while the other party finds it clear: a difference of opinion had to be established objectively, by the Court itself.2446 Anyway, if one party finds the judgment clear and the other does not, a ‘contestation’ (in the form of differing opinions) manifestly does exist. The fact that the Court has the ultimate power to decide whether the dispute is a real and not simulated, or whether it has ‘ceased to have any object’, is derived from the Court’s jurisdiction as to jurisdiction. In any event, it is difficult to see the Court refusing to entertain the request where the difference of opinion is neither simulated nor devoid of any real object. On proper analysis, the very slight distinction that the Court sees between the French terms ‘différend’ and ‘contestation’ is not even a particularly clear one. The general definition of a dispute (‘différend’), as used by the Court,2447 seems wide and flexible enough to cover the divergences required by Article 60. The essential point is that the object in dispute is not the same in the preliminary stages of a case as it is at the interpretation stage. In the former, it relates to the merits of the case; in the latter, only to the reading of a particular section of the operative part of the judgment. It is thus not so much the ‘intensity’ of the dispute that is different, as the narrowness of its subject at the interpretation stage. One comes away from the Court’s jurisprudence with the feeling that the Court is willing to set the bar relatively low when it comes to the admissibility of a request under Article 60. In this way the Court is, indirectly, accepting the idea that it must do all it can to eliminate obscurities in the operative parts of its judgments, so as to smooth the way for them to be implemented in an appropriate manner. If there are problems in relation to the implementation of a judgment, and it appears that divergent interpretations of certain elements in the operative parts are the cause, but the non-requesting party appears before the Court to say that it agrees with the requesting party’s interpretation, does that suffice to make the request inadmissible, for want of any real dispute/contestation? One can see that an ingenious litigation strategy of this kind might nevertheless leave intact and unresolved the real dispute, namely how to interpret and implement the judgment. The text of Article 60 of the Statute makes it possible to imagine a party engaging in a subterfuge of this kind. At the same time, however, the obvious teleological elements in the situation militate in favour of the Court’s looking more searchingly into the issue, rather than simply accepting, at face value the procedural point that the respondent to the request is seeking to score. That question arose in the case on the Request for interpretation of the judgment of 31 March 2004 in the Avena case (Provisional Measures, 2008). According to the USA, which was the respondent, there was no ‘dispute’ within the meaning of Article 60 of the Statute, because they entirely accepted the Mexican position as to their obligations under the judgment (§§ 32, 41). For the USA, the only problem was the implementation of the Court’s prior decisions, given the complications of their internal federal legal system. The problem was therefore entirely about implementation, not about interpretation. The USA therefore argued that the Mexican request was inadmissible. In addition, the USA stressed that it was continuing to do everything possible to give effect to the Court’s judgment of 2004 (§ 37). In face of that situation, several lines of argument could be explored. First, it was possible to argue that the respondent’s declaration eliminated any dispute and that the request was therefore inadmissible. That is a formalistic view which runs up against the teleological   Right of asylum case (Request for interpretation), ICJ Reports 1950, 403.   See earlier in this point.

2446 2447



INTERPRETATION OF THE JUDGMENT 785

elements referred to above. The Court did not accept it. Second, it could be argued that the Court must decide this secondary dispute under its ‘jurisdiction as to jurisdiction’. In that regard, it might consider the requirements of Article 60 to have been satisfied, not only when a dispute relates directly to the meaning and scope of the judgment, but also when it bears indirectly on those aspects, in the sense that there is indeed a dispute ‘as to whether there is a dispute within the meaning of Article 60’. This second degree dispute is just as effective in preventing the implementation of the judgment. Given that the purpose of Article 60 is precisely that – to ensure that judgments can be implemented – the Court ought to admit the request, not to declare it inadmissible. The Court did not accept this argument either, since it was considered somewhat convoluted and perhaps over-subtle. Third, it was possible to examine in depth whether divergences had arisen and continued to subsist, despite the formal procedural declaration made to the Court. As the Court had said in the Right of asylum case, the fact that one party claims there is a dispute, and the other denies it, is not what is decisive. It is for the Court to make the definitive decision on an objective basis. In the Avena case, the Court found that there was an objective dispute, as to the scope of the USA’s obligation of result that had been imposed by the operative part of the judgment. There was indeed a dispute as to, for example, whether the obligation was also binding on the individual federated State, or only on the Union (§ 55). Thus far, the Court was choosing the third (and simplest) line of argument. It was not enough for the respondent to deny the existence of a dispute: that denial, in itself, did not make the request for interpretation inadmissible. In view of the teleological aspects discussed above, this was sound jurisprudence. (6)  Pronouncements Subject to Article 60 Sixth, the ‘judgment’ subject to interpretation under Article 60 of the Statute must be ‘final and without appeal’, as the express words of the Article put it. Every judgment in issue must thus be final in its own terms, even though it need not necessarily bring the proceedings and the case to an end. In other words, a judgment is subject to interpretation when the issues it raises can no longer be re-examined by Court because they are materially res judicata. It follows that substantive judgments ending the proceedings are always susceptible to requests for interpretation (Articles 61 and 60 of the Statute), as are judgments (or Orders) relating to the intervention of a third State. The Court has also accepted that requests for interpretation may be made in respect of judgments on jurisdiction and admissibility.2448 Two problems remain, however, and they exist in parallel. Can a pronouncement relating to provisional measures be the subject of a request for interpretation? And more generally, can an Order of the Court constitute a ‘judgment’ for the purposes of Article 60 of the Statute and of Rule 98, paragraph 1? It is accepted that provisional measures – usually ordered as an urgent matter in the early stages of a case – are made by Order rather than by full Judgments. The use of Orders is caused, and explained, by a series of factors: the fact that the measures are interim in nature, expiring at the latest when the final judgment is given; the need for flexibility in 2448   The case on the Request for interpretation of the judgment in the case of the land and maritime boundary between Cameroon and Nigeria (Preliminary Objections), ICJ Reports 1999-I, 35, § 10: ‘This provision [Article 60] 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.’ See Zimmermann and Thienel, ‘Article 60’, above n 2421, 1286.

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such measures; the need for flexibility in adapting them, perhaps very rapidly, according to urgent need arising from supervening developments; the summary nature of the proceedings in which such Orders are made; and the fact that the measures are closely interconnected with the unrolling of the Court process. The fact that such measures are urgent effectively prevents the holding of lengthy proceedings, such as are appropriate for the revision or interpretation of a judgment.2449 It can happen, nevertheless, that the Court’s Order indicating provisional measures is unclear. The party on which the obligation rests under the measures can, at any time, if it considers the Order insufficiently explicit, seek clarification from the Court. To speed things up, the Court will provide such clarification in a further Order, which it can issue motu proprio. Article 30 of the Statute, giving the Court charge of, and control over, its own procedures, allows it to submit the request for interpretation directly to the other party, asking it to deliver, as rapidly as possible, any written observations it wishes to make. Given the existence of this swifter, more flexible and thus more appropriate procedure which yields the same end result at less expense than formal proceedings under Article 60, there is no reason to exclude it as an alternative mechanism. It should be noted, however, that recourse to Article 60 must not be totally excluded.2450 If the request raises complex issues, and/or questions of great legal importance; if the urgency of the actual measures sought is not, in the circumstances, too pressing; if the parties expressly request a formal interpretation procedure; if it appears appropriate to have a formal exchange of written submissions and oral pleadings; or if the form of the Judgment appears to present an advantage because the point to be settled is of general interest, the Court will have to opt for the Article 60 procedure, even as regards an Order indicating provisional measures. The next question is how, legally, such a procedure should be seen, given the text of Article 60 and in particular its use of the word ‘judgment’ (whereas here an order is at stake). One option is to treat the request as a new application, given agreement between the parties, and to open a new set of ordinary proceedings in relation to it. It would be easy to keep such a case within its limited objects and the scope of the parties’ agreement. Another option is to argue that the Court can, in the context of controlling its own procedures, use this more formal mechanism if it considers it conducive to the due 2449   Also, in the past, it was possible to emphasise that such Orders were not binding on the parties. In the absence of the force of res judicata, Article 60 did not apply to them: A Zimmermann, Interpretation of Judgments of the ICJ under Article 60 of the Statute (Heidelberg, 1989) 67. This argument no longer has any relevance, since the Court stated in the LeGrand judgment of 2001 that provisional measures Orders were, absent a contrary indication, binding on the States concerned. If they were not, then it was possible to argue that the requesting party had no locus standi to seek interpretation: since it had no binding Order to implement, there was no need for interpretation. The object and purpose of Art 60 is, in this perspective, to help with the execution of binding judgments, which, in such a case, is not an issue. However, it is also possible to argue the converse, that the voluntary implementation of a recommendation by the Court is, to say the least, permissible for the State concerned, and thus that it is entirely legitimate for it to seek clarification of the pronouncement’s meaning and scope. Voluntary implementation is, when all is said and done, another form of implementing measures indicated by the Court. 2450   It has been argued that it is difficult to see the point of interpretation proceedings in this context, given that under Rule 76 a party to the proceedings can request the Court to ‘revoke or modify any decision concerning provisional measures if, in [the Court’s] opinion some change in the situation justifies such revocation or modification’ (cf Thirlway, above n 2421, 83). The objects of the two provisions are plainly quite different. Rule 76 is concerned to suspend the effect of the measures, or to modify them; Art 60 of the Statute is concerned with explaining the meaning of the indication as it stands. It is perhaps possible to say that under the principle ‘if you can do more, you can also do less’ a request for interpretation is implicitly covered by Art 76. But whether the jurisdiction to interpret arises by analogy under Rule 76, or directly under Art 60 of the Statute, is either way only, in the last resort, a matter of legal cosmetics.



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administration of justice. But how does one then explain the Court’s coming to deliver a substantive judgment by a route not provided for in the Statute? The point presents a serious problem. The best way out of it is to base the Court’s decision on its implicit or inherent powers. A third option is to apply Article 60 by analogy, on the basis that, from the teleological perspective, the word ‘judgment’ might as easily be read as ‘order’. The purpose of Article 60 is to make possible an appropriate clarification of the Court’s pronouncement, so that it can be implemented properly. If, in the circumstances of a particular case,2451 it is impossible to achieve that objective via the Article 60 procedure applied literally, there is no reason for the Court, in exercise of its inherent powers and with the agreement of the parties, not to apply the provision by analogy. Admittedly, the proper functioning of the Court and its provisional measures procedures makes it necessary to use that type of procedure very sparingly. The circumstances in which it would be admissible to do so are as set out above. This brings us conveniently to the question whether only ‘judgments’, in the formal sense of the term, can be the subject of requests for interpretation under Article 60 of the Statute. As regards a very particular case (provisional measures), we have just answered in the negative. But need one go further? The question can arise only as regards the intervention of third States under Articles 62 or 63 of the Statute. The Court can decide the admissibility of the intervention either in a Judgment,2452 or in an Order.2453 Once the question of the third party’s intervention is definitively decided, and assuming one is still contemplating a judicial act (the final element in the chain leading from claim, through denial of that claim, to the decision), it is impossible to see any case whatever for refusing to allow interpretation in cases where the Court has issued an Order rather than a Judgment. The Court’s pronouncement in this context will always be analysable, functionally, as a ‘Judgment’. The Court would nevertheless be well advised to avoid using Orders in this context. The idea that because an Order was issued, a request for interpretation is excluded (in view of the wording of Article 602454) represents an excessively narrow and formalistic view. It does, however, remain true as regards the very numerous Orders whose object is to direct the progress of the proceedings. In such cases, where there is an obscurity, the parties will ask the Court to clarify it. The Court will either do so informally, or by issuing a new Order. A more formal procedure is not required in such cases. The only exceptions that can really be imagined relate to provisional measures, canvassed above, and to third party intervention, mentioned here. 2451   Without the Court’s judicial integrity or the efficacy of the provisional measures being even minimally called into question. 2452   Case of the Land, island and maritime frontier dispute (El Salvador v Honduras, application by Nicaragua to intervene), ICJ Reports 1990, 92. 2453   The situation is often one in which the Court finds that there is no longer any point in the application to intervene, and that the application no longer has any object, (eg because the Court has no jurisdiction or cannot exercise it as regards the principal parties) or because it is otherwise inadmissible. In the context of Art 63, the Court uses both Judgments and Orders indifferently: cf Torres Bernardez, ‘L’intervention dans la procédure de la Cour internationale de Justice’ 360–62. In relation to Art 62, see, eg the Nuclear tests cases (applications by Fiji), ICJ Reports 1974, 530 et seq., 535 et seq. On Art 63, see, eg the case on Military and paramilitary activities in and against Nicaragua (request by El Salvador), ICJ Reports 1984, 215 et seq. 2454   See Thirlway, above n 2421, 82. The Court also seems to suggest – but the phrasing is ambiguous in this regard – that a Judgment is needed: ‘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.’ (Request for the interpretation of the Judgment of 11 June 1998 in the case of the land and maritime boundary between Cameroon and Nigeria, Preliminary Objections, ICJ Reports 1999-I, 35, § 10). The Court had no reason not to follow the text of Article 60, since the request obviously did concern a ‘judgment’.

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Article 60 of the Statute does not apply to advisory opinions, either directly (as a matter of form) or by analogy (as a matter of substance). Where there is uncertainty about the meaning of an advisory opinion, the requesting body can ask for clarification. It will seek such clarification not by a request for interpretation, but by a new request for an opinion.2455 The new request will ask about the meaning and scope of the previously rendered opinion. Since the requesting body is free to request a new opinion at any time, there is no place for a particular provision such as Article 60, which is designed to open up an avenue that would otherwise be closed off. That is not the position here. In addition, the specific requirements of Article 60, such as the existence of a ‘dispute’, have no place in the advisory procedure. The body requesting the opinion can, and must, decide whether the Court’s opinion seems to it to be clear, and it can unilaterally request a clarification.2456 For that reason, there is no scope for applying Article 60 by analogy. It is simply unnecessary and the procedural requirements and conditions are not comparable. (7)  Subject Matter of the Interpretation Seventh, the subject matter of an interpretation under Article 60 is not the totality of the judgment, but only the parts that have the force of res judicata, namely the operative parts and those parts of the Court’s reasoning that are inseparable from it, in that they provide the necessary explanation.2457 This limitation to the scope of the interpretation demonstrates that the true purpose of Article 60 is not the thirst for abstract knowledge, but simply the wish to ensure that the Court’s judgments are properly implemented; a thirst for direction rather than mere knowledge. The interpretation mechanism is thus made available under the Statute with a view to preventing obscurities in judgments from prejudicing proper implementation. The limitation we are considering is a direct consequence of the object and purpose of Article 60.2458 The Court emphasised this limitation very clearly as early as 1927, and again in 1999: ‘In consequence, any 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.’2459 This orientation implies two things. First, it is for the Court to decide, as a preliminary matter, on the basis of its jurisdiction as to jurisdiction, to what extent a given aspect was decided with the binding force of res judicata.2460 It is not solely a matter of interpreting the   See also (for in substance the same view) Thirlway, above n 2421, 82.   A question could arise as to whether the originally requesting organ is the only one which can formulate such a request for clarification. Thus, for example, if the Security Council had requested the original opinion, could it alone demand its clarification, or could for example the General Assembly also do so? Nothing in the law prevents another duly authorised organ to formulate such a request, to the extent a clarification of the advisory opinion is necessary in the context of its own activities. 2457   See Thirlway, above n 2421, 84–85; Zimmermann and Thienel, ‘Article 60’, above n 2421, 1292. 2458   The Court emphasised this in the case on the Interpretation of Judgments nos. 7 and 8 (Factory at of Chorzów), PCIJ, Series A, no 13, 11: ‘the second sentence of Article 60 was inserted in order, if necessary, in order to enable the Court to make quite clear the points which had been settled with binding force in a judgment’. 2459   Request for the interpretation of the Judgment of 11 June 1998 in the case of the land and maritime boundary between Cameroon and Nigeria, Preliminary Objections, ICJ Reports 1999-I, 35, § 10. See also, the case on the Interpretation of Judgments nos 7 and 8 (Factory at Chorzów), PCIJ, Series A, no 13, 14; and Request for revision and interpretation of the Judgment of 24 February 1982 in the Continental shelf case (Tunisia v Libya), ICJ Reports 1985, 217, § 45. 2460   The case on Interpretation of Judgments nos 7 and 8 (Factory at Chorzów), PCIJ, Series A, no 13, 14. See also the Request for revision and interpretation of the Judgment of 24 February 1982 in the case on the Continental shelf (Tunisia v Libya), ICJ Reports 1985, 217, § 45, where the Court stated that the fact that the party requesting inter2455 2456



INTERPRETATION OF THE JUDGMENT 789

substance of the judgment’s operative parts, in order to see what they imply; there is also the prior question whether or not a particular aspect has been adjudicated upon with such binding force. This power of the Court is thus connected to the rule that a request for interpretation cannot go beyond the contents of the judgment to be interpreted (see below point 8). For the rule to have practical meaning and effect, the Court needs to be able to decide that preliminary point. Second, it is for the Court to decide to what extent any particular argument is ‘inseparable’ from the operative provisions, that is, to what extent it is necessary to their being properly understood. To a certain extent, except for obiter dicta, the Court’s entire reasoning of the Court is ‘necessary’ in order to understand the true meaning and scope of the operative part of the judgment.2461 In a well-designed judgment, each element supports the next, the whole being inextricably locked together into a coherent intellectual structure. In this exercise of deciding about inseparability, there are no sufficiently precise objective criteria on which to base confident distinctions. Given the clarificatory function of Article 60, the Court needs to focus on each consideration which it feels is necessary to the correct implementation of the dispositif. The judgment as to whether such an explanation or a reason is truly necessary obviously depends on what is in issue between the parties, that is on the elements of obscurity they have identified in the judgment. The orders made in the operative part of the judgment may either appear to be clear (namely if the arguments made by the parties are artificial) or unclear (particularly if these arguments are serious). (8)  Material Limits of Interpretation Eighth, the request for interpretation must relate to the ‘meaning or scope’ of the judgment. It cannot go beyond the contents of the judgment itself.2462 The word ‘meaning’ relates particularly to an act of cognition as to the contents (interpretation in the narrow sense), whereas the word ‘scope’ includes the question as to what is the field of application or execution of the aspects adjudicated upon with binding force. The word ‘or’ is more precise in the English text than in the French one, which rather imprecisely uses et, since in fact it is appropriate if the request is for the clarification of either the meaning or the scope of the judgment. The French version is simply one of those numerous situations, existing in both languages, where the word ‘and’ must be read as ‘or’. In effect, one of the legal meanings of the word ‘and’ is ‘or’. The limitation discussed above is a general reflection of the fact that the purpose of the interpretation mechanism is to clarify, not to supplement; to make things more explicit, not to re-open issues. It is thus not a true exception to the res judicata principle: in fact, it is designed to reinforce that principle. Nor does it provide a backdoor route to what is effectively an appeal against the Court’s judgments. The request is inadmissible if, in any manner whatever, it goes beyond the appropriate object, namely the clarification of that part of the judgment that is binding as a matter of res judicata. It also follows that a request for interpretation is to be distinguished from a request for revision, in that a request for interpretation cannot take account of facts not raised in the initial process. A fortiori, it cannot be based on subsequent developments or modifications, whether of fact or law. In pretation disputes the binding force of a point in the Judgment is not, in itself, a reason to treat the request as inadmissible. 2461   Thus (correctly) Thirlway, above n 2421, 85. 2462   See ibid, 86–88; Zimmermann and Thienel, ‘Article 60’, above n 2421, 1283, 1292.

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no circumstances can the Court be inveigled, through a request for interpretation, into reopening the res judicata.2463 From an early stage of its existence, the PCIJ insisted that the purpose of interpretation was limited in this way. In the case on the Interpretation of Judgment No 3 (Treaty of Neuilly, 1925), it held that it could not give effect to a Greek request for interpretation, because the request concerned aspects that had not been decided in the original judgment.2464 That original judgment had decided the substantive obligations arising from a clause in the treaty, but not the applicability of the clause. Greece could not therefore raise, by way of interpretation, the question of the clause’s applicability, because that request went beyond the limits of the judgment’s res judicata. The present Court has insisted on this same limitation in two cases, both of which are important precedents. The first was the Request for interpretation of the judgment of 20 November 1950 in the Right of Asylum case (1950). In that case, the Court emphasised that the original judgment had dealt neither with the effect of the nature of the offence of which the asylum-seeker was accused, nor the concrete manner in which his period of asylum in the diplomatic mission was to be brought to an end. The judgment had been concerned solely with the rules of international law relating to asylum in embassies. The allegations now made were new points ‘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.’2465 The second precedent is the Request for interpretation of the Judgment of 31 March 2004 in the Avena case (2009). The aspect in dispute between the parties was whether Point 9 of paragraph 153 of the Judgment provided that direct effect must be given, to the obligation therein set out, under the internal laws of the USA. The Court decided that no passage in the principal Judgment prescribed or implied that the Courts of the USA were under an obligation to apply Point 9 directly. The USA was free to choose the means of satisfying the obligation, whether by indirect application (national legislation) or direct application (by the courts). The Court said this: ‘In short, the question is not decided in the Court’s original Judgment and thus cannot be submitted to it for interpretation under Article 60 of the Statute.’2466 As in the Right of asylum case, the Court thus stated that the absence of any specific mention in the original Judgment as to the ways to terminate the asylum did not constitute a lacuna, but was designed to leave freedom of action to those concerned. In both cases, whether it was a matter of a lacuna (implying that the Court ought to have dealt with the point) or a deliberate silence (implying that the Court did not want to subject a question to certain legal effects), the fact remained that the Court did not have jurisdiction under the interpretation mechanism. In effect, both requests were praeter sententiam. Nevertheless, it is easy to see that the Court was, in reality, giving a clear answer as to the judgment’s meaning. It thus implicitly played its part in clarifying the judgment, even in a sense interpreting it. In effect, the Court was implicitly affirming that the onus was on the parties to agree upon a solution that would enable the asylum-seeker to leave the embassy, and that question was not governed either by the Court’s decision or by international law (the Right of 2463   Case of the Request for interpretation of the judgment in the case of the land and maritime boundary between Cameroon and Nigeria (Preliminary Objections), ICJ Reports 1999-I, 36 et seq., §§ 12 et seq. 2464   PCIJ, Series A, no 4, 7. This construction was confirmed in the case on the Interpretation of Judgments nos 7 and 8 (Factory at Chorzów), PCIJ, Series A, no 13, 21. 2465   ICJ Reports 1950, 403. 2466   At § 44. Arbitration practice too bears traces of this: see, eg the case of the Request for interpretation of the award on delimitation between Eritrea and Ethiopia, Award of 24 June 2002, § 16 (RIAA, vol XXV, 198).



INTERPRETATION OF THE JUDGMENT 791

Asylum case); the Court stated, with equal clarity, that the USA was not bound to give direct effect to Point 9 in paragraph 153 of the original judgment (in the Avena case). Although this was not, strictly speaking, ‘interpretation’ of a point in the original judgment, it was, nevertheless, a legal answer in respect of the law underlying that original judgment. That is inevitable since a ‘deliberate silence’ is, at one and the same time, a nonstatement and also a statement a contrario (freedom to act unconstrained by legal norms). The Court will not formally interpret its own silence, that is, its non-statement, since a request for that is inadmissible; but its ruling on inadmissibility automatically reminds the parties of the positive implications of its silence, that is, its statement a contrario with its freedom of action. To sum up, it follows that the material admissibility of a request for interpretation depends on the connection between the object of the interpretation and the principal judgment. The request must concern the clarification of a point, in the initial judgment, that has the force of res judicata. The Court acts under a derived or incidental jurisdiction, the scope of which depends upon, and is determined by, the contents of its prior judicial act. If the Court were to go beyond that scope, it would not actually be deprived of jurisdiction, since the Court has the abstract jurisdiction to interpret any of its judgments. There would be no defect or default in the Court itself, or in its capacity to exercise the function in question. The defect would relate rather to the quality of the request, which would be going further than is permissible – an issue not of jurisdiction, but of admissibility. The Court will declare the request wholly inadmissible if it is exclusively concerned with matters outside the initial judgment, or will declare inadmissible the parts of a request that fall outside that judgment, if other parts fall within it. The question arises whether the Court can, in the context of a request for interpretation, correct a material or substantive error that had found its way into the original judgment. We have already established that the Court can correct a simple material error by unilateral action of its own: if, for instance, it has expressed itself incorrectly, or if there was a typographical error or other inadvertent omission. Such corrections do not change the meaning of the original judgment. The Court can likewise correct such a material error at the request of a party. The question arose in the case of the Application for revision and interpretation of the judgment of 24 February 1982 in the Continental shelf case (Tunisia v Libya, 1985).2467 The Court considered, however, that Tunisia had mistaken the meaning the Court had intended to convey as to the aspects in question, and that, correctly interpreted, they did not contain any error. The problem is an altogether more delicate one when the error affects the meaning and scope of the judgment. Will such a correction modify the original judgment, thus constituting a ‘revision’? Or can one treat it as a rather wider type of ‘interpretation’? The answer depends on the very object and purpose of the interpretation mechanism. It has to be confined to matters that are res judicata. If the correction of an error implies an alteration in the substance of the judgment, then it is no longer a matter of interpretation and becomes a matter of revision. It would be pointless to argue that the true sense of the judgment must already be found within it, even when hidden or merely implied, and that therefore, by excising the error from the judgment, it allows its true sense to emerge automatically, like the sun emerging from behind a cloud. The reality in such a case is that the true meaning of the judgment is potentially to be found in the text, but is not actually there. There is, therefore, no alternative but to make an actual alteration in the   ICJ Reports 1985, 220–21.

2467

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contents of the judgment, so as to reach the desired result. That is a matter of revision, not interpretation. The point must therefore be dealt with in the chapter on revision.

c) Procedure Various procedural questions arise. (1)  Documents Submitted by the Parties A request for interpretation can be made unilaterally,2468 or by agreement between the parties, whatever the title of jurisdiction on which the original judgment was based. If the request is a unilateral one, then the opposing party has to be given an adequate opportunity to present its views. Rule 98, paragraph 3 provides that: If the request for interpretation is made by an application, the 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.

Bearing in mind the need to deal speedily with incidental procedures, the Court usually fixes fairly tight time limits. Thus, in relation to the Request for interpretation of the judgment of 31 March 2004 in the Avena case (2009), the Court fixed the time limit, in a letter of 16 July 2008, for 28 August following, allowing rather less than a month and a half.2469 The Court itself may need further information. Rule 98, paragraph 4, therefore provides that: ‘Whether the request is made by an application or by notification of a special agreement, the Court may, if necessary, afford the parties the opportunity of furnishing further written or oral explanations.’ So far, the Court has taken the view that it has sufficient information, and has never asked for further explanations.2470 If one of the parties seeks further explanations, the Court tends to allow this after hearing argument from the other party.2471 Paragraph 4 does not, indeed, confine the initiative for such requests to the Court alone: it is open to the parties too. However, the Court alone decides. If it agrees, then the time allowed will, here too, be relatively limited. In the case of the Request for interpretation of the judgment of 31 March 2004 in the Avena case (2009), the Court on 2 September 2008 allowed the parties until 17 September and 6 October 2008 respectively, a maximum of approximately a month and a half.2472 (2)  No Separate Admissibility Phase So far, the Court has not felt it necessary to hold a separate ‘admissibility’ phase, that is, separate from the substantive hearing. In a single judgment it expresses its views on the   This is the method that States have so far invariably chosen: cf as early as Guyomar, above n 2341, 624.   At § 4. This is current practice: see, for instance, the case of the Request for interpretation of the judgment in the case of the land and maritime boundary between Cameroon and Nigeria (Preliminary Objections), ICJ Reports 1999-I, 33, § 2, where the Court was seised of the case on 28 October 1998 and fixed the time limit under Rule 98 § 3 at 3 December 1998. 2470   Request for interpretation of the judgment in the case of the land and maritime boundary between Cameroon and Nigeria (Preliminary Objections), ICJ Reports 1999-I, 33, § 5. 2471   Request for interpretation of the Judgment of 31 March 2004 in the Avena case (2009), §§ 6–8. 2472   At § 8. 2468 2469



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request’s admissibility and, if it is admissible, then proceeds with the interpretation. Logically enough, the Court deals first with the admissibility aspects, before addressing itself to the substantive ones. However, there is nothing to stop the Court, in some future case, separating the two, interposing an ‘objections’ stage similar to the Preliminary Objections phase in ordinary proceedings. The Court would doubtless do this if the arguments on admissibility were considerably more complex than they at present tend to be. The Court can act in this way under its general procedural powers (Article 30 of the Statute). However, the needs of the due and prompt administration of justice, normally, favour the use of a single judgment to cover both aspects. If this practice were to be modified in future, there would have to be solid and strictly justified reasons for doing so. For the time being, there seems to be no such need, particularly since we are here considering a procedure that is incidental in nature. (3)  Must there Always be a Judgment, or can an Order be used? In principle, the Court has to give a Judgment. Interpretation is a judicial act: the parties argue their positions; the Court considers them; and its legal response decides the outcome of the case. Article 81 of the 1936 Rules was already saying this expressly.2473 Article 100, paragraph 2, of the 1978 Rules was equally precise: ‘The decision of the Court, or of the Chamber, on a request for interpretation or revision of a judgment shall itself be in the form of a judgment.’ During the travaux préparatoires on the ICJ Statute, Cuba had proposed that the Court should be able to give its interpretation by a simple Order, but this suggestion was rejected without discussion.2474 It should also be noted that, until now, the Court has always proceeded by way of a Judgment. As a general rule, there seems, in the final analysis, no reason to allow the use of an Order. Given that interpretation is a judicial act, one that is, so to speak, conjoined with the original judgment, and that it too must have the force of res judicata, only a full Judgment seems adequate for the purpose. There may be room for doubt to the extent that one accepts – as indeed is the case here – that interpretation can be requested of an Order indicating provisional measures or deciding on the intervention of a third State.2475 Should not an Order be interpreted by another Order, under a kind of ‘principle of parallel forms’? So far, this question has never arisen. At the level of principles, one must remember that interpretation, although an incidental procedure, is an autonomous and definitive judicial act, vested with the force of res judicata. Clearly, that argues in favour of using a Judgment. There is, however, no absolute bar to the Court’s using an Order, with a view to completing the work done by a prior Order. It might, for instance, wish to give a clear indication that its act is provisional in nature, for example, in relation to provisional measures, whose effect terminates when the definitive judgment is finally given. Also, such an approach gives the Court maximal flexibility, and gives the parties the benefit of maximal speed. To sum up, then, a judgment can be interpreted only by another judgment; the interpretation of an Order, however, when it is possible, can be done either by a further Order or by a Judgment. 2473   It echoes Article 66, § 5, of the revised Rules of 1922: ‘The decision of the Court on requests for revision or interpretation shall be given in the form of a judgment.’ 2474   UNCIO, vol III, 522. 2475   Rule 100, § 2 is not an obstacle to this interpretation, because it simply echoes the words of Art 60 of the Statute. If it is possible to interpret Art 60 as capable of applying, in exceptional circumstances, to certain Orders also, a fortiori this will be the position for the Rules. The Rules must, of course, follow and conform to the Statute.

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(4) Composition There has long been a debate as to the extent to which, when the Court is called upon to deal with a request for interpretation, it ought to be composed of the same judges as rendered the original judgment.2476 On the one hand, it might seem logical to have the same judges. Since their sole function is to explain the earlier judgment, that is, to engage in what is essentially an act of cognition (or rather re-cognition), those who rendered the original judgment seem to be the persons best placed to do the interpreting. On the other hand, however, there are difficult, and even insurmountable, problems in this regard, if the original judges are no longer members of the Court, or are even perhaps deceased. The fact that a request for interpretation is treated as a new case, with its own roll number, likewise emphasises its independent status in relation to the original judgment. The Court has in fact modified its practice on this point. In the days of the PCIJ, the tendency was to try to have the same composition for the Bench as at the time of the principal judgment. This happened in the case on Interpretation of Judgment No 3 (Treaty of Neuilly, 1925).2477 The request was not only submitted to the same Summary Procedure Chamber, but Max Huber vacated the President’s chair (which he was entitled to occupy), in favour of Judge Loder, who had presided at the time of the original judgment.2478 Since the ICJ replaced the PCIJ, however, all provisions seeking to conserve the original composition of the Bench have been eliminated from the Rules. The Court’s practice is now more liberally-oriented, hearing applications for interpretation as the Court is currently composed, rather than attempting to reconstitute the historic composition at the time of the original judgment. The reason is, in essence, the desire for simpler (and thus swifter) procedures. If the original judgment was rendered by the full Court, it is quite probable that a significant number of the original judges will still be present to shed light on what occurred for the benefit of the newer members of the Court. That seems perfectly sufficient. Thus in the case of the Application for revision and interpretation of the judgment of 24 February 1982 in the Continental shelf case (Tunisia v Libya, 1985),2479 the Court was composed differently from in 1982, the time of the principal judgment. It should also be noted that ad hoc judges who have participated in the initial proceedings do not have the right to participate in the interpretation. However, the parties have the right to nominate ad hoc judges for the purposes of the interpretation proceedings. The Registrar reminds them of the persons who sat in that capacity, and they have the right to nominate them again, if they wish.2480 If the original judgment was rendered by a Chamber, interpretation will likewise fall to the Chamber. In this regard, the rule about accessory proceedings, mentioned above, is further confirmed: the judges of the principal matter are also the judges of accessory questions. Indeed, Rule 100, paragraph 1 provides that: If the judgment to be revised or to be interpreted was given by the Court, the request for its revision or interpretation shall be dealt with by the Court. If the judgment was given by a Chamber, the request for its revision or interpretation shall be dealt with by that Chamber.

  For details, see Zimmermann and Thienel, ‘Article 60’, above n 2421, 1293–94.   PCIJ, Series A, no 4. 2478   PCIJ, Series E, no 4, 288–89. 2479   ICJ Reports 1985, 192 et seq. 2480   Zimmermann and Thienel, ‘Article 60’, above n 2421, 1294. 2476 2477



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This ‘parallel’ principle had already been applied in favour of a Chamber, in the case on the Interpretation of Judgment No 3 (Treaty of Neuilly, 1925).2481 In such cases the Court tries to nominate the same Chamber. If that is not possible, it will consult the parties about the Chamber’s composition. (5)  A New Case A dispute about the correct interpretation of a judgment will normally satisfy all the requirements for an inter-State dispute. Provided that a title of jurisdiction as to the principal case is available, the interested party can therefore start a new case before the Court. The subject of the new case will be the interpretation of one of the pronouncements that has the force of res judicata.2482 If, at that juncture, the other party were to seise the Court of a request for interpretation under Article 60 of the Statute, the former new case would not take automatic priority. Its existence would neither block nor suspend the request for interpretation. If the subject matter of both cases is identical, then the Court will have power to proceed analogously with the rules on consolidating proceedings, by virtue of the principle that justice must be properly administered. If the subject matters are not identical, the proceedings will remain separate. (6)  Abuse of Process Under its inherent jurisdiction, the Court has the right to regulate its procedures. It can declare a request for interpretation inadmissible in limine litis, if the request constitutes an abuse of rights, in this case in the particular form of an abuse of process.2483 That would be the position if, for example, the requesting party’s sole objective were to slow down its obligation to implement the judgment by raising arguments that were artificial, or were incompatible with the purpose of a request for interpretation. It would equally be the position, if the requesting party were to bring a whole series of requests for interpretation. Naturally, the Court, dealing as it does with disputes between sovereign States, will be particularly careful about deciding that there is such an abuse. Whenever possible, it will interpret the facts in such a way as to suppose that there is good faith. The Court is not, however, helpless in face of a manifestly abusive attitude against which it feels the need to react, both to safeguard its own prestige, and in the interests of the due administration of justice. Indirectly, the Court has already signalled that it takes this question seriously, stating that a request for interpretation is admissible only if the ‘real purpose’ is to obtain an interpretation or a clarification.2484 (7)  Joint Applications for Revision and Interpretation A party concerned in a judgment, or if both sides are affected, the parties jointly, can cumulatively present a request for interpretation (Article 60 of the Statute) and an   PCIJ, Series A, no 4.   Thirlway, above n 2421, 82. 2483   Zimmermann and Thienel, ‘Article 60’, above n 2421, 1277. As to abuse of process, cf R Kolb, La bonne foi en droit international public (Paris, 2000) 637 et seq. 2484   Request for revision and interpretation of the Judgment of 24 February 1982 in the case on the Continental shelf (Tunisia v Libya), ICJ Reports 1985, 223, § 56. 2481 2482

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application for revision (Article 61 of the Statute). Nowhere does it say that this has to be done by separate procedural steps. On the contrary, the parties can present a single application, containing both arguments for interpretation and arguments for revision.2485 This is in fact a desirable way to proceed, because it allows the Court to hear the totality of the arguments, which are often interconnected, in a single procedure, and to make a single judicial decision covering both. It is more logical, simple and fast than doing it separately. Such a dual request was made in the case on the Application for revision and interpretation of the judgment of 24 February 1982 in the Continental shelf case (Tunisia v Libya, 1985). As the Court put it, when giving judgment: ‘No provision in the Statute and Rules operates as a bar to such a procedure, [nor, incidentally, do the demands of judicial integrity] which in the present case has practical advantages.’2486 (8)  Provisional Measures engrafted onto a Request for Interpretation A request for interpretation under Article 60 constitutes – as we have seen – a separate case, with its own separate roll number on the Court’s list of cases. At the same time, it is an incidental proceeding, incidental to an older principal case, as shown by the fact that Article 60 constitutes an autonomous basis of jurisdiction (or alternatively that the old title of jurisdiction is perpetuated into the new proceedings). The question therefore arises, whether the party requesting interpretation can, at the same time, ask the Court to indicate provisional measures. In other words, can provisional measures be grafted, in this manner, onto the principal case, when it has already been ended by the principal judgment? Or can provisional measures be rooted in a request for interpretation under Article 60? And if such measures can, indeed, be indicated in the context of proceedings under Article 60, will there be material differences between such measures and those that can be indicated in a principal case? In the case on the Request for interpretation of the decision of 31 March 2004 in the Avena case (Mexico v United States of America, Provisional Measures Order of 16 July 2008), the Court replied in the affirmative to the question whether provisional measures could be indicated in interpretation proceedings.2487 Mexico asked, as a matter of urgency, that the Court indicate provisional measures, in order to prevent irreparable damage to Mexico’s principal request (the Request for interpretation of the Avena decision under Article 60 of the ICJ Statute). It was a matter of stopping the executions of certain Mexican nationals in Texas until their cases could be re-examined in accordance with the Court’s judgment in the Avena case (§ 5). The Court indicated provisional measures under Article 41 of its Statute, emphasising that the request for interpretation constituted an autonomous set of proceedings. The rights to be protected by the provisional measures needed to be sufficiently connected with the object of the request for interpretation (§ 64); and there must be a threat of irreparable damage to those rights (§§ 72–74). This was obviously the case, given that the issue was the carrying out of executions (§ 80). The field of application of (binding) provisional measures was thus extended, from the principal case, to a case that was, at least in part, an accessory one. By analogy, it is clear that such measures can also be requested in revision proceedings under Article 61 of the Statute: ubi eadem ratio, idem ius.   Zimmermann and Thienel, ‘Article 60’, above n 2421, 1285.   ICJ Reports 1985, 197–98, § 10. 2487   It did now do so also in the request for interpretation of the Preah Vihear decision: see Press Communiqué 2011/22. 2485 2486



INTERPRETATION OF THE JUDGMENT 797

And it is, therefore, no longer clear either that interveners may not request provisional measures (confined to the rights and obligations that are in issue from their perspective). As regards their contents, the provisional measures in issue here are slightly different from those that a State can ask for in principal proceedings. In both cases, the measures must have a bearing on the rights and obligations with which the case is concerned. In principal proceedings, they concern all the substantive rights and obligations referred to in the applicant’s pleadings, or in those of parties acting together. In interpretation proceedings, it is solely a matter of measures intimately linked to questions that are claimed to be obscure, and which are submitted to the Court for clarification. The rights to be protected have to be ‘connected’ to the subject of the request for interpretation, and there has to be a risk of irreparable damage. This connectedness criterion – whether or not interpreted quite broadly – is a more marked feature of interpretation proceedings than of principal ones; not that it is lacking in the latter but in interpretation proceedings its ambit is much smaller and more sharply defined. In the Avena case, the provisional measures related to the executions of certain Mexican citizens. They were more concerned with the implementation of the previously rendered Judgment than with its interpretation, where the questions related to the nature of the obligations protecting the rights of the condemned persons, for which the USA was responsible. There was thus no immediate connection between the two distinct objects, the connection being only an indirect one. However, the argument as to the nature of the USA’s obligation made no real sense unless the lives of the beneficiaries of that obligation were preserved. The Court accepted this legally indirect connection, extending to the due implementation of its original judgment, and thus escaping the straitjacket of simple interpretation.2488 In taking this line, the Court showed itself ready to indicate provisional measures covering quite a wide field. In itself, this tendency is not unsatisfactory. One cannot overstress the maxim boni judicis est ampliare jurisdictionem. Indeed, given the general weakness of the international rule of law, the tendency in a sense ought to win greater approval. Nevertheless, the Court must be careful not to open the way to procedures amounting to abuses. It might be tempting for a State to invoke the disputed interpretation of a judgment (and all that would be necessary would be to take up a position conflicting with the views of the opposing party), in order to bring itself within the ambit of Article 60, then to bring the request before the Court, and immediately seek the indication of provisional measures under Article 41 of the Statute, which, as the Court said in the LeGrand judgment (2001),2489 are legally binding. In this way it would be possible to obtain binding orders from the Court in the context of the execution of the judgment after the latter had been rendered, that is, not just during the period while the case was pending before the Court. This has the potential to undermine the provisional measures mechanism as provided for in the Statute. The danger is all the greater in view of the considerations mentioned below. The Court stated, in the case on the Request for interpretation of the decision of 31 March 2004 in the Avena case (judgment of 19 January 2009), that: ‘The Court’s competence under Article 60 necessarily entails its incidental jurisdiction to make findings about alleged 2488   Judge Buergenthal, in his Independent Opinion annexed to the Judgment, emphasised that this jurisprudence opened the way to the future abusive use of Art 60 of the Statute, in which surreptitious concerns about the execution of the Judgment might be presented under the guise of requests for interpretation. 2489   ICJ Reports 2001, 501 et seq., §§ 89 et seq.

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breaches of the Order indicating provisional measures.’2490 The Court added: ‘That is still so even when the Court decides, upon examination of the Request for Interpretation . . . not to exercise its jurisdiction to proceed under Article 60.’2491 The Court then unanimously found against the USA in this regard (see point (2) of the Judgment’s operative provisions). In this way the Court gave double backing to the implementation of its original Judgment. This jurisprudence immediately produced follow-up effects, as is shown by the Preah Vihear interpretation request.2492 Obviously, this jurisprudence might operate as an incitement to States to seek the Court’s aid in implementing existing judgments, using provisional measures which, in truth, are less ‘protective’ than ‘executive’ in nature, under the cover of a procedure whose true purpose will have been subverted. The Court will need to be careful not to encourage this practice, assuming it views it as unwelcome, because it would suck the Court into directly concerning itself with the manner in which its own judgments are implemented. In principle, that is not the Court’s job under its Statute.

d)  Imperative Character of Article 60 To what extent can there be any derogation from the requirements of Article 60 of the Statute as to requests for interpretation? Can the parties agree on other (and perhaps more liberal) conditions for the making of such requests? And can the Court base its action directly on such an agreement, ignoring the precise requirements of Article 60? In other words, is Article 60 exclusive and exhaustive, or does it allow for alternatives? We have already considered other questions of similar kind, and need not now repeat considerations that have already been explained elsewhere in this work.2493 There are two aspects of Article 60 that might give rise to a wish to derogate from them, namely the requirement of a ‘dispute’ which the parties might wish to dispense with altogether, and the parties’ right to request interpretation unilaterally. The parties might thus agree that there need not be a dispute, requesting the Court to respond to ‘curiosity’ about an interpretational question which has not (or at least not yet) given rise to a formal dispute between them. Or the parties might include a provision, say in a special agreement, to the effect that a request for interpretation can be made only by the parties jointly. This would restrict the access to the Court provided for in Article 60. We can leave aside a third hypothetical possibility, that the parties might agree to reserve the interpretation of the Court’s judgment to some other body, such as an arbitral tribunal, because in the latter event the question concerns only the arbitrator’s jurisdiction. The arbitrator will not be bound by the Statute, and will therefore have no basis to refuse to interpret the Court’s judgment for his own purposes, if the parties ask him to do so (but the arbitrator may declare the claim inadmissible if he considers that the parties ought to have recourse to Article 60 as a lex specialis or prior). That procedure would obviously not prejudice the parties’ right of recourse to the Court under Article 60 in any way. Finally, there is a fourth possibility: one can imagine the parties’ agreeing in advance to renounce the right to request interpretation.   At § 51.  Ibid. 2492   Press Communiqué 2011/22. 2493  Above. 2490 2491



INTERPRETATION OF THE JUDGMENT 799

The answers to these questions are to be found in the fact that the Statute is imperative both for the parties and for the Court itself. As the Court has more than once stated, it does not have the authority to step outside the provisions of the Statute, even if parties ask it to do so. It follows that the requirements of Article 60 cannot be altered by the parties.2494 This conclusion also follows from Article 103 of the Charter: given that the Statute is an integral part of the Charter itself,2495 the obligations and norms of the Statute take priority over any other agreement. In the circumstances we are considering here, this means that Article 60 and its requirements prevail, in the event of conflict, over the provisions of the parties’ special agreement.2496 This situation does, however, need to be understood in two different senses. First, the parties’ special agreement is not null and void, but merely unopposable to the Court. It is thus still possible for the parties themselves to comply with its provisions. So long as they do that without asking the Court to step outside its own Statute, their special agreement will indeed have binding force inter partes. So, if the parties have agreed that there will be no application to the Court for interpretation unless they apply jointly (an agreement they might make, for example, with a view to avoiding any abuse via the provisional measures mechanism, as discussed above) and provided they respect that agreement, the Court will have no reason to invalidate it, since it will not at all be seised. If the parties jointly seise the Court, it will have jurisdiction. But if one side breaks the agreement by seising the Court unilaterally, here, too, the Court will have jurisdiction under Article 60.2497 The position is not the same, however, as regards the requirement for a dispute. States can agree on the right to seek interpretation from the Court, even without waiting for a dispute to arise between them as to the meaning or scope of the judgment. Such an agreement can, however, be implemented in practice, only by asking the Court to overlook the condition – which the Court cannot do. The Court will therefore declare the request inadmissible for want of a present concrete right to make it, so that the request has ‘no object’. Second, there can be apparent ‘derogations’ from the Statute that are much less glaring than in the above examples. It will often be possible to proceed on the basis that the relevant provision in the parties’ special agreement is capable of being interpreted in such a way as not to conflict with the Statute. That kind of interpretation is naturally preferable to the Court itself, which will not simply assume that there is an attempted derogation. The presumption is against derogation; thus a conflict with the Statute will not be found to exist unless the text and the will of the parties, clearly show it.   Thus, and correctly, also Zimmermann and Thienel, ‘Article 60’, above n 2421, 1289.   Art 92 of the Charter and Article 1 of the Statute. 2496   In the opposing sense, the Individual Opinion of Judge Ruda in the case of the Request for revision and interpretation of the Judgment of 24 February 1982 in the Continental shelf case (Tunisia v Libya, 1985), argued that Art 103 concerns only conflicting obligations and not conflicts of rights (so that the parties can perhaps renounce rights they possess under the Statute): ICJ Reports 1985, 235, § 14. This distinction is not a convincing one. First, the theory of law shows that every subjective right also implies a legal obligation (even though it is not so easy to prove the opposite). Second, the requirements of Art 60 of the Statute are distinct from the right to seise the Court of a request for the interpretation of a Judgment. Legally, they are to be analysed as burdens, or, in the binary language of rights-and-obligations, as obligations that must be respected, to establish the admissibility of the request. 2497   An interesting question would arise as to whether the party which had suffered the violation of such an agreement could bring suit and demand reparations from the violating State. There seems no reason to exclude this possibility. The Court would then be called upon to decide the legal validity (not whether there had in fact been a breach) of this inter partes agreement. Following the reasoning under Art 103 of the Charter, the Court would probably rule that the Statute prevailed ab initio as to the derogating agreement, and that the State which had unilaterally seised the Court had exercised its rights under the Statute and therefore had not committed a breach of international law. 2494 2495

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To date, the sole relevant precedent is the case of the Application for revision and interpretation of the judgment of 24 February 1982 on the continental shelf (Tunisia v Libya, 1985).2498 Article 3 of the Special Agreement in that case provided that, if the parties were unable to agree on the application of the principles and rules of limitation posited by the Court in its principal judgment, ‘the Parties should go back together [to the Court]’2499 to seek explanations and clarifications. This formulation was somewhat equivocal. It could be understood as representing one amongst several prospective ways of seising the Court. Under that reading, the parties were giving preference to joint seisin, without in any way excluding the right of each party to seise the Court unilaterally under Article 60. Interpreted in this way, the terms of the special agreement were entirely compatible with that Article. However, the provision could be read, in an alternative way, as creating, by means of a lex specialis, a single modality for seising the Court, derogating from all other modalities, including those of Article 60. Third, the provision could be read as an implicit reference to Article 60, subject however, to an alteration to the Article as regards the conditions for seising the Court. Since the provision was ambiguous, and in itself capable of all three interpretations, the Court could easily choose the first, because it avoided any conflict of norms. That, indeed, was what the Court did.2500 While leaving open the question whether an agreement in this regard could derogate from the Statute – though the Court’s entire reasoning shows that it could not – the Court stated that ‘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.’2501 An interpretation in favorem validitatis militated in favour of interpreting Article 3 of the Special Agreement as a supplemental mechanism by which the parties could together seise the Court, a mechanism included for diplomatic reasons or even ex abundante cautela, and not as a restriction on the parties’ rights under the Statute. The problem was thus reduced to a question of interpretation which made it easier to deal with. This in turn made it possible to extract all the potential poison from Article 3 of the Special Agreement, thus making it compatible with the Statute. The rigor iuris required by the imperative character of the Statute was tempered by interpretation, the supreme art of the lawyer.   ICJ Reports 1985, 192 et seq.   Ibid, 214, § 41. 2500  On the other hand, Judge Gros preferred to attack the problem of inconsistency between the Special Agreement and the Statute in a more frontal way (Dissenting Opinion of Judge Gros, ICJ Reports 1982, 146). He considered that if Art 3 of the Special Agreement merely repeated the provisions of Art 60 of the Statute, it would be superfluous. It must therefore be supposed that the parties wished to eliminate the provisions of the Statute. The Court ought to have addressed this point, since it raised questions of principle concerning the implementation of the Court’s Judgment: ‘[T]he protection afforded by paragraph 2 of Article 94 of the Charter in the event of a refusal to comply with a judgment would effectively be suspended, if not cancelled, should it not be possible for one Party alone to go back to the Court for an interpretation after a refusal by the other party based on Article 3 . . .’ Although one might agree with Judge Gros in regretting that the Court was not more explicit about the point, it is nevertheless impossible to agree with his view that the parties necessarily wished to derogate from the terms of the Statute. Although his pure logic was beyond reproach, experience shows how often legal texts contain words that are strictly speaking unnecessary, but are nevertheless included for convenience, or out of ignorance, or from a desire for precision, or simply ex abundante cautela. On the other hand, Judge Ruda thought, in his Individual Opinion annexed to the Judgment of 1985 (above n 2496, 234–35, § 13), that there was no conflict between the obligations in the Special Agreement and the Statute, given that the parties had stipulated for a procedure for negotiation prior to any seising of the Court. That procedure did not purport to eliminate the unilateral right to seise the Court under Art 60. This interpretation conformed and harmonised the two texts. 2501   Ibid, 216, § 43. 2498 2499



INTERPRETATION OF THE JUDGMENT 801

There is another way in which parties can try to avoid the rigours of Article 60 in relation to the interpretation of judgments. A party can always renounce, on an ad hoc basis, the power to exercise its rights under the Statute. Therefore, it can certainly renounce the right to seek interpretation from the Court. There is no obligation to request interpretation. On this basis, it is possible to argue that a party should also have the right to enter into an agreement renouncing the right – if you are allowed the principal act (unilateral renunciation), you are also allowed the accessory act (renunciation by mutual agreement). In both cases the State is exercising its undoubted right not to seise the Court. The difficulty with this argument is that renunciation is permissible only on the same conditions as apply to the exercise of the right. In this case, a party can renounce its right (to request interpretation) at any time after the public reading of the judgment, given that the right to seise the Court is unilateral and unconditional. But it cannot bind itself in advance and vis-à-vis another State, not to seise the Court. Indeed, if it were permissible to do that, there would be an inevitable inconsistency with Article 60. The State would no longer be able to seise the Court unilaterally, even if it subsequently changed its mind and wished to do so, because it would be bound by its agreement. Legally, that would amount to saying that the agreement not to request interpretation prevailed over the provisions of the Statute. As we have seen, that is not permissible. From a teleological perspective, too, the result would be undesirable. Article 60 fulfils a public interest function. It enables a party experiencing difficulties of interpretation, in relation to a pronouncement of the Court with the force of res judicata, to request the Court to clarify it. This, in turn, makes it possible to clear away obstacles to the judgment’s implementation. The function of the application for interpretation is to safeguard the public interest in the due implementation of the Court’s judgments. Parties do not have the right to make private agreements that defeat this public interest of the international community of States bound by the Statute. On the contrary, that public interest insistently requires that any party facing such difficulties of interpretation can seise the Court of them at any time, so that the Court can clarify the question and enable the judgment to proceed to implementation as contemplated by Article 94, paragraph 1 of the UN Charter. Finally, one may wonder whether such norms of general international law as normative acquiescence or estoppel can prevent a party’s seising the Court of an application for interpretation. Since this question has, until the present time, been addressed in the context of applications for revision, it will be dealt with at the very end of the next chapter.2502 The foregoing considerations do, however, show quite clearly how very difficult it is to admit such a restriction on the right of unilateral seisin. If a party cannot bind itself in advance, by a clear expression of will, it is unlikely that the law would allow it to do so by conduct creating a confident expectation which, in current circumstances, could not be legally characterised as legitimate. But if the expectation is not legally legitimate, there is no room for the principles of acquiescence and estoppel to apply, since an essential condition will be lacking. Furthermore, these principles cannot prevail over public interests. The right to request the interpretation of a judgment is a public interest question, because, as we have seen, the clarification of the judgment is an essential condition for the judgment to be properly executed. And it is beyond doubt that the Court’s judgments are a matter of ‘public policy’ interest, both under the UN Charter and under general international law.

  See below, section 23 (d).

2502

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23.  REVISION OF A JUDGMENT2503

a)  General Features When a judgment is interpreted under Article 60 the situation remains, in formal terms, within the four walls of the original judgment. Although there is an attempt to clarify the judgment, its binding character is nonetheless respected. But revision is different. In revision cases, the res judicata is fairly and squarely reopened. The judicial decision is considered to be so defective that the positive law procedures for amending it come into play. In this regard, account must be taken of the fact that the general rules of contentious procedure are based on the fundamental idea of legal certainty. There can already be no doubting the importance of the numerous norms, of varying degrees of intensity, that legal systems have created in order to govern the activities of human society; but it is even more important, indeed it is essential, that the judgment in any concrete case will put a final and binding end to the dispute. The degree to which any given norm is designed to create legal certainty varies, since norms are created for general purposes that are, so to speak, preventive ones, so that they may be said to stand apart from the circumstances of particular concrete cases. By contrast, a judicial decision in contentious proceedings is closely linked to, and indeed can be handed down only in respect of, a concrete and current dispute. Such a dispute is a disturbance to the social order, and the whole objective of the law is to find a solution for it, by applying the values and norms of the legal system. The finality of the judgment, rendered with the force of res judicata, is the sine qua non on which the entire edifice is based. This means that the judgments of a court are subject, first and foremost, to the requirement of legal certainty, ut llsit finis litium. This is particularly true in the field of international law, where the propensity towards disorder and anarchy is so pronounced, where sovereign arrogance is quick to re-open problems supposedly resolved, and the 2503   As to the revision of judgments, for the PCIJ, see MO Hudson, The Permanent Court of International Justice, 1920–1924. A Treatise (New York, 1943) 591; JC Witenberg and J Desrioux, L’organisation judiciaire, la procedure et la sentence internationales (Paris, 1937) 376 et seq.; and M Scerni, ‘La procedure de la Cour permanente de Justice internationale’ CCHAIL, vol 65, 1938-III, 670 et seq. For the ICJ, see A Zimmermann and R Geiss, ‘Article 61’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 1299 et seq.; H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’ in BYIL, Part Thirteen, vol 74, (2003) 89 et seq.; S Rosenne, The Law and Practice of the International Court, 1920–2005, 3rd edn, vol III, (Leiden, 1997), 1669 et seq., 1681 et seq.; M Dubisson, La Cour internationale de Justice (Paris, 1964) 250–51; G Guyomar, Commentaire du Règlement de la Cour internationale de Justice, adopté le 17 avril 1978: Interprétation et pratique, 2nd edn (Paris, 1983) 627 et seq; R Geiss, ‘Revision Proceedings before the International Court of Justice’ (2003) 63 ZaöRV 167 et seq.; I Kaufmann, Wiederaufnahme von Verfahren vor dem Internationalen Gerichtshof (Baden-Baden, 2005); WM Reisman, Nullity and Revision: The Review and Enforcement of International Judgments and Awards (New Haven, 1971); S Rosenne, Interpretation, Revision and other Recourse from International Judgments and Awards (Leiden, 2007); S Torres Bernardez, ‘A propos de l’interpretation et de la révision des jugements de la Cour internationale de Justice’ in Essays in Honor of R Ago, vol III (Milan, 1987) 443 et seq.; E Zoller, ‘Observations sur la révision et l’intérpretation des sentences internationales’ (1978) 24 AFDI 327 et seq.: the request by the former Yugoslavia to revise the judgment as to jurisdiction and admissibility in the Genocide case has to some extent revived interest in the question. See particularly, in the context of that case: PJ Epstein, ‘“New Facts” in the Bosnia-Herzegovina v Yugoslavia Genocide Case: Interpretation of Article 61 of the Statute of the ICJ’ in The Global Community Yearbook (2004) 187 et seq.; LNC Brant, ‘L’autorité de la chose jugée et la revision devant la Cour internationale de Justice à la lumière des derniers judgments de celle-ci (Yougoslavie c Bosnie et El Salvador c Honduras)’ (2003) 49 AFDI 248 et seq.; S Forlati, ‘La sentenza della Corte internazionale di giustizia in merito alla richiesta di revisione della pronuncia sulla giurisdizione resa fra Bosnia e Iugoslavia’ (2003) 86 RDI 426 et seq.



REVISION OF A JUDGMENT 803

judgment of a court or other tribunal is a bird of extreme rarity and the utmost value, implying, as it does, that the rule of law has indeed been established between the States of the international community, even if only to a minimal degree. This achievement, precisely because it is still so modest, must be preserved at almost any cost. Legal systems, considered in all their fullness, involve an endless re-balancing between, on the one hand, fundamental principles and legal certainty, and, on the other, the requirements of justice itself. Each branch of the law needs and strikes a constantly renewed appropriate balance. When it comes to the end-product of all contentious legal proceedings, namely to the judgment, the essential balance is tilted, as it must be, in favour of the austere requirement of legal certainty. As always, however, in legal questions, neither of the two principles (legal certainty and justice) is allowed absolute predominance. It would be unacceptable if the requirement of legal certainty were to become so paramount that concrete judgments could be given on the basis of entirely unjustified suppositions.2504 The requirement of justice in the individual case must therefore be maintained, and the pressures of the two requirements are thus mutually corrective in their effects. The mechanism for the revision of judgments, that is, the possibility of seeking to re-open a pronouncement having the force of res judicata, in effect setting aside that force, is a product of the principle of substantive justice. This concern for substantive truth, overturning the purely formal ‘truth’ of the existing res judicata, benefits both the individual or entity that has suffered the injustice, and also the wider collective interest. After all, a manifestly bad judicial ruling is no basis for ensuring the peace of society; on the contrary, it tends to give rise to agitation and disputes (to resolve badly, is not to resolve at all); it undermines the community’s highly important confidence in its judicial system; and it damages the prestige of the tribunals and judges that are responsible. There is a common interest, shared by the parties concerned and by the wider public, in rectifying bad decisions. At the end of the day, the good ship Rule of law recovers its seaworthiness by adjusting the ballast, adding a little more of the principle of justice, jettisoning a little of the legal certainty, or perhaps vice versa. The re-balancing is a matter of utility and practicability, whether it be, so to speak, a matter of the sunlight being partially blocked by cloud, or the opposite, a degree of shade being required against the glare. Nevertheless, there are limits to what any community’s sense of justice can sensibly require, and the claims of justice must not be exaggerated beyond reason. Justice itself recognises the injustice inherent in allowing disputes about judgments to drag on indefinitely and in an artificial way. That would simply encourage parties to breach their undertakings to honour the judgments to which, as a matter of international law, they have freely submitted. Pacta sunt servanda is also a principle of justice. It is, therefore, not simply a matter of the principles of justice and legal certainty being in conflict with each other. The requirement of justice, itself, does more than demand the adjustment of its unending tension with the principle of legal certainty. Within the very principle of justice itself, there is, in truth, an element of creative polarity, one that cries out for moderation and restraint. Given that the res judicata principle remains the keystone in the arch of judicial dispute resolution, revision of a judgment must always be an exceptional, and indeed limited, measure. This leads to several consequences that can be properly categorised as legal ones. First, in the law of the ICJ, revision is the only exception to the final and binding character of the 2504   This is particularly evident in criminal law, where no-one would seek to argue that an individual wrongly condemned must serve his entire punishment (or suffer capital punishment) despite the error, simply because of the judgment’s finality.

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Court’s judgments that is recognised in positive law (that is, the sole exception to the formal and substantive force of res judicata). There is no recognised concept of judgments being nullities. No party can ever argue that a judgment is, by reason of some grave defect, automatically null and void. If that were possible, it would blow a hole in the definitive and binding character of the Court’s judgments, providing parties with an escape route that would be convenient, unilateral and dangerous. The whole judicial procedure is based on the parties’ cooperating with the Court, and above all on the delegation to the latter of the power to decide the outcome; that being so, final control and oversight over the judgment, in the event of some defect, must also be a matter of cooperation and delegation: it cannot be unilateral. It is for the Court to decide about possible defects in its judgment. Even in cases where the Court’s judgment involves an alleged breach of a norm of jus cogens under general international law, it will not automatically be null and void by analogy with Article 53 of the 1969 Vienna Convention on the Law of Treaties. The breach of a rule of jus cogens is only an allegation, that is, a claim by one side. The Court can be requested to clarify that question under Article 60. If (which is almost unthinkable) the Court were obliged to conclude that such an error of law had indeed found its way into the judgment, the latter would ipso facto be a nullity and would therefore, as a natural legal consequence, have to be replaced by another judgment. This would not, however, be a case of revision, since the defect would be one of law, not one of fact. Since there is no specific recourse against alleged breaches of or derogation from imperative norms, the Court can and must be seised either under Article 60 of the Statute, or, in a contentious case, on the basis of Article 66(a) of the Vienna Convention on the Law of Treaties, or possibly on a particular basis that it might allow under its inherent jurisdiction over procedural matters under Article 30 of the Statute, having regard to the gravity of the alleged defect. Second, the defects which may be alleged in an application for revision are narrowly defined. The only argument available for piercing the veil of res judicata is an error relating to some fact which is essential to the judgment; that fact must have been unknown at the time of the judgment; and it must have been unknown without negligence by the party now invoking it. Revision relates back to the factual accuracy of the original judgment at the time it was rendered. It thus involves neither an appeal against an error of law, nor an adaptation of the judgment to changed circumstances. As to the former (appeal against an error of law), no error of law can be relevant to revision; as to the latter (adaptation to changed circumstances), there is simply no error at all. Third, since revision is an exceptional procedure, inimical to the fundamental principle that judgments are final and definitive, the requirements for revision have to be very narrowly framed by the legislator (as they were by the draftsmen of Article 61 of the Statute), and they must also be restrictively interpreted by the Court itself. The wording of Article 61 is, in various ways, fairly imprecise, leaving the Court a significant margin of appreciation. Unless, in a particular case, there are strong reasons for a more liberal approach, the Article must be interpreted in a fairly restrictive way that is unfavourable to the disapplication of the res judicata principle.2505 In any event, the overall principle has to be, when in doubt, to follow the res judicata: ‘in dubio pro res judicata, quae pro veritate habetur’; or: exceptions must be narrowly construed. In the history of international arbitration, there was no provision in the relevant texts, notably in the nineteenth century, for the revision of judgments. This was quite natural: it

  cf Zimmermann and Geiss, ‘Article 61’, above n 2503, 1301.

2505



REVISION OF A JUDGMENT 805

was purely ad hoc justice, and could not concern itself with a problem which became significant only when justice became institutionalised. It is true, of course, that defective judgments were known to be a problem, and when it came up, the law gave the parties two possibilities: the arbitral award might be argued to be a nullity because the arbitrator had exceeded his powers;2506 and an award might be revised following agreement between the parties to allow revision. As to the latter, the only interests that were considered to be affected were those of the parties, not those of an ‘international community’. It was therefore for the parties to agree, if they so wished, on the modalities for a possible revision, or to agree ad hoc on the best way to resolve a dispute as to the merits of the award (such as, for example, returning the case to the original arbitral tribunal for revision, or the constitution of a new tribunal and so on). In any event, a unilateral application for revision, made by one party, was practically bound to fail: the original tribunal was now functus officio, so that it was impossible simply to go back to it – and it would in fact be necessary to reconstitute it. In practice, a procedure of that kind could produce acceptable results only if the parties cooperated to that end. It is easy to see how different things are when justice is institutionalised and permanent. The institutional court is always available to parties, even when they apply to it unilaterally. For example, Article 13 of the 1898 Italo-Argentine Treaty of arbitration included a clause on the revision of awards.2507 This was to be a contractual revision, organised by treaty and based on the agreement of the parties. The arbitrators’ jurisdiction did not flow from any kind of statute, but simply from the jurisdiction delegated to them by the parties. The Hague Convention I of 1899 – and then the 1907 Hague Convention – included provisions for revision that embodied the entirety of this non-institutional arrangement.2508 Under those Conventions, revisions were to be carried out under the modalities which the parties could provide for in their compromis. Absent any such provisions, there could not be a revision. In short, until the PCIJ Statute was adopted, revision was not an autonomous institution. It depended solely on the will of the parties. The move towards institutional justice made it possible for revision to become an autonomous legal mechanism. It was no longer left purely to the wishes of the parties, for reasons both practical and general. At the practical level, it was no longer impossible to seise a tribunal of an application for revision, since the PCIJ existed and was a permanent jurisdiction available to hear such applications. As to the general reason, revision now had an additional effect, on the collective interest, in the proper functioning of the Court and the due administration of justice, of the States that were parties to the Statute. There was thus every reason to give revision autonomous legal 2506   On this point, see, eg the analysis of F Castberg, ‘L’excès de pouvoir dans la justice internationale’ CCHAIL, vol 35, 1931-I, 353 et seq. 2507   On this treaty, see WE Darby, International Tribunals – A Collection of the Various Schemes which have been Propounded (London, 1899) 215 et seq. 2508   Art 83 of the 1907 Hague Convention (Art 55 of Hague Convention I of 1899): ‘The Parties can reserve in the “Compromis” the right to demand the revision of the Award. In this case, and unless there be an agreement to the contrary, the demand must be addressed to the Tribunal which pronounced the Award. It can only be made on the ground of the discovery of some new fact calculated to exercise a decisive influence on the Award, and which, at the time the discussion was closed, was unknown to the Tribunal and to the party demanding the revision. Proceedings for revision can only be instituted by a decision of the Tribunal expressly recording the existence of the new fact, recognizing in it the character described in the foregoing paragraph, and declaring the demand admissible on this ground. The “Compromis” fixes the period within which the demand for revision must be made.’ On this provision, see JB Scott, Les Conférences de la Paix de La Haye de 1899 et 1907 (Paris, 1927) 260. For the provisions of the Rules, see also Guyomar, above n 2503, 628–30.

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status, in lieu of the old and more private ‘ad hoc’ concept. This led to Article 61of the Statute which provides for judicial revision in the modern sense of the term.2509 Article 61 reads as follows: 1. An application for revision of a judgment 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. 2. The proceedings for revision shall be opened by a judgment of the Court expressly recording the existence of the new fact, recognizing that it has such a character as to lay the case open for revision, and declaring the application admissible on this ground. 3. The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision. 4. The application for revision must be made at latest within six months of the discovery of the new fact. 5. No application for revision may be made after the lapse of ten years from the date of the judgment.

