333 39 10MB
English Pages 1362 Year 2013
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
x TABLE OF CONTENTS
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
TABLE OF CONTENTS xi
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
xii TABLE OF CONTENTS
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
TABLE OF CONTENTS xiii
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
xiv TABLE OF CONTENTS
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
TABLE OF CONTENTS xv
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
xvi TABLE OF CONTENTS
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
TABLE OF CONTENTS xvii
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.
CHAPTER VI OF THE UNITED NATIONS CHARTER 25
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
26 PEACEFUL RESOLUTION OF INTERNATIONAL DISPUTES
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
CHAPTER VI OF THE UNITED NATIONS CHARTER 27
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.
28 PEACEFUL RESOLUTION OF INTERNATIONAL DISPUTES
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
CHAPTER VI OF THE UNITED NATIONS CHARTER 29
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.
50 51
30 PEACEFUL RESOLUTION OF INTERNATIONAL DISPUTES
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.
CHAPTER VI OF THE UNITED NATIONS CHARTER 31
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.
56
32 PEACEFUL RESOLUTION OF INTERNATIONAL DISPUTES
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.
CHAPTER VI OF THE UNITED NATIONS CHARTER 33
(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.
34 PEACEFUL RESOLUTION OF INTERNATIONAL DISPUTES
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.
60
CHAPTER VI OF THE UNITED NATIONS CHARTER 35
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.
36 PEACEFUL RESOLUTION OF INTERNATIONAL DISPUTES
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
56 ORIGIN AND ENVIRONMENT OF THE ICJ
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.
58 ORIGIN AND ENVIRONMENT OF THE ICJ
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).
50
60 ORIGIN AND ENVIRONMENT OF THE ICJ
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.
62 ORIGIN AND ENVIRONMENT OF THE ICJ
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.
66 ORIGIN AND ENVIRONMENT OF THE ICJ
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.
68 ORIGIN AND ENVIRONMENT OF THE ICJ
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
70 ORIGIN AND ENVIRONMENT OF THE ICJ
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.
CONSTITUTIVE TEXTS 81
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
82 THE TEXTS GOVERNING THE COURT’S ACTIVITIES
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
CONSTITUTIVE TEXTS 83
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
84 THE TEXTS GOVERNING THE COURT’S ACTIVITIES
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.
CONSTITUTIVE TEXTS 87
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
88 THE TEXTS GOVERNING THE COURT’S ACTIVITIES
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.’
CONSTITUTIVE TEXTS 89
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.’
96 THE TEXTS GOVERNING THE COURT’S ACTIVITIES
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.
THE RULES: DERIVATIVE PROVISIONS 97
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
98 THE TEXTS GOVERNING THE COURT’S ACTIVITIES
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
THE RULES: DERIVATIVE PROVISIONS 99
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
100 THE TEXTS GOVERNING THE COURT’S ACTIVITIES
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.
THE RULES: DERIVATIVE PROVISIONS 101
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).
102 THE TEXTS GOVERNING THE COURT’S ACTIVITIES
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
THE RULES: DERIVATIVE PROVISIONS 103
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.
104 THE TEXTS GOVERNING THE COURT’S ACTIVITIES
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.
SUBORDINATE TEXTS 105
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.
106 THE TEXTS GOVERNING THE COURT’S ACTIVITIES
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
SUBORDINATE TEXTS 107
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.
110 COMPOSITION OF THE COURT
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
THE BENCH 111
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
112 COMPOSITION OF THE COURT
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.
114 COMPOSITION OF THE COURT
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).
THE BENCH 115
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.
THE BENCH 117
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
118 COMPOSITION OF THE COURT
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.
THE BENCH 119
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.
120 COMPOSITION OF THE COURT
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
THE BENCH 121
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
122 COMPOSITION OF THE COURT
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.
THE BENCH 123
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.
124 COMPOSITION OF THE COURT
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.
THE BENCH 125
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
126 COMPOSITION OF THE COURT
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.
THE BENCH 127
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
128 COMPOSITION OF THE COURT
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
THE BENCH 129
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
THE BENCH 131
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.
134 COMPOSITION OF THE COURT
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.
136 COMPOSITION OF THE COURT
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.’
140 COMPOSITION OF THE COURT
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.’
ELECTING THE JUDGES 141
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).
142 COMPOSITION OF THE COURT
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
CHAMBERS OF THE COURT 143
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
144 COMPOSITION OF THE COURT
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.
CHAMBERS OF THE COURT 145
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
146 COMPOSITION OF THE COURT
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’.
CHAMBERS OF THE COURT 147
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.
148 COMPOSITION OF THE COURT
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
CHAMBERS OF THE COURT 149
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
150 COMPOSITION OF THE COURT
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
CHAMBERS OF THE COURT 151
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.
CHAMBERS OF THE COURT 153
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:
154 COMPOSITION OF THE COURT
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.
156 COMPOSITION OF THE COURT
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
158 COMPOSITION OF THE COURT
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.’
160 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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
FIRST STEPS IN A CASE 161
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.’
162 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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.
164 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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
FIRST STEPS IN A CASE 165
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
166 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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.
FIRST STEPS IN A CASE 167
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.
168 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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.
30
FIRST STEPS IN A CASE 169
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.)’
170 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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,
FIRST STEPS IN A CASE 171
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.
33
172 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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.
FIRST STEPS IN A CASE 173
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.
174 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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.
39
FIRST STEPS IN A CASE 175
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
176 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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.
FIRST STEPS IN A CASE 177
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.
178 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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
FIRST STEPS IN A CASE 179
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.
49 50
180 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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.’
FIRST STEPS IN A CASE 181
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.
52
182 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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.
53
FIRST STEPS IN A CASE 183
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
184 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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,
FIRST STEPS IN A CASE 185
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.’
186 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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
FIRST STEPS IN A CASE 187
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
188 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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.
FIRST STEPS IN A CASE 189
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
190 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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.
DISCONTINUING A CASE 191
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
192 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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
DISCONTINUING A CASE 193
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
194 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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
DISCONTINUING A CASE 195
(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
196 CONTENTIOUS PROCEDURE: INTER-STATE DISPUTES
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 Certa