One sees at once that revision, as an exception to res judicata, is regulated in a notably stricter way than is interpretation under Article 60. The considerable detail provided for in Article 61 regulates and encompasses the revision procedure in a manner which is not only highly restrictive, but is in marked contrast with the ‘lighter’ treatment given to interpretation in Article 60. One sees too (§ 1) that this revision derives from a general principle of law recognised by municipal systems: one that legally is an autonomous concept; it no longer depends simply on the will of the parties, as expressed in an agreement or compromis between them. Rule 99 complements the text of Article 61 of the Statute, containing procedural provisions as follows: 1. A request for the revision of a judgment shall be made by an application containing the particulars necessary to show that the conditions specified in Article 61 of the Statute are fulfilled. Any documents in support of the application shall be annexed to it. 2. The other party shall be entitled to file written observations on the admissibility of the application within a time-limit fixed by the Court, or by the President if the Court is not sitting. These observations shall be communicated to the party making the application. 3. The Court, before giving its judgment on the admissibility of the application may afford the parties a further opportunity of presenting their views thereon. 4. If the Court finds that the application is admissible it shall fix time-limits for such further proceedings on the merits of the application as, after ascertaining the views of the parties, it considers necessary. 5. 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.

Finally, Rule 100 concerns both the procedure for revision and that for interpretation: 1. If the judgment to be revised or interpreted was given by the Court, the request for its revision or interpretation shall be dealt with by the Court. If the judgment was given by a Chamber, the request for its revision or interpretation shall be dealt with by that Chamber. 2. The decision of the Court, or of the Chamber, on a request for interpretation or revision of a judgment shall itself be given in the form of a judgment. 2509   On the travaux préparatoires for this text, see especially, Zimmermann and Geiss, ‘Article 61’, above n 2503, 1303–304.



REVISION OF A JUDGMENT 807

Proceedings for revision before the PCIJ and the ICJ had been fairly infrequent. However, in recent years they have tended to become more common. The PCIJ was never presented with an application for revision.2510 For many years the experience of the ICJ was the same. To date, there have been three applications – all unilateral. Each time, the Court has held that the conditions for revision have not been satisfied, and has therefore declared the application inadmissible. This restrictive jurisprudence does hold true to the spirit underlying revision as an institution. It has also tended to discourage parties from resorting too readily to applications for revision in the hope, if not of achieving marvels, at least of gaining some amendments and other advantages. The first application for revision was joined to a request for interpretation. It was made in 1985, more than six decades after the PCIJ was inaugurated. Two further cases followed in the early years of the new millennium. These three cases were the following: Application for revision and interpretation of the judgment of 24 February 1982 in the continental shelf case (Tunisia v Libya, 1985);2511 Application for revision of the judgment of 11 July 1996 in the case on the application of the Convention for the prevention and punishment of the crime of genocide (Yugoslavia v Bosnia-Herzegovina, Preliminary Objections, 2003);2512 and Application for revision of the judgment of 11 September 1992 in the case of the Land, island and maritime frontier dispute (El Salvador v Honduras, 2003).2513 This jurisprudence provides a certain degree of clarification as to the requirements that have to be satisfied before there can be a revision, as laid down in Article 61. However, even in this regard, a number of uncertainties and doubts remain. From another perspective, since none of these applications for revision actually proved admissible, clear indications were lacking in the jurisprudence as to a whole series of questions, such as the precise legal relationship between the judgment on the admissibility of the application for revision and the substantive judgment on revision, or as to the exact modalities whereby the revised judgment would retroactively affect the original one. Generally speaking, it is desirable that applications for revision should remain few and far between, and that the Court should continue its restrictive jurisprudence towards them.

b)  Requirements for Revision As the text of Article 61 shows (see above), revision is conditional upon a whole series of restrictive requirements. In legal terms, these amount to conditions governing the admissibility of the application for revision. Before giving a substantive judgment, that is, before modifying the earlier judgment which allegedly was given on a mistaken factual basis, the Court must first verify, in limine litis, that the necessary conditions are satisfied. There are six cumulative conditions here. 1) First, just as in relation to requests for interpretation, to which we can cross-refer in this regard,2514 revision is possible only as regards an aspect of the original judgment, that aspect having the force of res judicata.2515 There are two limbs to this requirement. First,   Hudson, above n 2503, 591.   ICJ Reports 1985, 192 et seq. 2512   ICJ Reports 2003, 7 et seq. 2513   ICJ Reports 2003, 392 et seq. 2514   See above. 2515   Zimmermann and Geiss, ‘Article 61’, above n 2503, 1301. 2510 2511

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the revision must be confined to points which are res judicata, that is, one or more points in the operative part of the judgment, or an argument necessary for the proper understanding and execution of that operative part. This restriction can be understood as defining the point of any application for revision. The Applicant State wants to free itself of the obligation to carry out an order which is allegedly vitiated by an error of fact. The purpose of the revision is to enable the State to avoid having to comply willynilly with such an obligation. The purpose of the revision is not to reopen all the arguments and facts that the Court might have relied on for the purposes of this or that particular line of argument in its judgment, arguments and facts which would not actually have affected the orders made in the operative parts of the judgment. If that kind of revision were allowed, it would be a sterile and, in practice, a largely pointless exercise. It would be inappropriate to a Court of justice which exists to decide concrete, current disputes, where there is a tangible interest in its doing so. Next, the restriction means that the revision cannot relate to the modification of facts that are essential for the purposes of the judgment but coming into play only after the judgment has been rendered. Revision is a mechanism of control as regards the accuracy of the decision at the time it was made. What it is not, is a mechanism to ensure that the decision remains in conformity with changing circumstances. If that were its objective, it would be more in the nature of adapting judgments in light of fundamental changes of circumstance, a process of judicially-orchestrated peaceful change. Obviously, that is a radically different concept from the correction of factual errors. Since, in ordinary life, circumstances are in constant change and flux, and since, with the passing of time, such changes can be quite radical ones, every judgment of the Court would, sooner or later, come to seem out of step with changed circumstances. It is true that the 10-year time limit does set fairly tight bounds to the possibilities. Nevertheless, the modification of judgments in light of changing circumstances is not, in fact, a judicial function. It is for the parties – they alone are the domini negotii, and it is they who have the primary competence when it comes to implementing a judgment. It might here be possible to substitute a political body for the parties themselves, if they were willing. In that case, however, the ultimate decision would not involve a re-opening of the court’s judgment. Rather, it would be a matter of adapting the situation created by the judgment’s implementation to the developing and new law and/or a changing factual environment. 2) Second, there must be the ‘discovery of some fact’ (Article 61, § 1 of the Statute). Revision is thus concerned with a question of fact, as opposed to a question of law. Questions of law are outside the field to which revision applies. If it were otherwise, it would open up the possibility of what would, in substance, be appeals against judgments, on the grounds that they are based on errors of law. That is not the object or purpose of the revision process. It is scarcely necessary to mention that the legal definition of what is ‘fact’ is far from being a simple matter, because the facts are often closely connected to the law. The concept of a ‘legal fact’, that is, a fact to which a legal norm attaches precise legal consequences, shows the closeness of the connection between fact and law.2516 Any lawyer 2516   Generally speaking, lawyers are not interested in facts of every kind, but solely in those facts that the law considers relevant for the purpose of generating or qualifying certain legal consequences. For the lawyer, the rest of the facts might as well not exist. cf Ch de Visscher, Les effectivités du droit international public (Paris, 1967) 20: ‘For the lawyer, raw facts do not exist. Facts are the primal matter of the law, but only when classified in a way that,



REVISION OF A JUDGMENT 809

who has studied a municipal system of law, where appeals are sometimes limited to points of law – with the exclusion of appeals on points of fact or on evaluation of evidence – is well aware of these difficulties.2517 Roughly speaking, even when limited to ‘legal facts’, the fact itself remains distinct from the law, that is, the norm. On the one hand, a more or less abstract and general norm designates certain situations and events in the life of society as relevant to a certain consequence that it wishes to attach to them; on the other hand there is the world of these designated facts. It would, however, be too restrictive, for the purposes of proceedings before the Court, to operate on the basis of a definition that confined the concept of ‘facts’ to effective events or human behaviour. Certainly, facts must be susceptible to empirical observation. But above all, a fact must be capable of being proved before the Court, in accordance with the applicable legal rules (rules on evidence and the burden of proof). So, for example, the Court treats the internal law of States as a question of fact, in the procedural sense of that expression: the Court does not have direct knowledge of municipal law under the principle jura novit curia, and so it is for the parties to inform it of the relevant rules of municipal law, just as if they were proving a ‘fact’ in the ordinary sense of that word (onus probandi incumbit actori). The same burden of proof may rest on the parties of proving certain rules of particular international law that the Court cannot be taken to be aware of. It follows that, under Article 61 of the Statute, anything to which the evidence brought by the parties in the proceedings relates is fact, and everything which is subject to the rule jura novit curia is to be considered a matter of law within the meaning of Article 61. It would surely be practically impossible to claim that, without negligence, a State was unaware of a rule of (its own) internal law, or of a rule of particular international law applicable to it, so that an application for revision on the basis of such a claim, would usually founder because the no-negligence condition was not satisfied. Is a distinction to be made between facts previously unknown and the evidence tending to establish them? It is indeed possible for a fact to be known at the time of the judgment, but for the supplemental evidence establishing it to the Court’s satisfaction to be discovered only subsequently: a tribunal can refuse to accept a fact because there is insufficient evidence to prove it. New evidence then comes to light. This question frequently arises in revision cases. From one point of view, the new evidence which may, for example, consist of certain documents, is a set of facts. If the evidence existed at the time of the original judgment but was not known of, there would be no reason to refuse to admit it,2518 provided that the other requirements for admissibility were satisfied. From another point of view, there is a fundamental distinction between facts that are being based on a value judgment, is invariably a legal categorisation. The law is not interested in the overall facts, but only in those facts that are legally relevant and relate to the interactions in question. These are only a small part of a much greater and more complex reality.’ (our translation) 2517   For example, when it comes to making a judgment as to the (subjective) good faith of a party or other subject of law, its real conduct is a question of fact, while the judgment as to whether such conduct indicates an innocent error, one consistent with good faith, is a question of law. In international law (where the problem of limited appeals on questions of law does not ordinarily arise), it is possible to imagine the following scenario: there is a dispute about whether adherence to a treaty is a nullity: the question whether adherence actually took place is one of fact (although the act of adherence is a process of law), but nullity is a question of law. Another scenario is as follows: there is a dispute about a critical date: the moment when an event occurred is a question of fact, but the assessment of whether that moment corresponds to a critical date, as defined by the relevant legal norm, is a question of law. Broadly speaking, one might say that findings about circumstances are questions of fact, and that the consequences of those circumstances in light of the relevant legal norms, are questions of law. 2518   This is the practice in Swiss law, see, eg ATF 108, V, 171–72.

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alleged, and the evidence adduced with a view to proving them. Only discoveries in the former category would open the way to revision.2519 The necessarily restrictive character of revision somewhat argues in favour of this interpretation. There is, however, no reason to disregard the fact that documentation relating to a fact is also, itself, a fact, and so to speak ‘participates’ directly in the fact documented. What is more, there is no reason not to follow what is largely the predominant practice of municipal systems of law, of admitting ‘new’ evidence as matters of fact that open the way to possible revision of the judgment. In 2003, the Court accepted that an application for revision could be made in respect of a judgment on jurisdiction and admissibility in relation to a principal application: Application for revision of the judgment of 11 July 1996 in the case on the application of the Convention for the prevention and punishment of the crime of genocide (Yugoslavia v Bosnia-Herzegovina, Preliminary Objections, 2003).2520 In preliminary judgments of this kind, the facts of the case play a less prominent part than they do in judgments on the merits. Not that the facts are absent. They include: the deposit of an instrument ratifying an optional declaration; the date of doing so; facts relevant to the interpretation or application of a treaty and so on. Nevertheless, such judgments deal essentially with questions of law. The question has thus been raised whether the concept of relevant facts, in the sense of Article 61 of that the Statute, ought to be somewhat broadened, so as not deprive revisions of this type of their effet utile.2521 A way to do this has, as yet, still to be indicated. It may be, however, that the question, put in these terms, is misconceived, or in any event that it leads to an inadequate answer. The objective must not be to interpret the conditions for revision of such judgments more widely, in order to allow a kind of ‘revision in the wider sense’ of all decisions on jurisdiction and admissibility. The attitude underlying such an objective would run counter to the general idea that, as an exceptional procedure, revision must be strictly interpreted. To the extent that a measure, or a judgment, on jurisdiction and/or admissibility touches more on questions of law than a judgment on merits, the scope for its revision is reduced but not eliminated. Indeed, questions of fact are not entirely absent from such judgments. If revision can serve a useful purpose, it is not excluded, provided always that it remains confined to questions of fact, as defined above. If judgments on jurisdiction and admissibility are difficult to revise because the questions of fact are fewer, and are largely absorbed into questions of law, this simply means that revision will continue to be unusual in this field. That is not an unwelcome conclusion, and it is reinforced by the purposes for which revision is available in the first place: to avoid a party’s having to execute a judgment that is obviously based on erroneous facts. Judgments on jurisdiction and admissibility do not ‘fall to be executed’ in that sense. The only legal consequence that ensues from them is that the parties will have either to continue or to discontinue the proceedings before the Court. 2519   See the arguments put forward by Honduras in the case of the Application for revision of the judgment of 11 September 1992 in the case of the land, island and maritime boundary dispute (El Salvador v Honduras, 2003), ICJ Reports 2003, 403, § 31. The Chamber examined only the question whether these facts were such as might exercise a decisive influence on the judgment, and decided they were not. The Chamber thus had no need to consider the definition of the word ‘fact’. One may nevertheless note that the Chamber implicitly supposed that it was (probably) concerned with facts in the sense of Art 61, and simply decided that they were not decisive ones. 2520   ICJ Reports 2003, 7 et seq. 2521   Zimmermann and Geiss, ‘Article 61’, above n 2503, 1316.



REVISION OF A JUDGMENT 811

If the Court declares that it has no jurisdiction, or that the application is inadmissible, a party might be tempted to seek revision. But, in reality, it will not necessarily need to do so. Often, all that will be needed will be to present the Court with a fresh application. In that context, it is not limited to the narrow conditions of Article 61. However, in cases where there is no (or no longer a) title of jurisdiction, so that revision might seem to be the only practicable way to reinstate the applicant in a jurisdiction that existed at the former critical date, an application for the revision of something other than facts, for example of errors of law, would be inadmissible. This would not be true revision, it would be an appeal, which would be contrary to Article 60 of the Statute (‘The judgment is final and without appeal’; that would also be true for a fresh application). If an essential fact has been mistaken or unknown, and is one which might have been the basis of jurisdiction, revision remains possible. This, for example, would be the position if the Court had held a case to be inadmissible, but it turned out that this was because a State representative had been bribed, or otherwise corrupted. Or if the nationality of a particular individual, unknown at the time of a case, on diplomatic protection, held, on that basis, to be inadmissible, were subsequently to be established; or if conduct, or even the adoption of positions, showing the ratification rebus ipsis et factis of a treaty, on the basis of which a State intended to base the Court’s jurisdiction, came to light after the Court had found it had no jurisdiction. The scope for revision is certainly narrow and exceptional in such cases, but it is nevertheless real, and can have useful effects. Apart from such cases of revision in the true sense of the term, the Court might be tempted to engage in a more flexible kind of quasi-revision, if the factual or legal underpinnings of its judgment on jurisdiction or admissibility turned out to be mistaken, and the decision on the merits had not yet been delivered. Until now, however, the Court has shown itself as sometimes open (in the South-West Africa cases, 1962–66), and sometimes hostile (the Genocide case, 1996–2007), to this kind of proceeding. We have already seen how, and why, judgments on jurisdiction and admissibility must be considered to have the full force of res judicata, and thus not to be open to alteration by the Court at the merits stage.2522 In the (as yet fairly thin) practical experience of the ICJ, the following have been advanced as ‘new facts’: the discovery of a resolution of the Libyan Council of Ministers decisively showing the true line of a Libyan oil concession (the Court accepted without discussion that this was a factual matter);2523 new scientific evidence on the process of avulsion, and new documents proving certain facts that were in issue in the earlier proceedings (the Chamber expressed no view on whether these were arguments of fact, but seems to have supposed that they were indeed matters of fact);2524 and the admission, as a new UN Member State of the new Federal Republic of Yugoslavia (FRY).2525 This last ‘fact’, being new, that is, having occurred after the initial judgment of 1996, could not directly give rise to a revision. It was therefore argued that it indirectly revealed two other facts, firstly that in 1996 the FRY was not a party to the Court’s Statute, and   See above.   Application for revision and interpretation of the judgment of 24 February 1982 in the continental shelf case (Tunisia v Libya), ICJ Reports 1985, 195, § 6. 2524   Application for revision of the judgment of 11 September 1992 in the case of the Land, island and maritime frontier dispute (El Salvador v Honduras), ICJ Reports 2003, 401 et seq. 2525   Application for revision of the judgment of 11 July 1996 in the case on the application of the Convention for the prevention and punishment of the crime of genocide (Yugoslavia v Bosnia-Herzegovina), ICJ Reports 2003, 12 et seq. 2522 2523

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secondly that it was not a party to the Genocide Convention as successor of the former Yugoslavia. The Court seems implicitly to have accepted that admission to the UN was a factual matter. However, it was not such a fact as to satisfy the requirements of Article 61. The two other alleged ‘facts’ were only legal conclusions resulting from admission to the UN, subsequent to the 1996 judgment. These were in truth legal consequences that the FRY wished to draw retroactively from a fact subsequent to the judgment, namely its admission to the UN in 2000.2526 The Court used the words ‘legal consequences’ to signal that participation in the Statute and in the Convention followed from the legal analysis of the implications of admission to UN membership. In any event, it became apparent that the FRY was not a participant in these two texts only (and indeed solely) in the light of a subsequent event, namely admission in 2000. There was thus no defect in the 1996 judgment, which was solidly based on the facts that were then known and knowable. Admission to the UN in 2000 was a change in factual and legal circumstances, and these were not matters that could be ‘adjusted’ by means of a revision.2527 To sum up, the Court’s entire reasoning was here essentially based on the idea that participation in the Statute and the Convention were not, in the context of the case, ‘autonomous’ facts, to be analysed as such; on the contrary, they flowed, in the circumstances of the case, solely from the later admission to the UN in 2000 and had the complexion of legal consequences (retroactive effect of the FRY’s status as a UN member on its prior legal standing in relation to international treaties). Presented in this way, the Court’s reasoning becomes acceptable. It is not difficult to see how subtle were the legal and mental categories that it brought into play.   3) Third, under Article 61, paragraph 1 of the Statute, the fact must have been in material existence prior to the rendering of the judgment now to be revised. If the fact comes into existence subsequently, revision is not available. Such facts are sometimes described as ‘new’ (Article 61, § 2 of the Statute). This must be understood to mean that the fact was not known at the time of the original judgment, even though it was already in existence at that time. As the Court stated in the case of the Application for revision of the judgment of 11 July 1996 in the case on the application of the Convention for the prevention and punishment of the crime of genocide (Yugoslavia v Bosnia-Herzegovina, Preliminary Objections, 2003): Thus both paragraphs [1 and 2 of Article 61] refer to a fact which was existing at the time 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 61.2528

It is a matter of confining the revision mechanism to errors or deficiencies occurring at the time of the judgment. For this reason, the fact in question needs to be already in existence. To carry out revisions on the basis of subsequent facts, would amount to a profound modification of the whole function of the revision mechanism, opening the way to the adjustment of judgments because of (fundamental) changes in circumstances. In revision cases, the relevant facts are, typically, ‘found’ (or ‘re-found’); they   Ibid, 30, § 69.   It becomes obvious that the relevant reasoning was something of a minefield given the complexity of the questions involved, when one gives a careful reading to the Dissenting Opinions of Judges Vereshchetin (ibid, 39 et seq.) and Dimitrijevic (ibid, 53 et seq.) which, although unconvincing in various particular respects, and also somewhat contrived, do at least have the merit of exposing the difficulty of the questions involved. 2528   ICJ Reports 2003, 30, § 67. The Court concluded, at § 68, that the admission of the FRY to the UN, which took place on 1 November 2000, could not be considered a new fact in the above sense. 2526 2527



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have not occurred in the meantime, as supervening events. Thus a map which is discovered, and indicates the line of a boundary, being a map which was in existence at the time of the judgment, without being known about, is a relevant fact from the temporal point of view. On the other hand, the capacity to draw up new maps, with the benefit of more developed modern technology, is not a fact capable of qualifying for the purposes of an application for revision. In the French text of Article 61, the critical date is actually stated in paragraph 1 to be prior to the moment when the judgment is rendered (‘avant le prononcé’2529). The English text, by contrast, reads ‘when the judgment was given’. As a practical matter, the effective moment will generally be the end of the oral hearings, at which point the Court will be ready to start its internal debate as to the judgment. It is for the parties to put in evidence the facts upon which they rely. They can, it is true, inform the Court of errors even between the closure of the oral phase and the delivery of the Court’s judgment. But generally, the case is ready for judgment at the end of the oral hearings, and the evidence is normally complete at that stage. That is why a fact unknown at the close of the oral phase must be admissible for the purposes of revision, particularly if it can no longer normally be raised in the proceedings that are now closed. It is possible to argue that a party becoming aware of the fact could and should have raised it with the Court immediately; that, not having done so, it must lose the right to claim revision; and that legally revision is no longer necessary anyway, the party concerned having other means at its disposal for airing its concerns. However, it may be difficult for a party to form an instant assessment of the scope or relevance of a particular fact. It might hesitate to trouble the Court with evidence that comes to light at such a late stage. Such legitimate restraint should not count against it. On this particular question, a strict interpretation of the conditions for revision is probably unnecessary. A delicate problem arises as to the relationship between ‘primary’ and ‘secondary’ facts. Rather as in the case of Bosnia-Herzegovina v Yugoslavia, what we are concerned with here is the unrolling of facts over a period of time. In that case, the Court took the view that a fact subsequent to the date of the judgment made it possible only to draw retroactive conclusions as to the legal position prior thereto. The movement, so to speak, was from fact to law. In a case where the fact is ‘late’ and the law anyway irrelevant, revision is not a possibility. But there can also be cases in which the unrolling remains anchored to the world of fact. In these situations, one ‘moves’ from one fact to another. If the first fact (the ‘primary’ one) is subsequent to the date of the judgment, but makes it possible to draw conclusions as to anterior facts (‘secondary’ ones) at the date of the judgment, will it be admissible? The question often arises in the context of the discovery of evidence. We have seen already that such evidence is, in itself, admissible, since it is a matter of fact. But thus far we have supposed that such evidence was already in existence at the time of the judgment, albeit not known about. Now the question takes on wider dimensions. The evidence did not exist at the time of judgment, but 2529   From another point of view, some leading commentators argue that the critical date can be the moment of the principal application, particularly in relation to jurisdiction and admissibility. On this basis, the Security Council Resolutions in the Lockerbie case were not new facts under Art 61 for the purposes of a revision of the judgment of 1998 on jurisdiction and admissibility, even though they were adopted prior to the moment that judgment was rendered. The point would have been whether the Court was correctly informed in 1998, of the legal situation in 1992 at the time the application was made, and here, that was the critical date: cf Thirlway, above n 2502, 95. It is certainly very difficult to imagine a fact, such as the adoption by the Security Council of binding resolutions, being unknown, without any negligence to the parties and to the Court!

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the fact which the evidence would make it possible to prove did indeed ‘exist’ at that time. Can one say that, because of their ‘anchorage’ in an earlier fact, the new facts have a kind of ‘constructive’ presence at the critical date? In the case of the Application for revision of the judgment of 11 September 1992 in the case of the Land, island and maritime frontier dispute (El Salvador v Honduras, 2003), the Chamber had to deal with this situation. Avulsion, argued for by El Salvador, was an existing fact at the time of the 1992 judgment; but the most modern scientific means of describing it with greater precision were developed only thereafter. The Chamber did not give a response to the general question whether such evidence was admissible. It took the view that, even if proved, the fact of avulsion would not have had a decisive influence on its judgment, given that judgment had been given on a different legal basis. International practice on this question is fairly limited – and there is as yet very little experience of it in revision cases. At the level of principle, two attitudes are possible. One possibility is to base oneself on the principle that the conditions for revision must be strictly interpreted, in which case one refuses to open up the mechanism so as to make adjustments in light of ‘supervening evidence’. Given that the Court and the parties cannot have known at the time about subsequent reports and expertise developed on the basis of more advanced methods, there is no error in the judgment. Nor is there any possibility of a negligent mistake as to the facts. This approach amounts to saying that the judgment cannot be revised.2530 Alternatively, one can take the view that the subsequent facts (evidence) are confined to the clarification of prior facts, and are thus functionally and legally as one with them. The significance of the secondary facts is solely in the light they shed on the primary ones, so that the secondary facts have no autonomy or independence. They are, so to speak, absorbed into the primary facts, thereby being retrospectively placed, from a legal point of view, within the critical time, that is, prior to the delivery of the judgment. In short, the judgment thus becomes revisable.2531 At the level of principle, both these interpretations are possible. The former is more in line with revision as regulated by the Statute. If, for that reason, one refuses to extend revision to secondary facts, it may remain possible for the dissatisfied State to bring a new case before the Court to take account of the post-judgment developments. That would not amount to re-opening the judgment, or to a challenge to its res judicata force, since the aspects that had newly come to light would not yet have been decided at all. 4) Fourth, the facts in question must be ‘of such a nature as to be a decisive factor ’ for the original judgment. They must therefore represent a conditio sine qua non of the orders contained in the operative part of the judgment and the reasons necessary to the making of those orders. In other words, it must be possible to conclude, in light of the ‘new’ facts, that the original decision would have been different if the fact (or facts) in question had been known. It is a matter of the later Bench imputing a hypothesis to the old one. The hypothesis is justified by meticulous analysis of the ratio decidendi of the judgment that is to be revised.   This is the tendency in the thinking of Zimmermann and Geiss, ‘Article 61’, above n 2503, 1318.   In the case of Ferrandi v Commission (1991), the Court de Justice of the European Communities held that medical reports subsequent to a decision were relevant facts, to the extent that they clarified the state of health of a patient at the date of the original judgment – Case no C-403/85 Rev. In its advisory opinion on the Monastery of Saint-Naoum (1924), the PCIJ had expressed the view that ‘fresh documents do not in themselves amount to fresh facts’ (Series B, no 9, 22). But fresh facts could justify revision only if they were ‘as one’ with the primary facts. 2530 2531



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It has been said that the decisive character of the ‘new’ facts must be proved by the State applying for revision.2532 That State bears the burden of proof. The question would then be treated as an allegation of fact advanced by the Applicant State, an allegation that must then be proved by it to the Court’s satisfaction (onus probandi incumbit actori). This view seems to be justified as far as the existence of these facts is concerned, but not their qualification as being ‘decisive’. The decisive character of the fact is a question of law, which the Court will analyse on its own authority. All the applicant has to do is to present the facts which in its view are decisive, supported by the explanatory matter required by Rule 99, paragraph 1 (‘containing the particulars necessary to show that the conditions specified in Article 61 of the Statute are fulfilled’). From the material point of view, the Court must decide what the ratio decidendi of the judgment that is to be revised was, that is, what was the legal basis for the decision at the time. The ‘new’ fact is ‘decisive’ if it has a determinative effect on the ratio, making it possible to conclude that the res judicata elements of the original judgments can no longer be maintained. If a ‘new’ fact does not interact in this way with the fundamental elements of the initial judgment, it will not be decisive. That will be the position if it relates to an aspect of the judgment that does not have the force of res judicata (an obiter dictum); or if the ‘new’ fact constitutes an additional reason for the original decision; or if the ‘new’ fact would have enabled the original Bench to be more specific in its reasoning, or in the operative parts of its judgment, but without (significantly) altering the orders made.2533 In short, it is necessary to establish direct causality: the fact in question must have been the reason for the original decision; the modified fact is the reason for that original decision now to be varied. Up to now, the Court has generally based itself on this point when rejecting applications for revision. In the case of the Application for revision and interpretation of the judgment of 24 February 1982 in the continental shelf case (Tunisia v Libya, 1985), the Court held that the new evidence presented by Libya did not significantly affect the 1982 decision, except that the new documents might perhaps have enabled the Court to be a little more precise, had it wished to be so, as regards the cartographic data. In any event, it was not a decisive factor for the 1982 judgment.2534 Given the gravity of a decision reversing a res judicata, one has to approve this jurisprudence. The Chamber of the Court reached a similar conclusion in the case of the Application for revision of the judgment of 11 September 1992 in the case of the Land, island and maritime frontier dispute (El Salvador v Honduras, 2003). In relation to the avulsion argument, it held that the ‘new’ fact was entirely irrelevant, because the delimitation proposed in the judgment was based not on that legal institution of avulsion, but on other matters, in particular on negotiations between the parties accepting the current river bed as the permanent boundary.2535 As to the new documents presented by El Salvador (a map and the record 2532   cf Zimmermann and Geiss, ‘Article 61’, above n 2503, 1319, citing Rosenne, The Law and Practice of the ICJ, vol III, above n 2503, 1670. 2533   Case of the Application for revision and interpretation of the judgment of 24 February 1982 in the continental shelf case (Tunisia v Libya), ICJ Reports 1985, 213–14, § 39. 2534   Ibid: ‘But 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 nature as to be a decisive factor”. Far from being such a fact, the information as to the exact coordinates of Concession no 137 would not have changed the Court’s decision on the first sector to be delimited.’ 2535   ICJ Reports 2003, 404 et seq., §§ 36 et seq. The conclusion was thus as follows (ibid, 407, § 40): ‘Even if avulsion were now proved, and even if its legal consequences were those inferred by El Salvador, findings to that effect

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of an expedition), the Chamber followed a similar argument. The documents did not contradict its earlier judgment, but rather confirmed it.2536 Consequently, they were not a decisive factor in the sense of Article 61 of the Statute. Leading commentators2537 have considered the problem of how a judgment on the admissibility of the revision and the potential substantive judgment on revision should be formulated and how they should relate one to the other. As we shall see, the texts applicable to revision require the Court to deliver separate judgments – first, on the application’s admissibility, and, if it is held to be admissible, a second one on the substantive questions. If the Court accepts, at the admissibility stage, that a decisive factor is indeed involved, then in effect the substantive issue is decided. It has been said that there would be nothing of any substance left over for decision at the merits stage. On that basis, strenuous efforts have been made to design ways in which the Court would, at the first stage, confine itself to finding that a fact was ‘capable’ of altering the initial judgment, or that there was a ‘plausible case’ that the Court’s conclusions would probably have been different. In this way, some effet utile would be left to the separate substantive judgment. Although there is nothing to prevent the Court’s making such findings (though in fact it has never done so), the problem nevertheless seems an artificial one. If the Court accepts that the application for revision is admissible because a fact has a decisive influence on the judgment, it will then need to revise the previous reasons for the judgment and replace them with new ones. To that end, it may, indeed, prove necessary sometimes to completely alter the ratio decidendi, basing it now on arguments such as being subsidiary that were previously rejected. The finding at the admissibility stage thus in no way eliminates the value of the substantive judgment on revision. 5) Fifth, the fact concerned must have been ‘unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence’. The fact must thus be unknown both to the Court and to the party seeking revision. On the other hand, it need not necessarily be unknown to the other party at the proceedings, which may have had a strong interest in keeping it secret. It is thus not necessary that the fact should have been unknown to both sides. It is also easy to see that, if the Court was aware of the fact in question, there can be no revision,2538 because the Court will have taken the fact into account when giving judgment. There would then be no fact, unknown at the time of the judgment that could give rise to a revision.2539 In those circumstances, no error of fact will have been committed in the judgment. It is also necessary that the ignorance is not due to the negligence of the party seeking the revision (ignorantia facti nocet). This provision applies only to that party, and does not apply to the Court itself. Article 612540 thus provides scope for the application of the would provide no basis for calling into question the decision taken by the Chamber in 1992 on wholly different grounds. The facts asserted in this connection by El Salvador are not ‘decisive factors’ in respect of the Judgment which it seeks to have revised.’ 2536   Ibid, 407 et seq., §§ 41 et seq., the conclusion being drawn at 410, § 55. 2537   Zimmermann and Geiss, ‘Article 61’, above n 2503, 1320. 2538   Given that the Court has no control over the facts, and that it is for the parties to put them in evidence, the general supposition is that the Court will be unaware of any facts not put in evidence. That will not, however, be the case as regards facts that are widely known. 2539   Case of the Application for revision of the judgment of 11 July 1996 in the case on the application of the Convention for the prevention and punishment of the crime of genocide (Yugoslavia v Bosnia-Herzegovina), ICJ Reports 2003, 31, § 70. 2540   See also, eg Arts 23, § 2(a), 24, § 1(a) and 25, § 2(b) of the Articles on State Responsibility (2001).



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maxim nemo ex propria turpitudine commodum capere potest.2541 If ignorance of the fact is the result of negligence, the negligent party is not permitted to raise the fact for its own benefit, since that would be a reward for its own wrongdoing. It is the responsibility of the State concerned to establish, to the Court’s satisfaction, that it was originally ignorant of the fact it now puts in evidence. The Court will assess for itself the question of possible negligence and also of its gravity. What standard of care and diligence is required in this respect? Given that revision eliminates the authority of res judicata, and also reduces legal certainty, which is so important in the field of international law, the standard of care and diligence needs to be a high one.2542 The procedures of the Court are based on reciprocal cooperation. Parties must therefore be required to be careful, attentive and diligent to the highest degree. For that reason, a party may never invoke its own ignorance of facts mentioned in its own documentation in the case, or indeed in its opponent’s documentation. Obviously, parties are under an obligation to examine the other side’s documentation with care: the Court’s procedures can work satisfactorily only if they do so. Nor can a party invoke its ignorance of a fact of which it could, and should, have become aware if it had behaved in a diligent and attentive way, as duty requires. This would be the position if, for example, the facts were matters of common knowledge, or were contained for example, in UN documents concerning the dispute. Similarly, general situations of an adverse nature, such as a severe financial or ecological crisis, or even a civil war, will not, in themselves, be enough to excuse a State’s failing in its duty of diligence in relation to the case. Were it otherwise, the way would be open to impracticable double standards that would be incompatible with the strict equality of parties before the Court. At most, the judges can slightly adjust the imputation of fault, as a function of what a State could and should know in concrete terms, given that this depends on circumstances that include such things as catastrophes and civil wars. The maxim ad impossibilia nemo tenetur, meaning that nobody is required to do the impossible, is always available in reserve. If the question concerns a document, must the ignorance of the party seeking revision relate to the existence of the document as such? Or to its contents? Or to both? One answer that has been given to this question is that the knowledge must be as to the contents of documents, even though it is often extremely difficult to establish the difference between knowledge of the instrument and knowledge of its contents.2543 In truth there is no very simple answer. If the State applying for revision was aware of the existence of a document but did not trouble to ascertain its contents, the real question is whether its failure to do so was or was not negligent. If the State must, and could, have hoped to find relevant arguments in the document – in light of whatever it did officially know about the document – ignorance would seem to be inexcusable. If the State could not have expected, and was not under any kind of obligation to expect, that this specific 2541   On this maxim of international law, cf R Kolb, ‘La maxime “nemo ex propria turpitudine commodum capere potest” (nul ne peut profiter de son propre tort) en droit international public’ (2000) 33 RBDI 84 et seq. 2542   Thus, correctly, Zimmermann and Geiss, ‘Article 61’, above n 2503, 1323. Until the present, the Court has not had to specify the standard in any detail. In the case on the Application for revision and interpretation of the judgment of 24 February 1982 in the continental shelf case (Tunisia v Libya), it confined itself to emphasising that the attitude of the applicant for revision, namely Tunisia, was not ‘reasonable and appropriate’, given that Tunisia ought to have sought to inform itself as to the coordinates of the Libyan oil concession, published in the Libyan Official Journal: ICJ Reports 1985, 205, § 24. 2543   Zimmermann and Geiss, ‘Article 61’, above n 2503, 1322.

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document would provide relevant information for the purposes of the case, it cannot be reproached for not studying the contents. The answer depends, in short, on an appreciation of the circumstances of the particular case. 6) Sixth, the Statute imposes precise time limits for applications for revision. Requests for interpretation, by contrast, do not affect the application of the res judicata principle, and it is therefore unnecessary to impose time limits on them. But an application for revision is designed to set aside, or at least to modify, the existing res judicata. It is therefore essential to impose time limits on this potentially subversive exercise.2544 Legal certainty and the finality of the Court’s judgments are both bound to suffer, to the point where it is necessary that, at a given moment, the desire for truth must give way to the imperious need for certainty. The position here is similar to that of acquisitive or ‘liberative’ prescription in the field of substantive rights. From the legal point of view, the Statute provides for the revision of temporal terms, analysable as ‘liberative’ prescription. In accordance with a technique familiar under the law of contract, one of these provisions is a relative one, and the other is absolute – see paragraphs 4 and 5 of Article 61 of the Statute. Paragraph 4 provides for the relative time limit: ‘The application for revision must be made at latest within six months of the discovery of the new fact.’ This is a relative time limit, because it flows from an undefined dies a quo: a party may discover a new fact at any time, without any particular provision as to timing; it is only once that indeterminate moment has arrived that the six months begin to run. If a State discovers a new fact, it is under an obligation of good faith and due diligence to decide whether or not to raise it with the Court. It cannot indefinitely keep a sword of Damocles hidden under its cloak, potentially harming the rights that the other party legitimately believes it holds under the judgment – not to mention the risk of damage to the prestige of the Court itself. Obviously, it will often be very difficult to say with certainty exactly when a State has discovered a new fact. Some assistance is to be derived from the fact that such discoveries are often the consequence of diplomatic exchanges, in which event it is usually easier to fix the date. In other cases, however, difficult questions of evidential proof may arise. That makes an absolute time limit all the more important. Paragraph 5 therefore reads as follows: ‘No application for revision may be made after the lapse of ten years from the date of the judgment.’ At some point, such latent uncertainty about the judgment must be brought to an end. After 10 years, the requirement of legal certainty definitively trumps the ongoing desire to see substantive justice done. It would be unthinkable to allow applications for revision for ever and a day – in saecula saeculorum. The more time passes, the greater the risk that an application will be made in a spirit of chicanery, with an irritatingly autistic tendency to review the chain of injustice right back as far as Adam and Eve. The imperious need for finality, stability and certainty therefore imposes this ultimate time limit. Should it have been one year rather than six months? Or, given the complexity and importance of international legal proceedings, should it have been 20 years rather than 10? These questions are really fairly pointless, and can be debated endlessly. What is important is that clear limits have been fixed. This is one of those situations where, to 2544   Before the PCIJ Statute was adopted, when revision had to be specifically provided for in the compromis or else be inadmissible, there was no reason to fix such a time limit. The parties could regulate the question as they thought fit. But with the adoption of a rule in the Statute, allowing the Court to be seised unilaterally of an application for revision, the adoption of a time limit became essential.



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some extent, the fact of taking a decision (was rechtens ist) is more important than the intrinsic quality of the decision about the length of time to be allowed (was gerecht ist). If an application for revision is presented to the Court on the very last day of the period allowed, that will not in itself make it amount to an abuse of process.2545 The time available is there to be used, if necessary right up to the last minute. The Court will find that there is an abuse only if it is shown that one side was trying to harm the other by delaying the application for as long as possible, and that, objectively, it has succeeded in doing so. These would be extremely exceptional circumstances.

c) Procedure Various procedural features are worthy of mention. Seising the Court. The Court is seised in the same way as in a request for interpretation. In other words, the seisin can be either unilateral or joint, whatever the title of jurisdiction on which the principal case was based. A joint application for revision can thus be made in relation to a judgment in principal proceedings that were brought unilaterally. Similarly, a unilateral application for revision can be made in relation to a judgment in a special agreement case. The Statute is designed to ensure that the application for revision can always be made by the party concerned, without the other party being in a position to block it. That is the only acceptable solution when one is prescribing rules for a system of institutional justice. Nevertheless, the solution is not obvious from the texts. Article 61, paragraph 1 of the Statute seems to contemplate only unilateral seisin, in the words ‘the party requesting revision’. The true interpretation of this provision does not, however, in any way make it impossible to seise the Court jointly, since if you can do so unilaterally you can also do so in concert with the other party. Also, there is good reason to apply Rule 98, paragraph 2 by analogy. That provision deals with requests for interpretation: ‘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’. If that is the position as regards requests for interpretation, it must equally be the position as regards applications for revision, given that the ratio legis is identical. Furthermore, it would be astonishing for an international tribunal, whose jurisdiction is essentially consensual, to refuse a joint application, directly manifesting consent, when it would accept a unilateral one. Finally, there is no legal justification for excluding joint applications. The possibility must therefore be allowed, in line with the general principles governing the seising of the ICJ. It might be appropriate to revise the Rules to make this clearer in the actual texts. To date, all applications for revision received by the Court have been unilateral ones. It is, in the nature of things, more natural, and more likely, that one of the parties will dispute the judgment and wish to see it changed, the other wishing to leave it as it stands. This state of affairs easily propels the parties into the respective positions of (unilateral) applicant and respondent. But there is no legal necessity for that. 2545   The question could have arisen in the case of the Application for revision of the judgment of 11 September 1992 in the case of the Land, island and maritime frontier dispute (El Salvador v Honduras), ICJ Reports 2003, 394, application for revision of 10 September 2002 vis-à-vis the judgment of 11 September 1992.

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Intervention by a third State. Can a third State that has intervened seise the Court of an application for revision of aspects of the judgment which, are opposable to the intervener, or binding upon it? It suffices to cross-refer, at this point, to the treatment given to this question in the context of requests for interpretation.2546 The same conclusions apply, on an analogous basis, in relation to revision. Interim measures. Can interim measures be requested following a request to intervene? If so, with what material object in view? On this point, likewise, we can cross refer to the treatment given to this question in the context of requests for interpretation, applicable mutatis mutandis.2547 Revision of a judgment on jurisdiction and admissibility or other matters? The Court has accepted that, in principle, a judgment on jurisdiction and admissibility could be the subject of revision proceedings. In the case of the Application for revision of the judgment of 11 July 1996 in the case on the application of the Convention for the prevention and punishment of the crime of genocide (Yugoslavia v Bosnia-Herzegovina, 2003), the Court accepted that Article 61 could be applied to such a judgment.2548 There was no reason to refuse, since such a judgment is definitive and without appeal. All Article 61 requires is the existence of a ‘judgment’. Other judgments can also be revised, for example, judgments on third State intervention, judgments on merits, or judgments delivered in response to requests for interpretation. Is revision also available in relation to Orders, for example, Orders indicating provisional measures? Given that, at any time, any party can request the Court to modify or reconsider such an Order, there is no apparent need for a revision procedure. Indeed, under Rule 76, paragraph 1, any party to the proceedings can ask the Court ‘to revoke or modify any decision concerning provisional measures if, in its opinion, some change in the situation justifies such revocation or modification’. If the Court issues an Order which, in reality, corresponds to a judgment (as could happen in relation to third State intervention), it will be appropriate to consider the Order as the functional equivalent of a Judgment. It will thus be revisable, provided that it is definitive and without appeal. The parties’ documents. An application for revision, whether unilateral or joint, must enable the Court to decide whether the various requirements for admissibility are satisfied. To that end, Rule 99, paragraph 1 provides that: A request for the revision of a judgment shall be made by an application containing the particulars necessary to show that the conditions specified in Article 61 of the Statute are fulfilled. Any documents in support of the application shall be annexed to it.

If the application is unilateral, the other party has to be allowed to present its observations. Rule 99, paragraph 2 therefore provides that: The other party shall be entitled to file written observations on the admissibility of the application within a time-limit fixed by the Court, or by the President if the Court is not sitting. These observations shall be communicated to the party making the application.

The Court itself may feel the need for further information. Also, the parties can ask it to arrange for an exchange of supplemental documents. For these purposes, Rule 99, para Above.  Ibid. 2548   ICJ Reports 2003, 11 et seq. 2546 2547



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graph 3 makes the following provision: ‘The Court, before giving its judgment on the admissibility of the application, may afford the parties a further opportunity of presenting their views thereon.’ Until now, the Court has always avoided extending the duration of the proceedings in this way. In the only case where it was requested by a party to do so (the request was opposed by the other party), the Court declined the invitation to proceed to an exchange of supplemental documents in a kind of rejoinder procedure. It based itself on paragraph 3 (see above).2549 The Court might perhaps be more inclined to defer to the parties’ wishes, if they were at one about having an additional exchange. Moreover, in the three cases of revision, there was always an oral phase. The power to authorise oral exchanges flows from the Court’s general power to organise its procedures, under Article 30 of the Statute. It is not specifically provided for in the Rules, but is a necessity in all proceedings of any real importance, such as requests for interpretation or revision (autonomous proceedings), and requests for provisional measures and third party requests to intervene (incidental procedures in the narrow sense of the term). When the exchange of argument is finished, the application for revision is finally ready for the Court to take its decision. Composition. The question of the Court’s composition follows the same lines on revision as in relation to requests for interpretation.2550 In this respect too, we find familiar links between the two types of procedure. The applicability of the principle of accessory proceedings should be borne particularly in mind. If it was the full Court that decided the case in the principal judgment, the full Court will hear the revision proceedings, and the same goes for a Chamber of the Court (so far as possible with the same composition). Rule 100, paragraph 1, states that: If the judgment to be revised or to be interpreted was given by the Court, the request for its revision or interpretation shall be dealt with by the Court. If the judgment was given by a Chamber, the request for its revision or interpretation shall be dealt with by that Chamber.

Requirement of prior compliance. Article 61, paragraph 3 of the Statute contains the following rather singular provision: ‘The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision.’ Rule 99, paragraph 5 sets out the procedure as follows: ‘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.’ The statutory provision was introduced to avoid the revision procedure being used as a convenient means of delaying the implementation of judgments. The draftsmen had in mind not only delaying tactics following applications for revision, but also the possibility that a party might argue that the Court’s judgment should not be implemented immediately because a new fact might soon come to light.2551 So far, the Court has never required prior compliance. Either the judgments concerned have always been complied with, or the elements affected by the revision have been relatively unimportant. One has to accept that this right of the Court to require previous compliance is not really very practical. It is difficult to see the Court issuing such an Order if it is prima facie 2549   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 (Yugoslavia v Bosnia-Herzegovina), ICJ Reports 2003, 9–10, § 7. 2550  Above. 2551  PCIJ, Advisory Committee of Jurists, Minutes of the Committee’s Meetings, 16 June–24 July 1920 (The Hague, 1920) 744 et seq.

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persuaded that the application for revision is well-founded. In those circumstances, it would be rather a convoluted way to proceed, and would complicate the implementation, in due course, of the revised judgment. If, however, the Court is prima facie persuaded that the application is ill-founded, it might find it easier and more sensible to make such an Order. It will seek to draw profit from the revision procedure, by obtaining the implementation of the judgment, at least in so far as it has not yet been implemented already. In any event, requiring prior implementation would be a prior indicator of the Court’s substantive decision, heralding it as swallows and cuckoos herald the Spring. These provisions were discussed in the case of the Application for revision of the judgment of 11 September 1992 in the case of the Land, island and maritime frontier dispute (El Salvador v Honduras, 2003). Honduras at first asked the Court to apply paragraph 3 of Article 61; but in the end it withdrew that request.2552 The Court, for its part, did not consider it necessary to require Article 61, paragraph 3 to be applied proprio motu. It did not seem very likely that the Court would order such ‘advance’ implementation. The Court is quite sensitive to the sentiments of sovereign States. If the Court were to follow a judicial policy of discouraging requests for revision, systematic demands for prior execution would certainly be one of the better tools available to it. The Court would then have to be prepared to accept the legal difficulties that might arise from the implementation of the original judgment on the one hand, and the revised judgment on the other, which would need to be harmonised. Obviously, prior implementation cannot be required if the judgment contains no executory orders for example, as is the case with declaratory judgments. Form of the judgment. The Court’s decision in revision cases (as in interpretation cases) takes the form of a judgment, both at the admissibility stage and, if the application proceeds, at the substantive one. Rule 100, paragraph 2 provides that: ‘The decision of the Court, or of the Chamber, on a request for interpretation or revision of a judgment shall itself be given in the form of a judgment.’ There are two connected reasons for this. In the first place, the decision is a judicial act: claim – challenge (or argument) – decision. It is normal for such a judicial act to take the form of a judgment. Secondly, the decision is not merely a provisional one, valid while the proceedings are pending: it is definitive, and has the force of res judicata. That is another reason to use the form of a judgment. Separate judgments on admissibility and on the merits. Unlike in relation to requests for interpretation, in revision cases the Court is obliged to proceed in two stages, to two separate judgments, the first as to the application’s admissibility, the second on the substantive issues. The Statute – and in line with the Statute, the Rules – require this two stage procedure. Article 61, paragraph 2 of the Statute provides that: The proceedings for revision shall be opened by a judgment of the Court expressly 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.

Rule 99, paragraphs 3 and 4, are consequently based on the same duality, paragraph 3 containing the words ‘before giving its judgment on the admissibility of the application’; and paragraph 4 the words: ‘If the Court finds that the application is admissible, it shall fix time-limits for such further proceedings on the merits of the application as, after ascertain  ICJ Reports 2003, 399, § 22.

2552



REVISION OF A JUDGMENT 823

ing the views of the parties, it considers necessary.’ Here, the Court is emphasising that, in conformity with these texts, it has to follow a two-stage procedure, the first stage being confined to the admissibility question.2553 Since the requirement for two stages, one on admissibility, the other on merits, is built into the Statute itself, the Court has no power to depart from it by consolidating its pronouncements on the separate stages into a single judgment.2554 It is in fact rare for the Statute to lay down the manner in which the Court’s procedures are to unfold. Generally, it leaves such questions to the Court’s own discretion, especially to its powers to make its own Rules. The reasons for adopting the two-stage procedure in the Statute and the Rules were not particularly compelling. Back in 1920, the main reason was to lend solidity to the obligation under Article 61, paragraph 3 of the Statute, under which the Court can subordinate the opening of revision proceedings to the prior implementation of the judgment. For that option to make any sense, it was necessary to put the application for revision through an initial (admissibility) stage. During that initial stage, the Court could, if so minded, require prior implementation. If the proceedings were to pass straight on to the merits, it would be more difficult to implement the original judgment in the meantime. The other reason for having two stages was the wish both to discourage revision, by presenting it as a lengthy process dauntingly strewn with pitfalls of various kinds, and to ensure that the Court was able to give all the necessary attention to the multiple conditions for the admissibility of the request under Article 61 of the Statute. In truth, none of these reasons provides sufficient justification for the elimination of any margin of appreciation by the Court as to the appropriateness, or otherwise, of a two-stage procedure. The secondary reasons cited above do not really seem decisive. The discouragement of applications remains a speculative and marginal consideration; it is quite uncertain that States are dissuaded by the two-tier proceedings. Furthermore, a single-stage procedure would not mean that the Court had no need meticulously to examine both admissibility and merits. The Court, if it proceeded via a single judgment, would certainly not be prevented from giving all necessary attention to the conditions for admissibility. The whole of the initial part of the proceedings would, in that case, contain the Court’s analysis of these preliminary aspects. If the application for revision seemed fairly wellfounded, a single-stage procedure might, in addition, represent a certain procedural economy. As far as the principal reason is concerned, namely the proper application of Article 61, paragraph 3 of the Statute, two comments are called for. First, the Court has never exercised this power, and does not seem inclined to do so. So long as the Court maintains this stance, there is no reason for a two-stage procedure in accordance with Article 61, paragraph 2. It would not therefore be entirely out of place to apply the principle ‘cessante 2553   Application for revision and interpretation of the judgment of 24 February 1982 in the continental shelf case (Tunisia v Libya), ICJ Reports 1985, 197, § 8; Application for revision of the judgment of 11 July 1996 in the case on the application of the Convention for the prevention and punishment of the crime of genocide (Yugoslavia v BosniaHerzegovina), ICJ Reports 2003, 11, § 15; Application for revision of the judgment of 11 September 1992 in the case of the Land, island and maritime frontier dispute (El Salvador v Honduras), ICJ Reports 2003, 398, § 18. 2554   With perhaps the sole exception of situations where a dual stage procedure would be contrary to the fundamental principles governing the Court’s functioning, namely equality between the parties, and the proper administration of justice. It is nevertheless difficult to see how these principles could be infringed by two-stage procedures. Also, there would have to be a glaring and incurable conflict between the texts before the Court could disapply a rule provided for in its Statute. It would, in such a case, have to proceed on the basis of balancing between fundamental duties that were mutually inconsistent (Pflichtenkollision): on the one hand, the duty to do justice that is worthy of the name, and on the other the duty to respect the Statute to the letter.

824  CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES

ratione legis, cessat lex ipsa’2555 (since the reason for the legal rule no longer exists, the rule itself lapses). From another perspective, it is incorrect to say that prior implementation of the judgment cannot be required if the proceedings are single stage ones. The Court might indeed require, at an early stage, that the losing party comply with the judgment before the Court deals with that party’s application for revision. In this context, the Court proceeds via an Order, which gives it considerable scope for flexibility. It will be recognised that, in the final analysis, there is no good reason to impose a twostage procedure in every case, even though this is now the Court’s practice. Since there is also no legal objection to the Court’s following a two-stage procedure, it suffices to note that this is the position in revision cases (Article 61), as opposed to interpretation ones (Article 60). One can only regret this unnecessary rigidity of the Statute about a subject, namely the procedural sequencing, which it would have been better to leave to the Court’s own discretion. Effects of a revision judgment. The judgment on the admissibility of the revision results, if the case requires it, in a second stage, on the merits. The intermediate judgment is in effect a declaratory one. The original substantive decision has not, so far, been annulled. Legally, it remains in force. If the revision application is allowed, however, the original judgment will no longer be executable. The parties must wait for the Court to substitute a new judgment. By virtue of its powers over its procedures, the Court can indicate to the parties all the measures necessary for the purposes of making the transition from the old judgment on the merits to the new one. Such indications can, if the Court considers it necessary for the proper functioning of its procedures, be binding in nature. Their binding character is derived legally from Article 61 of the Statute. Every measure necessary in order to achieve the ends of Article 61 must have binding force, since otherwise the binding effects of the Article itself might be called into question. The Court also has power to indicate provisional measures motu proprio, and these can be binding (see the jurisprudence of the LeGrand case). If the subject of the new judgment appears to be in danger of irreparable damage, provisional measures can equally well be requested by one of the parties. Finally, the Court will treat the substantive procedure for revision as a new case. It will allow the parties to submit their arguments, just as they might have done in a new principal case. Questions of admissibility or of jurisdiction can arise in relation to the concrete subjects raised in this new set of proceedings. These questions are distinct from the conditions for the admissibility of the application for revision, which will already have been ruled upon. The Court can either deal with these new questions of admissibility in the same judgment as it gives on the revision, or separately in a new judgment on jurisdiction and/or admissibility. In such cases, the Court’s general jurisdiction to deal with the revision cannot be challenged again, because it follows from the admissibility of the revision proceedings, as already decided by the Court. But it can happen that, in light of the need to re-judge the dispute, questions on the merits, that are now newly addressed give rise to an issue as to subject matter or consensual jurisdiction. What, in that case, is the critical date for judging that jurisdiction issue? Is it the date the Court was initially seised (that is, retroactive), or the date the Court was seised of the application for revision, or the date when proceedings start on the merits of the revision, in accordance with the indications given by the Court? The question is particularly prone to arise if the legal situation as to titles of jurisdiction has 2555   See the gloss ‘Non cohaeret’ ad Dig 35, 1, 72, § 6. cf H Krause, ‘Cessante causa cessante lex’ (1960) 46 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung, 81 et seq.



REVISION OF A JUDGMENT 825

changed in the meantime. For example, if the initial judgment was given on the basis of a compromissory clause in a treaty; if the treaty is no longer in force, or if supplemental reservations have been inserted into it; or if the treaty has been modified and now covers wider matters, thus potentially broadening the scope of the Court’s subject-matter jurisdiction; and so on. Given that the procedure contemplated here rests on Article 61 of the Statute, and not on the titles of jurisdiction applicable to the initial proceedings, the most logical answer might seem to be that jurisdiction is to be judged of in relation to a new critical date, namely the date when the application for revision is declared to be admissible, or even the date the application was made. The fact that the revision procedure is considered to be a new case reinforces such arguments. The admission of the application for revision either totally, or at least partially, wipes away the old res judicata. A new judgment is to replace it. Everything has to be judged afresh, de novo. Nevertheless, this is not an entirely satisfactory answer. This is easy to see if a title of jurisdiction has been annulled in the meantime. The Court will then have accepted that the judgment falls to be revised, but would in such a case be unable, for want of present jurisdiction, to revise it on the merits. It will, indeed, have no consensual jurisdiction on which to base itself. The practical utility of the Article 61 procedure might thus be completely eliminated. Also, if once one accepts that the critical date is now the moment when the Court declares the application for revision admissible, one will have opened the way for all kinds of abuses. The State opposing revision will not only have the option to resist, by arguments on admissibility. It may also take advantage of the time taken up with the admissibility proceedings, to denounce or withdraw from the titles of jurisdiction concerned, for example, by withdrawing its optional declaration under Article 36, paragraph 2 of the Statute. With a view to giving all necessary effect to the duly unfolding revision process – whose legal autonomy from the initial judgment remains a relative one – it would be useful if it were possible to have a range of different critical dates. If newly posited questions, or matters already raised in the initial proceedings, fall within the Court’s jurisdiction at the critical date for the initial proceedings (the date the Court was originally seised of the case), the Court has jurisdiction. The legal basis for it is to be found in Article 61 of the Statute, which gives the Court power to revise its judgments. For such a revision to make any sense, the Court has to possess the same jurisdiction as when the original proceedings began. Only then can the two judgments, the original one and the revised one, properly relate to each other, the revised one replacing all the effects of the original one, in formal parallel. If, on the other hand, there are newly raised questions which did not originally fall within the Court’s jurisdiction, but do so at the time of revision, the Court retains its competence. To decide otherwise would be absurd. Indeed, the State seeking revision would, unquestionably, have the right to start a fresh case before the Court (there being a jurisdictional title), which would have the equally unquestionable power to order the fresh case to be joined to the revision proceedings. That being so, the economy of the process militates in favour of allowing the State to raise its arguments directly in the revision proceedings proper. On the other hand, the Court will take care to ensure that the parties have had the opportunity to argue the points in issue in their written documentation. If necessary, it could allow the exchange of replies and rejoinders, in order to deal with supplemental aspects and related jurisdiction questions. Finally, it should be remembered that questions of admissibility are not subject to rigid single critical dates. Each time, the question has to be judged according to the law

826  CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES

appropriate to it. In this context, the critical date is normally the date on which the Court considers the question, for instance as to the exhaustion of remedies to municipal courts, or the fact that proceedings are afoot in some other jurisdiction. Since the Court has yet to admit any case to revision, these (and other) questions remain, so far, largely unclarified by its jurisprudence. If, one day, the Court were to allow such an application, it would have to decide a significant number of questions which, at the present time, remain somewhat uncertain.

d)  Imperative Character of Article 61 As in the case of Article 60, to which it is possible to cross-refer in this connection, there can be no derogation from the requirements of Article 61, either by the parties, or by the Court.2556 Thus the parties are not in a position to use a special agreement to replace the requirements of Article 61 with other conditions. Nor can they devise a new procedure for revision, praeter legem, asking the Court to act exclusively on that substitute legal basis, which would necessarily be extra-Statutory. The Court can act only under its Statute. Although it can follow the instructions agreed by the parties if they are compatible with the Statute, it cannot do so if they manifestly are not. To do that would amount to disregarding the requirements laid down in the Statute as conditions for nullifying the res judicata. The parties may neither lighten the requirements for revision (which would effectively weaken the force of res judicata attaching to the original judgment), nor reinforce them (since this would amount to depriving the interested party of its right to seise the Court unilaterally of a request for revision, when the requirements of Article 61 are satisfied). Such an agreement to derogate from the Article might be held null and void, given that its contents are incompatible with the Statute, and that the Statute itself, as an integral part of the Charter, has the benefit of Article 103 of the Charter. The effect of that provision is normally to ensure a primacy of application, but without completely nullifying the agreed term that is contrary to the Charter. However, if the conflict is permanent and incurable, the effect may be to nullify the conflicting term (or to make it a quasi-nullity).2557 This is because the conflicting provision could never, in such a case, be applied, at least while the State concerned remains a member of the UN. However, it can, at least, be recognised that the parties are able to apply their derogating agreement on a de facto basis. So long as neither of them requests revision on the basis of provisions other than those stipulated for in their agreement, the latter will, de facto, prevail. If, however, one of them were to depart from the agreement, the Court would apply the provisions of Article 61, and only those provisions. These questions have already been discussed in the chapter on requests for interpretation.2558 A Chamber of the Court has insisted on the strict character of the provisions of Article 61 of the Statute. In the case on the Application for revision of the judgment of 11 September 1992 in the case of the Land, island and maritime frontier dispute (El Salvador v Honduras, 2003), El Salvador claimed that the Court could dispense with examining the conditions of   cf Zimmermann and Geisse, ‘Article 61’, above n 2503, 1310–11.   As to the question whether nullity is a necessary consequence under jus cogens, see R Kolb, Théorie du jus cogens international (Paris, 2001) 130 et seq. See also, R Kolb, Introduction au droit des Nations Unies, (Basle/ Brussels, 2008) 179–80. 2558   Above, section 22. 2556 2557



REVISION OF A JUDGMENT 827

admissibility under Article 61, on the basis that Honduras had implicitly recognised that the application was admissible, by a letter requesting the application of paragraph 3 of Article 61 (which would presuppose the acceptance of the revision procedure).2559 The Chamber confined itself to restating that the acceptance by a party, that the conditions of the Article are satisfied, does not release the court from the need to make its own assessment. The Statute requires the Court to satisfy itself that the conditions are satisfied: Finally, 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.2560

The explicit reference to the ‘consent of the parties’ show that the Court would have taken the same course if the parties had been proceeding by Special Agreement. Attempts have also been made to argue that the Court must not consider whether this or that condition for revision has been satisfied, if the party which might have raised it as an objection is no longer in a position to dispute the fact that the condition has been satisfied.2561 This position is especially likely to be arrived at as an effect of a rule of general international law, such as normative acquiescence or estoppel, based, as these rules are, on the principle of good faith. So, if a party allows it to be understood that it submits to a revision, and creates a legitimate expectation in that regard, it would not subsequently be allowed to resile from that attitude. The legal difference from the situation previously considered is that the above-mentioned derogation is effected by the legal act of the parties, whereas in the case we are now envisaging, it arises from the operation of a norm of general international law. In both cases, however, the argument is misconceived. The principles of acquiescence and estoppel operate only on an inter partes basis. One party owes an obligation to the other, by virtue of a deliberately created legitimate expectation. These principles do not affect third parties. They are also limited by overriding considerations of public policy. A legal situation of an inter partes nature cannot therefore dispense the Court, which is a third party to the particular legal nexus between the parties, from seeing to it that its Statute is properly applied. This is all the more the case in relation to matters in respect of which the public interest disallows any derogation from the provisions of the Statute. The question remains whether the parties can be bound by agreement, acquiescence or estoppel, not to seek any revision at all. In these circumstances, there is no question of modifying the specific conditions for revision: the parties simply renounce their right to seek revision from the Court. In relation to the interpretation of judgments, it has been said that such a limitation of the right of access to the Court, by a party wishing to clarify the meaning of a judgment, is unacceptable. Clarification of the meaning of the judgment, thus enabling it to be properly implemented, is a public interest issue that cannot be prejudiced by private agreement. However, revision is dissimilar in this, that it is primarily concerned with the private interests of the party seeking it. Since it is concerned not with errors of law, but with facts that were unknown at the time of the original judgment, the quality of the judicial pronouncement itself is scarcely in issue. It follows that the public policy   ICJ Reports 2003, 399, § 21.   Ibid, 400, § 22. 2561   See Zimmermann and Geiss, ‘Article 61’, above n 2503, 1325, citing the arguments of Bosnia-Herzegovina in the case of the Application (Yugoslavia v Bosnia-Herzegovina, 2003). 2559 2560

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implications are much weaker than in interpretation cases. But does this justify a different conclusion for revision than for interpretation? A special agreement not to seise the Court might not be legally binding. It places an excessive limitation on the recognised right of a party to seek revision in accordance with the provisions of the Statute. A party remains free not to seise the Court, and/or to give the impression that it will not do so. However, the Court is not bound to give effect to such a representation, since it seems doubtful whether a party can bind itself in advance not to exercise, in any circumstance, its statutory right. This line of argument appears all the stronger when one reflects that the right to seek revision is all the same bound up with some considerations of public policy. A party that is deprived of the possibility of seeking revision of a judgment it considers ill-founded on the facts, may have a stronger propensity not to implement it. But the proper implementation of the Court’s judgments is a fundamental public order concern, one that underpins both twin institutions provided for by Articles 60 and 61 of the Statute. In the ultimate analysis, this situation is thus a borderline case. On balance, the marginally better view is the one that favours not giving effect, in this field, to the principles of agreement, acquiescence and estoppel. That does not exclude the possibility that the Court might, in carrying out its own appreciation of the circumstances, refuse to entertain an application for revision that flies in the face of very clear antecedent representations by a State which is now trying, in bad faith, to blow hot where previously it blew cold. In such a case, the Court can apply the doctrine of abuse of process, to reject in limine that State’s request for revision.

24.  IMPLEMENTATION OF THE JUDGMENT2562

a)  General Observations When it comes to the implementation of the Court’s judgments, one has to leave the terra firma of the law, and embark on the waves of legal policy, which although often calm, can, 2562   As to this question see, K Oellers-Frahm, ‘Article 94 of the UN Charter’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 159 et seq.; Dubisson, above n 2503, 251 et seq.; Rosenne, The Law and Practice of the ICJ, vol I, above n 2503, 201 et seq.; M Al-Qahtani, ‘The Role of the International Court of Justice in the Enforcement of its Decisions’ (2002) 15 Leiden Journal of International Law, 781 et seq.; RP Anand, ‘Execution of International Judicial Awards: Experience since 1945’ (1965) 26 University of Pittsburgh Law Review, 671 et seq.; A Azar, L’exécution des décisions de la Cour international de Justice (Brussels, 2003); MK Bulterman and M Kuijer (eds), Compliance with Judgments of International Courts (Leiden, 1996) (especially the contribution of Judge Ajibola), Compliance with Judgments of the International Court of Justice, 9 et seq.); G Guillaume, ‘Enforcement of Decisions of the International Court of Justice’ in N Jasentuliyana (ed), Perspectives on International Law (London/The Hague/Boston, 1995) 275 et seq.; G Guillaume, ‘De l’exécution des décisions de la Cour internationale de Justice’ (1997) 7 RSDIE 431 et seq.; G Guillaume, ‘Le suivi de l’exécution des décisions de la Cour internationale de Justice au sein des organisations internationales’ in MH Ruiz Fabri, LA Sicilianos and JM Sorel (eds), L’effectivité des organisations internationales, Mécanismes de suivi et de contrôle, (Athens/Paris, 2000) 123 et seq.; CW Jenks, The Prospects of International Adjudication (London, 1964) 692 et seq.; SK Kapoor, ‘Enforcement of Judgments and Compliance with Advisory Opinions of the International Court of Justice’ in RP Dhokalia, International Court in Transition (Allahabad, 1995) 301 et seq.; E Kerley, ‘As to Compliance with Judgments of the International Court of Justice’ in L Gross, The Future of the International Court of Justice, vol I (New York, 1976) 276 et seq.; P Magid, ‘The Post-Adjudicative Phase’ in C Peck and RS Lee (eds), Increasing the Effectiveneness of the International Court of Justice (The Hague/ Boston/London, 1997) 325 et seq.; EK Nantwi, The Enforcement of International Judicial Decisions and Arbitral Awards in Public International Law (Leiden, 1967) 148 et seq.; K Oellers-Frahm, ‘Zur Vollstreckung der



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on occasion, be seriously choppy. In the early stages of its historical development, and (up to a point) conceptually as well, the question of the implementation of the law and of judgments was not regulated governed by the law itself. It was a matter going, beyond law, at least partially into the public and political sphere. In its early periods, Roman law was concerned with the institution of the judge (arbitrator); it left it to the parties to implement the resulting judgments. The legal position of each party having been objectively determined by a third party, implementation could be left to private violence. The anarchic effects of such a course were tempered by the fact that unilateral claims had been transformed into impartial judgments. Only later in the evolution of society, did its growing need for order lead it to give the law, in addition to the function of judging, the function of seeing to the implementation of judgments, pronounced in the name of the collectivity. At the same time, the political aspect of implementation did not disappear entirely. The implementation of judgments, an executive and not a judicial function, is always a ‘social’ function. Account has to be taken of the practical possibilities, of the social ambience of the moment, of the good of society as a whole, of potential conflicts between a municipal judgment and international law and so on. Societies, as they specialise and refine functions, endow themselves with better means to ensure respect for the law, establishing appropriate institutions to that end. The implementation of the law is thus professionalised, regularised and mediatised, to a greater or lesser degree. But this additional screen or layer, interposed between society at large and the issuing of legal orders and injunctions, cannot exempt society, as a whole, from its direct responsibility to show respect for the law. The execution or implementation of the law thus always remains partially outside it, and is not to be subsumed entirely within it. On the one hand, there is the rule; on the other, the treatment to be given to it. Here, we have the norm; there, the chances and fortunes of its implementation. Here, the idea; there, the avatars of the material world. In international law, there is Article 94, paragraph 2 of the United Nations Charter, on the execution of judgments of the International Court of Justice. But here equally an essential element remains removed to a different plane. It consists of the favourable disposition, the sense of what is appropriate, the spirit of solidarity and the public interest, the willingness to make sacrifices, and also the firm and inflexible will of the members of the society concerned to implement the Entscheidungen internationaler Gerichte im Völkerrecht’ (1976) 36 ZaöRV, 654 et seq.; P Paone, ‘Considerazioni sull’esecuzione delle sentenze della Corte internazionale di Giustizia’ (1975) 14 Comunicazioni e studi, 627 et seq.; MI Papa, I rapporti tra la Corte internazionale di Giustizia e il Consiglio di sicurezza (Padua, 2006) 103 et seq.; C Paulson, ‘Compliance with Final Judgments of the International Court of Justice since 1987’ (2004) 98 AJIL 434 et seq.; Reisman, Nullity and Revision, above n 2503; WM Reisman, ‘Enforcement of International Judgments’ (1969) 63 AJIL 1 et seq.; S Rosenne, ‘L’exécution et la mise en vigueur des décisions de la Cour internationale de Justice’ (1953) 57 RGDIP 532 et seq.; J Salmon, ‘L’autorité des prononcés de la Cour internationale de la Haye’ in P Vassart (ed), Arguments d’autorité et arguments de raison en droit (Brussels, 1988) 21 et seq.; O Schachter, ‘The Enforcement of International Judicial and Arbitral Decisions’ (1960) 54 AJIL 1 et seq.; C Schulte, Compliance with Decisions of the International Court of Justice (Oxford, 2004); A Tanzi, ‘Problems of Enforcement of Decisions of the International Court of Justice and the Law of the United Nations’ (1995) 6 EJIL 539 et seq.; E Tunçel, L’exécution des décisions de la Cour internationale de Justice selon la Charte des Nations Unies (Neuchâtel, 1960); U Villani, ‘I poteri del Consiglio di sicurezza delle Nazioni Unite in materia di esecuzione delle sentenze della Corte internazionale di Giustizia’ (1970) Comunità internazionale, 646 et seq.; C Vulcan, ‘L’exécution des décisions de la Cour internationale de Justice’ (1947) 57 RGDIP 187 et seq.; P Weckel, ‘Les suites des décisions de la Cour internationale de Justice’ (1996) 42 AFDI 428 et seq. See also the commentaries on Art 94 of the United Nations Charter in Simma or in JP Cot, A Pellet and M Forteau (eds), La Charte des Nations Unies, Commentaire Article par Article, 3rd edn, vol II (Paris, 2005). See also C Brown, ‘Enforcement of ICJ Decisions in United States’ Courts’ (1987) 11/1 Maryland Journal of International Law and Trade 73 et seq., and, for a more recent view, DM Reilly and S Ordonez, ‘Effect of the Jurisprudence of the International Court of Justice on Nations’ Courts’ (1995/96) 28 New York University Journal on International Law and Politics 435 et seq.

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rulings of the Court. This element cannot be called into being by legal decree; all there is, is the hope that the law will be able to count on its existence. Even though the implementation of the law is progressively subjected to the rule of law, courts and tribunals, handing down decisions, remain reluctant to become involved in their implementation. They usually prefer to leave this task to the executive branch of government, or to the parties themselves. The judge has stated the law; it is now for others to draw the consequences. Admittedly, the ICJ can to some extent ‘punish’ failures to respect its previous judgments. It can, if it is seised of the situation, issue a judgment condemning a party for such a failure, and can, for example, add to the judgment an order to pay reparations for non-compliance with binding provisional measures. It refuses, however, to contemplate, in advance, the idea that a State will not respects its judgment, or to take preventive measures in light of such a future possibility. Nor will it readily suppose that a State will fail to respect the legal obligations recognised in a judgment given by it. So it was that, as early as the very first judgment handed down by the PCIJ, in the Wimbledon case (1923), the Court clearly made the following point: The Court does not award interim interest at a higher rate in the event of the judgment not being complied with at the expiration of the time fixed for compliance. The Court neither can nor should contemplate such a contingency.2563

The current Court continues to hold this view, for example in the Nuclear tests cases (1974), when it stated: ‘Once 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.’2564 So the progress of the rule of law, so far as concerns the execution of judgments, means above all the formation of a new branch of ‘executive’ rather than ‘judicial’ law. These considerations do not make it impossible to provide a legal analysis of the execution and implementation of the law, and in particular of the execution of the ICJ’s judgments. The legal policy issues mentioned above are nowadays accompanied by more wholly legal considerations. In the internal practice of western States, the turning towards legal norms on the execution of judgments was taken as early as the formularies of Roman law and perfected at a relatively late stage, under the Principate.2565 The onward march of the law in this direction was resumed in the fourteenth century, after pausing during the preceding centuries.2566 In this respect, international law lags behind municipal law. Solidarity in international law is weaker, and its worldwide nature makes the available links more brittle. The world had to wait until the twentieth century, with its profound efforts at international cooperation, the emergence of the concept of the ‘good of the international community’ and the creation of the League of Nations, for the moment when it was finally consciously accepted that it did not suffice simply to accept obligations, and that the means for them to be executed also needed to be provided for. In the nineteenth century, the gen2563   PCIJ, Series A, no 1, 32. See also the case of the Factory at Chorzów (merits, 1928), PCIJ, Series A, no 17, 63, where the Court referred back to its dictum in the Wimbledon case. 2564   ICJ Reports 1974, 272, § 60 and 477, § 63. 2565   The judges had at their disposal executory bailiffs whose function was to proceed to the execution of the judgment. See M Kaser, Römisches Privatrecht, 14th edn (Munich, 1986) 376–78, 384. 2566   cf For Germany, see A Erler, E Kaufmann and D Werkmüller (eds), Handwörterbuch zur deutschen Rechtsgeschichte, vol V (Berlin, 1998) 1028 et seq., 1821 et seq. There was a slow movement from private to public justice. A turning point came in the Empire, with the reform of 1495 which laid the foundations of a public system of executing judgments.



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eral perception of these questions was an optimistic one, inspired by a belief that no civilised government, having freely consented to international obligations (its consent was needed in view of the predominating positivist principles of the period), could or would sink so low as to fail to keep its word.2567 The principles of pacta sunt servanda and of good faith were considered sufficient. It took the experience of World War I, and the ‘scrap of paper’ concept, to bring in a radical reform of the then current thinking.2568 The provisions of modern international law on the execution, supervision and implementation of judgments are the direct fruit of this new attitude. Overall, one can discern a development of the doctrine of good faith (keeping one’s word once given), considered on its own, towards institutional sanctions, that is, of a purely normative duty towards a mechanism for effective implementation. Article 37, paragraph 2 of Hague Convention I of 1907 on the Peaceful Settlement of Disputes, still oriented towards the ideas of the nineteenth century, confined itself to providing that ‘recourse to arbitration implies an engagement to submit in good faith to the Award’. In this way the primary obligations of international law, that the tribunal would identify and apply, were now associated with a secondary obligation, faithfully to execute the award or judgment. A second obligation was thus attached to the first. If the ‘judgment debtor’ defaulted, the law of the time allowed the other party to take reprisals, including resorting to war, as the means of forcing it to comply. With the coming of Article 13, paragraph 4 of the League of Nations Covenant, and now Article 94, paragraph 2 of the UN Charter, the international community took a major step forward, establishing institutional mechanisms for implementing judgments. To paraphrase the famous words of HS Maine, ‘from status to contract’,2569 one might say that modern judicial law is evolving, at least partially, ‘from promise to sanction’. The implementation of the Court’s judgments can be viewed in three different ways. The first relates to the obligatory nature of the judgment, and to the fact that it carries the force of res judicata. The judgment is executable because it is binding. The binding nature of the obligation flows from the parties’ undertakings (pacta sunt servanda and good faith) and from the texts (Article 59 of the Statute, and Article 94, § 1 of the Charter). This aspect of things has already been discussed above. That discussion is also relevant to the question of the extent to which parties can agree on the modalities by which the judgment, once it has been delivered, is to be implemented without encroaching on, or otherwise reducing, its binding force.2570 Secondly, implementation rests on the idea that the parties will spontaneously comply with the judgment. The overwhelming majority of judgments delivered by judicial bodies are normally implemented by the parties, in fulfilment of their obligation to 2567   The fact that submission to international justice is based on the will of the parties (no jurisdiction without their consent) for a long time made the problem of execution seem rather academic. If a State submitted voluntarily to a court’s jurisdiction, surely this meant that it was ready to accept the risks, and, if necessary, to execute an unfavourable judgment? In other words, if the dispute concerned a vital interest, would not the State have refused to submit it to the arbitrator’s (or judge’s) decision in the first place? On this reasoning, the question of nonexecution could arise only in rare cases, where the award was allegedly a nullity because the arbitrator exceeded his powers, or there was some other grave defect in it (eg the corruption of an arbitrator). 2568  This sense of ‘culture shock’ is particularly pronounced in the Swiss commentator O Nippold, Die Gestaltung des Völkerrechts nach dem Weltkriege (Zurich, 1917) 3 et seq. 2569   Meaning that, in less advanced societies, the law is connected to a person’s social status, and the latter is relatively stable, because it is either transmitted by inheritance or imposed by the social system. Later, people begin to determine their own standing by entering into contracts enabling them to order their own lives and acquire social position. See HS Maine, Ancient Law (London, 1861). 2570   See above.

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do just that. It can happen that compliance with the judgment runs into obstacles of fact or of law, for example if a debtor State is in a very difficult financial predicament, or because of the ravages of a civil war, or of difficulties arising from internal constitutional law and so on. In such cases, it can be very helpful for international bodies to come to the assistance of parties genuinely desiring to implement judgments. The UN Security Council can propose measures, the World Bank can grant credits, and third States can act as intermediaries in the search for a solution. Assuming that the parties do indeed wish to implement the judgment, it is not a matter of taking steps to execute the judgment forcibly in the teeth of opposition by a recalcitrant party. On the contrary, these are auxiliary functions, involving the giving of assistance and advice. In such cases, those concerned are still working within the context of compliance. Third, there remains the matter of executing the judgment, in the narrow sense of the term, that is, through the intervention of international bodies whose role is to bring about the implementation of the judgment against the wishes of a defaulting party. As its title indicates, this chapter is concerned far more with execution than compliance – albeit compliance is practically much more important than execution. However, it is also much less a legal question than execution, and that is the reason for our focus on the latter. The execution of the judgments of international tribunals is directly connected to the peaceful resolution of disputes, the maintenance of international peace, and the collective interests of the international community. It is therefore hardly surprising that the key provisions on the execution of international judgments confer various competences on the global political organisation, that is, originally the League of Nations now the UN, or on regional bodies such as the Council of Europe. At the global level, the two relevant provisions are Article 13, paragraph 4 of the League of Nations Covenant, and Article 94, paragraphs 1 and 2, of the UN Charter. These provisions contain two elements, which are combined in a single paragraph of the Covenant, but are in two separate paragraphs of the Charter. On the one hand, parties (particularly those placed under obligations by the judgment) are required to honour their obligations to execute judgments. The texts amount in this respect to calls for compliance. On the other hand, the texts also make provision for mechanisms for sanctioning defaults by parties on whom judgments impose obligations. The mechanisms in question are more or less embryonic means of compelling compliance. In this way, a subjective element concerned with the parties’ duties (representing a layer of older pre-existing law), now has, added to it, an objective element, concerned with giving an international body competences for the purpose of executing judgments (representing a modern accretion). Thus Article 13, paragraph 4, of the Covenant provided that: The Members of the League agree that they will carry out in full good faith any award or decision that may be rendered, and that they will not resort to war against a Member of the League which complies therewith. In 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.2571

Article 94 of the UN Charter provides as follows: 1.  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. 2571   As to this provision, see J Ray, Commentaire du Pacte de la Société des Nations (Paris, 1930) 427 et seq.; JM Yepes and P da Silva, Commentaire théorique et pratique du Pacte de la Société des Nations, vol II (Paris, 1935) 114 et seq.; W Schücking and H Wehberg, Die Satzung des Völkerbundes, 2nd edn, (Berlin, 1924) 532 et seq.



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2. 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.2572

A comparison of these two texts at once reveals a significant number of formal and substantive differences,2573 which have, however, been somewhat softened by UN practice.2574 Overall, it seems that Article 94 is, on the one hand, more limited and less binding than Article 13, paragraph 4. In this sense, it marks a regression in the regulation of the execution of judgments, which is unsurprising in the context of the Charter’s more ‘political’ orientation, as compared with the more ‘legalistic’ character of the Covenant. On the other hand, however, Article 94, despite its flexibility, does make possible, although without requiring them, measures of execution that are stronger than the old Article 13, paragraph 4. By giving discretionary powers to the Security Council, which is subject to few legal constraints, this provision falls within the general range of measures reinforcing the powers of the world organisation. In textual terms, the following differences are readily apparent. First, under the Charter, the Security Council acts on the basis of recourse by the party adversely affected by the non-execution, or in other words, acts on request; under the Covenant, the Council could act proprio motu, under the formula ‘the Council shall propose what steps should be taken’. Second, under the Charter, the Security Council is not obliged to take action, but possesses in this field, as in virtually all its fields of competence, a discretionary power which translates into the words ‘if it deems necessary’; under the Covenant, the Council was obliged to take action in order to ensure the execution of judgments of the PCIJ, since this activity was perceived as reflecting a mandatory collective interest, translating into the indicative formula ‘the Council shall propose . . .’ rather than ‘[the Council] may, if it deems necessary . . .’. Third, under the Charter, the possibility of seising the Security Council is given solely to the State, a party to the judgment, that is suffering from the other party’s failure to execute it, whereas under the Covenant, as it was interpreted, any State which was a member of the League (see the first phrase of Article 13, § 4) might seise the Council of a case of failure to execute a judgment. The practice of the United Nations does, however, allow third States to seise the Security Council under Chapter VI, if the failure to execute the judgment might endanger the maintenance of international peace. Fourth, under the Charter, only a ‘judgment’ of the ICJ can give rise to measures taken by the Security Council to enforce execution; under the Covenant the situation arose in relation to any ‘award or decision’, whether of the PCIJ (in which case it would be a judgment) or of an arbitral tribunal. The fifth difference was that, under paragraph 1 of Article 94 of the UN Charter, the express mention, to be found in the Covenant, of the duty to execute awards and judgments ‘in full good faith’, has disappeared. Legally, however, this difference is only apparent, and is not a real one. The Charter does not bother to repeat this obligation in Article 2572   As to this provision, apart from the contribution of K Oellers-Frahm already cited, above n 2562, see also A Pillepich, ‘Article 94’ in JP Cot, A Pellet and M Forteau (eds), La Charte des Nations Unies, Commentaire Article par Article, 3rd edn, vol II (Paris, 2005) 1987 et seq.; LM Goodrich, E Hambro and AP Simons, Charter of the United Nations, Commentary and Documents, 3rd edn (New York/London, 1969) 555 et seq. These texts will be referred to below, for the legislative history of Art 94, which is not particularly complex, and for that reason we avoid reproducing it twice over in the present work. 2573   See among others Oellers-Frahm, ‘Article 94’ above n 2562, 161; Papa, above n 2562, 114–16; Schachter, ‘Enforcement’, above n 2562, 17–18; Tunçel, above n 2562, 71 et seq.; Dubisson, above n 2503, 271. 2574   Dubisson, ibid, 271 et seq.

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94, paragraph 1, because it is already to be found in the general provision embodied in Article 2, paragraph 2. In a sense, one might say that this obligation has been enlarged into a general principle of the UN, applicable to all its Members. Sixth, the Charter eliminated the undertaking by Member States, which is found in the Covenant, not to resort to war against any other Member State that complies with the judgment. Given that the prohibition against resorting to the use of force now constitutes – unlike under the Covenant – a general principle of the UN Organisation, as stipulated for in Article 2, paragraph 4 of the Charter, and has also become a norm of international customary law, there was no need to refer to it in this specific context. The legal situation is not, however, exactly the same as in relation to good faith. The principle of non-recourse to the use of force took on a wider scope between the period of the Covenant and that of the Charter. It was not an unchanging classical obligation. Nowadays, it applies to all use of ‘force’, and not just to resort to war. A State may not, for example, resort to armed reprisals, or to other coercive measures implying the use of force but falling short of actual war. Similarly, although it was compatible with the Covenant to resort to war against a State which did not comply with an international judgment, that is now prohibited by the current rule against non-recourse to the use of force.2575 Seventh, although differences 1 to 4 indicate a certain weakening of the Charter by comparison with the position under the Covenant, and a certain crumbling of the idea of international justice, the Charter does reinforce the latter in one particular respect. Under the Covenant, the Council could ‘propose . . . steps’ to deal with failures to comply with judgments, but it could not impose them. The text of Article 13, paragraph 4 was clear, as were the voting rules laid down in Article 5, paragraph 1 which required unanimity. In the Charter, it is accepted that the Security Council can adopt binding measures under Article 94, paragraph 2. It can even order or authorise the use of force, at least if it considers that, as a result of a failure to execute the judgment, there is a threat to international peace,2576 and perhaps can do so directly under Article 94, paragraph 2 even without having to conclude that any such threat exists. Paragraph 2 does indeed provide that the Security Council can ‘make recommendations or decide upon measures’. In the language of the Charter, the ‘decision’ implies that the obligation will be legally binding. In this sense, the Security Council’s position is stronger than was the League Council’s. An overall comparison of these texts, without taking account of the actual practice, evidences a regrettable decline in the strength of the idea of the pre-eminence of law within the UN. The execution of judgments has become a secondary matter. Also – and this is the most serious aspect – the Covenant was built around the idea that the execution of judgments represented a collective interest of all States, that is, was an interest of the international community as a whole (erga omnes). The right of any Member State to seise the Council, the Council’s duty to take action, and its right to act proprio motu, all bear witness to this. The refusal to make a distinction between institutional judgments and arbitral awards also evidenced the high esteem in which, at that time, the judicial settlement of disputes was held. The UN Charter, by contrast, both in its actual text, and in its practice, enshrines a relative decline of this erga omnes interest. It places too much emphasis on the execution of judgments being an inter partes issue. All that is left of the old utilitas publica approach is the competence of the Security Council to take cognisance of failures to com2575   On the scope of the prohibition against the use of force in modern international law, cf R Kolb, Ius contra bellum, le droit international relatif au maintien de la paix, 2nd edn (Basle/Brussels, 2009) 235 et seq.; O Corten, Le droit contre la guerre. L’interdiction du recours à la force en droit international contemporain (Paris, 2008). 2576   Under Art 39 of the Charter.



IMPLEMENTATION OF THE JUDGMENT 835

ply with judgments, and to take such measures as it considers most appropriate. It is at this point that one most clearly perceives the relative decline in the UN’s legal approach to this issue, in favour of a more political orientation. This decline resulted from the distrust felt by the draftsmen of the Charter for the ‘legalism’ which they claimed – and their view was somewhat partial and limited – bore a significant part of the responsibility for the ‘paralysis’ of the League of Nations, and for the League’s ultimate failure. Today, we can take a more dispassionate view. In any event, one must also take into account the progress in the rule of law that has been made since 1945, and the modern conception of a certain degree of pre-eminence in the rule of law within the UN itself.

b)  The Parties’ Obligation to Execute the Judgment (Article 94, paragraph 1 of the Charter) Article 94, paragraph 1, of the Charter provides that: ‘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.’ This provision is directly connected to Article 59 of the Statute, without actually repeating it. The connection is a functional one. Article 59 relates to the force of res judicata, whereas Article 94, paragraph 1 relates to the judgment’s executory force. The former is logically prior to the latter and provides the measure and content of that which is to be executed. Article 59 determines which of the Court’s pronouncements are legally binding, and they are given executory force under Article 94, paragraph 1. The parties must execute all the legally binding pronouncements, but that is the limit of their executory obligations. In this way, Article 59 passes the baton to Article 94. In this context, the word ‘execution’ connotes the duty to translate, into the factual sphere, the concrete ruling in the operative part of the judgment. From the foregoing we get the measure of the true interpretation of the word ‘decision’ in Article 94, paragraph 1 (‘undertakes to comply with the decision’). The legislative history shows that the draftsmen of the Charter were not particularly interested in the technical meanings of expressions such as ‘judgment’ and ‘decision’. From a purely grammatical point of view, the word ‘decision’, used in Article 94, paragraph 1 has an extremely wide scope. It covers every binding pronouncement of the Court, that is, every pronouncement with the force of res judicata. This is also the best interpretation from the teleological perspective. A lacuna between Article 59 and Article 94, paragraph 1 would not be acceptable, since pronouncements that were res judicata under Article 59 would not be executory under Article 94, paragraph 1. Every res judicata pronouncement ought to be executed, if it contains elements for execution (which is, for example, not the case for judgments on competence or admissibility). A decision of a court of justice that is binding in such a way must be executory, and therefore every such pronouncement under Article 59 must be implemented, by virtue of Article 94, paragraph 1.2577 This applies not only to the 2577   On the contrary, it has been argued that one must distinguish carefully between the binding character of a pronouncement and its executability, the more so since forced execution is rare, and the procedures for it must be interpreted strictly, in a legal system such as international law (Papa, above n 2562, 117). Putting to one side the fact that the exceptional nature of measures of forced execution in international law is not a legal reason to maintain a strict distinction here, it is, on the contrary, the latter that should be accepted only on an exceptional basis, only when positive law requires it by bringing about different legal consequences in the two cases. Indeed, there is no reason to accept (and indeed multiply) the number of cases, in which a binding legal pronouncement does not

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judgments of the ICJ, but also to its Orders binding parties to take steps that are more than purely procedural. Above all, it concerns Orders indicating provisional measures,2578 and also Orders on third-State interventions, to the extent that they could give rise to executory obligations, though in fact they rarely do. Given that the force of res judicata under Article 59 attaches only to the operative parts of the Judgment (or Order) concerned, and to the essential arguments without which the operative parts cannot be understood, executory force is likewise limited to the same parts. Here too, then, there is a functional unity between the two provisions. Where the operative parts of the judgment do not contain specific orders that need to be complied with, it is possible for execution to be neither palpable nor visible. That does not necessarily mean, however, that it is a mere chimera. Thus, in the case of declaratory judgments, execution consists of respecting what the Court has said in future dealings with regard to the legal questions that were in issue. On the other hand, advisory opinions and procedural Orders (Article 48 of the Statute) do not fall within the ambit of Article 94. Their legal effects are purely temporary. Also, they are also internal to the proceedings before the Court, and have no bearing on the external matter of the relations between States. Similarly, interlocutory decisions as to jurisdiction and admissibility do not call for specific execution. They are confined either to putting a stop to the case, or continuing it, and Article 94 does not apply to them. The position is the same as regards the great majority of judgments and orders permitting interventions. From the point of view of the legal subjects engaged, Article 94, paragraph 1, of the Charter binds the Members of the United Nations that are parties to ICJ decisions. As regards non-Members admitted to appear before the Court, Article 93, paragraph 2 of the Charter, and Article 35, paragraph 2 and Article 59 of the Statute, complement Article 94, paragraph 1. The phrase in Article 35, paragraph 2 of the Statute ‘but in no case shall such conditions place the parties in a position of inequality before the Court’, is interpreted broadly, as applying not only before the Court but also to the execution of the judgment. It nevertheless remains the case that Article 94, paragraph 1, is defectively drafted. In the context of the obligation to comply with the Court’s decisions, the limitation to ‘Members of the United Nations’ is inappropriate. Other States than Members are admitted to appear before the Court, and they must respect its judgments and carry them out in the same way as Member States. It would therefore have been sufficient to tie the requirement in Article 94, paragraph 1 to the ‘parties to cases’. However, Article 59 of the Statute can be interpreted as already imposing on non-Members this obligation of execution. By stipulating place the parties under an obligation of implementation. One must nevertheless distinguish obligations under § 1 of Art 94 from those under § 2. If the former are naturally aligned on Art 59 (concerning two concomitant normative obligations), that is not necessarily the position in relation to § 2, which leads towards a procedure for forced execution. 2578   The jurisprudence on intervention shows the Court adopting, in some cases, now Orders, now Judgments, on the basis of relatively fortuitous considerations. In light of this, it would be an astonishing step to maintain a rigid distinction between Orders and Judgments. Those who drafted the Statute could not foresee, either, that the Court would declare, as it did in 2001, that Orders indicating provisional measures contain obligations binding on the parties (unless the Court expressly indicates otherwise). It is irrelevant that the Court might consider whether its Order has been complied with, and issue a ruling condemning a non-compliant party. As to the obligation under Art 94, § 1, at most it will have some relevance to § 2, if one takes the view that cases pending before the Court should not be intervened in by the Security Council. It has been said that the implementation of Orders rests with the Court, and that of Judgements with the Security Council: Pillepich, ‘Article 94’, above n 2572, 1995. In reality, a concurrent competence of the two bodies seems best to reflect the general practice by which they exercise powers in parallel, and also to be more consistent with efforts to bolster the position of the Court, so that it can ensure the sanctioning of its pronouncements. In any event, the obligatory character of the pronouncement, and the duty to execute it (under Art 94, § 1), must not and cannot be in doubt.



IMPLEMENTATION OF THE JUDGMENT 837

that the judgment has ‘binding force’ only between the parties, it presupposes that the latter, whether Members or not, are under an obligation to carry it out. In practice, the problem has never arisen, not only because non-Member States have not disputed that the obligation exists, but also because the relevant resolutions of the General Assembly and the Security Council, opening the Court to non-Members of the UN, have made express provision for the obligation to give effect to the decision. Nevertheless, the imposition of so important a legal duty in a derived text was an error. It ought to have been done in Article 94, paragraph 1 itself. As regards paragraph 2, the question is somewhat different. The Security Council’s competence is ‘natural’ only to the Members of the United Nations. A particular justification would be necessary to apply it to non-Members. Under Article 94, paragraph 1, only a ‘party’ to a decision of the Court is bound. Being a party to a dispute before the Court means, first and foremost, having been a party to the case. This is the position as regards the Claimant or Defendant State in the case and as regards States appearing in Special Agreement cases. Until now, the question whether the obligation might apply to other States has never in practice arisen. The answer must depend, once again, on the functional unity between Article 59 and Article 94, paragraph 1. If there are other States to which the force of res judicata applies by virtue of Article 59, then Article 94, paragraph 1, which in this respect is an accessory provision, must carry its obligation to execute the judgment. In reality, the question arises only in relation to third States that are permitted to intervene. In the context of intervention qua principal, the question is no sooner put than answered. The intervener becomes a party to the case, and is subject to all the obligations of the original parties. When it comes to accessory intervention, the intervener does not become a party, and is thus not formally covered by Article 94, paragraph 1. A teleological and contextual interpretation of the provisions in question, on the basis that interstices should not be opened up between Article 59 and Article 94, paragraph 1 must, however, correct this result. To the extent it has been accepted that the accessory intervener can have, opposable to it, certain conclusions of the Court that are to be found in the operative parts of its judgment, it is obvious that these conclusions have the force of res judicata as against the intervener, and must be executed by it. In the context of Article 63 of the Statute, it is a matter of respecting a certain interpretation of provisions in a multilateral convention. In the context of Article 62, the third State’s obligation is not so circumscribed. It can be either an obligation to abstain, or an obligation to take action. All one can say is that these third-State obligations are, usually fairly minor ones, accessory in nature.2579 On the other hand, there can be no doubt that the third State is indeed bound, and must execute these obligations, from the moment that it hazards its rights, and the Court decides about them with the force of res judicata. However, here, once again, it is necessary to distinguish the legal situation under paragraph 1 of Article 94 from that under paragraph 2. A point that has yet to be established is whether the competence of the Security Council in relation to the execution of judgments extends to the Court’s pronouncements concerning interventions. In that connection, rather different arguments will need to be considered (see below under section (c)). 2579   In this sense, it has been said that the need to invoke Art 94 as regards them will rarely arise: Pillepich, ‘Article 94’, above n 2572, 1994. According to Papa, above n 2562, 115, the negative solution would be the right one because of the restrictive formulation of Art 94, § 1, referring to parties. Such a purely lexical interpretation seems to us to by-pass the real issue. It is also anachronistic, since it fails to take account of significant developments in the jurisprudence on interventions. The latter, however, could not have been foreseen, back in 1945, by the draftsmen of the Charter and the Statute. On the contrary, these developments militate in favour of the solution given in the text.

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Article 13, paragraph 4 of the League of Nations Covenant expressly provided that judgments must be executed by the parties ‘in full good faith’. These words do not appear in Article 94, paragraph 1 of the Charter, since the principle of good faith is codified in a general manner in Article 2, paragraph 2 of the Charter2580 and now informs all UN activities and all conduct of UN Members in relation to the UN itself. The general obligation under Article 2, paragraph 2 of the Charter applies to the particular case of Article 94, paragraph 1. In this context, good faith has a rigorously objective meaning. It involves a certain loyalty and cooperation between parties. More particularly, it requires that the obligations they incur be interpreted in a reasonable way, that is, in a manner which Member States can (and indeed must) understand, not using the letter of the undertaking to avoid its spirit, and without abuses of law and rights. Good faith, from the legal perspective, thus serves a triple function: the principle of legitimate trust and expectation – primacy of spirit over letter where the latter is used to elude the true object of the transaction – prohibition of the abuse of rights.2581 It is difficult to know to what extent a judgment of the Court creates obligations incumbent only on the States parties to the case, and to what extent it also creates obligations for their internal (municipal) organs.2582 In principle, the judgment is directed only at the State, as a subject of international law. The State alone is a party to the proceedings. Implementation of the judgment within its territory is a matter for its internal law, and is governed in accordance with its constitutional autonomy. In this sense, only the State is the subject of law in the Court’s proceedings, and the State is subject only to an obligation of result – a result which must be produced within a reasonable period of time.2583 This question has, however, been crucial in certain recent cases on the death penalty in the USA. The sentences had been pronounced under procedures that failed to respect the consular rights of the condemned persons. The USA argued that, because of its federal structure, it could not interfere with the competences that the federal constitution guaranteed to the federated States. The Court’s provisional measures enjoining the USA to suspend the executions could therefore, in more than one of the cases, not be complied with. In this respect, the USA accepted its international responsibility. However, if it were possible to say that the Court’s decisions are binding not only on the State (in these cases a federation) as a subject of international law, but also on its internal bodies, for example its courts, it might be possible to have the ICJ judgments directly executed by such organs. In this regard, it has been said that the State’s obligation to execute the judgment includes, by implication, a parallel obligation on the part of all the State’s organs.2584 This would be the conclusion in light of Article 4 of the Articles on State Responsibility (2001), providing for the imputation to the State of all acts of its organs and constitutuent parts. The formal decision of the ICJ would not apply to such organs and parts, but the legal obligations under the judgment would apply to them directly. This view is greatly to be recommended. It does not correspond, however, to the current position in positive law. The 2580   ‘All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.’ 2581   For further details, see R Kolb, La bonne foi en droit international public (Paris, 2000); and JP Müller and R Kolb, ‘Article 2(2)’ in B Simma, The Charter of the United Nations – A Commentary, 2nd edn, vol I (Oxford, 2002) 91 et seq. 2582   See Oellers-Frahm, ‘Article 94’, above n 2562, 165–68. 2583   See the case of the Request for interpretation of the Judgment of 31 March 2004 in the case of Avena and other Mexican nationals (Mexico v USA), ICJ Reports 2009, § 44. 2584   Oellers-Frahm, ‘Article 94’, above n 2562, 167.



IMPLEMENTATION OF THE JUDGMENT 839

question of the execution of judgments within a State is governed by that State’s internal law. Internal legal systems vary as regards the discharge of international obligations. Doubtless, it would be desirable to establish an international text that establishes such obligations on the part of all organs constituent and parts. For the time being, however, all that can be said with certainty, is that under Article 4 (just cited), a failure to comply with the judgment engages the international responsibility of the defaulting State, but without freeing it from its ongoing obligation to execute the judgment. There is a separate and distinct question concerning the right of an individual to raise the question of a violation of an ICJ decision before an internal body.2585 This brings in questions as to capacity to act and the self-executing character of the international judgment. Here too, everything depends on the internal laws of the State in question. A municipal judge may be inclined to take no cognisance whatever of the question, on the basis that it is not justiciable. This is particularly likely if the policy of the highest authorities in the State is opposed to the ICJ’s decision.2586 c)  Mechanisms for Forcing Compliance with a Judgment (Article 94, paragraph 2 of the Charter) Article 94, paragraph 2, of the Charter provides as follows: 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.

(1)  Non-exhaustive Character of Article 94, paragraph 2 The first question is whether this provision is exhaustive, in the sense that it contains the sole legally acceptable mechanism for ensuring the forced execution of the Court’s judgments. It is not, and does not. There are indeed other institutional provisions dealing with the execution of the Court’s judgments. Furthermore, States are still permitted to resort to peaceful counter-measures. On the other hand, the use of force to give effect to a judgment is nowadays prohibited, unless it is authorised by the Security Council. Non-exhaustivity. As to the other institutional provisions, the first thing to remember is that the constitutions of various international organisations affiliated to the UN allow their various organs to take action if one of the Member States fails to execute a judgment of the Court.2587 Article 332588 of the ILO’s Constitution gives its Executive Council the power to   Ibid, 167–68.   See the case of the Committee of United States Citizens Living in Nicaragua v RW Reagan (1988), US Court of Appeals for the District of Columbia Circuit: cf A Paulus, ‘From Neglect to Defiance? The United States and International Adjudication’ (2004) 15 EJIL 802 et seq. 2587   See Azar, above n 2562, 176–77. 2588   This is a matter of advisory opinions considered binding under the law and rules applicable to the ILO: ‘In the event of any Member failing to carry out within the time specified the recommendations, if any, contained in . . . the decision of the International Court of Justice . . . the Governing Body may recommend the Conference such action as it may deem wise and expedient to secure compliance therewith,’ This language, which at first sight seems rather strange, referring to both recommendation and decision, derives from the fact that the Court gives an advisory opinion (non-binding) and that the opinion becomes binding under the rules of the Organisation. 2585 2586

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take any decision appropriate for ensuring the execution of a decision of the ICJ in the field of the ILO’s activity, if a Member State fails to carry that decision out. Similarly, Article 882589 of the Constitution of the ICAO (to be found in the Chicago Convention of 1944 on international civil aviation) provides that the Organisation’s Assembly can suspend the voting rights of a member which has failed to comply with an arbitral award, or with a judgment of the ICJ to which it is a party. It can thus be seen that sanctions other than under Article 94, paragraph 1 of the Charter do indeed exist and are legally admissible. They are even welcome, since they increase the pressure on defaulting States to honour the obligations they have assumed. Second, it is helpful to emphasise that the General Assembly too can be seised of the execution of a judgment of the Court,2590 provided that the Security Council is not seised of it in parallel (Article 12, § 1 of the Charter). The basis of this competence is to be found in Articles 10 (possibly 11), 14 and 34 to 38 of the Charter. Where certain Articles of Chapter VI mention the Security Council only, that does not deprive the Assembly of its concurrent competences. Indeed, the latter flow from Article 14. That Article permits the application, by analogy, of the powers provided for in Article 34 and successive Articles of the Charter. Unlike the Security Council (under the powers provided for in Article 94, § 2, and in Chapter VII of the Charter), the Assembly can only recommend action; it cannot decide upon it with binding force. So far, the Assembly has taken cognisance of a failure to execute a judgment on only one occasion – without its competence being disputed, namely in the Nicaragua case of 1986.2591 Counter-measures. As to the second question, on counter-measures, it has to be resolved in line with the applicability of general international law. Once the judgment has been delivered, it decides the law as between the parties and sets out their mutual legal obligations. If a party owing obligations thus recognised in the judgment fails to comply with them, it commits an internationally unlawful act. It is violating both its undertaking to accept the Court’s jurisdiction (together with its necessary consequence, namely the obligatory and executory character of the judgment), and, at the same time, the obligations laid down in Article 59 of the Statute and Article 94, paragraph 1 of the Charter. In the face of such an internationally unlawful act, the State to which the obligation is owed is not without mechanisms it can rely upon. It can demand reparation for the unlawful act, and can also, subject to strict rules of international law, bring into play the factual and legal pressures resulting from the adoption of countermeasures, that is, peaceful reprisals.2592 The latter can consist, for instance, of the blocking of bank accounts or other assets of the defaulting State,2593 in satisfaction of possible sums to be awarded by the Court (subject to immunities such as those attaching to embassy accounts and so on); they can equally consist of the suspension of agreements and treaties connected to the rights violated by the 2589   ‘The Assembly shall suspend the voting power in the Assembly and in the Council of any contracting state that is found in default under the provisions of this Chapter.’ Art 86 of the same text provides for appeals to the PCIJ (ICJ) or an arbitral tribunal, which will give a definitive and binding decision. 2590   See Azar, above n 2562, 171 et seq.; Tanzi, above n 2562, 546–47; Reisman, Nullity and Revision, above n 2503, 729 et seq.; Papa, above n 2562, 128, with numerous references. 2591   See especially, General Assembly Resolution 41/31 of 3 November 1986. 2592   As to the conditions for claiming this right or power, see Arts 49–54 of the Articles on State Responsibility (2001) enshrined in General Assembly Resolution 56/83 (2001). As to this question, in our own context, see Azar, above n 2562, 253 et seq. 2593   Or the seizure of monetary gold in satisfaction of the reparations awarded, as was done by the UK in the Corfu Channel case of 1949. See Azar, above n 2562, 186, 197 et seq., 265–66. Likewise, the USA decided on the seizure of Iranian assets in the context of the Hostages at Tehran case of 1980: see Azar, above n 2562, 267.



IMPLEMENTATION OF THE JUDGMENT 841

defaulting State; of the suspension of non-imperative norms of general international law and so on. The State adversely affected by the non-compliance can also adopt retaliatory measures such as the breaking off, or reduction in the level, of diplomatic relations or of financial or economic aid. Retaliation is to be distinguished from reprisals by the fact that retaliatory measures are not in themselves contrary to international law. Consequently, they do not presuppose, for their justification, that an internationally illicit act has previously been committed. Retaliatory measures must not necessarily have a weaker effect on the non-compliant State than countermeasures would have: they can sometimes be more hard-hitting than reprisals in due form. The most interesting question in this context is the extent to which States which are third parties to the judgment can adopt countermeasures, with a view to forcing the noncompliant State to execute the ICJ’s judgment. All Member States of the UN, and/or parties to the Statute, share an interest in seeing that the Court’s judgments are complied with. Any failure to implement a judgment endangers their future chances, as participants in the ICJ system, of having the system function properly for their own benefit. In addition, since the judicial practice of the Court is closely connected – through the ideal of substituting collective procedures for the anarchic use of force – to the peaceful settlement of disputes and non-recourse to the use of force, which are legal interests erga omnes, the execution of the judgment might itself be presented as such an erga omnes interest. The requirements for the adoption of such erga omnes countermeasures are laid down in Articles 48 and 54 of the 2001 Articles on the International Responsibility of States. Under Article 48, paragraph 1(a) and (b), the obligation in question must be owed either to a group of States, for the protection of a collective interest of that group, or to the international community generally.2594 The predominant view is that, in the present state of the law, the duty to execute the Court’s judgment does not correspond to this ‘collective’ structure. The obligation under the judgment remains embedded in a bilateral context: Article 59 of the Statute makes it binding on the parties to the proceedings; and Article 94 of the Charter consolidates this, by continuing to apply the law to the parties to the judgment only. At the same time, this state of affairs would not prevent third States from demanding execution of the judgment, since a démarche of that kind is not contrary to law, and does not constitute an intervention in the non-compliant State’s internal affairs. The same goes for retaliatory measures. On this view, third States remain strangers to the judgment, even if it has a bearing on collective rights and obligations (erga omnes). If the third States concerned do not become parties to the judgment, it is not opposable to them. That is the position even if the judgment recognises that the substantive rights in question are collective in character and that consequently third States are at least indirectly obliged to behave in a certain way. Indeed, the Court will not pronounce directly on such rights and obligations of third States (the Monetary gold principle and/or the principle of consensual jurisdiction). Consequently, the judgment, as such, does not apply to third States, and there is no basis for requiring them to comply with it. In no way would it suffice to argue that the Court, as the principal legal organ of the United Nations, is here discharging a function that is a matter of public interest, so that third States could thereby become entitled to adopt countermeasures. However, the Court’s role as principal judicial organ of the UN is not entirely without legal 2594   As to the scope of these provisions, see J Crawford, The International Law Commission’s Articles on State Responsibility (Cambridge, 2002) 277–78.

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consequences in this field. It follows from it, in any event, that the various UN organs, the Security Council (Article 94) and the General Assembly (Article 10 and Chapter VI), can take cognisance of the failure to execute a judgment, and decide on collective measures (in the case of the Security Council) or recommend them (in the case of either the Council or the General Assembly). Therefore, it is not a free-for-all in which every State can decide for itself, in an anarchic way, whether to react to the failure to execute a judgment of the Court; but there are collective mechanisms for implementation. This reasoning is impressive, and to a large extent is correct. It seems, however, to allow at least one exception. Third States can associate themselves with countermeasures taken by the State to which the obligation is owed,2595 in order to give it their assistance.2596 In this way, France and the USA associated themselves with the UK when the latter attempted to seise the Albanian monetary gold in compensation for the unpaid reparations awarded in the Corfu Channel case of 1949. In addition, various western States associated themselves with the USA’s countermeasures against Iran in the 1980 case on Hostages at Tehran. In the latter case, it is not easy to distinguish the contribution made by the third States to the execution of the judgment from their reaction to the violations of diplomatic and human rights law, which are collective international obligations. It is also not at all obvious how far States can adopt measures going beyond simple support for the action taken by the State to which the obligation to comply with the judgment is owed. Overall, one is bound to welcome this limited tendency towards political and legal solidarity in the execution of the Court’s judgments. The first reason is that an important collective interest of the (all-too anarchic) ‘international community’ is at stake here, namely respect for the judgments of the International Court of Justice. Second, because there are so many stony pitfalls in the path to execution of the Court’s judgments through action of the Security Council. It is thus difficult to underestimate the value of substitute means of execution (or at least pressure), even if they are rarely employed. There is a certain disconnection, as regards countermeasures, between the strictly relative authority of res judicata and the wider possibilities of contributing in some way, to the execution of the judgment. The perfect functional identity between Article 59 of the Statute and Article 94, paragraph 1 of the Charter thus meets its first check in the context of Article 94, paragraph 2 of the Charter. The use of force. Can a State use force to execute a judgment of the ICJ in its favour, without authorisation from the Security Council (or it could be the General Assembly, under conditions which need further consideration)? The question is whether a State benefitting from an ICJ judgment can individually use force, or even seek the assistance of third States, to compel the non-compliant State to execute the judgment. In the days of the League of Nations, the use of force was lawful in such a case, provided that the State in question observed a three-month moratorium before resorting to war, as provided for in Article 12, paragraph 1 of the Covenant. The existence of a judgment was considered a sufficient guarantee that force would be used not for reasons of national policy, but in order to ensure respect for a highly important international interest. The forced execution of the judgment would, in addition, protect the integrity and efficacy of the regime for the settlement of disputes by judicial or arbitral proceedings. 2595   See Azar, above n 2562, 264. See also Schachter, ‘Enforcement’, above n 2562, 11; Anand, above n 2562, 694; Guillaume, ‘De l’exécution des décisions’, above n 2562, 444. See also, LA Sicilianos, Les réactions décentralisées à l’illicite (Paris, 1990) 156 et seq. This is the case for parties to the Statute, and perhaps for non-parties also. 2596   Which must be lawful.



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A strong majority opinion used to exist, and that opinion is nowadays virtually unanimous,2597 that, under the regime of the UN Charter, the unilateral use of force is prohibited, even to enforce a judgment of the ICJ, and a fortiori to enforce an arbitral award. As regards a judgment of the Court, a State can take the matter to the Security Council and ask it to exercise its powers under Article 94, paragraph 2, of the Charter; or it can adopt peaceful countermeasures of its own. Article 2, paragraph 4 of the Charter is indeed quite general in its scope, and it makes no exception for the execution of judgments. Also, the use of force, when allowed, needs to be legally ‘necessary’ in the sense that it is the last resort, the ultima ratio. If there are other equally effective but less onerous means of achieving the same result, they must be tried first. These limitations derive from the principles of necessity and proportionality which inform the whole international legal system. In this case, even if the use of force was abstractly allowed, there would other available means: recourse to the Security Council is provided for, and lawful countermeasures are allowed. The use of force would thus not be legally speaking and prima facie ‘necessary’. According to an older view, which is now held by only a small minority of commentators, the use of proportionate force by the State to which the obligations are owed is permissible in order to ensure execution of the judgment by a recalcitrant State. The same argument applies in relation to the execution of arbitral awards. Authors such as O Lissitzyn, J Delbez, M Dubisson, J Stone and P Guggenheim have been of this opinion.2598 Others, such as C Vulcan, limit the power to use force to cases where the failure to comply relates to a judgment of the ICJ.2599 These authors’ main argument is that there is no question, in such a case, of a subjective assessment of the parties’ rights and obligations, because the judgment puts the rights and obligations beyond doubt. It is objective and confers executory rights. Furthermore, the importance of conferring proper authority on judicial pronouncements is crucial for the future of the international community. Consequently, the use of force in such cases is argued to be compatible with the last 23 words of Article 2, paragraph 4,2600 and conforms to the ‘forcible assertion of rights’ that was allowed in the Corfu Channel case (1949). However much sympathy one may feel for this theoretical view in light of the truly fundamental importance of having international judgments respected, it is not compatible with either the letter or the spirit of the Charter. It is contrary to Article 2, paragraph 4, Article 51, and Article 94, paragraph 2, of the Charter. Furthermore, the prohibition against the unilateral use of force does not derive just from the concern not to open the way to the subjective assertion of alleged rights. It is driven at least as much, if not more, by the concern to avoid war, which is an evil in itself. Only the collective organ of the organised international community, that is, the Security Council, should be entrusted with the task of assessing the interests in issue, and deciding whether, in extremis, the use of force will truly 2597   Including such commentators as I Brownlie, D Bowett, H Kelsen, A Verdro, H Wehberg, O Schachter, E Jiménez de Aréchaga and Y Dinstein. See, eg I Brownlie, International Law and the Use of Force by States (Oxford, 1963) 347–48; H Kelsen, The Law of the United Nations (London, 1951) 541; Schachter, ‘Enforcement’, above n 2562, 7. 2598   See, eg Dubisson, above n 2503, 268–69, the necessity for the Court’s decisions to be effectively executed; J Stone, Legal Controls of International Conflict (London, 1954) 90; P Guggenheim, Lehrbuch des Völkerrechts, vol II, (Basle, 1951) 656 and 582. 2599   Vulcan, above n 2562, 187 et seq. 2600   ‘. . . against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’. As to the interpretation of these words, relativising the prohibition against the use of force in Art 2, § 4, cf R Kolb, Ius contra bellum, Le droit international relatif au maintien de la paix, 2nd edn (Basle/Brussels, 2008) 250–51.

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be valuable and proportionate as a means of executing the judgment of the Court that is at stake in any particular set of circumstances. (2)  Seising the Security Council Under Article 94, paragraph 2 of the Charter, the ordinary means for compelling a State to execute a judgment of the Court is to seise the Security Council. Who, then, can do this? Article 94, paragraph 2 of the Charter is a special legal basis for seising the Council and conferring competence upon it.2601 This means, first of all, that this provision regulates in a particular manner (as a lex specialis), the modalities for seising the Council, on a basis that is additional to, and distinct from, those provided for under Chapters VI and VII. Under Article 94, paragraph 2, the Security Council can be seised by a party to a dispute which has been decided by the Court, if that party has failed to obtain execution of the judgment. In formal terms, parties to the Court’s judgment, in whose favour the judgment constitutes a res judicata, can seise the Security Council under this provision. Substantively, such a party must also sustain the argument that the opposing party has defaulted in its duty to execute the judgment. For that purpose, the party seising the Council must be the obligee of the obligations in question. Article 94, paragraph 2, however, although a lex specialis, does not derogate from other provisions; it merely creates an additional competence. States which are parties to the judgment, and also other Member States of the UN, can thus seise the Security Council or the General Assembly on the basis of other provisions of the Charter that create competences in these bodies, whether under Article 10 or Article 14 of the Charter, or under Chapters VI or VII. Each time, therefore, it is necessary to prove that the conditions for the application of the relevant provision are being respected. As regards Articles 10 and 14, that is, as regards seising the General Assembly, the threshold for the applicability of the provisions is set so low as to amount to very little. The Assembly has to be persuaded that the situation created by the non-compliance with the judgment is of such a nature as to be ‘likely to impair the general welfare or friendly relations among nations including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations’ (Article 14). The non-execution of a judgment is by definition ‘likely’ to impair general welfare and friendly relations. It may also be seen as a violation of the Purposes and Principles of the Charter, particularly those relating to the settlement of disputes (Articles 1, § 1, and 2, § 3 of the Charter). In other words, the General Assembly can always be seised and may always (but is not obliged to) declare itself competent. The Assembly took cognisance of non-­execution in the Nicaragua case (1986). This state of affairs shows that the competences of the Council and of the Assembly overlap to a considerable degree, in this field as in others. There remains the limitation in Article 12, paragraph 1, of the Charter, the rigidity of which has, however, been considerably softened by UN practice.2602 The Security Council can also be asked to take action on bases other than Article 94, paragraph 2. It can, for example, be seised on the basis of Chapter VI, with a view to its recommending solutions to disputes between the States that are parties to a judgment,   Oellers-Frahm, ‘Article 94’, above n 2562, 169.   cf K Hailbronner and E Klein, ‘Article 12’ in B Simma (ed), The Charter of the United Nations, A Commentary, 2nd edn, vol I (Oxford, 2002) 287 et seq.; L N Caldeira Brant, ‘Article 12, paragraph 1’ in JP Cot, A Pellet and M Forteau (eds), La Charte des Nations Unies, Commentaire Article par Article, 3rd edn, vol I (Paris, 2005) 683 et seq. See also the harsh (and excessive) criticisms of YZ Blum, Eroding the United Nations Charter (Dordrecht/ Boston/London, 1993) 103 et seq. (under the title ‘Who Killed Article 12 of the United Nations Charter?’). 2601 2602



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where the disputes relate to the modalities of execution. Since the Security Council will be slow to proceed right away to the adoption of binding measures for having the judgment executed, a State may find it perfectly adequate to seise the Council on the wider basis of Chapter VI, rather than the narrower one of Article 94, paragraph 2.2603 Chapter VI gives the Council a larger palette of material competences to work from. The State benefitting from the judgment can be congratulated if its first concern is to seek a constructive and cooperative solution to the problem. The possibility remains open to it of subsequently seising the Council under Article 94, paragraph 2. Seisin under Chapter VI requires the State to show that the non-execution of the judgment, and especially the resulting situation, constitute a dispute ‘the continuance of which is likely to endanger the maintenance of international peace and security’ (Article 33, § 1). The practice of the UN is to interpret this test in a liberal spirit, and that is understandable. Indeed, there would be no sense in pushing a State into adopting threatening attitudes in order to prove that the test is satisfied. That would be contrary to the object and purpose of Chapter VI. The only disputes that are excluded are those that are so minor that it would be inappropriate to raise them at UN level, where it would be literally ‘counter-productive’ to do so: transforming them into disputes of international concern of the type that the UN’s organs are seised of, and attributing to them a disproportionate importance that they simply do not deserve. The Charter therefore prefers to leave them to direct and friendly contact between the parties, and to avoid any institutional involvement which would be likely to embitter the atmosphere. A failure to comply with a judgment of the Court certainly is sufficiently serious for the Security Council to be seised under Chapter VI, the more so given that the integrity of the UN’s principal judicial organ, and indeed of the Charter itself, are thereby put in issue. Moreover, Article 38 of the Charter (Chapter VI) does not presuppose that the threshold (‘any dispute, the continuance of which is likely to endanger’) has been reached. It is sufficient that the parties agree to submit a dispute to the Security Council, which is then competent to deal with it, whatever the level of gravity. In practice, however, Article 38 has hardly ever been applied. The liberal interpretation of the threshold in Article 33, paragraph 1 has made a separate basis of competence unnecessary. Finally, the Council can also be seised, or can seise itself, on the basis of Chapter VII of the Charter. That is the position if the Council, or a Member State, consider that the failure to execute a judgment, and the resulting situation, are a threat to the peace, or even, indeed, if the peace has already been broken. One cannot exclude the possibility that the non-execution of a judgment, for example in a territorial dispute, might cause a State whose sovereignty was recognised in the judgment, to recover the territory by force. It goes without saying that in such situations the Council can (and should) take action under Chapter VII. The practice of the Security Council for the last two decades has, however, shown a propensity to give a very wide interpretation to the concept of ‘threats to the peace’ so as to open the way to a kind of world government in all fields that are of collective international interest and need urgent action (fundamental human rights, the struggle against terrorism, the struggle to prevent the proliferation of arms and so on).2604 It is not legally impossible 2603   The UK seised the Security Council under Chapter VI of the Charter in the Anglo-Iranian Oil case (1952). The fact that it did so in the context of provisional measures doubtless played a part, since Art 94, § 2, in terms covers only ‘Judgments’. In these circumstances, the Security Council waited for the Court to pronounce on its jurisdiction. 2604   See M Zambelli, La constatation des situations de l’Article 39 de la Charte des Nations Unies par le Conseil de Sécurité (Geneva/Basle/Munich, 2002) 268 et seq.

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for the Security Council to interpret the concept of ‘threats to the peace’ relatively widely in the context of the execution of the Court’s judgments as well. The Council might consider, by a kind of legal fiction that the fact of failing to comply with a judgment itself constitutes a prima facie danger to the peace, not in the real sense of the expression but in its legal sense, which is the only decisive one. The Council would then be acting, if it wished, in such a way as significantly to reinforce the positions both of the Court and of international justice itself. At the present time it is unlikely that the Council would act in this way; but it remains a possibility for the future. In light of the above we can say the following: (1) The competences of the UN’s political organs overlap to a considerable degree, and make possible an accumulation of legal bases for a very diverse range of such competences (and the substantive competences that go with them). The objective of the Charter is to open the widest possible variety of ways to the seising of its political organs, not to put obstacles in the way. (2) Article 94, paragraph 2 of the Charter, which is specially directed to the execution of judgments of the Court, rests on a bilateralist view of the interests involved. Only a party to the judgment, claiming that it has not been properly executed for that party’s benefit, can seise the Security Council under this provision. It is not open to other UN Member States to seise the Council by invoking the collective interest of UN Members in having the judgments of its highest Court properly executed.2605 Such a State may, however, bring this state of affairs to the attention of the Security Council or the General Assembly attention, on other bases, either under Chapter VI or under Article 14. One school of thought among leading commentators has taken the view that Article 94, paragraph 2, of the Charter ought to be interpreted more widely than the wording suggests.2606 It would be artificial to restrict access to the Security Council under Article 94, paragraph 2 to parties to the dispute, refusing such access to other interested Members of the UN, when access is already permitted to them under, for example, Article 35. This dichotomy could be maintained only if Article 94, paragraph 2 truly did constitute a specific and limited competence, and not if it rested on a competence derived from the general powers of the Council. But, as a matter of principle, the latter solution ought to be preferred, because otherwise it would mean introducing a limitation that did not correspond to the intentions of those who drafted the Charter, who clearly wanted to give the Council a very wide-ranging competence. In a rather contradictory spirit, Dubisson cites in evidence the Anglo-Iranian Oil case, in which he says the Council acted on the basis of a very wide-ranging competence under Chapter VI (or, to be more exact, did not base its action on Article 94, § 2). Dubisson is right in thinking that the Charter in fact differs little from the League of Nations Covenant as regards seising the Council. The right of seisin is in practice very extensive, and is not limited to States that are parties to judgments. However, some careful distinctions do need to be drawn between the bases of seisin. Article 94, paragraph 2 gives access to the Council only to States that are parties to judgments. Unless and until the subsequent practice of the UN modifies this provision, the text is clear, and must be considered applicable (giving the widest possible meaning to the words actually used, Grenze des möglichen Wortsinns). That does not mean that seisin by third States, or seisin by the Council itself (on the motion of one of its members) is completely excluded, but merely that the legal basis for it has to be found in some other provision than Article 94,   Papa, above n 2562, 115.   See Dubisson, above n 2503, 271–72.

2605 2606



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paragraph 2. The Charter does provide a sufficient number of alternative bases. In short, several roads lead to Rome; but they are distinct ones. (3)  The Formal Competence of the Security Council: ‘a judgment rendered by the Court’ Article 94, paragraph 2, refers to judgments (in French, ‘arrêts’) of the Court; by contrast, Article 94, paragraph 1 containing the obligation to comply, simply mentions the Court’s ‘decisions’.2607 It has been argued that it is difficult to suppose that the draftsmen of the Charter used these two different expressions without intending to distinguish between them. Those expressing that view do admit, however, in a way not entirely exempt from self-contradiction, that the draftsmen paid little attention to terminology, and used the expressions ‘judgment’ and ‘decision’ (the French words ‘jugement’, ‘arrêt’ and ‘décision’) in a fairly interchangeable way.2608 There is general agreement that the French expression ‘arrêts’ covers judgments on the merits and also, in principle, judgments on jurisdiction and admissibility. However, at the stage of jurisdiction and admissibility, there is usually nothing to be ‘executed’ apart from the continuing unrolling of the process. The same goes for judgments and orders on the admissibility of third-party interventions. In practice, the question arises only in relation to Orders indicating provisional measures under Article 41 of the Statute.2609 For a long time, the question as to their binding force was a controversial one, until, in the LaGrand case (2000),2610 the Court stated that they were binding. This reinforces the arguments for applying Article 94, paragraph 2, to such Orders. The word ‘judgment’ (or in French ‘arrêt’) in paragraph 2 must be interpreted in a substantive rather than a formal sense. It means a decision having the force of res judicata, or one which is binding, and that is what counts, rather than the formal label attached to the decision. That approach to interpretation is certainly compatible with the word ‘judgment’ (or in French, ‘arrêt’) used in paragraph 2; it is, after all, one of the possible meanings (möglicher Wortsinn). Also, it makes sense to allow such execution of provisional measures, given that they are both urgent and binding in character, both from the point of view of the parties’ substantive rights and from the perspective of the Court’s own prestige. Since such measures are indicated by the Court with a view to avoiding irreparable damage, or a severely prejudicial extension of the conflict between the parties, the object and purpose of the procedure can be expected to command their respect.2611 Otherwise, the substantive purpose of the judgment on the merits might be endangered or frustrated, the prohibited conduct effectively causing ‘irreparable’ damage to the very subject matter of the dispute. Seen in this light, the provisional character of the measures does not change their fundamental nature in the proceedings or their importance for the efficacy of the final judgment. On the other hand, if the Court were to indicate provisional measures on a non-binding basis, that is, by way of recommendations, for example to 2607   For Kelsen, The Law of the United Nations, above n 2597, 720; the word ‘judgment’ in § 2 is narrower than the word ‘decision’ in § 1. 2608   Oellers-Frahm, ‘Article 94’, above n 2562, 162. Dubisson, above n 2503, 273–74, thinks that the different wording resulted simply from inadvertance on the part of the Charter’s draftsmen. 2609   See Oellers-Frahm, ‘Article 94’, above n 2562, 170; Papa, above n 2562, 116 et seq.; Azar, above n 2562, 65 et seq. 2610   See §§ 102 et seq. 2611   This teleological argument as to good faith was developed with great finesse and acuity by the UK’s representative on the Security Council, Sir Gledwyn Jebb, when addressing the consequences of failure to comply with the measures indicated by the Court in the Anglo-Iranian Oil case (1951). See Security Council, Official Records, 6th Year, 559 Meeting (1951), 20, § 94, original English language version.

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preserve the proceedings against any vaguely prejudicial events, Article 94, paragraph 2 would not be applicable. This interpretation also makes it possible to avoid creating an unjustified disjunction between paragraphs 1 and 2 of Article 94. A pronouncement binding on the parties ought, in principle, to be capable of being executed, unless there is some specific reason against it. There is a kind of rational presumption that the ‘decisions’ of paragraph 1 must be the ‘judgments’ of paragraph 2. The logical sequence is indeed ‘binding character – duty to comply – forced execution in the event of refusal to comply’. That is the general rule under all legal systems. Two main arguments have been advanced against this solution,2612 and both appear illconceived. On the one hand, it has been said that the draftsmen of the Charter were conversant with provisional measures procedures, and would have expressed themselves differently if they had wanted to encompass such measures in Article 94, paragraph 2. This is a manifestly unconvincing argument, because the draftsmen of the Charter could not foresee that the Court would affirm the binding character of such measures, as it did in 2001. In 1945, it was a controversial question, and for a long time thereafter it remained highly uncertain. The formula in paragraph 2 might well have seemed adequate at that time; however, it is certainly no longer adequate now. On the other hand, it has been said that the following up of provisional Orders was a matter for the Court itself (since, after all, the proceedings are still continuing), so that only the following up of final judgments was a matter for the Security Council. It is true that the Court itself can normally sanction noncompliance with its procedural Orders – for example by pronouncing in default of appearance – and that it is therefore unnecessary to provide for action by the Security Council in such cases. But the Court has only very limited possibilities open to it of taking action in relation to provisional measures. It can find that there has been a failure to comply, and declare, in an operative provision of a decision, that the State concerned is responsible for the failure. But this is not an adequate or sufficient sanction in the case of obligations imposed as a matter of urgency, with a view to protecting the subject matter of the case. In any event, the Court cannot sanction non-compliance with its Orders indicating provisional measures either at a procedural level or at a substantive level. That in itself is a sufficient reason for recourse to the Security Council to be possible in such cases.2613 (4)  The Subject-matter Competence of the Security Council: Contents of its Acts. Article 94, paragraph 2 of the Charter constitutes an autonomous basis for action by the Security Council.2614 It is independent of the Council’s powers under Chapters VI and VII. The positioning of the Article in the overall economy of the Charter, and the actual words used, both evidence this fact. The consequence is that, legally, the Security Council can exercise competence directly on the basis of Article 94, paragraph 2, without having to subject its powers under that provision to the requirements of Chapters VI (a dispute the 2612   Pillepich, ‘Article 94’, above n 2572, 1995. These arguments seem, moreover to rest on the (likewise entirely inadmissible) argument that Art 94, § 2, with its objective of forcing States’ hands and limiting their sovereignty, must therefore a priori be interpreted in a strict and prudent way: ibid, 1993. The rule that any limitation on sovereignty must necessarily be interpreted strictly has long since been abandoned. The Court restated this recently, in the case on the Dispute relating to navigation and related rights (Costa Rica v Nicaragua), Judgment of 13 July 2009, §§ 48–49. The PCIJ had emphasised the same point in the case on the Territorial jurisdiction of the International Commission for the River Oder (1929), Series A, no 23, 26. 2613   See also Dubisson, above n 2503, 273–74. 2614   Oellers-Frahm, ‘Article 94’, above n 2562, 171; Papa, above n 2562, 108–10, with numerous references.



IMPLEMENTATION OF THE JUDGMENT 849

continuance of which is likely to endanger the maintenance of international peace and security) or VII (threat to the peace, breach of the peace, act of aggression2615). Nor will it be limited by the measures recognised in those Chapters (for example Articles 40 and 41). It is not correct to say that the Council can exercise its powers under Article 94, paragraph 2, only if, at the same time, it determines that the specific conditions of Chapter VI or Chapter VII are fulfilled.2616 Within the limits of the objectives of the Purposes and Principles of the Charter (Article 24, § 2), the Security Council has, here as elsewhere, discretionary powers of a very sweeping kind. First of all, the Council is not obliged to take any action: it may do so, ‘if it deems necessary’ (Article 94, § 2).2617 There is thus no positive obligation to act.2618 This weakens the executory force of the Court’s judgments and cannot fail to have negative implications for its prestige. In light of this fact, and of the mutual regard owed inter se by the various organs of the United Nations, the Security Council ought to abstain from action only if it took the view that this was essential, or at least of concrete value, for the purposes of reaching a satisfactory solution of the dispute, for example if direct negotiations between the parties were under way with the promise of an adequate outcome, and one of the parties, for tactical reasons, sought at a difficult moment in those negotiations, to embarrass the other by taking the matter to the Security Council. The principle requiring cooperation between the organs of the UN also implies that the Council must not, without good reason, remain entirely passive in the face of a failure to execute a judgment. Legally, however, the Security Council remains the sole judge of whether or not to take action, and there is no appeal from its decision. The Council thus faces a discretionary choice with three aspects: (1) whether or not to take action at all (‘if it deems necessary’); (2) whether to recommend or to decide (‘make recommendations or decide upon measures’); and (3) as to the exact content of the recommendations or decisions. It is difficult to see how its discretionary power could have been made any greater than this. In substantive terms, the Council can take inspiration from the measures and sanctions applicable under its practice in respect of Article 41; but it can also go beyond them. At the same time, if it decides that the separate conditions laid down in Chapter VI or Chapter VII are fulfilled, the Council can take the measures available under the Chapter in question, without being limited by the requirement of a ‘judgment’ within the meaning of paragraph 2 of Article 94. The Council could respond to a simple order of the Court, if the latter sought its assistance, with coercive measures or with recommendations made on its own authority. The Security Council might also decide, under Chapter VII, provided it viewed the situation arising from the failure to execute the judgment as constituting a threat to the 2615  Kelsen, The Law of the United Nations, above n 2597, 721, writes as follows: ‘The Security Council, in order to give effect to a judgment of the Court, may apply Article 41 without applying Article 39, that is to say, without having previously determined the existence of a threat to, or breach of, the peace.’ 2616   See E Jiménez de Aréchaga, Derecho constitucional de las Naciones Unidas (Madrid, 1958) 557 et seq. 2617   Oellers-Frahm, ‘Article 94’, above n 2562, 170. 2618   The opposite case was put by L Oppenheim and H Lauterpacht, International Law, 7th edn, vol II (London, 1952) 76 on the basis of two arguments. First, the words ‘if it deems necessary’ in their view refer to the alternative between recommendations and measures, and not to the duty to act or not to act (‘may, if it deems necesssary, make recommendations or decide on measures to be taken’). This argument is invalidated by the legislative history of Art 94, which shows that the draftsmen did not wish to oblige the Council to take action. Second, they advanced a teleological argument, to the effect that interpretation, in the sense of a discretionary power, would leave the State aggrieved by non-compliance with no recourse. They doubtless meant to imply that this would push that State towards measures of self-help, which it must be the Charter’s purpose to avoid. That is a perfectly good argument, but it cannot be allowed to be decisive in light of the text and its legislative history. One must, however, take it into account, as the following passages of the present work indeed do.

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peace, to allow the use of force. The question whether the autonomy of Article 94, paragraph 2 extends to the point where the Council could decide on the use of force even without deciding that Article 39 is satisfied, simply on the basis of Article 94, paragraph 2 needs to be considered separately, and will be explored in the next section of this chapter. When making its decisions, the Council can require a specified type of conduct from all Member States, or from certain of them, just as it can authorise all Member States, or just certain of them, to adopt a certain attitude. The Council decides on its measures in a context that is multilateral or collective. The bilateralism of Article 59 of the Statute and of Article 94, paragraph 2 of the Charter is relevant only as regards the binding force of the judgment and the seising of the Council. It does not apply in relation to measures adopted by the Council. Also, the Security Council need not necessarily take decisions. It can make recommendations. Like Article 39 of the Charter, Article 94, paragraph 2 gives the Council a discretion to choose between recommendations and decisions, between diplomatic action designed to lead to a resolution of the dispute, and coercive action designed to enforce the execution of a judgment. A further distinction should be made, which, however, partakes partially of the character of a recommendation or a decision. The Security Council can indeed choose between two types of action that are partially cumulative and in any event capable of taking effect successively. On the one hand, the Council can take measures of ‘assisted execution’, and on the other, measures of ‘forced execution’. The former is similar to diplomatic action, and generally rests on recommendations and/or decisions to which the parties agree. These are cases in which practical difficulties crop up to hinder execution, but still the parties are in agreement that a solution needs to be found, and that the judgment should indeed be executed. In such cases, the Security Council can try to assist them in the search for solutions, for example, by recommending collateral measures that will facilitate execution. It can, for instance, try to provide a State which appears unable to comply with the obligations identified in the judgment, with additional sources of finance. For that purpose, it can request the co-operation of the World Bank. It can also ask the State which is the beneficiary of the judgment to allow a delay in execution, if there are strong reasons for doing so. Such reasons might result from the need first to alter the internal law of the State owing the obligation, or even, in some cases, to avoid a threat to the peace.2619 Another example is to be found in the subsequent history of the Territorial dispute (Libya v Chad), in which, under an agreement between the parties, the Security Council established a UN observer group to oversee the withdrawal of Libyan troops from the area that the Court had decided was under Chadian sovereignty.2620 In this way the Council can, under Article 94, paragraph 2 if one gives a wide reading to the words ‘to give effect to the judgment’, or under Chapter VI, or even directly under Article 24, paragraph 1 – decide on measures designed to facilitate the execution of the judgment, without dealing directly with the actual execution itself. As to measures of forced execution, they can fall within the Council’s competences under Chapters VI (recommendations) or VII (decisions or recommendations), but these are not exhaustive either. If it were otherwise, Article 94, paragraph 2, would be more or less superfluous and of no practical value, since, from the substantive point of view (as distinct from the seisin aspect), it would add nothing to the powers the Security Council already has 2619   However, in the latter case, a State which does not wish to execute a judgment must not be allowed to derive profit from bellicose threats in opposition to the execution of the judgment: nemo ex propria turpitudine commodum capere potest. 2620   By Resolutions 910 and 915 (1994).



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under the two Chapters. The Security Council can thus base all the measures it considers necessary and proportionate for the execution of the judgment, directly on Article 94, paragraph 2 in combination with Article 25 of the Charter. The two Articles will give binding force to the Council’s decisions, unless the Council prefers to confine itself to recommendations. There is, however, an absolute material limit to the number of discretionary options available to the Security Council. As a political body, it cannot in any event modify the substance of the Court’s judgment.2621 That judgment is final and unappealable, by virtue of Article 59 of the Statute. This means that the Security Council cannot, in any circumstances, substitute its own assessment of the merits for that of the ICJ. The Security Council is not a tribunal of appeal against decisions of the Court. If the impression were to be given that the Security Council provided a back-door means to the appeals-revision of judgments, it would send a very dangerous message to parties that lose cases before the Court, inciting them to have ‘recourse’, as a matter of normal practice, to the Security Council, in the hope that such ‘recourse’ would result in their legal position’s being nudged in a favourable direction. It is possible to envisage the Council’s recommending a State to which obligations are owed under an as yet unexecuted judgment to drop its demand that the judgment be executed now, in part or in full. This might be the outcome if the Security Council thought the Court’s judgment too strict, or that it gave rise to greater problems than those it resolved, in the context of political tensions in relation to which the legal aspects dealt with in the Court’s judgment were only one of the constituent elements, and perhaps quite a modest one.2622 It is not clear whether the Council could make such ‘revisionist’ recommendations under Article 94, paragraph 2, given that the latter requires the Council to make recommendations or decide on measures to be taken ‘to give effect to the judgment’. Recommendations of the kind mentioned above would not be designed to give effect to the judgment, but rather to achieve a renunciation, in whole or in part, of the benefit of that judgment. However, Chapter VI or Chapter VII might enable the Council to act in this way. In that case, however, these Chapters of the Charter would be being used to limit the scope of Article 94, paragraph 2 and, hard on the heels of that, to weaken the position of the Court. If the Council were to decide on such a step, it would have to be in the face of highly exceptional circumstances, and the Council would need to do everything possible not to damage the force of the res judicata. Its recommendations would have to relate solely to the modalities of execution, if the situation were one in which those modalities posed insoluble problems arising from unforeseen or highly complex circumstances. The Council might also recommend the revision procedure, if new facts within the meaning of Article 61 of the Court’s Statute had come to light. Would it be different if the parties to the judgment together asked the Security Council to make recommendations that might differ, perhaps quite strongly, from a judgment that they did not find satisfactory, or in respect of which the factual circumstances had, in the meantime, changed fairly radically? This view has been contended for:

2621   Majority opinion is strongly supportive of this view: Oellers-Frahm, ‘Article 94’, above n 2562, 171; Papa, above n 2562, 111, 129–32; Anand, above n 2562, 698; Dubisson, above n 2503, 274. See also, more generally, Azar, above n 2562, 151 et seq.; Schulte, above n 2562, 48 et seq. 2622   See Kerley, ‘As to Compliance with Judgments of the International Court of Justice’, above n 2562, 279 and, generally, Kelsen, The Law of the United Nations, above n 2562, 539–41.

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However the consent of all the parties to the dispute, above all including the winning party, could make it possible for the Security Council to recommend a solution different from the one laid down in the judgment. In that case, the judgment would stand, and its legal status and authority would not be in dispute. But, that authority being a relative one, the parties could, by agreement between themselves, renounce the idea of considering the Court’s judgment to be binding as between them, either tout court, or so as to substitute, by way of a novation, the recommendation or decision of the Council.2623

In short, since a State in the position of a ‘judgment creditor’ can renounce execution of the judgment in its favour, or can make an agreement compromising the rights recognised in that judgment, it is equally entitled to accept the recommendations of a third party as regards the solution to the problem. If you can do more (the principal) you can do less (the accessory). The exact degree to which the parties – and especially the winning party – can renounce the rights they enjoy under the judgment has been analysed above.2624 The existence of these rights of the parties does not, however, prove that the Security Council must exercise such a competence. The Council is bound by the Charter and by the Statute of the Court, which is an integral part of the Charter. It is doubtful whether the Council could have the right to engage in an activity inconsistent with the authority of res judicata, especially if the activity were inconsistent with its duty to execute the judgments of the Court. It is therefore not possible to envisage the Council having such powers, except within the strict limits of the exceptional measures contemplated above. The same would not be true for a conciliatory organ outside the UN, which would not be bound by the Charter. Could the Council go so far as to impose on a party a binding obligation not to execute a judgment,2625 or not to seek revision of it? The legal basis of such an imposition would have to be a decision under Chapter VII, or the direct application of Article 25 of the Charter, according to the interpretation given to that Article by the Court in the Namibia case of 1971.2626 However, the answer to the question has, even so, to be a negative one. The Council could, in certain circumstances, impose, by a binding decision, a period of delay in the execution of a judgment. It might require a State to renounce the right to demand execution of a judgment for so long as the Council remained seised of the matter, or for the duration of other grave reasons making the delay desirable. But such a ‘freeze’ can never be more than a temporary matter, and must remain strictly within the limits of what is necessary and proportional to the maintenance of peace or of some other pre-eminent value. In no circumstances is the Council entitled to annul the legal rights obtained by a State under the judgment in a case it has won. The Charter does not give the Council any such material right to set aside the judgments of the Court. If it did, as we have already said, the losing State would always be tempted to take the matter to the Security Council, with a view to having its obligation to execute the judgment amended in its favour. In the nature of things, some States hold stronger cards at the Security Council than do others. The result would be an altogether excessive politicisation of the ‘execution-amendment’ procedure. As to revision proceedings, the Council cannot order them as such. Even if the State benefitting from the original judgment requests the Council to do so, the conditions for revision are fixed by the Statute, and make it exclusively a matter for the Court to decide the admissibility of requests for revision. Might the Council, however, require a State at least to   Dubisson, above n 2503, 274 (our translation).   Above section 23(d). 2625   Or the renunciation by the winner of a demand for the execution of the judgment. 2626   ICJ Reports 1971, 52–53, § 113. This interpretation has frequently been disputed by learned commentators. 2623 2624



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seek revision? It is difficult to see how this question could have any practical application. One side will always have an interest in revision if new facts come to light, so that it will hardly be necessary to force it to initiate the revision proceedings. The question could arise the other way, the Council enjoining a State not to seek revision. But again, the Charter does not give the Council such a power. It is not ‘necessary’ for the performance of the functions the Charter entrusts to the Council. Might things be otherwise if the Court had committed a serious error of law, or if its judgment were manifestly and massively unjust? This has in fact been suggested.2627 The question is one of a certain delicacy, particularly if the hypothesis about injustice is pushed to extremes. The opening up of such possibilities, with all the margin of appreciation that necessarily goes with them, would, viewed in the round, do more harm than good. If you accept the possibility that a judgment could be ‘revised’ by the Security Council on the grounds of error of law, it amounts to making the Security Council a court of appeal from the ICJ, when the latter, not the former, is the principal legal organ of the UN, and the latter, not the former, is the expert in the law: jura novit curia. This means making the political and executive body a court of appeal from the Court itself. The idea is not merely a legal heresy, but contradicts the entire logic of giving the Court’s judgments the authority of res judicata. Could the Court itself spontaneously ask the Security Council to amend its judgment, if it realised it had committed a serious error of law? Quite apart from the fact that the question itself is entirely hypothetical, and has never arisen in practice, it would be altogether more correct for the Court itself to re-open the case on exceptional grounds, under its inherent powers. It might consider that a judgment which was manifestly misconceived in law amounted to no valid judgment at all, and must be replaced. In the highly improbable circumstances that we are contemplating here, that would be far more appropriate than batting the ball into the Council’s court, where the latter would be singularly ill-equipped to play it properly. (5)  Execution by Armed Force? Can the Security Council decide, under Article 94, paragraph 2 of the Charter, to use armed force to execute a judgment? Most leading commentators accept that the Council can treat a failure to execute a judgment as constituting a threat to the peace. It can then take steps under Chapter VII of the Charter, including, in particular, under its power to make binding decisions, the authorisation of the use of armed force.2628 However, most of these authors do not accept that the Council could base a decision to authorise the use of force directly on Article 94, paragraph 2. It must be said that this provision (Article 94, § 2) is an autonomous basis for action by the Council. The action the Council selects does not depend on the situation qualifying under Article 39, nor does it depend on the Council’s powers under Article 41 or Article 42. The Council can legally take a binding decision even outside Chapter VII. In that case, the decision is based directly on Article 94, paragraph 2 and Article 25 of the Charter. Leading commentators have no difficulty in accepting that measures equivalent to those contemplated by Article 41 could be taken under Article 94,paragraph 2. On the other hand, they generally reject the idea of the use of military force being based directly on   Kerley, ‘As to Compliance with Judgments of the International Court of Justice’, above n 2562, 279.   See, eg Oellers-Frahm, ‘Article 94’, above n 2562, 171–72; Papa, above n 2562, 112–13. Schulte, above n 2562, 47; Kelsen, The Law of the United Nations, above n 2597, 721. 2627 2628

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Article 94, paragraph 2, unless the situation first qualifies under Article 39. In drawing this distinction, they in one case treat Article 94, paragraph 2 as autonomous, and in the other as not.2629 On this view, if the action is peaceful, Article 94, paragraph 2 operates autonomously; but in a case involving military action, Article 94, paragraph 2 cannot operate autonomously from Article 39. There is, however, no doubt that Article 94 – which nowhere refers to Chapter VII – is a completely autonomous basis for action by the Council. It is not concerned with the maintenance of the peace, but with the execution of the judgments of the UN’s principal legal organ. If the Council considers it necessary, it can decide on military measures to ensure execution on the sole basis of Article 94, paragraph 2.2630 This interpretation is also supported by the teleological perspective. It is justified by the decisive importance of a judgment of the Court, and of its execution (and, by extension, of the international law of which the Court is the guardian) for the whole international system. The forced execution of an important judgment against a recalcitrant and insolent State, which must inevitably threaten, at a sensitive moment, to sap the future credibility of the Court, can be perceived as an interest at least as important as violations of international humanitarian law which have already, in the past, motivated the Security Council to authorise the use of force. Obviously, military measures can be adopted in such a context only as a very rare last resort or ultima ratio, both from the political and the legal point of view. The contrary argument, to the effect that the Charter is a ‘pacific’ or even ‘pacifist’ instrument, intended to limit the use of force to the maximum possible degree, is misconceived. The Charter is in no sense a pacific or pacifist instrument. What it does seek to do is to limit, to the maximum possible extent, the anarchic use of force by Member States and self-proclaimed coalitions, by concentrating the power of armed coercion into the hands of the UN’s collective organs. The Security Council can use force in a very wide range of circumstances. One need think only of the discretionary words ‘threat to the peace’ in Article 39. In this respect, the Charter is not niggardly about permitting the use of force. At the end of the day, however, it must be admitted that the question under consideration here is largely a theoretical one. If the Council wishes to resort to force, it has the right to declare, in its discretion, that the failure to execute the particular judgment concerned constitutes a threat to the peace. This immediately brings the case within the ambit of Chapter VII. If indeed the Council can decide directly on the basis of Article 25 of the Charter, it might also invoke that Article, thus avoiding any debate about the sufficiency and autonomy of Article 94, paragraph 2. Legally, however, the latter is a sufficient basis, falling within the wide powers which the Charter confers upon the Security Council as, in effect, the ‘world’s policeman’. According to another formulation, the recognition of the importance of the judgment to be executed in the particular circumstances (by legal fiction equivalent to a threat to the peace) is implied in the Security Council’s conclusion that the use of force is necessary in the context of Article 94, paragraph 2. Seen in this light, the provision would be a kind of ‘colonist’ from Chapter VII, populating another Chapter of the Charter. But this interpretation (combining a degree of autonomy of Article 94, paragraph 2, with a degree of dependence of that provision on Article 39) does not seem to be legally necessary in order to achieve the result being justified here. 2629   In the view of Villani, Poteri . . ., above n 2562, 656, fn 37, such a distinction cannot be justified. It cannot be made solely on the basis that the powers deriving from Art 42 of the Charter are more serious ones. 2630   In the same sense see, eg R Bernhardt, ‘Article 59’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 1246.



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(6)  Voting in the Security Council Do measures adopted under Article 94, paragraph 2, represent a ‘procedural matter’ within the meaning of Article 27, paragraph 2 of the Charter, or are they ‘other matters’ within the meaning of Article 27, paragraph 3? In other words, can a permanent member use its veto against a decision under Article 94, paragraph 2? And can it do so, when it is, itself, the party that has failed to execute the judgment? (i)  On the first question, the overwhelming view of informed commentators is that this is a substantive question (an ‘other matter’). Indeed, the Council cannot confine itself to restating the obligations defined by the Court. It possesses, and exercises, an autonomous political choice as to whether it is appropriate to react, and how to do so. Article 27, paragraph 3, therefore comes into play, and so does the power of veto.2631 So, when seised of the Nicaragua case, the Security Council allowed the USA to exercise its veto, and thus to block any further action. It has been said that the absence of objections from within the Council indicates that the veto was considered legally applicable, and that this precedent thus provides a definitive answer to the question. But the absence of an objection does not carry that implication. It was not the result of considerations of principle, and did not reflect an opinio juris. The States represented on the Council thought it politically pointless to insist on the question of failure to comply with the judgment, given that the USA had made known its implacable opposition to the Security Council’s addressing the issue. The abstention of the other Council members, through their inaction, does not enable clear legal conclusions to be reached. All one can do, is to note that, in this case, the veto was indeed exercised. It is possible to argue, against the right of veto, that Article 94, paragraph 2 is merely the procedural extension, in cases of non-execution of judgments, of the obligation to comply with the judgment, as contained in Article 94, paragraph 1. From this perspective, the execution of the judgment would be a procedural matter within the meaning of Article 27, paragraph 2 of the Charter, and there would be no right of veto. The fact that the question concerns the execution of ICJ judgments could militate in the same sense. Such judgments are, per se, legally executory, no more and no less. The Council cannot, so the argument continues, in any sense make or exercise ‘policy’ of any kind in relation to a judgment of the Court. Article 94, paragraph 2 requires it to take only those measures of execution that are necessary in order to achieve the given result. From a teleological viewpoint, a vote on a final and executory judgment of the UN’s principal legal organ should not be allowed to lead to a range of possible bargains, with certain States having the power of veto.2632 Also, there is no evident reason why the views of major powers should carry great weight in relation to legal execution. So exorbitant a power can be justified only in the context of discretionary political measures, such as those taken under Chapter VII. The predominant interpretation, presented above, would also have the effect of using Article 94, paragraph 2 as a lever to get round Article 59 of the Statute, which, for its part, clearly indicates that the 2631   See, eg Oellers-Frahm, ‘Article 94’, above n 2562, 172; Papa, above n 2562, 122–23; Dubisson, above n 2503, 273; Kelsen, The Law of the United Nations, above n 2597, 541; Schulte, above n 2562, 54; Schachter, ‘Enforcement’, above n 2562, 23; Villani, above n 2629, 657; Kerley, ‘As to Compliance’, above n 2562, 281. 2632   One needs to take account of the fact that there is no such category as ‘procedural decisions’ or ‘nonprocedural (substantive) decisions’ per se. These two categories depend as much on teleological considerations as on actual practice, and actual decisions made. Each time, it is a question of whether it is appropriate to allow the veto, both legally and politically. Within the economy of the Charter itself, the proceduralist solution is clearly preferable.

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judgment is binding on the parties to the case. Conversely, it would obviously be appropriate to accept the veto when it is a matter of taking military measures, since in such a case it is a decision of great importance. It would also be possible to admit the veto in relation to any request for a delay in executing the judgment, or request that the winning State give up its rights under the judgment, that is, if the decision involves making an alteration to the Court’s judgment. On the other hand, however, there would be no right of veto in relation to simple requests for the execution of the judgment, accompanied by non-military measures, for in such cases the Council is confining itself to giving effect to the executory rights conferred by the Court’s judgment. These seductive conceptions fail to take adequate account of the incontrovertible fact that the execution of judgments is a matter of legal policy. The Council, heavily endowed with discretionary powers, the appropriateness of which might be questioned, is exercising a function which is not confined to the law, to the mechanics of execution, without contributions and additions of its own. Forcible execution involves delicate social and political decisions. In the face of this reality, it is, as the practice tends to suggest, probably impossible to avoid the application of Article 27, paragraph 3 which implies the power of veto. This is yet further testimony to the primacy of the ‘political’ over the ‘legal’ in the way the Charter is constructed. From a certain point of view this is eminently to be regretted, but from another point of view it is understandable. The human realities with which the law is concerned are not linear ones: they are heavily laden with tensions of various kinds. (ii)  The second question concerns the duty to abstain, provided for in Article 27, paragraph 3 of the Charter, in the following words: ‘in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting’. This rule clothes in concrete form the general principle of justice to the effect that nobody can, in the last resort, be judge in his own cause (nemo iudex in causa sua). This principle applies a fortiori when the proceedings are judicial ones.2633 From a general point of view, it does seem unacceptable for a party which is under an obligation to execute a judgment, and possesses a veto, to be able to feel relatively sure of never having to comply with the judgment, knowing that it can use its veto. It is almost as if the Court’s judgment was rendered subject to the right of veto, or, in other words, as if the veto was imported into the judgment. In that case, the veto would be being used for objectives quite other than those for which it was intended. It would very clearly amount to an abuse of power.2634 What is the position in this regard under positive law? In the absence of any really significant practice (Article 94, § 2 has very rarely been applied), leading commentators are divided. First line of reasoning. Those who take a formalistic line argue that the exception in the last part of Article 27, paragraph 3 which should, since it is an exception, be interpreted strictly, does not apply. The Article in question does indeed confine it to Chapter VI and Article 52. But Article 94, paragraph 2 falls within Chapter XIV. Hence an a contrario argument, to the effect that the rule on abstention does not apply.2635 But it would be easy to get round this solution if the State concerned simply seised the Council under Chapter VI, or if the Council itself took action (perhaps concurrently) on the basis of that Chapter. One might   See the Mosul case, PCIJ, Series B, no 12, 29 et seq.   ie that it would be right for the duty of abstention to apply as stipulated in Art 27, § 3 of the Charter, given that the judgment of the Court relates to the settlement of disputes. 2635   Papa, above n 2562, 124–25 (with regret). 2633 2634



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well ask whether the right to vote ought to depend on such a distinction, which, all in all, is a fairly artificial one, especially when the Council is known for its propensity to act on the basis of cumulative competences, and sometimes to seem to run them together in a rather fluid way.2636 Second line of reasoning. A differing view amongst authoritative commentators, probably indeed the majority view, has it that the answer depends on the real function the Council is exercising under Article 94, paragraph 2. In a sense, it is necessary to pierce the veil presented by that provision. If the Council is exercising the function of resolving disputes, by seeking to suggest practical solutions that will make possible the execution of the judgment, the exception under paragraph 3 ought to apply, because, from a functional perspective, it falls within Chapter VI (an analogy intra legem). If, on the other hand, the Council is exercising a function of imposing sanctions, using powers arising under Chapter VII, the exception under paragraph 3 will not apply, and the State directly concerned by the judgment will be entitled to vote.2637 Third line of reasoning. According to yet another analysis,2638 clearly a minority view, the duty of abstention under paragraph 3 is not a true exception, but rather reflects a general principle, to the effect that no-one should be allowed to be judge in his own cause. One ought therefore to interpret its scope liberally. In concrete terms, all non-military measures adopted by the Security Council, taken for the purpose of getting the judgment executed, would constitute methods of resolving the ‘dispute’ over execution. Such provisions for resolution are exceptionally binding, because they are based on Article 94, paragraph 2. There would thus in this context be binding ‘dispute resolution’. From the teleological point of view, the duty of abstention must then apply, since we are dealing with resolution of disputes. Indeed, Article 27, paragraph 3 imposes the duty of abstention not because resolutions adopted under Chapter VI are non-binding, but because the Council’s function is materially ordered around the resolution of a dispute. Only this interpretation would make it possible to give full force and effect to Article 59 of the Statute and Article 94 of the Charter. It is also possible to make a concession as regards cases in which military action is taken to compel execution, the concession being not to apply the duty of abstention in such cases. This concession could be based, not on considerations of principle, but rather on the political gravity of the decision and on reasons of practicability. Or, as a matter of principle, it could be based on the fact that taking military measures is not ‘dispute resolution’ but action equivalent to Chapter VII-action, where the duty of abstention does not apply. From the perspective of the law, the first solution must be rejected. As between solutions 2 and 3, the second is the more assured of the two, and the third is somewhat on the bold side. From the perspective of the principles of justice, to which positive law must 2636   It has, moreover, been noted that the formalistic analysis presented above leads to results that are absurd and unreasonable (Oellers-Frahm, ‘Article 94’, above n 2562, 173): ‘[It would lead] to the inconsistent result that in the less serious case where non-compliance with a judgment does not endanger international peace or security and the Security Council is seised on the basis of Art 94, para 2 of the UN Charter, the State concerned could veto any action of the Security Council, while in the more serious case where non-compliance with the judgment is likely to endanger the international peace and security, the State concerned has to abstain from voting, recourse to the Security Council is taken under Chapter VI and not under Art 94, para 2 of the UN Charter.’ 2637   Oellers-Frahm, ‘Article 94’, above n 2562, 173; Kerley, ‘Ensuring’, above n 2631, 124. 2638   R Kolb, Ius contra bellum, Le droit international relatif au maintien de la paix, (Basle/Brussels, 2003) 138.

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endeavour to give expression, the third solution is the best one.2639 It does the most to give effect to the maxim that no-one must be judge in his own cause. The Security Council’s practice is too thin as regards this question – and indeed as regards many other questions relating to Article 94, paragraph 2 – to be of any assistance. All one can do is to note that the USA used its veto to prevent any implementation against it of the Nicaragua judgment of 1986, and that this attitude was not greeted by protests from the other members of the Council. In sum, the second line of argument seems the most assured in terms of positive law, the third line of reasoning at least the better de lege ferenda. (7)  Competences of the General Assembly As in the fields of international peace and security, so, in relation to the execution of the Court’s judgments, the Security Council’s competence is not an exclusive one. The General Assembly too may intervene. The Assembly was seised by Nicaragua when it failed in its approach to the Council to get the Court’s judgment of 1986 executed. The Assembly gave its consideration to the Nicaraguan request, and, by Resolution 41/31 (1986), called upon the USA to execute the judgment. The USA did not comply. Under Article 12, paragraph 1 of the Charter, the Assembly must defer to the Security Council when it is seised of the question. Indeed, the Council has an explicit competence set out in Article 94, paragraph 2, and the principal organs of the UN owe each other duties of mutual respect. It should be noted, however, that subsequent UN practice has tended to weaken the scope of Article 12, paragraph 1. The Assembly has not always respected or applied it. The overwhelming majority of Member States have confirmed this more flexible conception. As we have already seen, the Assembly can propose the same measures as the Council. Articles 10 and 14 of the Charter give it a very general competence in this regard. Recommendations before the Assembly are voted upon by simple majority under Article 18, paragraph 3 of the Charter. The questions of concern here are not to be found amongst the list of ‘important questions’ under paragraph 2 of that Article 18. Can the Assembly recommend the use of military force, in reliance upon Resolution 377(V) ‘Uniting for peace’2640 If in general one accepts this competence of the Assembly, it is difficult to see why the Assembly should not exercise it in this context too, subject to satisfying the procedural and substantive requirements laid down in that Resolution.2641 The two-thirds majority requirement under Article 18, paragraph 2, applies here, given that the question (maintenance of the peace) is an ‘important’ one. Can the General Assembly also recommend recourse to the use of force against a permanent Member of the Security Council, or must it, by a kind of analogy, respect such a Member’s power of veto? It must be admitted that the question is a rather theoretical one, since it is difficult to imagine the Assembly recommending the use of force against a permanent Member, which would virtually amount to unleasing a kind of World War III. An   See in this regard the small but remarkable book of K Larenz, Richtiges Recht (Munich, 1979).   In the negative, see, eg Azar, above n 2562, 174–75. As to this Resolution, one should refer on this point to the specialist literature, especially the commentaries on the UN Charter. 2641   It should be noted, however, that since the Korean War of the early 1950s, the Assembly has never again invoked this Resolution to recommend the use of force. We need not necessarily conclude that it has fallen into desuetude, but one does have to note that a recommendation of that kind sits uneasily with the current practice of the UN, and would risk upsetting the institutional balance and giving rise to delicate political and legal problems. 2639 2640



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organ of the UN could not take on such a responsibility, and certainly not for the purposes of executing a judgment of the Court, however great the importance of that judgment might be. From the point of view of principle and of law, however, the Assembly votes according to its own rules. The veto does not apply there, either directly or by analogy. Most leading commentators think that the Assembly can only recommend measures, in conformity with its general powers under Articles 10 and 14. It is, however, permissible to wonder whether a resolution confined to demanding the execution of the judgment, without making any alterations to it, might not be binding in re ipsa, that is, in substance, even if not in formal terms. Even though emanating from the Assembly, it would add nothing to the requirements of Article 94, paragraph 1, of the Charter. Article 94, paragraph 1, is binding on all Member States of the UN. A Resolution reminding them of it must therefore likewise be binding, by reason of its contents. From another point of view, resolutions altering the conditions for the execution of a judgment (such as suggestions for delaying execution, recommendations that a State give up rights under the judgment and so on), to the extent that they are admissible at all, could be no more than recommendations, since they derogate in part from the provisions of Article 94, paragraph 1. (8)  Practical Results of Article 94, paragraph 2. The practice under Article 94, paragraph 2 of the Charter is both very thin and not very enlightening. Indeed, in the overwhelming majority of cases, the Court’s judgments are spontaneously executed by the parties. All the judgments of the PCIJ were executed, albeit sometimes following difficult negotiations. That is a remarkable outcome from the fairly troubled inter-war years. It shows how far the expectations of the man in the street can be mistaken because of unjustified a priori suppositions. These were the judgments of a tribunal which had no police to carry them out, and whose deliberations, armed only with a corpus of law both weak in itself and containing numerous lacunae, in a period of severe political tension – and yet all these judgments were finally implemented! The Court’s purely consensual jurisdiction certainly played a large part in achieving this result. At the ICJ, this excellent record continues, albeit tinged by a number of shadows. A small number of judgments have not been implemented, or have been implemented only after considerable delays (see below, section (d). This cannot be said, however, of the ICJ’s Orders indicating provisional measures. For a long time, the implementation of these Orders was thoroughly patchy. In fairness to the States that were parties to cases before the Court, it must, however, be emphasised that the binding character of such measures was a thoroughly controversial question until 2001. States could therefore legitimately take the view that they under no binding obligation to comply. It is too early to know whether the level of compliance has significantly improved since the Court stated that such measures were legally binding on States. There have been very few cases in which the Security Council has been seised of failures to execute Court rulings. The UK seised it in the context of the Anglo-Iranian Oil case (1951/1952). This gave rise to a major diplomatic imbroglio between the UK and Mossadeq’s Iranian government. However, the Court finally declared itself to have no jurisdiction. The request to the Security Council for the execution of the Court’s provisional measures in this way became devoid of any object. In the case on Military and paramilitary activities in and against Nicaragua (1986), Nicaragua won its case before the Court. When the USA, the losers, refused to execute the

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judgment, Nicaragua took the issue to the Security Council. There, the USA used its veto to stop the proceedings. Subsequently, the Nicaraguan government of Violeta Chamorro, which had replaced the Sandinistas, withdrew its demand for the execution of the judgment, doing so under pressure from the USA and with a view to normalising its relations with its much more powerful neighbour. Whatever the merits of the Court’s decision in the eyes of the USA, its use of the veto was a clear case of an abuse.2642 When they agree to participate in the system of the Statute, States assume the risk of having to comply with Court’s judgments rendered against them, even when they consider the judgments subjectively unjust. They give their word, and they are under an obligation to keep it. If they consider it impossible to do that, they should simply remain outside the system of the Statute. No State is obliged to submit to the Court’s jurisdiction, which is purely optional. But to participate in the system, to give one’s word, and then go back on it when a case goes against one and the judgment comes up for execution, is to send a fatal signal to all other States, and gravely damages the system of international justice, with all the dangerous consequences that follow in a world which is already all too prone to descend into anarchy. Contrary to the numerous and subtle legal questions that arise in relation to the interpretation of Article 94, paragraph 2 in the context of the law of the Charter, its practical significance, and the number of precedents it has thrown up, consequently remain very marginal. The Security Council has never exercised its powers under Article 94, paragraph 2, to get a judgment forcibly executed. No doubt this is something we should be pleased about. As with all provisions for sanctioning failures to comply with the law, it is preferable that the occasions for applying such sanctions are few and far between. In conclusion, it should be noted that Articles 33 and 39 of the Charter confer political functions on the Security Council, not necessarily connected to breaches of legal obligations. Article 94, paragraph 2 is the only provision of the Charter which gives the Council the role of a guardian of the law, with the function of sanctioning internationally illegal acts. The fact that, under the Charter, the Council enjoys, in this field, powers almost as discretionary as its powers in relation to its majority ‘political functions’, is of some discomfort to lawyers. It gives all the more reason to insist on the rule that the Council is not entitled to attack the res judicata of a judgment by erecting itself into a de facto tribunal of appeal from the Court.

d)  Overview and Perspectives The ICJ (and the PCIJ) has been judging cases for almost 90 years. Clear cases of nonexecution have occurred only four or five times out of more than a hundred cases. This is not just creditable, but remarkable. The PCIJ, and now the ICJ, have been courts of justice administering a system of law that is both darkened and straightjacketed by jealous national devotion to sovereign freedom of action, and by the associated power politics; a jurisdiction which, moreover, is not blessed with any viable or regular police arm to see to it that its judgments are executed. Against this background the ICJ’s record is little short of astonishing; it would be the envy of many national tribunals. The record is, moreover, even more surprising when we consider the nature of international disputes. Unlike the great majority of disputes under municipal law, international ones are unequalled for their com  On this important precedent, see Tanzi, above n 2562, 539 et seq.

2642



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plexity, scope and diplomatic delicacy. A territorial dispute, often relatively minor but sometimes major, will frequently pit powerful interests against each other, even including the fate of whole peoples. The judicial task involves the evaluation of legal rights and titles that often stretch back over centuries, and sometimes cover vast territories. The operative part of the judgment sometimes has to fix a boundary hundreds of kilometres long, by the aid of approximate coordinates, reflecting the principles and rules that explain the Court’s decisions and on which it relies. It is easy to see that the implementation of such a judgment is not a simple and automatic matter, but will demand very substantial efforts. In such a case, the Court’s judgment will be only one step, albeit a highly significant one, on the long journey towards resolution of the dispute. It will sometimes take several years to translate the judgment into a concrete reality by drawing the exact line of the boundary, demarcating it, adopting appropriate legal regimes to safeguard the rights of the populations that are ‘changing sides’ and so on. A comparison between a judgment of this kind and the decision of a municipal tribunal is likely to be an inadequate. As already noted, the cases in which the Court’s judgments have definitely not being complied with can be counted on the fingers of one hand.2643 In the Corfu Channel case (1949), the Court had awarded reparations to the UK. Albania refused to comply with the judgment, having already disputed the Court’s jurisdiction. However, a little over 40 years later, when Albania was coming in out of its Communist period, the persistence of the UK was rewarded by the signature of an agreement on 8 May 1992.2644 The agreement required the payment by Albania of the indemnity owing to the UK, which the latter was able to recover from the monetary gold that was to be restored to Albania. This precedent shows, in a very flexible way, that ‘international time’ does not necessarily pass at the same speed as the time of individuals.2645 It passes more slowly, like the time of any great assemblage, and indeed like the time of the universe itself. The execution of this judgment took several decades, but in the end it was certainly executed. Although the Corfu Channel case was long considered the outstanding example of an unexecuted judgment, it has now been recategorised so as to feature in the long list of judgments that have been implemented. It was formerly possible to say, as regards this case, that the new Court, compared with the PCIJ, had ‘begun badly’; but we can now add that although it began badly it ‘ended well’. In the case of the Temple of Preah Vihear, the Court’s judgment of 1962, though initially rejected by Thailand, was eventually executed the following year. There was renewed friction over the Temple in 2009, when UNESCO listed it as a World Heritage Site. In the Fisheries cases (1974), the Court’s judgments, despite being conciliatory in nature, in the context of a developing branch of the law, were rejected by Iceland. The foremost content of these judgments was a duty on the parties’ part to negotiate on the basis of certain fairly general legal indications provided by the Court. The judgments were finally outflanked by the adoption of the United Nations Convention on the Law of the Sea, in 1982. In the case on the Diplomatic and consular personnel of the United States at Tehran (1980), following Iran’s high-handed refusal of the judgment, execution did not follow immediately. Nevertheless, 2643   For a summary view of the follow-up of a number of the Court’s judgments, see the very useful table devised by Azar, above n 2562, 297 et seq. 2644   See (1993) 97 RGDIP, 270 and BYIL, vol 63 (1992) 781. See M Waibel, ‘Corfu Channel Case’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, vol II (Oxford, 2012) 795. 2645  Similarly, in a case of rather secondary importance on Sovereignty over certain frontier land, between Belgium and the Netherlands, the judgment given in 1959 was not implemented until an agreement of 26 April 1974, recording that the boundary had been delimited in conformity with the Court’s judgment. Here, then, there was a 15-year wait before the question was finally resolved.

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the hostages were in the event freed fairly speedily, and an overall agreement was signed at Algiers on 19 January 1981. The most flagrant case of obstinate and impenitent refusal to execute a judgment was that of the USA in the case on Military and paramilitary activities in and against Nicaragua (1986). Nicaragua in 1991 finally renounced its claims, following pressure from the USA and a change of Government in Managua. In the Jan Mayen case (1993), an agreement was signed between the parties on 18 December 1995, by which they adopted a line of delimitation on the basis of coordinates that were different from those contained in the Court’s judgment. However, this need not be seen as a rejection of the judgment or a failure to execute it, or even necessarily as the exercise of the parties’ right to make a subsequent and different agreement disposing of the rights that the judgment identified as belonging to the respective parties. The parties did not depart from the principles underlying the Court’s decision. They simply determined, in a more concrete manner, the coordinates appropriate to give effect to that decision. Moreover, the coordinates determined by the Court in paragraph 93 of its judgment were not elements of the operative part of the judgment, and consequently were not invested with the force of res judicata. It is still too soon to comment on the manner in which certain other recent and quite delicate judgments will be executed. Overall, then, the record on executing ICJ judgments is an excellent one. That does not mean, however, that things will necessarily stay that way. There are clouds on the horizon. Above all, there is an ever more marked tendency to seise the Court of disputes that are issues of high politics, often setting at odds States with weak political structures, and concerning violations of international humanitarian law and the use of force. One such example was the case on Armed activities in the territory of the Congo (2005). In other cases, the primary objective has been to embarrass an opponent, the Court being seised of the case more so that the initiating State can take advantage of the case’s international resonance, allowing it to ventilate its grievances, than in a genuine attempt to resolve a dispute. Dispute resolution is not just a matter of seising the Court; it also requires an appropriate state of mind. Further consideration will be given, in a later chapter, to these tendencies, which give rise to certain dangers. At present, it is sufficient to note that if they continue to gather strength, these tendencies cannot fail to lead to unfavourable developments as regards the numbers of judgments that are duly executed. The execution of judgments in the context of collapsing or ‘failed’ States, embroiled in civil war, or that simply do not have the state of mind that is appropriate to the peaceful and constructive resolution of disputes in a particular context, cannot fail to give rise to distress and disappointment. The Court can try to limit these dangers, by being particularly careful about jurisdiction and admissibility, and taking other practical steps available to it. But its room for manoeuvre is very limited in this field. The Court bases its decisions on law, and, except to a very limited extent, cannot lend itself to ad hoc manipulations of its jurisdiction or of a claim’s admissibility, even for reasons of judicial policy. The responsibility rests primarily with the States: they should not be seising the Court of requests that are ill-adapted to its jurisdiction and prestige. One further point deserves emphasis. Given the considerable difficulties that complex and detailed judgments can run into in execution, the absence of technical and legal resources in numerous States, particularly in developing countries, and the fact that the Court is ever more frequently being seised of highly politicised disputes, it is scarcely sufficient simply to reaffirm the existence of a duty to execute judgments, and the powers of



THE COURT’S COMPETENCE AS AN ‘APPELLATE’ BODY 863

the Security Council to adopt measures of forced execution. The system needs to be taken further, the political organs of the UN and the other organisations affiliated to the UN system need to work together to follow up the Court’s judgments by systematic monitoring. Such an oversight role might be given primarily to the Security Council, working in cooperation with the other bodies and organisations. It would involve giving assistance in various ways to ensure that judgments are implemented,2646 which could be done by establishing technical missions and observer groups, by financial measures, by the concerted negotiation of implementation agreements and so on. Experience demonstrates the clear need for this kind of process. It is very rare for a State to flatly refuse to execute a judgment, rejecting it out of hand. On the other hand, one much more frequently finds that delays and faint-heartedness in the execution of judgments result, as leading commentators have emphasised, from the objective difficulties that parties encounter when left to their own devices after the judgment has been given.2647 In this regard, implementation of the judgment must no longer be seen as a purely bilateral duty and interest, but quite the reverse, as a collective interest in which, in order to give full meaning to the peaceful judicial resolution of disputes, a hand needs to be taken by all the organs of the UN, first and foremost by its executive arm, meaning the Security Council.

25.  THE COURT’S COMPETENCE AS AN ‘APPELLATE’ BODY (SUPERVISORY JURISDICTION)2648

a)  General Points, including Typology In formal terms, the Statute gives the Court no more than an original jurisdiction: parties submit their legal disputes to it directly for rulings. The Court is not designed as a supreme 2646   Papa, above n 2562, 139 makes his point very well: ‘[I]n materia di esecuzione delle sentenze internazionali, più che una riconsiderazione del profilo “sanzionatorio” delle relazioni Corte-Consiglio, disciplinato specificatamente dall’art. 94, par 2, della Carta, si renderebbe necessaria una rivalutazione dell’aspetto relativo alla collaborazione e all’assistenza tra i due organi in vista della creazione di un contesto in cui l’attuazione della decisione dell’organo giudiziario risulti in un certo senso “agevolata”’. [‘In relation to the execution of international judgments, even more necessary than a reconsideration of the sanctions-related aspects of the relationship between the Court and the Council, governed specifically by Article 94, paragraph 2 of the Charter, would be a reevaluation of the way the two bodies work together and assist in each other with a view to the creation of a context in which the concretisation of the Court’s judgments would in a certain sense be facilitated’] (our translation). See also, Azar, above n 2562, 109 et seq. 2647   Guillaume, ‘Enforcement of Decisions of the ICJ’, above n 2562, 279. 2648   See, MO Hudson, The Permanent Court of International Justice, 1920–1924. A Treatise (New York, 1943) 430–33; M Dubisson, La Cour internationale de Justice (Paris, 1964) 121–22; A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 170–71, 542–43, 1277–78; H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’ in BYIL, Part Nine, vol 69 (1998), 57 et seq.; S Petrén, ‘La Cour internationale de Justice comme juridiction de recours’ (1975) 14 Comunicazioni e studi 687 et seq.; WM Reisman, ‘The Supervisory Jurisdiction of the ICJ: International Arbitration and International Adjudication’ CCHAIL, vol 258 (1996) 9 et seq.; KH Kaikobad, The ICJ and Judicial Review: A Study of the Court’s Powers with respect to Judgements of the ILO and UN Administrative Tribunals (The Hague, 2000); MS Amr, The Role of the International Court of Justice as the Principal Judicial Organ of the United Nations, (The Hague/London/New York, 2003) 341 et seq. See also, specifically on the PCIJ, RV Caballero de Bedoya, ‘Etat actuel de la question de la CPJI considérée comme instance de recours’ (1932) 10 Revue de droit international, de sciences politiques et diplomatiques, 142 et seq.; R Erich, ‘La CPJI comme instance de recours’ (1930) 1 Acta Scandinavica Juris Gentium, 25 et seq.; R Erich, ‘Le projet de conférer à la CPJI les fonctions d’une instance de recours’ (1931) 12 RDILC 268 et seq.; SB Jacoby, ‘The Permanent Court of International Justice as a

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tribunal, presiding over a court system cemented together by a network of appeals from lower courts to higher ones, nor is it designed to oversee and control the legal acts of administrative bodies or other public organs. The Court’s jurisdiction is always, in this sense, an ad hoc and an original one, designed to deal with concrete inter-State disputes without connections with other tribunals. Inter-State disputes can be brought before it only by consent of the States directly concerned. Moreover, the Court itself is supreme in this sense, that its judgments are not susceptible to appeal. Despite these facts, commentators have categorised certain of the functions exercised by the Court as, variously, ‘appellate’, ‘second instance’ or ‘supervisory’ jurisdictions. We should start by considering the meanings of these expressions in the municipal systems. The ‘appellate’ aspect involves a court in a complete rehearing of the case, which distinguishes it from what civil lawyers call courts of ‘cassation’. The ‘complete-rehearing’ type of appeal, familiar enough to common lawyers, involves the court’s re-examining all the aspects of cases before it; if necessary, it hears witnesses again. It takes cognisance of the law,2649 the facts and the evidence in a manner which, in principle, is equal to that of the court of first instance. In such an ‘appeal’ there are only marginal limitations or alterations to the procedure at first instance. By contrast, what civil lawyers call ‘cassation’ (and the distinction itself is well understood by civil lawyers) involves an appeal purely on the documents, and is concerned solely with errors of law committed by the court below. The matters of which the appeal court can take cognisance in such circumstances are frequently quite limited. In extreme cases, the appeal court is confined to deciding whether the error of law is a flagrant one, or whether the lower court’s assessment of the facts has been arbitrary. If such an appeal succeeds, the case is sent back to the lower court with an explanation as to the respects in which that lower court erred. In light of these conceptual distinctions, it has to be said that ‘appeals’ to the ICJ do not belong wholly in either of these legal categories, which are really appropriate to municipal legal systems, where there are hierarchies of different courts and tribunals. Nevertheless, the mechanisms for ‘appeals’ to the ICJ are more akin to cassation than to complete rehearings. First, we are not dealing here with appeals at all, in the technical sense of the word, since the Court does not substitute itself for the procedures of a lower court and re-run an original trial. The matters of which the ICJ takes cognisance on so-called ‘appeals’ are not as extensive as those taken into consideration by the body whose original decision it is, so to speak, ‘reviewing’ or controlling. Nor, however, does the ICJ behave like a court of cassation. The case is not necessarily confined to written documents, and questions of fact are not necessarily excluded. In formal terms, the ICJ does not send cases back to ‘lower’ courts, since there are no direct connections between the ICJ and any court or other tribunal that is part of a municipal or other legal system. It is certainly the case, however, that recourse to the ICJ for the purpose of disputing the legality of the act of another body, does, in many respects, approach the spirit of an appeal for ‘cassation’. As a general rule, the Court considers only the errors of law that are said to have been committed, and its cognisance of the original Court of Appeals’ (1935/36) 22 Virginia Law Review 404 et seq.; H Lauterpacht, ‘The Permanent Court of International Justice as a Court of Appeal’ in BYIL, vol 15 (1934) 141–42; A Raestad, ‘Le recours à la CPJI contre les sentences des tribunaux d’arbitrage internationaux à cause de l’incompétence ou excès de pouvoirs’ (1932) 13 RDILC 302 et seq.; S Rundstein, ‘La CPJI comme instance de recours’ CCHAIL, vol 43, 1933-I, 5 et seq. 2649   The expression ‘cognisance’ here denotes the grievances which the Court hears and the intensity with which it exercises its appellate role, whether summarily, prima facie, on the balance of probabilities, through the control of arbitrary action, total review or whatever.



THE COURT’S COMPETENCE AS AN ‘APPELLATE’ BODY 865

materials is limited accordingly; it does not substitute its own assessment for that of the ‘lower’ body; if the legal act or decision it is considering is held to be invalid, or if there is found to have been a legal error deserving of censure, the Court finds accordingly, and then leaves it to the requesting body to draw the appropriate conclusions of law. This means, in short, that ‘control’ or ‘oversight’ by the Court is of a limited kind. It is fairly typical of the kind of oversight exercised by constitutional or supreme courts in municipal systems. The common law expression ‘supervisory jurisdiction’ is in truth more appropriate here than the misleading word ‘appeal’ (albeit the latter is, at least in the French language, the nearest approximation to the process); but it is also more wide-ranging. A supervisory jurisdiction can be hearing ‘appeals’ in the sense explained below, but it can also assist in a variety of other ways, with a view to ensuring the proper functioning of other proceedings, and in particular, of arbitration proceedings. It may, for example, become necessary to nominate an arbitrator, and the President of the ICJ can do that. Or, if there is a dispute as to whether an arbitrator has jurisdiction, it may be necessary to decide that point; it may be necessary to decide, in a particular case, what consequences flow from a party’s failure to implement the terms of an agreement requiring a dispute to be sent for arbitration and so on. In relation to such second-degree disputes, recourse to the Court presents considerable advantages over recourse to ad hoc arbitration. Such arbitral arrangements are not permanent or institutionalised. They are immediately blocked if one of the parties withdraws its cooperation. By contrast, the Court, thanks to its permanence, and to its status as the principal judicial organ of the United Nations, can intervene in such cases, giving its support to the arbitration process, and endeavouring to salvage it. In contexts such as these, the Court is not always truly acting in an ‘appellate’ capacity. Sometimes it is little more than a simple auxiliary, palliating the effects of lacunae and operational deficiencies. As itself a ‘third party’, to which States have the possibility of turning for help in unblocking such situations, the Court acts as a kind of ‘supervisory’ body, ‘appellate’ perhaps, but only in the broadest possible sense of the term – as one ‘appeals’ for assistance. In that sense, the word ‘supervision’ has the advantage that, interpreted broadly, it is easier to see it as covering the full range of the ICJ’s possible interventions. There is a further difficulty when it comes to considering these categories, as is already apparent above. This further difficulty arises from the fact that the ICJ does not carry out any particular kind of ‘control’ or ‘supervision’: in fact, it carries out a great number of them. Each of them, whether already acknowledged in positive law or simply proposed by leading commentators, possesses its own particular characteristics and necessitates particular means of implementation. At bottom, the connections between these various types of ‘appeal’ are highly tenuous, while the differences between them are, by contrast, sharply defined. It is therefore valuable to consider the various types of proceeding, and to distinguish at least four of them. 1) Special reference to the ICJ under a text governing the activities of an organ of the United Nations or affiliated organisation. A typical example relates to Articles 842650 and 2650   ‘If any disagreement between two or more contracting States relating to the interpretation or application of this Convention and its Annexes cannot be settled by negotiation, it shall, on the application of any State concerned in the disagreement, be decided by the Council. No member of the Council shall vote in the consideration by the Council of any dispute to which it is a party. Any contracting State may, subject to Article 85, appeal from the decision of the Council to an ad hoc arbitral tribunal agreed upon with the other parties to the dispute or to the Permanent Court of International Justice. Any such appeal shall be notified to the Council within sixty days of the receipt of notification of the decision of the Council.’

866  CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES

862651 of the Chicago Convention of on Civil Aviation (1944). These Articles allow States which are parties to the International Civil Aviation Organization (ICAO) recourse against decisions of the Organization’s Council if the recourse is taken within a specified time. The recourse is not against the Council itself, but against the other State party to the dispute the Council has decided. It was under Article 84 of the Chicago Convention and Article II of the International Air Services Transit Agreement (1944) that India ‘appealed’ against a decision of the ICAO. The Court decided this dispute in a judgment entitled Appeal Relating to the Jurisdiction of the ICAO Council (India v Pakistan, 1972).2652 The substantive issues involved were as follows. India had suspended overflying rights of Pakistani civil aviation following the hijacking of an Indian aircraft to Pakistan. Pakistan seised the ICAO Council of an objection to this decision, and was then faced with an Indian preliminary objection, to the effect that the Council had no jurisdiction in the matter. The Council rejected that objection, and found that it had jurisdiction. India considered that finding to be illegal and a nullity. It took its case to the ICJ, as authorised by the provisions cited above. 2) Recourse in arbitration cases. As regards arbitrations, the ICJ can be requested to intervene either prior to the arbitration (equivalent to a midwife), or subsequently to it (equivalent to a Spartan ephor). These matters can be taken to the ICJ either under particular provisions agreed in advance,2653 or under an ad hoc (or, more precisely, post hoc) agreement. Arbitrations which are themselves ad hoc have no institutional permanence, and therefore, until the award has been handed down, the arbitrator enjoys few means of dealing with failures by a party to cooperate in the necessary way. The question can arise whether a tribunal constituted in a certain manner in fact has jurisdiction. It can be a delicate exercise to follow the general rule on jurisdiction as to jurisdiction, applied by the arbitrator himself, if and to the extent that his authority on that very question is disputed. In such cases, the ICJ can, if recourse is had to it, chart a passage through the difficulty.2654 Similarly, a party can refuse to nominate arbitrators, with the result that the arbitral tribunal is not constituted and cannot act. The ICJ can be called in to try to unblock the situation by sanctioning the obligations of the defaulting State.2655 The position is similar after the arbitral award has been handed down. One side may claim that it contains grave defects, perhaps saying that the arbitrator has exceeded his powers, or that the award is a nullity on some other generally recognised ground. One possibility is to constitute a new tribunal to consider this question, since 2651   ‘Unless the Council decides otherwise any decision by the Council on whether an international airline is operating in conformity with the provisions of this Convention shall remain in effect unless reversed on appeal. On any other matter, decisions of the Council shall, if appealed from, be suspended until the appeal is decided. The decisions of the Permanent Court of International Justice and of an arbitral tribunal shall be final and binding.’ 2652   ICJ Reports 1972, 48 et seq. 2653   This relates particularly to pre-war agreements. Thus, for example, Art 21 of the 1938 agreement on the European Commission on the Danube conferred upon the PCIJ the power to decide questions as to the jurisdiction of an arbitral tribunal constituted by the parties to resolve a dispute as to management of the river, and, in certain cases, to exercise a jus evocandi: League of Nations Treaty Series, vol 196, 113. By a Treaty of 1930, Czechoslovakia, Hungary, Romania and Yugoslavia recognised the right to appeal to the PCIJ against any judgment given by a mixed arbitral tribunal functioning bilaterally between them, in any proceedings other than ones concerning the subjects indicated in Art 1 of the Treaty: League of Nations Treaty Series, vol 121, 80. Similarly, certain treaties have provided for a right of recourse against arbitration awards, eg Art 6 of a Protocol of 1934 between Colombia and Peru (League of Nations Treaty Series, vol 164, 21). See Hudson, above n 2648, 430–33. 2654   See the case of the Interpretation of the Greco-Turkish Agreement (1928), PCIJ, Series B, no 16. 2655   See Reisman, ‘The Supervisory Jurisdiction of the ICJ’, above n 2648, 71 et seq, 147 et seq. See, eg the Peace Treaties cases (ICJ Reports 1950, 65 et seq., 221 et seq.), Ambatielos (ICJ Reports 1952, 28 et seq.) and Applicability of the obligation to arbitrate (ICJ Reports 1988, 12 et seq.).



THE COURT’S COMPETENCE AS AN ‘APPELLATE’ BODY 867

it amounts to a new dispute. However, it is also possible to take it the question to the ICJ. This happened in the case on the Arbitral award by the King of Spain of 23 December 1906 (1960)2656 and the case on the Arbitral award of 31 July 1989 between GuineaBissau and Senegal (1991).2657 The ICJ is sometimes seised of cases concerning the non-execution of arbitral awards for reasons other than that the award is disputed: if, for example, the non-complying State is in grave financial difficulties. This was the position of Greece in the case on the Société commerciale de Belgique (1939).2658 The Court can also be asked to review the acts of municipal tribunals. 3) Advisory opinions relating to international public administration. Since the days of the League of Nations, there have been administrative tribunals entrusted with the task of hearing disputes between officials and the organisation employing them, about their respective rights and obligations under contracts of employment and other relevant texts. Their decisions can give rise to various disputes if serious legal errors are alleged to have been made, and the question then arises whether there should be some available recourse. For a long time, the ICJ was the only ‘appellate’ body from the UN’s two main administrative tribunals, namely the administrative tribunal of the ILO (ILOAT)2659 and the UN administrative tribunal (UNAT). Such ‘appeals’ took the form of requests by the UN General Assembly for advisory opinions. The first important advisory opinion in this field was that on the Judgments of the Administrative Tribunal of the ILO upon complaints made against UNESCO (1956).2660 At that time it was already considered iniquitous that only the UN itself, through the General Assembly, had this right of recourse, and not the aggrieved official, who had neither the right to seek an advisory opinion nor the personal locus standi in judicio in the proceedings, allowing him to present his views directly to the Court. Resolution 957(X) of 1955 therefore created the Committee on Applications for Review of UNAT judgments. This body’s function was to filter would-be ‘appeals’ by officials against tribunal judgments. This particular mechanism concerns only the UNAT, over which the UN had direct authority. The jugements of the ILOAT remain definitive, and only an organisation affiliated to it can initiate the review procedure, by seising the ICJ of a request for an advisory opinion on the validity of the tribunal judgment.2661 The Court has rarely been seised under this mechanism, whether of ‘appeals’ from the UNAT, or under the slightly more even-handed ILOAT procedure. As regards the ILOAT, only one request has so far resulted in the delivery of an advisory opinion:2662 that request was made in   ICJ Reports 1960, 192 et seq.   ICJ Reports 1991, 55 et seq. 2658   PCIJ, Series A/B, no 78, 160 et seq. 2659   To whose jurisdiction numerous international organisations are affiliated, such as the ILO, UNESCO, the WHO, the WMO, the FAO, the ITU etc. 2660   ICJ Reports 1956, 77 et seq. On this opinion, cf MJL Hardy, ‘Jurisdiction of the Administrative Tribunal of the ILO’ (1957) 6 ICLQ 338 et seq.; R de Lacharrière, ‘Jugements du TAOIT sur requêtes contre l’UNESCO’ (1956) 2 AFDI 383 et seq.; L Orcasitas Lloriente, ‘Dictamen del Tribunal internacional de Justicia de 23 de octobre de 1956 sobre validez de las decisiones adoptadas por el Tribunal aministrativo de la Organizacion international del Trbajo en el recurso planteado por varios empleados de la UNESCO’ (1957) 10 REDI 153 et seq.; JHW Verzijl, ‘Judgments of the Administrative Tribunal of the ILO upon Complaints made against the UNESCO’ (1957) 4 NILR 236 et seq.; M Vismara, ‘Sentenze del Tribunale amministrativo dell’ILO su ricorsi contro l’UNESCO’ (1957) 12 Comunità internazionale 762 et seq. See also, more generally, KH Kaikobad, The ICJ and Judicial Review, above n 2648. 2661   Art 12, § 1, of the ILOAT Statute. 2662   In 2010, the International Fund for Agricultural Development sought an advisory opinion from the Court on an ILOAT judgment: see ICJ, Press Communiqué no 2010/14 of 11 May 2010. The opinion had not yet been delivered at the end of 2010. 2656 2657

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1956 in the UNESCO case cited above. The first request in relation to UNAT was made in 1982 (the Fasla case),2663 followed in 1982 by the Mortished case2664 and in 1987 by the Yakimetz case.2665 The Court has never much appreciated this function of reviewing the legality of the acts of administrative tribunals, which in the Court’s view is nitpicking, artificial, and has little to do with the Court’s general mission to resolve interState disputes. There have also always been criticisms of the inequality of the parties in the procedure before the Court.2666 First, the official, unlike the Organisation, has no direct right of recourse to the Court. Second, he or she cannot be as directly represented before the Court as the Organisation is. Consequently, as regards the UNAT, such recourse was finally abandoned in 1996 by General Assembly Resolution 50/54.2667 The general power of the General Assembly (and other UN bodies and organisations) to directly request advisory opinions of the ICJ on judgments of the UNAT was not, however, affected. The special mechanism of the Committee on Applications for Review was abrogated. Following the radical revision of 2007, the power to seek an advisory opinion will no longer be exercised in relation to the UNAT.2668 Instead, under General Assembly Resolution 62/228, a system making recourse available to aggrieved officials was established within the UN’s administrative disputes procedures, and the UNAT itself was dissolved.2669 In its stead, a UN Disputes Tribunal (the first level) and a UN Appeals Tribunal (the second level) were established. True, there is no legal obstacle to the General Assembly’s still making, in exceptional circumstances, a request to the ICJ for an advisory opinion as to the validity of a decision made by the Appeals Tribunal; however, this would run somewhat counter to the thinking behind the introduction of the two new tribunals if there were still to be recourse to a third. Conversely, the traditional legal situation has not changed with regard to the ILOAT. Possibly, but improbably, the existence of a second level in the revised system of the former UNAT will encourage the General Assembly to seek more frequent advisory opinions from the ICJ as regards ILOAT cases, with a view to creating a species of increased equality between the two review systems. It may also be that the remodelling of the UNAT system will act as a spur to a similar reform at ILOAT. The fusion of the two big international administrative tribunals, ILOAT and the (new) UNAT, which has often been proposed, does not seem to be on the cards, given the strenuous resistance to it in the past, which continues today. We may conclude by noting that there is a possibility – though admittedly now a relatively small one – of using the ICJ as a ‘court of appeal’ against the validity of the judgments of international administrative tribunals on the grounds of certain errors of law. The procedural vehicle for such recourse is the advisory opinion mechanism under Article 96 of the UN Charter.   Application for review of Judgment No 158 of the UNAT, ICJ Reports 1973, 166 et seq.   Application for review of Judgment No 273 of the UNAT, ICJ Reports 1982, 325 et seq. 2665   Application for review of Judgment No 333 of the UNAT, ICJ Reports 1987, 18 et seq. 2666   See L Gross, ‘Participation of Individuals in Advisory Proceedings before the ICJ: Question of Equality between the Parties’ (1958) 52 AJIL 16 et seq. 2667   See H Thierry, ‘Note sur l’abrogation de l’Article 11 du Statut du TANU’ (1995) 41 AFDI 442 et seq. 2668   The purpose of the reform was to respond to an expert report commissioned by the Secretary-General; the conclusions, in 2006, were that the system of administrative justice was cumbersome, under-financed and, in the ultimate resort, ineffective. The report said that the system did not respect the requirements of a regular procedure as laid down in international human rights instruments (Doct A/61/205, of 28 July 2006). The reform involved two main elements: first, the development of non-contentious methods of dispute resolution, especially through the creation of the Office of the Ombudsman; second, the establishment of a two-level system of justice. 2669   On 31 December 2009. 2663 2664



THE COURT’S COMPETENCE AS AN ‘APPELLATE’ BODY 869

4) Reviewing the legality of acts of United Nations bodies. This question, which is rooted partly in positive law and in part puts out branches towards the lex ferenda, will be considered in the next section (26). At this point, however, it is appropriate to emphasise that the Court can obviously be called upon to review the legality of acts of UN organs, by way of requests for advisory opinions. This produced, for example, the advisory opinion on the Effects of awards of compensation made by the UNAT (1954).2670 In that case the Court had to express a view on whether the UN General Assembly might lawfully refuse to execute a judgment of the UNAT awarding compensation to officials.2671 In issue was the General Assembly’s competence, and in particular the validity of such a refusal. The mode of operation, procedure for, and scope of the matters of which the Court took cognisance differed markedly in these cases. In the case of requests for advisory opinions in which the Court is asked to examine the lawfulness of a legal act of the Organisation, advisory opinion procedure is followed, and the Court can take cognisance of the material in a fairly wide and robust way, to the extent that the request for the opinion makes it available. As regards recourse to the Court against arbitration awards which one side alleges are legally invalid, the contentious procedure is followed, and the Court’s cognisance of the material will be minimal. The Court will review only such errors of law as are alleged to make the award a nullity. It will consider only whether such errors have manifestly been committed. There is thus no single standard as regards ‘appeals’ to the ICJ. Quite the reverse: the situation has to be examined case by case, situation by situation, so that the correct legal appreciation can be made. It is noticeable that, in the days of the PCIJ, the Court’s ‘appellate’ function was thought of as primarily applying to arbitrations. Also, it was accepted that the relevant organs of the League could seek advisory opinions concerning the review of the lawfulness of given legal acts. It is clear that the primary concern was to guarantee that there should be some recourse in relation to grievances about arbitral awards. In 1929, the Committee of Jurists responsible for studying the amendment of the Statute was presented with a proposal, by S Rundstein, to extend outright the competence of the PCIJ as an appellate body in relation to arbitrations. The question was referred to the Council of the League, which ordered it to be studied. A special Committee of the Council put forward certain proposals, but in the end the Assembly of the League hesitated, since there were still some issues that were unclear. The proposal was effectively buried.2672 Since 1945, there has been an extension of the Court’s ‘appellate’ jurisdiction into other fields. As international organisations mushroomed to an unprecedented degree, the ICJ began to be used – though still, it is true, in a relatively marginal way – to review the lawfulness of certain legal acts committed in the functioning of some of these organisations. Proposals were also put forward for it to become possible to seise the Court on a ‘prejudicial’ basis, on the model of Article 177 of the 1957 Treaty on the European Communities. If a municipal tribunal were to be faced with a difficult question of international law, it would be able to suspend the proceedings and refer the question for decision by the ICJ. In   ICJ Reports 1954, 47 et seq. See in this regard Kaikobad, The ICJ and Judicial Review, above n 2648, 113 et

2670

seq. 2671   Certain States opposed the adoption of supplemental budgets by the Assembly for the purpose of honouring these judgments. 2672   For details, see especially Rundstein, above n 2648, 5 et seq.; Hudson, above n 2648, 431–32. See also Caballero de Bedoya, Erich and Raestad, cited in the opening footnote of this chapter (n 2648).

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addition, since the mid 1990s the question of reviewing the legality of acts of the UN Security Council has been the subject of widespread discussion. In light of these developments, it seems likely that the ‘appellate’ functions of the ICJ will be developed and reinforced in the coming years, both because of the particular authority the ICJ enjoys as the principal judicial organ of the United Nations and of the global international community, and in order to counteract a certain fragmentation of international law and make progress in establishing the rule of law within international organisations. Thus the Court’s ‘appellate’ functions, which formerly were largely confined to the review of arbitral awards, now contain a wide and eclectic range of differing elements.

b)  Value and Dangers of the Court’s ‘Appellate’ Proceedings ‘Appellate’ proceedings provide three main benefits. First, they increase the number of avenues of recourse for the review of legality, enabling the Court to scrutinise the resolutions and other legal acts of international political bodies. This, in turn, strengthens the principle of the pre-eminence of law in the activities of such organisations. In the exercise of this function, the Court is protecting the rights of minority States in the organisation, and increasing not only what might loosely be called the legitimacy of the organisation’s activities, but also the general soundness of its operations.2673 Second, the multiplication of such recourse to the ICJ limits the potential for the fragmentation of international law, which has been so much written about in recent years, to unravel the fabric of the system of international law itself.2674 As a kind of international judicial areopagus, the Court can restrain the centrifugal tendencies of a system of law known to, and administered by, an ever-expanding constellation of tribunals and other international bodies. Third, these means of recourse make it possible to set the seal of the Court’s authority, as the principal legal organ of the UN, on the legal acts that it passes in review, thus contributing to their effective implementation. At the end of the day, this gives three advantages: the pre-eminence of law – maintenance of a certain unity in the law – reinforcement of the authority of international legal acts. Set against these undeniable advantages, there are three dangers to guard against. First, it is unrealistic to suppose that the ICJ alone, with its bench of 15 judges, could bear the burden of providing recourse of an ‘appellate’ nature for all the multifarious international tribunals and other quasi-judicial bodies that have sprung into active life since 1945, or for the most differing legal acts of international organisations. The European Court of Human Rights has, so to speak, been ‘backed’, in recent years, into such a role, as a kind of ‘court of fourth instance’. The result is a backlog of more than 120,000 cases.2675 The effect as regards the uniformity of international law can therefore be ensured only by the European Court’s 2673   For example, in the face of internal challenges. In the case of the Appeal relating to the jurisdiction of the ICAO Council, the Court said this: ‘In thus providing for judicial recourse by way of appeal to the Court . . . 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 . . .’ (ICJ Reports 1972, 60, § 26). 2674   The problem of fragmentation has, however, been generally exaggerated. See B Conforti, ‘Unité et fragmentation du droit international: “Glissez, Mortels, N’appuyez pas!” ’ (2007) 111 RGDIP 5 et seq. See also, PM Dupuy, ‘L’unité de l’ordre juridique international, Cours général de droit international public’ (2002) 297 CCHAIL 460 et seq. 2675   As to efforts to improve the situation, see C Tomuschat, ‘Die Erklärung von Brighton’ (2012) 22 RSDIE 191 et seq.



THE COURT’S COMPETENCE AS AN ‘APPELLATE’ BODY 871

handling a small number of ‘pathfinder’ or ‘pilot’ cases, and, in the end, perhaps this will be organised by a kind of certoriari procedure, as in the USA’s Supreme Court. Second, the Court must generally avoid over-rigorous oversight of the acts submitted for its attention. It must recognise that the bodies from which the ‘appeals’ come have a certain margin of appreciation of their own in the exercise of their functions and the administration of international law. International law, with all its flexibilities and uncertainties, governs situations in many ways more diverse (and sometimes more startling), than those governed by municipal law. That is because political relationships, even more than ordinary interpersonal ones, cannot ever be fully ‘juridified’. Some aspects will always remain, by their very nature, and because of the many pertinent factors, of the movement and dynamic of the situations in question, and of the inevitable personal choices to which they give rise, beyond being objectively measured in legal terms (so as to give them consistent treatment and so that the parties can be treated on a footing of equality). It is also a matter of serious concern not to discourage those who have to decide issues ‘on the spot’, or to undermine their sense of personal responsibility. It is therefore important that the ICJ, as an ‘appellate’ body, is careful to avoid simply substituting its own assessments for those of the bodies ‘appealed’ from. The degree of margin the Court must allow such a body depends on the character of the particular body and the act ‘appealed’ against. That in no way implies that the ICJ should not intervene if there is good reason for it to do so. Indeed, if it then failed to do so, its ‘appellate’ role would be redundant. The point is to ensure a proper balance between intervention and restraint. Third, it is important not to go too far in smoothing out the differences between different types of procedure, for example between arbitrations and judicial proceedings.2676 An excessively rigorous oversight of the validity of arbitral awards by the ICJ might lead to a situation in which it became the rule rather than the exception for the losing party to challenge the award before the ICJ, which would progressively deprive the arbitration mechanism of its distinctive advantages. The ICJ would then be deciding a very wide range of different questions. This would reduce parties’ propensity to use arbitration, since its advantages would become largely nugatory, always overshadowed by the prospect of the case going to the Court. There is no doubting the fact that this tendency would eventually reduce the range of options available for the peaceful resolution of disputes. To wish to ‘arbitralise’ the ICJ is as mistaken as to wish to ‘judicialise’ arbitration. The fact that each has its particular advantages and disadvantages gives parties a real choice and an opportunity to choose the best procedure, responding to their own wishes and the particular nature of the dispute. It is much better to leave these differences intact, so that intelligent choices can be made between different options. In this respect, the measure and moderation of the Court’s cognisance of the materials in ‘appeal’ cases is a matter of great importance. The ICJ is indeed very conscious of the need for care and respect in the way it reviews the decisions of other bodies.

c)  Jurisdiction and Procedure The basis of the Court’s jurisdiction differs, depending on the type of ‘appeal’ that it is concerned with. The Court’s supervisory involvement is based not on a special category of 2676   For example, arbitrators have a lesser role than institutional courts in developing the law generally, a process that shapes both jurisprudence and judicial policy.

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jurisdiction, but on ordinary titles of jurisdiction, onto which the ‘appellate’ application grafts the substance of the ‘appeal’. When the Court is seised of an application for an advisory opinion, it follows its general procedure for such cases, and in contentious cases it follows its contentious procedure. In the latter context, Article 87, paragraph 1 of the Court’s Rules, entitled ‘Special reference to the Court’, reads as follows: 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 body, the provisions of the Statute and of the Rules governing contentious cases shall apply.2677

In other words, the Preliminary Objections procedure, with its concomitant suspension of the substantive proceedings, is applicable. The admissibility of the application will moreover often depend on specific conditions laid down in the legal instruments concerned. Thus, for example, an instrument may provide that an ‘appeal’ against the decision of the body in question must be brought before the ICJ within six months from the date of decision. This condition ratione temporis then becomes a condition of the application’s admissibility by virtue of the instrument on which the Court’s jurisdiction is based.2678 In short, the essential principle is that there should be no difference, as to jurisdiction and procedure, between ‘appeal’ cases and ordinary ones. The only differences relate to the subject of the application and to the applicable law. One important question does, however, arise in this connection. Although it is generally accepted that the Court can be seised of a contentious case under any treaty-based title of jurisdiction (for example, compromissory clauses, jurisdiction clauses, special agreements, or even the forum prorogatum considered as an informal agreement), to the extent that they are adequately covered by agreement either in advance or a posteriori, some commentators take a different view as regards declarations under the optional clause (Article 36, § 2 of the Statute). To accept that the latter can be the basis of an ‘appellate’ jurisdiction amounts to inserting the possibility of an ‘appeal’ into all cases where disputes are to be resolved by another body. But that is not the function of such clauses either, or indeed of the Court itself. Also, as a matter of judicial policy, it would not be a suitable or adequate outcome. 2677   Art 67, § 1 of the 1946 Rules, under the heading ‘Appeals to the Court’ still bore the mark of the old idea that such recourse was primarily concerned with ‘appeals’ against arbitral awards. The paragraph in question reads as follows: ‘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 and these Rules.’ This provision had been inserted into the amended Rules of 1936. 2678   Once again, the distinction between questions of jurisdiction and of admissibility can be a difficult one. In the case of the Appeal concerning the jurisdiction of the ICAO Council, the Court took the view that the preliminary question whether the case could be brought to challenge a decision as to the Council’s jurisdiction, or only on a substantive question, needed to be resolved in the former sense, (the Court’s reasoning, which was convincing, is set out in ICJ Reports 1972, 56–57, § 18). In addition, the Court thought that this preliminary question related to its own jurisdiction (ibid, 57, § 19). There were good reasons for it to think so: when the title of jurisdiction sets out conditions for seising the Court, it is possible to say that the Court’s jurisdiction has been consented to in a limited way, and that if the conditions are not complied with, the Court does not have a properly rooted (de plano) jurisdiction. We have seen the same as regards conditions in consensual titles of jurisdiction, such as declarations under the optional clause. In the 1972 case, it would not have been entirely impossible for the Court to rule that the question before it really concerned admissibility. The title of jurisdiction made it possible to seise the Court of a dispute as to the Council’s decision. The real question related only to the qualities that the Council’s decision needed to have, and this was something that the title of jurisdiction did not indicate. It was therefore not disputed that the Applicant State had the right to seise the Court (a question of jurisdiction): what was doubtful was whether the application was defective in that it was made too early, before the Council’s final decision (a question of admissibility). The purpose of the present excursus is not to argue that the Court’s approach was mistaken, but merely to emphasise the considerable plasticity of the two concepts – jurisdiction and admissibility.



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The Court would be signalling that it is ready to respond to unilateral applications by allowing itself to be seised of ‘appeals’ against absolutely any possible decision of another international body. That would amount to interference with the autonomy of such bodies, and would offer all kinds of opportunities for delaying tactics to States seeking a way out of their obligations. In short, the acceptance of a basis of jurisdiction under Article 36, paragraph 2 would make the ICJ into a court of cassation as between all States that are parties to the system of the optional clause.2679 Other commentators take the view that the answer to this question depends on the wishes of the parties, on a case-by-case basis.2680 It would, for example, be necessary to consider whether an agreement to arbitrate contains an explicit or implicit agreement by the parties that the arbitrator’s decision is to be final and without appeal. In this respect it seems obvious that, where the ICJ is jointly seised by the parties, the most recent expression of the parties’ wishes prevails over their earlier wishes, since the parties remain the domini negotii. On the other hand, can the recognition by international law of grounds of nullity, and the right given to parties that consider such grounds to be available to them, really be eliminated by agreement? Can a party tie its hands in advance by an agreement not to raise nullity arguments that are recognised in international law, for example, the corruption of the arbitrator? Should the specific terms of declarations under the optional clause be scrutinised? In any event, if the Court’s jurisdiction is considered to depend on the respondent’s submission to the Court by failing to object to the Court’s jurisdiction, we are in a situation equivalent to the forum prorogatum. The declaration under the optional clause would not then be sufficient in itself. In the case on the Arbitral award of 31 July 1989 (Guinea-Bissau v Senegal, 1991), in the course of an ‘appeal’ against an arbitration award, the Court gave a clear answer of principle to these questions. It distinguished between an ‘appeal’ against the arbitrators’ award on the merits (concerning maritime delimitation), and the new dispute that had arisen as to the validity of the award. The Court decided that the parties were not asking it to consider the first dispute, and, if that had been what they sought, it would, in a sense, have been a request for revision of the award. The Court decided that the parties were only seeking only an answer to the second question, that is, whether the award was null and void. The Court held that it had jurisdiction over the second dispute by virtue of the parties declarations under Article 36, paragraph 2 of the Statute.2681 At the same time, the Court left open the question whether the underlying merits might also have been submitted to it (setting aside the res judicata) on the same basis. Despite this open door, we should reject the latter idea.2682 It is inconsistent with the force of res judicata attaching to the arbitral award, which the Court is obliged to recognise and respect under the applicable rules of 2679   See the Declaration of Judge K Mbaye, in the case on the Arbitral award of 31 July 1989, ICJ Reports 1991, 80. See also E Borel, ‘Les voies de recours contre les sentences arbitrales’ CCHAIL, vol 52, 1935-II, 75, citing K Mbaye. 2680   Thirlway, above n 2648, 69. 2681   ICJ Reports 1991, 62, §§ 24–25. 2682  In the view of G Gaya, ‘Relationship of the ICJ with other International Courts and Tribunals’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 542–43, the parties can always, by agreement between them, submit the substantive dispute to another body, if they are not satisfied by the first one. The Court could take cognisance of such a request. According to this eminent Italian internationalist, the Court’s judicial integrity would, however, be imperilled if its jurisdiction were disputed. One party would then be asking the Court to undo the res judicata attaching to an award. The author appears to consider that the Court would be prevented from entertaining any such application, because it would be bound by the authority of res judicata, attaching to the award under international law. A declaration under the optional clause would be insufficient. It seems to follow from Gaya’s reasoning that the only exception would be for the recognised category of the award’s nullity under general international law, which a party is entitled to argue unilaterally.

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particular international law. The force of res judicata should not be set aside except by agreement between the parties as domini negotii. The unilateral invocation of the Court’s jurisdiction is possible only where the application is directed at nullifying an award recognised by international law, that is, at the level of a secondary dispute, not at the level of the primary one. This reasoning does not rest only on legal grounds, but includes grounds of legal policy. The Court shall not encourage such unilateral recourse against the bien jugé of the arbitrator, since it would then render largely nugatory the selection of arbitration by opening a full-fledged review over the content of each arbitration as between the parties to the optional clause system. We have thus come to the following conclusions: (1) the Court can take cognisance either of the merits of a dispute already the subject of an arbitral award, or of the nullity of that award, if the parties submit this dispute to it by agreement between them (for example, by a compromissory or jurisdictional clause, a special agreement, or via the forum prorogatum mechanism); (2) the Court can take cognisance of a dispute as to the nullity of the award on the basis of any title of jurisdiction; (3) the Court cannot take cognisance of the merits of a dispute that has already been decided, if the case comes before it on the unilateral application of one of the parties, on the basis of Article 36, paragraph 2 of the Statute, and the other party disputes its jurisdiction. Can these principles be applied mutatis mutandis to decisions of other institutional tribunals (for example, the International Tribunal for the Law of the Sea), or to the acts of organs of international organisations? Unlike ad hoc arbitration tribunals, institutional tribunals are generally perceived as jurisdictions of last resort for resolving disputes, without any possibility of appeal. This definitive character of their judgments is often emphasised in their Statutes.2683 If appeals on the grounds of errors of law in the judgment are provided for, they take priority as the means of recourse, under the rule of the lex specialis. Otherwise, there is nothing to stop a party thinking the judgment a nullity from submitting that issue to the tribunal in question for a decision, if necessary by an extra-ordinary procedure under the tribunal’s inherent powers, or from seising the ICJ, either by agreement or unilaterally under Article 36, paragraph 2. In this connection the Court will exercise all desirable restraint as to the merits. Furthermore, the Court will probably refuse to re-open the merits of the original case, even if the parties ask it to.2684 The obstacle here again lies not in any lack of jurisdiction, but in the fact that this is one of those situations where the Court can and must refuse to exercise that jurisdiction. By taking cognisance of such a request, the Court would be disavowing the other tribunal, setting itself up as the other tribunal’s superior, undermining its prestige, and endangering its future activities. It would thus weaken the very idea of a diversification of international tribunals, and undermine the reduction in its own workload. In such a case, therefore, the Court would probably say that although it does have jurisdiction, it does not think it right to exercise that jurisdiction, for reasons of judicial integrity (which is a question of general admissibility). In these circumstances, those reasons relate to the role of the ICJ among other international jurisdictions. If the Court rejects a plaint brought against an arbitration award, or against a judgment of another jurisdiction, the validity of the award or judgment is thereby confirmed. However, they do not themselves become thereby judgments of the Court within the meaning of Article 94 of the Charter, executable by the Security Council under paragraph 2 of that Article. The award or judgment that has been reviewed, and the Court’s judgment   Art 33, § 1 of the Statute of the International Tribunal for the Law of the Sea.   If the request is unilaterally made, the res judicata principle makes it inadmissible (see above n 2682).

2683 2684



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in relation thereto, continue to be legally separate and formally distinct from each another. Article 94 of the Charter applies only to the Court’s own judgments. When the acts of an international organisation are in issue, the problem arises in a different form. Here there is no question of res judicata. There is therefore nothing to stop States bringing the validity of such an act before the Court on the basis of whatever head of jurisdiction may be available,2685 in the wider context of an inter-State dispute. The Court can then take cognisance of the validity of the acts in question, as one of the incidental elements of the case. The modalities for such review by the Court will be analysed in the next section (26).

d)  Degree of Cognisance A delicate but important question, both legally and from the perspective of judicial policy, is the degree of control that the Court must exercise over the legal act which is the subject of the ‘appeal’, or in other words the degree to which the Court takes cognisance of the materials that were before the body ‘appealed’ against. The word ‘cognisance’ is used here to express the Latin cognitio, designating the manner in which the Court approaches the requests or applications made to it. The manner may vary, in particular with the intensity and precision of the judicial scrutiny or review involved. A court of justice may, at one extreme, review the matter from the very limited angle of whether there has prima facie been manifest arbitrariness; at the other extreme, it can review both the law and the facts of the case in the most ample way, assessing each argument with meticulous thoroughness. The differences of approach reflect choices made as a matter of judicial policy, and these choices may at some stage bed down into a procedural or substantive legal rule.2686 The justifications for these differences in approach are to be found in a whole series of factors: concern to respect the autonomy of the bodies whose actions are under scrutiny; the wish not to discourage their personnel from taking personal responsibility rather than shuffling it off onto the shoulders of a supposedly omniscient and interventionist, superior tribunal; the wish not to encourage the endless round of ‘appeals’ that would be likely to result if the   Including declarations under the optional clause.   This differentiation in the degree of scrutiny may result on the one hand from a judicial policy which prefers, in certain contexts, not to review the act complained of in a sweeping or comprehensive way, but rather to respect the work of other bodies and avoid discouraging the exercise of personal judgment and responsibility by their personnel. On the other hand, such restraint can also arise from a norm of primary or substantive law, eg when there is a provision prohibiting arbitrary decisions or other acts. If the matter to be assessed is the extent to which there has been a breach of the prohibition against arbitrary decisions or other acts, the scrutiny will necessarily be a limited one, and the reviewing or scrutinising tribunal will not declare a particular interpretation of the law to have been wrong or invalid merely because it considers a different view better or more persuasive, and it will not form a different appreciation of the facts just because it may consider the alternative appreciation possible or desirable. It will not then reject the interpretation made by the body ‘appealed’ against, unless the error of law or failure properly to assess the facts is a manifest one, and thus ‘arbitrary’ in the sense of being capricious, or manifestly wrong, or impossible to justify on the basis of any recognised or reasonable legal criterion, or manifestly unjustified as regards the facts, or repugnant to the legal conscience, or severely discriminatory or unreasonable, or devoid of any foundation, or based on a manifestly false conception of the applicable law and so on. It is thus sometimes a technique for scrutiny that is freely selected (which has been likened to the effect of wearing spectacles bringing some parts of the field of vision into sharper focus than others, in the image of the Swiss constitutional expert JF Aubert, Traité de droit constitutionnel, vol II (Neuchâtel, 1967), no 1717, and sometimes the effect of an applicable rule of material law, requiring the reviewing tribunal to exercise a certain restraint in how far it scrutinises the legality of the decision or other act that is in question. 2685 2686

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scrutiny could normally be guaranteed to be relatively rigorous and finicky; the reasonable belief that those closer to the concrete situation are usually in a better position to assess it; lack of expertise in a particular subject matter; lack of resources and of time; and a certain consciousness of the inherent limits of scrutiny or review by a court which, in relation to this field of its activity, may legitimately be seen as a kind of court of mere cassation, that is, one which should not be taking upon itself the functions of a court of first instance. In the context of the ICJ’s own role in reviewing arbitration awards, there is the further concern, already mentioned above, not to undermine the advantages and particular characteristics of the arbitral process. The aim is to avoid discouraging the use of that process, and to avoid depriving parties of the opportunity to choose it in a meaningful way. The general rule, then, is that, in ‘appeal’ cases, the cognisance taken by the Court will a limited one. That, in fact, is the most salient difference between the Court’s ordinary and ‘appellate’ functions. The degree to which the cognisance taken is limited varies, according to the particular context. Advisory opinions. As regards requests for advisory opinions that involve the Court in considering the validity of the legal actions of a body or of an organisation affiliated to the UN, there is no reason for the Court significantly to limit the degree of cognisance it takes of the case. It will simply avoid substituting its own appreciation for that of the body or organisation concerned, either as regards the facts, or as regards any reasonable interpretation of the law. In this regard, the Court recalled, in the Certain expenses case (1962) that the acts of UN organs (and, by extension, of international organisations) enjoyed the benefit of a presumption of legal regularity.2687 So long as their interpretation is within the limits of what the norm permits, the Court must abstain from declaring it invalid. The position is, of course, different if the requesting organ is explicitly asking the Court to indicate what the Court considers to be legally the best out of a range of legally acceptable interpretations. In short, the limitation in the degree of the Court’s cognisance of the case is not at its apogee in advisory opinion cases. The Court has virtually free hands provided that it practices the restraint and takes the care that is always expected of a court of justice scrutinising the legality of the acts of another body. When considering such questions of legality in contentious cases, the Court will also tend to apply the presumption that the acts of the international organisation conform to the rules, and will therefore scrutinise them only in this limited way.2688 Special provisions. When the Court is called upon to scrutinise a special agreement, or to review a question by virtue of special provisions, the parties are free to indicate the type of scrutiny (cognisance) they want it to exercise.2689 If they use words such as the ‘validity’ of 2687   ICJ Reports 1962, 168: ‘[W]hen the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization.’ This position has been disputed on the basis that the ‘end cannot justify the means’. However, there is no doubting that when the UN takes action which one may justly consider to be within the admissible interpretation of the rules governing such action, there is, to put it at is very lowest, a presumption of its regularity. 2688   See below. 2689   In the case of the Appeal concerning the jurisdiction of the ICAO Council (India v Pakistan), ICJ Reports 1972, 60, § 26, the Court emphasised that it was a matter, under the Chicago Convention, of an appeal, and that the Court must exercise ‘a certain measure of supervision’ over the Council’s decisions. This right of recourse was there to ensure that the Organisation functioned properly. The Court could thus take very wide-ranging cognisance of the case. As to India’s objections to the jurisdiction of the Court itself, naturally they came in for the fullest examination by the Court. The Court was not in that regard scrutinising or reviewing the acts of other



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an action, the Court leans towards taking full cognisance of it; if, on the other hands, they use expressions such as the ‘nullity’ of an act, it is a sign that they are looking for limited scrutiny, involving considering whether there has been a manifest error such as the legal system recognises to be a ground of nullity. The nature of the act in question also comes into it. If the subject to be reviewed is an arbitration award, the Court will lean towards a very limited exercise. But there is nothing to stop the parties jointly requesting a comprehensive review of the entire award if they are not persuaded that it is sound. The Court can refuse such a request, on the ground that it wishes to protect the autonomy of the arbitration mechanism. It can thus confine its review to the degree generally recognised in international law, that is, as to the question of the award’s alleged nullity. To that end, the Court can either reinterpret the parties’ request, so as to identify either its ‘true’ tenor, or the most adequate meaning to be drawn from it. If the parties have clearly expressed the wish for more thoroughgoing scrutiny, going beyond the nullity question, the Court can refuse, either wholly or in part, to undertake the exercise, on the general admissibility ground that the integrity of the arbitral process must be maintained. That which is a public interest issue for the whole international community, can be invoked by the ICJ to justify its refusal to fully exercise the jurisdiction conferred on it by the parties. The Court made the point very well in the Nottebohm case (Preliminary Objection, 1953):2690 ‘[T]he seising of the Court is one thing [controlled by the will of the parties], the administration of justice is another. The latter is governed by the Statute, and by the Rules’. In particular circumstances, the Court could, however, also opt for a more robust scrutiny. General law. When, in contentious matters, the Court is working on the basis of general international law and without any specific indications from the parties, it will naturally take a restrained degree of cognisance of the case, at the same time taking into account the nature of the action it is asked to scrutinise. If it is scrutinising a final and definitive arbitration award that has the force of a jurisdictional act, the Court – absent specific indications by the parties – will show a maximal degree of restraint in the cognisance it takes of the matter. As already noted, the Court tends to want not to disturb the authority of the res judicata, and not to encourage constant appeals against awards, which would deprive the arbitration process of many of its advantages and push the Court deeper into a role it does not desire. The ICJ’s jurisprudence is very clearly oriented accordingly. In the case on the Arbitration award by the King of Spain dated 23 December 1906 (1960),2691 of which the Court was seised, unilaterally, on the strength of a jurisdiction clause in an agreement, the Court said this:

bodies but was engaged in satisfying itself as to its own jurisdiction. As to the Council’s jurisdiction, the Court examined the question fully, in the round, in line with the Convention provisions. However, the Indian arguments were manifestly ill-conceived, so much so that they did not in fact require a great deal of scrutiny for the Court to be in a position to confirm the Council’s decision. First, the Council’s jurisdiction could not be eliminated by a simple unilateral assertion that the treaty on which it was based was no longer in force. Second, the Council’s jurisdiction was not confined to the interpretation or application of the treaty, so as to exclude questions relation to its termination or suspension, the latter being dependent on the interpretation of the treaty clauses. Third, the parties were indeed in dispute as to the interpretation and the application of the treaty (allegations of treaty violation, regime for derogating from it, suspension of the treaty, etc), so that, given the nature of the dispute, the Council did have jurisdiction. 2690   ICJ Reports 1953, 122. 2691   Honduras seised the Court of a request that Nicaragua should be condemned for not carrying out the award. Nicaragua thereupon raised procedural and substantive objections to the award.

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[T]he Award is not subject to appeal and . . . the Court cannot approach the consideration of the objections raised by Nicaragua to the validity of the Award as a Court of Appeal. The Court is not called upon to pronounce on whether the arbitrator’s decision was right or wrong. These and cognate considerations have no relevance to the function that the Court is called upon to discharge in these proceedings, which is to decide whether the Award is proved to be a nullity having no effect.2692

The Court therefore confined itself to the question whether the award was a nullity. It was one of those cases where the substantive law (on nullity) in effect imposes a limited cognisance on the Court. That limitation to the Court’s function was maintained and followed in the case on the Arbitral award of 31 July 1989 (1991), in which the Court was seised on the basis of declarations under the optional clause. It recalled what it had said in 1960, and that the parties were accepting that its cognisance of the case was limited in this way: ‘[T]hese proceedings allege the inexistence and nullity of the Award rendered by the Arbitration Tribunal and are not by way of appeal or application for revision of it’;2693 at which point, the Court reproduced its dictum of 1960. Later in its judgment, the Court refused to state which was the preferable interpretation, on the grounds that if it did so, it would be going beyond the question whether the award was a nullity and acting as a full court of appeal: ‘[The Court] has simply to ascertain whether . . . the Tribunal acted in manifest breach of the competence conferred on it by the Arbitration Agreement’.2694 The Court again used the expression ‘manifest breach’ in the following paragraph,2695 denoting this same limitation to its cognisance of the case. Such restraint is desirable from every point if view, given that, as we know, not only is the best the enemy of the good, but the road to hell is often paved with the most excellent intentions imaginable.

e) Overview Until now the ‘appellate’ function of the ICJ has rarely been used. In the early post-war years, a practice emerged of seeking from the Court advisory opinions on the interpretation of the Charter, and on the validity of particular acts of political bodies (for example, the Certain Expenses opinion, 1962). In the meantime, it was rare for the Court to review the validity of the acts of other bodies. There was an appeal against an act of the ICAO Council (1972), and there were requests for the Court to review two arbitration awards (1960 and 1991). A scrutiny of the validity of resolutions of the Security Council failed during the 1990s in the Lockerbie case, since that contentious proceeding came to an end by discontinuance (see below, section 26). One should not exclude the possibility that, with the multiplication of international bodies, and a growing awareness of the undesirable consequences that arise from a certain degree of fragmentation of international law, the appellate function may gradually be revitalised in years to come. If only for practical reasons relating to the Court’s capacity, such a revitalisation, if indeed it does occur, will probably remain a relatively marginal affair.   ICJ Reports 1960, 214.   ICJ Reports 1991, 62, § 25. For a detailed analysis of certain judges’ inclination towards a stricter review, cf Reisman, ‘The Supervisory Jurisdiction of the ICJ’, above n 2648, 290 et seq. 2694   Ibid, 69, § 47. 2695   Ibid, 69, § 48. 2692 2693



JURISDICTION OVER ACTS OF OTHER UN ORGANS 879

26.  JURISDICTION TO REVIEW THE LEGALITY OF ACTS OF OTHER UNITED NATIONS ORGANS, PARTICULARLY THE SECURITY COUNCIL2696

a)  General Aspects. To what extent is the UN an organisation based on a constitutional system comparable to that of a State, necessitating appropriate checks and balances? To what extent, indeed, must the UN itself be subject to the rule of law? And to what extent does the development of the UN and its system play a part in this respect? It might have been easier to avoid these questions in the infancy and early stages of development of the organisation, when precedence was given to the political freedom necessary for the UN to secure its own ‘place in the sun’, whereas, as the UN reached maturity, the system’s consolidation by means of elementary principles of law and justice has become much more essential. These are rich 2696   There is a vast literature on this subject. See, among others, and in this case in chronological rather than alphabetical order, H Thierry, ‘Les Résolutions des organes internationaux dans la jurisprudence de la Cour internationale de Justice’ CCHAIL, vol 167, 1980-II, 393 et seq.; E McWhinney, ‘The International Court as Emerging Constitutional Court and the Co-ordinate United Nations Institutions (especially the Security Council): Implications of the Aerial Incident at Lockerbie’ CYIL, vol 30, 1992, 261 et seq.; GR Watson, ‘Constitutionalism, Judicial Review and the World Court’ (1993) 34 Harvard International Law Journal 1 et seq.; M Bedjaoui, Nouvel ordre mondial et le contrôle de la légalité des actes du Conseil de sécurité (Brussels, 1994); L Condorelli, ‘La Corte internazionale di Giustizia e gli organi politici delle Nazioni Unite’ (1994) 77 RDI 897 et seq.; V Gowlland-Debbas, ‘The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie Case’ (1994) 88 AJIL 643 et seq. (particularly 663 et seq.); DW Bowett, ‘The Impact of Security Council Decisions on Dispute Settlement Procedures’ (1994) 5 EJIL 89 et seq.; LC Caflisch, ‘Is the International Court of Justice Entitled to review Security Council Resolutions accepted under Chapter VII of the United Nations Charter?’ in N Al-Nauimi and R Meese (eds), International Legal Issues Arising under the United Nations Decade of International Law (The Hague, 1995) 633 et seq.; K Roberts, ‘Second-Guessing the Security Council: The ICJ and its Powers of Judicial Review’ (1995) 7 Pace International Law Review, 281 et seq.; JE Alvarez, ‘Judging the Security Council’ (1996) 90 AJIL 1 et seq.; B Martenczuk, Rechtsbindung und Rechtskontrolle des Weltsicherheitsrats. Die Überprüfung nichtmilitärischer Zwangsmassnahmen durch den Internationalen Gerichtshof (Berlin, 1996); D Akande, ‘The ICJ and the Security Council: Is there Room for Judicial Control of Decisions of the Political Organs of the United Nations?’ (1997) 46 ICLQ 309 et seq.; A Leporatti, ‘Some Aspects of the Relationship between the ICJ and the Security Council in the Light of Recent Cases: In Particular, are there Limitations to the Security Council’s Powers?’ in K Koufa (ed), International Justice, Thesaurus Acroasium (Thessaloniki, 1997) 723 et seq.; MN Shaw, ‘The Security Council and the ICJ: Judicial Drift and Judicial Function’ in AS Muller et al (eds), The International Court of Justice, Its Future Role after Fifty Years (The Hague, 1997) 219 et seq.; F Lenze, ‘Une compétence expresse de la Cour en matière de contrôle de légalité des actes des autres organes principaux de l’ONU, notamment du Conseil de sécurité?’ in K Koufa (ed), International Law at the Turn of the Century, Thesaurus Acroasium (Thessaloniki, 1998) 565 et seq.; M Fraas, Sicherheitsrat der Vereinten Nationen und Internationaler Gerichtshof (Frankfurt-am-Main et al, 1998); J Herbst, Rechtskontrolle des UN-Sicherheitsrates (Frankfurt-amMain, 1999); N Meyer-Ohlendorf, Gerichtliche Kontrolle des Sicherheitsrates der Vereinten Nationen durch den Internationalen Gerichtshof: kann der IGH die Rechtmässigkeit von Zwangsmassnahmen nach Kapp. VII UNOCharta kontrollieren? (Berlin, 2000); E de Wet, ‘Judicial Review of the United Nations Security Council and General Assembly through Advisory Opinions of the ICJ’ (2000) 10 RSDIE 237 et seq.; D d’Angelo, ‘The “Check” on International Peace and Security Maintenance: The ICJ and Judicial Review of Security Council Resolutions’ (2000) 23 Suffolk Transnational Law Review 561 et seq.; D Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter: Legal Limits and the Role of the ICJ (The Hague, 2001); M Zambelli, La constatation des situations de l’article 39 de la Charte des Nations Unies par le Conseil de sécurité (Geneva/Basle/Munich, 2002) 336 et seq.; Amr, The Role of the ICJ as the Principal Judicial Organ of the United Nations, above n 2648, 279 et seq.; E de Wet, The Chapter VII Powers of the United Nations Security Council (Oxford/Portland, Oregon 2004) 25 et seq.; I Petculescu, ‘The Review of the United Nations Security Council Decisions of the ICJ’ (2005) 52 NILR 167 et seq.; MI Papa, I rapporti tra la Corte internazionale di Giustizia e il Consiglio di sicurezza (Padua, 2006) 287 et seq. See also E de Wet and A Nollkaemper, ‘Review of Security Council Decisions by National Courts’ in GYIL, vol 45 (2002) 166 et seq.

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and fascinating questions, going well beyond the law of the Court and ushering in some form of a constitutional system. The complexity of these questions is further increased by the fact that they arise at the point where a number of very different currents and influences come together. On the one hand, a court of justice reviewing the legality of the acts of political bodes raises questions as to what is politically appropriate, and as to the legislative choices that need to be faced and made. In these respects, one has naturally to study various aspects of the ‘legitimacy’ of the body concerned, and of its activities; one has to take account of the need to maintain sufficient political freedom of action, to guard against the real or perceived dangers that justice will be politicised; to consider what kind of separation of powers is desirable, and so on. The associated questions of law cannot be neatly and cleanly separated from these matters, which can be used as elements of interpretation or as material sources of legal considerations. Nevertheless, they are essentially extraneous to positive law. On the other hand, the reviewing of legality is a matter of positive law. There can be no doubt that the Court today possesses, in the procedures laid down in its Statute, a certain power to review the legality of the acts of political organs. It is thus possible to study this question from the restricted perspective of positive law, and to see how it has developed in the Court’s jurisprudence. In addition, the distinction between what is lawful on the one hand, and what is appropriate or politically suitable on the other, is in part, tied up with the distinction between lex ferenda and the lex lata, between the law as it might become and the law as it actually is. The question of reviewing legality is a relative novelty in the League of Nations/UN context, and is still relatively precarious and under-developed. There is a wide gulf to be bridged before it may be said to have realised its full potential. In order to explore the question in an enquiring and critical spirit, one therefore needs to consider both what has been achieved and the possibilities for further development in the future. Since any such enquiry involves both the light and the shade, the cautious and relatively rudimentary elements of what ‘is’ and the massive potential for what, in the future, ‘might be’, it needs to devote considerable space to possible future developments in the law, and the reader then needs to steer a knowing and consistent course between positive law (to port), and its possible and desirable development (to starboard). In short, we are exploring a work in progress, and need to ascertain not only how far the work has gone to date, but also its inherent trends and tendencies, or in other words, to return to the nautical metaphor, the direction in which the vessel is sailing. Moreover, the question presents itself in a somewhat different guise depending on which organisation we are thinking about. Some international organisations have political functions, others have technical ones. The UN itself is in the former category, the IMO in the latter. The review of the legality of acts of an organisation’s ‘political’ organs will give rise to different questions, depending on which of the two categories the organisation belongs to. As regards technical organisations, the political aspects and especially elements of ‘high politics’, are more rarely encountered and tend to be relatively veiled. The organisation’s technical objectives have the effect either of reducing or at least of veiling either all or some of the political importance and implications of the organisation’s activities. When the built-in tendency to ‘aggressivity’ and ‘disquiet’, characteristic of so many political relationships, is bottled up in this way, a space is carved out for the law to have a greater role; and it is far less likely that this greater role will be challenged. A court reviewing the legality of the acts of such an organisation may need a certain level of technical expertise before it



JURISDICTION OVER ACTS OF OTHER UN ORGANS 881

can understand some aspects of the organisation’s functioning and thus be in a position to issue satisfactory rulings. But the principle of judicial review is, in itself, unlikely to be controversial or to encounter any great resistance. In ‘political’-type organisations, however, the position is very different. Such organisations have to make concerted decisions in the course of which there will be clashes of political interests, and a search for difficult compromises. Also, such organisations often have to deal with sensitive issues, such as the maintenance of the peace. To allow judicial review over such matters means the espousal and acceptance of a certain view of international relations, namely a view based on the rule of law. There are many reasons why we are still far from achieving this ideal. They include attachment to State sovereignty as the expression of the most elementary kind of fundamental political and democratic freedom; the considerable multiplication, at the global level, of different values and interests; the fact that a large part of the world does not share modern legal traditions of the kind common in the West; and atavistic mistrust of a corpus of international law that is often uncertain in its content and scope, and of a court seen as handling that law in an unknown manner, sometimes seen as a kind of semi-occult legal sorcery. In addition, the review of legality is an exercise of different scope, when concerned with the acts of a decision-making political organisation, as opposed to the acts of an organisation which only has power to make recommendations: the review of a decisional act is different in scope from the review of a recommendational one. The review is a more sensitive matter in the first case than in the second, and the greater the political delicacy of the decision itself, the greater the sensitivity, reaching its apogee where acts of the UN Security Council are concerned. For this reason, the review of the legality of Security Council acts is a particularly interesting subject. It is much studied, even to the exclusion of other reviews of legality, not only because of its particularly marked practical importance, but also because it is the touchstone of the entire law on the question. If the Court can do certain things vis-à-vis the Council, then a fortiori it can do them vis-à-vis other international organs. The extreme case represented by the Security Council thus, in a way, fixes the minimal extent, the common denominator, of the Court’s power of review. In relation to other bodies, the Court can perhaps do more, but the basis of the Court’s minimum power is to be found in the case of the Security Council. Finally, the review of legality appears in a different light depending upon whether it is a voluntary matter (that is, if the request for review comes from the very body whose act is to be reviewed) or whether it is involuntary for (because imposed upon) that body. If the body being reviewed has sought the Court’s view, the Court can – and is often obliged to – respond according to the terms of the request for its advisory opinion. Depending on the circumstances, the Court might, however, be a little more robust about the degree of cognisance it takes of the matter, especially if the requesting body expressly asks it to comment on the entire legality of its action and not just on manifest errors of law. Obviously, certain problems of jurisdiction and of admissibility can arise when one UN organ requests an advisory opinion about the act of another UN organ – if, for instance, the General Assembly were to seek such an opinion about an act of the Security Council. There is nothing in the law of the Charter to prevent this happening, although that law does prescribe certain limits. The approach can be perceptibly different if the review of legality is not a voluntary matter, but arises from the request of a State which, a party to a dispute, considers the decision it objects to deleterious to its subjective rights, under the Charter, as a Member of the UN. In such a case, the review has, in political and legal terms alike, a different meaning.

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When the body requesting the review is itself the body whose act is to be reviewed, the Court is an ally, contributing to its due and proper functioning. But when the Court is seised by a Member State desiring to protect its own rights, the Court is effectively being called on to balance the interests of the majority of members against those of the minority (possibly purely those of the objecting State), an exercise which involves the Court in taking into account the general functional needs of the organisation. In that case, far from acting as a legal adviser, the Court’s role is that of a constitutional ephor.

b)  History of the Question The history of the question falls into two quite distinct phases. Originally, the whole question was branded with the hot iron of an obsessive idea, that of a strong executive branch unchecked by the arm of justice; it was rooted in the harshness of past experience. In the second (modern) phase it reflects the maturing of the system of international organisations, and their growing need for properly articulated ‘constitutional’ balances between them. The new dispensation of 1945 and the obsession with a strong executive. The adoption of the Charter marked a certain decline in support for the whole concept of reviewing the legality of acts of international organisations. In the Charter itself, the role of international law, the legal approach to questions of concern to the UN, and the place that, in that regard, States were prepared to give to a court of justice, were all in retreat. ‘Legalism’, in alliance with formalism, was considered to have been one of the reasons for the paralysis and failure of the League of Nations. The League’s Covenant had, indeed, been based essentially on legal concepts and considerations. So, for example, the central principle of the Covenant, namely ‘no war without a prior attempt at peaceful resolution of the dispute’, reflected an essentially legalistic approach, that is, the use of means other than war for resolving disputes. Also, the casus garantiae (vel belli) for a lawful use of force was essentially legal: breaches of the treaty obligation to settle disputes peacefully, and above all violations of the Covenant itself. The UN Charter is different. In it, the concept of a ‘threat to the peace’ shows its whole tendency to an approach that is more discretionary and more political than under the Covenant. The thread can be traced through a whole series of provisions of these two great instruments, and also in provisions they make as to the ‘reserved domain’ of internal affairs. Article 15, paragraph 8 of the Covenant is, in most respects, more precise than Article 2, paragraph 7 of the Charter, which was deliberately made relatively fluid and flexible.2697 In particular, there was a general conviction that a ‘legal straitjacket’ had been one of the causes of weakness in the action of the League Council. According to this view of things, instead of having a free hand to take effective action in discharge of the organisation’s paramount and urgent mission (to maintain and re-establish the peace according to the highly variable needs of each particular situation), the fabric of the Covenant strangled the Council’s action in a tangle of rigid and inappropriate legal requirements. First amongst them was the requirement of unanimity, inherited from the international law principle of State sovereignty. In 1945, the prevalent view was that one of the reasons for the League’s failure was that its Council had insufficient powers, and was thus reduced to impotence   Compare the words ‘exclusively’ and ‘essentially’ in the Covenant and the Charter respectively.

2697



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when confronted with the aggression of totalitarian States and their flouting of international law. Seeing the former League Council as toothless and feeble, the draftsmen of the Charter now wanted to create something quite different – a Council that would be strong, flamboyant and feared. The maxim now was: ‘The Council should have teeth’.2698 The times favoured the idea of a strong executive, rejecting the ‘paper tiger’ executive of the League. The general view was that, in order to have teeth, and to be able to act with speed and strength, the new Security Council need to be freed from finicky legal trammels that would inhibit decisive action. The dangers of abuse of power were now to be prevented by political rather than legal means, namely the requirement of a qualified majority, and above all the affirmative votes of all five Permanent Members. Seen in this light, it is easy to understand the formula used by the contemporary Secretary of State of the USA to the effect that ‘the Security Council is not a body that merely enforces agreed law. It is law unto itself.’2699 Equally, H Kelsen, influenced by the new spirit, could say that Chapter VII gave the Security Council the possibility of freeing itself from international law and creating a law of its own.2700 In short, the principal concern in 1945 was to make sure that Security Council action was not blocked or slowed down by reviews of its legality.2701 Such reviews were considered to be either impossible, in view of the nature of the Security Council’s activities (political and non-justiciable acts), or inappropriate, in view of the embarrassments they might give rise to in the Council. It was therefore agreed not to imprison the Council’s activities in a legal straitjacket, but to leave it free to create its own legalities, by way of an exception to general international law. The idea of judicial review of the Council’s acts was difficult to accept on this account, but also because it would, in a sense, have amounted to making the Council subordinate to the Court. That was considered incompatible with the equal status of the two bodies within the UN institutions. As a quid pro quo for the considerable freedom of decision conferred upon the Security Council, the extent of its material action was narrowly defined. It was confined to questions concerning the maintenance of international peace and security, in the context of inter-State ‘wars’, or of acts immediately preparatory of ‘war’. A very widely defined formal competence thus co-exists with a material competence that, by way of compensation, was quite closely restricted. The sacrifice of individual Member States’ individual rights was conceded only within a clearly delimited field, and only in the context of urgent ‘police’ action by the Security Council in the context of a realm of ‘maintenance of peace’ which was still far aloof from the developments of the 1990. Modern conditions: the need for a more balanced system. If the old concern to give absolute primacy to the maintenance (or re-establishment) of the peace in an effective and adequate way, via urgent action by the Council, is to be understood in the context of the situation prevailing in 1945, it is equally impossible to overlook the fact that the balance is now 2698   See E Luard, A History of the United Nations, The Years of Western Domination, vol I (London, 1982) 6 et seq. See also the extremely minute comparison by M Virally, L’organisation mondiale (Paris, 1972) 456 et seq. 2699   JF Dulles, War or Peace (New York, 1950) 194–95. The passage is cited at the start of Bedjaoui’s study, Nouvel ordre mondial, above n 2696, 11. 2700   H Kelsen, The Law of the United Nations (London, 1951) 295. 2701   See the comments in Bedjaoui, Nouvel ordre mondial, above n 2696, 19 et seq. It is therefore unsurprising that a Belgian proposal to allow the ICJ to review of the legality of acts of the political organs (including the Security Council) was flatly rejected at the San Franciso Conference: UNCIO, vol 13, 636–37, 649–50, 657. The rejection reflected the mood of the time.

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changing, with the development of the international community and of the UN itself. The importance of the rule of law in the UN system has since 1945 been constantly reinforced. International law and the law of the UN itself, have been greatly strengthened. The requirements of States and of public opinion as regards the political and legal legitimacy of UN decisions have been transformed. The new interpretation of Chapter VII, with its tendency to turn the Security Council into a kind of world government in nuce, has brought with it a strong resurgence of the need to protect the rights of Member States against arbitrary action, and to reinforce the very legitimacy of the Security Council’s decisions. This tendency has given new force to the fear of an excessively powerful Security Council. The trend towards international democratisation, and the growing importance of ideals of good governance have been consolidated. These factors, amongst others, are pushing the world in the direction of a more mature and more balanced system, involving a more carefully calibrated system of checks and balances. All systems of government, once they have established and consolidated themselves, start to develop mechanisms of control to counter excesses by the executive. Numerous constitutional jurisdictions have developed, little by little, markers and restrictions relating to the exercise of power, whether within unitary States, or between federated States, in a very wide variety of different federal arrangements. Through a body of progressively developing jurisprudence, review powers have come into being, sometimes without any formal legislation to govern them. It would be astonishing if no such developments had occurred in the system of global governance, once it began to develop, and to grow in sophistication. However, as is the usual rule with any large agglomeration, the more the world moves towards globalised and geographically extended systems which are inevitably lacking in intimacy and solidarity, the less opportunity there is to make rapid progress in developing judicial controls of this kind. In addition, as has already been said but as should be stressed again, it should be realised that the pillars of the San Francisco scheme have collapsed. In 1945, the Security Council’s powers, which in formal terms were very extensive, were available only for urgent action to keep the international peace, narrowly defined. As soon as the Council began, in our own day, to assume much wider powers, under a developing and evolutionary interpretation of Chapter VII of the Charter, turning itself partially into a world government, serious new consideration to the question of controls became essential. Those who drafted the Charter would never have dared to create a Council ‘liberated’ from the law, if they had envisaged the Security Council as it now functions; they were simply too attached to State sovereignty. As Judge A Gros so elegantly put the point: ‘To assert that a matter may have a distant repercussion on the maintenance of peace is not enough to turn the Security Council into a world government.’2702 In short, today the objective has to be to coordinate the system in such a way as to ensure that there are developed networks of control, interaction and cooperation, and that these networks give proper space and a proper role to the law itself. The 1945 ‘rule of urgency or exception’ could not have lasted forever; in the end, it must give way to ‘ordinary’ rules of law. This is the task for our own day – little by little to create and constitute this new corpus of ‘ordinary’ law. An example. The various recent developments in the listing and delisting of funds allegedly constituting terrorist finance, without there being any proper judicial control or review of   Dissenting Opinion of Judge Gros, Namibia case, ICJ Reports 1971, 340, § 34.

2702



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the Security Council resolutions under which such funds have been seised in various Member States of the UN, have thrown a crude light on the question. The importance of these developments justifies our giving them a certain amount of space. Following the events of 9/11, the Security Council was persuaded to reinforce the regime of sanctions against terrorism, and against those suspected of supporting and funding it.2703 In this context, the Council’s Sanctions Committees drew up lists of persons believed to be supporters of terrorist groups, requiring their assets to be seised, especially their bank accounts. These measures, adopted under Chapter VII of the UN Charter, have binding force on the Member States of the UN, by virtue of Article 25 of the Charter; and, by virtue of Article 103, they take priority over any other international agreement. However, the rights of those thus accused to be heard, and to defend themselves against such measures, were insufficiently respected. In the early stages, no protections for them were established. In particular, the Sanctions Committees did not give them a hearing. There was no procedure for delisting those already listed. It took the diplomatic intervention of certain Member States before Sanctions Committee 1267 (named after the 1999 Resolution of the same number), the Committee for measures against Al-Qaida, and other Committees, began to review their disputable practices. The Swiss government played a part in this.2704 In the context described above, it was inevitable that individuals hit by sanctions should bring cases before national tribunals, or before European ones (when the sanctions were implemented by the organs of the European Union), in order to seek protection for their rights. They invoked their fundamental human rights, such as the right to be heard (recht– liches Gehör), the right of legal redress, and the right to property. This resulted in internal or international tribunals pronouncing indirectly on the validity of Security Council Resolutions. In order to decide whether the authorities of a particular State had validly seised the assets in question, the tribunals had to scrutinise the validity of the legal basis which the State claimed justified the seizures. The legal basis relied upon by the States was the execution of a binding resolution of the Security Council, and an incidental question which inevitably arose was whether the resolution was legally a valid one. If it was not, there would have been no legal basis for the national measures taken to implement the resolution. But would the internal tribunals of the various States concerned be prepared to undertake such an incidental review of the legality of the Security Council’s acts? Were they entitled and able to do so? How can one reconcile, on the one hand, the binding force of Security Council decisions and the necessary discipline in applying the sanctions it decrees, with, on the other hand, a right of review multiplied by the potentially unlimited number of potential reviewing tribunals? How, to put the question in broader terms, does one reconcile the collective interest in making international sanctions against terrorism effective, with the collective interest in proper respect for fundamental human rights? The first point to recognise is that the tribunals seised of this delicate question have not declared that they do not have jurisdiction. They have examined the substantive question as to the validity of Security Council resolutions and of the derivative acts of Sanctions Committees. They have been readier to review these issues than the International Court of 2703   See Res 1373, 1377; 2002, Res 1438; 1440, 1450; 2003, Res 1455, 1456; 2005, Res 1611, 1617; 2006, Res 1735; 2007, Res 1787 etc. 2704   See JF Paroz, ‘Les droits and les devoirs d’un Etat membre: l’expérience et les initiatives de la Suisse defpuis son adhésion aux Nations Unies’ in R Kolb, Introduction au droit des Nations Unies (Basle/Brussels, 2008) 270 et seq. Thus, for example, a procedure for requesting delisting was provided for in Security Council Resolution 1730 (2006).

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Justice itself,2705 which has been very cautious about them.2706 Two sets of jurisdictions have been seised of these questions: the Tribunal of First Instance of the European Communities (and subsequently the Court of Justice of the European Communities (CJEC)); and national tribunals, particularly in Belgium, Canada, Italy, the Netherlands, Pakistan, Switzerland, Turkey and the USA.2707 The former’s jurisdiction rested on the fact that the Council’s sanctions were implemented at EC level by the rules of the European Community. The latters’ jurisdiction derived from the fact that the measures of implementation were taken primarily by the national authorities in the countries of domicile. Since this is not the appropriate place for a detailed study of this jurisprudence, the broad outlines must suffice. In Europe, the focal point of the jurisprudence has first been that tribunals of various kinds have affirmed their incidental jurisdiction to review the question whether the Security Council’s resolutions exceeded the limits of international jus cogens. It was in this way, for 2705   The Court had, albeit somewhat summarily) reviewed the validity of Security Council resolutions outside the scope of Chapter VII in some older advisory opinions, notably in the Certain expenses case (1962), Reports, 167 et seq. and Namibia (1971), Reports, 21 et seq. See Thierry, ‘Les Résolutions des organes internationaux’, above n 2696, 393 et seq. In the Lockerbie case (1992–98), the Court showed itself unenterprising in this regard. 2706  As to this practice, see the brief account by G Thallinger, ‘Sense and Sensibility of the Human Rights Obligations of the UN Security Council’ (2007) 67 ZaöRV 1031 et seq. See also, among the many other commentaries: HP Aust and N Naske, ‘Rechtsschutz gegen den UN-Sicherheitsrat durch europäische Gerichte?’ (2006) 61 ZöR 587 et seq.; V Bore Eveno, ‘Le contrôle juridictionnel des Résolutions du Conseil de sécurité: vers un constitutionnalisme international?’ (2006) 110 RGDIP 832 et seq.; M Bulterman, ‘Fundamental Rights and the United Nations Financial Sanctions Regime: The Kadi and Yusuf Judgments of the Court of First Instance of the European Communities’ (2006) 19 Leiden Journal of International Law 753 et seq.; U Haltern, ‘Gemeinschaftsgrundrechte und Antiterrormassnahmen der UNO’ (2007) 62 Juristenzeitung 537 et seq.; J Klabbers, ‘Kadi Justice at the Security Council?’ (2007) 4 International Organizations Law Review 293 et seq.; M Payandeh, ‘Rechtskontrolle des UN-Sicherheitsrates durch staatliche und überstaatliche Gerichte’ (2006) 66 ZaöRV 41 et seq.; S Zasova, ‘La lutte contre le terrorisme à l’épreuve de la jurisprudence du CFIEC’ (2008) 19 Revue trimestrielle des droits de l’homme 481 et seq.; S Griller, ‘International Law, Human Rights and the European Community’s Autonomous Legal Order: Notes on the European Court of Justice Decision in Kadi’ (2008) 4 European Constitutional Law Review 528 et seq. See also, D Simon and F Mariatte, ‘Le Tribunal de première instance des Communautés: Professeur de droit international? À propos des Judgments Yusuf, Al Barakaat International Foundation et Kadi du 21 septembre 2005’ Europe no 12, December 2005, Study no 12; E Cannizzaro, ‘A Machiavellian Moment? The UN Security Council and the Rule of Law’ (2006) 3 IOLR 189 et seq.; D Simon and A Rigaux, ‘Le jugement des pourvois dans les affaires Kadi et Al Barakaat: Smart sanctions pour le Tribunal de première instance’ Europe no 11, November 2008, study 9; H Flavier, ‘Les rapports entre le droit communautaire et le droit des Nations Unies’ Droit Administratif no 11, November 2008, comm. 151; C Tomuschat, ‘Case Law (Yusuf, Kadi)’ (2006) 43 Common Market Law Review 537 et seq.; N Lavranos, ‘UN Sanctions and Judicial Review’ (2007) 76 Nordic Journal of International Law 1 et seq.; M Gautier, ‘Lutte contre le terrorisme et droits fondamentaux: le droit international sous la surveillence de la CJCE’ La Semaine Juridique, no 45, 5 November 2008, 39 et seq.; LM Hinojosa Martinez, ‘Bad Law for Good Reasons: The Contradictions of the Kadi Judgment’ (2008) 5 IOLR 339 et seq.; various contributions in (2008) 91 Rivista di diritto internazionale 1075 et seq.; P De Sena and MC Vitucci, ‘The European Courts and the Security Council: Between Dédoublement fonctionnel and Balancing of Values’ (2009) 20 EJIL 193 et seq.; M Milanovic, ‘Norm Conflict in International Law: Wither Human Rights?’, (2009) 20 Duke Journal of Comparative and International Law 69 et seq.; P Hilpold, ‘EU Law and UN Law in Conflict: the Kadi case’ Max Planck UN Yearbook, vol 13 (2009) 141 et seq.; G De Burca, ‘The ECJ and the International Legal Order after Kadi’ Jean Monnet Working Paper no 1/09 (2009); various contributions in Yearbook of European Law, vol 28 (2009) 533 et seq.; various contributions in F Salerno (ed), Sanzioni ‘individuali’ del Consiglio di sicurezza e garanzie processuali fondamentali (Padova, 2010); A Tzanakopoulos, ‘Collective Security and Human Rights’ in E de Wet and J Widmar (eds), Hierarchy in International Law (Oxford, 2012) 42 et seq.; (all the documents without exact page references can be consulted at www.lexisnexis.com/fr). On recent developments: S Cassella, ‘Les suites de l’arrêt Kadi de la CJCE: quel équilibre entre protection de la sécurité internationale et respect des droits de l’homme?’ (2010) 56 AFDI 709 et seq. See also G Gaggioli and R Kolb, ‘Le Conseil de sécurité face à la protection des civils dans les conflits armés’ in Essays in Honor of Joseph Voyame (Leiden/Boston, 2010) 49 et seq. 2707   See the references in G Thallinger, ‘Sense and Sensibility of the Human Rights Obligations of the UN Security Council’, above n 2700, 1032; Third Report of the Analytical Support and Sanctions Monitoring Team Appointed Pursuant to Resolution 1526 (2004), UN Doc S/2005/572, §§ 50–51.



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example, that the Court of First Instance of the European Communities (CFIEC), in the case of Yusuf and others v the European Council (2005),2708 proceeded. The CFIEC began by considering whether it possessed an incidental jurisdiction to examine whether binding resolutions of the Security Council breached norms of jus cogens, and to refuse to sanction resolutions that did so. The justification for this jurisdiction has been somewhat summary. Since jus cogens is composed of norms of a ‘public policy’ nature and since there can be no derogation from it, including for the Security Council, the court could, as an incidental matter, review those norms (§ 277). The court seems to have affirmed its jurisdiction on the mere basis that the Security Council was bound by certain absolute norms.2709 These imperative norms set objective legal limits to what it can do, and in that way they act as limitations upon the Council’s decision-making powers (§ 281). If the court found that the Council had exceeded its powers by breaching such norms, it would have to refuse to apply them. The court then stated that these norms included fundamental human rights (§ 282). In the circumstances of the case, however, it refused to categorise the Security Council resolutions in question as ultra vires. The CFIEC stated that the guarantees of human rights invoked before it were not absolute, and could be limited by the effects of a preponderating public interest, although there were some fundamental human rights – a kernel of them – of which this could not be said. The CFIEC indicated that the arbitrary deprivation of property might, in some circumstances, constitute a violation of imperative norms, but this was not such a case (§§ 293 et seq.). Similarly, there was no absolute right to a prior hearing, especially where urgent measures were involved, whose effectiveness depended on not giving advance notice to those who were to be affected (§§ 307–308). Moreover, following interventions by the States of which they were nationals, the objectors had in fact subsequently been given some hearing by the Sanctions Committee (§ 318). The argument was the same as regarded an effective right of access to justice. The Court held that this, likewise, was not an absolute right, and could be subjected to limitations (§ 342). The CFIEC in each case applied the incidental proportionality test, perhaps following the CJEC judgment in the 1966 Bosphorus case.2710 It did, for example, point out that the Council’s measures were of limited duration (12–18 months), and that this weakened the argument that they violated norms of jus cogens (§ 344). It also added that diplomatic protection remained a possible avenue of recourse for aggrieved parties (§ 345). In short, the Court stated that certain rights were not matters of jus cogens, or at least, that norms of jus cogens had not been concretely violated by the Council’s measures. The Court therefore held that the decisions of the European Council implementing the Security Council’s resolutions were valid. The Court reached similar conclusions in the Kadi (2005),2711 Ayadi (2006)2712 and Hassan (2006)2713 cases. In the meantime, judgment was given by the CJEC on the appeal in the case of Kadi and Barakaat International Foundation (2008).2714 This judgment overturned the CFIEC’s   Judgment of 21 September 2005, §§ 277 et seq., available at curia.eu.int.   It was not obvious that one could move on from this finding which was of a material nature, to claim the existence of a jurisdiction to review. These are separate matters. The Court stated no reason for the missing link between these two legal propositions. It proceeded by a kind of ontogenesis, taking a step in the argument for which it produced no justification. 2710   Judgment of 30 July 1996, CJEC, 1996, I-2953, §§ 19 et seq. 2711   Judgment of 21 September 2005, available at curia.eu.int. 2712   Judgment of 12 July 2006, ibid. 2713   Judgment of 12 July 2006, ibid. See also the Al-Aqsa case, Judgment of 11 July 2007, ibid. 2714  Judgment of 3 September 2008, ibid. See the opinion of Advocate-General Poiares Maduro dated 23 January 2008, ibid. See also the case of Sayadi v Belgium, Communication 1472/2006 of the UN Committee on 2708 2709

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decision, and stated that the review of the compatibility of a Community measure with the full standard of fundamental human rights was a rule of community law that could not be by-passed, derived, as it was, from the fundamental principles of European law, in particular from the principle of the rule of law. The primacy of the law of the Charter under Article 103 could not prevail over these fundamental principles (§§ 281 et seq., 308, 316).2715 In this way it was enabling those concerned to have a full review carried out as to the legality of community acts from the perspective of fundamental rights. This is not guaranteed by the essentially diplomatic procedures at the Sanctions Committees; the Court was a substitute for them (§ 326). In short, review by the European courts is carried out from the perspective of fundamental human rights recognised in community law. It is no longer limited to the violation of rules of jus cogens (§ 327). As to the substantive questions, the CJEC found that fundamental rights had not been respected, notably the right to a hearing and the right of effective recourse to law (§§ 334 et seq.). The CJEC also reviewed the measures’ proportionality, finding them not, in fact, to be disproportionate (§§ 360 et seq.). The Swiss Federal Tribunal has taken an approach similar to that of the CFIEC. In the case of Nada v SECO (2007),2716 the Tribunal referred to, and adopted, the CFIEC’s jurisprudence (§ 5.4) and the incidental review as to the limits of jus cogens (§ 7). The Tribunal then defined the norms which it considered were those of jus cogens, namely the right to life, protection against torture and inhuman or degrading treatment, the prohibition of slavery or trading in slaves, the prohibition of collective punishments, the principle of individual responsibility in criminal cases, and the prohibition of refoulement (turning back). Other rights, such as rights of property and economic liberty, were not, in the court’s view, matters of international jus cogens. As to the right to be heard, and the right to a fair procedure, the court thought that they did not feature among the non-derogeable rights under the ECHR or International Covenant II of 1966 on civil and political rights. The Tribunal therefore concluded that these were not norms of international jus cogens (§ 7.3). It added that there was no sufficient international consensus to limit the sanctions regime under Chapter VII of the UN Charter by such procedural protections for the individual (§ 7.4). Finally, the court engaged in its own review of proportionality. It emphasised that the complainant’s vital minimum interests had not been seised, so that neither his life nor his health were endangered. Moreover, the travel restrictions placed on him were not excessive, given that the targeted persons retained their freedom of movement within the State in which they were domiciled, and were also free to return to the State of their nationality. The delisting procedure was an improvement on the previous lack of any recourse. Although it was still inadequate, there was, in all the circumstances, no violation of interHuman Rights, decision of 22 October 2008, CCPR/C/94/D/1472/2006, in which the Committee adopted the idea of a plenary review as regards the Convention’s protection of civil and political rights. 2715   This relative weakening of the law of the Charter, and in particular of Art 103, poses serious problems of legality as regards the UN. It replaces the Charter’s universal vision with a potentially more and more aggressive regionalism. The rights that are fundamental to Europeans can easily be stated in European terms. But what would be said if a regional tribunal were to reason in the same way, giving primacy to the Islamic sharia as a local jus cogens, or to any other collection of norms that are scarcely compatible with the law of the UN? The determination of the greater powers on the Security Council not to allow a review procedure worthy of the name to emerge within the UN system is, to say the least, largely co-responsible for this troublesome state of affairs. 2716   Judgment of 14 November 2007, no 1A.45/2007, §§ 5 et seq., ATF, 133 II, 450 et seq. See also, A v Département fédéral de l’économie, Judgment of 23 January 2008 (2A.783/2006); A v Département fédéral de l’économie, Judgment of 23 January (2A.784/2006); D v Département fédéral de l’économie, Judgment of 23 January 2008 (2.A.785/2006); A v Segreteria di Stato dell’ economia, Judgment of 23 April 2008 (2A.48/2007).



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national norms of jus cogens (§ 7.4). One final point is worth mentioning. The Tribunal said that delisting was the exclusive prerogative of the Security Council. The Federal Tribunal itself was entitled to review the question whether Switzerland was bound by the Council’s resolutions, but it had no jurisdiction to lift the sanctions from the applicant’s shoulders on the basis that they violated his fundamental rights (§ 8.3). It was for the Swiss government to take the matter to the Sanctions Committee and request that the person in question be delisted.2717 Logically, unless and until that were done, that person would remain subject to the sanctions. This was a significant limitation to incidental review as to jus cogens. What conclusions can we draw from all this? At least five aspects can be mentioned. First, the principle of jus cogens continues its rise, its vitality confirmed, and it is now applied in a new field. Previously, it has been a limitation on States’ power to enter into treaties (Article 53 of the 1969 Vienna Convention on the Law of Treaties). Now it has become a form of international super-legality, which would aggravate the consequences of international responsibility for the violation of an imperative norm; limit the range of lawful counter-measures; prohibit reliance on circumstances that might otherwise have made the action lawful; categorise certain international crimes; oppose amnesties under internal law; materially limit the powers of the Security Council and so on.2718 In the last case, one can discern a parallel to the restriction of the freedom to make treaties, since, in both situations, it is a matter of ruling on the validity of a legal act, one a treaty, the other a Security Council resolution. If the jurisprudential practice continues to follow the trend set by the CFIEC and CJEC, it is possible jus cogens, or more general norms of fundamental human rights, will eventually gain sufficient ground to become fairly practical limitations on the actions of the Security Council. That amounts to saying that the underlying spirit of Chapter VII, under which the Council has a very wide discretionary power as regards all related functions,2719 would slowly be modified, so as to impose specific limitations on those powers.2720 This would mean that the Council’s political decisions would progressively become more subject to legal controls. The old struggle against untrammelled arbitrary power would then be carried up to the supranational level, where the principles of the rule of law and separation of powers have hitherto failed to take root. One thinks immediately of Montesquieu: ‘It is the universal experience that any man who holds power is driven to the abuse of it, and will continue until he encounters its limits.’2721 Second, these limitations resulting from norms of jus cogens or of human rights are not simple intellectual constructions devoid of practical implications. We now see courts applying them. By the very fact that such legal reviews take place, and through the resulting sanctions, however partial and irregular their incidence, one ends up by creating a primary obligation. The sanctions invented by the courts in due course harden into a new norm of material law, placing limits on the actions of the Security Council. 2717   This constitutes a coda to the Hassan case of 2006, cited above n 2713, in which the CFIEC affirmed that Member States of the EU owe a duty of diplomatic protection to those of their citizens that are caught up in this situation. 2718   See R Kolb, ‘Observations on the development of the concept of jus cogens’ (2009) 113 RGDIP 837 et seq. 2719   This aspect of the law of the Charter was highlighted by H Kelsen some decades ago, in The Law of the United Nations, above n 2700, 736. 2720   Giving concrete form to the dictum of the ICTY in the Tadic case (1995), § 28, under which the Council does not have unlimited powers, but remains subject to the law of the Charter: see ILM, vol 35 (1996) 42. 2721   De l’esprit des lois, Book XI, chap IV. He adds ‘Who would dare say it? Even Virtue needs limits.’ (our translations)

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Third, limitations under jus cogens or human rights law in no way arise under the Charter, nor are they related to it. They are matters of general international law, or of treaty law; they are thus external to the Charter, and so, if and when they form the basis for a review, the review is not carried out under the law of the Charter itself. Legally, therefore, they amount in effect to an importation into the Charter. It should also be remembered that the jus cogens criterion is the product of jurisprudence. The review by the CFIEC was thus, so to speak, an ‘invention’. It flowed from two main sources. First, there was the idea that there was an institutional deficiency within the UN system. Unless and until the UN organises a procedure that has the capacity to sanction violations by its organs of fundamental rights, national or regional courts and tribunals must undertake the task, in order to plug the gap. This jurisprudence is reminiscent of the view the German Constitutional Court took of the European Communities in the Solange judgments of the 1970s and 1980s. Second, there was the need to restrict judicial review, in order not to destabilise the regime of global sanctions, to take account of the priority of obligations under the Charter over other international obligations, and to avoid giving encouragement to the bringing of multiple review cases based on an excessively wide range of available grounds of plaint. A certain balancing of interests was therefore necessary. It was from this idea, so typical of constitutional law and human rights law, that the jus cogens test emerged. Two public policy imperatives need to be reconciled: on the one hand, the need for collective security and effective measures against terrorists; on the other, respect for fundamental human rights. They are reconciled by positing the principle of respect for obligations under the Charter, while at the same time constructing a narrow escape route under imperative law. There is thus a presumption that the acts of the Security Council are valid.2722 The CFIEC jurisprudence involves the application of a kind of judicial restraint. The escape route consists of judicial review with a view to ascertaining whether the resolution infringes fundamental norms, a vice going beyond what is tolerable socially and politically. In this way, a balance is struck between respect for collective measures (Rechtsbindung) and the review of legality (Rechtskontrolle). The two elements take the form of a rule, and an exception to that rule. This has consequences for the interpretation of the exception, which is a strict one, a strictness that may make itself felt even if the review actually goes ahead. A judicial refusal to apply a resolution, on the grounds of an alleged violation of jus cogens, ought, to the maximum possible degree, be a partial refusal rather than a complete one. Moreover, the nonapplication will, as regards Article 25 of the Charter, be the ultima ratio. As for the CJEC’s criterion, review from the perspective of the European human rights system, it is notably broader, the balance tilting more towards the protection of individual rights, to the detriment of the integrated implementation of the Security Council’s measures. Fourth, there is the question whether the jus cogens concept retains the same meaning throughout the various branches of the law in which it fulfils ever more varied functions. Is it not possible for the various imperative norms to appear differently, according to the various legal missions they are to fulfil: the same body in a variety of different garbs? The situation would then be rather similar to that for standards of attribution, which vary according to whether it is a question of determining which State organs contribute to the 2722   This presumption echoes a principle of the law of international organisations, namely that a measure adopted by an international organ is presumed to be valid: ‘[W]hen the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization.’: case on Certain expenses, ICJ Reports 1962, 168. See also the individual Opinion of Judge Morelli, ibid, 223.



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formation of a rule of customary law, engaging the State’s international responsibility, or of deciding whether an armed conflict has been internationalised as a result of a foreign State’s control over a local faction.2723 Would it then not help to define the specificities of jus cogens in relation to limitations on the Security Council’s powers? More broadly, thought also needs to be given to the potential implications of a conflict between two norms of jus cogens. That is a possibility that cannot be excluded. The Council’s collective action can legally be derived from the prohibition of the use of armed force, which is generally considered to be a rule of imperative law.2724 If such action by the Council were to be in conflict with the self-determination of peoples, with imperative rules of human rights, or with fundamental norms of international humanitarian law (for example, in relation to occupied territories), the result would be either a direct or an indirect conflict between imperative norms. Commentators are still only in the early stages of considering the implications of this.2725 Of course the CJEC’s different test to some extent avoids these problems by by-passing the question of jus cogens. But the question of collision between fundamental norms remains. Fifth, this practice shows that there is no way of avoiding judicial review.2726 First, the credibility of the Security Council, and the legitimacy of its acts, cannot be maintained in the long run, if the Council appears to be legibus solutus, exercising unbridled power. This can be seen very clearly from the events following the resolutions against Libya after the Lockerbie outrage: the Organization of African Unity and a series of African States refused to implement the Council’s measures, because they considered the resolutions in question to be tainted by abuses.2727 What is more, if there is no possibility of international legal review, internal or regional review will be substituted for it, so as to safeguard the elementary rights of individuals. There is an obvious danger that a plurality of controls, of an anarchic and uncoordinated nature, will then produce contradictory results. Of course, that possibility cannot be excluded, even if the ICJ carries out such reviews of legality. But such situations might perhaps seem less pressing, and might therefore be likely, in practice, to occur less frequently, if the ICJ had some pre-eminent jurisdiction in that area. Also, national tribunals would then be obliged to take their lead from the answers given by the ICJ.2728 Second, we no longer need to reason in the abstract about the advantages of the Council’s freedom of action and the dangers of being governed by judges. Current practice provides experience of actual judicial review. Quod fieri non debet, factum valet. The question now, is no more than at what level such controls should operate. There is no doubting the fact that, in general, the ICJ is best equipped to carry out such judicial reviews, since it   The ICJ accepted such a plurality of standards of attribution in the Genocide case, ICJ Reports 2007, § 404.   See O Corten, Le droit contre la guerre (Paris, 2008) 293 et seq., with the numerous references cited therein. 2725   For some summary reflections on this question, see R Kolb, ’Conflits entre normes de jus cogens’ in Mélanges offerts à Jean Salmon (Brussels, 2007) 481 et seq. For the law on occupation in time of war, cf R Kolb, ‘Occupation in Iraq since 2003 and the Powers of the UN Security Council’ (2008) 90 RICR 29 et seq. 2726   Contrary to the view of commentators who are hostile to the review of acts of the Security Council. In this sense, see, eg S Sur, Le Conseil de sécurité dans l’après 11 septembre (Paris, 2004) 29, 125. As to this question, see the further exploration below at (c). 2727   See T Kalulu, ‘La décision de l’OUA de ne plus respecter les sanctions décrétées par l’ONU contre la Libye’ (1999) 32 RBDI545 et seq. 2728   The decision would have to be made obligatory for all Member States. It would then be binding on their courts. In the meantime, one can argue that the ICJ’s decision determines the applicable international law and is binding on internal tribunals as an international legal norm, taking priority over internal laws. If there is a conflict between international jurisdictions eg, between the ICJ and the CJEC, the ICJ prevails by virtue of Art 103 of the UN Charter. It will be remembered, in this connection, that the Court’s Statute is an integral part of the Charter, by virtue of Art 92 of the latter. 2723 2724

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has the most expert judges and enjoys the highest degree of legitimacy,2729 and since the task carries distinct ‘legislative’ overtones. It is possible that the current practice will have an influence on the Court’s propensity to carry out incidental reviews of the kind it used to duck. One can also imagine a pre-judicial review mechanism emerging from a UN resolution, without any actual revision of the Court’s Statute. Municipal or regional courts and tribunals that were seised of the matter (or at least had jurisdiction in respect of it) would then be invited or obliged to send the prior question of the Security Council resolution’s validity for consideration by the ICJ. c)  Arguments for and against Judicial Review The answer to the question of judicial review of the political acts of international organisations, and particularly of the UN, depends primarily on one’s conceptions of international law, of the rule of law, of national sovereignty and of the UN’s constitutive document, that is, the Charter. There is, in this field, a fundamental opposition of views between those commentators that have been called the ‘realists’ and those who have been called the ‘legalists’.2730 This terminology, however, is far from being a happy one. The fundamental opposition is really between those opposed to the justiciability of such acts, and those who favour it. Denial of justiciability. In the view of the ‘realist’ school, which includes, for example, M Reisman,2731 GH Fox2732 and S Sur,2733 the Charter is not a constitution, but simply a treaty establishing a system based both on the mutual independence of its organs, and on giving priority to the collective security measures adopted by the Security Council. Also, the action of the Security Council takes place in a context designed by the draftsmen of the Charter in such a way as to give the Council ample political discretion. Its powers under Chapter VII are so wide that it is difficult to imagine how one could set about the business of subjecting them to legal analysis. There are no objective legal criteria by which the Council’s actions under Chapter VII might be judged. It is not possible to give legal treatment to matters which are altogether outside the law. The Council operates in the field of ‘governmental acts’, which courts cannot review or control. There is no place for the rule of law in a system which, like this one, is deliberately based on the pre-eminence of the political. There are also various practical arguments, which were already being deployed at the San Francisco Conference and in the early years of the UN thereafter, namely the need to avoid a legal straitjacket, the concern not to inhibit the Security Council’s activities by a legalistic approach or by delays in courts of law, the particular urgency of the Council’s work under Chapter VII and so on. One might also mention other fears, for example, of ‘government by judges’ and of the politicisation of the justice system itself. 2729   See Art 9 of the Statute of the ICJ: ‘At every election [of judges of the Court] the electors shall bear in mind not only that the persons to be elected should individually possess the qualifications required, but also that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured.’ On this important provision, see B Fassbender, ‘Article 9’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 261 et seq. 2730   See Alvarez, above n 2696, 1 et seq. 2731   MW Reisman, ‘The Constitutional Crisis in the United Nations’ (1993) 87 AJIL 83 et seq. 2732   GH Fox, ‘Discussion’ in J Delbrück (ed), New Trends in International Law-Making (Berlin, 1997) 319. 2733   S Sur, ‘La sécurité internationale et l’évolution de la sécurité collective’ Trimestre du monde, fasc 4, (1992) 129–30; S Sur, Le Conseil de sécurité dans l’après 11 Septembre (Paris, 2004) 29, 125.



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Asserting justiciability. The opposed ‘legalist’ school, which includes commentators such as M Bedjaoui, JE Alvarez and M Zambelli, who are cited at the beginning of this section, start by basing their arguments around the fact that the States that gave birth to the United Nations wanted to give the Security Council only specific powers in a particular field, albeit wide-ranging ones, and had no wish to make it all-powerful in a way which would be incompatible with their rights and their sovereignty. The claim that the Council it is acting for the purpose of maintaining the peace was considered an insufficient reason to allow it to turn itself into a world government. This school of thought also took the view that, as a body created by treaty, the Security Council is bound by the text (at least in part, Article 24, § 2 of the Charter: respect for the Purposes and Principles of the Charter). It is also bound by, and subject to international law, which is the basic legal order for the entire international community. These commentators then point out that times have changed. In 1945, by far the biggest concern was to ensure that the Council was an effective body, but that concern has faded, experience demonstrating the need for a better balance between the various factors in play – respect for the law, which Member States have come to see as increasingly important; a concern for the legitimacy of the Council’s decisions; and so on. The wording of Chapter VII itself is not, in truth, entirely discretionary, that is, not entirely extra-legal. As treaty provisions, the provisions of Chapter VII must be viewed as containing at least a kernel of material that indeed can be defined in legal terms, despite the ‘discretionary halo’ that tends to surround them. The reason is that, if it were otherwise, States would have given the Security Council a blank cheque to do as it wishes with their sovereign rights – an absurd conclusion. Of course, the review of Council activities by the Court needs to be carefully modulated, and there can be no question of the Court’s denying, or failing to respect, the fact that that the Council does enjoy a very wide measure of political discretion. Judicial oversight must be measured out in canny doses, especially as regards the substantive scope of the Court’s review activities and, put in formal terms, as regards the degree of formal cognisance the Court is prepared to take of matters decided by the Council. One might, for example, envisage the Court confining itself to striking down manifest abuses, and declaring certain categories of Council resolution to be simply nonjusticiable. According to the authors of this group, we have to accept, however, that, in modern conditions, the issue of judicial review cannot be completely by-passed. The only question is then as to the level at which judicial review should take place: should it be carried out by the ICJ, a unique body, with the best understanding of the UN, the needs of the Security Council, and of international law itself; or should it be done by a range of internal jurisdictions, each of which will plainly have a lesser expertise and be less sensitive to these needs, and whose various activities will inevitably give rise to a troublesome degree of fragmentation in the applicable law. Indeed, as we have already seen, the recent procedures for delisting in relation to the control of terrorism demonstrate that, absent adequate reviews of legality at the international level, internal or regional jurisdictions are bound to step in, as substitutes for the ICJ, in order to carry out reviews, whether limited or wide-ranging, of the legality of Security Council resolutions. Finally, it has been argued that the very existence of an effective jurisdictional control mechanism would have a dissuasive value, ensuring that the Security Council behaved with a certain degree of restraint.2734 The UN’s political organs, conscious that judicial review was a real possibility, would be more careful about their decisions and about stating the reasons for them. 2734   See LA Sicilianos, ‘Entre multilatéralisme et unilatéralisme: l’autorisation par le Conseil de sécurité de recourir à la force’ CCHAIL, vol 339 (2008) 210.

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Assessment. What, then, are we to make of these arguments? The denial of any real possibility of judicial review, however understandable it may be, does in truth seem both anachronistic and unjustifiable. The arguments advanced by the champions of judicial review deserve acceptance, subject to the proviso, however, that judicial review by the Court must not be taken too far. It must remain measured, and relatively modest, so that executive and judicial functions co-exist, as they must, each enjoying a sufficient sphere of action and responsibility. Encroachment by one sphere on the other must be avoided. In any community, the almost complete ‘legalisation’ of inter-personal relationships is an indicator of a certain pathology, in fact of decadence. In municipal law, it leads to a litigious frame of mind, to an aggressive ‘syndicalism’ that asserts self-proclaimed ‘subjective rights’ in every direction. The process is inevitably accompanied by a reduction in the degree to which the community administrative organs recognise and discharge the responsibilities which ought to be theirs. Like Pontius Pilate, they tend to wash their hands of responsibility, leaving it to the omnipresent judges to decide. Such a ‘legalisation’ of the life of a community inevitably complicates and dislocates relationships within that society. People dig themselves into rigid and formalistic entrenched positions. The necessary flexibility and human contact that make societies work well are in short supply. These tendencies are all the more to be regretted in fields where decisions need to be taken in a way that involves the weighing up of parties’ interests, in highly delicate and complicated contexts. In an over-legalised environment, it is impossible, or at least difficult, to make such assessments in the light of considerations that cannot be generalised in such a way as to be capable of generating abstract and ready-made legal norms. To sum up, then, on the one hand, judicial review by the Court is, in the world of today, an ineluctable necessity; but, on the other hand, it must be modest in its objectives and in the degree to which the Court takes cognisance of the issues considered by the political organ whose acts are being reviewed. This brings us back to a consideration of those arguments of the ‘realists’ that need to be taken most seriously, and of the extent to which they need to be given at least partial effect. First, it is argued that the Charter is a treaty, and not a constitution; it does not present or design a system of government comparable to the government of a State. This is not a sound argument. One cannot simply take one’s stance on the formal expressions ‘treaty’ and ‘constitution’: one has to go further, and look at the underlying realities. There is no room for doubt that the UN system is indeed a system of international governance, as recently demonstrated, for example, by the procedures for listing and delisting so-called terrorist funds. To some extent, the system of international governance has existed ever since the beginning, the Council being authorised to adopt wide-ranging executive measures. It is of little importance that this is not the same system as the constitution of a sovereign State. What matters are the functional equivalences – albeit only partial ones – residing in the fact (for fact it is) that bodies capable of taking binding decisions have been established. Legal protections against such decisions are therefore a necessity. Second, the argument runs that the draftsmen of the Charter wanted a system based on political rather than legal decision-making. They gave the Council powers that are exclusively discretionary in nature. On proper scrutiny, however, this is only an argument for restricting the degree of judicial review, not for excluding it altogether. The draftsmens’ wishes reflected the views, needs and concerns of 1945. But the UN system has evolved considerably since then, at every level. The argument also tends to undermine the sovereignty of States, and the legal characteristics of the Charter itself. It would be sufficient justifica-



JURISDICTION OVER ACTS OF OTHER UN ORGANS 895

tion, on this view, for the Council to claim that it is taking action in the interests of maintaining the peace, to allow it to simply sweep away all the rights (including the sovereignty) of Member States. This would, of course, leave the Council itself not only with powers that are, in legal terms, discretionary ones, but with political power of a completely unlimited nature. It is impossible to suppose that this was, or is, the wish of the Member States. A counterweight, able to set certain limits to that political power, remains a necessity.2735 In other words, every discretionary power must remain at least minimally limited by law, in order to avoid its degenerating into the kind of arbitrary power that States would never be prepared to accept in an international institution. The relative ‘sovereignism’ of the numerous commentators who would deny to the ICJ the power of review – for example S Sur – ought in fact to be pushing them in precisely that direction, albeit in a moderated way. Third, it is argued that the texture of the Security Council’s powers under Chapter VII is so ‘open’ – for example, ‘threat to the peace’ – that judicial review is either impossible or at least extremely difficult, since there is very little in the text that offers any kind of legal toehold. This view has already been partially disposed of above. There never are, and never have been, treaty words, providing an international body with a competence or jurisdiction, that have been entirely devoid of legal connotations. The kernel of legal content may be very small, but it is always there, because a jurisdiction or competence conferred by treaty always exists in the context of treaty norms and general international law. An all-ornothing interpretation is simply inadequate. A whole series of subtle relationships link the political and legal elements together. It is perfectly possible that the Court might refuse to review the effects of an extremely ‘open’ legal texture of this kind. The Court might perfectly well declare that concepts such as a ‘threat to the peace’ are non-justiciable, and decline to review the related action of the Security Council. That would not mean that the provisions in question are entirely political, but merely that the degree of discretion that they confer is so wide as to prevent the Court’s scrutinising the legality of the action. This is a concept running parallel to the non-justiciability of many governmental acts in municipal systems of law. And, of course, such governmental acts, taken under a national Constitution, likewise have legal aspects, albeit not being justiciable. Fourth, that leaves the practical arguments, namely concern about a legal straitjacket; not inhibiting the capacity for rapid action by imposing lengthy legal proceedings; government by judges and so on. In truth, none of these is a decisive objection, and all of them can be accommodated by practical provisions and arrangements. A legal straitjacket and government by judges can be avoided by allowing only a limited degree of judicial review. The capacity for rapid action can be protected by the fact that legal proceedings will not have a suspensive effect. It is also possible to envisage not retrospectively invalidating concrete acts taken pursuant to an illegal resolution, provided that at the time of the acts, those taking action believed the resolution to be valid. This would to some extent be analogous to the law of treaties, under Article 69, paragraph 2 of the 1969 Vienna Convention. To sum up, none of the anti-review arguments is decisive. On the contrary, the modern view of the United Nations as a governmental unit necessitates a certain degree of judicial control, for the same reasons of law and legitimacy as apply in municipal systems of law. The only really interesting question is as to the degree of judicial control that is acceptable. The question is not ‘whether’, but rather ‘how’, and ‘to what extent?’ 2735   The Court would have to be one of the counterweights to ensure respect for legality and for the rights of Member States.

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d)  Competences within the UN System The power of a court of justice to review the acts of political bodies depends, inter alia, on the way powers are attributed and distributed within a public community or international organisation. Under Article 7, paragraph 1 of the Charter, the United Nations comprises six main organs: the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the ICJ and the Secretariat. These bodies do not operate in perfect equality. The functions of the Secretariat are primarily executive. It is therefore somewhat subordinate to the political organs (Article 98 of the Charter). The Assembly enjoys a certain pre-eminence, in that it determines the general policy of the UN and receives reports from the other organs (Article 15 of the Charter). The Economic and Social Council, and the Trusteeship Council, are placed ‘under the authority’ of the General Assembly (Articles 60 and 87 of the Charter). If a matter is under discussion by the Security Council, or the subject of action by it, the Assembly must abstain from making recommendations as to – but not from debating – the question the Council is seised of, so as not to weaken the Council or even undermine its activities (Article 12, § 1 of the Charter). These provisions show that the network of relationships between the principal organs is not founded solely on equality between them, but also, in part, on various relationships involving elements of subordination, even if that subordination is a relative, temporary or functional matter. From another point of view, equality and coordination prevail between the various bodies. That is the position as regards the particular powers proper to each organ. At the San Francisco Conference, there were proposals to confer on the ICJ or the General Assembly the power to decide conflicts of jurisdiction as between the various organs, but these proposals were rejected. The result is that each organ in the last resort decides for itself where the limits of its jurisdiction actually lie.2736 In other words, each organ possesses ‘jurisdiction as to jurisdiction’. This state of affairs represents a kind of double anarchy. The UN is, first and foremost, based on the sovereign equality of States. The Organisation proposes, but the States disposes. In addition, there is the right of each organ to take independent decisions as to its own jurisdiction. Looked at from a quite general point of view, the powers of the various bodies are dispersed and scattered. Each organ interprets its jurisdiction for itself, and treats its own view as final and unappealable. This atomisation of authoritative power of interpretation gives rise to a structural tendency to frequent and complex conflicts of jurisdiction. The tendency is made worse by the fact that the jurisdictions of various organs overlap, those of the Assembly and the Security Council (Articles 11 and 24 of the Charter); those of the General Assembly and the Economic and Social Council (Articles 10, 13, 14 and 62 of the Charter), and so on. This state of affairs makes essential the principle of good faith cooperation between the various organs (Organtreue). They are required to make the effort to find concerted solutions, avoiding situations in which one encroaches excessively on the competences of another.2737 2736  See Bedjaoui, Nouvel ordre mondial, above n 2697, 20–22; JP Müller, Vertrauensschutz im Völkerrecht (Cologne/Berlin, 1971) 227 et seq. 2737   See generally, E Klein, ‘Parallelles Tätigwerden von Sicherheitsrat und Internationalem Gerichtshof bei friedensbedrohenden Streitigkeiten’ in Essays in Honor of H Mosler (Berlin/Heidelberg/New York, 1983) 481 et seq.; R Kolb, La bonne foi en droit international public (Paris, 2000) 509–10. See also Bedjaoui, Nouvel ordre mondial, above n 2697, 89, regretting that the Council did not follow this principle of cooperation and mutual respect in the Lockerbie case.



JURISDICTION OVER ACTS OF OTHER UN ORGANS 897

From the foregoing considerations it follows that: (1) The ICJ is one of the main organs of the UN, with powers entirely independent of those of the other main organs. Its independence derives partly from the fact that it is a judicial body (Article 2 of the Statute) and partly from the principles of UN law. (2) The Court is not subordinate to any other body. Thus Article 12, paragraph 1 of the Charter, prohibiting the Assembly from adopting a recommendation on a question of which the Security Council is already seised, has no counterpart as regards the ICJ. The two organs, Council and Court, exercise their powers in complete mutual independence. (3) In consequence, the review by the Court of the legality of acts of the Security Council is legally possible, since both in fact and law, the Court is independent of the Council, and the review can therefore be an impartial exercise. (4) The reciprocal independence of the two organs explains why the draftsmen of the Charter avoided placing the Security Council on an apparent footing of subordination to the Court by assigning to the latter a general power to review the acts of the Security Council.2738 (5) The Council and the Court owe each other a duty of mutual respect under the principle of cooperation between the organs of the UN, precisely because their respective powers are coordinated, and work to a considerable extent in parallel with each other. To what extent, then, is a review of legality by the ICJ possible under current positive law?

e)  Modalities of Review by the Court In the current state of the law, can the Court review the legality of acts of the UN’s political bodies, particularly the Security Council? The response at one level is negative, and, at another, positive. First of all, it is obvious that the Court has not been given power to rule on the legality of such acts in the guise of an appeal or a provision for their cassation. This means that a Member State which considers that its rights are infringed by a resolution of one of the political organs cannot take the issue to the Court, as a citizen might take an administrative act of a national government to a national tribunal under internal law. The Court made the point most trenchantly in the Namibia case (1971): ‘Undoubtedly, the Court does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations organs concerned.’2739 That conclusion is in conformity with the law of the Charter and of the Statute. It reflects the rejection at the San Francisco Conference of the Belgian proposal to confer such a role upon the International Court of Justice. The next point to emphasise is that the Court is not deprived of all possibility of reviewing the legality question, whether directly or indirectly, in the course of contentious or advisory proceedings. In other words, questions concerning the legality of a resolution of a UN political organ can arise in the course of the Court’s ordinary activities. In such a case, the Court is not disarmed or neutered; it can issue its judgment. Contentious cases. In the Court’s contentious procedure, the review of legality can only be an indirect exercise, but it need not necessarily be a merely incidental matter. We must, of course, remember that Article 34, paragraph 1 of the Statute limits access to the Court to   As the Court emphasised in the Namibia case, ICJ Reports 1971, 45, § 89.   ICJ Reports 1971, 45, § 89.

2738 2739

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States. It follows that a dispute directly as to the validity of a resolution, and directed against the body that adopted the resolution, is impossible, because the latter is not a State. The application to the Court can lead to a judicial review of an element in dispute only if it is an inter-State dispute. In this personal sense, the review will inevitably be always ‘indirect’. However, if the application to the Court does come from States that are in dispute, the Court has jurisdiction to hear it. The case can thus bear either immediately and principally on the resolution’s validity or it can address that question only in a mediated and accessory manner. The two hypotheses have to be distinguished from each other. In the first, if two or more States take the question that is in dispute between them to the Court, the question being whether a resolution governing their legal situation is or is not valid, and if they ask, for example, that the Court give a declaratory judgment, the Court can hear the case (ratione materiae a direct review). The other hypothesis is that two or more States take to the Court a current dispute between them and, in order to decide the dispute properly, the Court has first to decide on the validity of a UN political organ’s resolution, in which case the Court can decide the validity (ratione materiae an indirect review, or incidental review). The expression ‘incidental review’, is borrowed from municipal law procedures, and indicates the conjunction of two elements: (1) the Court is not directly reviewing the legality of the act in question, and only dealing with it as a necessary prior matter, that is, as incidental to the principal question it is called upon to judge; and (2) in consequence, the Court will not make a declaration as to the validity or nullity of the act in question, because that is not the direct object of the proceedings; the Court simply confines itself, when considering the act in question to be invalid, to not applying, for the purposes of its judgment, the resolution or decision concerned. An example is as follows. There is a bilateral commercial treaty in force between States A and B, both Members of the United Nations. The Security Council declares an embargo against State A, purportedly by virtue of its powers under Chapter VII. State B therefore stops performing its obligations under the treaty, arguing that its UN Charter obligations override them. State A considers this a breach of the treaty, and takes the dispute with State B to the ICJ, seeking reparations and the renewed performance of obligations under the treaty. State B relies on the Security Council resolution, and invokes Articles 25 and 103 of the Charter. State A replies that the resolution does not derogate from State B’s obligations under the treaty, because the resolution is invalid. State A argues that the resolution was adopted without the requisite majority under the Charter, because of the absence of several States from the Council meeting in question; State A further argues, for example, that the resolution was adopted in breach of other procedural rules; or that it was an abuse of the Security Council’s powers, outside any context that could be properly categorised as a ‘threat to the peace’ . Obviously, the Court cannot decide the main issue between the parties (international responsibility for breach of the treaty), unless and until it has first decided on the validity of the resolution. Certainly, the Court could simply say that it does not have power to review the legality of the resolution, and that therefore the legal presumption stands, unchallengeably, that the resolution is valid in law. In the circumstances, this would lead almost automatically to a decision in favour of State B, under the law of the Charter. It should be noted, however, that in its advisory practice, the Court has not refused to consider the validity of resolutions when it was necessary to do so in order to address the principal question before it. There is no reason for the Court to adopt a different approach in contentious cases. In our example, the two States would thus have also been able to seise the Court directly of the validity question, asking for a declaratory judgment on that point,



JURISDICTION OVER ACTS OF OTHER UN ORGANS 899

or they might have seised the Court of a dispute about the treaty, raising the validity of the resolution as an incidental question. So far, the most interesting case on the review of legality has been Lockerbie (1992–98).2740 Libya seised the Court, invoking its rights under the 1971 Montreal Convention on the Safety of Civil Aviation. The Convention entitled Libya to refuse to extradite individuals accused of acts of aerial terrorism, if it declared it was willing to subject them to an internal criminal trial of its own (aut dedere, aut judicare). The USA and the UK wanted to avoid Libya’s exercising that right under the Convention, fearing that, given Libya’s complicity with the terrorists, the Libyan criminal proceedings would not be worthy of the name. The two States succeeded in persuading the Council to adopt Resolution 748 (1992), by which the Council, acting under Chapter VII, ordered States that included Libya to deliver up the accused to the authorities of the western States concerned. There was thus a conflict between a treaty right and an obligation resulting, under the UN Charter, from a binding resolution of the Security Council. Article 103 of the Charter, giving primacy to obligations under the Charter, did not automatically dispose of the question, because, obviously, it presupposed a valid resolution. The Court quite rightly avoided this question at the provisional measures stage in 1992. That stage, involving an urgent procedure, in which the applicable law is considered on a summary or prima facie basis, is certainly not appropriate to the examination of so important a question, especially when it would be the first time the Court had ever carried out such an exercise in a contentious case. The Court confined itself to affirming that the parties, as Members of the UN, are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter; whereas the Court, which is at the stage of proceedings on provisional measures, considers that prima facie this obligation extends to the decision contained in resolution 748 (1992); and whereas, in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement, including the Montreal Convention.2741

Careful notice should be taken of the fact that the Court did not duck the question entirely, but was merely reaching a conclusion appropriate to the stage of the proceedings at which it arose. Later, in 1998, before the parties discontinued the proceedings, the Court affirmed that it had jurisdiction, and that the application was admissible. From the legal point of view one has to regret that the proceedings were later discontinued, in that it deprived us of a merits judgment that would have been of immense interest. The Court would probably have had to take a position, one way or the other, on the resolution’s validity, and would, in the process, have made a major contribution to international judicial and substantive law. 2740   As to this precedent, see the texts written since 1992 that are cited in the introductory section of the present chapter, eg Gowlland-Debbas, ‘The Relationship between the I CJ and the Security Council’, above n 2696; Papa, above n 2696, 321 et seq.; and Zambelli, above n 2696, 355 et seq. See also, among others, the critique by M Bedjaoui, in his Dissenting Opinion accompanying the Orders of 1992 (ICJ reports, 1992, 33 et seq. and 143 et seq.) and in Nouvel ordre mondial, above n 2696, 84 et seq. Further indications can be found in the case on the Application of the Convention against Genocide (Bosnia-Herzegovina v Yugoslavia), and the East Timor case. The former came to grips with resolutions of the Security Council and the right of legitimate defence, but the Court did not have to give a definitive ruling on the point. In the latter case, there was an issue as to the resolutions of the Council and the Assembly conferring rights on Portugal as administering power over East Timor. Unlike the parties, and unlike certain individual judges, the Court did not feel it necessary to deal with that question. cf Papa, above n 2696, 331 et seq.; Zambelli, above n 2696, 364 et seq. 2741   ICJ Reports 1992, 15, § 39 and 126, § 42.

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A tribunal other than the ICJ has engaged in such a review of a prior and incidental legality question. In the case of Tadic (1995),2742 the ICTY pronounced on the legality of its own creation by Security Council resolutions under Chapter VII. Having affirmed its jurisdiction over the incidental question, to the extent it was necessary to decide it in order to exercise its primary jurisdiction, the Tribunal carried out a rather detailed review. It began by affirming that the discretionary powers of the Security Council, although wide, were not unlimited. The Council, it said, was a constitutional body bound to and by the UN’s constitutive treaty, under which it exercised its powers. It was not legibus solutus. This limitation, resulting from Article 24, paragraph 2 of the Charter, applied also to the concept of a ‘threat to the peace’, the context within which it must be recognised that the Council enjoyed a quite wide-ranging discretionary power. The Tribunal then engaged in an exercise of interpreting the Security Council’s powers under Articles 41 and 42 of the Charter. These powers were sufficiently wide to allow the Council to create a tribunal. The Tribunal also called to mind the fact that the Security Council does not necessarily have, when delegating its own powers, to delegate them to a subsidiary body rather than to an independent body. It followed that the Council could create a judicial body even though the Council itself did not have judicial powers. The Tribunal even considered whether its own creation could be considered ‘appropriate’ within the meaning of the law of the Charter, although in this connection it accorded the Council the widest of discretions (§ 39). Finally, the Tribunal considered whether its creation was contrary to the general principle of law – under human rights law – to the effect that a court or tribunal must be ‘established by law’ (§§ 20 et seq.). The Tribunal took the view that this principle, codified in human rights instruments, applied literally only to municipal courts and tribunals, not to international ones. In international law, a court or tribunal cannot be created by a ‘law’, because there is no ‘law’ in that sense of the word. The concept ‘established by law’ in this context must mean established in conformity with the requirements of the rule of law, that is, by a process that respects recognised standards of justice and fairness. The court or tribunal must thus be able to guarantee, by its procedures, an equitable legal process. In the view of the ICTY, that was the position as regarded its own procedures. The Tadic precedent provides a kind of prototype for incidental reviews of the legality of acts of the Security Council. It was not really very appropriate for the Tribunal to review the legality of its own creation, since it was, in a sense, acting as judge in its own cause, but this was due to the fact that the major Powers in the Security Council did not want to submit the question for an advisory opinion of the ICJ, which would doubtless have been the most obvious way to proceed. Advisory procedure. In advisory opinion cases, the question arises in an analogous way. Here, however, the review can be either direct or incidental. The organ requesting the advisory opinion can directly put at issue the validity of a resolution or other legal act. Moreover, unlike in contentious proceedings, which are strictly inter-State affairs, the organ which adopted the resolution can itself take part in the review proceedings before the Court. The request for the opinion will frequently come from the same organ whose resolution is

2742   ILM vol 35 (1996) 32 et seq., §§ 9 et seq. On this case, see Papa, above n 2696, 348 et seq., with the literature indicated in his note 219. For a critical view, see G Politakis, ‘Enforcing International Humanitarian Law: The Decision of the Appeals Chamber of the War Crimes Tribunal on the Dusko Tadic Case (Jurisdiction)’ (1997) 52 ZöR 283 et seq.



JURISDICTION OVER ACTS OF OTHER UN ORGANS 901

under challenge. As in contentious proceedings, the review can be either the principal exercise or an incidental one. i) It is a principal exercise if the body requesting the advisory opinion asks the Court to determine whether a resolution is valid. The question can be put to the Court even while the resolution is purely prospective and has yet to be adopted, and then the purpose of the review is a preventive one. In those circumstances, the Court will interpret the Charter, in order to indicate to the requesting body what its permissible options are. The Court will not decide formally on the validity of the resolution, since the latter is as yet only a hypothetical one. The Court has already proceeded in this way on several occasions, for example, in the two opinions concerning the admission of new Members to the UN: Conditions of admission of a State to membership in the United Nations (1948),2743 and Competence of the General Assembly for the admission of a State to the United Nations (1950).2744 Once the resolution has been adopted, one is on the right terrain for a review of legality in the ordinary sense. The Court carried out such a review in its advisory opinion on the Constitution of the Maritime Safety Committee of the Intergovernmental Maritime Consultative Organization (1960).2745 The question that was put to the Court was connected with the non-election of Liberia and Panama to the Committee, the electors taking the view that it was insufficient simply to count the effective tonnage of vessels registered with these States, and that the proportion representing flags of convenience ought to be deducted. This distinction was challenged, on the basis of an argument that it was incompatible with Article 28(a) of the Convention constituting the Organisation, which laid down the criteria for States’ eligibility. Although the question put to the Court was not directly formulated in terms of the validity of the resolution but in terms of the conformity of the election to the Organisation’s Charter, the reality was that the Court’s opinion bore (from the formal point of view, indirectly) on the validity of a resolution under which the election was carried out. The Court concluded that the act was done on the basis of a misinterpretation of the provision in question. It followed that the resolution was invalid. The Court did not say that explicitly in the operative part of its judgment, because the question had not been put to it in those terms. Nevertheless, it followed from the Court’s interpretation of the provision. ii) In other cases, the review is incidental in nature. The question of the resolution’s validity is in such cases a prior matter, one that must necessarily be resolved before the principal question can be answered. So far, this has been the commonest kind of review.2746 Thus, in the Certain expenses case (1962), the Court rejected certain complaints against the General Assembly’s budgetary resolutions, that is, it reviewed their validity, which was disputed by certain Member States. In particular, the Court took the view that the expenses of the United Nations Organisation, as contemplated in Article 17, paragraph 2 of the Charter, included all the expenses of realising objectives of the Organisation under Article 1 of that instrument, and not just the costs of functions specifically contemplated in the Charter.2747 In a way, the ends (the objectives) were held to justify the   ICJ Reports 1947/1948, 57 et seq.   ICJ Reports 1950, 4 et seq. 2745   ICJ Reports 1960, 150 et seq. As to this case, see Papa, above n 2696, 293–94, and the literature there referred to. 2746   See Thierry, ‘Les Résolutions des organes internationaux’, above n 2696; Zambelli, above n 2696, 352–55. 2747   ICJ Reports 1962, 167 et seq. See Papa, above n 2696, 301 et seq. and the literature there referred to. 2743 2744

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means (the finance). The Court applied these precepts to the resolutions adopted in the context of peace-keeping operations and with a view to paying for them.2748 The Court accordingly concluded that the resolutions in question, and the interpretation on which they were based, did not deserve censure. In the Namibia case (1971),2749 the incidental review was carried out in a yet more manifest manner, and at a preliminary stage of the proceedings. The substance of the question related to the termination of South Africa’s mandate over South-West Africa (Namibia) for grave and repeated violations of its duties as mandatory (Security Council Resolution 276 of 1970). The Court decided to dismiss certain complaints by South Africa against Security Council Resolution 284 of 1970, which requested an advisory opinion from the Court. The Court began by positing the principle that there is a presumption that the acts of an international organisation are valid. The principle flowed from the competence that each organ body possessed (§ 20). The Court then turned to consider the South African claims, the first of which was to the effect that the Resolution had not been correctly adopted because of the abstentions of two permanent members of the Counsel, contrary to the letter of Article 27, paragraph 3 of the Charter, which required the ‘affirmative’ votes of the five permanent members. The Court called to mind the practice of the Security Council and long accepted by the membership of the UN, that abstention was not considered an obstacle to the adoption of resolutions. Generally accepted subsequent practice had, in this respect, modified the rule set out in Article 27, paragraph 3, the word ‘affirmative’ being now interpreted as meaning ‘non-negative’ (§ 22). The second South African claim related to the failure to invite it for consultation, in breach of Article 32 of the Charter.2750 However, the Court decided that Article 32 clearly indicated that it related only to ‘disputes’, and that here the Security Council had been dealing not with a ‘dispute’, but with a ‘situation’. South Africa could have objected to that categorisation at the time the Council’s agenda was formulated. It had not done so at the time, and it was therefore not possible for it to raise the point before the Court (§§ 23–25). The same reasoning was applied to the objection to the abstention from voting in relation to Article 27 paragraph 3 of the Charter, which likewise was applicable only in the event of a ‘dispute’ (§ 26). The Court was thus carrying out a true incidental review, bearing in this case particularly on issues of procedural regularity (the voting on the resolution and the procedure followed). The review implied that the Court might draw the consequences of any irregularity (invalidity) it found in the resolution in question. Otherwise, the review would be of no interest and pointless. The Court would then have had to fall back on the general rule that the act must be presumed valid, and that it could not review its legality. But that was not the course the Court took. If the Court had held the resolution to be invalid, it would have had to refuse the request for its advisory opinion. This would have been one of the situations in which the Court would have had no discretion whether or not to respond to the request, and would have been required by the applicable law to refuse it.   ICJ,ibid, 170 et seq.   ICJ Reports 1971, 21–23. See Papa, above n 2696, 311 et seq., with the literature referred to therein. 2750   Art 32 reads as follows: ‘Any Member of the United Nations which is not a member of the Security Council or any state which is not a Member of the United Nations, if it is a party to a dispute under consideration by the Security Council, shall be invited to participate, without vote, in the discussion relating to the dispute. The Security Council shall lay down such conditions as it deems just for the participation of a state which is not a Member of the United Nations.’ 2748 2749



JURISDICTION OVER ACTS OF OTHER UN ORGANS 903

The Court subsequently confirmed this jurisprudence in its advisory opinion in the case on the Legal consequences of the construction of a wall in the occupied Palestinian territories (2004).2751 The Court dismissed Israel’s objections to the validity of the resolution requesting its advisory opinion. The first objection was that Article 12, paragraph 1 of the Charter, concerning the priority of Security Council action, prevented the General Assembly from adopting such a resolution. The Court held, inter alia, that a request for an advisory opinion is not formally a ‘recommendation’ within the meaning of Article 12, paragraph 1. Also, the subsequent practice of the UN showed that the provision had been flexibly applied. The second objection was that the conditions of Resolution 377 (V), ‘Uniting for peace’, on which the request for the Court’s opinion was based, were not satisfied. The Court held that this was not so. The Security Council was completely ‘blocked’ by the negative vote of a permanent member (the USA); there was, in the words of the General Assembly, a ‘threat to the peace’; and the extraordinary session of the Assembly had been convoked in conformity with Article 9(b) of the Assembly’s own internal Rules. Finally, the jurisprudence was again confirmed in the Court’s advisory opinion on the Accordance with international law of the unilateral declaration of independence in respect of Kosovo (2010).2752 Certain States took the view that the General Assembly had no power to adopt the resolution requesting the Court’s advisory opinion, because the Security Council was seised of the substantive issue (Article 12, § 1 of the Charter), and in any event only the Council could, and should, have requested the opinion. The Court replied that, as it had already said in the Wall case, Article 12, paragraph 1, related only to the prohibition of recommendations, and a request for an advisory opinion is not a recommendation. The Court also pointed out that, for over 10 years, the Assembly had concerned itself with the Kosovo question, especially the human rights aspects, and that it was entitled to do so under its general powers (Article 10 of the Charter). The Assembly’s interest in the question went beyond the question of international peace and security, as to which the Security Council’s competence was an exclusive one. Moreover, even the competence of the Security Council on issues of international peace and security is not an exclusive one, though it is the organ with the primary competence in this field. The Assembly is fully entitled to play a secondary part, and in fact the UN practice tends more and more in the direction of a concurrent and parallel exercise of the two organs’ respective competences. In short, there was no legal reason to prevent the Assembly from requesting an advisory opinion in the course of the exercise of its own duties as laid down in Articles 10 to 14 of the Charter, and, in this case, particularly in Articles 10 to 11. Here again, the Court concluded that the resolution requesting its advisory opinion was valid, and that it could respond. Given that this jurisprudence is so well consolidated, one can now say that incidental review in advisory opinion cases is a solidly established procedure, and one that is frequently carried out. Types of objection. What kinds of objection can be raised to the resolution of an international organ, in particular of the Security Council? A comprehensive list cannot be drawn up, because the number of possible objections is so great as to be uncountable. It is nevertheless possible to identify the different types of possible objection, since all of them fall into one or other of the general categories that are possible. The question is obscured, however, by a preliminary problem that until now has not been sufficiently clarified, namely as to what law is binding on the Security Council. As a   ICJ Reports 2004-I, 148 et seq., §§ 24 et seq.   At §§ 36 et seq.

2751 2752

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question of United Nations law, it is impossible to go into further argument here. On the one hand, the Council obviously is bound by the Purposes and Principles of the Charter, however flexible they may be. That follows directly from Article 24, paragraph 2 of the Charter. However, it may imply, a contrario, that the Security Council, at least when exercising its functions under Chapter VII, is not bound by all the rules laid down in the Charter. The urgency with which it needs to act might imply the recognition of a right to ‘make exceptions’. Such a right is not unknown to municipal legal systems in analogous situations of urgency. But is the Security Council bound, over and above the principles of the Charter, by public international law itself? It would seem strange that an organ of a subject of international law could be free of the constraints imposed by the international community’s legal system,2753 particularly since the constitutive instrument under which the Security Council exercises its powers rests, in the last resort, on international law, on the law of treaties. Can a public community’s legal system really give one of its members a blank cheque, freeing it from all legal norms and in effect plunging it into a sphere of extralegal operations? The idea seems less acceptable under modern conditions, when the rule of law at international level is becoming ever more widely accepted. Also, we should remember that the Council was not designed by the UN’s Member States as a kind of ‘global law-maker’: the Member States did not wish to abdicate their sovereignty. To accept that the Council is entirely free from the trammels of international law and thus totally exempt from the duty to respect its norms – including norms as to State sovereignty – might easily lead to the existence of an all-powerful body, one with an unlimited right to make its own laws. What else could such a body amount to than the World Legislature? From another perspective,2754 there is nothing to say that all the norms of general international law apply to the Security Council, either per se or subject to modifications.2755 Obviously, there are some norms that cannot be applied to the Council, there being no point in doing so. The UN possesses neither sovereignty nor territory, and the rules protective of territorial integrity cannot therefore benefit it. Equally, it is not obvious that all customary norms automatically apply in the same way as they apply to other subjects of international law. Their field of application can vary ratione personae. To say that they apply outside the original group of subjects of law for and between whom the norm was created, may presuppose their adaptation to meet this new practical need. The most common mistake is to think that all norms of general international law apply automatically and equally to all subjects of international law. If that is true as regards the most important ones, it is far from being the invariable position. Also, the urgency with which the Security Council needs to be able to act is very largely based and articulated on derogations from the ordinarily applicable norms of international law. Under the Charter, the Council possesses powers that would be exorbitant in the hands of another subject of international law, for example the right to make war and peace. So a norm as central as the prohibition of the use of force can apply to the Council only with substantial modifications. The same can be said of the prohibition on intervention in internal affairs (expressly excepted by Article 2, § 7 of the Charter as regards action under Chapter VII), of the freedom of the seas (there can be 2753   In support of the idea that the Council is bound by international law, see Bedjaoui, Nouvel ordre mondial, above n 2696, 40 et seq. 2754   For a view that the Council enjoys a fairly considerable degree of freedom from the rules of international law, see Kelsen, The Law of the United Nations, above n 2700, 294–95. 2755   Particular international law certainly applies to the Council, since it rests on voluntary undertakings, eg in agreements. The principle pacta sunt servanda always applies to these.



JURISDICTION OVER ACTS OF OTHER UN ORGANS 905

derogation for blockades and embargoes), of neutrality (inapplicable to the Security Council), and so on. If and when there is a conflict between the particular law of the Charter (further reinforced by Article 103 of that instrument) and general international law, the former will often prevail, as a lex specialis. Certainly, it is possible to say that one is then still within the sphere of international law, but it is international law of a particular kind. It must be admitted, however, that the very special ‘law’ that the Council can create often turns out, on analysis, to be a case of derogation, whether large or small, from a universal norm. Finally, it must be realised that the Council cannot free itself from all the norms of general international law. Some of those norms are fundamental for the international community as a whole, and from them there can be no derogation by any subject of law. There can be no doubting the fact that the Council is bound by a species of ‘jus cogens’. Here too, however, it is not necessarily the same jus cogens as applies to inter-State relations. This is easy to see when one thinks of the principle of non-recourse to the use of force. That principle – under Article 2, paragraph 4 of the Charter and under general international law – is considered by informed international legal opinion, and by the practice of States, to be a matter of imperative law.2756 It is nevertheless obvious that it is not binding on the Security Council in the same way that it is binding on States. Given that the Council enjoys the benefit of a jus ad bellum (for the purposes of international ‘police’ action), it is not under an obligation to eschew the use of force: see Article 42 of the Charter. Conversely, there can be no doubt that the fundamental norms of international humanitarian law are binding on the Council, just as they are binding on States. Careful definition is needed to the limits of the Council’s action under ‘public international law’. Perhaps one general rule should be that the Council is bound by the body of international law relevant to its action, and that this body of law can be by-passed only to the extent that the derogation is necessary for the purposes of action under Chapter VII (or of powers derived from other Chapters). The presumption would be in favour of international law, but that law would yield to functional necessities, since the Charter of necessity does confer on the Council the means to the effective exercise of its powers. However, it remains to be seen whether the Council alone should, in the last resort, be the judge of whether such ‘necessities’ exist. If it were, there might very easily be a slippery slope towards various kinds of action that, although ‘useful’, are not strictly ‘necessary’. Alternatively, perhaps the ICJ should be the ultimate judge and control over ‘necessity’ and proportionality? Obviously, this question, as to what law is binding on the Council, has a massive influence on the type of objections that can be raised against acts of the Council. The same goes, mutatis mutandis, for the other organs of the UN. Without going into the details, one can say that it does seem possible to succeed with the following objections, in the sense that there is at least a chance that the Court will entertain and examine them: −− Procedural failings.2757 In advisory opinion cases, the Court has examined procedural failings. Such failings can concern voting, the calling of meetings, the proceedings at meetings, the right to be heard, and all the other procedural rules that are not matters of the Council’s discretion, because they exist to protect parties’ essential rights. −− Substantive defects. The Court can first consider whether the organ in question has the necessary competence. If the competence is as wide as that of the General Assembly or   See O Corten, Le droit contre la guerre, above n 2724, 295 et seq.   Contra, Bowett, above n 2696, 95, on the singular ground that the Council has charge of its own procedures. 2756 2757

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the Security Council, the Court’s review of it will be a quite limited exercise. The Court will also review the conformity of the action to international law or to the instrument constituting the organisation concerned. Depending on the case, and especially where the Security Council is concerned, this review will be reduced in scope, to an examination of whether the Council (or other body) has abused its discretionary powers, that is, whether it has exercised them in a manner which is manifestly arbitrary or not in conformity with the purpose for which the powers were instituted in the first place (abuse of power). The Court may also review the question whether the Council has by-passed or violated norms of international law from which it may not derogate. These objections may likewise be raised against the actions of bodies other than the Security Council, but, in the case of the Council, these aspects will clearly be pre-eminent. Finally, there is nothing to stop the Court hearing objections to the necessity for and/or proportionality of action that has been decided upon or recommended. Account must always be taken, however, of the fact that here, only judgments that are entirely arbitrary and/or manifestly and flagrantly disproportionate will be censured by the Court. Also, it is often difficult to decide in advance whether the action will be disproportionate. Everything depends on the manner in which the States carry out the acts authorised by the Council. It will therefore often suffice to remind the States of the duty of proportionality, without having to enter into the question of invalidity. It can also sometimes be premature to decide these questions at any given stage. There are certainly some objections that the Court could not entertain, and that would be inadmissible. The most obvious example is where the objection is based on a different appreciation of the facts. The Court will not review such an appreciation, which is a matter for the Council alone. Only an objection that the appreciation was manifestly an arbitrary one (in conjunction with the applicable legal norm) would have any possibility of obtaining a hearing. The same applies if the application to the Court is based on a difference of political judgment. That is not a question of law, and therefore does not fall within the Court’s competence. In the great majority of cases, the categorisation of a situation as a ‘threat to the peace’ will, absent some manifest abuse, fall into this category. Such cases are very largely concerned with a political judgment made by the Council, a judgment connected to the means which at a particular moment seem to the Council to be the most appropriate way of dealing with the conflict or dispute in issue. Questions concerning the ordinary use of discretionary powers (a particularly wide category in the case of the Security Council) will not be judicially reviewed. The fact that the Council could have decided differently, that it might, for example, have been wiser to adopt other measures, and other objections of a similar nature, are inadmissible grounds for review. The same goes, and with even more force, for arguments that members of the organ in question are insufficiently independent or insufficiently impartial, in relation to the subject of the disputed resolution. The UN’s organs do not have to display guaranteed independence and impartiality. In the case of the Security Council, it comprises the representatives of States, exercising political functions. They may well have prejudices and predilections. The Council is not a jurisdictional body like a court or tribunal. It is a political organ. Similarly, there will be no review of an objection based on claims that the organ in question has changed its practices or the rules under which it functions, assuming, that is, that the changes are not unlawful, but a matter of free choice. Here too, the objection is not a legal one and the Court cannot entertain it.



JURISDICTION OVER ACTS OF OTHER UN ORGANS 907

Normally, the Court does not raise objections of its own volition: judex non eat ultra petita. The question could arise, however, as to whether the Court might raise motu proprio a question as to the nullity of a legal act of an international organisation, if and when the validity of the act becomes pertinent for the purposes of the principal subject of a case of which the Court is seised. The basis of this power would reside in the fact that the Court ought not to sanction acts of an international organ that are in some way gravely vitiated. On the contrary, the requirements of the rule of law within the UN ought to push the Court into taking appropriate action motu proprio. In contentious cases, the question is, admittedly, rather a theoretical one, since it is unlikely that the interested State would fail to object to some apparently manifest defect in a resolution. But the question is perhaps rather less academic in the context of advisory opinion cases, where the requesting organ might well put some questions to the Court, while withholding others. The problem is made more difficult by the fact that the concept of ‘nullity’ covers a very wide range of defects and defaults under the law of international organisations. Given that there is no ordinary judicial recourse against the acts of such organisations, questions relating to the nullity or voidability of such action, very much a judge’s field of operation, are encountered quite rarely. The aspect most frequently encountered is absolute nullity, which a State may invoke independently of any judicial pronouncement to that effect.2758 In order not to undermine legal certainty in an excessive way, cases in which the invalidity of the resolution or other act makes it an absolute nullity rather than a relative one, must be limited to those where the defect or default in question is a very serious one. It must, therefore, be both manifest and grave before it can be accepted to have led to absolute nullity.2759 One must, in any event, not lose sight of the idea that the Court’s power to raise invalidity questions of its own volition, must be confined to cases of grave and manifest defects or defaults, in which the legal policy of the UN, the UN’s prestige, and the concept of law itself, make it inappropriate for the Court to pass over in silence a defect which ought to be judicially reviewed. There is another aspect of things that has its effect on the possible grounds for seeking judicial review. The Court might engage in a judicial review under the inspiration of somewhat different fundamental values. The review might, by degrees, be oriented towards: (1) a review from the angle of minority States within the UN; or (2) a review of the functioning of the UN from the legal point of view, investigating the regularity of the acts of UN organs under applicable law (similarly to the proceedings of an administrative tribunal); or (3) an extra ‘heavy’ review exercise in a case where there is an alleged violation of fundamental human rights, or of international humanitarian law (for example, where persons are listed under anti-terrorist resolutions). Reviews under item (1) might be particularly for contentious cases, and item (2) might be the subject of particular attention in advisory opinion cases. Item (3) would concern only certain kinds of case. Obviously such categorisations are intimately linked with the admissible bases for applications for judicial review. A particular type of objection would lead to a certain type of review. The degree to which the Court would take cognisance of all the potentially relevant material would likewise vary. The subject of the challenge. The subject of a judicial review needs to be examined under two limbs. 2758   See the classic and often cited explanation by Judge Morelli (Dissenting Opinion) in the case on Certain expenses, ICJ Reports 1962, 216 et seq. 2759   Ibid, 223.

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First, any resolution of an international organ can be the subject of a judicial review. It is not necessary that the resolution incorporate a decision, that is, that it incorporate a legally binding directive. It is enough that it contain a recommendation, that is, encouragement to act in a certain way. Certainly, the propensity to set a judicial review in motion and incur the related expense will usually be found only where the decision directly affects the rights and duties of the parties. There is, however, nothing to say that a UN organ or a State should not seek judicial review of the validity of a recommendatory resolution. Such resolutions can have highly important effects. Thus, a resolution of the General Assembly – which potentially could recommend the use of force – taken under Resolution 377(V) (‘Uniting for Peace’), could pose grave problems as regards both its legal validity and as regards its practical implementation. Second, the Court’s review of legality can bear, on the one hand, on the resolution itself and its normative contents, just as, on another, it can bear on the measures taken in concrete application of the resolution. For example, the review of legality might be of a Security Council resolution authorising the use of force, and, amongst other grounds for the application, one might be a procedural defect, and another might be want of proportionality in the use of force by States acting on the resolution. Obviously, the Court can rule only if it has jurisdiction over the case in question, whether it be an advisory opinion case or a contentious one. In the latter case, the Monetary gold principle might limit the Court’s jurisdiction. Degree of the review (degree of cognisance). In any ‘appeal’, the question of the extent to which the Court takes cognisance of the original material is a crucial one. Most of the arguments against judicial review by the ICJ of the acts of political organs turn out, on close analysis, to be based on reasons – highly relevant reasons – against the ICJ’s cognisance of the underlying materials being excessively broad and robust. Indeed, this aspect, the question ‘how’ the review should be carried out, is fundamental to the credibility of the whole institution of judicial control. So far, although the ICTY has demonstrated a certain judicial audacity, the ICJ itself has been very circumspect and restrained. Since it is necessary to strike a balance between doing too little (unnecessary, pointless) and too much (paralysis of the political organs), it will be good if, at the very least to begin with, even if not in the longer run, the Court is very prudent in this regard. It will do better if it sins by excessive restraint than by excessive interventionism. Such prudence and reserve will enable the Court to overcome mistrust of judicial controls, whereas enthusiastic intervention would simply consolidate the resistance, and end up by discrediting the cause it sought to advance. A prudent approach also corresponds well to a proper separation of the powers and responsibilities of each organ, political and judicial, and to proper respect for the functional autonomy of each organ. The Court will not push these bodies to shed their responsibilities by waiting for judgments ‘from above’, and the appearance or reality of the Court being excessively ‘politicised’ will be avoided. Finally, the presumption of the validity (or regularity) of the acts of international organs likewise militates in favour of a restrictive approach.2760 The resolutions of international organs are presumed to be valid. It takes a clear defect or default for this presumption to be overturned. Such a defect or default must be manifest, and of particular gravity. This is a standard which, in the nature of things, requires the Court to take only limited cognisance of the matters concerned. What is more,   The case on Certain expenses, ICJ Reports 1962, 168.

2760



JURISDICTION OVER ACTS OF OTHER UN ORGANS 909

the Court will take inspiration from the principle underlying the presumption just mentioned, namely the stability of the law of international organisations, with a view to avoiding resolutions that are nullities. Where there are several possible interpretations, all compatible with the text of the resolution, and some of them would make the resolution a nullity while others would lead to only minor defects, and others still would be fully compatible with the applicable law, the Court will choose one of the latter. The Court will not hesitate to demonstrate its legal creativity, as it did in the Namibia case (1971). Thus, in order to ensure the well-being of the local population, it accepted humanitarian exceptions to the interruption of trade decreed by way of sanctions.2761 The degree of the Court’s cognisance of the matter is closely connected to the type of challenge to the resolution and to the type of procedure concerned (whether the review is direct or incidental ratione materiae in a contentious case, and similarly in an advisory opinion case). For example, it goes without saying that, if the body requesting an advisory opinion requests a full review of a resolution’s legal validity, the Court has no reason for the prudence and restraint referred to above. Nevertheless, it is still of interest to reflect upon the various categories of review and cognisance that may be appropriate in particular cases, especially in the important and delicate context of reviewing Security Council resolutions. Leading commentators2762 have identified the following categories: (1) the Court might confine itself, staying within the wording of the texts, to reviewing ‘manifest irregularities’, including the connections between decisions and their objectives, and abuses of power; (2) the Court might take broader cognisance in advisory opinion cases than in contentious ones; (3) the Court might define certain questions as non-justiciable, for example, the question whether particular circumstances amount to a ‘threat to the peace’; (4) the Court might confine itself to sanctioning the violation of certain fundamental norms of international law and the law of the Charter (jus cogens); and (5) the Court might develop differing standards of review and cognisance, depending on the different types of situations it is faced with (type of resolution, type of activity, whether it is the resolution itself or the acts executing it that fall to be reviewed, and so on). Many nuances are both possible and desirable. It must be admitted, however, that for the moment all these options are intellectual exercises only, de jure condendo. Competence of the organ requesting an advisory opinion in respect of a resolution of a different body. Can an organ request an advisory opinion from the ICJ about a resolution of a different organ? Or is the competence to request an opinion exclusively that of the resolving organ itself? The question arises particularly in relation to bodies with very general competences, such as the UN General Assembly (Article 10 of the Charter). This question is distinct from the closely related one as to whether an organ can ask the ICJ for an advisory opinion in relation to a question or situation of which another organ is seised in a general way, and as to which the latter organ has adopted resolutions. The answer to this question is certainly affirmative. Each organ is fully coimpetent in its own ‘sector’, so that if the General Assembly, having been seised for some years of a situation, wishes, say, to ask the Court’s view on the construction of an Israeli wall in occupied Palestinian territory, it is not prevented from making this request by the fact that the Security Council is also seised of the situation. The Court quite rightly decided accordingly   ICJ Reports 1971, 54 et seq., especially §§ 122, 125.   See, eg Alvarez, above n 2696, 26–27.

2761 2762

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in the Wall case (2004).2763 It repeated the same jurisprudence in its advisory opinion on the Accordance with international of the unilateral declaration of independence in respect of Kosovo (2010).2764 To what extent can an organ request the review of the legality of another organ’s resolution? Can the General Assembly seise the Court of such a request in respect of a Security Council resolution? If so, the Assembly is possessed of an important tool to control the activities of an over-assertive Security Council. It would also present a way round the vetos of the five Permanent Members, since they have no veto in the Assembly. On due analysis, there is nothing in the Charter to prevent the Assembly from taking this step,2765 though it would doubtless be seen as a self-assertive act by one principal organ ‘against’ another. Under Article 96, paragraph 1, both the Assembly and the Council have an unqualified right to seek an advisory opinion from the Court on ‘any legal question’.2766 One might wonder whether it is appropriate to interfere with the activities of the other organ, but the legality of the request for an advisory opinion would not be in doubt. Then there is the question whether, in such a case, the Court might use what it calls its discretionary power to refuse to give the opinion, arguing that the interference by one organ with the activities of another would encroach upon the latter’s autonomy and be contrary to the principle of good faith between the various organs (Organtreue). For the reasons that will be explained in chapter VIII on advisory opinions, in our view it is not possible for the Court to exercise a ‘discretionary power’ in this way.

f)  Effects of the Court’s Pronouncement The Court has not been given the power to declare resolutions to be generally invalid or null and void, with binding legal effect on all United Nations Member States and/or the organs of the UN itself. In this sense, it cannot annul a resolution. The majority view among leading commentators,2767 and for the same reasons, is that nor can the Court declare a resolution null and void without that judicial declaration having a binding effect. This last opinion is, however, a less confident one. Nowhere does it say that the Court cannot declaratively hold (‘constater’) that a resolution is a nullity because of some manifest and serious defect of form or substance, so that the legal consequences of the nullity are then at least de facto flowing from that holding for the UN’s organs and interested Member States. It must be emphasised that the Court would in such a case, confine itself to a legal conclusion of objective type. Because of a manifest and serious defect, the resolution would be a nullity: the legal consequences would remain to be considered, and appropriate conclusions drawn, by the Member States alone. The Court could certainly not lawfully impose its conclusion, either because of the res judicata effects (in contentious proceedings), or because of the non-binding nature of its opinion (in advisory opinion cases – subject, how  ICJ Reports 2004-I, 144 et seq., §§ 14 et seq.   At §§ 36 et seq. 2765   In this sense, also de Wet, ‘Judicial Review’, above n 2696, 257. 2766   See K Oellers-Frahm, ‘Article 96’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 185. 2767   See, eg KH Kaikobad, ‘The Court, the Council and Interim Protection: A Commentary on the Lockerbie Order of 14 April 1992’ (1996) 17 Australian Yearbook of International Law, 138–39. 2763 2764



JURISDICTION OVER ACTS OF OTHER UN ORGANS 911

ever, to there being no special agreement making it binding on the United Nations or on some Member States). In contentious proceedings in particular, Article 59 of the Statute provides for an important limitation that prevents the ‘multilateralisation’ of the Court’s decision, namely that it has no binding force except between the parties and in respect of the particular case concerned. It has also been said that if the Court were to hold that a resolution purportedly derogated from the jus cogens of general international law (Article 53 of the Vienna Convention on the Law of Treaties), the only possible consequence would be the resolution’s objective nullity.2768 That consequence would arise directly, not from the Court’s pronouncement, but rather from the very concept of jus cogens. It nevertheless remains the position, that States not parties to the case would not be bound by the judgment or by the Court’s interpretation, and could dispute the question whether the resolution would in fact amount to an unlawful derogation from an imperative norm. In fact, however, it would be very difficult for any State to sustain such a position once the UN’s principal judicial organ had decided the other way. In the case of an advisory opinion, everything depends on the question put by the requesting organ, on how it is put, and on the modalities of the case. It is thus possible for the question put to the Court to be precisely whether a resolution is a nullity, giving the Court the power to annul it, and even for the outcome to be accepted, by special agreement, as binding and executory within the UN. Nor is the possibility excluded for this legal situation to be binding on all Member States, since the agreement or decision to give the advisory opinion binding force could in certain circumstances benefit from the provisions of Article 103 of the Charter. It must be emphasised that the Court could also find that there had been defects of a lesser gravity in a resolution. It might conclude that the resolution was nevertheless valid, under the presumption of regularity mentioned above, or as a result of interpreting the resolution in such a way that it can be held to be in conformity with applicable law, even though the resolution might not be completely unimpeachable. The Court might say that the resolution presented a certain irregularity – perhaps of a procedural nature – but that it was not serious enough to make the resolution null and void. If the Court held, as a result of an incidental judicial review, that a resolution was invalid, it might refuse to apply it in the circumstances of the case. In that event, the Court would not make a declaration of the general nullity or invalidity of the resolution. It would decide what was wrong, conclude that the resolution was null or irregular, and refuse to apply it in the particular case, thus, for the purposes of that case, refusing it all legal effect. In other words, it would decide the case before it as if the resolution simply did not exist. Of course, the formal legal scope of the Court’s conclusion is only one aspect of the problem. If the Court holds that the resolution is a nullity or is otherwise ultra vires, that on any view does serious damage to the resolution’s legitimacy. It is difficult to see how it could subsequently be applied within the UN as if nothing had happened.2769 That would amount to ignoring and disavowing the organisation’s principal judicial organ. In the only case to date in which the Court has held that a legal act indirectly submitted to judicial review by it was irregular, namely the action of the IMCO Maritime Safety Committee, the IMCO Assembly responded by bowing to the Court’s opinion. It adopted a resolution dissolving   Gowlland-Debbas, ‘The Relationship between the ICJ and the Security Council’, above n 2696, 676.   de Wet, ‘Judicial Review’, above n 2696, 267.

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the irregularly elected Council and electing a new one in accordance with the criteria that the ICJ had indicated.2770 The Court’s opinion was thus fully respected. There is an important distinction between the validity of a resolution as a legal act, and executive acts carried out in conformity with it. In any legal system, there is a problem in deciding what is to be done about acts committed in the good faith belief that the acts are valid, when the act at stake is subsequently found to have been a nullity ex tunc. In this context, if the resolution is only voidable (relative nullity), the problem does not arise, the nullification taking effect only ‘as and when’, ex nunc. Nor does the problem arise if the nullity was understood by the relevant subject-of-law right from the start. That subject-oflaw cannot then take the benefit of special protections for good faith expectations that it simply did not share in (mala fides nocet). The law of treaties governs the situation of bona fide application via Article 69, paragraph 2 of the 1969 Vienna Convention on the Law of Treaties.2771 Steps taken without any legal foundation thanks to the nullity of the resolution in question, and not contrary to public order norms (jus cogens), if they were taken in the legitimate expectation that the resolution was valid, will not, in consequence of its nullity, be unlawful.2772 Here we see the application, by analogy, of this rule of the law of treaties, reflecting a general principle of law. International responsibility for such acts, under an invalid resolution, is then excluded, although assets and rights acquired under the invalid resolution must be restored. If the Court were to develop a body of jurisprudence studiously addressing these aspects, it would be an important way of complementing the presumption that the acts of an international organisation are valid. It would have the same ‘stabilising’ effect on the law of international organisations, and, in the same way, would protect the effective application of that law. States often have to take urgent steps under a resolution, especially if the latter is based on Chapter VII of the Charter. It is important to protect States that act in good faith under the resolution, to avoid inhibiting their doing so (or giving pretexts for avoiding action) and thus discouraging the rapid and effective implementation of international decisions.

g) Perspectives The main lesson to be drawn from these matters is that the verities of 1945 are not the same as those of the early twenty-first century. If, back in 1945 it seemed unacceptable to allow the legal review of acts of political organs, since at that time the important thing was to establish that the Organisation could act, and not be hampered by what was perceived as the danger of excessive ‘legalism’, just as unthinkable in our own day is a complete absence of judicial review of legality, which indeed would no longer be consonant with current law. At the same time – a second important point – there are, as yet, few firmly established lineaments of the overall solution to the question, and such as do exist are constantly developing and progressively maturing. On the one hand, the exercise requires political and legal ingenuity, and on the other a period of experience and progressive adjustment, leading ultimately to a balanced and satisfactory regime. At this stage, the voyage has only just   IMCO Assembly Resolution A.2 (II) of 6 April 1961.   For details on this provision, whose text and application have not had much success, see J Verhoeven, ‘Article 69’ in O Corten and P Klein (eds), The Vienna Conventions on the Law of Treaties, A Commentary, vol II (Oxford, 2011) 1571 et seq. 2772   de Wet, ‘Judicial Review’, above n 2696, 269. 2770 2771



THE COMPETENCE OF THE SECURITY COUNCIL 913

begun. The motley crew have taken the good ship Judicial Review far out into the choppy waves, and are perplexedly scanning a vague and fugitive horizon. The only current attitude that is not really a constructive one is to imagine that there is no problem, and that the ship can safely return to the anchorage of 1945.

27.  THE COMPETENCE OF THE SECURITY COUNCIL TO ORDER A PARTY NOT TO SEISE THE COURT

At this point, two questions need to be considered which, although separate, are closely interlinked. First, can the Security Council dis-seise the Court of a case in which it has jurisdiction, pursuant to a resolution under Chapter VII? Second, can the Council order one or more States not to seise the Court of a dispute that it might itself deal with, or that it considers unsuited to judicial resolution? To what extent can the Council interfere in this way with the rights of States? In order to preserve the integrity of its decisions, and avoid the more or less troublesome intervention of another organ, the Council could indeed be tempted to act in this way. There would be nothing to prevent the decision from having binding force under Chapter VII of the Charter. There is a certain analogous element here to the suspension of proceedings before the International Criminal Court under Article 16 of the Rome Statute.2773 Commentators have given relatively little attention to this somewhat difficult question, and such answers as have come up are mutually contradictory. For some, the Security Council is authorised to act in this way, either to dis-seise the Court or, obviously (the greater covering the lesser) to order parties not to seise the Court (A Alvarez and L Delbez2774); for others, the Council is not entitled to do these things (S Rosenne and M Bedjaoui2775). The two aspects of the question – the possibility of dis-seising the Court, and the right to order parties not to seise it – must be considered separately, despite the fact that they are often confused. (1) Dis-seisin First of all, can the Security Council directly dis-seise the Court by a resolution annulling the operation of a title of jurisdiction? The answer has to be negative. The Charter does not confer any such right on the Security Council. The Council and the Court are placed on a footing of mutual independence and equality. Jurisdiction as to jurisdiction, in the sphere 2773   Art 16 of the ICC Statute reads as follows: ‘No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect ; that request may be renewed by the Council under the same conditions.’ 2774   See the Dissenting Opinion of Judge A Alvarez, in the Anglo-Iranian Oil case, ICJ Reports 1952,134: ‘If a case submitted to the Court should constitute a threat to world peace, the Security Council may seise itself of the case and put an end to the Court’s jurisdiction’; L Delbez, Les principes généraux du contentieux international (Paris, 1962) 43. In the same sense, as regards resolutions under Chapter VII, cf B Maus, Les réserves dans les déclarations d’acceptation de la juridiction obligatoire de la Cour internationale de Justice (Geneva, 1959) 128, taking the view that the Court’s jurisdiction must then yield to that of the Council. 2775   See S Rosenne, The Law and Practice of the International Court, vol I (Leiden, 1965) 73; Bedjaoui, Nouvel ordre mondial, above n 2696, 81. As to the general question, see: E Klein, ‘Paralleles Tätigwerden von Sicherheitsrat und internationalem Gerichtshof bei friedensbedrohenden Streitigkeiten’ in Essays in Honor of H Mosler (Berlin/ Heidelberg/New York, 1983) 479–81.

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of action proper to each, thus belongs, in this matter, exclusively to the Court (Article 36, § 6 of the Statute) and is not conferred on any other body. The Council would here massively interfere with the Court’s own jurisdiction. Also, the Security Council’s resolutions are addressed not to the Court, but to the Member States. There would have to be express provision in the Charter before the Council could make a binding decision vis-à-vis another UN organ – let alone an organ that enjoys judicial independence. There is no such provision. This places a formal block on the direct dis-seisin of the Court by resolution of the Security Council. Also, the priority given to Council decisions under Article 103 of the Charter does not apply to the Court and its acts, since its Statute is an integral part of the Charter (as is Chapter XIV of the Charter, dealing with the Court and its position). This does not mean that the Council has no way of interfering seriously with the subject of a dispute of which the Court is seised, in some circumstances even making the Court’s jurisdiction virtually illusory. The Lockerbie case (1992–98)2776 shows how the Council can seriously alter the substantive applicable law by means of a resolution that is binding on the States parties.2777 Nevertheless, the fact remains that the Security Council is not able formally to dis-seise the Court of a case before it. (2)  Giving Orders to States. Can the Council direct one or more States not to seise the Court of a dispute? To date, it has never attempted to do so, and there is no reason to regret that fact. Given the import­ ance of keeping the peace and of the possibility that seising the Court might interfere in a negative way with the Security Council’s exercise of its first-order competences, there might be a case for allowing the seising of the Court to be prohibited for a specific and brief period of time. However, given the relative slowness of judicial procedures, such a prohibition will rarely be of much value to the Security Council, since it will lack the elements of urgent necessity, except perhaps where the concern is to avoid the indication of provisional measures that might potentially interfere with Security Council decisions. This solution, of allowing prohibition for only a short and specific period, could be acceptable only if it were quite restrictively adopted. How long should the maximum period be? Should it be fixed case by case, or more generally? The need for legal certainty and the safeguarding of States’ fundamental rights, militate in favour of a general fixed time limit. Would a reasonable period of time be six months? Or a year? It is difficult to say. It is clear that it cannot be longer than that. Six months seems more consonant with the principles of necessity and proportionality, if they are interpreted strictly. States ought not to be left at the political mercy of the Security Council without any recourse to a court, especially since the possibility of such recourse is so rare in international affairs. At stake is the very rule of law, which in international relations is admittedly a delicate plant at the best of times. Given its growing strength in recent years it would be anachronistic to accept that it could be laid under a kind of ban by the UN itself, particularly as regards the relationship between the Security Council and the Court. 2776  See ICJ Reports 1992, 3 et seq., 114 et seq.; and Reports 1998, 9 et seq. and 115 et seq. See also the Dissenting Opinions to the Order of 1992. 2777   Security Council Resolution 748, which applies in priority under Arts 25 and 103 of the Charter, would destroy the whole point of the judicial proceedings, given that the 1972 Montreal Convention, which is formally applicable, would be superseded by the primacy given to the law of the Charter. This was a fairly serious interference by the principal political organ in the work of the judicial orga, and raises important questions of principle and of law.



THE COMPETENCE OF THE SECURITY COUNCIL 915

If a Member State were to seise the Court in violation of the resolution of the Security Council, would the Court nevertheless have jurisdiction? Or would it have to declare itself to have no jurisdiction, or even refuse to exercise a jurisdiction it held to exist? Given that, under Article 36, paragraph 1 of the Statute, jurisdiction is conferred upon the Court exclusively by the parties to the dispute, it might seem that it would be formally established, and that the substantive defect, namely non-compliance with the resolution, would not directly undermine either the validity of the seising of the Court as a formal act, or the resulting jurisdiction of the Court. Should we conclude, then, that the Court would formally have jurisdiction, but that it cannot actually exercise that jurisdiction, as it cannot in cases where the rights of a third State are the very subject of the dispute (the Monetary gold principle)? Or should we rather conclude that the Court must take the Security Council Resolution into account, either as directly applicable law between the parties (Article 38 of the Statute) or as applicable law within the United Nations, so that the Court has no jurisdiction at all, or must declare the application inadmissible?2778 If the Court held fast to the general principles governing international disputes, it would be obliged to hold2779 that the State seising it could not give it active jurisdiction over the instant case, because of an obligation, existing under the law of the United Nations, which the Court could not ignore, since it is binding upon that State. The jurisdiction is conferred, since that is a matter solely for the States parties to the dispute to decide; but the jurisdiction is overshadowed by an obligation under UN law and cannot be exercised for a certain time-span. The Court would therefore have to refuse to exercise its jurisdiction, or would have to declare the application inadmissible, for the duration of the period in question. The Court could even remain seised of the case, merely suspending it for the duration of an obstacle which was time-limited rather than a total bar. If, on the other hand, the Court were to engage in a review of the legality of the Security Council’s Resolution, and to hold that the latter, under the law of the United Nations, did not have the power to block the proceedings in this way, or had not, in the circumstances, exercised its power correctly,2780 it would be in a position to disregard the resolution, and to declare itself to have jurisdiction in the ordinary way. It is not certain, however, that in such circumstances, the Court would review the legality of the resolution. Even supposing that it did do so, it would then be necessary to decide on the type of review that was appropriate. The General Assembly could not likewise attempt to bar a State from seising the Court, since it could not utter a binding resolution with that effect. It could at most issue a recommendation not to seise the Court, but that resolution would not be binding and would not operate as a bar to the Court’s jurisdiction. At some future date it may be that these questions will take on a certain practical actuality. For the time being, they appear to be floating in something of a limbo.

2778   Procedurally, it would be heretical to think that the application must be substantively rejected because of the prohibition, rather than that it must suffer a rejection limited ratione temporis. Substantive rejection, with the force of res judicata, must always be considered a definitive matter. It is therefore inappropriate when the applicant faces what are only timing obstacles. 2779   To the extent it does not consider the Security Council Resolution to be irregular or invalid. 2780   Because, for example, of the mutual independence and respect of these organs, of the absence of a clear legal basis for a resolution with such an effect, of failures in the particular case to respect procedural norms or the principles of necessity and proportionality and so on.

VI General Principles applicable to Contentious Proceedings Every field of law is governed both by principles and by more detailed rules. A principle (Grundsatz) is a general normative proposition, applicable to a series of particular situa­ tions and usually giving expression to a value that is important to the legal system con­ cerned. Very often the principle takes on a range of concrete manifestations that reflect the various situations to which it applies. For example, the principle of good faith has given rise to the development of legal norms such as pacta sunt servanda, the protection of legit­ imate expectations, the prohibition against the abuse of rights, rules on estoppel, the maxim ‘no-one can profit from his own wrongdoing’ and so on. These norms, in their turn, take on concrete form in particular contexts, such as the law of treaties or the law on States’ international responsibility, where legitimate expectations arise and have precise legal consequences. The principle is thus at a considerable distance from the specific rules, because a principle, as a normative proposition, is so broad and general in its nature. A principle thus acts as a norm of constitutive type, informing and underpinning a whole series of legal offshoots and questions. The particular rule, on the other hand, represents a legal norm in the narrow sense of the term (Rechtssatz). It applies predetermined legal con­ sequences to a precise factual situation, doing so at a concrete level. The rule thus applies only within a clearly defined context, unlike the principle which operates from a bird’s eye perspective. Principles have characteristics enabling them to perform specific functions within the legal system to which they apply. They begin by seising upon profound forces, so to speak upon the gravitational pillars on which legal matters, even entire legal systems, are based. This hierarchy of weight and importance makes it possible to see a legal system as a coher­ ent corpus, based on fundamental legal values. Principles also make it possible to appre­ hend and understand the law within a certain fundamental conceptual unity and balance, rather than just as a collection of scattered and disconnected rules. Principles govern various branches of the law simultaneously, operating as bridges between them and so contributing to the unity and coherence of legal thinking. They make it possible to apply the law flexibly, adapting it equitably to current needs, so that the legislature does not need to keep making formal amendments. That is an important function and usually involves interpreting the law in the light of principle. The fact that principles are general in nature makes it possible to invoke and use them in a wide range of situations. Their ubiquity makes them particularly useful tools for adapting the law and making it more flexible. Principles also play an important part in the development of the law, whether through the creation of new concrete jurisprudence (for example, by siring the estoppel doctrine out of the principle of good faith) or in directly guiding the legislative process (for example, on such a question as who takes the risk in a particular context, developing

918  PRINCIPLES OF CONTENTIOUS PROCEEDINGS

new law from the principle that ‘he who takes the benefits must also bear the burdens’: qui habet commoda ferre debet onera). Like any other legal jurisdiction, the ICJ has its own sets of principles. Some of them relate only to one or other of the Court’s contentious or to advisory functions, while others are more general and apply to both. For present purposes, we are considering only conten­ tious proceedings and the principles applicable to them. The most general principles of all, and those applicable only to advisory proceedings, will be examined in later chapters. In the Court’s contentious procedure, one must first and foremost, consider the following principles: (1) ne eat judex ultra petita partium, which is concerned with defining the sub­ ject of the dispute; (2) the principles concerning burden of proof (onus probandi incumbit actori); and (3) the duty of parties to each other (duties of good faith). These principles are concerned, on the one hand, with the division of labour between the Court and the parties, and, on the other, with relations between the parties. In this regard one can, in broad terms, distinguish between two types of legal procedure. The first type concern private interests (utilitas singulorum, Privatautonomie). In view of the nature of such proceedings, the parties are in a pre-eminent position in relation to them, for which there is not one reason but two. First, it is the parties who decide and determine the subject of their dispute, both its contents and its extent: a party is, after all, entitled at any time to give total or partial recognition to the opposing party’s claims and/ or to abandon its own claims (Dispositionsmaxime). Hence the old maxim ‘no plaintiff, no judge’ (nemo judex sine actore). Where the case concerns purely private interests, the legal system in no way fetters the parties’ right to dispose of them at will. Second, it is for the parties to present the court with the facts necessary for it to make a decision, and in par­ ticular with the evidence. Where one is dealing with the private interests of the parties, in the context of their private relationship inter se, it is they alone that possess the necessary knowledge and documentation. The court itself is not deemed to have independent know­ ledge and indeed has no way of obtaining it. It is therefore for the parties themselves to establish all the facts on which they intend to rely, and also the private legal provisions on which they rely, for example, under a contract. The court is deemed to have knowledge only of the general law and of facts that are common knowledge (Verhandlungsmaxime, burden of proof, da mihi facta, dabo tibi ius). This is, so to speak, the prototype for court procedures on questions of private law. The second type of procedure is concerned with public or collective interests (utilitas publica; öffentliches Interesse). In such cases, the court, as an organ of the community, takes a pre-eminent position, in order to protect the collective interest, which cannot, in such cases, simply be left to the disputing parties. This is so because the interests concerned go beyond their particular interests (perhaps indeed far beyond them). The first consequence is that the right to determine the nature of the dispute is taken out of the parties’ hands and transferred to a public agency. That agency will discharge its functions, of its own authority and by its own volition, in the manner and subject to the conditions laid down by the law (Offizialmaxime). Also, in such cases, it is no longer simply for the parties to bring the rel­ evant facts to the court’s attention. The risk, of course, is that their presentations will be biased, reflecting their private interests in the matter. The job of assembling and presenting the facts (subject to the parties’ right to comment on them) is therefore conferred upon a public agent. That agent must investigate, assemble and present the facts to the court (Untersuchungsmaxime). The prototype for such procedures is to be found in the inquisi­ torial criminal processes of the continental European States.



NE EAT JUDEX ULTRA PETITA PARTIUM 919

In terms of content, cases before the ICJ are concerned with questions of public law (inter-State disputes on ‘political’ matters). However, from the structural perspective, the cases are based on private law. The States confront each other before the Court of their own free will, on a footing of perfect equality, and in relation to questions that continue to be essentially matters of particular (‘private’) interest to them. This state of affairs reflects the fact that they are sovereign States, enjoying sovereign freedom of action. Nowhere is one further removed from inquisitorial-type ‘public interest’ procedures. States confront each other before the ICJ in a manner which is broadly analogous to two free and equal persons coming before a judge in civil proceedings. They decide the subject of the dispute when they present their cases, and it is they who determine the extent of the proceedings and whether they continue or are discontinued, doing so as domini negotiorum. Consequently, it is primarily for them to bear the burden of presenting the court with the relevant facts on which they base their claims, the court itself being essentially limited to its legal expertise (jura novit curia). The procedure before the Court is thus essentially mod­ elled on traditional private law processes as used for private interest disputes. This fact (or ‘principle’) determines and colours the entire procedure.1

1.  THE PRINCIPLE ‘NE EAT JUDEX ULTRA PETITA PARTIUM’2

a)  Definition, Nature and Scope of the Principle The ‘non ultra petita’ principle (ne eat judex . . .) means that the subject of the dispute that the judge can pronounce upon and in respect of which he can, in his judgment, give recog­ nition to executory rights and obligations, is limited. It is limited as to its maximum extent by the scope of the claimant’s application to the court, and to its minimum extent, by the respondent’s claims. The principle was frequently applied in the arbitration practice of the nineteenth and twentieth centuries. The sanction for going beyond the limits was that the award was a nullity, because it was ultra vires.3 The arbitrator was the creature of the parties jointly, and not the representative of a collectivity independent of those parties and autonomous from them. The principle therefore needed to be applied with great rigour: extra compromissum, arbiter nihil facere potest. This rule, so fundamental in ‘private-type’ 1  Some leading commentators have exaggerated the efforts of the ICJ to establish ‘substantive truth’, eg G Niyungeko, La preuve devant les jurisdictions internationales (Brussels, 2005) 448–49. Every system of trial is directed towards the search for a truth which, whether formal or substantive, is always, up to a certain point, a quest for the adaequatio rei et intellectus. However, as between the inquisitorial system (typical of continental European criminal proceedings: substantive truth) and the adversarial system (typical of continental European civil proceedings), the procedures of the ICJ clearly lean towards the latter. Hence the limitations: (1) first of all, in the context imposed by the subject matter of the original claim; (2) then, as to the truth, as it appears from the evidence submitted by the parties, especially from the claimant’s evidence, given that the burden of proof rests with that party. 2   See R Kolb, ‘General Principles of Procedural Law’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 810 et seq., and the literature there referred to. See especially, GG Fitzmaurice, ‘The Law and Procedure of the ICJ, 1951–1954: Questions of Jurisdiction, Competence and Procedure’ in BYIL, vol 34 (1958) 98 et seq.; M Kazazi, Burden of Proof and Related Issues (The Hague, 1996) 42 et seq.; S Rosenne, The Law and Practice of the International Court, 1920–2005, 3rd edn, vol III (Leiden, 1997), 1082 et seq. 3   cf. F Castberg, ‘L’excès de pouvoir dans la justice internationale’ CCHAIL, vol 35, 1931-I, 353 et seq.

920  PRINCIPLES OF CONTENTIOUS PROCEEDINGS

arbitration, was (entirely logically) followed by the PCIJ from the moment of its creation. The ICJ eloquently reaffirmed it in the case of the Request for interpretation of the judgment of 20 November 1950 in the Right of Asylum case (1950): [O]ne must bear in mind the principle that it 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.4

The Court has had occasion to refuse to take cognisance of a point because it considered that the matter went beyond the scope of the petitum of which it was seised.5 On the other hand, the Court can – and sometimes must – fully exercise the jurisdiction conferred on it, in all its amplitude, that is, must take cognisance of the petitum in its entirety. The Court restated this in the Continental shelf case (Libya v Malta, 1985): ‘The Court must not exceed the jurisdiction conferred upon it by the Parties, but it must also exercise that jurisdiction to its full extent.’6 An applicant can request the Court to recognise its rights to a lesser degree than it may originally have sought. In such a case, the Court cannot grant more than has been asked of it, even if it were spontaneously willing to do so. Nor can it award something different to what has been claimed. This state of affairs results from the fact that, in proceedings of this private kind, the applicant remains entirely the dominus negotii, so that the applicant alone decides whether to request only the partial satisfaction of its rights, renouncing the remain­ der. The Court cannot, in such a case, substitute itself for the applicant, imposing on the latter a particular way of exercising its rights, because that is a matter solely for the appli­ cant. Conversely, the Court cannot award the applicant less than the rights recognised and conceded by the respondent. Here too, the Court cannot substitute itself for the respon­ dent, so as to prevent its giving satisfaction to the applicant to the extent freely determined upon by the respondent. It is not even essential that the rights/obligations in issue should ante-date the proceedings. The respondent can, by admitting that the applicant is entitled to a certain measure of satisfaction, also create new rights, even during the actual proceed­ ings. The Court must yield before such an expression of the respondent’s will. Certainly, it will not interpret that will in a liberal way, since the unilateral abandonment of rights is not a matter that can be simply presumed. But the Court will take account of, and respond to, the respondent’s will, if its admission is clear and unambiguous. Given that the principle ‘ne eat judex . . .’ is connected to the disposal of rights by parties endowed with ‘private autonomy’ (sovereignty, private-type proceedings), its effects have a tendency towards formal justice (justice requested by the applicant in its own discretion) rather than substantive or material justice (justice to the full extent of the law). A striking example can be found in the Corfu Channel case (Assessment of the amount of compensa­ tion, 1949). The UK demanded £843,947 from Albania, which the Court had already ruled was internationally responsible. Faced with this claim, the Court appointed independent 4   ICJ Reports 1950, 402. The Court referred again to this phrase in its advice on the Application for Review of Judgment No 158 of the United Nations Administrative Tribunal, ICJ Reports 1973, 207–208, § 87. 5   Barcelona Traction, ICJ Reports 1971, 37, § 49. Concerning the case on Application of the Convention against Genocide (Bosnia-Herzegovina v Serbia and Montenegro, merits, ICJ Reports 2007-I, 47 et seq.), it has been emphasised that the Court gave the applicant only symbolic satisfaction for the violation of Serbia’s preventive duty, because the applicant had not sought anything more: M Milanovic, ‘State Responsibility for Genocide: A Follow-Up’ (2007) 18 EJIL 692. This view is disputed by C Tomuschat, ‘Reparations in Cases of Genocide’ (2007) 5 Journal of International Criminal Justice, 908. 6   ICJ Reports 1985, 23, § 19.



NE EAT JUDEX ULTRA PETITA PARTIUM 921

experts to evaluate the UK’s loss. They reached the conclusion that the loss suffered by the UK, in damage to the vessel in question, was £16,000 more than the sum claimed. The Court, however, did not award that £16,000, on the basis that it could not award the applicant more than ‘the amount claimed in the submissions of the United Kingdom Government’.7 It is for the State concerned to give such matters all the necessary attention. The UK could have got round the difficulty by pleading either that it was entitled to be paid a sum to be fixed by Court-appointed experts, or that it claimed at least £843,947, or more, depending on the independent experts’ conclusions.8 A claim for a fixed amount can thus result in an own-goal of this kind. On the other hand, if one takes a different perspective, a modest and prudent claim obviously shows how fair-minded an applicant is. If the respondent concedes more than the applicant is seeking, the petitum is determined by the applicant’s more limited claim. However, the applicant can accept the respondent’s offer, make an agreement ending the dispute, and discontinue the proceedings. The non ultra petita principle is thus relevant in both senses. It determines the Court’s attitude both by reference to the applicant and by reference to the respondent. The principle thus sets up both a high bar and a low one – the high one being that which is demanded, the low one that which is conceded. The principle fixes the upper and lower limits between which the judgment must be situated. If a case is not brought to the Court by a unilateral application determining the positions of applicant and respondent, but on the basis of a special agree­ ment notified to the Court by the parties jointly, the principle applies to the requests made in the special agreement.9 The non ultra petita principle can be perceived either as a procedural principle, or as relating to the merits, or as relating to the Court’s jurisdiction. In reality, it will be a little of all three, depending on the case. From the procedural angle, one might say that the prin­ ciple controls the court’s action at the decision-making stage. The court must take account of the petitum as it appears from the parties’ documents and attitudes during the proceed­ ings. This is a procedural limitation, a little like the other procedural limitations the court has to take into account – audi alteram partem, equal treatment of the parties and so on. From the substantive point of view, the principle can be said to concern the Court’s deter­ mination of the respective substantive rights and obligations of the parties in the case. The principle determines the extent of the rights and obligations to be covered in the judgment on the merits, and thus sets bounds to the substance of the dispute. Finally, from the per­ spective of jurisdiction, the non ultra petita principle has been seen as a direct consequence of the principle of consent, necessary to establishing the Court’s jurisdiction.10 The Court will therefore lack jurisdiction to allow rights or compensation not covered by the petitum. The definition of the subject of the dispute, via the claims of one party and the admissions or concessions of another, has a retroactive effect on the Court’s jurisdiction, to which it sets defined limits. Everything covered by the petitum falls within the Court’s jurisdiction; everything else is outside the Court’s jurisdiction. As concerns claims outside the petitum, the Court has therefore to declare itself to have no jurisdiction, without proceeding to reject then at the merits stage. Under the first two approaches, the principle is perceived as   ICJ Reports 1949, 249.   It also remains possible to bring a new case before the Court, if the titles of jurisdiction remain valid and applicable. This was not the position in the Corfu Channel case. 9   See the Minquiers and Ecrehos case, ICJ Reports 1953, 4 et seq. See Fitzmaurice, ‘The Law and Procedure of the ICJ’, above n 2, 100–101. 10   See Fitzmaurice, ‘The Law and Procedure of the ICJ’, above n 2, 98. 7 8

922  PRINCIPLES OF CONTENTIOUS PROCEEDINGS

a modality by which the Court is acting (or abstaining from acting) when it decides issues of right and title in the operative part of its judgment. From the third perspective, the prin­ ciple imposes a limit on the Court’s jurisdiction, even though that limit will not necessary affect a judgment in limine litis, because the petitum can evolve during the course of the proceedings. It is not really helpful to dig deeper into these academic quarrels. The reality of the non ultra petita principle seems best characterised by saying that it can take on any of the three roles, depending on the circumstances. It is certainly a post-preliminary question, since the application of the principle is connected to the merits of the dispute and to the recognition by the Court, in its judgment, of the respective rights and obligations of the parties. The principle thus guides and directs the Court’s action (a procedural aspect) on the merits (a substantive aspect). In certain cases, however, the Court can find it helpful to declare at an earlier stage that it lacks jurisdiction. It may do so, for example, when the problem that the matter goes beyond the petitum is compounded by a narrowly-defined title of jurisdic­ tion. In such a case, the Court may take the view that it cannot go in a particular direction both because of the ne ultra petita rule and because it will lack jurisdiction if a forum prorogatum is not established. Nor is there anything to stop the Court from cutting short a par­ ticular avenue of enquiry and consideration as regards the parties’ rights and obligations, stating that it has no jurisdiction over them because of the effect of the non ultra petita rule. By doing so, the Court signals to the parties that it could deal with the questions concerned if the parties wished to enlarge the petitum, but that, as things stand, the Court cannot do so. The choice between the procedural and the ‘jurisdictional’ versions of the principle can thus come to depend on a particular aspect of judicial policy. The non ultra petita principle applies in contentious proceedings. Is it also possible for it to play a part in advisory ones?11 Judge Anzilotti, for example, thought that the Court could respond only to the question that had been put to it and that it must respond to the entirety of that question.12 That amounts, inter alia, to an implicit acceptance that the ‘secundum petitum’ principle applies to advisory proceedings. However, as we will see later, in the chapter on advisory opinions, the Court does not feel itself to be as tightly corseted as that. It takes the view that it does have power to modify the question put to it, in order to make full sense of it and to give it its true scope (and also often in order to avoid thorny prob­ lems). Thus, in the recent advisory opinion on the Accordance with international law of the unilateral declaration of independence in respect of Kosovo (2010),13 the Court felt entitled to change the question as to ‘conformity with international law’ into the separate legal ques­ tion of whether the declaration infringed international law, referring en passant to a body of case law that was already quite rich in modifications of a similar kind. One has to con­ clude that the ne ultra petita principle fully applies only to contentious proceedings, because a petitum in the strict sense is not to be found in a request for an advisory opinion. In con­ tentious proceedings the parties are the only domini negotii, and the Court is, in that sense, 11   See IF Shihata, The Power of the International Court to Determine its Own Jurisdiction, Compétence de la compétence (The Hague, 1965) 220. Opposed to any application of the principle to advisory proceedings is M Bedjaoui, ‘L’humanité en quête de paix et de développement, Cours général de droit international public’ CCHAIL, vol 324, 2006, 403. 12   Case on the Customs Regime between Germany and Austria (1931), PCIJ, Series A/B, no 41, 69. See also the Dissenting Opinion of Judge Guillaume, Opinion on the Legality of the threat or use of nuclear weapons (UN General Assembly, 1996), ICJ Reports 1996-I, 287, § 1 and 293, § 13, in relation to the famous paragraph 2F of the dispositif. 13   At §§ 49 et seq.



NE EAT JUDEX ULTRA PETITA PARTIUM 923

subordinate to them. By contrast, in advisory cases the Court does not feel dependent to a similar degree on the requesting organ. It considers itself duty-bound to contribute, through its work, at least to some extent, to an adequate exploration of the question put to it, thus administering a kind of ‘four handed’ justice, in which the request is formulated and honed in a species of joint exercise, the primary and predominant responsibility rest­ ing with the requesting organ, the secondary (but by no means insignificant) responsibility resting with the Court itself. On the other hand, it has to be stressed that the Court does not feel entitled to upset the economy of the question posed to it. The Kosovo advisory opinion of 2010 shows graphically that the Court constrained itself to answer the narrow question the General Assembly has asked, even if that question touched only upon a small segment of the legal issues pending in that context (for example, question of recognition of the new ‘State’). In this perspective, there is a sort of petitum even in advisory proceedings. The Court feels inherently empowered to clarify (and thereby to incidentally develop to some degree) the question posed; but is does not consider itself free to alter the question to a point where it would turn that question into a legally and politically different request. This course must be commended. The formulation of the question is a political matter. It is thus not for the Court to entertain it. The Court must be concerned only with the clarity of the question, the true intention of the requesting organ and the respect for its judicial integrity. Conversely, the policy issues are not its domain. Hence, the conclusion is that the principle ‘ne ultra petita’ applies formally only to contentious proceedings, but that it also permeates to some extent, that is, materially, advisory proceedings.

b)  Limitations of the Principle We must now consider the principle’s scope of application, taking account of various limi­ tations thereto. First, the overwhelming majority of leading commentators consider that the principle applies only to the judicial decision on the subject of the dispute, in accordance with the claims (pleadings) of the parties. The principle does not apply to the simple arguments of the par­ ties in relation to that subject, or to evidential issues.14 It is therefore accepted that the Court is free to base its decision on the legal grounds (and the concomitant factual grounds) of its choice.15 It is not bound by the parties’ arguments: jura novit curia. The Court has certainly sometimes had recourse to legal conceptions very different from those advanced by the parties. The North Sea Continental Shelf cases (1969) provide a good example of this. The Court’s judgment set out a view of continental shelf delimitation markedly different from the views presented by the parties. Nor is the Court bound by the facts as the parties present them. It can carry out investigations of its own, it can appoint experts (as it did in the Corfu Channel case cited above), or it can decide on a site visit.16 The Court can   GG Fitzmaurice, The Law and Procedure of the ICJ, vol II (Cambridge, 1986) 529 et seq.   AP Sereni, Diritto internazionale, vol IV (Milan, 1965) 1714, fn 3; Fitzmaurice, The Law and Procedure of the ICJ, above n 14, 531. In the practice of the Court, see, eg the case on the Legality of the use of force (Serbia and Montenegro v Belgium), ICJ Reports 2004-I, 298, § 46, with multiple references to the jurisprudence. 16   On this subject, see among others M Bedjaoui, ‘La “descente sur les lieux” dans la pratique de la Cour inter­ nationale de Justice et de sa devancière’ in Essays in Honor of (Liber amicorum) I Seidl-Hohenveldern (The Hague et al, 1998) 1 et seq.; S Rosenne, ‘Visit to the Site by the International Court’ in Essays in Honor of M Bedjaoui, (The Hague/London/Boston, 1999) 461 et seq. 14 15

924  PRINCIPLES OF CONTENTIOUS PROCEEDINGS

thus take cognisance proprio motu either of legal arguments or points of fact, or indeed of both. Second, the principle does not apply to questions of jurisdiction or admissibility.17 In this field, the proper administration of justice is in issue, given that the Court can deal with the merits only if certain objective and imperative conditions are satisfied. It is for the Court to determine, independently of the parties, whether these conditions are satisfied in the par­ ticular case. So it is for the Court alone to verify whether there is a dispute, whether the dispute is of a legal nature, whether it has a point or ‘object’, whether the parties are States, and whether there are proceedings pending in another forum. These conditions are not dependent on the consent of the disputing parties, but represent the objective require­ ments for the process as provided in the Statute.18 As Judge AD McNair emphasised, the Court cannot ‘regard a question of jurisdiction solely as a question inter partes’.19 Moreover, the Court’s practice clearly shows, in a whole series of cases, the Court disagreeing with the parties on questions of jurisdiction and admissibility: see Monetary Gold (1954), Nottebohm (1953, 1955), Aerial incident (Israel v Bulgaria, 1959), Barcelona Traction (1964, 1970) and Nuclear Tests (1974). In this last case, France argued that the Court had no jurisdiction; the applicants, arguing the contrary, did not raise the question of unilateral legal acts and denied the internationally binding character of the French public declarations. The Court, however, invoked its inherent power to decide the scope of the dispute and to pronounce on the real existence of a dispute. In doing so, it interpreted the parties’ arguments as being concerned essentially with the cessation of atmospheric nuclear testing. It dismissed the demands for compensation as purely secondary elements. By taking this view, the Court was able to conclude that the applicants’ claims had been satisfied by France’s unilateral undertakings, legally binding in nature, to cease such testing from the end of 1973. In that perspective, there was no subsisting dispute at the time the Court was called upon to decide. The alleged dispute had no further object, and there was therefore no need for a decision. This chain of interpretation was completely different from the arguments pre­ sented by the parties. The Court did not give ‘more’ or ‘less’ than was requested of it. On the contrary, it engaged in an entirely different exercise. One may perhaps dispute the pro­ priety or appropriateness of what the Court did, but it cannot in any event be said to have contravened the non ultra petita principle, given that the latter does not apply to questions of jurisdiction or admissibility (and also not to the parties arguments as opposed to their final claims). As already emphasised, this is because the subject of the dispute is an interest solely of the parties, whereas the exercise of jurisdiction or a question of admissibility put public interests in issue and relate to the proper functioning of the Court. Does the non ultra petita principle never apply to a decision as to jurisdiction? Among these questions, there are some that touch on the proper functioning of the Court and are matters of the Statute’s jus cogens. As regards these questions, the principle non ultra petita is excluded. However, there are others that solely concern the consent of the parties or their ‘private’ interests. In such cases, should not the principle non ultra petita be applicable, particularly as regards the consensual jurisdiction? The Court does not enquire of its own volition whether or not the parties have consented to its jurisdiction. It will consider con­ sent sufficiently established if the respondent makes no formal or informal objection to it 17  Shihata, The Power of the International Court, above n 11, 219 seems, however, ready to accept the applicabil­ ity of the principle to some aspects of jurisdiction. 18  ‘Objektive Prozessvoraussetzungen’. 19   Anglo-Iranian Oil case, Independent Opinion of Judge McNair, ICJ Reports 1952, 116.



NE EAT JUDEX ULTRA PETITA PARTIUM 925

(forum prorogatum). But is this aspect of things truly relevant to the application of the principle? So far as the forum prorogatum is concerned, the question is simply whether or not the Court has jurisdiction. One side is necessarily saying it does, for it is the applicant. The other party can deny it or can accept it. The Court, whether affirming or declining jurisdiction, cannot go beyond what the parties plead. Indeed, the forum prorogatum can be accepted by the Court only to the exact extent of the consent given. The Court must therefore, of necessity, remain within the limits of the parties’ petitum. The principle non ultra petita thus retains its relevance, but in a different sense than of an active limitation: it has of necessity to be respected, because of the very nature of the Court’s consensual juris­ diction. At this point the petitum and the consent are fused. Third, the principle does not apply to incidental proceedings. The Court has several times emphasised its right to indicate interim measures proprio motu, independently of the par­ ties’ requests.20 The content of such measures indicated by the Court of its own volition can consequently go beyond what the parties have asked for, because the purpose is different. A party seeks interim measures primarily to protect itself against the possibility that grave damage will be done to its rights by acts of the other party. But when it is the Court that takes the initiative, it does so primarily to prevent the aggravation of relations between the parties or an escalation of their dispute, whose effects would be prejudicial to the proper functioning of the Court and to the effective peaceful resolution of the dispute. The Court here takes a broader view, oriented towards the collective interest. The attitudes of the parties and their particular petita, cannot therefore be allowed to limit the Court’s auto­ nomous freedom of action which serves a more general interest. Such interim measures are thus indicated proprio motu by the Court under its inherent power to ensure the proper running of its procedures, and to safeguard its judicial integrity. Fourth, an important practical limitation to the principle rests on the fact that it is not always immediately apparent what the scope of the parties’ petitum really is. The Court has then to engage in a process of interpreting their pleadings.21 The Court has affirmed its right to do this so that it can determine their real scope. So, in the Nuclear Tests cases (1974), the Court with impressive aplomb said that: ‘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.’22 As early as the Minquiers and Ecrehos case (1953), the Court engaged in a minute interpretation of the special agreement on which its jurisdiction was based.23 It has done the same in almost all its land and/or maritime bound­ ary delimitation cases. These cases involve delicate interactions between the parties’ plead­ ings and the application of the law.24 There is no point in trying to conceal the fact that interpretation always involves a creative element, sometimes a minor one, sometimes a major one. The result is that, at the same time as engaging in the gentle and reassuring techniques of interpretation, the Court can, in reality, partially reformulate the petitum, departing, even if only slightly, from what is hypothetically the ‘true’ petitum. Obviously 20   See, eg the case of the Land and maritime boundary between Cameroon and Nigeria (interim measures), ICJ Reports 1996-I, 22–23, § 41, and the case on Armed activities in the territory of the Congo (DRC v Uganda, interim measures), ICJ Reports 2000, 128, § 44. See also Rule 75, § 1. 21  Shihata, The Power of the International Court, above n 11, 219. 22   ICJ Reports 1974, 262, § 29 and 466, § 30. One notes the Freudian detail that, in this passage, resplendent with the Court’s imperatoria majestas, the word ‘parties’ is judiciously given a lower case letter p. 23  Fitzmaurice, The Law and Procedure of the ICJ, above n 14, 528–29. 24   It is sufficient to remember the difficulties encountered in the Gulf of Maine case, ICJ Reports 1984, 252 et seq. See also, R Kolb, Théorie du ius cogens international (Paris, 2000) 282 et seq.

926  PRINCIPLES OF CONTENTIOUS PROCEEDINGS

the Court must not interpret the pleadings in such a way that the parties’ texts and inten­ tions are openly revised. But provided the Court stays within these limits, the non ultra petita principle presents no obstacle to its interpretative activities. Fifth, the ne ultra petita principle is not a rule of jus cogens. There can be derogations from it if the parties agree. They can give the Court the right to take cognisance of legal rights and positions ultra petita. However, it is debatable whether that really amounts to a true deroga­ tion from the principle. By recognising that the Court has a discretionary or other power to decide on their rights, the parties are enlarging the petitum. The Court can thus be said to be staying within the bounds of the (enlarged) petitum. In this sense, the principle can be con­ sidered logically incapable of derogation. When they ‘derogate’ from it, the parties are sim­ ply giving it wider scope. If, in the Corfu Channel case, the UK had asked the Court for compensation and interest in amounts to be determined by the Court, the Court could have complied. Nothing in the Statute requires a party to claim a liquidated amount. Whatever sum the Court awarded would then have been covered by the open-ended petitum. The Court can accept such claims unless they are contrary to the Statute or Rules from which the Court cannot depart (Rule 101), and except to the extent that the claims may be contrary to the integrity of the judicial function. The parties’ claims and the petitum can thus be fairly generic in nature, leaving the Court a very wide margin of appreciation as to the compensa­ tion to be awarded or other orders to make. Obviously, however, the Court cannot go beyond recognising the legal rights and obligations of the parties. International law does, however, give the Court a rich palette of injunctions and reparations orders from which to make its selection: the jurisprudence of human rights tribunals which is varied and robust in this respect, provides interesting object-lessons of various kinds.25 Moreover, if the parties agree to allow the Court to decide ex aequo et bono under Article 38, paragraph 2 of the Statute, that is, in a manner that goes beyond positive law (though not beyond the funda­ mental requirements of justice), the orders the parties can request the Court to make, and that the Court can indeed make, are even more wide-ranging in their possibilities. There seems, however, to be no reason to think that the ne ultra petita rule does not apply to such ex aequo et bono proceedings. On the contrary, the particularly delicate nature of such pro­ ceedings, and the need to very strictly observe the limits of the parties’ consent, both militate in favour of its scrupulous application. The parties alone are in control of the question to what point they accept that their rights be dealt with and indeed compromised in a process where the politico-legislative ingredient is greatly enhanced. Finally, one has to take account of the fact that the parties’ petitum can evolve in the course of the proceedings. Within the procedural limits of the parties’ right to amend their pleadings,26 and especially if they are proceeding by agreement, the petitum can be widened or narrowed. This is not an exception to the principle ‘ne eat judex . . .’, but a case of substi­ tuting one petitum for another one.

c) Action infra petita Can the Court decide infra petita? In some cases is it is even obliged by the law to remain infra petita? From a general point of view, the Court obviously can decide infra petita if it   See, eg G Bartolini, Riparazione per violazione dei diritti umani e ordinamento internazionale (Naples, 2009).  Above.

25 26



NE EAT JUDEX ULTRA PETITA PARTIUM 927

considers that one side’s case is entirely justified in law. The Court is not obliged to accept a party’s claims on an all-or-nothing basis. It can also find in favour on some points, against on others. The ne ultra petita principle simply requires that the Court should not go beyond the bounds of the petitum as set out in the pleadings; it does not prevent the Court remain­ ing well inside those bounds. In some cases, however, the Court is obliged by the law to decide infra petita. In such a case it cannot exercise the entire jurisdiction conferred on it by the parties. This happens particularly when the rights of third States are the very object of the dispute (the Monetary gold rule).27 It was also the reason why the Court refused to delimit the entire continental shelf between Libya and Malta in accordance with the parties’ pleadings. The Court thought it necessary to safeguard Italy’s rights over the areas of the continental shelf it claimed.28 The Court did the same in the delimitation of the maritime areas between Cameroon and Nigeria.29 In a rather different situation, the Court took the view that it could not pronounce on sovereignty as regarded the South Ledge low tide elevation, given that the States concerned had not given it jurisdiction to delimit their territorial waters.30 It was only by delimiting those territorial waters that the Court could have decided on which side the low-tide elevation lay and which of the disputing States had sovereignty over it. Whether justifiably or not, this way of proceeding amounts to judging the case infra petita for legal reasons. In certain cases, natural facts can strongly suggest to the Court that it should not pro­ nounce on certain aspects of the petitum. So, in the case of the Territorial and maritime dispute between Nicaragua and Honduras in the Caribbean Sea (2007), the Court abstained from pronouncing on an island at the mouth of the Coco River because of permanent changes in the formation of the island in that alluvial area (§ 145). This can be seen as an application of the infra petita approach, required in this case by facts of nature rather than a legal obligation. Conversely, the Court is not obliged to renounce the exercise of the full range of its powers simply because, in a particular case, its decision might have consequences for another case pending before it.31 The Court would not be justified in refusing to exercise the jurisdiction conferred on it by the parties, not taking cognisance of the petitum they have submitted to it, because of the fortuitous fact that another case is pending and the present one might have indirect consequences for it. If it were otherwise, a range of abuses would become possible. It would be enough to seise the Court of a new case and thus pre­ vent its fully deciding one already before it. The idea is even more unacceptable when one remembers that there is no cogent legal reason for it.

  On this rule and its limits, see above.   Continental shelf case (Libya v Malta), ICJ Reports 1984, 18 et seq. and ICJ Reports 1985, 25–28. 29   Case of the Land and maritime boundary between Cameroon and Nigeria, ICJ Reports 2002, 421, § 238. 30   Case on Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v Singapore, 2008) §§ 298–99. 31   Case on the Legality of the use of force (Serbia and Montenegro v Belgium), ICJ Reports 2004-I, 298, § 40. 27 28

928  PRINCIPLES OF CONTENTIOUS PROCEEDINGS

2.  QUESTIONS CONNECTED WITH ESTABLISHING THE FACTS, IN PARTICULAR THE BURDEN OF PROOF32

a)  General Aspects Since the Court applies the law to the facts of the case, it is necessary to establish the rele­ vant facts. Only once the facts are established can particular rules of law be applied to them as issues under the parties’ pleadings. Such relevant facts may be called ‘legal facts’, facts which a legal norm treats as conditions giving rise to particular legal consequences that alter the parties’ rights and obligations. For example, in the field of acquisitive prescription of municipal law, one has, according to the circumstances, to establish various facts indi­ cated by the relevant norms: possession for 30 years; no protest by parties claiming prior rights; that the asset was not acquired by a criminal act; and so on. If these facts can be established, a proprietary title comes into being in favour of the party in possession. It is impossible for a court of justice itself to carry out an enquiry to establish all these facts. It has to depend on the assistance of executive organs or of the parties themselves. In private law proceedings, the essential burden of providing the Court with the facts falls on the parties. Da mihi facta, dabo tibi ius33 has in substance been the rule ever since the Roman leges actiones. The rule has been developed in the apud judicem formulary pro­ cess, but without becoming too rigid.34 Only the parties know the facts; and also, the facts 32   In the vast literature on this subject, see especially: JC Witenberg, ‘La théorie des preuves devant les jurisdic­ tions internationales’ CCHAIL, vol 56, 1936-II, 5 et seq.; JF Lalive, ‘Quelques remarques sur la preuve devant la Cour permanente et la Cour internationale de Justice’ (1950) 7 ASDI 77 et seq.; B Cheng, ‘Burden of Proof before the ICJ’ (1953) 2 ICLQ 595 et seq.; J Evensen, ‘Evidence before International Courts’ (1955) 25 Acta Scandinavica Juris Gentium 44 et seq.; L Ferrari Bravo, La prova nel processo internazionale (Naples, 1958); Y Chang, ‘Legal Presumptions and Admissibility of Evidence in International Adjudication’ Annals of the Chinese Society of International Law (1966) 1 et seq.; DV Sandifer, Evidence before International Tribunals (Charlottesville, 1975); Fitzmaurice, The Law and Procedure of the ICJ, above n 14, 575 et seq.; M Lachs, ‘Evidence in the Procedure of the ICJ: Role of the Court’ in Essays in Honor of TO Elias vol I (Dordrecht, 1992) 265 et seq.; A Aguilar Mawdsley, ‘Evidence before the International Court of Justice’ in Essays in Honor of W Tieya (Dordrecht, 1994) 533 et seq.; H Thirlway, ‘Evidence before International Tribunals’ (1995) II EPIL 302 et seq.; Kazazi, Burden of Proof and Related Issues, above n 2; Rosenne, The Law and Practice of the ICJ, vol III, above n 2, 1083 et seq.; C Amerasinghe, ‘Principles of Evidence in International Litigation’ in Ann IDI, vol 70-I (2002/2003) 156 et seq.; Niyungeko, above n 1; M Benzing, Das Beweisrecht vor internationalen Gerichten und Schiedsgerichten in zwischenstaatlichen Streitigkeiten (Heidelberg/Dordrecht/London/New York, 2010). On fact-finding by the Court: GM White, The Use of Experts by International Tribunals (Syracuse, New York, 1965); WF Foster, ‘Fact-Finding and the World Court’ in CYIL, vol 7 (1969) 150 et seq.; GM White, ‘The Use of Experts by the International Court’ in Essays in Honor of RY Jennings (Cambridge, 1996) 528 et seq.; RB Lillich (ed), Fact-Finding before International Tribunals (New York, 1992) with various contributions; S Jacob, ‘Fact-Finding and Inter-State Adjudication’ (1996) 59 Modern Law Review 207 et seq.; S Rosenne, ‘Fact-Finding before the ICJ’ in W Heere (ed), International Law and the Hague’s 75th Anniversary (The Hague, 1999) 45 et seq. 33   See the Decretals of the Corpus iuris canonici, II (Liber Extra), 1, 6, Alexander III. The Decretals are a body of legislation resulting from the answers given to particular cases brought to papal attention (similarly to the rescripta of the Roman emperors). This not abstract general legislation in the modern style, but a casuistical style of legisla­ tion typical in Antiquity and in mediaeval times. As to the principle jura novit curia in international law, see GC Venturini, ‘Il principio ‘iura novit curia’ e il processo internazionale’ in Essays in Honor of G Morelli (Milan, 1975) 969 et seq. 34   The rule was that the plaintiff had to prove the facts supporting his claim, and the defendant to prove the facts justifying the defence. The principle was that the burden of proving a fact falls upon him who alleges it rather than him who denies it. As regards ‘negative’ facts (especially the claim that something did not happen), the bur­ den is normally reversed, so that the burden of proof falls on the party claiming that the event did indeed occur. In addition, a series of presumptions was developed. Evidence was a field for the parties, not for the court: the



ESTABLISHING THE FACTS 929

they rely on are, by definition, beneficial to them. It is, therefore, in no sense asking too much of them to require them to apply themselves to assembling and presenting to the Court the facts on which they rely. The burden of proof thus becomes a cardinal point, creating a division of labour between the parties and the court as regards establishing the facts that need to be ascertained so that the law can be applied to them. The burden of proof can be defined as follows: ‘Obligation incumbent on the party seeking to rely on a fact to demonstrate that the fact is true, on pain of its being disregarded in the resolution of the dispute.’35 This principle as to the burden of proof is fully applicable to cases before the ICJ. Since such cases are of the ‘private’ type, as discussed above, it is for the parties to present the Court, in the manner and form laid down in the Statute and the Rules, with all the facts relevant to the application of the legal norms on which they seek to rely for the resolution of the dispute. The Court does have the right to seek to establish facts autonomously, although it is under no obligation to do so, it sometimes does in effect have to.36 From a general point of view, it has in this respect, a discretionary power. The most frequent situ­ ation in which the Court will proceed to an independent enquiry is when the facts claimed by one party give rise to doubt, for example as to the amount of a claim for compensation. But the Court is not under any obligation to seek independent expert advice; and up to the present time it has (perhaps excessively) refrained from appointing its own experts. If the documents submitted to it put it beyond reasonable doubt that the sum claimed is justi­ fied, the Court can award that amount on its own authority; in the opposite case, it can reject the claim or restrict it. In this respect too, the ‘truth’ of the judicial findings of fact in proceedings of the ‘private’ type is a formal rather than a substantive matter. The Court will not seek to find out what really happened or what is the real amount. Not having the necessary investigative structures, it does not have the means. Instead, it decides as a func­ tion of the facts presented to it by the parties. This characteristic is of the highest import­ ance. It means that the Court is basing its decision on a particular judicial ‘reality’ or ‘truth’ which differs, perhaps even markedly, from the material truth of the situation. It is point­ less to criticise the Court in the manner of a journalist complaining that the decision is out of kilter with the concrete realities with which he is familiar. If the parties present their cases poorly, producing a thin body of poor-quality evidence, or if they are simply unable to provide credible evidence, the Court’s decision will necessarily be based on this defective material, and its judgment will reflect that fact. The force of res judicata (‘res judicata pro veritate habetur’) will, so to speak, become attached to the evidence in question. It would be different if the proceedings before the Court were ‘public’ in nature, again in the sense latter confined itself to stating the law. In the post-classical era of the principate, in the imperial courts, the rules on evidence were further developed. In a whole series of cases, magistrates had the task of bringing the relevant evidence to the attention of the court. Also, the scope for the court itself to make its own appreciation of the evidence was reduced by certain rules that gave stronger probative value to certain types of written documents. As to Roman judicial processes, see, eg the very detailed monograph by M Kaser and K Hackl, Das römische Zivilprozessrecht, 2nd edn (Munich, 1996). 35   J Salmon (ed), Dictionnaire de droit international public (Brussels, 2001) 168 (our translation). 36   In this sense, the Court is not confined to the facts presented to it by the parties. If those facts seem specious or unreliable – and especially if the public interest in the proper administration of justice is in issue – the Court must exercise its discretionary power to seek to obtain a more complete picture of the facts. However, the Court’s possibilities in this regard are limited. In particular, it can request the parties to supply supplemental information (Art 49 of the Statute and Amerasinghe, above n 32, 230). And it can draw its own conclusions from any refusal or inaction by parties faced with such a request.

930  PRINCIPLES OF CONTENTIOUS PROCEEDINGS

previously defined. It would then be able to call for particular investigations and have access to all information. The Court’s orientation towards formal ‘truth’ simply reflects the fact that the primary (and sometimes exclusive) responsibility for establishing the facts rests with the parties.

b)  The Principle of Free Assessment of the Evidence In modern legal systems, the court always has the right to make its own assessment of the evidence. This means that the court examines the evidence case by case, in order to weigh its value and credibility in context. There are no abstract pre-established rules as to the probative force of evidence in this or that category. All that counts is the conviction to which the evidence gives rise in the unique circumstances of the particular case. This does not imply any failure to recognise that, in the great majority of cases, some evidence will have a much greater probative value than others. For example, documentary evidence is more probative than oral evidence of matters of which the witness has only indirect know­ ledge. But the establishment of rigid rules of any kind would inevitably result, sooner or later, in unsatisfactory, inadequate and ultimately unjust results. Things were different in Antiquity and in mediaeval times, when there were rules, sometimes extremely formalistic, as to the weight to be given to certain types of evidence. Courts were obliged to observe these requirements as applicable rules of law.37 However, such formalism did not stand the test of time and in the end was abandoned. Proceedings before the ICJ are, in this respect, modern proceedings in the full sense of that term. The Court recognises no formal or other rigid rules as to its assessment of evid­ ence or the relative weight to be given to evidence in any particular category. It possesses a wide margin of discretion in the matter, and that discretion is limited only by the prohibi­ tion against arbitrary action. The principle of the free assessment of the evidence (‘freie Beweiswürdigung’) prevails. The Court emphasised this in the case on Military and paramilitary activities in and against Nicaragua (1986): ‘[The Court has], within the limits of its Statute and its Rules . . . freedom in estimating the value of the various elements of evid­ ence. . . .38 It should be emphasised that the Statute and Rules limit only the admissibility of evidence (for example, ratione temporis). They do not contain any rules as to the relative weight of evidence. The principle of free assessment is thus given full rein.

37   In post-classical Roman procedure, official State documents, or private written documents, were formally recognised to be of greater probative force than oral evidence. In mediaeval times, rules such as the following would come up here and there: three witnesses giving the same testimony were considered to definitively establish the fact to be thereby proven. Procedure in the ecclesiastical courts rapidly showed its superiority, and for that reason was often preferred by parties. Those courts never used the ordeal procedure; they sought to establish the truth of what actually happened, and the canon law of the Roman Church was applied. This ecclesiastical proce­ dure was based above all on written documentation, which was considered to be formally superior to any other form of evidence. The dictum emerged that ‘quod non est in actis non est in mundo’ (what isn’t in the documents isn’t in this world). See in this connection W Plöchl, Geschichte des Kirchenrechts, 2nd edn, vol I (Vienna, 1962) 311 et seq. See generally, RC van Caenegem, ‘La preuve au Moyen Age occidental’ in La Preuve II, Reports Jean Bodin, vol XVII (1965) 691 et seq. 38   ICJ Reports 1986, 40, § 60.



ESTABLISHING THE FACTS 931

c)  The General Rule ‘onus probandi incumbit actori’39 The burden of proof has two intimately connected aspects. First: on whom does the burden rest of establishing a specific fact? Second: who bears the risk of failure to establish the fact? In other words, how is the risk of such failure divided, as between the parties to the case? The general rule is that the risk is borne by the party on whom the burden of establishing the fact rests. The expression ‘onus’ thus has a double meaning: it indicates a duty (to sup­ ply the evidence) and also a risk (if the evidence is not successfully produced). When it comes to the application of this rule, the question of who is the applicant and who is the respondent is not decisive. The sole determinative question is as to who is making a particular concrete factual claim. That party is the ‘actor’ with regard to that allega­ tion, and it is on that party that the burden of proving the facts supporting its claim will rest.40 The expression ‘affirmanti incumbit probatio’41 puts the point with greater precision. Thus if the respondent invokes certain objections or defences, that same party, the respondent, has the burden of showing that the objections or defences are well founded.42 Here, the fact that it happens to be the respondent in the overall case is irrelevant; in relation to the particular argument in question, it is the actor. This amounts to saying that the burden of proof is in reality split between the parties.43 This was the position in, for example, the case on the Rights of United States citizens in Morocco (1952). In that case, France began proceedings against the USA. Formally, France was the applicant, the USA the respondent. However, the USA claimed that its citizens enjoyed a whole series of rights in the French zone of Morocco. The Court considered that the USA, as ‘actor’ in this regard, bore the burden of proving the facts concerning these treaty rights.44 Since then, the Court has often repeated the rule, for exam­ ple, in the case on Military and paramilitary activities in and against Nicaragua (Jurisdiction and admissibility, 1984): ‘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 . . .’45 The fact that the rule ‘onus probandi . . .’ applies to concrete claims and not to a party’s general procedural position in the case has the collateral advantage of reducing the risk that the substantive resolution of the dispute might be excessively dependent on whether a party happens to be the applicant or the respondent. If that were the situation, there would be every advantage in trying to manoeuvre oneself into the position of respondent.46 Distortions of this kind are not, of course, entirely eliminated by the ‘affirmanti incumbit . . .’ rule. But the scope for such distortions is clearly reduced through the Court’s apportioning the bur­ den of proving the particular concrete point to the party asserting it. The Court needs to pay careful attention to this problem, which reflects one of the requirements of the proper administration of justice, and the Court’s practice shows that it does indeed give the point   See in particular, Kazazi, above n 2, 53 et seq., 221 et seq.   See, eg Niyungeko, above n 1, 35 et seq. 41   An argument (or indeed taunt) in use ever since mediaeval times: see, eg the Gloss ‘Ei incumbit’ ad Dig 22, 3, 2. 42   Hence also the old taunt ‘reus excipiendo fit actor’: Dig, 44, 1, 1, and 22, 3, 19. 43   As G Scelle puts the point so well in a Report on arbitration procedure in the Yearbook of the ILC, 1950-II, 134: ‘The adage actori incumbit probatio means that the burden rests not with the applicant as such, but with whichever of the parties alleges the relevant fact. The burden is thus split between the parties.’ (our translation) 44   ICJ Reports 1952, 191 et seq. cf Amerasinghe, above n 32, 178–79. 45   ICJ Reports 1984, 437, § 101. See also the Right of asylum case, ICJ Reports 1950, 281. 46   On this problem, see Fitzmaurice, The Law and Procedure of the ICJ, above n 14, 576. 39 40

932  PRINCIPLES OF CONTENTIOUS PROCEEDINGS

the full attention it merits.47 This manner of applying the ‘onus probandi . . .’ rule also relaxes the tension between cases brought to the Court by the parties jointly, by special agreement (in which event there is in formal terms no applicant and no respondent) and cases of which the Court is seised unilaterally by one side.48 Given that in cases of joint seisin there is no applicant and no respondent in the general sense of those terms, the Court will often need to be particularly careful to be clear about requiring each side to establish the facts upon which it seeks to rely. Thus, in the Minquiers et Ecrehos case (1953), the Court emphasised that each party ‘has to prove its alleged title and the facts upon which it relies’.49 This was no more than to apply the general rule. But the Court considered itself bound to issue the reminder because the parties’ documents were not structured as application and defence. In advisory proceedings, there is no application defining the subject of a dispute that the Court is called upon to decide. Consequently, there is no burden of proof either, apart from the obvious point that any argument put forward by a State or other entity in its observations to the Court will carry greater weight if it is well documented. Thus in the Western Sahara case (1975), the Court said that: ‘In advisory proceedings, there are prop­ erly speaking no parties obliged to furnish the necessary evidence, and the ordinary rules concerning the burden of proof can hardly be applied.’50 The Court can, however, refuse to respond to a request for an advisory opinion (or to a part of the question put to it) if it considers that it is not in possession of the information necessary to enable it to do its job in an adequate way.51 In such a case it must decline to give an opinion. A partial and biased opinion would be damaging to its judicial integrity and prestige, and would not be a valu­ able contribution to enlightening the requesting organ about the legal aspects of the ques­ tion it had put to the Court. It goes without saying, however, that such a refusal is only a last resort and that the Court must make every effort to seek, on its own authority, the information necessary for the exercise of its advisory function. It is inadmissible to argue that, in the absence of a burden of proof and of an adversarial procedure and its effects, the Court cannot be sufficiently certain of the facts and must therefore abstain from giving the opinion sought. It is sufficient for the Court to have in its possession a body of documenta­ tion which it considers gives it sufficient information in the context of the question it is

  See, eg the case of the Temple of Preah Vihear, ICJ Reports 1962, 15–16.   Sometimes, the type of question put in this context can make the difference. In the Lotus case (1927), which came before the Court by Special Agreement, the negative formulation of the Court’s role (‘has Turkey, in contra­ diction to the principles of international law . . .?’) enabled the Court to say that international law imposed no limits on criminal proceedings in respect of extraterritorial facts, and that France had failed to show any such limits. If the case had been brought by Turkey unilaterally, asking the Court whether international law allowed such criminal proceedings, the uncertain state of international law might perhaps have produced the opposite result. The Court might have said that Turkey failed to show that international law permitted such exercises of extraterritorial jurisdiction, so that its claim failed: see PCIJ, Series A, no 10, 5, 15. A similar situation arose in the advisory opinion case on the independence of Kosovo (Accordance with international law of the unilateral declaration of independence in respect of Kosovo, 2010), §§ 49 et seq. If the Court had responded to the question as put to it by the General Assembly, it would have had to say that the declaration was not in accordance with international law, which does not normally govern questions of secession. Conversely, however, the Court was able to say that the declaration was not contrary to international law, because it was not affected, in the Court’s opinion, by any prohibitive norm of international law. The two results and the two sets of reasoning are compatible with each other, but they do not have the same legal and practical scope. The question of burden of proof did not arise in the advisory opinion context, given that in such cases there are no parties. 49   ICJ Reports 1953, 52. 50   ICJ Reports 1975, 28, § 44. 51   See JA Frowein and K Oellers-Frahm, ‘Article 65’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 1414–15. 47 48



ESTABLISHING THE FACTS 933

called upon to deal with.52 The advisory jurisdiction is not directly oriented to providing solutions to disputes. It does not normally result in a binding pronouncement. Nor is it normally based on a precise application of norms to facts. Rather, the Court is often called upon to give general legal opinions that will shed light on an aspect of a question that is of concern to the requesting UN political organ. It can sometimes happen that advice is requested on a ‘legal question actually pending’ (Rule 102, §§ 2 and 3) between two or more States. That question can be the subject of an inter-State dispute. The opinion on the Peace Treaties with Bulgaria, Hungary and Romania (1950)53 shows this, as does the Western Sahara case of 1975 (mentioned above). When the States directly concerned in the dispute take positions before the Court in the form of observations on the question before it, can the principle onus probandi . . . then apply by analogy? There is nothing to stop the Court from considering an argument put forward by a party to be reasonably convincing only if adequately documented and, in that sense, well founded. It was for that reason that, in the Western Sahara case, the Court was able to take the view that it was for the interested States (Morocco and Mauritania, among others), to persuade it that there were connections between them and the Western Sahara at the start of the colonial period.54 Nevertheless, we are not speaking in this context of burden of proof in the formal sense, but rather of the rational rule that an argument cannot be accepted by a court unless it appears sufficiently well founded. Consequently it is in the interests of the party putting it forward to make it as credible as possible. In any event, the reverse side of the burden of proof, that is, the risk of losing the case, has no application in advisory opinion cases. If a State does not produce sufficient evidence to support its arguments, it does not incur the sanction of seeing its case dismissed or a finding in favour of its opponents. It is not truly a party to the case at all. In short, even in the case of an advisory opinion relating to a legal question actually pending between States, the procedure does not involve a burden of proof in the technical sense of the term, since no party to the underlying dispute is under any obligation to prove any fact (or even to lodge any observations at all), and nor does any party run any risk of having its claim dismissed. If, however, such a party does choose to supply information, it must do its best to make it convincing, because only by so doing can it hope the Court will accept it and that it influence the resulting advisory opinion.

d)  Limitations to the General Rule on Burden of Proof As with any other legal principle, the rule onus probandi . . . applies in a certain context and has limits set to it by the application of other principles and rules. In addition, there are exceptions to it, and we will now turn our attention to these. The rule ‘jura novit curia’.55 The Court is deemed to know the law. The rule is that it does not know the facts – hence the burden of proving facts – but it knows the law on an ex officio   ICJ Reports 1975, 28–29, §§ 44–47.   ICJ Reports 1950, 65 et seq., 221 et seq. 54   ICJ Reports 1975, 41, § 86. 55   On the historical development of the principle, see A Stoelzel, Die Entwicklung der gelehrten Rechtsprechung, vol II (Berlin, 1910) 79. In Roman proceedings apud iudicem, the burden of proof rested with the parties; the Court needed only to know the law. If it had insufficient legal knowledge, then it was under an obligation to take steps on its own account to become better informed, eg by seeking the assistance of a jurist as counsel (consilium). If the Court was unable to obtain an adequate picture of the facts and/or applicable law, it could swear that the 52 53

934  PRINCIPLES OF CONTENTIOUS PROCEEDINGS

basis, so that, in that regard, there is no burden of proof. The relationship between the rule ‘jura novit . . .’ and the ‘onus probandi . . .’ principle has been summed up in the following terms: First, the burden of proof rule is not applicable to questions of law; it is limited to questions of fact. The law is not a matter the parties must prove. The Court knows the law of itself and must administer it independently of the parties’ views: iura novit curia. The rule is thus that the Court ‘knows and will apply the law’, whatever the parties say, or omit to say.56

This amounts to saying that the administration of the law is a matter of collective interest (utilitas publica) and relates to the question of judicial integrity. That is why it cannot sim­ ply be left to the parties, who represent only their own particular interests. The Court itself has several times insisted on this point. In the Fisheries Jurisdiction cases (1974), it said this: The Court, however, as an international judicial organ, is deemed to take judicial notice of inter­ national law, and is therefore required . . . to consider on its own initiative all rules of inter­ national law which may be relevant to the settlement of the dispute . . . [T]he burden of establishing or proving rules of international law cannot be imposed on any of the parties, for the law lies within the judicial knowledge of the Court.57

The jura novit . . . rule also means that the Court is not dependent upon the parties’ argu­ ments when it comes to establishing the law. It has complete independence in that regard. As it emphasised in the case on Military and paramilitary activities in and against Nicaragua (1986) ‘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’.58 Consequently, the rule on the burden of proof does not apply to the establishment of the Court’s jurisdiction or the admissibility of an application.59 These are matters of law. The Court is, to a significant degree, itself bound to examine these questions motu proprio, since they concern the due administration of justice and the integrity of the judicial process, or in other words, the objective conditions established by the Statute for proceedings before the Court. That is why the Court was justified in stating, in the Fisheries Jurisdiction case (Spain v Canada, 1998), that there is ‘no burden of proof to be discharged in the matter of jurisdiction’60 and that it was for the Court alone to decide the question. In the case on Border and transborder armed actions (Nicaragua v Honduras, Jurisdiction and admissibil­ ity, 1988), the Court expressed itself in the following more general terms: ‘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.’61 The Court is not, however, obliged to take cognisance in equal measure of all rules of law. It is certainly deemed to know, and to have the right to administer, the rules of general

‘matter is unclear’ to it (rem sibi non liquere). At that point, a fresh judge would be appointed. The judges’ control over the law was further reinforced in the formulary procedures that were subsequently developed. 56  Fitzmaurice, The Law and Procedure of the ICJ, above n 14, 531. 57   ICJ Reports 1974, 9, § 17 and 181, § 18. 58   ICJ Reports 1986, 24, § 29, citing the Lotus case (1927), PCIJ, Series A, no 10, 31. 59  Shihata, The Power of the International Court, above n 11, 221–23. See, eg the South West Africa cases (Preliminary Objections), ICJ Reports 1962, 395, where the Court departed from any question relating to the bur­ den of proof in order to establish the existence of a dispute. 60   ICJ Reports 1998, 450, § 38. 61   ICJ Reports 1988, 76, § 16.



ESTABLISHING THE FACTS 935

international law.62 This is a concept which is to be interpreted broadly. It includes all universal rules of customary law, and also the general principles of law and the great mul­ tilateral conventions, including particularly those that are codifications. On the other hand, the Court is not deemed to have direct and spontaneous knowledge of all the sources of particular law that can be applicable to particular cases. It is not obliged to have knowledge of the rights and obligations arising from bilateral conventions or regional customs. This applies a fortiori to all the sources of particular obligations resulting from estoppel, pre­ scriptive title, tacit or informal agreement, or acquiescence. Certainly the Court has the right to carry out research in relation to such particular rights and obligations. But it can hardly be said to be equipped with the means to do so on a substantial basis: a significant body of researchers would be needed. Also, it is not truly a function of the Court to shed light on particular sources of rights and obligations that exist purely for the benefit of the particular parties concerned. To that extent, such sources are treated as questions of fact. So, in the Right of asylum case (1950), the Court said that a party claiming to rely on a regional custom ‘must prove that this custom is established in such a manner that it has become binding on the other Party’.63 The same rule applies to the internal laws of States, which, for evidential purposes, are treated by international tribunals as a question of fact.64 The existence or absence of rules of internal law, and their extent and content, thus involve a burden of proof falling on the party that alleges them. The PCIJ clearly emphasised, in the Brazilian loans case (1929), that ‘the Court, which is a tribunal of international law, and which, in this capacity, is deemed itself to know what the law is, is not obliged also to know the municipal law of the various countries’.65 One has to draw the same conclusion as regards the various sources of internal and secondary (derivative) rules of an international organisation. Particular types of evidence. The rule as to the burden of proof does not apply, ratione materi­ae, to certain types of evidence. Thus there is no burden of proof in relation to facts that are either notorious66 or undisputed.67 There are also some situations in which it is dif­ ficult to apply the rule as to the burden of proof because of the particular structure of the 62   It has happened, however, that an international tribunal has allocated the burden of proof to a party alleging that a rule of conventional international humanitarian law of a certain importance has not acquired the status of international customary law (the presumption being in favour of customary law): Arbitration Commission Eritrea/Ethiopia, Western and Eastern Fronts (Ethiopia’s Claims 1 and 3, Award of 19 December 2005, §§ 17–18, available at www.pca-cpa.org or in RIAA, vol 26, 361–62. This situation arose from a reasonable presumption that the arbitrators considered it possible to make as regards the applicable material law. It constituted a certain limita­ tion to the principle jura novit curia, the tribunal confining itself to establishing the prima facie legal position. This leaves to the parties the burden of reversing it, if they can do so. 63   ICJ Reports 1950, 276. 64   A classic position in this sense, formulated in general terms (for which it is sometimes criticised) is to be found in the case on Certain German interests in Polish Upper Silesia (merits, 1926), PCIJ, Series A, no 7, 19: ‘From the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts’. On this question, see the minute analysis by A Cassese, Il diritto interno nel processo internazionale (Padua, 1962) 169 et seq. See also Niyungeko, above n 1, 96 et seq. 65   PCIJ, Series A, no 21, 124. 66   Case on the United States diplomatic and consular staff at Tehran, ICJ Reports 1980, 9–10, § 12. The maxim ‘notorium non eget probatione’ is explained in the gloss ‘Quia manifestum fuit’ ad Dig 19, 1, 11, § 12 (Accurse). For international law, cf Niyungeko, above n 1, 79 et seq. Obviously ‘notorious facts’ need to be defined narrowly and carefully. 67   Case on Border and transborder armed actions (Nicaragua v Honduras), ICJ Reports 1988, 76, § 16: ‘The deter­ mination of the facts may raise questions of proof. However the facts in the present case . . . are not in dispute.’ The Court concluded that there was no reason to impose a burden of proof. See Amerasinghe, above n 32, 197.

936  PRINCIPLES OF CONTENTIOUS PROCEEDINGS

facts in question. If the failure to establish a fact automatically implies the admission of another one, for example, the opposite of that fact, the allocation of the burden of proof is a simple matter. If fact X is not established to the Court’s satisfaction, the Court can draw the legal conclusions of non-X. This is the position where, for example, the physical demar­ cation of a boundary is in issue. Either it has been done (X) or it has not (non-X). But sometimes the failure to establish X does not necessarily establish the opposite (or indeed any other) fact. It may produce consequences A, B or C. The Court had such a situation in mind when, in the case of the Frontier dispute (Burkina Faso v Mali) it said: 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.68

Such a situation is particularly prone to occur in territorial disputes. Each side will have to put forward its own titles, effectivités and other evidence. If the Court were to begin by con­ sidering the position of State A (this decision would be a discretionary one, since in special agreement cases there is no applicant and no respondent), it might reject all the arguments advanced by that State as ill-founded, the relevant facts having been insufficiently proved. That would not mean, however, that the Court could therefore consider the facts con­ tended for by State B to be established. They, too, might have been rejected as insufficiently evidenced if the Court had begun by considering the position of State B. It follows that the solution to such cases is not to be found in the mechanical application of a rule as to the burden of proof. Each party must bring forward its own titles and evidence. The Court must weigh them, if necessary doing so in order to discover which State has the ‘relatively stronger title’ or the relatively stronger evidence. This is how the Court acted in 1986 in the Frontier dispute case, and again in the case on Sovereignty over Pulau Ligitan and Pulau Sipadan (2002).69 Here, the structure of the judicial debate is influenced by the material law in such a way that the rule on the burden of proof cannot be applied with its full rigour. The role of presumptions.70 The burden of proof principle is further limited by the presump­ tions of the applicable material law. Three types of presumption can be distinguished. First, there are ordinary legal presumptions (praesumptiones juris). Here, a legal norm automatically supposes that certain facts are established in a given situation. So, if a particular state of affairs exists, certain connected facts are deemed by the applicable law to exist like­ wise, without there being any need to prove them. If fact A exists, it must be supposed that another fact (B) also exists. In this sense, it is possible to say that legal presumptions are con­ clusions as to unknown facts, drawn from known ones.71 In municipal law it is presumed that the child of a married couple is their issue. The law creates such presumptions for reasons of justice and/or for the sake of legal certainty. In some cases, it might be excessively difficult to   ICJ Reports 1986, 588, § 65.   ICJ Reports 2002, 682 et seq., §§ 134 et seq. 70   On presumptions in public international law, see J-M Grossen, Les présomptions en droit international public (Neuchâtel/Paris, 1954); Amerasinghe, above n 32, 272 et seq.; Kazazi, above n 2, 239 et seq.; Niyungeko, above n 1, 103 et seq. It has been said that there are no presumptions in public international law (see, eg L Delbez, Les principes généraux du contentieux international (Paris, 1962) 115), but this is unconvincing. 71   Amerasinghe, above n 32, 272. See also Ch de Visscher, Problèmes d’interprétation judiciaire en droit international public (Paris, 1963) 36–37: ‘[A presumption] is a process of logical reasoning used for evidential purposes and characterised by a displacement of the evidential subject: one induces, from the existence or non-existence of a known fact, not itself probative, but in temporal terms a neighbouring fact . . . or experientially connected to the fact that is to be proved, that the latter fact does indeed exist.’ (our translation). 68 69



ESTABLISHING THE FACTS 937

prove the fact, especially if it is a negative one. The need to do justice might, in such a case, be imperilled by the application of the ordinary rule on burden of proof. Similarly, in some situ­ ations it is very commonly the case that certain facts exist. It is reasonable to presume that they do so, in order to save the time and expense of proving them. That does not mean that the presumed fact is definitively proved. It is only a presumption. It is then for the opposing party to show that, in the particular case the court is considering, the presumption is not justified – that the fact in dispute does not exist. The use of presumptions thus facilitates the proof of facts by putting the onus onto whichever party the legislator considers the more appropriate. There thus exists, in international law, a presumption – reinforced by the prin­ ciple of sovereignty – that all acts carried out by a State, especially under its internal laws, are regular: omnia acta praesumuntur esse rita.72 According to a further presumption, the ordin­ ary sense of the text of a treaty will prevail unless a special meaning, altering the ordinary one, can be demonstrated.73 Sometimes, the reversal of the onus of proof is envisaged in very general terms, as, for example, in relation to the principle of precaution in environmental law.74 Second, there are legal fictions and conclusive presumptions (praesumptiones juris et de jure). In these cases, the burden of proof does not apply at all. The law rests on the principal legal presumption, without allowing for the possibility that the parties may prove the actual facts to be otherwise. This means that the point at issue is treated not as a question of fact, but rather as one of law. A certain type of conduct or a certain result are absolutely required, independently of the concrete facts. This is the position, for example, as regards the rule ignorantia juris nocet. Ignorance of the law is no excuse except in cases where the legal rule itself permits a party to plead ignorance, or attaches different consequences in cases of genuine ignorance. Here, the law is imputing and imposing the fact of knowledge of the law. Such absolute presumptions exist in the fields where the legislator takes the view that only one solution is legally acceptable. Third, there are presumptions of fact or reasonable inferences (praesumptiones hominis). In truth, these are not presumptions in the narrow sense of the term. The inference drawn by the judge is simply the reflection of his assessment and interpretation of the evidence. As a function of his experience of life and awareness of its realities, the judge concludes that certain facts which have been established, give him reasonable grounds for thinking that certain other facts must also exist. The result is that he accepts those further facts for the purposes of the case, on the basis of what the French call his ‘intimate conviction’ (intime conviction). In such a case, the burden of proof is not reversed. There is only a possibility, nothing more, that the judge will make an adverse inference of fact. It is still possible to head that off by appropriate arguments. Such inferences are often drawn from indirect or circumstantial evidence rather than from the direct evidence. The Corfu Channel case (1949), concerned with Albania’s awareness of the existence of mines in its offshore waters, illustrates the point.75   See Grossen, Les présomptions en droit international public, above n 70, 60 et seq.   Art 31, § 4, of the 1969 Vienna Convention on the Law of Treaties. See the case of Eastern Greenland, PCIJ, Series A/B, no 53, 49 or the case of the Land, island and maritime boundary dispute (El Salvador v Honduras), ICJ Reports 1992, 585, § 377. 74   See the Dissenting Opinion of Judge Weeramantry, in the case on the 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, ICJ Reports 1995, 348. 75   ICJ Reports 1949, 18. 72 73

938  PRINCIPLES OF CONTENTIOUS PROCEEDINGS

Negative facts and connected questions. The proving of negative facts (that is, of the absence of facts) has given rise to some highly elaborate legal analyses. Ever since the heyday of Roman law, the particular difficulties facing parties invoking negative facts have been rec­ ognised. In consequence, the rules negativa non sunt probanda and negantis nulla probatio found their way into the jurisprudence.76 The application of these maxims meant that, in the great majority of cases, the party concerned was freed from the obligation to establish the non-existence of the fact in question, the burden of proof being transferred to the other party, which had to show that the fact did indeed exist. These maxims are not of general application, in either municipal or international law. However, the Court does possess a certain margin of discretion to reverse the burden of proof or make it more flexible, on the basis that this a necessity for the due administration of justice. Thus, in the case on Military and paramilitary activities in and against Nicaragua (merits, 1986), the Court stated: ‘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.’77 Here the Court was suggesting that the assessment of the relevant evidence could be carried out in a particularly flexible way and could more readily give rise to inferences, always within the limits of the due administration of justice and the particu­ lar requirements of Article 53 of the Statute (default by one party).78 In the AS Diallo case (2010), the Court recognised, in more general terms, that when it comes to evidence of negative facts, an exception to the ordinary rule ‘onus probandi . . .’ may need to be made, depending on the particular circumstances.79 It must be remembered that the Court makes analogous adjustments even when applying the law. Thus, when a negative custom is in issue, postulating a duty not to do something, the Court apparently tends to rely more on the opinio juris element than on the practice of States, since in such a situation State prac­ tice is very difficult to establish.80

76   Dig, 22, 3, 2, (Paulus); Dig, 22, 3, 21 (Marcian). See also the gloss ‘Ei incumbit’ ad Dig, 22, 3, 2; Codex Justinianus, 4, 19, 23 et 4, 30, 10. The rule has also been expressed in the words ‘ei incumbit probatio qui dicit, non qui negat’. On the development of this legal maxim, see HJ Musielak, Die Grundlagen der Beweislast im Zivilprozess (Berlin/New York, 1975) 259 et seq. See also HJ Musielak, Grundfragen des Beweisrechts (Munich, 1984). 77   ICJ Reports 1986, 80, § 147. 78   One finds such a relaxation in the conditions for proof in the practice of other international tribunals as well. See, eg the Mexico City Bombardment Claims (1930), a case in which the mixed arbitral commission called on the parties to work together to assemble the evidence, the claimant being under an obligation to establish a kind of prima facie case, the respondent having to produce evidence to the contrary. This involved a partial reversal of the burden of proof. (RIAA, vol. V, 80: ‘In a great many cases it will be extremely difficult to establish beyond any doubt the omission or the absence of suppressive or punitive measures. The Commission realizes that the evid­ ence of negative facts can hardly ever be given in an absolutely convincing manner.’) See also the Bowerman case (1930), ibid, 106: ‘With regard to the responsibility of the Mexican Government for the acts of these forces or brigands, the majority of the Commission would refer to the principles laid down in the opinion of the President [in the Mexico City Bombardment Claims]. Reference is there made to the difficulty of imposing on the British Government the duty of proving a negative fact such as an omission on the part of the Mexican Government to take reasonable measures, and it is stated that whenever an event causing loss or damage is proved to have been brought to the knowledge of the Mexican authorities or is of such public notoriety that it must be assumed that they had knowledge of it, and it is not shown by the Mexican Agency that the authorities took any steps to sup­ press the acts or to punish those responsible for the same, the Commission is at liberty to assume that strong prima facie evidence exists of a fault on the part of the authorities.’ 79   Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) Judgment of 30 November 2010, § 55. 80   See, eg the cases of Nicaragua (ICJ Reports 1986, 99–100, §§ 188–90) and the advisory opinion on Nuclear weapons (ICJ Reports 1996-I, 253–55, §§ 65–73). On this question, see also R Kolb, ‘Selected Problems in the Theory of Customary International Law’ (2003) 50 NILR 129, and the references there cited.



ESTABLISHING THE FACTS 939

International jurisprudence shows that a similar attitude may be adopted whenever the establishment of certain facts is particularly difficult for the claimant (ubi eadem ratio, idem jus).81 The objective is always the same, namely to avoid the requirement for evidence to lead to a denial of justice by requiring the impossible of the claimant; ad impossibile nemo tenetur; probatio non debet esse diabolica. At the same time, there is a concern to avoid prejudicing the claimant by evidential problems that are altogether outside its control, and not its fault. In this sense, the adjustment of the burden of proof is designed to avoid imposing excessive (and in fact, unjust) requirements. Arbitration practice is more fertile in this field than is the practice of the Court itself. In the Sola Tiles case (1987), decided by the Iran–USA Claims Tribunal, it was decided that, in view of the very considerable diffi­ culties of the claimant in proving certain facts by documents that were within Iranian ter­ ritory (which the claimant had quitted), the standard of proof could be somewhat more flexible.82 In the jurisprudence of the ICJ, one can call to mind the Corfu Channel case (1949). The Court authorised the UK to produce indirect and circumstantial evidence, given that the facts in question had occurred within the Albanian territorial sphere, to which the UK did not have access.83 The Court did not, however, think it helpful to act in this way in the Genocide case (2007), even though Serbia had exclusive control over most of the territory in which the evidence was to be found.84 Finally, in the AS Diallo case (2010), the Court returned to the rule often applied by human rights jurisdictions, that the due application of a detainee’s guaranteed rights must be proved by the detaining State, since it alone is in a position to do so properly.85 It is therefore not possible to say that, in this respect, the ICJ’s jurisprudence is either particularly single-minded or particularly consistent. Facts established in a preceding judgment or opinion of the Court. If relevant facts have been found to exist in a preceding judgment of the Court in a case between different parties, can they be considered to be also established for the purposes of subsequent proceedings, for the benefit of a State wishing to rely on them? Do these facts have a special status based on a species of res judicata? The general response is negative: the status of res judicata does not attach to facts admitted in a case. The state of the evidence is purely relative and is limited to the particular case. This is so because procedure before the Court is largely dominated by the ‘private law’ model. Broadly speaking, it is for the parties to establish the facts. The Court is satisfied with the ‘formal’ rather than the more absolute ‘material’ truth of the situation. The ‘formal truth’ depends on the diligence of the parties; there is a gap, some­ times a very wide one, between it and the ‘material truth’. The facts established in one case   See Kazazi, above n 2, 352 et seq.   Iran-United States Claims Tribunal Reports, vol 14, 238, § 52. This may be the case whenever the facts are intimately linked to a particular territory. It will be easier for the State which has sovereignty to prove such facts than it will be for its opponent: see the Parker case (1926), RIAA, vol IV, 39, §6. In the jurisprudence of the mixed arbitral tribunals after the First World War, the burden of proof was one of numerous elements that were made more flexible in response to the particular difficulty of obtaining evidence in a post-conflict situation: see, eg the case of the Compagnie des Chemins de fer d’Ouglin (1926), Recueil des décisions des tribunaux arbitraux mixtes institués par les traités de paix, vol VI, 509; or the case of the Banque d’Orient v Government of Turkey (1928), Recueil des décisions des tribunaux arbitraux mixtes institués par les traités de paix, vol VII, 973–74. 83   ICJ Reports 1949, 18. 84   See §§ 204 et seq. of the judgment of 26 February 2007 (128 et seq. in the Reports). In this connection see A Gattini, ‘Evidentiary Issues in the ICJ’s Genocide Judgment’ (2007) 5 Journal of International Criminal Justice 890 et seq. The Court’s choice in this regard has been the subject of criticism: cf Tomuschat, ‘Reparations in Cases of Genocide’, above n 5, 908. 85   At § 55. 81 82

940  PRINCIPLES OF CONTENTIOUS PROCEEDINGS

cannot be binding in subsequent proceedings, either on the parties or the Court itself, since in such later proceedings the factual situation may and will be presented in a quite different light. The gulf between the formal and material truth can obviously be reduced by reports from UN bodies, fact-finding commissions, or the action of the Security Council. Nevertheless, none of these mechanisms guarantees that the material truth will always be objectively established. The Security Council, for example, does not always act on the basis of carefully established facts. It to a large extent depends on what Member States tell it.86 This state of affairs can lead to serious deficiencies, for example, in cases where major collective interests are at stake, in particular situations involving the use of force. The men­ tioned relativity of established facts is the inevitable corollary of the type of procedure followed by the ICJ. This does not mean, however, that facts previously established by the Court will be irrele­vant in future cases. Although a party to a future case cannot refer to such facts as definitive judicial truths, it can at least pray them in aid as expressing provisional ones. Like points of law, albeit to a lesser degree, facts previously found to exist do carry a certain reasonable presumption as to their veracity. The Court can then reverse the burden of proof and ask the party denying the facts in question to demonstrate that they are untrue. In practice, the Court has rarely faced situations of this kind. Admittedly, in cases before the PCIJ, there was a certain carry-over of relevant facts in the various avatars resulting from the cases on Polish Upper Silesia.87 However, this did not give rise to any procedural difficulties worthy of the name. The problem resurfaced in the case on Border and trans­ border armed actions (Nicaragua v Honduras, 1988), where certain facts featuring in the judgment on Military and paramilitary activities in and against Nicaragua (1986) were again relevant. The Court said this: Nor can it be accepted that once the Court has given judgment in a case involving certain allega­ tions of fact, and made findings in that respect, no new procedure can be commenced in which those, as well as other, facts might have to be considered. In any event, it is for the Parties to estab­ lish the facts in the present case taking account of the usual rules of evidence, without it being possible to rely on considerations of res judicata in another case not involving the same parties (see Article 59 of the Statute).88

Even if the parties had been the same, the facts mentioned did not have the force of res judicata; that force is indeed confined to the law. The problem ultimately presented itself in a most acute form in the various cases arising from the disintegration of the former Yugoslavia. The facts found by the Court in the Genocide case between Bosnia and Serbia were also relevant for the cases on the Legality of the use of force (2004) and for the Genocide case between Croatia and Serbia. Also, the find­ ings of other tribunals, such as the ICTY, played an important part in establishing the evi­ dence in the 2007 Genocide case. According to the Court, the ICTY’s judgments were highly important. The facts found in those judgments had been tested in a particularly rigorous judicial crucible (judgment, §§ 214 et seq.). The documentary evidence before the ICTY varied in importance, however, according to its intrinsic weight. For example, the prosecu­ tor’s indictment (relevant because it included or excluded the crime of genocide) was only 86   This state of affairs can give rise to serious credibility problems: cf I Brownlie, ‘International Law at the Fiftieth Anniversary of the United Nations – General Course on Public International Law’ CCHAIL, vol 255, 1995, 225–26. 87   PCIJ, Series A, nos 6, 7, 8, 11, 12, 13; Series B, nos 6 and 7 and Series A/B, no 40. 88   ICJ Reports 1988, 91–92, § 54.



ESTABLISHING THE FACTS 941

an allegation. At the other extreme, the judgments on the merits, including on appeal, contained some highly convincing evidential elements (judgment, § 223). The Court almost automatically accepted the facts as found by the ICTY. This raises questions of international law concerning the establishment of the facts as between different tribunals. The facts established in the ICTY precedents seem to have had, for the Court, the force of a particular kind of res judicata, a species of res judicata de facto. One may well ask to what extent the ICJ, if had not been able to benefit from the work of the ICTY or some other criminal jurisdiction, would have been a suitable forum, given its ‘private law’ type proced­ ures, to establish facts of the ‘criminal’ type, as in a genocide case, with the meticulous attention to factual detail that are necessary given the collective interest of the international community in so grave a question. Burden of proof when a fact is invoked by a party but not for its own benefit. Is the burden of proof justified simply because a party pleads a fact (so that it is, so to speak, the ‘actor’) or only if it pleads the fact for its own benefit? Obviously, each party to the proceedings will tend to plead facts that serve to establish its own legal claims. A party is hardly likely to plead or admit facts that are unhelpful to its case, since such facts are either of no relevance for the purposes of the case, or may even benefit the opposing party. It can sometimes hap­ pen, however, that a party brings to the Court’s attention facts that are unfavourable to its case, especially when submitting evidence (sometimes in response to a request from the Court itself) containing at least some elements unfavourable to that party’s case. It can also happen that a party will admit certain facts, in which case they are no longer in dispute. It should be noted that here the Court softens its evidential requirements. It considers that information unfavourable to the State providing it is of considerable probative value, given that it is unlikely that the State will have fabricated or invented it, its natural inclination being perhaps even to conceal it. Thus, in the case of the Military and paramilitary activities in and against Nicaragua (1986), the Court was able to insist that evidence ‘are of particular probative value when they acknowledge facts or conduct unfavourable to the State repre­ sented by the person who made them. They may then be construed as a form of admission.’89 Nevertheless, such evidence cannot simply be accepted without more ado. Such assertions can still be false, or partially incorrect. This does not alter the fact, however, that the proba­ tive value of such evidence is notably greater and that the onus of proof, and also the stand­ ard of proof, are clearly lighter. Jus cogens? The rules on the burden of proof and the production of evidence in general are not jus cogens. This means that they can be modified by the parties according to need. In such a case the parties’ agreement on this point will determine the particular rules applica­ ble, as a lex specialis.90 So far, there has been no known case in which the parties have tried to modify the rules on burden of proof by virtue of a special agreement. When the parties agree on a particular procedure, as happened in the Frontier dispute (Burkina Faso v Mali, 1986), the ordinary rules on the production of evidence are not normally disturbed.91 Also, the Court will not readily interpret an agreement between the parties as a derogation from the ordinary rules of evidence. Such an intention will not be presumed, a derogation being 89   ICJ Reports 1986, 41, § 64. The Court subsequently returned to this point: see, eg the case on Armed activities in the territory of the Congo (DRC v Uganda), ICJ Reports 2005, 201, § 61. See also Niyungeko, above n 1, 158 et seq. 90   cf Amerasinghe, above n 32, 270. 91   ICJ Reports 1986, 588.

942  PRINCIPLES OF CONTENTIOUS PROCEEDINGS

accepted only if clearly expressed or otherwise appearing unambiguously to be the com­ mon wish of the parties. The reason is not only because it is not appropriate to presume departures from the ordinary procedural law, but also because the rules on evidence share out the burdens and risks equitably on the basis of rules that have evolved over centuries. All these rules on evidence are not, however, part of the jus dispositivum. Thus there can be no derogatiom from the principle of free evaluation of the evidence by the judge (‘freie Beweiswürdigung’). This judicial power is connected to the due and proper administration of justice, and is therefore not, so to speak, at the disposal of those pleading particular cases. The same applies to a whole series of concrete procedural rules that are set out in the Statute and the Rules. The Court has no power to disregard them. As it stressed in the case on Military and paramilitary activities in and against Nicaragua (1986), it ‘is bound by the relevant provisions of its Statute and Rules relating to the system of evidence, provisions devised to guarantee the sound administration of justice, while respecting the equality of the parties’.92 The Court is thus not permitted to take liberties with these rules, even at the joint invitation of the parties, because to do so would be to risk compromising its judicial integrity. Here, then, the public interest confers an imperative character on these rules. In this sense, the Court, unlike an arbitrator, who is the creature of the parties, can never dis­ pense justice ‘on the cheap’. It remains the principal legal organ of the United Nations,93 with all the associated consequences required for the preservation of its judicial integrity.

e)  The Principle that the Parties must Cooperate with the Court to establish the Relevant Facts The application of the rule on burden of proof is particularly significant when there are persisting doubts about the existence or extent of a particular fact. At that point it is the burden of proof in the form of the burden of risk, which determines the outcome on the point concerned. But the burden of proof is not the only principle governing the presenta­ tion of evidence. Proceedings before the Court are not simply a matter of competition between the parties in an endeavour to establish their particular assertions of fact. There is also room for them to cooperate in establishing the facts.94 The practice of international arbitrations and international courts demonstrates the existence of a general principle requiring parties to work together to this end. The principle derives from the parties’ gen­ eral duty of good faith when engaged in legal proceedings. As in the case of treaty or other relationships that are based on the coming together of States with a view to a common objective (in this case the judicial resolution of a dispute), the deliberate creation of a com­ munity of interest carries with it a duty on the part of the parties (albeit one of variable degree) of loyalty and cooperation, precisely in order to ensure the proper conduct of the legal relationship concerned.95 Also, account should be taken of the fact that disputes before the ICJ are often complicated ones. They can concern important and delicate matters; the facts are often unique, often spread over a long period of time, and they are   ICJ Reports 1986, 39, § 59.   Amerasinghe, above n 32, 160. 94   See ibid, 172, 204 et seq., 230, 242, 247; Kazazi, above n 2, 119 et seq., 275 et seq.; Niyungeko, above n 1, 165 et seq.; Rosenne, The Law and Practice of the ICJ, above n 2, 1091. 95   See R Kolb, La bonne foi en droit international public (Paris, 2000) 502, 598, and the references there given. 92 93



ESTABLISHING THE FACTS 943

frequently difficult and uncertain of access. The adequate achievement of the object and purpose of the judicial process in so arduous and demanding a context often depends in large measure on a certain degree of cooperation between the parties. The public interest in the due administration of justice can only gain from it. The principle of cooperation in obtaining and presenting the evidence is, however, limited by its function, which is to make possible the realisation of the object and purpose of the proceedings within the context of the proper administration of justice. It does not extend so far as to impose on parties a duty to share all information or to compromise their interests by supplying information to the other side that is detrimental to themselves. There is therefore no question of altering the foundations of the Court’s ‘private’-type procedure. This principle of cooperation in relation to the evidence starts by setting a limit to the burden of proof principle. It has been said that: The principle of collaboration complements the principle actori incumbit onus probandi, and in cases where the application of the latter principle may cause unreasonable consequences or hamper due process in the proceedings, the principle of collaboration plays an important and balancing role.96

The principle can also operate via the Court’s requiring a party to supply it with the rele­ vant evidence in its possession, even if it is not in that party’s interest to do so. In the Elettronica Sicula (ELSI) case (1989), the Chamber of the Court, at the request of Italy, and by virtue of Rule 62, paragraph 1,97 required the USA to produce a document that was important evidence for Italy.98 There is no doubting the fact that the Court can make such a request of its own volition. The cooperation principle can also lead, in certain types of disputes, to a division of the burden of proof. As already stated, this is especially common in territorial disputes. In such cases, each party must produce the evidence supporting the title it claims, so as to allow the Court to decide, according to need, which side has the rela­ tively stronger case. The principle also condemns all procedural abuses,99 and brings in its train a whole series of concrete and normative developments. It can be invoked by the Court, in a flexible manner, in a variety of different contexts, always with a view to improv­ ing the administration of justice.

  Amerasinghe, above n 32, 205.   ‘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.’ Art 49 of the Statute provides as follows: ‘The Court may, even before the hearing begins, call upon the agents to produce any document or to supply any explanations. Formal note shall be taken of any refusal.’ cf C Tams, ‘Article 49’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 1099 et seq. In the 2007 Genocide case, the Court did not make use of these powers. According to some commentators, it was too passive as regards obtaining evidence. Some documents from the Serbian ‘Supreme Defence Council’ seemed to be important evid­ ence (certain journalists even claimed that they were decisive evidence: see F Hartmann, Paix et châtiment (Paris, 2007) 114 et seq.). These were sensitive documents, and Serbia had obtained from the ICTY permission to redact certain passages apparently relating to national security (probably incriminating ones). The Court might have ordered their production under Art 49 of the Statute and Rule 61, instead of confining itself to stating that it was in a position to draw appropriate conclusions from the failure to produce them (Milanovic, ‘State Responsibility for Genocide’, above n 5, 677). 98   ICJ Reports 1989, 26, §§ 19. In the English-speaking world, the expression used is ‘discovery’ (or ‘disclosure’) of documents. 99  See below. 96 97

944  PRINCIPLES OF CONTENTIOUS PROCEEDINGS

f)  Standard of Proof100 What is the standard of proof required, that is, what degree of evidential precision does the Court consider sufficient?101 There can be no one answer to this question, because it depends on an large number of variable circumstances. It also depends on the applicable substantive law, whose requirements in this regard are subject to change. Various stand­ ards can be imagined: for example, beyond reasonable doubt; the balance of probabilities; or prima facie. The Court’s practice shows that there is no single standard valid for all rele­ vant legal facts. It all depends on the legal norms in question and the Court’s reasonable appreciation of the situation. In this field, the scope of the Court’s margin of appreciation is thus quite considerable. When there have been issues as to States’ international responsibility, the Court has shown itself to be particularly demanding. The State concerned is called upon to answer, and make reparation for, possibly unlawful acts. The Court has required a high degree of certainty as to the facts giving rise to such claims for reparation (see the Corfu Channel case, 1949).102 It has shown itself even more strict when the facts alleged are evidence of grave international crimes such as genocide. These accusations are of exceptional gravity when made against a State.103 In such cases, the Court has to be ‘fully convinced’ of the relevant facts; they must be ‘clearly demonstrated’ or ‘certain’. When the accusation is only that steps have not been taken to prevent or punish genocide, the standard of proof can, according to the Court, be a little more relaxed, that is, ‘a high degree of certainty’.104 The same applies to attributing unlawful actions to a State in consequence of acts of its de facto organs or agents, on the ‘effective control’ model.105 At the other end of the spectrum is the situation where the Court indicates provisional measures. In such cases it is sufficient to show the prima facie probability that the Court has jurisdiction over the merits.106 The establishment of jurisdiction is manifestly a ques­ tion of law. But it should be noted that, at the interim measures stage, it is to some extent treated as a question of fact, the applicant having to convince the Court that it does prima facie have jurisdiction, and bearing the corresponding burden of proof. Between these two extremes lie other developments as to which the Court has created a considerable body of jurisprudence over the years. It has applied very diverse standards of proof, most often without really explaining its selection. Its flexibility is justified under the general principle of the free assessment of evidence. Thus, for example, in cases concerning   See, eg Amerasinghe, above n 32, 288 et seq.; Kazazi, above n 2, 323 et seq.; Niyungeko, above n 1, 413 et seq.   Or the ‘proof of the case criterion’: case on the Application of the Convention on the prevention and punishment of the crime of genocide (Bosnia-Herzegovina v Serbia-and-Montenegro), ICJ Reports 2007-I, 129, § 208. 102   ICJ Reports 1949, 16–17. 103   Case on the Application of the Convention on the prevention and punishment of the crime of genocide (BosniaHerzegovina v Serbia-and-Montenegro), ICJ Reports 2007-I, 129, §§ 208–209. The Court has, however, been criti­ cised in this regard, it being argued that the standard is too strict, especially given the fact that the evidence is often outside the applicant’s control. The Court could have – as human rights jurisdictions do – reversed the burden of proof where the respondent could not reasonably be expected to discharge it: Tomuschat, ‘Reparations in Cases of Genocide’, above n 5, 908; P Gaeta, ‘Génocide d’Etat et responsabilité pénale individuelle’ (2007) 111 RGDIP 278–79. 104   At § 210. 105   See, eg the case on Military and paramilitary activities in and against Nicaragua, ICJ Reports 1986, 53 et seq., §§ 93 et seq., especially § 115. 106   See above. 100 101



THE PARTIES’ ‘DUTY OF LOYALTY’ INTER SE 945

boundary delimitation, where the objective is simply to resolve the dispute, the Court has applied more relaxed standards than it does in cases of State responsibility, where a State risks having to answer for internationally illegal actions. In the context of establishing an uti possidetis line, the Court has recognised that it is often difficult to produce evidence of facts which sometimes date from the distant past, for example, decrees or reports of several centuries ago. In consequence, the Court contented itself with the establishment of ‘credi­ ble facts’, a standard markedly lower than that required for the purpose of establishing international responsibility.107 Overall, the absence of a single standard of proof sits well with the flexibility of the international regime on evidence. A monograph study of these questions would be appropriate and welcome.

3.  THE PARTIES’ ‘DUTY OF LOYALTY’ INTER SE

a)  General Aspects The general principle of good faith, applicable in all areas of international law, has certain legal consequences in the context of the resolution of disputes before the ICJ. As already noted, the effects of this principle are reinforced whenever the parties voluntarily enter into arrangements for the purposes of realising a common objective. Unlike in general inter­ national law where each State is largely free to follow its own policy and to base it on its own interests, the partial community of interests created by a deliberately joint enterprise, and the need for a certain amount of ‘loyal cooperation’ in order to achieve the objective the parties have designated, gives rise to a greater duty to behave loyally and to take into account the interests of the other party or parties. It has been possible to say in the UN context (the most typical situation of such a partial community of interests): The decisions of international courts show that good faith develops particular legal effects wher­ ever states have a qualified relationship of confidence with one another, such as in the context of an arbitral or border adjustment procedure, or a vassalage relationship, inter alia. These effects consist of increased obligations to show mutual consideration and an increased responsibility for the confidence that has developed with regard to achieving the common objective. . . . [T]he rela­ tions between the members of an international organization constitute a qualified relationship of confidence.108

The relative weight of the good faith obligation will vary in direct proportion to the inten­ sity of the cooperation and the scope of the shared objectives. The connection between the parties to a common case before the ICJ is not as intense as that between States sharing common membership of an international organisation, let alone that of the States that are members of an integrating supranational organisation. Similarly, the connection between parties proceeding on the basis of a Special Agreement is different from that between States acting under unilateral applications. However, in all cases, a certain minimum is required by the principle of good faith, namely the prohibition against abuse of process, estoppel, 107   On this question, see LI Sánchez Rodríguez, ‘L’uti possidetis et les effectivités dans les contentieux territo­ riaux et frontaliers’ CCHAIL, vol 263, 1997, 295 et seq. 108   JP Müller and R Kolb, ‘Article 2(2)’ in B Simma, The Charter of the United Nations – A Commentary, 2nd edn, vol I (Oxford, 2002) 95. See also, JP Müller, Vertrauensschutz im Völkerrecht (Cologne, Berlin 1971) 227.

946  PRINCIPLES OF CONTENTIOUS PROCEEDINGS

and the maxim that no-one can profit from his own wrongdoing. In general terms, what is applied here is a flexible standard of ‘duty of loyalty’ as between the parties, modulated in light of the particular connections between them in the given case.

b)  The Duty of Loyalty derived from the Principle of Good Faith The most fundamental principle of substantive law in judicial proceedings is that the par­ ties, by the fact of engaging in proceedings before an international tribunal, enter into a legal relationship characterised by a certain degree of mutual confidence and trust. They are therefore bound by a mutual duty of loyalty, which they also owe to the Court.109 Legally, the duty derives from the general principle of good faith and finds its particular expression in Article 2, paragraph 2 of the Charter, which codifies it for Members of the United Nations. The activity of the Court is covered by this provision because the Statute is an integral part of the Charter (Article 92 of the Charter). In the context of the Court’s procedure, good faith requires above all else, the preserva­ tion of the subject matter of the dispute. The parties must not take steps which might deprive the Court’s proceedings of their value, or gravely affect them in some other way. The central point is to protect the subject and purpose of the proceedings, which have been freely consented to, from acts that would deprive them of their value and purpose. Of course, in the context of ‘private-type’ proceedings, in which each party seeks its own advantage, a certain ‘selfishness’ is usual and unavoidable, and an attempt to eliminate it would be a serious mistake. The word ‘selfishness’ is used here without any pejorative con­ notation, and that is why it appears in inverted commas. But such ‘selfishness’ is not the only aspect of the problem. If the ‘common enterprise’ means anything at all, there will be a limit to the selfishness. One should therefore not underestimate the unavoidable necessi­ ties of the proper functioning of the Court’s procedure.110 The Court itself must be vigilant in this regard, since it is responsible for the proper administration of justice. So it is per­ fectly obvious that a party must not deliberately lay before the Court evidence that is false or fabricated.111 It must not pressurise, or use other equivalent means, in an endeavour to prevent its opponent from producing evidence. It must not fail to comply with interim measures necessary for the preservation of the subject matter of the dispute and the efficacy of the final judgment. The principle’s flexibility allows the Court to apply it in ever new concrete ways, so as to preserve the usefulness and effectiveness of its judgments against significant actions that may reduce or undermine them. The duty of loyalty thus connects with the Court’s inherent power to promote and safeguard the proper administration of justice.

  cf Sereni, Diritto internazionale, above n 15, 1714.   See R Kolb, La bonne foi en droit international public (Paris, 2000) 587 et seq. (in the more general context of negotiation). 111   A problem relating to documents that appeared to be false (if we can put the point that way) arose in the case on Maritime delimitation and territorial questions between Qatar and Bahrain (merits), ICJ Reports 2001, 46–47, §§ 15 et seq. The documents concerned were withdrawn by the party that had put them forward: see the informed remarks of M Mendelson, ‘The Curious Case of Qatar v Bahrain in the International Court of Justice’ in BYIL, vol 72 (2001) 197–201. 109 110



THE PARTIES’ ‘DUTY OF LOYALTY’ INTER SE 947

c)  Prohibition of Abuse of Process The prohibition of abuse of process is only one particular application of the general princi­ ple prohibiting the abuse of rights. That principle is applicable, according to varying modalities, both in international law and in systems of municipal law.112 Abuse of process consists in the use by one or more of the parties, of procedural instruments and rights, for reasons that are fraudulent, or designed to cause delay, or simply frivolous; designed to harm the other side or give the abusing party an illegitimate advantage; intended to devalue other pending proceedings or deprive them of their object; intended purely for propa­ ganda purposes; or, generally, for any purpose other than that for which the procedural rights concerned were instituted in the first place. One can add to this list actions based on an intention which is malevolent, or on bad faith.113 Such abuses cannot be simply presumed to have occurred and nor should they easily be considered to be proven. States are sovereign and accusations that there have been abuses should therefore be made only with great care. Also, the mere exercise of one’s rights should not be considered an abuse. There are some situations, however, in which the degree of nuisance caused by a party to the tribunal is such that it can no longer be toler­ ated. Such activities sap the basis of any common enterprise and endanger the due admin­ istration of justice. Given that the principle prohibiting abuse of procedure covers the most varied range of possible situations, it is not helpful to try to define it in the abstract. The best way to examine the question is by illustrative examples, particularly since the whole question is closely bound up with the facts of the particular cases concerned. The ICJ is frequently faced with allegations that procedural abuses have occurred. However, unlike other international tribunals, the Court has not so far ever had actually to conclude that an abuse has been demonstrated. This restrictive approach by the Court is desirable. It reflects the presumption in favour of the correction of the acts of a sovereign State, and bears witness to the fact that in the course of some 150 cases that have come before the ICJ and the PCIJ, the parties have generally behaved decently. In this regard, States and their counsel are different from the individuals responsible for cases in munici­ pal law. It is very much less usual for States to attempt to cheat or abuse an international tribunal, to whose jurisdiction they have, obviously, consented, and they will certainly not wish to have their prestige damaged, or to find themselves discredited, in the course of such proceedings. Obviously, States do use all available procedural arguments to challenge the Court’s jurisdiction, and it often happens that they fail to comply with interim measures. However, such attitudes are not the same as manifest abuses. The most determined (even fierce) exercise of one’s procedural rights is not itself enough to constitute an abuse. A fail­ ure to comply with interim measures – which a great number of commentators (if not a majority) continued until 2001 to argue were not legally binding – can hardly be consid­ ered an abuse either. The practice shows that arguments to the effect that there has been a procedural abuse are themselves generally motivated by a most unwelcome wish to prevent the Court from taking cognisance of a case by arguing for its inadmissibility in limine litis. The ICJ has never rejected the abuse of process concept as such, nor has it denied its applicability to its proceedings. It has confined itself to stating that the conditions for its   See Kolb, La bonne foi en droit international public, above n 110, 429 et seq.   For further details, ibid, 637 et seq.

112 113

948  PRINCIPLES OF CONTENTIOUS PROCEEDINGS

application have not been satisfied in particular cases. The concept is therefore available to parties if a situation arises in which its application is justified. The legal consequence of applying it would be that an argument could not be entertained because of its inadmissibil­ ity, either in limine litis or at the merits stage, or else that the Court might impose a sanc­ tion of appropriate kind on the abusing State, for example by ‘taking note’ of its attitude in the subsequent course of the proceedings and when dealing with the merits. The principle was invoked by one side or the other in each of the following cases, each time being rejected by the Court: Ambatielos (abuse of process by excessive delay prior to the presentation of the claim to the Court);114 Right of passage over Indian territory (abuse of process by begin­ ning proceedings too rapidly after lodging an optional declaration – a ‘surprise attack’);115 Barcelona Traction (abuse of process by introducing a new case based on the same argu­ ments as those used in preceding proceedings that had been discontinued);116 Military and paramilitary activities in and against Nicaragua (abuse of process because of the futility of the proceedings and the intention to make political propaganda out of a request for the indication of interim measures);117 Border and transborder armed actions (abuse of process by recourse to the ICJ in parallel with the so-called ‘Contadora’ negotiating process; abuse of process because of the political motivation of the application and its artificial character);118 case of the Arbitral award of 31 July 1989 (abuse of process by invoking a dec­ laration by the president of the tribunal to throw doubt on the validity of the award);119 the cases on Certain phosphate lands at Nauru (abuse of process in that Nauru was asking of the respondent an attitude that Nauru itself had not respected);120 Genocide case (abuse of process in making a request for interim measures motivated by political considerations and abusive repetition of the request for such measures);121 case of the Aerial incident of 10 August 1999 (abuse of process by invoking a reservation to a declaration under the optional clause the content of which was allegedly directed solely against Pakistan and was thus said to be discriminatory);122 and case of Avena and others (abuse of process by delay­ ing the presentation of claims.123 Other abuses of process might include an avalanche of preliminary objections or proce­ dural arguments designed to delay the proceedings from progressing in the ordinary way; the late invocation of titles of jurisdiction or other arguments in the hope of disrupting or prejudicing the opposing party;124 and so on. Very often such problems are resolved at an early stage by precise rules of procedure. This is the position, for example, as regards delay in presenting titles of jurisdiction or arguments on the merits.125 The reason these rules exist is precisely to ensure an appreciable degree of legal certainty and equality between the parties in the procedure of the Court and, from a negative perspective, to avoid procedural abuses. These rules thus represent indirect sanctions in support of the principle of the prohibition against abuse of process. The more detailed, comprehensive and precise a tribunal’s rules of   ICJ Reports 1953, 23.   ICJ Reports 1957, 146–47. 116   ICJ Reports 1964, 24–25. 117   ICJ Reports 1984, 178–79, §§ 21–25. 118   ICJ Reports 1988, 91-92, §§ 51 et seq. and 105–106, § 94. 119   ICJ Reports 1991, 63, §§ 26–27. 120   ICJ Reports 1992, 255, §§ 37–38. 121   ICJ Reports 1993, 336, § 19; ICJ Reports 1996-II, 622, § 46. 122   ICJ Reports 2000, 30, § 40. 123   ICJ Reports 2004-I, 37–38, § 44. 124   Cases on the Legality of the use of force, ICJ Reports 1999-I, 124 et seq. and 542 et seq. 125   See Rules 48 et seq. 114 115



THE PARTIES’ ‘DUTY OF LOYALTY’ INTER SE 949

procedure, the less the need for recourse to the underlying general principle. However, there is always a possibility that a particular rule will be used in a malevolent and abusive way. That is why the principle itself can never be entirely dispensed with, even when the proce­ dure has been codified in detail. The clothing given to the principle by specific procedural rules may seem to mask and conceal the principle itself, but can never make it disappear because it is the principle itself that underpins the procedural rules and gives them their rationale, as is always readily apparent to expert observers. An interesting situation can arise if a State that has been ordered by the ICJ to do some­ thing seises the political organs of the UN in an endeavour to escape from the obligation to give effect to the judgment, or at least to slow down the judgment’s implementation. Political and jurisdictional procedures have different objectives. That is one reason why we have the principle of parallel jurisdiction of political and judicial organs. It would, there­ fore, be mistaken to conclude that there is necessarily a procedural abuse if a State seises a political organ after the Court proceedings. There may indeed be valid reasons for seeking to obtain the assistance of a political body, especially if the dispute has important extralegal elements. However, if the political organ so seised were obliged to conclude, in light of the facts, that the State’s objective in seising it was essentially to slow down or avoid the execution of the judgment, in breach of that State’s obligations under Article 59 of the Statute and of the pacta sunt servanda rule, the political organ might conclude that the pro­ cedure was an abuse and refuse to take cognisance of the request made to it in limine litis.126 In addition, the political organ would have to be very careful not to interfere with the obligatory character of the res judicata. The powers of the Security Council in the context of the execution of the Court’s judgments have already been discussed.

d) Estoppel The principle of estoppel (or the similar concept under the canon law of the Roman Church, ‘venire contra factum proprium non valet’) ‘operates on the assumption that one party has been induced to act in reliance on the assurances or other conduct of another party, in such a way that it would be prejudiced were the other party later to change its position’.127 Consequently, subject to certain restrictive conditions, the law does not allow a person to change its position to the detriment of another. If it does change position, it is answerable for the resulting loss. The State changing its position will have been bound by the legitimate trust that it has freely (and usually deliberately) engendered in the other party. The principal conditions for claiming such an estoppel are as follows:128 (1) conduct which is freely adopted, clear and unequivocal, and legally imputable to the party in question; (2) a legit­ imate trust, that is, effective trust in that conduct, in good faith, on the part of another sub­ ject of law, which is thereby encouraged to alter its position or take certain steps on its own part; (3) loss or damage to the second subject resulting from the dispositions it has made in 126   See G Salvioli, ‘Les règles générales de la paix’ CCHAIL, vol 46, 1933-IV, 138–39. See also the more reserved position of D Ciobanu, Preliminary Objections Related to the Jurisdiction of the United Nations Political Organs (The Hague, 1975) 138–39. 127   H Mosler, ‘General Course on Public International Law’ CCHAIL, vol 140, 1974-IV, 147. 128   For a more detailed analysis of this complex concept, see R Kolb, La bonne foi en droit international public (Paris, 2000) 357 et seq., and the numerous references there cited. See also, among others, IC McGibbon, ‘Estoppel in International Law’ (1958) 7 ICLQ 468 et seq.; A Martin, L’estoppel en droit international public (Paris, 1979).

950  PRINCIPLES OF CONTENTIOUS PROCEEDINGS

reliance upon the first subject’s conduct, the loss and damage being that which would result if the first subject were free to change its position; or at least, a relative modification of the parties’ positions, to the detriment of the second, in this same case (a party’s ‘reliance to its detriment’). In international law, estoppel and its preventative effects can operate at two different levels. The principle can apply to matters of substantive law; but it can also apply to proce­ dural matters. ‘Substantive’ estoppel governs the creation, modification and extinguish­ ment of subjective rights: it is a source of obligations. In this way a State might create, by its conduct, a legitimate trust that it has renounced a portion of its territory, and thereby lose its sovereign rights over that portion. A tribunal called upon to resolve a territorial and/or boundary dispute would enforce the resulting rights and obligations. In this case, the very title to the territory in question is negated by the estoppel.129 The principle touches directly on the extinguishment of a subjective right. It is not concerned with the evidence that might or might not be admissible before a tribunal. Such an estoppel would also apply quite apart from any legal proceedings. It might, for example, be claimed in direct negotia­ tion. There is, however, also ‘procedural’ estoppel. If a party to the proceedings creates a legitimate expectation on the part of the other party as regards certain facts, it is possible for the first party to be disabled from claiming that the facts are different or otherwise, and from adducing evidence to that effect. Here, the estoppel applies to the admission of evid­ ence in the course of the proceedings. If a particular fact has been legitimately represented and the other party has relied on it to its detriment – measured in this case by the disadvan­ tage that would accrue if the evidence in question were to be admitted – the party respon­ sible will be prevented from proving the material truth, or indeed from proving any state of fact different from what it had deliberately represented. If any such evidence were to be presented to the Court, the Court would disregard it, on the grounds of estoppel.130 Procedural estoppel of this kind has often occurred in international proceedings, whether arbitrations or court cases.131 A question that arises is to what extent procedural estoppels can also arise on points of law, for example, when a point of law needs to be raised with the Court before the latter can take account of it. This question arose in the case on the Territorial jurisdiction of the International Commission of the River Oder (1929).132 The six governments opposed to Poland argued that, after the closure of the written phase, Poland could not raise an argu­ ment relating to the ratification of a convention. The argument in question had not been raised in the Memorial or the Counter-Memorial. It was raised only at the oral stage. Was there such an estoppel? The Court said there was not, on the basis of two considerations. First, it said that the argument could not be sustained given that ‘the matter is purely one   See, eg the case on the Temple of Preah Vihear, ICJ Reports 1962, 32.   Martin, above n 129, 306: ‘Estoppel is a rule of evidential procedure under which a Party which has caused its opponent to have a certain conception of the facts cannot subsequently submit evidence that the facts are materially different, being legally prevented from attempting to establish the existence of a “different truth . . .”’ (our translation). According to J Salmon (ed), Dictionnaire de droit international public, 450, it is a ‘peremptory objection . . . to a State which is a party to legal proceedings being able to make a claim or sustain an argument contradicted by its prior conduct or a position previously adopted by it and in which third parties had placed legitimate trust.’ (our translation) 131   This is not the place to analyse this practice: cf Martin, above n 129, 65 et seq.; Kolb, La Bonne Foi en Droit International Public, 380 et seq. As to the law of the WTO, where the principle is ‘emerging’, see M Panizzon, Good Faith in the Jurisprudence of the WTO (Oxford/Portland, 2006) 26. 132   PCIJ, Series A, no 23, 18–19. 129 130



THE PARTIES’ ‘DUTY OF LOYALTY’ INTER SE 951

of law such as the Court could and should determine ex officio’.133 Also, Poland had not shown its unequivocal will to abandon the argument so that the six governments were not entitled to trust to a representation that it was abandoned.134 The Court’s second argument concerned only the conditions for the application of an estoppel in the particular case. The first one gave a negative answer to the question whether estoppels can apply to legal arguments, at least where the Court has the right to examine them of its own volition. In light of the principle jura novit curia, the position adopted by the Court largely excludes procedural estoppel of this kind. Procedural estoppel applies to questions of fact, not to questions of law – although the boundary between the two categories can sometimes be difficult to define. When it is a matter of applying the law, which is the province of the Court itself, the objective conditions of the Statute concerning the proper administration of justice prevail over estoppels concerned with the reciprocal adjustment between the par­ ties of their subjective procedural rights. Objective justice according to law prevails over bilateral justice according to particular obligations.

e)  The maxim ‘nemo ex propria turpitudine commodum capere potest’135 (No-one can profit from his own wrongdoing)  The above maxim derives from the development of Roman law in mediaeval times, par­ ticularly by canon lawyers. Like the estoppel principle, with which it has much in common, the maxim can apply either at the substantive level or at the procedural one. In the proce­ dural context, the maxim applies under conditions similar to those applicable to estoppel. A party asserting a certain fact, or putting forward a particular legal argument, cannot be heard by the court, because of a previous fault committed by that party in the context of that fact or argument. Unlike in the case of estoppel, reliance by the other party to its detri­ ment does not have to be demonstrated. The law punishes the fault in order to avoid allow­ ing a party to benefit from reprehensible conduct. Usually, the fault consists of illegal conduct. Sometimes it manifests itself in conduct that is immoral or negligent. The maxim ‘nemo . . .’ has been applied in a wide range of circumstances of international law. It has held a significant place in both arbitration and judicial procedures. A classic case is that of the Factory at Chorzów (1927): It is, moreover, a principle generally accepted in the jurisprudence of international arbitration, as well as by municipal courts, that one Party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse to some means of redress, if the former Party has, by some illegal act, prevented the latter from fulfilling the obligation in question, or from having recourse to the tribunal which would have been open, to him.136

  Ibid, 19.  Ibid. 135   See R Kolb, La bonne foi en droit international public (Paris, 2000) 487 et seq.; R Kolb, ‘La maxime “nemo ex propria turpitudine commodum capere potest” (nul ne peut profiter de son propre tort) en droit international public’ (2000) 33 RBDI 84 et seq.; B Cheng, General Principles of Law, As Applied by International Courts and Tribunals (London, 1953) 149 et seq. 136   PCIJ, Series A, no 9, 31. See also the Dissenting Opinion of Judge Read in the case on Interpretation of the Peace Treaties, ICJ Reports 1950, 244 and the Dissenting Opinion of Judge Azevedo, ibid, 252–54. Another applica­ tion of the maxim is to be found in the case of Philips Eindhoven v German Federal Republic (1958) decided by the Arbitration Commission on goods, rights and interests in Germany: ILR, vol 25, 505–506. 133 134

952  PRINCIPLES OF CONTENTIOUS PROCEEDINGS

With these words the Court rejected the affected argument. Another case in which the maxim was applied was the case on the Jurisdiction of the Courts of Danzig (1928). The Court reaffirmed that Poland could not be heard to plead want of jurisdiction on the part of the internal tribunals, since this resulted from Poland’s wrongful failure to enact its obli­ gations under an international treaty into provisions of its internal law. A State cannot argue that an obstacle exists when that obstacle results from its own wrongful failure to comply with an international obligation incumbent upon it. In this regard, the Court said: ‘Poland could not avail herself of an objection which . . . would amount to relying upon the non-fulfilment of an obligation imposed on her by an international agreement.’137 These examples show that the maxim ‘nemo . . .’ does apply to the procedural law of the ICJ. It lends itself to multiple and various applications, because, at its most effective, it benefits from the flexibility inherent in general principles and maxims of law.

  PCIJ, Series B, no 15, 27.

137

VII Procedural Aspects of Contentious Cases 1.  THE CONCEPT AND PURPOSE OF ‘PROCEDURE’

The word ‘procedure’ (the law relating to form) can be used in a range of different senses, from the most general to the most particular. In its most general sense, it means the manner in which an act is done or an organ functions: ‘[C]ollection of rules the object of which is the creation of a legal instrument according to form, or to determine the organisation, jurisdiction and modes of functioning of an organ.’1 In the most specific sense, it means the formal manner, and the successive stages, by which an organ takes cognisance of the questions submitted to it: ‘Collection of rules the purpose of which is the examination by an organ of the questions submitted to it and which describe the manner of proceeding and the formalities to be observed.’2 A still more specific meaning applicable to judicial proceedings is ‘[C]ollection of rules to be followed for the regular conduct of a trial, from the original application until the decision.’3 That is the meaning given to the word ‘procedure’ in this section. All procedure in the narrow sense is dominated by two principles. First, the function of procedure is an accessory one. It operates in such a way as to set the substantive law to work and give effect to it. Procedure is thus not an end in itself, but a service function. This means that it needs to be so designed as not to undermine or counteract the substantive law, and the interpretation of procedural rules needs to take account of that specific functional necessity. In short, all procedural (‘formal’) law is functional: its function is to give effect to the substantive law which it exists to serve. If a legal system confers substantive rights but makes it difficult to give effect to them via the applicable formal requirements, it is contradicting itself. That obviously does not mean that procedural law has no standing of its own, its own needs and balances. Second, procedural rules are still affected by the great principles governing the legal system. Although there is a fairly widespread view that procedural law is a kind of ivory tower in which the strictest kind of austerity holds sway, this is not so. The structures of procedural law are shot through with the great principles of law, and the connection between the two is always maintained. Those who make pro­cedural rules, and those who interpret them, have constantly to calibrate their work according to the requirements of equality between the parties, the due administration of justice, practicability, legal certainty, and the capacity to give adequate effect to the substantive law. There is always, hidden behind countless detailed rules as to the conduct of the case, but still discernible, a preoccupation with these principles. We have seen in the previous section how procedural rules on presentation of evidence and time spans   J Salmon (ed), Dictionnaire de droit international public (Brussels, 2001) 886 (our translation).   Ibid, 887 (our translation). 3  Ibid. 1 2

954  PROCEDURAL ASPECTS OF CONTENTIOUS CASES

have the aim of avoiding abuses of procedure. The principle of abuse of procedure thus looms behind those rules. Or is there a 15-day time limit for such and such an appeal? Is the rule clear and strict? Here one must still think in constitutive terms, for example, from the perspective of equality between parties. If this time limit applies for example, to appeals by officials of an international organisation dissatisfied with decisions affecting them, it might seem contrary to the principle of equality between parties. An organisation such as the UN has a fully staffed legal service. However, it is not the organisation but the individual that has to make the first move, and the individual official does not have such a legal service available to him. He has to lodge his appeal within a very short period of time. In light of these facts, the time limit might be considered contrary to the principle of equality between the parties, and indeed also contrary to the principle of practicability. The rule-makers need to reconsider in light of these considerations. A tribunal hearing a dispute on the subject might, according to the circumstances, either disregard the time limit or extend it to an equitable degree, on the basis of the higher principles mentioned above. So procedural law should not be likened to a closed vessel. It is part of the wider legal system, both as the handmaiden of substantive law and also by its need always to respect the general principles of the law. All procedural rules are, in this sense, a type of ‘constitutional’ law in concrete form. The procedures of all bodies are themselves dominated by certain ‘procedural’ principles, in particular the following: −− Written/oral. Some procedures are primarily written, others primarily oral, and some are mixed. The procedure of the ICJ is primarily a written one. But it also contains an oral phase. −− Public nature of proceedings. Next, there are proceedings that are held behind closed doors, and those that are public or more widely accessible. The latter category concerns access of two kinds: access by the parties and access by the wider public. In the category concerned with access by the parties, the main issue is access for the parties to the written documentation in the case. As to wider public access, the primary concern is to give the public (that is, persons who are not parties in the case) access to the arguments and possibly to the deliberations, as well as, in appropriate cases, to the written documentation. Here too, the procedure of the ICJ is a mixed one. The judges deliberate in private (Article 54, § 3 of the Statute), but the procedure allows the parties access to all documents at all times (Article 43, § 4 of the Statute). In addition, the general public normally has access to hearings before the Court, but is not admitted to the judges’ deliberations (Article 46 of the Statute). −− ‘Mediated’ and ‘non-mediated’ (‘immediate’) procedures. The ICJ’s procedure is dominated by the principle of ‘immediacy’, meaning that the essential steps in the proceedings, and particularly the submission of evidence, must take place before the Court in corpore. The purpose of this principle is to enable the judges to assess the evidence for themselves, and not on the basis of indirect testimony. The Court can certainly decline to hear a witness, especially if it considers that the evidence does not concern an import­ ant subject, or is irrelevant or superfluous. Some procedures, however, are generally dominated by the contrary principle, and are in that sense ‘mediated’. In such cases, persons delegated by the tribunal, or a rapporteur, are directed to examine the evidence and then report on it to the full Court. This way of proceeding is a regular feature in municipal administrative law proceedings.



THE CONCEPT AND PURPOSE OF ‘PROCEDURE’ 955

−− Concentration. The procedure before the ICJ is dominated by the maxim of concentration. This means that the parties must present their respective arguments, for the claim and for the defence, grouped together, in a procedural phase designed for that purpose. If there are omissions, then, in principle, they cannot be repaired subsequently. It follows that the various contingent and subsidiary arguments of the parties must be presented at this stage and not held in reserve out of a wish not to detract, by implication, from the parties’ principal arguments (Rule 44). The principle of concentration is designed to assist the smooth and accelerated functioning of the Court’s procedure, which would be seriously slowed down if new elements could be regularly added to the parties’ pleadings, with a resulting reopening of arguments and consultations. A permissive approach of that kind could easily provide parties with opportunities to commit abuses. A party desiring to procrastinate would be provided with almost unlimited scope for doing so. −− The economy of the process. Proceedings before the Court have to operate under the general principle of the economy of the process. This is a flexible maxim concerning the way the Court manages and directs the proceedings. The Court is required, in the context of the Statute and the Rules, and taking account of the appropriate forms and usages in its contacts with sovereign States, to deal with the entire case, with the means at its disposal, in the most simple, direct, practical and economical way. The principle thus makes it possible to be sparing of both time and money. The Court has always to be vigilant to see to it that there is a reasonable relationship between the effort made and the objective in view. This means consolidating cases where that is necessary; it means not pushing formal requirements to the point of requiring a new case to be started when the case already before the Court contains defects that are minor and curable; it means not prolonging argument on questions that are not relevant to the Court’s decision; not joining questions to the merits if they can be resolved at the preliminary stage; using orders and interlocutory decisions in a useful way; and so on. Nevertheless, however great the undeniable importance of the principle of the economy of the process, it is also important not to overlook the fact that, in international law, the principle operates within narrower limits than in systems of municipal law. In the internal legal systems of States, courts enjoy a particular authority over the parties, and judges can thus adopt a more directive attitude to the proceedings. In international law, the parties are States. Only States can be parties to contentious proceedings before the ICJ. States are sovereign, and can be sensitive about that fact to a degree that is sometimes difficult to imagine. The Court has therefore to be both more deferential and more diplomatic towards them. It must allow them to argue the points they consider important, without interfering too brusquely with their assessment of what is important and relevant. It must, therefore, operate procedures that are more formalistic, somewhat ceremonious in the old-fashioned diplomatic manner, and always giving the impression that it has all the time in the world. It has to be more prolix and more detailed in stating the reasons for its decisions. Sometimes, where there is something of a lacuna, it has to take the opportunity to develop the law. This inevitably means taking longer to reflect, and the giving of judgments that are the result of more strenuous labour than might be required of a municipal court. None of this means that the international judges need, or can allow themselves, to fail in giving due attention to the principle of the economy of the process. They just have to do so in the particular context of contentious proceedings in international law and before the ICJ in particular.

956  PROCEDURAL ASPECTS OF CONTENTIOUS CASES

2.  THE VARIOUS STAGES OF THE PROCEDURE, FROM THE APPLICATION TO THE DECISION (SEISING THE COURT, WRITTEN PHASE, ORAL PHASE, DELIBERATION, JUDGMENT)4

(1)  Seising the Court The question of seising the Court at an early stage was discussed above5 and there is no need to return to it here. Seisin covers the introduction of a case by one party (unilaterally) or by more than one party (jointly), by a letter to the Registrar of the Court, normally producing a title of jurisdiction and specifying the broad outlines of the dispute.6 A unilateral application (or an application made unilaterally on the basis of a special agreement7) is notified to the respondent.8 The respondent can take a position upon it. If the Court’s jurisdiction does not appear to be manifestly lacking, that is, if the applicant bases itself on a title of jurisdiction that prima facie is possibly applicable, the case is entered on the Court’s list9. The Court is thenceforth seised of the dispute. The President of the Court (later the Court itself) will give the necessary orders for the management and direction of the case, after consulting the parties.10 At this stage the Court can be faced with requests that it indicate interim measures. Such requests need to be examined in light of Article 41 of the Statute and the related jurisprudence. If the Court’s jurisdiction is not disputed, it can then proceed directly to the merits, and fix time limits for the parties to present their 4   For procedural details, see especially, S Talmon, ‘Article 43’ in A Zimmermann, C Tomuschat and K OellersFrahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 977 et seq. For the PCIJ, see especially, MO Hudson, The Permanent Court of International Justice, 1920–1924. A Treatise (New York, 1943) 525 et seq. and M Scerni, ‘Procedure devant la Cour permanente de Justice internationale’ CCHAIL, vol 65, 1938-III, 561 et seq. 5   See ch V section 1(a). 6   Art 40, § 1 of the Statute reads: ‘Cases are brought before the Court, as the case may be, either by the notification of the special agreement or by a written application addressed to the Registrar. In either case, the subject of the dispute and the parties shall be indicated.’ Rule 38, §§ 1–3, reads: ‘1. When proceedings before the Court are instituted by means of an application addressed as specified in Article 40, paragraph 1, of the Statute, the application shall indicate the party making it, the State against which the claim is brought, and the subject of the dispute. 2. The application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based; it 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. 3. The original of the application shall be signed either by the agent of the party submitting it, or by the diplomatic representative of that party in the country in which the Court has its seat, or by some other duly authorized person. If the application bears the signature of someone other than such diplomatic representative, the signature must be authenticated by the latter or by the competent authority of the applicant’s foreign ministry.’ On these provisions, see G Guyomar, Commentaire du Règlement de la Cour internationale de Justice, adopté le 17 avril 1978: Interprétation et pratique, 2nd edn (Paris, 1983) 230 et seq. 7   Rule 39 reads: ‘. . . If the notification is not a joint one, a certified copy of it shall forthwith be communicated by the Registrar to the other party.’ 8   Art 40, § 2 of the Statute and Rule 38, § 4: ‘The Registrar shall forthwith transmit to the respondent a certified copy of the application.’ 9   A contrario, Rule 38, § 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.’ 10   Art 48 of the Statute reads: ‘The Court shall make orders for the conduct of the case, shall decide the form and time in which each party must conclude its arguments, and make all arrangements connected with the taking of evidence.’ For details, see S Torres Bernardez, ‘Article 48’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds), The Statute of the International Court of Justice, A Commentary (Oxford, 2006) 1081 et seq.



THE VARIOUS STAGES OF THE PROCEDURE 957

arguments on them. If the Court’s jurisdiction is disputed, however, then it is obliged to suspend the proceedings on the merits and open preliminary proceedings on jurisdiction and admissibility. Once these questions have been decided, the case is either concluded or it proceeds to the merits stage. If the case continues, it does so either in its initial scope or with a reduced scope on the basis of which the Court has declared itself to have jurisdiction. (2)  Written and oral phases Proceedings before the Court – whether on the merits, on preliminary issues, or often incidental ones – go through a written and an oral phase. Article 43 of the Statute provides as follows: 1. The procedure shall consist of two parts: written and oral. 2. 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 papers and documents in support. 3. These communications shall be made through the Registrar, in the order and within the time fixed by the Court. 4. A certified copy of every document produced by one party shall be communicated to the other party. 5. The oral proceedings shall consist of the hearing by the Court of witnesses, experts, agents, counsel, and advocates.

The written procedure is thereafter regulated in detail by Rules 44 to 53, and the oral procedure by Rules 54 to 72. One might say that the Court’s procedure was for a long time more deferential to States than it is now, and that nowadays its tendency is to be somewhat more directive.11 The general tendency is certainly to accept that States, given their sovereignty and all that it implies, have the fullest liberty to present their cases and arguments in whatever way seems to them best, and that it is important that they have the feeling that their arguments are fully understood and respected. This deferential attitude increases the chances that the final judgment will be accepted and executed, and that the case itself will run its course without serious difficulties. However, despite this inveterate tendency towards deference and self-effacement, the Court has shown its concern to improve its own procedures and to eliminate certain problematical procedural features. The Court’s main aim has been to lighten its procedures and speed them up. The Practice Directions (PDs) adopted since October 2001 are particularly directed to that end.12 But there were very clear indicators of this objective as early as the Rules of 1978, which enabled the Court and its President to influence both the extent and the quantity of the documents submitted to the Court. The Practice Directions reinforce this, for example PD III: ‘The parties are strongly urged to keep the written pleadings as concise as possible . . .’ (italics added). It will be remembered that, in the 1960s, the Barcelona Traction case – which was one the factors leading to the revision of the Rules – had submitted to the Court approximately 18,000 pages printed in the series Memorials, Pleadings and Documents, and in all approximately 66,000 original   Talmon, ‘Article 43’, above n 4, 983.   See S Rosenne, ‘The International Court of Justice: Revision of Articles 79 and 80 of the Rules of Court’ (2001) 14 Leiden Journal of International Law 77 et seq.; DW Prager, ‘The 2001 Amendments to the Rules of Procedure of the ICJ’ (2002) 1 Law and Practice of International Courts and Tribunals 155 et seq. 11 12

958  PROCEDURAL ASPECTS OF CONTENTIOUS CASES

pages, weighing 25 kilograms.13 It is also well known that States have often engaged in excessively lengthy oral submissions, in which they tend to repeat the arguments already set out in their written pleadings. Perhaps they believe it necessary to draw to the judges’ attention aspects of the documents they may not in fact have read attentively. The oral arguments are read out to the Court from pre-prepared texts in which everything that is to be said has been carefully considered. Unless the speakers have a real feel for the words and a sense of drama, it is not difficult to see how repetitive or dull these hearings can be. The Court’s wish to shorten them is therefore well conceived. In the courtroom, brevitas, restraint and concentration are in no way inconsistent with a strong presentation of one’s case. They make the important points stand out, all the more so since they are not choked off by luxuriant secondary growths. However, come what may, the Court is always faced with the fact that the parties before it are sovereign States, and that there is therefore a limit to the degree to which it can impose its own views upon them. The division of the procedure into written and oral phases is designed to result in progressively reducing complexity, rather like the successive stages of a rocket. The written phase enables the parties’ full cases to be presented in detail, both through documentation and through argumentation. A case about the unlawful seizure of property can be presented in fairly brief documentation. A case on land and maritime delimitation in a large area will, by contrast, usually require very detailed documentation and argument. The oral phase then allows the pleaders to present a synthesis of the salient points, so that the judges do not get drowned in a plethora of information and argument. This is also the opportun­ ity to react to the other side’s arguments by dropping or adjusting certain of one’s arguments. The oral phase thus clears the way for the Court’s deliberations and decision. aa) The written phase14 is set in motion by the Court after the consultation with the parties provided for in Rule 31.15 In light of the information thus obtained, the Court issues the necessary orders fixing the number and order of the documents to be submitted by the parties, and the time limits for each of them (Rule 44, § 1). The written phase is thus opened. The Court normally takes account of special agreements between the parties on such matters, disregarding them only when there is some peremptory reason to do so in the interests of the due administration of justice. The Rules provide that: ‘In making an order under paragraph 1 of this Article, any agreement between the parties which does not cause unjustified delay shall be taken into account.’ (Rule 44, § 2) Can the parties dispense with a written phase, especially when they are proceeding on the basis of a special agreement that sufficiently identifies the subject matter of the dispute? In the days of the PCIJ, some commentators thought this ‘might perhaps’ be possible.16 Be that as it may, at the ICJ it is not possible.17 Article 43 of the Statute provides that in all cases there shall be a two-phase procedure, the written and the oral. This statutory provision 13   See M Bedjaoui, ‘The “Manufacture” of Judgments at the International Court of Justice’ in Pace Yearbook of International Law, vol 3 (1991) 36–37. 14   On the PCIJ, see Hudson, above n 4, 547 et seq.; on the ICJ, Talmon, ‘Article 43’, above n 4, 984 et seq.; S Rosenne, The Law and Practice of the International Court, 1920–2005, 3rd edn, vol III (Leiden, 1997)1249 et seq. 15   The text reads as follows: ‘In every case submitted to the Court, the President shall ascertain the views of the parties with regard to questions of procedure. For this purpose he shall summon the agents of the parties to meet him as soon as possible after their appointment, and whenever necessary thereafter.’ cf Guyomar, above n 6, 170 et seq. 16   Hudson, above n 12, 552. 17   Talmon, ‘Article 43’, above n 4, 984.



THE VARIOUS STAGES OF THE PROCEDURE 959

constitutes a rule of imperative law. The reason is that the proper administration of justice is in issue. The Court cannot be fully informed about the dispute unless written documentation is submitted to it. Obviously, the parties are free to reduce that documentation to a minimal level. Neither is it possible to argue that since the Court can ask the parties to submit documents18 this makes it possible for the Court to dispense with fully-fledged written pleadings. The parties cannot discharge their duty to produce the documents and then throw the rest of the responsibility for their cases onto the Court. In short, it is only by insisting on a written phase that the Court can be fully and adequately informed about the case, so that it can administer justice properly. The fact that the ICJ’s procedures are ‘private’ in type does not free the parties from the duty to provide the court with this minimum amount of documentation so as to ensure that its functioning corresponds to what can be expected from a high court of justice. Special rules govern certain types of procedure, for example, proceedings before Chambers of the Court, especially before the Summary Procedure Chamber (Rule 92). The purpose of using a Chamber is to speed up the proceedings. The general rule before a Chamber is therefore to allow one written pleading per party.19 The Chamber may nevertheless allow the parties to submit additional pleadings. The practice is in this respect deferential towards the parties’ wishes, and consequently the decision to take the case to a Chamber does not necessarily imply the abandonment of the ordinary procedures of the full Court.20 Rule 79 indicates the written documents admissible in incidental Preliminary Objections proceedings. Procedural documentation. Documents submitted to the Court are of two types:21 (1) documents containing the parties’ submissions of fact and law; and (2) supporting evidence. Article 43, paragraph 2 of the Statute provides 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 papers and documents in support.’ The documents to be submitted must include a single original, dated and signed by the submitting State’s agent and certified by him to be a conformed copy, and a further 125 additional copies. This large number of copies enables the Court to distribute the documentation to the other parties, to other States (Rule 51, § 1) and to international organisations (Article 34, § 3 of the Statute). Nowadays, the documentation is often also submitted in electronic form, but that does not replace the hard copy. The documentation is delivered to the Registrar of the Court. The Memorial of the Applicant (or of the party designated by the Special Agreement or the Court) is the first written pleading. The two parties can also submit simultaneous Memorials, which is especially likely in proceedings under a Special Agreement, where

18   Art 49 of the Statute: ‘The Court may, even before the hearing opens, call upon the agents to produce any document or to supply any explanations.’ 19   See, eg the case on the Treaty of Neuilly (Article 179, annex, paragraph 4, interpretation) (1924), PCIJ, Series A, no 3, 5 et seq. 20   Thus, in the complicated case of the Land, island and maritime boundary dispute (El Salvador v Honduras), ICJ Reports 1992, 359, § 9, the Chamber allowed the parties, at their wish, to submit additional documents, namely Replies and Rejoinde